In a recently published decision, an applicant to the
Constitutional Court claimed that its property rights were violated
by an administrative action. The legal entity applicant's gas
station had been classified partially as a
"transportation and transfer area" and
partially as "parks and rest areas" under the Land Use
Plan Aiming at Protection of Beyoğlu Urban Protected Area of
Istanbul Metropolitan Municipality ("Administration")
dated 21 May 2008 ("Land Use Plan"). The Constitutional
Court evaluated the material facts and ruled that the
applicant's property rights had not been violated on the basis
no imbalance existed between public interest requirements and the
applicant's property rights.
The applicant claimed to the Constitutional Court that its
property right had been violated in the following ways:
The Land Use Plan has not been regularly and duly
The Administration has used indefinite and ambiguous phrases
about public interest in the decision regarding public interests,
meaning the Administration's action is not based on public
The gas station will decreased in value due to the Land Use
Plan and the Administration did not take the applicant's
legitimate expectations into account under the Land Use Plan.
The Constitutional Court held the Administration's property
classification considerably limited the applicant's use of the
property. Accordingly, the court held there was a clear
interference with the applicant's property rights. The
Constitutional Court assessed the interferences against Articles 13
and 35 of the Constitution, regarding restriction of fundamental
rights and freedoms, as well as property right.
The Constitutional Court discussed the concept of public
interest, emphasizing that property rights can only be restricted
by legislation and for the public interest. The court noted that
public interest must be evaluated on a case-by-case basis and
cannot be objectively defined. It went on to state that the burden
of proof rests with the party who claims an interference is against
The Constitutional Court notes that although the expert report
criticizes the Land Use Plan in general terms, the report does not
clearly say that the Administration's action was counter to
public interests in the applicant's specific circumstances. The
Constitutional Court states that the applicant's claim
regarding the absence of public interest was rejected by the
Administrative Court and the applicant failed to prove the absence
of general interest before the Administrative Court. As a result,
the Constitutional Court concluded that the Administration's
decision about public interest has legal basis.
The Constitutional Court emphasized the necessity of a
reasonable balance between public interests which the Land Use Plan
is intended to support, compared to restrictions on the
applicant's property rights, pursuant to the principle of
proportionality. Within this framework, the Constitutional Court
applied the principle of proportionality to the case at hand. It
concluded that the situation caused by the Administration's
restrictions did not create an imbalance between public interest
requirements and the applicant's property rights. Therefore,
the Constitutional Court ruled that the applicant's property
rights had not been violated.
The full text of the Constitutional Court's reasoned
decision was published in Official Gazette number 29479 on 18
September 2015 and can be found at this link (only available in Turkish).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Back in Issue 05 of IQ, we examined the decision in Yam Seng PTE Ltd v International Trade Corporation Ltd and looked at whether a general obligation of good faith could be implied into contracts made in accordance with English law.
A recent report1 by Global Construction Perspectives and Oxford Economics forecasts that by 2030 the volume of construction output will grow by 85% to US$15.5 trillion worldwide, with China, the US and India leading the way and accounting for 57% of all global growth.
There are not enough homes to meet demand in much of the UK, and the tragedy is that despite recent fine words, Government policy still seems on course to keep it that way.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).