Press Release No: Individual Application 27/17
29.09.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF RIGHT OF ACCESS TO A COURT DUE TO STRICT INTERPRETATION OF THE STATUTE OF LIMITATIONS

On 25 July 2017, the Plenary of the Constitutional Court found a violation of the right of access to a court safeguarded by Article 36 of the Constitution in the individual application lodged by Yaşar Çoban (no. 2014/6673).

The Facts

The immovable property that is the subject of the present application was sold by auction to third parties with a title deed in 1944.Upon the establishment of forestry restrictions in 1946, the property remained within the boundaries of the forest. Therefore, during the forestry cadastre it was excluded from property registry. In 1974, certain part of the property that was designated as heathland in the title deed was purchased by the applicant. In 1975, by a practice called “2/B”, the area where the property was located was separated from the forest on behalf of the Treasury and left in the forest cadastral parcel. In the cadastral work carried out in 1980, the property in which the applicant alleging to have a share was registered in the name of the State Treasury as a maquis shrubland.

Many persons, who unsuccessfully claimed title with respect to the property in question filed a law suit in 1982. The suit was concluded in 2006 following a lengthy trial process involving many stages.

The applicant was not a party to the suit and had not filed any other case in the past. However, after the finalization of the judgment rendered as a result of the case, the applicant brought an action for compensation in 2009, arguing that he sustained damage due to the registration of the property, which he had purchased relying on its title deed, in the name of the Treasury.

The first instance court dismissed the case in 2012. The Court of Cassation upheld the decision in 2013. According to the reasoning of the Court of Cassation; pursuant to Article 125 of the former Code of Obligations no. 818, ten-year statute of limitations applies to the actions for damages to be filed due to the strict liability of the State under Article 1007 of the Turkish Civil Code no. 4721, however the applicant’s case was not filed within the ten-year period. The applicant's request for rectification was dismissed in 2014, and the judgment became final.

The Applicant’s Allegations

The applicant claimed that his right to property was violated in that the immovable property he had purchased relying on its title deed was registered in the name of the Treasury during a cadastral work and that the action for damages he brought in this sense was dismissed due to the expiry of statute of limitations.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

The Chamber of the Court of Cassation acknowledged that pursuant to Article 125 of the Code no. 818, ten-year statute of limitations applies to the actions for damages to be filed under Article 1007 of the Law no. 4721. Accordingly, an action for damages must be brought within ten years after the property loss occurred as a result of cadastral process.

The Chamber noted that the applicant did not bring an action against the registration made in the name of the Treasury in 1980 and therefore the cadastral registration became final on the part of the applicant. As a result, the Chamber held that the statute of limitations had expired with respect to the case filed on 26 June 2009, and it dismissed the case.

There is no dispute as to the fact that the applicant did not bring an action against the cadastral registration of 1980. According to the decision of the Chamber, the applicant must have brought an action until 1990. However, the case-law of the Court of Cassation at the material time provided that Article 1007 of the Law no. 4721 did not cover the errors made during the formation of the land register. In other words, according to the case-law in question, the action for liability set forth in Article 1007 of the Law no. 4721 was not an efficient remedy for examining the applicant’s claim for damages and, if necessary, awarding compensation to him. Following the new case-law of the Court of Cassation, dated 18 November 2009, this action has become an effective and efficient remedy for the examination of the applicant’s claim for damages.

The assumption of the Chamber that the statute of limitations as regards the remedy which was created on 18 November 2009 started to run in 1980 made it meaningless for the applicant to make use of the remedy provided by Article 1007 of the Law no. 4721. Expecting the applicant to exhaust a remedy –which was not effective until 18 November 2009 in terms of his claim– before 1990 imposed an excessive burden on him. As a matter of fact, this remedy has been effective as from 18 November 2009 with respect to the applicant’s claim.

This consideration of the Chamber is extremely formalistic and strict, and it renders the remedy of compensation provided by Article 1007 of the Law no. 4721 futile for the applicants in respect of whom the statute of limitations had expired before 18 November 2009. Acknowledgement of the fact that the statute of limitations to be applied to a remedy created on a subsequent date would start to run from a date which would make it absolutely impossible for the applicant to make use of the remedy is incompatible with the principle of exceptionality of restrictions. However, considering that the ten-year time-limit intends to provide legal certainty and stability as per Article 125 of the Law no. 818, it is clear that this period must not be completely ignored. A balance must be struck between the applicant’s individual interest in his ability to enjoy the right to bring an action and the public interest in maintaining the principle of legal certainty and stability, which will not make it meaningless to set a time-limit for bringing an action. It must be underlined that this balance does not necessarily requires  to accept that the ten-year time-limit will restart to run as from 18 November 2009, the date on which the remedy was created. Otherwise, setting a time-limit would be meaningless and the balance between the public interest and the individual interest will be impaired to the detriment of the public interest. The important point is that for the persons whose claims were out of time before 18 November 2009 must be provided with the opportunity to file a case under Article 1007 of the Law no. 4721 in a reasonable time.

In this case, providing a reasonable period for filing of the claims in respect of which the statute of limitations had expired before 18 November 2009 would be sufficient for striking a fair balance between the public interest and the protection of the individuals’ right to property. There is no doubt that it is at the discretion of the domestic courts, in particular the Court of Cassation, to determine this period.

In brief, the burden imposed on the applicant due to the dismissal of his request on the ground that the remedy which became effective as from 18 November 2009 with regard to his claim impaired the fair balance that must be struck between the public interest and the individual’s right of access to a court. Hence, the interference with the applicant’s right of access to a court was disproportionate.

Consequently, the Constitutional Court found a violation of the applicant’s right of access to a court safeguarded by Article 36 of the Constitution.

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

The Constitutional Court of the Republic of Turkey © 2015
Number of Visitors: