Events
The immovable property no. 1813, parcel no. 768, which is a plot of land measuring. 3.799 m², is registered in the title deed in the name of İ.M. and M.M., the applicant’s grandfather, in the ratio of 1/2. In the same neighbourhood. 14499/18870 shares of the immovable plot no. 1813, parcel no. 769 with a surface area of 18.870 m² and parcel no. 1813, parcel no. 769 are registered in the title deed in the name of the Cooperative, 4371/37790 shares in the name of İ.M. and 4371/37790 shares in the name of the applicant’s grandfather.
Based on the decision of the Municipality Council, with the abandonment request of the owners. The entire immovable property numbered 768 parcel. Was abandoned from the land registry as a green area. Upon the request of the owners of immovable 769 parcel numbered 769. An official deed was issued by the land registry guards.
In the said title deed. It was stated that İ.M. and M.K. and M.M., the applicants’ grandfather, were jointly authorised on behalf of the Cooperative, and that İ.M. and the applicant’s grandfather were authorised as principal on their own behalf. In the said deed, it was stated that the immovable property numbered. 769 parcel was divided into eleven separate parcels and consensual division. Was made between the owners pursuant to the decision of the Council dated 16/3/1989. Accordingly, 2.397 m² of the 18.870 m² parcel numbered 769. Was abandoned to the road and 9326 m² was abandoned as green area and the remaining parts were divided among the owners.
On 20/12/2002, the lawsuit filed by the applicant’s grandfather and İ.M. for the cancellation of the implementation. Zoning plan and the master zoning plan approved by the Municipality. Council on 23/6/2000 regarding the conversion of some of the abandoned. Areas in the immovables numbered 768 and 769 parcels into a religious. Facility area was accepted and the zoning plans were cancelled.
The applicant’s deceased son filed a lawsuit for compensation. Stating that the immovable properties that he had abandoned. To a green area and a road free of charge were not used in accordance. With the purpose of abandonment. The court decided to dismiss the case against the Metropolitan Municipality due to lack. Of passive hostility, and to dismiss the case on the merits against the Municipality. The decision was appealed by the applicant and upheld by the Court of Cassation. The applicant’s request for correction of the judgement was rejected by the same Chamber.
Allegations
The applicant claimed that his right to property. Was violated due to the use of immovable properties abandoned. As green areas and roads free of charge against the purpose of abandonment.
The Court’s Assessment
There is no aspect of the concrete case that requires. The discussion of the criteria of convenience and necessity. The main issue to be discussed is whether the interference is proportionate or not.
Proportionality, the third sub-principle of proportionality. Requires a fair balance between the protection of the public. Interest and the rights and freedoms of the individual. If the measure imposes an extraordinary and excessive burden on the owner. It cannot be said that the interference is proportionate and therefore proportionate. In this respect, it is necessary to determine. Whether the measure imposed an excessive and disproportionate. Burden on the applicants.
First of all, it should be emphasised. That the abandonment made by the applicant and the other owners. Was not unconditional, but a conditional free abandonment/donation. As a green area and a road, in other words, and according. To the expert reports obtained by the court of first instance, the immovables. Were not used in accordance with the purpose of abandonment.
At this stage, it should be noted that in the event that the immovable is allocated. For another need for public benefit, although it is used. Outside the purpose of abandonment. It should be accepted that the public benefit purpose still exists. But only the reason has changed. On the other hand, as previously explained by the Constitutional Court. The use of the immovable property for different purposes. After it has been allocated in accordance with the purpose of expropriation. Due to the fact that this need is no longer needed. Does not constitute a violation of the requirements of the right to property. Depending on the circumstances of the concrete case.
In this framework, in the case of the application, the court. Did not evaluate whether the construction of a municipal service. Building and a mosque on a part of the area abandoned. To a green area and a road contrary to the purpose of abandonment and whether. The municipality’s income from the shops would serve a different public purpose or not, and decided. To reject the compensation claim on the grounds that the subsequent changes made in the zoning. Plans would not affect the abandonment transactions by explaining. That the said transactions were made in the title deed. Due to the request for voluntary abandonment.
Therefore, in the concrete case, it has been assessed. That the decisions of the courts of first instance do not contain. Sufficient and relevant justification to respond to the applicant’s. Claims and objections that may affect the outcome of the case.
Accordingly, when the whole administrative and judicial process is considered. It is concluded that procedural safeguards for the protection of the right. To property were not fulfilled in the concrete case. And the applicant did not benefit from these safeguards. For this reason, the fair balance between the applicant’s right to property and the public. Interest on which the interference is based. Has been disrupted against the applicant and the interference with the right to property is disproportionate.
The Constitutional Court decided that the right to property. Was violated for the reasons explained.
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