Press Release No: Individual Application 11/21

Press Release concerning the Judgment Finding a Violation of the Right to Property due to the Failure to Compensate for the Loss in Value of Property for being Designated as Military Security Zone

On 29 December 2020, the Plenary of the Constitutional Court found a violation of the right to property safeguarded by Article 35 of the Constitution in the individual application lodged by Cemal Taş and Others (no. 2016/3316).

The Facts

The applicants, whose property was designated in the land registry as military security zone, sent a warning letter to the Ministry of National Defence (“the administration”), requesting the removal of the relevant annotation from the land register or expropriation of the property. Upon dismissal of their request, the applicants brought an action against the administration for the annulment of the impugned act of dismissal, which was ultimately dismissed by the administrative court. Within the scope of the applicants’ subsequent application with the magistrates’ court, the loss in value of their property was determined through an expert report. The applicants sought permission from the Municipality to construct a building complex on their property; however, their request was rejected on the grounds that the buildings to be constructed might pose a threat to the privacy, security, defense and operation of the military facility and that the said area would be located at the firing range. The applicants brought an action for compensation against the administration, seeking the payment of the determined amount of loss in value of their property, plus statutory interest, on the grounds that their property could not be included in the reconstruction area due to the said annotation in the land register and that their actions for removal of the annotation had been inconclusive. The administrative court dismissed the case, which was subsequently upheld by the Council of State.

The Applicants’ Allegations

The applicants claimed that their right to property had been violated due to the annotation in the land register, which indicated that their property was located within the military security zone.

The Court’s Assessment

The applicants complained about the denial of the payment of their losses incurred due to the annotation in the land register declaring their property as a military security zone.

It appears that declaration of the impugned property as a military security zone not only caused restriction on its use in a way allowing for only certain purposes as well as imposition of a ban on transferring and renting it to certain persons, but it also resulted in the imposition of a de facto construction ban given its particular location.

It has been understood that the restrictions imposed through an annotation of military security zone, which is made in order to build military facilities and ensure their security, is appropriate and necessary for achieving the legitimate aim serving the public interest in ensuring national security. Therefore, the principle of proportionality is the key criterion in the assessment of the proportionality of the interference. In this regard, it is necessary to determine whether an excessive and disproportionate burden was imposed on the applicants through the impugned annotation.

The inferior courts dismissed the case on the grounds that since the applicants engaged in farming on their property, there had not yet been any damage sustained by them, and that accordingly, the damages that had not yet occurred or that were likely to occur could not be compensated by the administrations. On the other hand, the applicants claimed that there had been a decrease in the economic value of their property after the aforementioned annotation.

The applicants' testator had acquired the said property before the annotation that was made in 1995. Therefore, it was not possible for the applicants to foresee the impugned restriction at the material time. Construction permits were granted with respect to other properties located in the same region but having no border with the military facility. However, the applicants were not only denied a construction permit for their property due to the military security zone annotation, but also a de facto construction ban was imposed by the administration on the property due to its location. How long more the restrictions imposed on the applicants’ property due to the annotation being effective for approximately twenty-five years will last is indefinite and unpredictable.

Public authorities have discretionary power regarding the removal of annotation or expropriation of the property, pursuant to the relevant provisions of Law no. 2565 and the Regulation. However, the public authorities failed to take an action so as to resolve the applicants' complaints. Public authorities may prevent the disruption of the fair balance through the interference with the right to property by paying a reasonable amount of compensation for the properties not needed to be expropriated.

Accordingly, it is explicit that the applicants sustained a damage since they were denied a construction permit and were imposed a de facto construction ban due to the military security zone annotation on their property, while the other properties located in the same region were allowed to be reconstructed.

The inferior courts’ consideration to the effect that the damages that had not yet occurred or that were likely to occur could not be compensated placed an excessive and extraordinary burden on the applicants. In this regard, it has been concluded that the interference with the applicants’ property was not proportionate.

Consequently, the Court has found a violation of the applicants’ right to property.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.