ÜNVER v. TURKEY
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicant is a Turkish national, born in 1926 and living in Antalya (Turkey) and Belvue (Switzerland). He is represented before the Court by Mr Sinan Aklar, a lawyer practising in Antalya(Turkey). A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owns a three-story house on a hill overlooking the south coast of Antalya. At the time when he had his house built, the south coast was officially designated a conservation area (doğal sit alanı). According to the local master building and settlement plan (imar planı), no building was authorised in this area. In 1993 the Antalya Municipal Board revised the master plan in order to allow homes to be built. Subsequently, property developers were given building permits (inşaat ruhsatı) and undertook major building works in the area. As a result, the natural panorama of the south coast began to change rapidly. In 1993 the applicant twice complained to the Antalya City Municipality requesting that development be halted with immediate effect. In reply, the Antalya City Municipality informed the applicant that the master plan had been revised on 4 March and 2 July 1993 and that several developers had been granted construction permits pursuant to the revision. The applicant challenged the award of the building permits before the Antalya Administrative Court (İdare Mahkemesi). He contended that the revision of the master plan did not comply with the requirements prescribed by Law no. 3194 and that the presence of the buildings would deprive him of his right to the peaceful enjoyment of the panoramic view from his house. He further contended that the preservation of the natural beauty of the site was in “the public interest” and the planned high buildings did not meet safety requirements for geographical reasons. He requested the annulment of the building permits awarded to the developers. He also requested the court to order the administration to suspend (yürütmenin durdurulması) the building permits pending the outcome of the court’s final decision on the matter. On 3 February and 22 August 1994 the court ordered the administration to stay the execution of the building permits. These decisions were served on the administration on 17 February and 5 September 1994 respectively. The court noted that any further construction carried out on the basis of the permits could give rise to irreparable harm. On 27 September 1994 and 21 February 1995 the applicant’s lawyer requested the Muratpaşa Municipality and the Antalya Metropolitan Municipality to comply with the order. The municipalities neither suspended the building permits nor prevented the holders from continuing to build. Experts appointed by the court (bilirkişi) investigated the area and submitted a report which generally bore out the applicant’s allegations. On 19 November 1994 the Antalya Administrative Court found, inter alia, that the revision of the local master construction and settlement plan was not in accordance with relevant law and was not in the public interest (kamu yararı). The court also found that building permits did not comply with the revised master plan. The court accordingly annulled the revision of the master plan as well as all building permits awarded on the basis of the revised plan. The Antalya Metropolitan Municipality and the Muratpaşa Municipality appealed (temyiz) on the ground that the judgment was contrary to substantive and procedural law. On 29 May 1995 the 6th Chamber of the Supreme Administrative Court (Danıştay) upheld the judgment of 19 November 1994 of the Antalya Administrative Court. The Antalya Metropolitan Municipality and the Muratpaşa Municipality requested the rectification of the judgment (karar düzeltme) of the 6th Chamber. The request was rejected on 18 September 1996. De facto construction continued in the area even after the annulment of the building permits had become final. The applicant, with reference to the final court judgment, requested the Muratpaşa Municipality and Antalya Metropolitan Municipality to stop the building being carried out by the holders of the annulled permits and to demolish the existing buildings in the area. The municipalities failed to comply with the request. The applicant then complained to various State institutions inter alia, the Antalya Public Prosecutor’s Office, the Antalya Governor’s Office, the Ministry of Interior, and the State Ministry responsible for urban issues. He did not receive any clear response. The impugned buildings remain to this day. B. Relevant domestic law Article 138 of the Constitution provides in its fourth paragraph (unofficial translation): “Legislative and executive organs and the administration shall comply with court decisions. These organs and the administration shall neither alter them in any respect nor delay their execution.” Article 28 of the Administrative Procedure Code states (unofficial translation): “The administration shall comply with the decisions of the Supreme Administrative Court, district administrative courts, administrative and tax courts. The administration shall ensure the execution of such decisions within thirty days from the date of their notification.”