Events
Eight immovable properties registered in the name of the applicants’ grandfather were identified and registered in the name of the Treasury with the cadastral minutes finalised on 2/12/1953 and then transferred to the Istanbul Municipality. Some of these immovables were subsequently registered in the name of third parties. The applicants’ action for rectification of the registry for six of the immovables in question was rejected on the grounds of out of time.
Subsequently, the applicants filed two separate lawsuits against the Treasury and Istanbul Metropolitan Municipality at the 2nd Civil Court of First Instance (the Court) for the rectification of the registry and compensation for eight immovables. One of the lawsuits related to three immovable properties and the other to five immovable properties. The 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’ appeal requests, upheld the local court judgements and rejected their requests for revision of the judgements.
Allegations
The applicants claimed that their property rights were violated as the immovables were registered in the name of third parties as a result of the cadastral survey.
Assessment of the Court
Proportionality, which is one of the criteria to be taken into consideration in the limitation of rights and freedoms pursuant to Article 13 of the Constitution, arises from the principle of the rule of law. Proportionality, which is one of the sub-principles of the principle of proportionality, expresses the necessity to observe a reasonable balance between the interference with the individual’s right and the aim to be achieved. The effective examination of unlawfulness claims by a court is important in terms of the proportionality of the intervention. In this context, it is a requirement of the constitutional obligations regarding the protection of the right to property to provide the opportunity to apply for judicial remedies in order to correct cadastral transactions that are considered to be erroneous.
The purpose of requiring the notification of cadastral determinations to be made by announcement is to end the uncertainties regarding the ownership of immovables as soon as possible. However, it should be taken into consideration that the regulations regarding the notification by announcement are justified with the idea that the persons who will claim rights on the immovables subject to cadastral survey reside in the region where the immovables in question are located or have the means to be aware of this even if they do not reside there. However, it is very difficult for a person residing abroad, for example, to be informed about the cadastral announcement in the event of exceptional circumstances that sever the connection with the immovable. In such cases, the automatic commencement of the ten-year period for filing a lawsuit after the expiry of the period of suspension announcement may lead to irreparable damages in terms of the right to property, and it is considered to constitute an immeasurable interference with the right to property. On the other hand, in the context of the procedural safeguards of the right to property, the time limits for filing a lawsuit should not be interpreted in a rigid and formalistic manner that would eliminate or make it excessively difficult to apply for a remedy.
In the concrete case, the Court considered that it was a rigid and formalist interpretation to start the period for filing a lawsuit from the period of the notice of suspension without investigating whether there was an exceptional situation in which it could be considered reasonable to expect that the applicants or their descendants, who were known to live in Greece, were not aware of the cadastral process. The fact that the court started the period for filing a lawsuit from the end of the suspension announcement period regarding the cadastral minutes made it impossible for the applicants to file a lawsuit on the unlawfulness of the cadastral process. This is because the period for filing a lawsuit had already expired -according to the Court’s interpretation- when the applicants became aware of the cadastral process. This interpretation, which renders it impossible for the applicants to file a lawsuit unless the Court finds that there are reasons justifying the assumption that the applicants or their heirs, who are known to have lived in Greece, were aware of the cadastral determination, is incompatible with the procedural safeguards of the right to property.
Although the importance of the public interest in the finalisation of land registers cannot be denied, the applicants’ interest in the protection of their right to property must not be overlooked. In the concrete case, without taking into account the fact that the applicants lived in Greece, the automatic commencement of the time limit for filing a lawsuit from the date of finalisation of the cadastral minutes, with an overly strict and formalist interpretation, disrupted the balance between the public interest in the finalisation of the land registry and the individual interest in the protection of the applicants’ right to property in such a way as to cause an excessive burden against the applicants. This situation rendered the interference with the applicants’ right to property disproportionate.
The Constitutional Court decided that the right to property was violated for the reasons explained.