Events
The applicants’ grandfather was granted a right to agricultural resettlement by the Settlement Commission (the Commission) on 30/5/1995 due to being from nomadic families. On 31/1/2012, the entitlement was cancelled on the grounds that the applicants’ grandfather had a social security record as of 1/9/1980. The lawsuit filed by the applicants for the cancellation of the said transaction was accepted by the court. The Regional Administrative Court, which examined the respondent administration’s appeal request, cancelled the first instance court’s decision on the grounds that the applicants’ grandfather had been registered with the Social Security Institution since 1/9/1980 before the date of the application and entitlement decision, thus he had settled down and lost his nomadic character, and for these reasons, the entitlement was not obtained in accordance with the legislation and dismissed the case.
In the case of cancellation and registration of title deed filed by the Ministry of Environment and Urbanisation (the Ministry) against the applicants, it was stated that the legal basis of the transaction regarding the registration of the immovable property in the name of the applicants had disappeared due to the cancellation of the right ownership decision subject to the application by the Commission decision, and the registration of the immovable property in the name of the Treasury of Finance was requested. Upon the rejection of the case by the civil court of first instance, the Ministry appealed. The Court of Cassation upheld the judgement and rejected the applicant administration’s request for correction of the judgement.
Allegations
The applicants claimed that their right to a fair trial was violated due to the cancellation of the agricultural right ownership decision issued by the administration a long time ago.
Assessment of the Court
In the concrete case, the administration should clearly set out the conditions and grounds for application at the outset, and the applicants should fulfil the conditions for application in accordance with the law. In this respect, it should be noted that the first condition for resettlement is that the applicants must be nomads. However, the definition of nomad is not included in the abrogated Law No. 2510 and the Regulation on the Implementation of the Settlement Law and Special Settlement Fund in force at the date of the application.
In the case of the present application, the application lodged with the Commission on 16/7/1994 was decided on 30/5/1995, approximately ten months later. It should be noted that the administration had sufficient time to fulfil its inspection duty within this ten-month period. On the other hand, the administration did not carry out this supervision duty while accepting the application, and as a result of the supervision carried out approximately seventeen years later, it decided to cancel the right ownership on 31/1/2012.
It is understood that the case-law of the Council of State regarding the conditions under which the administrative action can be revoked is established and stable. In this framework, it has been observed that the case law of the Council of State regarding similar applications on how to resolve the dispute in case of cancellation of the agricultural entitlement certificate has also gained continuity. In the case-law of the Council of State, it is stated that if a right or an established situation or legal status that needs to be protected or a legal status that needs to be protected has arisen for the benefit of the relevant person due to administrative acts established in violation of the law, this act can always be revoked only if it is disqualified by the states of non-existence and absolute nullity. Accordingly, in cases where it is understood that the administrative act was established as a result of the untrue declaration or fraud of the person or the administration’s error in the application of the provision clearly stipulated in the legislation, the administrative act may be cancelled by the administration with retroactive effect without any time condition. On the other hand, it has been accepted that administrative acts giving rise to rights in the contrary case can only be revoked within the cancellation lawsuit period, and if this period expires, such administrative acts will gain an artificial finality in accordance with the principles of trust in the administration and administrative stability. In this context, it has been stated that the transactions regarding the revocation of the Commission decision taken by the administration to make those who were deemed to be rightful landowners rightful owners after a very long time has passed are contrary to the principles of administrative stability and trust in the administration.
In the concrete case, although the administrative action was cancelled by the administration after approximately seventeen years, it was observed that the regional administrative court did not discuss whether the conditions for the revocation of the administrative action were met within the framework of the principles stated in the established case law of the Council of State.
In addition, it is also necessary to point out the regulation made by the legislator in order to prevent the emergence of similar disputes. As a matter of fact, in the third paragraph of the provisional Article 7 added to the Law No. 5543 on 12/7/2013, it is regulated that the rights of those who have rights according to the abrogated Law No. 2510 will continue without any condition. In the judicial cases related to the cancellation and registration of title deed lawsuits filed in relation to the same issue, the Court of Cassation stated that the registration made to the title deed as a result of the cancellation of the certificate of right ownership will not directly become a corrupt registration and that the cancellation and registration of title deed lawsuits filed against the right holders should be dismissed.
As a result, although the regional administrative court made a decision contrary to the established case-law of the Council of State, which was given in cases similar to the case subject to the application, the fact that the justified reasons for departing from these principles were not explained with a relevant and sufficient justification in the circumstances of the case made the proceedings unfair.
For the reasons explained, the Constitutional Court decided that the right to a fair trial within the scope of the right to a fair trial was violated.
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