The Turkish Constitutional Court recently considered a claim
that since part of the legislative basis for an earlier decision
had been struck out, the decision now breached the applicant's
constitutional rights. The Constitutional Court held that the
applicant's rights were not violated. It held that
Constitutional Court annulment decisions cannot have retrospective
effects and the earlier decision served the legitimate purpose of
ensuring definitiveness for property rights. The Constitutional
Court also noted that the applicant's delays in pursuing the
matters meant that equity leads to him losing the ownership
The applicant claimed that he had inherited property in 1956
from his father, but informal squatters' housing
("Gecekondu") had existed on the site since the 1970s.
The Gecekondu owners bought a case against the son in 2001,
claiming that they had acquired ownership via extended occupation
(extraordinary prescription). The court held in 2003 that the
Gecekondu owner did not violate the son's property rights.
According to Article 713 of the Turkish Civil Code number 4721,
in certain conditions, an occupant who has remained uninterrupted
on the site for at least 20 years can request property be
registered in their name if the owner cannot be identified from
land registry records and has been either dead or absent for the
past 20 years. In 2011, the Constitutional Court partially annulled
this provision, striking out the reference to death.
The son claimed in 2013 that since part of the legislative basis
for the court's earlier decision had been struck out, the
decision now breached his constitutional rights.
The Constitution states that property rights can only be
restricted by law and in the name of public interest. Further, the
Constitution, as well as the European Human Rights Convention, give
Turkey the authority to control disposal of property rights in the
interests of the general public.
The Constitutional Court held that the partial annulment of
Article 713 in 2011 did not violate the applicant's rights
Annulment decisions by the
Constitutional Court cannot have retrospective effect (Article 153
of the Constitution).
The 2003 decision serves the
legitimate purpose of ensuring definitiveness for property rights
by applying the provision on extraordinary prescription (Article
If an individual's property
rights are restricted, an equitable balance must be struck between
the public good and the individual's rights. The Constitutional
Court held that overall, since the son did not attempt to exercise
his succession rights for 46 years, nor his right of action for 26
years, he had lost ownership of the property.
The Constitutional Court's decision dated 10 December 2015
with the application number 2013/604 was published in Official
Gazette number 29593 on 14 January 2016. Please see this link for the full text of the
Constitutional Court's decision (only available in
Information first published in the
MA | Gazette, a fortnightly legal update newsletter produced by
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