Events
The entire property with a land area of 3,799 m², parcel number 768, block number 1813, is registered in the land registry under the names of the plaintiff and the deceased relative MM at a ratio of 1/2. In the same neighborhood, 14,499/18,870 shares of the 18,130 m² plot of land with 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 plaintiff’s deceased relative.
By decision of the Municipal Council, the entire immovable property with parcel number 768 was removed from the land registry as a green area upon the request of its owners to abandon it. Upon the request of the owners of the immovable property with parcel number 769, an official deed was drawn up by the land registry officials.
The title deed in question states that IM and MK are jointly authorized on behalf of the Cooperative, that the deceased MM of the plaintiffs is also authorized, and that IM and the deceased of the plaintiff are authorized in their own names. The text of the deed states that, with the Council decision dated 16/3/1989, the property with parcel number 769 was divided into eleven separate parcels and voluntarily distributed to the owners. Accordingly, 2,397 m² of the 2,397 m² parcel was allocated for road use, 9,326 m² was allocated as green space, and the remaining portions were distributed among the owners.
Regarding the conversion of part of the abandoned areas in immovable property parcels numbered 768 and 769 into a religious facility area, the application for cancellation of the implementation zoning plan and master zoning plan approved by the Municipal Council on 23/06/2000 was accepted on 20/12/2002, and the zoning plans were canceled.
The plaintiff’s heir filed a compensation claim, stating that the real estate, which was abandoned free of charge as a green area and road, was not used in accordance with the purpose of the abandonment. T he court dismissed the case against the Metropolitan Municipality on the grounds that it did not have passive jurisdiction and dismissed the case against the Municipality on its merits. The decision, which was appealed by the plaintiff, was upheld by the Court of Cassation. The plaintiff’s request for a correction of the decision was also rejected by the same Chamber.
Allegations
The applicant claimed that the property transferred free of charge as green space and road violated his property rights because it was being used 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 appropriateness and necessity. The main issue to be discussed is whether the interference 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 imposes an extraordinary and excessive burden on the owner, the intervention cannot be considered proportionate and therefore reasonable.
Therefore, it must be determined whether the measure imposes 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., it constitutes a gratuitous abandonment/donation as green space and roads, and that, according to the expert reports obtained by the court of first instance, the properties are not being used in accordance with the purpose of abandonment.
At this stage, even if the property is used for purposes other than the purpose of the abandonment, it must be accepted that the public interest purpose continues if the property is allocated to another need in the public interest, but only the justification has changed. On the other hand, as previously stated by the Constitutional Court, the allocation of the property for a purpose consistent with the purpose of expropriation and its subsequent use for different purposes due to the lack of need for that purpose does not constitute a violation of the requirements of the right to property, depending on the specific circumstances of the 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 land abandoned for green space and road purposes, contrary to the purpose of abandonment, and the municipality’s earning income from shops served a different public interest. Therefore, it was decided to reject the claim for compensation on the grounds that the relevant transactions in the land registry were made due to a voluntary abandonment request and that subsequent changes in the zoning plans would not affect the abandonment transactions.
Therefore, in the specific case, it has been determined that the decisions of the courts of first instance do not contain sufficient and appropriate grounds to respond to the applicant’s claims and objections that could affect the outcome of the case.
Accordingly, when the administrative and judicial processes are evaluated as a whole, it has been concluded that procedural safeguards for the protection of property rights were not provided in the specific case and that the applicant did not benefit from these safeguards. Therefore, the fair balance that should exist between the applicant’s property right and the public interest underlying the interference 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 for the reasons explained.