The right to property is one of the classical fundamental rights and is guaranteed at both national and international law levels. 1982 Constitution Article 35: "Everyone has property and inheritance rights. These rights can only be limited by law for the purpose of public interest." ECHR Additional Protocol 1 art.1: "Every natural and legal person has the right to the protection of his or her property. No one may be deprived of his property only for reasons of public interest and in accordance with the conditions prescribed by law and the general principles of international law."
Three Aspects of Property Rights (ECHR Jurisprudence)
The threefold distinction adopted since the ECHR decision Sporrong and Lönnroth v. Sweden:
1) Right to Peaceful Enjoyment of Property
General principle: Everyone has the right to peaceful enjoyment of his property.
2) Deprivation of Property
Interventions that deprive property such as expropriation and confiscation. Legal basis, public interest and proportionality conditions are required.
3) Regulation of the Use of Property
Interventions that limit the usage opportunities without eliminating the ownership of the property, such as zoning restrictions, license conditions, rent ceilings, environmental protection measures.
Common Cases of Property Rights Violation in Turkish Law
1) Confiscation Without Expropriation
It is the actual use or seizure of a real estate by the administration (usually public institutions such as municipalities or highways) without carrying out the legal expropriation procedure. There are two types:
a) Actual Throwing of Hands
The actual allocation of real estate to the public for the needs of public services such as roads, parks, schools, hospitals. The owner is deprived of his real estate, but the expropriation fee is not paid.
Legal remedy: A suit for price due to confiscation without expropriation is filed in the Civil Court of First Instance. According to the consistent jurisprudence of the 5th HD and the General Assembly of the Supreme Court of Appeals, the market price of the real estate on the date of actual seizure must be paid.
b) Legal Seizure (With Zoning Restrictions)
The real estate should be reserved for public purposes such as "green area", "school area", "road", "park" in the zoning plan and should not be expropriated for many years. In this case, the owner cannot actually benefit from his property; He cannot build on his land and it becomes difficult to sell it.
Settled jurisprudence of the Supreme Court: If a restriction is imposed in the zoning plan and expropriation is not carried out within a reasonable period of time (usually 5 years), the owner may claim compensation for actual confiscation.
2) Incorrect Deed Cancellation
The administration cancels the title deed of the rightful owner based on cadastral or forestry legislation. The rightful owner files a lawsuit against the title deed cancellation decision; If a violation of property rights is determined by the decision of the Constitutional Court, a retrial or a request for compensation may be possible.
3) Excessive Tax/Fine
Excessive tax penalties or administrative fines may be considered as property rights violations; especially in cases where the penalty is such that it eliminates real assets.
4) Bank Account and Asset Blocking
Long-term seizures made on suspicion of crime or upon MASAK's decision, and refusal to return the property before the case is concluded during the subsequent trial process, may result in a violation of property rights.
5) Social Security Rights
According to the ECHR's Stec v. England and other decisions, pensions, social security rights and contribution-based social benefits may be within the scope of property rights. Unfair interference with these rights may be subject to application as property rights violation.
Proportionality Control of the Intervention
The ECHR and the Constitutional Court examine whether the interference with property rights is legitimate or not through a three-stage audit:
Price Calculation
Price in confiscation cases without expropriation:
- Fair value on the actual seizure date (market value of the real estate on the evaluation date)
- Legal interest is applied to the price (starting from the date of seizure)
- Determined by expert report
Jurisdictional and Competent Court
- Confiscation fee case without expropriation: Civil Court of First Instance, where the real estate is located.
- Cancellation of administrative action: Administrative Court.
- Individual application to the Constitutional Court:Within 30 days after domestic legal remedies have been exhausted.
- ECHR: Within 4 months after the notification of the Constitutional Court decision.
Property Rights Violation in Individual Application
Arguments to be put forward claiming property rights in individual applications to the Constitutional Court and the ECHR:
Duration for Confiscation Without Expropriation
As a rule, cases of confiscation without expropriation are not subject to statute of limitations. The consistent jurisprudence of the 5th HD Court of Appeals since 2013 is in this direction; Since the property right has a permanent character, the statute of limitations does not apply.
Important Constitutional Court Decisions
The Constitutional Court has made many decisions containing property right violations on issues such as confiscation without expropriation, zoning plan restrictions, asset freezing by MASAK decision. These decisions shaped the administration's practices and led to legal changes.