Facts
The applicant, claiming that he was unable to access his property in the village he was forced to abandon due to terrorist incidents in 1994–1995, filed an application with the Damage Assessment Commission (the Commission) on December 6, 2017, seeking compensation for damages incurred due to the inability to access the property for the period following May 30, 2007. When the Commission failed to respond to the request, the applicant filed a lawsuit in administrative court. The administrative court overturned the implied rejection decision issued against the applicant.
The Regional Administrative Court, reviewing the Governor’s Office’s appeal, partially upheld the appeal, overturning the portion of the Administrative Court’s decision pertaining to the period between May 30, 2007, and 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 occurring within one year prior to the date of the administrative application (December 6, 2017), and that under Law No. 5233, it was not possible to claim compensation for damages occurring more than one year prior to the date of the application.
Claims
The applicant alleged that the right to an effective remedy in connection with the right to property was violated because the administrative application seeking compensation for damages resulting from the inability to access the property was not evaluated within the prescribed timeframe.
The Court’s Assessment
In the present case, the fact that the applicant could not access his property was 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 timeframe. 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 claim for compensation for the alleged damage suffered due to the applicant’s inability to access his property must be assessed within the scope of the right to an effective remedy guaranteed by Article 40 of the Constitution and the right to property established by Article 35 of the Constitution.
The first issue to be examined by the Constitutional Court is whether there is a legal remedy through which the applicant can assert the claim that his right to property has been violated and, if so, seek compensation for any resulting damages.
Pursuant to Article 1, Article 7(1)(c), and Article 6 (1), it is understood that persons unable to access their property due to measures taken in the context of counter-terrorism may apply to the Commission for compensation for the damages they have suffered within sixty days from the date the damaging event was learned and, in any case, within one year from the date the event occurred. Therefore, it is clear that, in theory, an effective remedy exists for the applicant to seek compensation for damages resulting from the inability to access their property due to measures taken as part of counter-terrorism efforts.
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In the current situation, it must also be examined whether this remedy, which has been determined to be effective in theory, actually works in the applicant’s case—that is, whether it offers a realistic chance of success in practice. As a result of the proceedings, the Regional Administrative Court ruled that the applicant could only receive compensation for damages incurred within the year preceding the date of the application, and that damages arising prior to December 6, 2016, could not be compensated under Law No. 5233 because they were not claimed within the one-year period; accordingly, the court dismissed the claim 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 clear that the requirement for filing an application with the Commission is “within sixty days from the date the incident causing the damage was learned, and in any case within one year from the date the incident occurred.” In this context, it is evident that the interpretation of the concept of “the incident causing the damage” is of great importance. While the interpretation of the legal rules applicable in a case is left to the discretion of the lower courts, it is the duty of the Constitutional Court to examine whether such an interpretation is arbitrary or contains a clear judicial error.
In the present case, the event causing the damage is the restriction of access to the applicant’s property. The inability to access the property constitutes a continuous interference. Therefore, as long as the restriction on access to the property continues, the interference with the applicant’s property right will also continue. In cases of momentary interference, it is reasonable to calculate the periods specified in Article 6 of Law No. 5233 from the date of the interference.
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In contrast, in cases of ongoing interference, it is not possible to speak of a specific and single date for the interference. A continuous interference—provided there is no interruption—is always an ongoing interference. Therefore, in a continuous interference, a specific date cannot be determined for the event causing the damage. Consequently, in such interferences, the periods specified in Article 6 of Law No. 5233 must be calculated from the date the interference ceases.
For this reason, the Regional Administrative Court’s interpretation regarding the deadline for filing a claim with the Commission has been assessed as unreasonable, excessively formalistic (since it effectively acknowledges that the event causing the damage recurs annually), and an interpretation that makes it difficult for the plaintiff to avail themselves of the compensation option introduced by Law No. 5233. Consequently, the compensation mechanism established by Law No. 5233—which was 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 this specific case due to the Regional Administrative Court’s overly formalistic and rigid interpretation, which constitutes a clear judicial error.
The Constitutional Court ruled that the right to an effective remedy in connection with the right to property had been violated for the reasons outlined above.