Events
The applicant’s grandfather, who immigrated from Greece, was given immovable property with the title deed dated 1945 in accordance with the Settlement Law No. 2510. The real estate, which was accepted as a forest in the forest cadastre carried out several times, was excluded from detection due to its forest character during the land cadastre made in 1959. Since 1970, the applicant and his descendants have been de facto prevented from using the immovable.
The Civil Court of First Instance (Court) rejected the claim for compensation filed by the applicant against the Treasury on 28/12/2009 in terms of hostility. After the decision of the Court of Cassation to reverse the case, the Court decided that the value specified in the expert report be taken from the defendant administration and paid to the plaintiff. However, the Supreme Court overturned the Court’s decision. The Court of Cassation stated that the resettlement title cannot be converted into a cadastral title due to the forest nature of the immovable.
allegations
The applicant claimed that his right to property was violated due to the non-payment of compensation for the title deed immovable that was found to be within the forest boundaries.
Court’s Evaluation
In accordance with Article 169 of the Constitution on the protection and development of forests, it is not possible to subject forests to private property. However, it is clear that the immovable property in question is subject to private property by giving it to the applicant’s decedent by the public authorities.
The public authorities could not show that there was any annotation in the land registry that this immovable was a forest at the time it was handed over to the owner. In addition, there is no fact that shows that the applicant’s decedent is in a position to know that the immovable is a forest.
Since the creation and keeping of land registry records are under the supervision of public authorities, it is natural that the state is also responsible if these records are created incorrectly even though it is a forest.
Although the intervention has a legitimate aim based on the public interest in the context of the protection of immovables that are forests, the interests of the applicant, who owns property based on the title deed given by the state, should also be taken into account, and within this framework, all the consequences of the wrongful action of the administration should not be imposed on the applicant.
In Turkish law, the regulation that provides compensation by the state for the damages caused by the faulty keeping of the land registry is included in the Turkish Civil Code No. 4721. Article 1007 of the aforementioned Law; It is stipulated that the state is responsible for all damages arising from the keeping of the land registry, and the state can recourse to the officials who are at fault in the occurrence of the damage.
The fact that the immovable in the nature of a forest was re-determined as a forest after it was given to the applicant’s descendant pursuant to Law No. 2510, has a legitimate aim based on the public interest in the context of the protection of forests, but the failure to pay any compensation to the applicant who was deprived of the property caused the applicant to bear the damage arising from the fault of the administration.
As a result, an excessive burden was placed on the applicant by the intervention, and the fair balance between the applicant’s property right and the public interest was disturbed against the applicant. Therefore, the interference with the right to property is disproportionate.
The Constitutional Court decided that the right to property had been violated for the reasons explained.
