Press Release No: Individual Application 8/21
Press Release concerning the Judgment Finding a Violation of the Right to an Effective Remedy due to the Statutory Provision Precluding an Examination on the Merits of the Alleged Violation of the Right to Property and the Award of a Redress
On 29 December 2020, the Plenary of the Constitutional Court found a violation of the right to an effective remedy safeguarded by Article 40 of the Constitution, in conjunction with the right to property safeguarded by Article 35 thereof, in the individual application lodged by Sabri Uhrağ (no. 2017/34596).
The applicant brought a personal action, before the incumbent civil court, against the Turkish Hard Coal Enterprise Institution (“the TTK”) and the operator, a private company, maintaining that his immovable had entirely become uninhabitable for being damaged as a result of the collapses caused by the subsidence, which had resulted from the defective coal production.
In the technical expert report obtained by the court, it was found established that the immovable in question had entirely become uninhabitable; and that 85% of this damage had been caused by the subsidence resulting from the coal production by the defendants.
The court dismissed the applicant’s action. In its decision, the court, making a reference to a judgment rendered by the Court of Cassation, emphasised that pursuant to Article 3 of the Law no. 3303 on the Acquisition of Immovables in a Coal Basin, the registered owners of immovables cannot claim any right and compensation on account of damages caused by mining activities. The first-instance decision appealed by the applicant was upheld by the Court of Cassation, which also dismissed the applicant’s subsequent request for rectification of decision.
The Applicant’s Allegations
The applicant maintained that his right to property had been violated as his immovable had been damaged by the subsidence taking place in relation to the mining activities.
The Court’s Assessment
At the coal basin where the applicant’s immovable is also situated, the mining activities were started in the 19th century corresponding to the Ottoman era, and the borders of the basin were expanded during the republican era. During both periods, the immovables situated within the basin have been regarded as a public property, and the acquisition of these immovables through acquisitive prescription has been prohibited.
However, settlement on the basin could not be precluded. In 1986, Law no. 3303 was enacted to eliminate the problems resulting from this de facto situation, and thereby the immovables in the basin were allowed to be registered. Nevertheless, it is envisaged -on the basis of Article 166 of the Constitution- in Article 3 of Law no. 3303 that the owners of these immovables cannot claim any right and compensation for the damages resulting from the mining activities performed at the site.
Pursuant to Article 168 of the Constitution, mines are under the authority and at the disposal of the State. However, it is unacceptable that the State, after allowing for –or at least not preventing– the settlement in the basin where mining activities are conducted, abstains from fulfilling its constitutional obligations merely on the ground that it has afforded advantage to the individuals.
As a matter of fact, the Court conducted a constitutionality review of the statutory provision, whereby the TTK is exempted from certain environment-related obligations within the same basin (E.2011/110), and established a link between the mining activities and the obligations incumbent on the State under Article 56 of the Constitution. It then concluded that “… It cannot be accepted that the hard coal activities conducted by the Turkish Hard Coal Enterprise Institution are not governed by Article 7 of the Mining Law”.
The existence of an effective legal remedy, which is capable of enabling the applicant to have the alleged violation of his right to property -due to the damage caused to his residence during the mining activities conducted by the State or any third party- examined on the merits, as well as of providing redress for the damage sustained by him should be considered as a requisite of the right to an effective remedy in conjunction with the right to property.
Despite the general provisions under the Turkish Code of Obligations no. 6098, which allow for the redress of the damages that have resulted from mining activities, Article 3 of Law no. 3303 renders dysfunctional this legal avenue, which is available in theory, in so far it concerns the hard coal basin, and the inferior courts categorically dismiss the related cases without making any examination on the merits.
In the present case, the applicant’s residence became uninhabitable mainly due to the subsidence resulting from the mining activities.
The applicant’s action for compensation against the private company, as the operator of the mine, and the TTK failing to fulfil its duty of supervision and control was dismissed by the inferior courts, without any examination on the merits, pursuant to Article 3 § 1 of Law no. 3303.
In the present case, the applicant maintained that the damage had been caused by the faults of both the TTK and the private company. However, Article 3 of Law no. 3303 sets forth that no action for compensation may be brought in this respect without making any distinction as to liability ex-delicto or absolute liability. Therefore, both the first instance court and the Court of Cassation failed to discuss whether the impugned damage had resulted from the faulty actions of the TTK or the company during the mining activities.
Consequently, the Court has found a violation of the right to an effective remedy, in conjunction with the right to property, due to the statutory provision precluding an examination on the merits of the alleged violation of the right to property and the award of redress.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.