Press Release No: Individual Application 28/17
04.10.2017

PRESS RELEASE CONCERNING THE DECISION FINDING THE ALLEGED VIOLATION OF THE RIGHT TO PROPERTY DUE TO THE ANNULMENT OF THE RIGHT TO HOUSING INADMISSIBLE FOR LACK OF JURISDICTION RATIONE MATERIA

On 25 July 2017, the Plenary of the Constitutional Court found the application inadmissible for lack of jurisdiction ratione materia as the applicant had no interest within the scope of the right to property safeguarded by Article 35 of the Constitution, in the individual application lodged by Mehmet Şentürk (no. 2014/13478).

The Facts

Following an earthquake occurring in the Gölcük District of Kocaeli on 17 August 1999, a housing was allocated to the applicant pursuant to the report indicating that the applicant’s house, which was “under construction”, was “ruined”. However, as a result of the comprehensive inquiries, the applicant’s entitlement for the housing was annulled on the ground that the ruined structure “was under construction during the earthquake”.

The applicant then brought an action before the administrative court during which he maintained that he had been residing in the house in question since 7 May 1999 and accordingly submitted the address transfer certificate issued by the mukhtar’s office (elected responsible person of a neighbourhood). In the letters received from the relevant municipalities, it was indicated that utility bills (electric, telephone, gas) were not available in the region where the applicant was residing as the relevant data could not be updated due to the earthquake. However, according to the subscription list of water service, the building in question was inhabited before the earthquake without obtaining the necessary occupancy permit. 

The expert’s report issued at the end of the on-site inspection carried out by the relevant Magistrate’s Court for establishing the evidence reveals that there was a shed built with bricks on the immovable in question.

The administrative court found no indication of unlawfulness in the annulment of the applicant’s entitlement for the housing, which had been erroneously granted, by  taking into consideration the failure to submit utility bills of the applicant’s house for the period before the earthquake; the facts that his house was under construction when the earthquake occurred and that he did not raise an objection to the damage assessment report which revealed that the building was under construction; and the fact that it is not possible to acknowledge the applicant’s ownership by relying merely on the address transfer certificate which was approved by the local administrative authority. The administrative court’s decision was upheld by the Council of State.   

The Applicant’s Allegations

The applicant maintained that his right to property was violated as there was no public interest in the annulment of his entitlement seven years later and that neither the principle of proportionality was complied with nor the fair balance was struck in such an annulment.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

It is obvious that there might be difficulties, in certain cases it might be even impossible to obtain and submit utility bills after the natural disasters such as earthquake. However, the difficulties or impossibilities experienced in submission of the bills do not relive the applicant of his burden of proof.  Besides, the applicant failed to submit any concrete document proving that he could not submit the utility bills or real estate tax statement due to the earthquake. On the other hand, it is the inferior courts’ duty to assess whether the other evidence submitted by the applicant has probative force. Within the scope of the individual application mechanism, it is not the Constitutional Court’s duty to examine the inferior courts’ assessments as to the material facts and the evidence unless there is a manifest error or an explicit arbitrariness. In the present case, it has been concluded that there is no manifest error in the assessment of the evidence and no arbitrariness in the conclusion –reached on the basis of the damage assessment report which was not contested by the applicant– that the immovable could not be qualified as “an inhabitable housing” for being “under construction” before the earthquake.

Article 35 of the Constitution does not safeguard access to property or acquisition of property on an abstract ground but an existing property or legitimate expectation.  In the present case, the applicant whose house does not meet the condition of the housing entitlement under relevant law that a building demolished or severely damaged due to the earthquake must be inhabitable before the earthquake, failed to demonstrate a legal provision, an established case-law or an administrative practice proving that he had a legitimate expectation within the scope of the above-cited Law. 

Consequently, in the present case, the applicant has neither an existing property within the scope of his right to property safeguarded by Article 35 of the Constitution nor a legitimate expectation based on a sufficient legal ground for his acquisition of a housing due to the disaster.

For this reason, the Constitutional Court declared the application inadmissible for lack of jurisdiction ratione materia, without making a further examination as to the other admissibility criteria.

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

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