Press Release No: Individual Application 5/17
28.03.2017

PRESS RELEASE ON THE JUDGMENT FINDING A VIOLATION OF THE RIGHT TO PROPERTY OF THE PROPERTY OWNER WHOSE RENTAL INCOME DECREASES FOR BLOCKING OF THE STREET

The First Section of the Constitutional Court held on 2 February 2017, with regard to the individual application lodged by Recep Tarhan and Afife Tarhan (App. No. 2014/1546), that the applicant’s right to property guaranteed in Article 35 of the Constitution was violated, due to the fact that the reasonable balance required to be struck between the public interest and the right to property of the proprietor was upset to the detriment of the proprietor.

The Facts

“Kahraman Kadın“ Street, where the real property of which the applicants are the co-owners is located, was closed to vehicles or pedestrians by the decision of 15 March 2001 rendered by Ankara Transportation Coordination Center (ATCC) with a view to providing the security of the Embassy of Israel. Upon the application lodged by the community dwellers, the TCC decided that the blocks and barriers in the street be removed. Yet, this decision has not been executed.

The applicants and the other two community dwellers requested, through the petitions they filed to Ankara Governor’s Office, that the necessary procedures be carried out in order for the decision of ATCC to be executed. Upon the fact that this request was not answered but rejected implicitly by the Governor’s Office, the applicants filed an action with the 3rd Chamber of Ankara  Administrative Court for the cancellation of the act of implicit rejection of the request. The decision of 23 February 2007 rendered by the court on the dismissal of the action was upheld on 21 October 2009 by the 8th Chamber of the Supreme Administrative Court; and the request for the rectification of the decision was rejected on 20 January 2010.

Meanwhile, during the meeting of the Plenary Assembly of ATCC held on 30 December 2005, it was decided that the Ankara Governor’s Office be inquired of whether there was a security problem or not in the area where the Embassy of Israel was located. After the Ankara Governor’s Office had delivered such an opinion that the removal of blocks and barriers would constitute a security vulnerability, it was decided by the Plenary Assembly of ATCC on 26 May 2006 that those blocks and barriers which had been determined to be removed previously should remain in place.

According to the statements in the application petition, once the street was closed by barriers on 1 December 2003, the applicants who had earlier rented their real properties located in the aforesaid place for 3,000 TRY (“Turkish Liras”) per month had to reduce the rental price to TRY 1,000 with a view to settling with the tenant. Even though the applicants reset the rental price which they had received as TRY 1.000 for 49 months as 3.000 TL as of 1 January 2008, the rental contract was terminated on 31 August 2008 and the real property was evacuated de facto since the tenant could not do any business.

The applicants lodged an application with the 9th Chamber of the Ankara  Administrative Court and requested the cancellation of the procedure carried out by ATCC on 26 May 2006 and of the decision rendered by the Governor’s Office which constituted the basis of this procedure. The Court decided on the cancellation of the procedure through its decision of 31 March2010. It was underlined in the reasoning of the decision that implementation of the measure of closing the street by barriers without a detailed research and examination by the administration, without predicating on concrete facts justifying the restriction but merely considering the existence of the potential danger, was contrary to law. It is indicated in the decision appealed by the defendant Administration that occurrence of certain serious incidents which would point out the necessity of the afore-mentioned measures found, by the judgment of 6 May 2011 rendered by the 8th Chamber of the Supreme Administrative Court, to be taken –without any hesitation - for ensuring the security of the Embassy of Israel, and making of concrete assessments would be contrary to the ordinary flow of life and the nature of diplomatic relations.

The first instance court, having abided by the judgment rendered by the Chamber, rendered a dismissal decision on the same grounds. The request of appeal filed against the mentioned decision was rejected on 4 June2013 and the request for the rectification of the decision was rejected on 6 November 2013; and the decision then became final.

The applicants brought a full remedy action before the 15th Chamber of the Ankara Administrative Court against the Ankara Governor’s Office and the Ankara Metropolitan Municipality and claimed pecuniary and non-pecuniary damages of TRY 210,000  and TRY 5,000 respectively, plus any statutory interest. The first instance court decided to dismiss the action through its decision of 15 June 2011. In the decision, the liability of the administration based on fault (tort liability) was discussed but no discussion was held as to whether principles of absolute liability would be applied in the incident or not.

The 8th Chamber of the Supreme Administrative Court, rejecting the applicants’ request of appeal through its judgment of 1 November 2012, upheld the decision. The request for the rectification of the decision where the same allegations of the applicants were set forth was also rejected by the same Chamber by its judgment of 6 November 2013.

The Applicants’ Allegations

The applicants alleged that their property rights were violated, stating that their rental income obtained from the real property was reduced since the street where their real property they rented as a place of work was located was closed to vehicles or pedestrians.

The applicants asserted that closing a street to vehicles and pedestrians with a view to protecting an Embassy of a foreign state did not comply with the principle of the social state of law, and in case of an obligation to take any measure for this reason, the consequences thereof should be compensated in accordance with the principle of balancing equity.

The applicants complained that even if they asserted in the trial process that the damages arising from the acts and actions of the administration should be compensated without seeking the condition of fault (tort) pursuant to the last paragraph of Article 125 of the Constitution, they complained that this issue was discussed neither in the decision rendered by the first instance court nor in the judgments rendered by the Supreme Administrative Court.  

The Court’s Assessment

In brief, the Constitutional Court has made the following assessments in the context of this allegation:

The key criterion in terms of proportionality (ölçülülük) assessment of the interference with regard to the incident constituting the subject matter of the application is proportionality (orantılılık). It is apparent that decrease in the economic value obtained from the rented real property due to the reduction of the rental income lays a burden on the applicants. To provide redress for this burden imposed on the applicants through the measure of closing the street where the Embassy of Israel is located to vehicles and pedestrians, which is applied as a requirement of the international legal obligations of the state of the Turkish Republic, is a necessity of the principle of proportionality. However, the action was dismissed by the first instance court without providing the applicants with the opportunity to prove the existence of the damage and the causal link between the damage and the act/procedure, on the ground that the administration has no service-related fault regarding the incident. The interpretation of the court which limits the liability of the administration to the condition of existence of its fault has prevented the burden imposed on the applicants from being lightened and balanced.

However, the right to property guaranteed in Article 35 of the Constitution entails providing certain opportunities which balance the interest of the proprietor even in legal interferences. These opportunities set for the purpose of the protection of the interest of the proprietor might include the payment of compensation under the particular circumstances of the concrete case. However, it is not a requisite. While whether it is necessary to pay compensation or not is at the discretion of the instance court, depending on the conclusion reached with respect of the existence of damage and of the causal link between the damage and the measure constituting interference; subjecting the compensation to the condition of existence of fault inhibits from the very beginning the conduct of proportionality review which is a requirement of Article 35 of the Constitution.

On the other hand, in accordance with the principle of balancing sacrifices which has been implemented for many years, it is possible to compensate for the damages suffered by the ones due to the administrative acts and actions, even if those are legal. However, no discussion was made as to whether the conditions for the implementation of this principle have appeared or not even though the applicants had such an allegation in the concrete case.

With regard to the action brought for compensation for the damage alleged to have occurred due to closing of the street to vehicles and pedestrians, the applicants were deprived of receiving compensation by proving the damage they had suffered and the existence of the causal link between the act of the administration and the damage, and thus they were deprived of the opportunity to balance the burden imposed on them, since the court made such an interpretation that the conduct of review of the damage and the causal link depends on the condition of the existence of the administration’s fault. That the applicants are caused to face with the obligation to tolerate the burden arising from that measure which is for the benefit of the whole society results in the upset of the reasonable balance required to be struck between the public interest goal and the proprietor’s right to property to the detriment of the proprietor, and renders the interference with the right to property disproportionate.

Consequently, the Constitutional Court has held that the right to property guaranteed in Article 35 of the Constitution was violated.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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