TC
Supreme
Court
Decision No: 2014/16093
Decision No: 2014/31779
Date: 12/25/2014
Following the trial between the parties for the collection of unused immovable property seized without expropriation: In the petition submitted by the plaintiff’s attorney, a review of the above written decision by the Court of Cassation to dismiss the case was requested, the documents in the file were read, and after the dispute was understood, the necessary examination and evaluation were made:
– DECISION –
Th case concerns the claim for the collection of the price of immovable property seized without expropriation.
>The court decided to dismiss the case; the decision was appealed by the plaintiff’s attorney.
>The right to property is one of the fundamental rights recognized both by the Constitution and laws under domestic law and by the European Convention on Human Rights and its additional protocols. (Constitution Art. 35/1, ECHR Oct. Prot.
Article 683 of the Turkish Civil Code stipulates that the owner of a thing has the right to use, enjoy, and dispose of that thing as he or she sees fit within the limits of the legal order. It has been concluded that the owner may file an action for rectification against a person who unjustly possesses his or her property, as well as an action to prevent any kind of unjust seizure.Property rights may only be restricted or completely removed in cases where there is a public interest.
However, when such restrictions or removals are made; Pursuant to Article 90/5 of the Constitution, in accordance with the provisions of the ECHR, which are considered to be above domestic law, as stated in the decision of the European Court of Human Rights dated May 30, 2006, No. 1262/02, “…a measure that deprives a person of their property rights…” “must have a legitimate aim in the public interest…”, and that in taking such a measure, “…there must be a reasonable proportionality between the decision applied and the aim sought to be achieved…”, it is clear that the necessary balance cannot be established if the person is “…forced to bear a personal and excessive burden…”.
In other words, it is essential to establish a reasonable and acceptable balance between the public decision and the rights of the person who is partially or completely deprived of their property rights, ensuring justice and fairness.
Meanwhile, one of the issues that needs to be addressed is the determination of the nature of the title deed of the property registered in the land registry and, consequently, the property right created in the name of the person.
There is no doubt that the property right provided by a valid title deed issued by the state will be evaluated. Although the fundamental nature of such a property, namely its status as public property, remains unchanged, it is certain that the rights of the person based on the aforementioned title deed must be protected.
Claiming the invalidity of a title deed issued by the state is incompatible with the valid registered property right and constitutes an attitude that undermines the honor of the state. In a specific case, part of the immovable property in question was afforested by the defendant administration, thereby eliminating the owner’s right of ownership and disposal.
Indeed, the ECtHR, in its decision dated September 22, 2009, numbered 24620/04, and its decision dated March 23, 2010, numbered 2150/05, concerning the new investigation in Yücetürk and Turkey, significantly reduced the number required for the classification of public forest land owners and the use of the property rights of the real estate in question, which significantly reduced the number required for classification and created an area of influence from the owners’ land, thereby preventing them from obtaining the real advantage and taking into account the impact that property rights have in every sense.
The rejection of the plaintiff’s claim for compensation on the grounds that the property, of which he is the registered owner, was converted into a forest and his right to use and dispose of the property was restricted, is contrary to the essence of Article 6 of Protocol No. 1 to the ECHR.
Consequently, since 52,390.00 m² of the property was turned into a forest by the administration’s afforestation work, and considering the damage caused by the pipeline passing through the property, it was necessary to determine the compensation amount and order its collection from the defendant administration. However, without considering that the case should have been dismissed with a written justification,This situation has not been deemed correct. Since the plaintiff’s attorney’s objections were valid, a decision was made based on the reasons explained in Article 428 of the Code of Civil Procedure. Pursuant to the article, it was unanimously decided on December 25, 2014, to CANCEL the decision, to refund the objection fee previously paid if requested, and to register the objection fee in the Treasury’s will.