19 Apr Turning The Real Estate Into a Forest
T.C.
Supreme
5. Legal Department
Principal No: 2014/16093
Decision No: 2014/31779
K. Date: 25.12.2014
At the end of the trial due to the collection of the real estate price confiscated without expropriation between the parties: the above-mentioned days and numbers of the rejection of the case written judgment by the Court of Cassation to be examined, the petition given by the attorney of the plaintiff requested, the documents in the file read and after the dispute is understood:
– K A R A R –
The case is related to the request for collection of the amount of real estate confiscated without expropriation.
The court decided to dismiss the case and the sentence was appealed by the plaintiff’s attorney.
The right to property is one of the fundamental rights adopted both in terms of the Constitution and laws and in terms of domestic law, as well as by the European Convention on Human Rights and its additional protocols.(Constitution Md. 35/1, ECHR Annex Prot.1-1) 683 Of The Turkish Civil Code.in this article, it is stated that the person who owns something has the authority to use, exploit and make savings on that thing as he wishes within the limits of the legal order, and that the owner can sue for rations against the person who holds his property unfairly, as well as to prevent any wrongdoing.
The right to property can only be restricted or abolished in cases of public interest.
However, while this limitation or removal is being carried out; T.C. 90/5 of its constitution.as stated in the decision No. 1262/02 of 30.05.2006 established by the ECHR in accordance with the provisions of the ECHR which are considered above the domestic law with the article; ” … a measure which deprives a person of his property””, ” should have a legitimate purpose in the public interest….“in taking this measure,it is clear that”…there must be a reasonable proportionality relationship between the paths referenced and the intended goal to be achieved…“, that the necessary balance cannot be established if the person is”…forced to carry personal and excessive burdens…”.
In other words, it is essential to establish a reasonable, acceptable, balance of rights and justice between the public interest and the right of the person who is partially or completely deprived of the right to property.
In the meantime, one of the issues to focus on is the determination of the nature of the title deed to the place that is connected to the land registry and thus the right of ownership is created on behalf of the person.
There is no doubt that the right of ownership granted by the state and provided by the title deed based on the current record will be valued.Although the basic character of such a place, namely the nature of being public property, does not change, it is certain that the right of the person based on the title deed in question will have to be protected as stated above.
The contrary way of thinking, asserting the invalidity of the title deed granted by the state will not be incompatible with the right to property based on the current record, nor will it be an attitude that damages the respectability of the state.”
In the concrete case, a portion of the real estate subject to litigation was made into a forest by afforestation by the defendant administration, thus eliminating the possibility of ownership and savings of the owner.
In March September 22, 2009, Cetiner and Yücetürk-Turkey agreed in their decision no 24620/04 and no 2150/05 of March 23, 2010 that there was an intervention to the owner’s right to use the property, together with the qualification of a real estate as public forest land, and that this qualification had an effect that significantly reduced the saving Quorum of the
Rejection of the claim for compensation on the grounds that the real estate, which is owned by the claimant by title deed, has been turned into a forest and the right to benefit and save the real estate is restricted, prior to the real estate being a forest, is the reason for the rejection of the claim, Annex 1 of Protocol 1.article 6 of the ECHR.contrary to Article.
In this respect,52.390.00 M2 portion of the real estate has been made forest forest by the administration through afforestation work, taking into account the impairment caused by the pipeline passing through the real estate and determining the value of the defendant should be decided to collect from the administration, without considering the written reason to dismiss the case,
It wasn’t seen right.
The plaintiff’s attorney’s appeals are in place for the reasons described in the provision H.U.M.K.nun 428. on 25.12.2014, it was unanimously decided that the appeal fee received in advance should be returned upon request and that the appeal fee should be registered to the Treasury.
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