Violation Of The Right To Effective Remedies Due To The Interpretation Of The Likelihood Of Harm Arising From The Prevention Of Access To Property
Events
Curfew was declared by the District Governorate on 11/12/2015 due to the ditch incidents in the district where the applicant’s house is located. As of 2016, the curfew was lifted gradually on a street-by-street basis and was lifted completely on 3/5/2019.
The applicant applied to the Governorate and requested compensation for the loss of income due to the inability to rent out his immovable property during the curfews in accordance with the Law No. 5233 on the Compensation of Losses Arising from Terrorism and the Fight against Terrorism. The Damage Assessment Commission, which determined that there was no damage to the house, rejected the claim, stating that the damages and income losses subject to the compensation request were in the nature of probable damages; the applicant filed a lawsuit before the administrative court. The administrative court rejected the claim by adopting the reasoning of the Damage Assessment Commission; the applicant appealed against this decision. The regional administrative court rejected the appeal on the merits and definitively.
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 the property was rejected on the grounds that the damage was probable.
Assessment of the Court
In the case subject to the application, there is no dispute that the applicant could not reach his property during the curfew period. However, the administrative court rejected the case on the grounds that the damage claimed by the applicant was probable and that it was not possible to compensate it under Law No. 5233. The administrative court did not make a separate examination regarding the existence of the applicant’s damage. It is concluded that the complaint regarding the rejection of the lawsuit filed by the applicant for the compensation of the damage he claimed to have suffered due to not being able to access his property, without conducting an investigation into the existence of the damage, 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 in the application is whether there is a remedy through which the applicant can claim that his/her right to property has been interfered with and to obtain compensation for the damage, if any.
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Article 1 of the Law No. 5233 states that the purpose of this Law is to determine the principles and procedures regarding the compensation of persons who have suffered material damages due to terrorist acts or activities carried out within the scope of the fight against terrorism. In subparagraph (c) of the first paragraph of Article 7 of the Law, material damages arising from the inability of persons to access their assets due to the activities carried out within the scope of the fight against terrorism are listed among the damages that can be compensated through settlement according to the provisions of the Law. On the other hand, the first paragraph of Article 6 of the Law stipulates that the necessary procedures shall be initiated in the event that the victim or his/her heirs or authorised representatives apply to the governorship of the province where the damage occurred or the event subject to damage occurred 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, and the applications to be made after these periods shall not be accepted. In this context, it is clear that the applicant, who could not reach his property due to the measures taken within the scope of the fight against terrorism, has an effective remedy at the theoretical level.
The second issue to be examined by the Constitutional Court is 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.
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The rejection of the compensation claim does not by itself mean that the right to effective remedy has been violated. The right to effective remedy regulated under Article 40 of the Constitution does not guarantee that the applications made to administrative and judicial mechanisms established for the protection of fundamental rights and freedoms are necessarily concluded in favour of the applicant. In this context, the duty of the relevant administrative and judicial authorities is to examine the merits of the applicant’s complaint and decide on it with a relevant and sufficient justification.
The applicant stated that he had purchased the historical property with the aim of opening an American Institute, but due to the curfew, he was unable to complete the restoration process and use the property. It is a fact that the applicant has not yet been able to use the property for personal or commercial purposes as the restoration work was in progress before the date of the curfew decision. However, it should be taken into account that the reason for the cessation of the restoration work was the curfew. Therefore, the applicant’s utilisation of his immovable property was delayed due to the curfew. On the other hand, although the purpose for which the applicant’s immovable will be used affects the amount of damage arising from the inability to access the property, it does not eliminate the fact that the damage exists.
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Prevention of access to one’s property/home – whether it is used for housing purposes or allocated for commercial or cultural purposes – is certain to cause damage. The fact that the exact amount of the damage is not known does not mean that it is probable. The fact that the damage is calculable is sufficient for the obligation to compensate to arise. Preventing access to a house that is in a usable condition causes damage in the amount of the economic benefit arising from the use of the house. In such a case, although there may be certain difficulties in calculating the amount of damage, it cannot be considered a reasonable interpretation to state that it is probable. As such, the compensation remedy established by Law No. 5233, which was found to be effective at the theoretical level 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 interpretation of the administrative court, which is not foreseeable and constitutes a clear error of appreciation. As a result, it is concluded that the administrative court prevented the applicant from calculating the amount of the damage and providing redress.
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