Participation Of The Immovable Owner In The Trial Is Compulsory

26 Oct Participation Of The Immovable Owner In The Trial Is Compulsory

T.C. CONSTITUTION

2nd ed.Section
Basis: 2015/13950
Verdict: 2018/
Decision Date: 24.05.2018

DECISION OF THE CONSTITUTIONAL COURT DATED 24/5/2018 AND NUMBERED 2015/13950 (INDIVIDUAL APPLICATION)

(ECHR m. 6) (2709 P. K. m. 2, 13, 36) (6100 P. K. m. 27, 61, 63, 66, 68) (2577 S. K. m. 31) (6216 P. K. m. 50) (GOLDER V. UNITED KINGDOM CASE) (SEFER YILMAZ AND MERYEM YILMAZ V. TURKEY CASE) (MY WIFE V. TURKEY CASE) (MENEMEN CHAMBER OF MINIBUS OPERATORS V. TURKEY CASE) (TAHIR CANAN V. TURKEY CASE) (ANY. MAH. 10.02.2016 T. 2015/96 E. K.2016/9 K.)

RGT: 29.06.2018
RG NO: 30463

SECOND DIVISION

DECISION

SEMA CALGAV AND OYA YAMAK APPLICATION

Application Number: 2015/13950

Decision Date: 24/5/2018

President: Engin YILDIRIM

Members: Osman Alifeyyaz PAKSÜT

Jalal Mumtaz Akıncı

Muammer lame

M.Emin KUZ

Rapporteur: Gülbin AYNUR

Applicants: 1. Sema CALGAV

Oya YAMAK
Deputy: Av. Mehmet Suat BOATÇI

I.SUBJECT OF APPLICATION

1st.The application is related to the claim that the right of access to the court has been violated because of the failure of participation in the trial by not notifying the real estate owner of the case filed against the administration by the third person with the request for cancellation of the development plan for a real estate.

APPLICATION PROCESS

The application was made on 19/8/2015.
The application was submitted to the Commission after preliminary administrative review of the application form and its annexes.

The Commission has decided to conduct a review of the admissibility of the application by the Department.
It was decided by the head of the department that the admissibility and principal examination of the application should be carried out together.
A sample of the application documents has been sent to the Ministry of Justice (Ministry) for information. The ministry has not issued an opinion.
III. EVENTS AND CASES

The events as expressed in the application form and annexes are as follows in summary::
The applicants are the 1/4-share owners of a property subject to share ownership in Maltepe district of Istanbul province.
In the 1/5000 scale construction plan of 4/5/2006 approval and 1/1000 scale construction plan of 26/2/2007 approval, the said immovable is divided into” fuel station area”.
The applicants and their stakeholders, after completing the necessary licensing procedures in terms of zoning legislation, leased the property to a company (tenant company) engaged in petroleum products trading to be operated as a fuel station with the lease agreement signed on 18/12/2007. The lease agreement is set to be valid until 31/12/2023.
Another company which operates gas stations in the same neighborhood (the plaintiff Company) specified by the applicant in relation to the settlement of parcel No. 73 of the zoning plan shareholder poetry and immovable parts of the prompt with the cancellation in terms of area separated as a gas station and Maltepe, Istanbul Metropolitan Municipality (the defendant has been filed in the Administrative Court against the authorities.
Istanbul 1. The tenant company has participated in this case in the Administrative Court (Court) as an intervention in addition to the defendant administrations.
In its decision dated 24/2/2009, the court cancelled the plans for the reconstruction in question. In the reason of the decision, it is stated that it is mandatory for the fuel sales stations to comply with the distance condition, which is desired to be opened and operated by applications made after 19/6/1996 in accordance with the provisions of the legislation regarding fuel stations. Based on a report issued in situ as a result of the discovery and expert review, fuel stations, regardless of distance determined in accordance with the provisions of legislation as regards the conditions of the case subject of the case was established where apparently the subject parcel in terms of zoning plans are expressed in the absence of compliance with the law.
The decision was overturned by the decision of the sixth Office of the Council of State (Department) dated 22/12/2009 on the appeal of the respondent administrations and the intervention. It was determined that the reason for the annulment decision was not in the duration of the lawsuit against the nazim zoning plan. While a decision should be made by the court of First Instance on the basis of this consideration, it is stated that there is no legal hit in the decision subject to the appeal given in the way of cancellation of the plans in question.
The plaintiff has gone on to correct the decision against the company distorting tarnish. In its decision dated 11/9/2013, the department accepted the request for a correction of the decision and upheld the decision of the court of first instance.
After the trial process regarding the zoning plans was finalized in this way, the claimant company applied to the municipality on 26/2/2014 with the request for the cancellation of the licenses of the non-profit enterprises held on behalf of the tenant company on the grounds that it was contrary to the current zoning situation and the suspension of the operation of the fuel station. The claimant company requested cancellation of the implied rejection transaction Istanbul 4. He filed a lawsuit in the Administrative Court. In accordance with the decision of the aforementioned Court dated 7/4/2015 on the cancellation of the implied rejection of the case, the operating license of the tenant company has been revoked.
Sema Calgav, one of the applicants, applied to the Metropolitan Municipality of Istanbul on 29/6/2015 and requested that the court and file basis number information be notified to the side of the case if a lawsuit was filed with the request for cancellation of the zoning plan for his real estate.
Istanbul Metropolitan Municipality in its reply letter dated 22/7/2015 reported to the applicant that the zoning plans for the relocation had been cancelled by judicial decision and therefore the parcel in question had become unplanned but the rescheduling process for the relocation had been started and this process was continuing.
The article in question was communicated to the applicant on 22/7/2015.
Applicants submitted individual applications on 19/8/2015.

IV.RELATED LAW

A.National Law

31 of the Code of Administrative Procedure No. 2577 of 6/1/1982. the relevant part of the article is as follows::
“The provisions of the Code of civil procedure shall be in accordance with the provisions of the law of Civil Procedure in the event of third parties ‘ participation in the case, notification of the case, in cases where there is no provision in this law. However, notification of the case is made by the Council of state, court or judge.”

27 of the Law No. 6100 of 12/1/2011 on the second section of the law on Civil Procedure entitled “The Principles which dominate the proceedings”. “legal right to be heard” is regulated in the article. The article referred to is:
“(1) the parties to the case, the interveners and the other parties of the trial have the right to a legal hearing in connection with their rights.

(2) this right;

a) to be informed about the trial,

B) right of explanation and proof,
c) the court’s consideration of the explanations and the justification of the decisions as concrete and clear,

includes.”

“Notice and conditions” of Law No. 6100 entitled edge 61. paragraph (1) of the article is as follows::
“If one of the parties loses the case, or thinks that the third party will appeal to him, he may report the case to the third party until the investigation is concluded.”

Law No. 6100 entitled “The Situation of the person being notified” edge 63. paragraph (1) of the article is as follows::
“The person who is notified of the case may participate in the case alongside the party who has the legal benefit of winning the case.”

Law No. 6100 entitled “Fer’i intervention” edge 66. its substance is as follows::
“(1) the third party may take part in the case by intervening fer until the end of the investigation, in order to assist the party which has the legal benefit of winning the case.”

Law No. 6100 entitled “Fer’i intervention situation” edge 68. paragraph (1) of the article is as follows::
“If the request for intervention is accepted, the intervention can only follow the case from the point where it is located. The intervener may claim or assert means of Defense for the benefit of the party to which he has participated, and may perform any procedural actions that are not contrary to his actions and statements.”

International Law

European Convention On Human Rights
6 Of The European Convention On Human Rights (Convention). the relevant part of Paragraph (1) of the article is as follows::

“Everyone has the right to ask for his case to be heard by a court which will decide on disputes relating to his civil rights and obligations.…”

Case Law Of The European Court Of Human Rights
European Court of Human Rights (ECHR), 6th ed. although paragraph (1) does not explicitly mention the right of access to the court or judicial authority, it has been concluded that the terms used in the article, taken into account with their context as a whole, also guarantees my right of access to the court (Golder v. United Kingdom, B. No.: 4451/70, 21/2/1975, §§ 28-36). According to the ECHR, the right of access to court is the 6th amendment of the convention. paragraph (1) of the article is mündemic. This inference is not an expansionary interpretation that imposes new obligations on the contracting states 6. it is based on the reading of the first sentence of Paragraph (1) of the article together with the purposes and objectives of the Convention and the general principles of law. As a result, the convention’s 6th. paragraph (1) of the article covers that everyone has the right to bring his claims about civil rights and obligations before the court (Golder v. United Kingdom, § 36).
The ECtHR recognises that the right to access the court, which constitutes an element of a fair trial, is not absolute, and that this right, which by its nature requires the state to regulate, may be limited to a certain extent. However, the ECtHR states that these limitations should not restrict or weaken a person’s access to the court in a way that damages the very essence of the right. According to the ECtHR, limitations which do not have a legitimate purpose or establish a reasonable proportionality relationship between the applied instrument and the intended purpose shall be determined by convention 6. does not comply with the first paragraph of the article (Sefer Yilmaz and Meryem Yilmaz/Turkey, B. No: 611/12, 17/11/2015, § 59; My Wife/Turkey, B. No. 59601/09, 17/9/2013, § 19; Edificaciones March Gallego S.A./ Spain, B. No. 28028/95, 19/2/1998, § 34).
According to the ECtHR, there is no law preventing access to the means of application in domestic law 6. it may not always be sufficient for the fulfillment of the requirements in Paragraph (1) of the article. Considering the function of the rule of law in democratic society, it is understood that the degree of access provided by the legislator should also be sufficient to secure the “right of court”of individuals. In order for the right of access to be effective, the individual must have clear and practical opportunities to articulate his arguments against action and action that constitutes interference with his right (Bellet v. France, B. No. 23805/94, 4/12/1995, § 36).
Menemen Chamber of Minibuskers-Turkey (B. No: 44088/04, 9/12/2008, §§ 4-11) in the case of the blackout, a regulatory action was taken by the governor to provide temporary route authorization certificate provided that certain categories of vehicles are insured. The menemen Menemen Minibusers ‘ chamber is directly involved in this regulatory process, which operates on the Menemen-Izmir line. The Administrative Court has cancelled the regulatory action after a lawsuit filed against the governor’s office by the Menemen passenger buses motor vehicles Cooperative against the regulatory action in question. The governor’s office has appealed the decision. The Menemen Chamber of Minibusers has filed an intervention petition during the appeal phase. On 16/3/2004, the Council of state upheld the decision of the court of first instance shortly after accepting the applicant’s request for intervention. On 7/5/2004, the governorship issued a new regulatory action allowing the applicant’s vehicles, but this action was cancelled by the Administrative Court on 11/1/2005. On 23/5/2005, the applicant was notified to cease the transport activities.
The ECtHR referred to the law No. 2577 on Civil Procedure in relation to the procedure for the notification of the case 31. he pointed out that the article specifically stipulates that the notification of the case to third parties whose interests are affected by the dispute in question is to be “resen” by the court (Menemen Chamber of minibus players v. Turkey, § 25). The ECtHR stressed that despite the explicit wording of the article, the court did not inform the applicant of the dispute. According to the ECtHR, as a result, the applicant was deprived of the opportunity to be heard due to his inability to attend the trial at the first-degree stage – in the first case. Because the reasons for appeal were subject to the limited number rule, the applicant could not put forward his objections to the merits in the Council of state. In relation to the second case, the law No. 2577 was amended by law No. 31. the applicant has been completely out of touch with the dispute due to non-compliance with the clause. The applicant did not have the opportunity to make my claims in the Council of State, even if limited, because the governor’s office as the principal party did not appeal the decision (Menemen Chamber of minibus players/Turkey, § 26).
In this context, the ECtHR considers the application and the National Courts Act No. 2577, 31. it concluded that failure to perform the requirements in the article prevented the applicant from being heard in relation to the dispute directly affecting his rights and obligations and that the applicant’s right to access the court was violated (Menemen Chamber of minibus players/Turkey, § § 27,28),
V.REVIEW AND JUSTIFICATION

At the meeting of the court held on 24/5/2018, the application was examined and considered necessary:
A.Applicants ‘ Claims

The applicants complain that they lack the opportunity to present evidence and prove their claims at the trial stage because the court did not inform them of the case, even though the annulment provision given in the case on the basis of the individual application results directly against them. The applicants are informed about the case in question by writing sent in response to their application to the municipality upon hearing that the zoning plan for the property they own has been cancelled. The applicants, who stated that both the value of their real estate has fallen due to the cancellation of the zoning plan and that they lack the rental income they provide, complain that they cannot express these claims to protect their legal interests due to their lack of participation in the case; Article 36 of the Constitution. it asserts that the rights to a fair trial secured in the article have been violated.

B.Evaluation

The 36th edition of the Constitution entitled “freedom to seek rights” edge. the first paragraph of the article is as follows::
“Everyone has the right to a fair trial by claiming and defending as a plaintiff or defendant before the judicial authorities by making use of legitimate means and Means.”

The Constitutional Court is not bound by the legal characterisation of events made by the applicant, but appreciates the legal advice of events and facts (Tahir Canan, B. No: 2012/969, 18/9/2013, § 16). The essence of the applicants ‘ complaints is that they have not been allowed to participate in the trial in order to effectively exercise the right of defence that must be granted to them in an administrative case in which they are directly affected by the outcome. Therefore, claims of infringement in the context of the applicants ‘ stated complaints are examined under the right to access court.
In Terms Of Acceptability
In the concrete case, the decision on the individual application was finalized on 11/9/2013 and the individual application was made on 19/8/2015. The applicants claim that they have made an individual application within the period from this date when the reply letter regarding the application made to the municipality for the purpose of obtaining information was notified on 22/7/2015.
At this point, it is necessary to remind that the applicants are not informed of the case in question, which they claim affects their interests as a result of the violation allegations in this individual application. On the other hand, in the concrete case, it is observed that the tenant company continues to operate the fuel station after the construction plans have been cancelled by the judicial decision, due to the fact that the operating license of the tenant company has not yet been revoked and that a new development plan regarding the relocation has not yet been made as of 22/7/2015, In other words, it is understood that the material and legal consequences of the case, which would allow the applicants to be informed of the trial in question, have not been revealed for some time.
Accordingly, in the special circumstances of the material event, no concrete findings were found within the scope of the file, which would justify the acceptance that the violation was learned before 22/7/2015, which is the date on which the relevant article of the municipality was notified, or which would require the conviction that the applicants did not fulfill their duty of care in this respect. In this respect, it has been accepted that the application was made within thirty days of the date 22/7/2015 when the breach was learned.
On the other hand, it must be decided that the application for violation of the right of access to the court, which is not clearly lacking in basis and which has no other reason to be ruled inadmissible, is acceptable.
Main Aspect
a.Scope of right and half of intervention

36 of the Constitution. in the first paragraph of the article, it is stated that everyone has the right to claim and defend as a plaintiff or defendant before the judicial authorities. Hence the right to access the court is the 36th amendment of the Constitution. the German rights guaranteed in the article are an element of freedom to seek. On the other hand, 36 of the Constitution. the reason for adding the phrase “fair trial” to the article is that the right to a fair trial guaranteed by the international conventions to which Turkey is a party is included in the article (Özbakım Özel Hiz. Inş. Type. Chance. and Tic. Co. Ltd., B. No: 2014/13156, 20/4/2017, § 34).
36 of the Constitution. in addition to being a fundamental right, the German freedom to seek rights guaranteed in its article is one of the most effective safeguards that ensure the proper enjoyment and protection of other fundamental rights and freedoms. In this respect, in order for the case to be seen by a court and for the person to benefit from the guarantees covered by the right to a fair trial, the person must first be given the opportunity to present his claims. In other words, if there is no case, it is not possible to take advantage of the guarantees provided by the right to a fair trial (Mohammed Aynosah, B. No: 2013/8896, 23/2/2016, § 33).
The Constitutional Court has stated that the right of access to the court means the right to move a dispute before the court and to request that the dispute be decided effectively (Özkan Şen, B. No: 2012/791, 7/11/2013, § 52).
In addition to being able to sue individuals for actions that affect their interests, providing them with the opportunity to participate in a case opened by third parties in order to voice their claims and defenses in a case that they are not directly parties to but which ultimately affects their interests is one of the safeguards that must be considered within the scope of In this respect, the people whose interests will be affected by the outcome of a case should be able to have information about this trial, to be able to explain the results and the issues they think are effective for the settlement of the dispute, and to present evidence to prove their claims. This is also related to the principle of equality of arms and contradictory trial, as it will enable judicial authorities to make reasoned decisions after taking all data into account and making an assessment. As a matter of fact, the law No. 6100 was passed on 27. in the article, an arrangement of a nature consistent with the guarantees of the right of access to the court has been introduced and states that the parties of the case, as well as the interveners and other interested parties of the trial, have the right to a legal hearing in connection with their rights. Therefore, the court shall not be able to evaluate the merits of the case without giving the parties, the participants and the other persons of the trial the opportunity to exercise the right of Defense (Yusuf Bilin, B. No: 2014/14498, 26/12/2017, § 44; see for similar assessments. Mehmet Ali Badr and Tevfik Günay, B. No: 2013/4073, 21/1/2016, § 35).
Failure to participate in a case by not being informed of a case that affects the individual’s interests as a result and deprived of the opportunity to present their arguments before the court constitutes an interference with the right of access to the court.
In the case of the individual application, there is an administrative case in which the development plans for the real estate owned by the applicants are subject to dispute. In this lawsuit filed by a company, the cancellation of parts of the construction plans regarding the separation of the real estate as a fuel station area was requested. As a result of the trial, the zoning plans in question were cancelled. As a matter of fact, it is seen that the cancellation provision shows the effect and results on the applicants directly and that the real estate, which the applicants have a share ownership in accordance with the mentioned decision, has been removed from being a fuel station area in the zoning plan and is included in the rescheduling process. In this respect, it was concluded that there was an interference with the right of access to the court due to the failure of the applicants to participate in the Proceedings of an administrative case in which they were directly affected by the outcome.

b.Whether The Intervention Constituted A Violation

13 of the Constitution. the relevant part of the article is as follows::
“Fundamental rights and freedoms, … can only be limited by law, depending on the reasons set forth in the relevant articles of the Constitution. These limitations cannot be contrary to the principle of moderation.”

The above-mentioned intervention is the 13th amendment of the Constitution. 36 of the Constitution if it does not comply with the conditions specified in Article. it would constitute a violation of the clause.
For this reason, the intervention of the constitution 13. it is necessary to determine whether it is appropriate to the conditions stipulated in the article and which are in accordance with the concrete application, to be foreseen by the law, to be based on a justified reason and not to be contrary to the principle of dimensionality.
i.Lawfulness

31 of Law No. 2577. it is stated in the article that the notification of the case will be made official by the court. It is understood that this regulation also includes the discretion granted to the judicial authority on whether or not the case should be reported to the third party. In the concrete case, it is observed that the applicants cannot participate in the trial process as the courts of degrees use their discretion to ensure that the case is not reported to the applicants. The application of the court in question was made in accordance with the law No. 2577 No. 31. considering that it is based on the article, it is concluded that there is a legal basis for interference with the applicants ‘ right to access the court.
ii.Legitimate Purpose

36 of the Constitution. although the article does not specify a reason for limitation of freedom to seek rights, it cannot be said that this is an absolute right that cannot be restricted in any way. It is also accepted that the rights which have not been specifically restricted have some limits due to the nature of the right. In addition, although there is no reason for limitation in the article regulating the right, it may be possible to limit these rights based on the rules contained in other articles of the Constitution. It is clear that some regulation on the scope of the right to sue and the conditions of use are rules that set out the limits arising from the nature of the freedom to seek rights and set out the norm area of the right. These limitations, however, are the 13th amendment of the Constitution. it cannot be contrary to the guarantees contained in the article (AYM, E.2015/96, K.2016/9, 10/2/2016, § 10; Ertuğrul Dalbaş, B. No: 2014/7805, 25/10/2017, § 58; Osman Uslu, B. No: 2014/9414, 26/10/2017, § 75).
The notification of the case is a procedural law institution which ensures that the individual is informed of a case which is not his party but which, as a result, affects his interests in order to allow him to exercise his rights through intervention and other means. However, in order to ensure that the proceedings are carried out within a reasonable period of time, in an orderly manner and without unnecessary expense, and thus to realize the principle of procedural economics, the notification of the case is bound to certain conditions and rules of procedure. Proceedings in the determination of the observance of procedural economy, therefore, the administration of justice by providing better 2 of the Constitution of the realization of the public interest. it is one of the requirements of the rule of law. Therefore, it is possible to link the reporting of the case to certain conditions and rules of procedure by considering the principles of procedural economics and good Justice Management (Yusuf Bilin, § 54).
However, it should not be overlooked that it is a requirement of the right of access to the court that third parties may voice their claims and defenses in a case that, as a result, affects the interests of individuals. In such a case, public authorities would be expected to strike a reasonable balance between the public interest in the procedural economy and the individual benefit of individuals to enjoy the right of access to court. Where the individual’s individual benefit in access to the court is clearly dominant, the fact that restricting access to the court on the grounds of procedural economics may prove to be a legitimate goal may become controversial. In other words, 2 of the Constitution in such cases. it may not be possible to say that the clause allows the limitation of the right to access the court (Yusuf Bilin, § 55).
In the concrete case, considering that the cancellation of the development plans for the property they own directly affects the interest of the applicants, there is serious doubt that the public interest in providing procedural economy is of importance and weight to ignore the individual benefits of the applicants ‘ participation in the case in the intervention to the right of access to court by not notifying the Therefore, it was considered that it would be more appropriate to consider the existence of legitimate purpose together with the measurement of intervention below.
iii. Moderation

(1) General Principles

The principle of moderation consists of three sub-principles: “appropriateness”, “necessity” and “proportionality”. “Availability” is prescribed to achieve the desired goal of the intervention to be convenient in, “of necessity” in terms of the desired objective, i.e., mandatory intervention the intervention achieve the same purpose with a lighter not being able to “proportionality” if the rights of the individual with the observance of a reasonable balance between the necessity of intervention refers to the desired objective (Mehmet Akdoğan and others, B. No: 2013/817, 19/12/2013, § 38).
Proportionality, the third sub-principle of moderation, requires a fair balance between the protection of the public good and the rights and freedoms of the individual. In the event that the prescribed measure puts the individual under an extraordinary and excessive burden, it cannot be said that the intervention is proportionate and therefore measured. In this respect, it is necessary to determine whether an excessive and disproportionate burden has been placed on the applicants by the measure applied.
The Constitutional Court stated that the limitations that prevent the person from applying to the court or render the court’s decision meaningless, in other words, significantly neutralize the court’s decision, may violate my right to access the court (Özkan Şen, § 52).
The provision of certain conditions and rules of procedure for third parties to participate in a case affecting their own interests does not constitute a violation of the right to access the court unless these conditions and rules make it impossible or extremely difficult to participate in the case. However, as a result of the improper application of these conditions and rules by the judicial authority in a clear violation of the law, preventing people who wish to protect their interests in disputes affecting them from participating in the case may violate their right to access the court. For this reason, courts should refrain from attitudes, interpretations and assessments that would damage the fairness of the proceedings when examining whether these conditions have been met and applying procedural rules (Yusuf Bilin, § 51).
31 of Law No. 2577. the article stated that the law of Civil Procedure would be applied in the matters of participation of third parties in the case and notification of the case, but it was stipulated that the notification of the case would be made official by the court. 66 of Law No. 6100. in this article, the third person’s legal benefit in winning the case with the party and in order to assist him in the case until the end of the investigation is connected to the rule that he can take part in the case as an intervention., It is important to ensure the effective participation of third parties, not only in form but also in cases where the procedures and actions of the administration are taken in the administrative jurisdiction where the legal compliance audit is performed, in order to ensure the assurance of the right to a fair trial. The most important result of the exercise of this right in terms of procedural law is that it is necessary to inform third parties who have legal means to participate in the case because their interests will be directly or indirectly affected by the decision to be made in the case (Yusuf Bilin, § 59).
At this point, the 31st amendment of Law No. 2577. it should be noted that the regulation stated in the article, which stipulates that the notification of the case shall be made by the court, cannot be construed as requiring the administrative judicial authority to inform all persons concerned about an administrative case that is being handled by the administrative judicial authority. Therefore, the courts of degrees have the discretion to operate the procedural provisions relating to the notice institution, which are brought to third parties who may be affected by the outcome of the case in order to present their arguments before the court in connection with their rights. In this context, it is essentially the duty of the courts of degrees to assess whether the third person will be affected by the outcome of the case in the special circumstances of each concrete event and whether I have the legal benefit of participating in the case. It will not be the duty of the Constitutional Court to monitor the discretion of the court of degrees in the operation of the notice institution unless there is a finding that an approach has been taken to prejudice the fairness of the proceedings by depriving the applicant of the opportunity to present his arguments on a dispute which is very clear that the exercise of this discretion
(2) Application Of Principles To The Event

The basis for the individual application is very clear at first glance that the applicants will be directly affected by the outcome of the stated case, and that they have legal benefits in participating in the case in this respect, considering the subject matter of the case and the nature of the dispute.
In this case, it is clear that the applicants have a number of interests that intersect and overlap with the tenant company (intervening) involved in the case alongside the defendant administrations and the defendant administrations. In this context, it is seen that there is not any element of illegality that would require the cancellation of the zoning plans being sued, and some issues that may be suggested by the applicants have already been expressed by the defendant administrations and the intervention during the trial process. However, it is also foreseeable that the applicants may make additional claims which can only be put forward by them in relation to the dispute in question, especially since they have the title of owner of the property subject to dispute. As a matter of fact, the claims that the applicants put forward in the individual application form, especially in the context of property rights, and stated that they should be considered by the courts of degrees (see article). § 35) it is understood that it was not brought forward by the defendant administrations and the intervening in the trial process. In this respect, it cannot be said that the courts of degrees have reached a conclusion by evaluating the allegations in the trial process. Therefore, if the applicants had participated in the case, it should not be discredited that they were involved in different claims that would require additional assessments/reviews to be made in the evaluation of the court of degrees decision.
Accordingly, in the concrete case, it is understood that the applicants were unable to participate in the proceedings concerning their real estate due to not informing them of the case, were completely out of touch with the dispute, did not have the opportunity to express their views on the merits of the dispute and to present evidence to prove their claims. On the other hand, it was determined that the individual benefit of informing the applicants of the case directly affecting my rights is dominant in relation to the public benefit of observing the procedural economy and that the failure to notify the case seriously damages the balance between the public interest and the individual benefit against the applicants.
In this case, the courts of degrees Act No. 2577, 31. it was concluded that the lack of the opportunity to present their arguments before the court due to the failure to comply with the procedural provisions of the notice of the case in the article was an excessive and disproportionate burden on the applicants, and therefore the interference with the access rights of the applicants to the court was immeasurable.
Applicants on the grounds described in Article 36 of the Constitution. it must be decided that the German right of access to the court, which is guaranteed in the article, has been violated.
Article 50 Of Law 6216. In Terms Of Substance
Article 50 of the law No. 6216 of 30/3/2011 on the establishment and Proceedings of the Constitutional Court. paragraphs (1) and (2) of the article are as follows::
“(1) at the end of the principal examination, it is decided that the applicant’s right has been violated or not. In the event of a violation decision, it shall be decided what must be done to eliminate the violation and its consequences.…

(2) if the detected violation is caused by a court order, the file shall be sent to the relevant court for a retrial to eliminate the violation and my consequences. In cases where there is no legal benefit in the retrial, compensation may be ruled in favor of the applicant or a lawsuit may be filed in general courts. The court obliged to hold a retrial shall, if possible, decide via file, in order to eliminate the violation and the consequences announced by the Constitutional Court in the violation decision.”

The applicants requested that the violation be determined and a retrial be decided.
In The Application, 36 Of The Constitution. it concluded that the right to access the court under the right to a fair trial guaranteed in the article had been violated.
Istanbul 1.as there is legal benefit in bringing a retrial in order to eliminate the consequences of the violation of the right to access the court, an example of the violation decision is to be retried. It must be decided to be sent to the Administrative Court.
A total of 2,206,90 TL trial expenses consisting of 226.90 TL fees and 1,980 TL power of attorney fees determined from the documents in the file must be decided to be paid jointly to the applicants.
VI.PROVISION

Grounds described;

A.That the claim that the right to access the court has been violated is admissible,

B.36 of the Constitution. the right to access the court under the right to a fair trial guaranteed in the article,

C.Istanbul 1 for a retrial to eliminate the consequences of a violation of the right of access to the court of an instance of the decision. To The Administrative Court (E.2007/1256, K.2009/243) references,

D.To be paid jointly to the head hitters for a total of TL 2,206,90 trial expenses consisting of TL 226.90 fees and TL 1,980 proxy fees,

E.The payment shall be made within four months from the date of application to the Ministry of Finance by the applicants following the notification of the decision, and in case of delay in payment, the legal interest shall be applied for the period from the date of expiry of this period until the date of payment.,

F.A unanimous decision was made on 24/5/2018 to send a sample of the decision to the Ministry of Justice.