The right to property is in a dynamic that is shaped by both the state's authority to intervene and the individual's desire to use this right unlimitedly throughout historical, philosophical and political processes. In modern times, the right to property is accepted as a fundamental human right both nationally and internationally and is protected accordingly.
In the Constitution of the Republic of Turkey, the right to property is established by Article 35. According to the said article, every individual has property and inheritance rights; However, these rights can be restricted by legal restrictions, taking into account the general interest of society. This article of the Constitution also sets forth a criterion such as: "The exercise of the property right cannot be contrary to the public interest."
On the other hand, in the international arena, the European Convention on Human Rights is an important source on the right to property and has determined the protection and limitations of this right with the First Additional Protocol. According to this protocol, it is essential to respect the property of each individual. However, it is possible for individuals to be deprived of their goods and property, provided that it is in the public interest and in accordance with international law.
The right to property is a right protected in both national and international law, and the restriction or suspension of this right must be carried out within the framework specified in the Constitution of the Republic of Turkey. Real estate law experts should know these limitations and interventions in detail and act accordingly.
Constitutional Limitations of Fundamental Rights and Human Rights Perspective
In the 20th century, human rights began to be accepted as part of natural law. According to the understanding of natural law, these rights are unchangeable, inalienable and indestructible. These rights provide direction to the state and are its reason for existence.
Magna Carta Libertatum, which emerged in 1215, is known as the first written document on human rights in history and basically emphasizes the security of individuals' property and life. Another significant milestone witnessed in the evolution of human rights is the United Nations Universal Declaration of Human Rights. However, since this document is only a declaration, it is not binding.
In modern times, the European Convention on Human Rights is of critical importance in this field. This document, accepted with the approval of 12 states, has the nature of a contract. Differently, the implementation of this agreement is supervised by the European Court of Human Rights and the decisions of this court are binding on the parties. Turkey signed this agreement in 1954 and the effects of this agreement can be seen in our Constitutions of both 1961 and 1982.
Evolution of the Right to Property and Its Protection from a Constitutional Perspective
When we examine the approach to the right to property in the Constitutions of the Republic of Turkey, we see that the position of this right changes over time. While the right to property was handled within the scope of 'Social and Economic Rights and Duties' in the 1962 Constitution, it was regulated under 'Rights and Duties of the Person' in the 1982 Constitution. This change creates a significant difference in limiting the right. According to Jellinek's analysis, the rights regulated under 'Social and Economic Rights and Duties' are "positive status rights" that require the state to take proactive action; The rights under 'Rights and Duties of the Person' are "negative status rights" that impose an obligation on the state not to intervene. In this context, we can conclude that the right to property, which was accepted as a social right in the 1962 Constitution, was included among the fundamental rights with the 1982 Constitution and was provided with stronger protection.
The 1982 Constitution contains some important emphasis on fundamental rights. In particular, Article 2 states that the Republic of Turkey is a state of law that 'respects human rights'. Moreover, in the section of the Constitution regarding fundamental rights and duties, Article 12 emphasizes that fundamental rights and freedoms are inviolable, inalienable and indispensable.
Whether a right has a constitutional guarantee is of critical importance in terms of the degree of protection of that right. A right protected by the Constitution is protected against both legislative and executive bodies. The protection provided by law is only against the executive. Constitutionally protected rights are therefore considered fundamental rights. Therefore, the right to property is a fundamental right that is under constitutional protection and is protected against both legislative and executive bodies.
While examining the evolution of fundamental rights and freedoms within the framework of Turkish Constitutional law, we see that these rights have an important place in every Constitution. In particular, the 1982 Constitution's extensive coverage of fundamental rights and freedoms emphasizes the social and legal value of these rights. These rights, which are the cornerstones of a democratic society, determine the freedom of individuals and the boundaries of the state.
Article 13 of the Constitution provides a general framework for the limitation of fundamental rights and freedoms. According to this article, fundamental rights can be limited by law only by the provisions of the Constitution itself, leaving their essence intact. However, these restrictions must be in accordance with the basic principles and values of the Constitution, the democratic social order, the requirements of the secular Republic and the principle of proportionality. This provision protects the freedoms of individuals by preventing arbitrary intervention by the state.
With the constitutional amendment made in 2001, an important reform was made regarding Article 13. Before this amendment, fundamental rights such as the right to property could be limited on general limitation grounds. However, this situation has been criticized with concerns that it may lead to arbitrary and comprehensive restrictions on rights. With the amendment in 2001, general restriction grounds were abolished and a structure was established in which rights could only be restricted for special limitation grounds. This has enabled the freer and more protected exercise of fundamental rights, especially the right to property.
The evolution and protection of fundamental rights and freedoms are at the center of Turkish Constitutional law. Developments in the protection of these rights show the steps taken to increase the freedoms of individuals and to define the borders of the state more clearly.
Article 16 of the Constitution specifically addresses the limitation of fundamental rights and freedoms for foreigners. According to this article, two basic conditions are required when limiting the fundamental rights and freedoms of foreigners: limitation by law and compliance with international law. This provision ensures that foreigners are not subjected to arbitrary and discriminatory treatment regarding their rights in Turkey.
On the other hand, Article 15 of the Constitution deals with the suspension of fundamental rights and freedoms in extraordinary situations, especially in cases such as war and mobilization. This article establishes some specific conditions for the suspension of rights: the existence of an emergency situation, compliance with obligations arising from international law, the principle of proportionality and the non-suspension of certain 'hard core rights'. In case these conditions exist, the state may have the authority to partially or completely suspend the fundamental rights and freedoms of individuals.
However, when it comes to the exercise of this power, the Constitution does not distinguish between citizens and foreigners. In other words, when a decision is made to suspend fundamental rights and freedoms in an emergency situation, this decision affects all individuals equally, regardless of whether they are citizens or foreigners.
The Constitution regulates the protection and limitation of fundamental rights and freedoms, aiming at the balanced protection of individual freedoms and the general interests of the state. Within this framework, certain conditions and restrictions have been introduced to prevent arbitrary interventions on individuals' rights even in extraordinary situations.
Article 15 of the Constitution determines how fundamental rights and freedoms can be limited in cases of war, mobilization or emergency, and which rights are inviolable in these cases. The concept of 'hard core rights' mentioned in the 2nd paragraph of this article refers to the most unique and inviolable of the fundamental rights and freedoms.
The rights in question aim to limit any interference by the state in these rights, even under extraordinary circumstances. These rights are:
1. Right to life: The protection of a person's life and not taking it arbitrarily by the state.
2. Integrity of material and spiritual existence: Protection of personal immunity and dignity.
3. Not being forced to reveal one's religion, conscience, thoughts and opinions: Freedom to express personal beliefs and thoughts and not being punished for this expression.
4. Crimes and penalties cannot be applied retroactively: Punishment should be given according to the laws in force when the crime was committed, and a new law should not impose a provision that would constitute a crime or aggravate the penalty retroactively.
5. Presumption of innocence: A person is considered innocent until his guilt is determined by a final court decision.
Since the right to property is not among these 'hard core rights', it can be limited or suspended under extraordinary circumstances. However, such a limitation or suspension must be carried out within the framework of other principles and conditions determined by the Constitution. Particularly the 'principle of proportionality' is very important in such cases, and the intervention in property rights must serve a lawful, legitimate purpose and the least harmful way must be chosen to achieve this purpose.
The right to property is a right that ensures that individuals do not touch the material and moral values they own or may own and that they have the authority to dispose of these values. Evaluating the place and importance of the right to property in the context of human rights brings about different approaches and discussions in different branches of law.
1. Characterization of the Right to Property as a Human Right
While the right to property represents an innate right according to some views, it appears as a requirement of a social contract and a product of law according to others. From this perspective, the argument that not every human being has the inherent right to own property also comes to the fore. However, the right to property is considered a fundamental human right in the context of protecting the freedom, personality and standard of living of the individual.
2. Protection of Property Rights at International and National Levels
One of the most important tools for protecting the right to property in the international arena is the European Convention on Human Rights. The Convention allows for broad interpretations that the right to property covers not only tangible assets but also intangible values and legitimate expectations.
3. The Role of the European Court of Human Rights
When evaluating claims of violation of property rights, the European Court of Human Rights interprets the provisions of the contract independently and autonomously from national law. This leads to an expansion of the scope of property rights.
4. Broad Scope of Property Rights
Property rights include not only tangible assets but also intangible values such as intellectual property, legitimate expectations, business relationships and the customer environment. This broad scope protects various activities of individuals in their social and economic lives.
The right to property protects the material and moral values of individuals at both national and international levels. Determining the scope and limits of this right is of critical importance in terms of both protecting the freedoms of individuals and ensuring the sustainability of the social order.
The European Court of Human Rights recognizes that states have both positive and negative obligations to protect property rights. In case of interference with the property rights of private persons, the state must ensure fair trial and provide effective legal remedies for the protection of the right, as required by positive obligation. This is the conclusion reached by the Court under Article 1 of the European Convention on Human Rights. In this article, among other things;
“The High Contracting Parties shall ensure that everyone within their jurisdiction enjoys the rights and freedoms set forth in Part I of the present Convention.” (European Convention on Human Rights, Article 1).
Moreover, it is not enough to just give people rights; since it is a requirement of social law and being a state, measures must also be taken to ensure that people benefit from these rights. Another source of positive obligation before the European Court of Human Rights is the social principle of the rule of law.
Although the European Court of Human Rights accepts the existence of positive obligation, it also accepts that states have discretion over the content of the obligation. In this context, States Parties have the authority and obligation to regulate what remedies or measures will be taken to protect the right. However, the European Court of Human Rights also states the limits of these measures in its decisions. For example, it is the duty of the State party to regulate the legal standard for the protection of a right. Ensuring that this legal norm is announced to the public is also a positive obligation for the State party. However, how the promotion will be provided is at the discretion of the State Party.
Another issue that the European Court of Human Rights takes into consideration when determining the limits of positive obligation is the resources of the state. In this context, it is accepted that States Parties have positive obligations regarding their resources. For example, if the State party has a positive obligation to provide housing to meet people's housing needs, this obligation can be expected from the State party in proportion to its economic resources.
It is clear from the jurisprudence of the European Court of Human Rights that the state has a wide discretion in the implementation of social and economic policies in the field of property rights. In this sense, discretionary power is used especially in the field of taxation. The European Court of Human Rights recognizes the state's discretion in the field of taxation, as long as there are no legal violations such as unfair, arbitrary, disproportionate or discriminatory intervention. Therefore, it evaluates legality according to criteria such as 'legal basis', 'legitimate purpose', 'fair compensation' and 'proportionality'; It accepts the intervention that meets these criteria at its discretion.
In terms of Turkish law, the definition of property right is not clearly stated in the legislation. It is said that the reason why there is no clear definition in the doctrine is to prevent the gap that would be created by the incomplete definition and the grievances that may arise from this gap. At the same time, property rights are constantly evolving and changing. For these reasons, defining property rights becomes difficult.
It is clearly seen from Article 35 of our Constitution that a mixed understanding of property is accepted in our Constitution instead of the classical (liberal) and Marxist understanding of property rights. In short, according to the classical (liberal) understanding of property, property is a natural right that exists before the state and is unlimited. According to the Marxist understanding, unlike the liberal understanding, it is essential to limit private property. The approach adopted in our Constitution is a mixed ownership approach, and the right to property is neither completely unlimited nor completely limited. However, the scope of the property right can only be determined by taking into account all provisions of public law and private law.
In the 1966 Constitutional Court decision, the right to property was defined as follows;
“It refers to the authority of a person to use something as he wishes, to benefit from its products, to dispose of it (transferring it to someone else, changing its shape, consuming, or even destroying it), provided that it does not harm someone else's rights and complies with the restrictions set by the law.
One of the definitions of the right to property in the doctrine is as follows;
“It is a concept that gives its owner the ability to control material and spiritual things in the broadest sense, includes rights and authorities as well as duties, is recognized and protected by legal systems by being included in human rights documents and constitutions, and is constantly affected by many changes. It is a fundamental right that changes and develops with political, social, legal and moral factors.
Although the Constitutional Court initially limited the scope of property law to movable and immovable properties in accordance with the classical understanding of property, today, in accordance with international law, it also considers the values and receivables of intangible assets with economic value within the scope of property.
Based on this, it can be stated that, according to the Constitutional Court, the object of the property right is 'the thing owned'.
Suspension of Property Rights
Restriction and suspension of fundamental rights differ both conceptually and temporally. In case of restriction, the use of the fundamental right is limited and there is no specific temporal condition for the restriction. In order for a fundamental right to be suspended, an exceptional period must pass and the possibilities of the fundamental right must be frozen and the use of the right must be completely stopped. Moreover, suspension can only be applied temporarily during exceptional periods. In short, restriction means limiting the use of the right, and suspension means temporarily stopping the use of the right.
There are two fundamental principles of fundamental rights that are recognized worldwide. According to these principles, the right to property is neither a completely unlimited right nor a right that can be completely eliminated. In this context, it can be said that the use of property rights can be stopped in emergency situations, but the person's property right is not completely eliminated. In terms of Turkish law, Constitution Art. Article 15 states that it is possible to suspend the use of property rights during the state of emergency.
The conditions required in Article 15 for the suspension of the use of property rights are as follows:
1. Existence of War, Mobilization or State of Emergency
2. Non-Violation of Obligations Under International Law
3. Moderation
Since the right to property is not one of the 'hard core' rights listed in Article 15/2 of the Constitution, there is no obstacle to stopping its use, as explained above.
1. Status of Property Rights in Cases of War, Mobilization or State of Emergency
When we consider the concept of war, there is no consensus on this concept in doctrine and jurisprudence. However, it is possible to define the concept of war as "an armed conflict between states of a certain density or gaining superiority over others by using armed force."
Turkish Language Association defines mobilization as "all of the preparations and measures that make a country's armed forces ready for war and put the country's economy and management in a position to comply with the requirements of war."
Although there is no doctrinal consensus on the concept of state of emergency, an approximate definition can be given. A state of emergency is a temporary method of government that essentially occurs when the state cannot handle it with its normal policies.
In case of a state of emergency, the powers of the state may be expanded, fundamental rights may be partially or completely restricted or suspended, and the state may impose additional duties on citizens to return the process to normal.
In 2017, important changes were made to our Constitution regarding the state of emergency. According to these changes, the authority to declare a state of emergency belongs to the President. This declaration is submitted to the Turkish Grand National Assembly for approval on the same day, and the Turkish Grand National Assembly has the authority to lift the state of emergency, shorten or extend its duration.
Partial or complete suspension of the implementation of fundamental rights during the state of emergency can be done by Presidential decree during the state of emergency. The President has the authority to issue presidential decrees on matters required by the state of emergency. These decrees have the force of law and are published in the Official Gazette and submitted to the Turkish Grand National Assembly for approval on the same day. Presidential decrees have two limits. These; It makes regulations on matters required by Article 15 of the Constitution and the extraordinary period.
In addition, in terms of legal legitimacy, it must be accepted that the Presidential decrees issued during the extraordinary period will be automatically repealed at the end of this period.
Although there are various opinions and decisions regarding the review of Presidential decrees issued during the extraordinary period, the 2017 Constitutional amendment does not foresee these decrees being subject to constitutional review. In a recent decision, the Constitutional Court stated that it does not have the authority to review the decrees issued during the extraordinary period.
However, as stated in Article 119/6 of the Constitution, Presidential decrees issued during states of emergency are published in the Official Gazette and submitted to the approval of the Turkish Grand National Assembly on the same day. If the Turkish Grand National Assembly does not approve it within three months, Presidential decrees are automatically repealed in cases of emergency in accordance with Article 119/7 of the Constitution. If approved by the Parliament, emergency decrees become law and can be reviewed for constitutionality by the Constitutional Court, as stated in a recent decision of the Constitutional Court.
Only matters necessary for the state of emergency can be regulated by the presidential decree. Following the approval of the Parliament, the Constitutional Court examines whether a necessary regulation has been made for a state of emergency on the issue.
Therefore, it is not possible to review the President's emergency decrees without approval by the Parliament. Once approved by Parliament, it can be said that they will be subject to constitutional review only in terms of certain criteria such as subject matter, place and time.
2. No Violation of Rights Derived from International Law
Suspension of fundamental rights during the state of emergency and interventions that violate constitutional provisions must not violate rights arising from international law. In this context, the general principles of international law and the provisions of the international agreements signed by the Republic of Turkey should not be violated. Because it is accepted that the rights and obligations arising from international law primarily mean the general principles of international law, and then the rights and obligations arising from the agreements signed by the state are evaluated within this framework.
3. Moderation
One of the basic conditions for the suspension of fundamental rights is the principle of proportionality. The principle of proportionality has been defined in many decisions of the Constitutional Court. In a recent decision, the Constitutional Court made the following statements regarding the principle of proportionality;
“The principle of proportionality means that the means used to limit or suspend the exercise of fundamental rights and freedoms must be suitable and necessary to achieve the aim, and that there must be a reasonable proportion between the means and the aim. Accordingly, the measure must be suitable for achieving the aim of eliminating the threats or dangers that constitute the emergency situation and must be necessary for the realization of this aim; In addition, the limitation on the fundamental rights and freedoms subject to the measure must be to the extent required by the situation. In other words, the limitation imposed on fundamental rights and freedoms by the measure taken should not exceed the level required by the situation and become arbitrary. In determining proportionality, all conditions of the period in which the measure was taken should be evaluated together. In this context, the threats or dangers that cause the application of the extraordinary administrative procedure, the nature of the rights and freedoms subject to restriction, and the time when the measure is taken should also be taken into consideration.” (Constitutional Court, E. 2018/81, K. 2021/45).
It is understood from the decision that the principle of proportionality consists of the elements of appropriateness, necessity and proportionality.
The principle of proportionality is important. Because the complete destruction of property rights can lead to consequences such as the closing of factories in the country, stopping or decreasing production, increasing unemployment, and decreasing national income. These consequences shrink the economy in the short term and destroy it in the long term. In such a situation, an economic crisis emerges and a new state of emergency becomes necessary. The disproportionate suspension of fundamental rights as a result of the declaration of a state of emergency will naturally lead to a new state of emergency and a vicious circle will come into play. Such a result is not wanted or sought by anyone.
Conclusions on the Definition of Property Rights
A state of emergency must exist to prevent the exercise of property rights. Although the state of emergency is not an everyday situation, the executive's commitment to the law continues even in cases of emergency in accordance with the principle of the rule of law.
Although it is possible to suspend the use of property rights in emergency situations, interference with the use of law takes place within the framework of certain principles such as proportionality and compliance with international law. However, current regulations are insufficient in terms of legal certainty.
In accordance with Article 14 of the Constitution;
“None of the provisions of the Constitution can be interpreted in a way that enables the State or individuals to engage in an activity aimed at the destruction of the fundamental rights and freedoms granted by the Constitution or their limitation to a greater extent than stated in the Constitution.” (Constitution, Art. 14/2).
In this context, the state, in accordance with its positive obligation, is obliged to make legal regulations that include measures against the possible destruction of fundamental rights.
In countries where the rule of law is valid, the legal regulations to be applied in both exceptional and ordinary times must be at least determinable. Because, in extraordinary circumstances, it is possible to partially or completely suspend the enjoyment of fundamental rights, and interrupting the exercise of these rights is also a legal measure. The state must comply with the legal framework in the extraordinary period as well as in the ordinary period.
It is an indisputable fact that a state of emergency is a situation that cannot be determined in advance by its nature. Therefore, it must be admitted that it is difficult to regulate the legal rules and take the necessary measures for this situation, but it is not impossible to foresee this and take the necessary measures.
For this reason, uncertainty should be eliminated by introducing detailed legal rules regarding which rules the executive will act in cases of emergency and to what extent it can suspend the use of property rights.
In a decision of the European Court of Human Rights, it is stated that "the positive obligation of the state is not limited to a certain framework, the state is obliged to preventively address the problems that may lead to the violation of property rights and to take the necessary measures." However, in order to take the necessary legal and administrative measures, the state mechanism may have to make seemingly contradictory decisions at these times.