Case of “Süleyman Oktay Uras and Sevtap Uras”, Individual Application Judgment of the Constitutional Court of the Republic of Turkey dated 9/3/2017, no. 2014/11994 Regarding the Protection of Right to Property

Mülkiyet Hakkının Korunmasına İlişkin T.C. Anayasa Mahkemesi’nin 09.03.2017 Tarihli ve 2014/11994 Başvuru Numaralı “Süleyman Oktay Uras ve Sevtap Uras” Bireysel Başvuru Kararı

Sakine Nilüfer BİLGİN

On 9 March 2017, the Constitutional Court of the Republic of Turkey found a violation of the right to property safeguarded by Article 35 of the Turkish Constitution in the individual application lodged by Süleyman Oktay Uras and Sevtap Uras (Application no. 2014/11994) due to non-return of the property abandoned to the municıpality for road construction by an amendment to the implementary development plan and merging of the parcels by the municipality to turn the abandoned land into residential area. This case especially touched the fringes of “legitimate expectation”, the principle of “proportionality”, the principle of “confidence in the Public Administration or the State”, “public interest” and “reasonable or fair balance”.

Road Construction, Public Interest, Implementary Development Plan, Amendment to the Zoning Plan, Right to Property, Legitimate Expectation, Principle of Proportionality, Principle of Confidence in the State or the Public Administration, Reasonable or Fair Balance.

T.C. Anayasa Mahkemesi, 09.03.2017 tarihli ve 2014/11994 başvuru numaralı “Süleyman Oktay Uras ve Sevtap Uras” bireysel başvuru kararında yol yapımı şartıyla belediyeye terk edildikten sonra imar planı değişikliği ile konut alanına dönüştürülen ve başka bir parselle birleştirilen taşınmazın önceki maliklerine iade edilmemesi nedeniyle T.C. Anayasası’nın 35. maddesinde güvence altına alınan mülkiyet hakkının ihlaline hükmetmiştir. Anılan mahkeme kararında özellikle “haklı beklenti”, “ölçülülük” ilkesi, “devlete veya idareye güven” ilkesi, “kamu yararı” ve “makul veya adil denge” kavramları üzerinde durulmuştur.

Yol Yapımı, Kamu Yararı, Uygulama İmar Planı, İmar Planı Değişikliği, Mülkiyet Hakkı, Meşru veya Haklı Beklenti, Ölçülülük İlkesi, Devlete veya İdareye Güven İlkesi, Makul veya Adil Denge.

Introduction

On 9 March 2017, the First Section of the Constitutional Court of the Republic of Turkey found a violation of the right to property safeguarded by Article 35 of the Turkish Constitution in the individual application lodged by Süleyman Oktay Uras and Sevtap Uras (no. 2014/11994)¹ The judgment of Turkish Constitutional Court in this individual application emphasized especially the basic principles of administrative law such as proportionality, public interest and confidence in the State or the Public Administration in terms of the protection of right to property.

The Facts

The applicants purchased a property in 1990, which was a zoning lot located in the Dikilitaş Neighbourhood of Beşiktaş/Istanbul. They applied to the Municipality for restoration of the three-storey building located on the property. The Municipality stipulated that a total of 154.54 m² of the property would be abandoned to the Municipality free of charge for construction of a road. The applicants accepted the stipulation set by the Municipality on the basis of a contract drawn up by the notary on 18 August 1992. The relevant part of the property was registered in the name of the Municipality on 16 September 1992. The applicants built a five-storey building on the remaining part of the property in accordance with a building licence they were granted on 7 October 1992.

The area of 80 m² of the abandoned land, which had initially been designated as “street”, was turned into “residential area” by an amendment made to the implementary development plan on 9 August 2007 and merged with the adjacent parcel no. 36. on 17 December 2009. Subsequently, the applicants claimed the return of the property and requested that it be merged with the parcel no. 37 owned by them. However, the Municipality rejected their claim.

The suit brought by the applicants before the 6th Chamber of the Istanbul Administrative Court (“the Administrative Court”) for return of the 80 m² land in question was dismissed on 23 September 2011 for being time-barred. The decision was quashed by the 6th Chamber of the Council of State (Conseil d’Etat) on 21 February 2013. The administrative court abided by the judgment of the Council of State (Conseil d’Etat) and annulled the administrative action for merging the property with the parcel no. 36 on 29 January 2016, after the date of the individual application. However, the administrative court rejected the claim for return of the property for lack of jurisdiction. The applicants have appealed against the judgment and their appeal is still pending.

The applicants brought an action before the 4th Chamber of the Istanbul Civil Court (“the Civil Court”) requesting the registration of the 80 m² land in their names by ½ shares and the discontinuation of the interference. In its decision dated 24 January 2013, the Civil Court stated that the former owners of the property, who gave consent to the reservation of their property for public services and facilities, did not have right to claim title, and therefore, it was not possible to register the property in the name of them free of charge. It was also reminded in the decision that merging of the parcels by the Municipality was an administrative act. The 5th Civil Chamber of the Court of Cassation upheld the Civil Court’s decision on 12 November 2013. The applicants’ request for rectification of the judgment was rejected by the same Chamber on 26 May 2014.

The Applicants’ Allegations

The applicants maintained that their property had been abandoned to the Municipality for road construction, however, due to a subsequent amendment to the development plan, the property in question was turned into residential area and merged with another parcel. In this respect, they alleged that as the property in question was not returned to them, their right to property was violated. The applicants also complained that merging of the 80 m² property in question with the adjacent parcel no. 36 would damage their own property, as well as, the owner of the parcel no. 36 would derive an improper profit.