Türkiye Emekliler Derneği, Application No: 2012/1035, 17 July 2014

A) Facts

The applicant, an association, bought an apartment to use as a branch office. Their neighbor who used the apartment downstairs as an office did not consent to the use of the apartment as an office instead of a residence. The applicant responded that activities by association branches were not amongst prohibited activities in apartments of residential status. The neighbor filed a lawsuit to stop the applicant from using the apartment for associational purposes. The court dismissed the case, since the plaintiff was also using his apartment as an office and there were no residents in the building. The Court of Cassation overruled the decision, stating that, according to its established case-law, associational activities amounted to use of the space as a workplace and thus required the consent of all landlords in the building. The lower court followed the decision and ordered the cessation of associational activities in the apartment. The applicant stated that legislation on this issue was not sufficiently clear, there was no express provision and the implementer of the law was given a very wide margin of appreciation. The applicant thus argued their right to property was violated.

B) Judgment and Reasoning of the Court

The Court noted that, although the individual petition mechanism was implemented as a secondary protection scheme to provide remedies for violations by the state, the state bore positive obligations in certain cases. In this light, applicants could reasonably expect that public authorities took steps to protect their right to effectively use their property. In cases where private persons infringed upon the right to property, the State had the obligation to provide effective domestic remedies for individuals to assume protection against the actions of private persons.

The Court then stated that, contrary to what the applicant suggested, the legislation, its application and the case-law were sufficiently accessible, clear, and foreseeable. Furthermore, in determining public interest, public authorities had a wide margin of appreciation, which could not be contested by the Court unless the decision was manifestly unfounded and arbitrary. In the present case, the legislation stipulated restrictions on the use of property for the protection of the rights of others. The restrictions did not prevent proprietors to use their property in other forms, such as renting, and hence the interference did not cause a significant harm. The Court thus ruled that the decision applicant was not under a disproportionately burden and its right to property was not violated.

C) Significance of the Judgment

This decision is significant for its recognition of the State’s positive obligations in relation to the right to property; more specifically, the obligation of the State to set effective remedial mechanisms for private persons against the interference of other private persons. The decision also provides an insight on the Court’s understanding of the legality principle with regards to the restriction of the right to property. The Court confirms that the established case-law of the Court of Cassation provides sufficient clarity and foreseeability.