28 March 2018 Wednesday

(E.2016/196, K.2018/34, 28 March 2018)

Contested Provision

Article 18 of the Zoning Law no. 3194 and dated 3 May 1985 sets forth that if the total of land readjustment shares is less than the total surface of lands required to be allocated for public use, the municipality or the governor’s office shall complement the missing surface of land by way of expropriation. 

Article 10 of the same Law envisages that such lands allocated for public use shall be expropriated by the relevant public agencies within five years; and that funds necessary for expropriation shall be assigned to the annual budgets of expropriating agencies. 

In Additional Article 1 of Law no. 2942, it is set out that the five-year period shall start running from the date when zoning plans take effect. This article imposes on the administration an obligation to expropriate immovables use of which are legally restricted or to amend zoning plans to the extent that would remove the restriction impeding the enjoyment of the right to property within this five-year period. It is also set forth that in case of non-fulfilment of these procedures within that period, the property owner may bring an action against the relevant expropriating administration after applying to the administration and upon the expiry of the mediation process.

In the contested Provisional Article 11 of the same Law, it is envisaged that as regards the immovables which fall into the scope of the Additional Article 1 and use of which are legally restricted before the entry into force of Article 11, the said five-year period shall start running from its entry into force. Expiry of the five-year period is prescribed as a pre-requisite for bringing an action against the appropriation of immovable by way of zoning. In the second paragraph of the contested provision, it is set forth that the Additional Article 1 § 3 of this Law shall also apply to proceedings with regard to immovables that are under the scope of this article.

The contested provision leads to non-consideration of the restriction periods elapsed before its entry into force. Therefore, this legal arrangement resets the beginning of the five-year period to apply to the administration and to bring an administrative action for the enjoyment of rights granted by Additional Article 1 of the Law to the property owners as regards the immovables on which certain restrictions are already imposed.

Grounds for the Request for Annulment

In brief, it is maintained in the requests for annulment that the contested provision, which impedes reaching a decision on the merits of pending cases and leads to prolongation of restrictions imposed on the right to property, impairs the right to property, the right to legal remedies and the principle of state of law; and that it is therefore in breach of Articles 2, 5, 9, 35 and 36 of the Constitution. 

The Court’s Assessment

In brief, the Constitutional Court made the following assessments:

Upon being ratified, zoning plans bear legal consequences in respect of the administration and individuals. The ratified zoning plans introduce the obligation, especially for all zoning and construction activities to be carried out within an area, to act in accordance with zoning plans and programs, to obtain permission from the relevant administration for all types of construction and to construct buildings in compliance with the rules set in the permission. As a matter of fact, allocation of immovables for public use in a zoning plan does not remove the right to property as neither expropriation nor de facto appropriation has been made. However, such allocations restrict, to a significant extent, the owner’s powers inherent in his right to property. In this respect, allocation of an immovable as public area not only make construction on the land unfeasible but also adversely affects its market value and related transactions such as its sale, donation or establishment of limited property rights on it. Therefore, it is explicit that zoning practices and, in this context, designation of immovables as public area constitute an interference with the right to property. 

The right to property prescribed in Article 35 of the Constitution is not an unlimited right and may be restricted by law in pursuit of the public interest. When interfering with this right, Article 13 of the Constitution, which sets out general principles as regards the restriction of fundamental rights and freedoms, must be also taken into consideration.

As set forth in Article 35 of the Constitution, the right to property may be restricted only for the objective of the public-interest. There is no doubt that allocation, by zoning plans, of certain parts of immovables for public use in the course of land arrangements pursues the public interest objective.

However, the interference with the right to property must not only pursue an aim in the public interest but also be proportionate. The principle of proportionality consists of three sub-principles namely efficiency, necessity and commensurateness.

It cannot be said that land and lot arrangements in order to ensure planned and orderly urbanization and, to that end, allocation of necessary immovables for public use are inefficient means in terms of the contested provision. In addition, public areas are necessity for people in a neighbourhood for socializing. Therefore, it can neither be said that the interferences with the right to property by way of allocation of immovable for public use within the scope of the contested provision are unnecessary.

However, it must be also examined whether the interference caused by the contested provision is commensurate or not. An excessive and incommensurate burden must not be imposed on the property owner by way of allocating immovable as public area through the zoning practices.

The legislator prescribes five years for completing the expropriation procedure for the reason that zoning practices cover large areas and with the intent of assigning adequate funds for the expropriation. The legislator has discretionary power as regards such interferences with the property. Within the scope of this power, the property owner may be expected to bear such restrictions for a reasonable and defined period of time due to factual and legal difficulties in realization of the public interest at stake. However, prolongation of this restriction would increase the burden imposed on the property owner. Besides, the failure to provide the property owner with any redress which could cover the damage sustained due to such prolongation would also lead to imposition of an excessive burden on the property owner.

In the contested provision, it is envisaged that the five-year period prescribed for the restriction imposed within the scope of zoning practices shall re-start from the date the provision takes effect. In other words, the provision results in renewal –therefore in prolongment– of the five-year period required to elapse for the property owner, who is restricted from enjoying his right to property, to receive expropriation payment or to re-enjoy his right to property through removal of the restriction. The legislator has not introduced any arrangement for redressing or eliminating the damages sustained by the property owner due to this period. Besides, no legal provision has been envisaged for consideration of damages arising from the owner’s deprivation of the use of property during restriction period. In addition, the contested provision leads to non-consideration of the restriction periods elapsed prior to its entry into force, which results in an excessive burden on the property owner and upsets the fair balance required to be struck between the public interest and the owner’s right to property to the detriment of the property owner. Therefore, the interference stipulated by the contested provision with the right to property is not commensurate and therefore contravenes the principle of proportionality.

For the reasons explained above, the Court annulled the first paragraph of the contested provision for being contrary to Articles 13 and 35 of the Constitution and thus its second paragraph which is no longer applicable due to the annulment of the first paragraph.