Individual Application

The Facts

Eight immovable properties registered in the name of the applicants’ testator were identified and registered in the name of the Treasury in accordance with the cadastral records finalised on 2 December 1953, and afterwards, they were transferred to the İstanbul Municipality. Some of these properties were subsequently registered in the name of third parties. The action brought by the applicants seeking the rectification of the registry as regards six of these properties was dismissed due to the statute of limitations.

Subsequently, the applicants brought two separate actions against the Treasury and the İstanbul Metropolitan Municipality before the 2^nd Chamber of the Civil Court (civil court) seeking the rectification of the registration as well as claiming compensation regarding eight immovable properties. One of the cases concerned three immovable properties, while the other concerned five immovable properties. The civil court dismissed the cases on the grounds that the statute of limitations had expired. Two different chambers of the Court of Cassation, which examined the applicants’ requests for appeal, upheld the civil court’s decisions, and the applicants’ subsequent requests for rectification of the decisions were also dismissed by the relevant chambers.

The Applicants’ Allegations

The applicants claimed that their right to property had been violated due to the registration of their immovable properties in the name of third parties as a result of the cadastral survey conducted.

The Court’s Assessment

Proportionality, one of the criteria to be considered in restricting rights and freedoms pursuant to Article 13 of the Constitution, arises from the principle of a state governed by the rule of law. Commensurateness, one of the sub-principles of the principle of proportionality, refers to the necessity to strike a reasonable balance between the interference with the individual’s right at stake and the aim sought to be achieved. The effective examination of the allegations of unlawfulness by a court is vital in terms of the proportionality of the interference. In this sense, the constitutional obligations regarding the protection of the right to property necessitates the availability of an opportunity to access legal remedies to challenge the cadastral records considered to be erroneous.

The objective in communicating the cadastral decisions to those concerned by announcement is to put an immediate end to the uncertainties as regards the ownership of the immovable properties. However, it should be noted that the regulations regarding the notification by announcement shall be justified on the basis of the assumption that those who will claim rights on the immovable properties subject to the cadastral survey reside in the relevant area or have access to the necessary means to be able to aware of the announcement. Nevertheless, for example, it is very difficult for a person residing abroad to be aware of the cadastral announcement especially in exceptional circumstances where the relevant person has no connection with the immovable property any longer. In such cases, the automatic start of the ten-year period for bringing an action after the expiration of the public display period may lead to irreparable damages in terms of the right to property, thus constituting a disproportionate interference with the latter. Besides, within the context of the procedural safeguards regarding the right to property, the time limits prescribed for bringing an action should not be interpreted in a strict and formalistic manner eliminating the opportunity, or making it extremely difficult, to use a legal remedy.

In the present case, the Court has considered that starting the time-limit for bringing an action from the public display period, without investigating whether there was an exceptional situation making it reasonable to consider that the applicants or their ascendants, who were living in Greece, might not be aware of the impugned cadastral process, was the result of a strict and formalistic interpretation. The start of the time-limit for bringing an action at the end of the public display period of the cadastral records, made it impossible for the applicants to challenge the lawfulness of the impugned cadastral process. In fact, according to the Court, on the date when the applicants became aware of the said cadastral process, the time-limit set for bringing an action had already expired. It has been concluded that such an interpretation -which made it impossible for the applicants to bring an action, unless the Court demonstrated the existence of the grounds justifying the assumption that the applicants or their testators known to live in Greece had been aware of the cadastral process- would be incompatible with the procedural safeguards of the right to property.

Although the importance of the public interest in the finalisation of the land registers is undeniable, the applicants’ interest in the protection of their right to property should also not be ignored. In the present case, the automatic start of the time-limit set for bringing an action on the date of the finalisation of the cadastral records, without considering that the applicants were living in Greece and on the basis of an extremely strict and formalistic interpretation, disrupted the balance between the public interest in the finalisation of the land registers and the individual interest in the protection of the applicants’ right to property, to the detriment of the latter, thus imposing an excessive burden on the applicants. Accordingly, there has been a disproportionate interference with the applicants’ right to property.

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