Violation Of The Right To Effective Application Due To The Rule Preventing The Examination On The Merits Regarding The Damage Claim
Events
There are four buildings and various annexes on the immovable property belonging to the applicant. In 1996, the General Directorate of the Turkish Hard Coal Authority (TTK) granted permission to a company to carry out mining activities by transferring the right to mine in the license area by signing a royalty agreement. According to the applicant’s declaration, the TTK operated in the said area between 1990 and 1996, and the royalty operator has been operating since 1996 until today.
The applicant filed a lawsuit for compensation against the General Directorate of TTK and the private company, claiming that his immovable property had become unusable due to the collapses caused by the collapse due to the collapse caused by defective coal production. As a result of the examinations, the court decided to dismiss the lawsuit. The decision appealed by the applicant was upheld and the request for correction was rejected.
Allegations
The applicant claimed that his right to effective remedy in connection with his right to property was violated due to the lack of compensation for the damage caused to the building and its annexes by mining activities.
The Court’s Assessment
In the concrete case, taking into account the rule in Article 3 of Law No. 3303 that no compensation lawsuit can be filed without making a distinction between culpable and blameless liability, it has been determined that there is no reason to depart from the conclusion reached in a similar application, Sabri Uhrağ ([GK], B. No: 2017/34596). Accordingly, it was decided that the right to effective remedy in connection with the right to property was violated due to the legal provision that prevented the examination of the merits of the claim of violation of the right to property and the provision of remedy.
The Constitutional Court has explained in its previous decisions how the victimization and its consequences can be redressed in cases where the violation is caused by the law. Accordingly, if the violation is caused by the application of a provision of the law by the administrative authorities or the courts of first instance that is so clear that it is not possible for them to interpret it in accordance with the Constitution, or due to ambiguities in the law, this violation arises directly from the law and not from the application of the law. In this case, in order to remedy the violation in question with all its consequences, the provision of the law causing the violation must be eliminated or the relevant provision must be amended in such a way that it does not lead to new violations or the ambiguity must be eliminated.
In terms of the present application, the applicant’s victimization must be redressed within the framework of the principle of restitution. For this purpose, as mentioned above, it should be ensured to return to the situation before the violation as much as possible. Otherwise, the applicant’s victim status will not be terminated and the consequences of the violation will not be eliminated.
Article 11 of the Constitution, which regulates the binding nature of constitutional rules, and Article 138 of the Constitution, which commands the judge to resolve disputes by taking into account the Constitutional rules, require the judge to rule in accordance with the Constitution. In this context, it should be noted that Article 152 of the Constitution imposes a duty on the judge to examine whether the legal provision to be applied in the case is in conformity with the Constitution. However, in the concrete case, during the proceedings before the individual application, the court of first instance and the Court of Cassation did not file an objection under Article 152 of the Constitution on the unconstitutionality of the legal provision applied in this case. However, in the retrial, it is possible to file an objection to the unconstitutionality of the legal provision to be applied in the case within the framework of the aforementioned Constitutional provision.
On the other hand, if the provision of the law to be applied in the retrial is contrary to the provisions of the international treaty on fundamental rights and freedoms, the last paragraph of Article 90 of the Constitution, which states that the dispute can be resolved on the basis of the provisions of the international treaty, may also be applicable. However, in accordance with Article 152 of the Constitution, applying to the Constitutional Court for the annulment of the provision of the law that is contrary to the Constitution emerges as a more correct way considering the circumstances of the case.
For the reasons explained above, the Constitutional Court has concluded that there is a legal interest in retrial, considering that it can eliminate the violation of the right to effective application in connection with the right to property and its consequences.
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