Facts
The applicant claimed that he was unable to access his properties in the village he was forced to abandon in 1994–1995 due to terrorist incidents and, on December 6, 2017, filed a claim with the Damage Assessment Commission (Commission) seeking compensation for damages resulting from the inability to access the property for the period after May 30, 2007. Upon the Commission’s failure to respond to his request, the applicant filed a lawsuit in administrative court. The administrative court annulled the implied rejection decision issued against the applicant. The Regional Administrative Court, which reviewed the Governor’s Office’s appeal, partially granted the appeal, setting aside the portion of the Administrative Court’s decision pertaining to the period from May 30, 2007, to December 6, 2016, and dismissed the case regarding that portion on the grounds of the statute of limitations. In the reasoning of the decision, it was stated that the applicant could only claim compensation for damages incurred within one year prior to the date of the administrative application (December 6, 2017), and that it was not possible to claim compensation for damages occurring more than one year prior to the application date under Law No. 5233.
Claims
The applicant claimed that the right to an effective remedy, as linked to the right to property, was violated because the administrative application seeking compensation for damages resulting from the inability to access the property was not considered within the prescribed time limit.
The Court’s Assessment
In the case at hand, the fact that the applicant could not access his property has been established by the decisions of the lower courts. However, the Regional Administrative Court dismissed the case on the grounds that the application was not filed with the Commission within the prescribed time limit. Consequently, the merits of the applicant’s claim for compensation were not examined. It was concluded that the complaint regarding the failure to examine the merits of the applicant’s claim for compensation for the damage allegedly suffered due to being unable to access his property must be evaluated within the scope of the right to an effective remedy guaranteed by Article 40 of the Constitution, in connection with the right to property established under Article 35 of the Constitution.
The first issue to be examined by the Constitutional Court is whether there exists a legal remedy through which the applicant can assert the claim that their right to property has been infringed and, if so, seek compensation for any resulting damage.
Article 1 of Law No. 5233 on the Compensation of Damages Arising from Terrorism and the Fight Against Terrorism, Article 7(1)(c) and Article 6(1) of the Law No. 5233 on the Compensation of Damages Arising from Terrorism and the Fight Against Terrorism, it is understood that persons unable to access their property due to measures taken within the scope of the fight against terrorism may apply to the Commission within sixty days from the date of learning of the incident, and in any case within one year from the date the incident occurred, to seek compensation for the damages incurred. Therefore, it is clear that an effective remedy to compensate the applicant for the damages suffered due to being unable to access their property as a result of measures taken within the scope of counter-terrorism efforts exists in theory.
In the present case, it must also be examined whether this remedy, which has been determined to be effective in theory, actually functioned in the applicant’s case—in other words, whether it offered a realistic chance of success in practice. As a result of the proceedings, the Regional Administrative Court ruled that the applicant could only be compensated for damages incurred within one year prior to the date of the application, and that damages incurred prior to December 6, 2016, could not be compensated under Law No. 5233 because they were not claimed within the one-year period, and accordingly dismissed the case regarding damages for the period between May 30, 2007, and December 6, 2016.
Upon examining the first paragraph of Article 6 of Law No. 5233, it is evident that the condition for filing a claim with the Commission is “within sixty days from the date the incident causing the damage is learned, and in any case within one year from the date the incident occurred.” In this context, it is clear that the interpretation of the concept of “the incident causing the damage” is of significant importance. While the interpretation of the legal rules applicable to the case falls within the discretion of the lower courts, it is the duty of the Constitutional Court to examine whether such interpretation involves arbitrariness or a manifest error of judgment.
In the present case, the event giving rise to the damage is the denial of access to the applicant’s property. The inability to access the property constitutes a continuing interference. Therefore, as long as the restriction on access to the property continues, the interference with the applicant’s property right will persist. In cases of momentary interference, it is reasonable to calculate the time periods specified in Article 6 of Law No. 5233 from the date of the interference. In contrast, in cases of ongoing interference, it is not possible to specify a single, precise date for the interference. A continuing intervention—unless there is an interruption—is an intervention that persists at all times. For this reason, a specific date cannot be determined for the event causing harm in a continuing intervention. Consequently, in such interventions, the time periods specified in Article 6 of Law No. 5233 must be calculated from the date the intervention ceases.
For this reason, the Regional Administrative Court’s interpretation regarding the deadline for filing a claim with the Commission has been deemed unreasonable, excessively formalistic—as it effectively acknowledges that the incident giving rise to the damage recurs annually with interruptions—and an interpretation that makes it difficult for the claimant to avail themselves of the compensation option introduced by Law No. 5233. As a result, the compensation mechanism established by Law No. 5233—which had been determined to be theoretically effective in remedying the violation of the right to property—has lost its capacity to offer a realistic chance of success in the specific case due to the Regional Administrative Court’s interpretation, which constitutes a clear error of judgment and is overly formalistic and rigid.
The Constitutional Court ruled that the right to an effective remedy, in connection with the right to property, had been violated based on the aforementioned grounds.