Press Release No: Individual Application 17/20

Press Release concerning the Judgment Finding No Violation of the Right to Property for Imposition of an Administrative Fine for Starting the Construction in the Absence of an EIA Report

On 15 January 2020, the First Section of the Constitutional Court found no violation of the right to property safeguarded by Article 35 of the Constitution in the individual application lodged by Fidanlar İnşaat Taahhüt Sanayi ve Ticaret Ltd. Şti. (no. 2017/38836).

The Facts

As a result of an inspection made on the construction project carried out by the applicant company (“the applicant”), an administrative fine was imposed on the applicant on the ground that it had started the construction without obtaining an Environmental Impact Assessment (EIA) report. The action for annulment brought by the applicant against the impugned fine was dismissed by the administrative court. Upon the applicant’s subsequent appeal, the Council of State upheld the administrative court’s decision. The applicant’s request for rectification of the judgment was also dismissed.

The Applicant’s Allegations

The applicant maintained that the public authorities had not requested an EIA report while granting licences for the project, and that the administrative fine imposed on it had been excessive. In this regard, the applicant claimed that its right to property had been violated.

The Court’s Assessment

Obtaining an EIA report prior to any construction activity is of great importance in terms of the protection of environment and the right to live in a healthy environment.

It has been observed that on the date of the relevant inspection, no EIA report was available. Thus, the interference with the right to property pursued the aim of protecting the public interest and the environment.

Apart from the administrative fine, no judicial or administrative sanction was imposed on the applicant, nor was a measure taken, such as confiscation or expropriation or prevention of the applicant’s activities.

It has also been observed that the applicant, as a company operating in the construction industry and having carried out many projects, should have predicted that it would not be allowed to start a construction without obtaining an EIA report. Accordingly, the act requiring the imposition of an administrative fine had resulted from the applicant’s own negligence.

In addition, although the applicant complained that the impugned administrative fine was disproportionate due to its high amount, it failed to submit any information or document allowing for a comparison in terms of proportionality.

It has been concluded that the fair balance between the applicant’s right to property and the public interest had not been impaired and that the impugned interference had been proportionate.

Consequently, the Court has found no violation of the right to property safeguarded by Article 35 of the Constitution.

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