Individual Application

The Facts

For the immovable properties owned by the applicant company, the real-estate tax was calculated as 148,593.10 Turkish liras (TRY) for the tax year 2010, whereas the amount accrued in 2009 was TRY 18,519.72. Therefore, the applicant company filed an action against the appraisal commission decision whereby the real-estate tax-base for the tax year 2010 was determined. The incumbent court, however, dismissed the action on grounds of lack of capacity to sue as the applicant company was not, by the date of the said decision, among the parties who were entitled to bring an action against the appraisal commission decision, as laid down in the Tax Procedural Law no. 213 (Law no. 213). The applicant company also filed an action with respect to the tax-base rates for the tax years 2011, 2012 and 2013, which were determined on the basis of the real-estate tax rate of 2010. In the meantime, the Court reviewed the constitutionality of the first sentence of the third sub-paragraph of Article 49 bis § b of Law no. 213 and consequently annulled it for being unconstitutional by its decision of 31 May 2012 (no. E.2011/38, K.2012/89). In finding the applicant company to have no capacity to sue against the appraisal commission decision, the inferior court considered that the action brought in 2011 had been adjudicated before the Constitutional Court annulled the said provision. It examined the actions insofar as they related to tax years of 2012 and 2013, proceeding to the merits. However, on appeal, the Council of State dismissed all the actions as the tax-base rate had already become final, stating that the tax-base rates for the tax years of 2011, 2012 and 2013 was determined on the basis of the 2010 tax-base determination, and that the annulment of the respective provision by the Court would not have a bearing on the appraisal commission decision regarding the said year.

The Applicant’s Allegations

The applicant company maintained that the dismissal, as being time-barred, of its action against the accrual of real-estate tax and the appraisal commission decision forming a basis for the impugned accrual had infringed its right of access to a court.

The Court’s Assessment

As set forth in the statutory regulation that was in force at the time when the impugned appraisal commission decision was taken and the disputed tax was accrued, appraisal commission decisions may be challenged within 15 days before the incumbent tax court merely by the institutions, organisations, associations to which the impugned decision was notified, as well as by the respective neighbourhood units. However, following the Court’s annulment decision of 31 May 2012 concerning the taxpayers’ capacity to sue against appraisal commission decisions, no explicit regulation has been introduced with respect to the notifications to be made and time-limits for filing an action.

In this sense, Article 49 of Law no. 213 embodies a special regulation concerning the actions to be filed with respect to unit values per square meter of lands and plots, which is intended for ascertaining -by also concluding any challenge to be raised before courts- these unit values before the beginning of the respective tax year. In this regard, the Council of State acknowledges that an action may be brought against appraisal commission decisions -whereby unit values per square meter of lands and plots are determined to form a basis for real-estate tax- within the thirty-day general time-limit for filing an action, which starts to run by the date when the imputed decision has become known, or, at the latest, until the last day of the year when the decision is issued. However, as mentioned above, there is no statutory provision concerning the announcement, or notification by signature, of unit values per square meter of lands and plots insofar as it concerns taxpayers.

In the present case, the inferior court dismissed the applicant’s action brought, upon the finalisation of the taxation amount, against the appraisal commission decision on the determination of minimum unit values per square meters of lands, as being lodged out of time, emphasising that an action could be filed against appraisal commission decisions within thirty-day general time-limit for bringing an action, which is laid down in Article 7 of the Law no. 2577 on Administrative Procedure. It appears from the file that the applicant company is not among the parties to which a notification was made. On the other hand, the inferior court did not make an assessment as to the date when the applicant actually became aware of the appraisal commission decision. Within the framework of the case-law developed in accordance with subsequent legal developments, the court set a final time-limit for the filing of an action and accepted that the action should have been, in any event, filed before the end of the year, basing its interpretations on a situation which did not exist at the time of the applicant's action and which the court could not take into consideration.

In this sense, the interpretation made –as regards the time-limits for filing an action– by the inferior court on the basis of a situation which was not prevailing at the time when the applicant company filed its action and which could not be taken into consideration was unforeseeable in the particular circumstances of the present case and excessively hampered the applicant’s ability to access to a court, thus placing an excessive and disproportionate burden on it. It has been accordingly concluded that the interference with the applicant’s right of access to a court was disproportionate.

It has been also observed that the actions concerning the tax years of 2011, 2012 and 2013 were also dismissed on the ground that the tax-base rate of the year 2010 was ascertained. However, in the light of the above-mentioned findings and assessments indicating that the interference with the right of access to a court was found disproportionate in the action pertaining to the tax year 2010, a retrial is to be conducted so as to redress the violation in question and its consequences. Therefore, it cannot be said that the tax-base rate for the 2010 tax year has been finalised. Accordingly, the Court has concluded that the dismissal of the actions pertaining to the other three years as the 2010 tax-base rate became definite constituted a disproportionate interference with the applicant’s right of access to a court.

Consequently, the Court has found a violation of the right of access to a court under the right to a fair trial.