Press Release No: Plenary Assembly 29/20
Press Release concerning the Decision Annulling the Provisions on the Revocation of Demolition Orders and Administrative Fines with respect to the Unlicensed Buildings Situated in the Bosphorus Frontal View Area
The Constitutional Court, at its session dated 24 September 2020, found unconstitutional and annulled the phrase “… and Law no. 2960…” added to Provisional Article 16 § 4 of the Zoning Law no. 3194 as well as the Layout and the Boundaries and Coordinate List pertaining to the Bosphorus coastline and frontal view area -defined in the Bosphorus Law no. 2960- and amended pursuant to the Provisional Article (file no. E.2019/21).
The contested provisions set forth that the demolition orders issued pursuant to the Bosphorus Law no. 2960 and the administrative fines appearing to be uncollectible shall be revoked, and that the owners of the immovables located in certain parts of the Bosphorus frontal view area (the area adjacent to the Bosphorus coastline) shall be able to obtain a building registration certificate (a certificate ensuring the official registration of the buildings constructed in contravention of Zoning Law).
Ground for the Request for Annulment
It is maintained that the contested provisions are unconstitutional as they contradict the State’s duty to preserve the historical, cultural and natural assets and lead to a withdrawal from the execution of the demolition orders issued with respect to the several unlicensed constructions situated in the Bosphorus Area, as well as from the collection of the administrative fines imposed on account thereof.
The Court’s Assessment
As set forth in Article 56 of the Constitution, it is among the State’s principal duties to take measures so as to improve the natural environment, protect the environmental health and prevent environmental pollution. The notion “a healthy and balanced environment” specified in the Constitution entails not only an environment where natural beauties are preserved and air and water pollution resulting from urbanisation and industrialisation is prevented, but also an environment which is established and regulated in line with a particular plan and programme.
Article 63 of the Constitution embodies the duties of the State to secure the protection of the historical, cultural and natural assets and wealth and to take supportive and promotive measures to that end.
It should be noted that the legislator enjoys a margin of appreciation to make the arrangements that it deems necessary and to determine the necessary means in this respect. However, in doing so, the legislator is to observe and strike a reasonable balance between the competing public interests which necessitate the statutory arrangement, on one hand, and which serve for the protection and improvement of natural beauties as well as historical and cultural assets of the said area, on the other hand.
İstanbul, the cradle of civilisations, is a privileged city of the country that has a special place in the world thanks to its abundant historical, cultural and natural assets. As a paramount region with its natural beauties, historical, cultural and natural assets, the İstanbul Bosphorus Site has been always given utmost importance throughout the history. This unique area, along with its natural beauty, also embraces several works of art and values which are of crucial importance in terms of national history and culture.
In İstanbul, the city of Turkey with the highest number of registered cultural assets, Bosphorus is one of the regions where the registered buildings are most commonly situated. The Bosphorus region has several outstanding cultural and natural assets that comprise the common heritage of humanity. Therefore, the preservation of the Bosphorus coastline and the frontal view area is a concern not only to those living today but also to the next generations. It is therefore evident that the preservation and improvement of the natural beauties as well as cultural and historical assets of the Bosphorus coastline and the frontal view area involve a significant public interest.
In this sense, it has been considered that the facilities, which are prescribed in the contested provisions, for the reconstruction and redevelopment of cities may be indeed provided through any other methods; and that the contested provisions, which contravene the purpose of preserving the Bosphorus Site having a precious natural beauty and cultural values, have hindered the reasonable balance to be struck between the competing interests in question.
In consideration of the damage to be caused to the environment, cultural and natural assets as well as the advantages sought to be obtained, the Court has concluded that the contested provisions upset the fair balance to be struck between the State’s positive obligations to protect and improve the environment as well as the cultural and natural assets.
Consequently, the contested provisions have been found unconstitutional and therefore annulled.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.