T.C.
Supreme
- law office
Base No:2014/16093
Decision No:2014/31779
K. Date:25.12.2014
At the end of the trial between the parties for the collection of the decommissioned real estate confiscated without expropriation: the examination of the above-mentioned written decision on the rejection of the case by the Supreme Court was requested by the petition filed by the plaintiff’s attorney, the documents in the file were read and the dispute was discussed and considered as necessary after the dispute was understood:
– K A R A R –
The case concerns the request to collect the cost of real estate confiscated without expropriation.
The court decided to dismiss the case; the decision was appealed by the plaintiff’s attorney.
The right to property is one of the fundamental rights recognized both in terms of domestic law by the Constitution and laws, and by the European Convention on Human Rights and its october protocols.(Constitution Art. 35/1,ECHR October Prot.1-1) 683 of the Turkish Civil Code.in the article, the authority of the person who owns something to use, use and save as he wishes on that thing within the limits of the legal order is stated, and it is concluded that the ration case can be filed against the person who has the property of the owner unjustly, as well as the prevention of all kinds of unfair confiscation can be sued.
The right of ownership can be limited or completely abolished only in cases where there is a public interest.
However, when performing this limitation or removal; T.C. 90/5 of the Constitution.as stated in the decision No. 1262/02 of 30.05.2006 established by the ECHR in accordance with the provisions of the ECHR, which are considered above the domestic law by article … “… a measure that deprives a person of his property …”,”should have a legitimate purpose in the public interest….”it is clear that when taking this measure, “…there must be a reasonable proportionality relationship between the dec being applied and the goal intended to be achieved …”, that the necessary balance cannot be established if the person “… has to carry a personal and excessive load …”.
In other words, it is fundamental to establish a reasonable, acceptable ratio that will ensure a balance of rights and justice between the public dec and the right of a person who is partially or completely deprived of the right to property.
By the way, one of the issues that should be focused on is the determination of the nature of the title deed for the place that is connected to the land registry and thus the right of ownership dec created in the name of the person.
There is no doubt that the right of ownership granted by the state and provided for by a valid registered title deed will be valued.Although the basic characteristic of such a place, that is, the nature of its being in the public domain, has not changed, it is certain that the person’s right based on the title deed in question will have to be protected as stated above.
To assert the invalidity of the title deed granted by the state would be incompatible with the valid registered right of ownership and would be an attitude that would damage the dignity of the state.”
In a concrete case; a part of the real estate subject to litigation was turned into a forest by afforestation by the defendant administration, thus eliminating the possibility of ownership and savings of the owner.
Indeed, the ECtHR yücetürk new research and in -Turkey, 22 September 2009 date of the decision and 24620/04 dated 23 March 2010, the decision of 2150/05 in public forest land owners as an immovable vasiflandirilm along with using the right of ownership of the immovable in question is an intervention that significantly reduces this to vasiflandirman quorum and the savings you create a domain from the land of the owners, the real advantage that you couldn’t, and the inside has considered the impact that it carries in every sense of property rights.
Refusal of the claim for compensation on the grounds that the real estate was previously forest, even though the real estate owned by the plaintiff by deed was turned into forest and the right to use and save on real estate was restricted, october 1 of Protocol No. 1.article 6 of the ECHR.it is contrary to its substance.
As a result, since 52.390,00 m2 of the immovable property has been turned into a forest by the reforestation work of the administration, taking into account the impairment caused by the pipeline passing through the immovable property, the cost of which must be determined and decided to be collected from the defendant administration, without taking into account that the rejection of the case with a written justification should be ruled,
This is not considered correct.
Since the appeals of the plaintiff’s deputy are in place, the decision is made for the reasons described in H.U.M.K.nun 428. according to the article, it was decided unanimously on 25.12.2014 to CANCEL it, to refund the appeal fee received in advance when requested, and to register the appeal fee in the will of the Treasury.
