Events
The applicant claimed that he could not access his properties in his village, which he had to leave in 1994-1995 due to terrorist incidents, and applied to the Damage Assessment Commission (Commission) on 6/12/2017 for compensation for the damage caused by the inaccessibility of the property for the period after 30/5/2007. Upon the Commission’s failure to respond to his request, the applicant filed a lawsuit before the administrative court. The administrative court cancelled the implied rejection of the applicant. The Regional Administrative Court, which examined the Governorate’s request for appeal, partially accepted the request for appeal and cancelled the part of the Administrative Court’s decision regarding the period between 30/5/2007-6/12/2016, and dismissed the case out of time for this part. In the justification of the decision, it is stated that the applicant can only request compensation for one year’s damages retrospectively from the date of his application to the administration (6/12/2017), and that it is not possible to request compensation for damages before one year from the date of application in accordance with Law No. 5233.
Allegations
The applicant claimed that his right to effective remedy in connection with the right to property was violated as his administrative application for compensation for the damage caused by his inability to access his property was not heard in due time.
Assessment of the Court
In the case subject to the application, the fact that the applicant could not access his property has been determined by the decisions of the courts of first instance. However, the Regional Administrative Court dismissed the case on the grounds that the applicant did not apply to the Commission in due time. In this case, the merits of the applicant’s claim for compensation were not examined. It is concluded that the complaint regarding the non-examination of the merits of the applicant’s application for compensation for the damages he claims to have suffered due to not being able to access his property should be evaluated within the scope of the right to effective application guaranteed under Article 40 of the Constitution in connection with the right to property regulated under Article 35 of the Constitution.
The first issue to be examined by the Constitutional Court is whether the applicant has a remedy through which he can claim that his right to property has been interfered with and obtain compensation for the damage, if any.
Considering Article 1, subparagraph (c) of the first paragraph of Article 7 and the first paragraph of Article 6 of the Law No. 5233 on the Compensation of Losses Arising from the Fight against Terrorism and Terrorism, it is understood that persons who cannot access their assets due to the measures taken within the scope of the fight against terrorism can apply to the Commission within sixty days from the date of learning of the event subject to the damage, in any case within one year from the date of the event. Therefore, it is clear that the applicant, who could not access his property due to the measures taken within the scope of the fight against terrorism, has an effective remedy at the theoretical level.
In the concrete case, it should also be examined whether this remedy, which is found to be effective at the theoretical level, actually works in the applicant’s case, in other words, whether it offers a chance of success in practice. As a result of the proceedings, the regional administrative court stated that the applicant could only be compensated for one year’s damages retrospectively from the date of application, and that the damages before 6/12/2016 could not be compensated within the scope of Law No. 5233 since they were not claimed within the one-year period, and rejected the case in terms of the damages for the period between 30/5/2007 and 6/12/2016.
When the first paragraph of Article 6 of the Law No. 5233 is examined, it is seen that the condition of application to the Commission “within sixty days from the date of learning of the event subject to damage, in any case within one year from the occurrence of the event” is introduced. In this case, it is understood that the interpretation of the concept of the event subject to damage is important. Although the interpretation of the rules of law to be applied in the case is within the discretion of the courts of first instance, it is the duty of the Constitutional Court to examine whether this interpretation contains arbitrariness or blatant error of discretion.
In the concrete case, the damage is that the applicant was not allowed to access his property. The inability to access the property is an ongoing interference. Therefore, as long as the restriction of access to the property continues, the interference with the applicant’s right to property will continue to exist. In instantaneous interventions, it is reasonable to start the periods specified in Article 6 of Law No. 5233 from the date of intervention. On the other hand, in ongoing interventions, a specific and single date cannot be mentioned for the intervention. Continuous intervention -unless there is no interruption- is an intervention that continues at any time. For this reason, a concrete date cannot be determined for the event subject to damage in ongoing intervention. Therefore, in such interventions, the periods specified in Article 6 of Law No. 5233 should be started from the date the intervention ceased.
For this reason, it is considered that the interpretation of the regional administrative court regarding the application period to the Commission is unreasonable, overly formalistic, which accepts that the event subject to damage is repeated almost every year with interruption, and an interpretation that makes it difficult for the applicant to benefit from the compensation opportunity introduced by Law No. 5233. As such, the compensation remedy established by Law No. 5233, which was found to be theoretically effective in terms of remedying the violation of the right to property, has lost its capacity to offer a chance of success in the concrete case due to the regional administrative court’s formalist and strict interpretation, which constitutes an obvious error of discretion.
For the reasons explained above, the Constitutional Court decided that the right to effective remedy in connection with the right to property was violated.
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