Events
The entire property with a land area of 3,799 m², parcel number 768, block number 1813, is registered in the land registry in the name of I.M. and the applicant’s deceased relative M.M. at a ratio of 1/2. In the same neighborhood, 14,499/18,870 shares of the 18,130 m² plot of land with the parcel number 1813 769 are registered in the land registry in the name of the Cooperative, 4,371/37,790 shares are registered in the name of İ.M., and 4,371/37,790 shares are registered in the name of the applicant’s deceased relative.
Based on the Municipal Council decision, the entire property with parcel number 768 was removed from the land registry as green space upon the owners’ request for abandonment. Upon the request of the owners of the property with parcel number 769, an official deed was drawn up by the land registry custodians. The aforementioned title deed states that I.M. and M.K. are jointly authorized on behalf of the Cooperative, and that M.M., the deceased of the applicants, is also authorized, and that I.M. and the deceased of the applicant are authorized in their own names. The deed states that, based on the Council decision dated 16/3/1989, the immovable property with parcel number 769 was divided into eleven separate parcels and voluntarily distributed among the owners. Accordingly, 2,397 m² of parcel no. 769, with an area of 18,870 m², was abandoned for road use, 9,326 m² was abandoned for green space, and the remaining parts were divided among the owners.
Regarding the conversion of part of the abandoned areas in real estate parcels numbered 768 and 769 into a religious facility area, the Municipal Council approved the application for the cancellation of the implementation zoning plan and master zoning plan approved on 23/6/ 2000, requesting the cancellation of the application zoning plan and the master zoning plan, was accepted on 20/12/2002, and the zoning plans were canceled.
The applicant’s heir filed a compensation claim, stating that the real estate abandoned free of charge as green space and roads was not being used for the purpose of the abandonment. The court dismissed the case against the Metropolitan Municipality due to lack of passive jurisdiction and dismissed the case against the Municipality on its merits. The decision, which was appealed by the applicant, was upheld by the Court of Appeals. The applicant’s request for a correction of the decision was also rejected by the same Chamber.
Allegations
The applicant claimed that his property rights had been violated due to the use of the real estate, which had been transferred free of charge as green space and road, contrary to the purpose of the transfer.
The Court’s Assessment
There is no aspect of the specific case that requires discussion of the criteria of suitability and necessity. The main issue to be discussed is whether the intervention is proportionate.
Proportionality, the third sub-principle of reasonableness, requires a fair balance between the protection of the public interest and the rights and freedoms of the individual. If the proposed measure places an extraordinary and excessive burden on the owner, the intervention cannot be considered proportionate and therefore measured. Accordingly, it is necessary to determine whether the measure imposed an excessive and disproportionate burden on the applicants.
Firstly, it should be emphasized that the abandonment by the applicant and other owners is not unconditional but conditional, i.e., abandonment/donation free of charge as green space and roads, and that, according to the expert reports obtained by the court of first instance, the immovable properties are not being used in accordance with the purpose of abandonment.
At this stage, it should be noted that even if the property is used for purposes other than the purpose of the abandonment, if it is allocated for another need in the public interest, it should be accepted that the public interest purpose still exists, but only the reason has changed. On the other hand, as previously explained by the Constitutional Court, if the immovable property is allocated for a purpose consistent with the expropriation purpose and then, due to the absence of the need for that purpose, it is used for different purposes, this does not constitute a violation of the requirements of the right of ownership, depending on the circumstances of the specific case.
In this context, in the case in question, the court did not assess whether the construction of a municipal service building and a mosque on part of the green area and the area abandoned for road purposes, contrary to the purpose of the abandonment, and the municipality’s generation of income from shops served a different public purpose. Therefore, it was stated that the relevant transactions were carried out in the land registry due to the request for voluntary abandonment, and it was decided to reject the claim for compensation on the grounds that the subsequent changes in the zoning plans would not affect the abandonment transactions. , the claim for compensation was rejected.
Therefore, in the specific case, it was determined that the decisions of the courts of first instance did not contain sufficient and relevant grounds to respond to the applicant’s claims and objections that could affect the outcome of the case.
Accordingly, considering the administrative and judicial process as a whole, it was concluded that procedural safeguards for the protection of property rights were not fulfilled in the specific case and that the applicant did not benefit from these safeguards. For this reason, the fair balance that should exist between the applicant’s property right and the public interest on which the interference is based has been disrupted to the detriment of the applicant, and the interference with the property right is disproportionate.
The Constitutional Court ruled that the property right had been violated based on the reasons explained.
