30 October 2018 Tuesday

Murat Emrah Emre (no. 2018/1275, 30 October 2018)

The Facts

The development plan covering also the impugned detached property was amended by the decision of the Municipal Council, and accordingly construction and occupancy permits were granted.

However, the said amendment was revoked by the relevant administrative court, and the first instance decision was upheld by the Council of State. As the amendment to the development plan had been revoked, the construction and occupancy permits were also revoked, as a result of which the impugned immovable was sealed.

The applicant applied to the administrative court and requested annulment of the sealing procedure. The court decided to annul the disputed administration process. However, upon the request for appellate review, the regional administrative court lifted the annulment decision of the first instance court and dismissed the case with no right of appeal. In the reasoning of the decision, it is noted that the impugned sealing process was carried out by virtue of the decisions previously rendered by the administrative courts and that the process was not therefore unlawful. Having been notified of the decision, the applicant lodged an individual application with the Court.

The Applicant’s Allegations

The applicant maintained that his right to property had been violated due to the revocation of his construction and occupancy permits as well as the decision ordering the sealing and demolishing of his immovable.

The Court’s Assessment

In the present case, the decision ordering the sealing and demolishing of the applicant’s detached section undoubtedly constitutes an interference with his right to property.

By provisional Article 16 of the Zoning Law no. 3194, which took effect pending the examination of the applicant’s individual application, it is set forth that a construction registration certificate will be issued for constructions built before 31 December 2017, upon an application with the Ministry of Environment and Urbanization as well as institutions and organizations authorized by the Ministry, with a view to registering the unauthorized buildings or those constructed contrary to the license and its annexes for disaster preparedness as well as to ensuring zoning peace. The same provision also sets out that the demolishing orders issued pursuant to this Law, and uncollectible administrative fines imposed, with respect to these buildings granted with construction registration certificates will be revoked.

Should a new legal remedy be introduced after lodging an individual application, it is the Court’s task to assess whether the said remedy is accessible as well as capable of offering a reasonable prospect of success and providing sufficient redress.

Regard being had to the fact that the subsequently introduced remedy does not impose a heavy financial burden on individuals and facilitates the procedure whereby an application is lodged by offering an opportunity to apply within a reasonable period, it has been considered that the said remedy is accessible.

Considering the application conditions prescribed in Provisional Article 16 of Law no. 3194 as a whole, the Court has concluded that the remedy is objective and reasonable, does not impose a heavy burden on the applicants as well as is capable of providing sufficient redress.

Therefore, regard being had to the applicant’s alleged violations, it has been concluded that examination of the individual application lodged without exhaustion of available remedy, which appears to be accessible at first sight as well as to be capable of offering a reasonable prospect of success and providing sufficient redress, will not comply with the subsidiary nature of the individual application mechanism.

For the reasons explained above, the Court found inadmissible the alleged violation of the right to property safeguarded by Article 35 of the Constitution for non-exhaustion of domestic remedies.