Individual Application

The Facts

The applicant had been engaging in collection activities since 29 March 2005 in accordance with the licence granted to him by the Istanbul Archaeological Museums Directorate.

The law enforcement officers found ancient cultural assets (31 pcs coins), which had been subject to classification and registration, in the applicant’s back pack during the search carried out in another person’s office on 9 November 2005 within the scope of the criminal investigation. It was determined that the coins in question were not included in the applicant’s inventory register. The applicant was acquitted at the end of the proceedings before the criminal court. The decision was upheld by the Court of Cassation.

In addition, the Ministry of Culture and Tourism revoked the applicant’s collection licence on 31 December 2007 on the ground that the said coins had not been included in the applicant’s inventory register. The applicant brought an action for annulment before the administrative court against the administrative action in question. The court annulled the administrative action challenged by the applicant. However, upon appeal, the Council of State quashed the decision. The court abided by the Council of State’s decision and dismissed the case. The decision was appealed and subsequently upheld by the Council of State. The applicant’s subsequent request for rectification of the decision was also rejected.

   The Applicant’s Allegations

The applicant maintained that his collection licence was revoked, resulting in the transfer of his collection of cultural assets. In this regard, he claimed that his right to property was violated.

The Constitutional Court’s Assessment

Collection licence, which cannot be transferred or inherited, does not have an economical value, therefore it cannot be regarded as a property within the meaning of Article 35 of the Constitution.

However, revocation of the applicant’s collection licence by the public authorities resulted in the transfer of his collection to the museum in accordance with the Regulation on the Collection and Control of Movable Cultural and Natural Property to Be Protected (“the Regulation”). Accordingly, given the consequences, the revocation of the said licence constituted an interference with the applicant’s right to property.

Any interference with the right to property must have an accessible, precise and foreseeable legal basis.

The provision to be relied on in revoking the collection licence in case of a failure to register the movable cultural assets in the inventory register was not stated in the decision of the first instance court. The Council of State, which upheld the decision upon appeal, did not refer to any legal provision either.

The Constitutional Court clearly specified in its previous judgments within the scope of individual application that any interference with the right to property must definitely be based on a formal law.

It is clear that the public authorities enjoy a wide discretion in the protection of cultural heritage and cultural assets. However, although the applicant was acquitted at the end of the criminal proceedings, it was not prescribed by law that the applicant’s act alone required the revocation of his collection licence. Even if it is assumed that a collection licence can be revoked in accordance with the law, the conditions of revocation and its consequences are not clearly prescribed by law. Besides, the administration is not granted authorization to take regulatory actions in this respect within a legal framework.  

In the present case, as also pointed out by the inferior courts, an administrative action was taken in accordance with the provisions of the Regulation. The said regulatory action alone would undoubtedly not ensure the lawfulness of the interference. However, the criterion of lawfulness of interference, which is one of the fundamental guarantees of the right to property enshrined in Article 35 of the Constitution as a fundamental right and freedom, aims to protect individuals against arbitrary and unpredictable interferences by the public authorities.  

The interference with the applicant’s right to property, through the application of the Law no. 2863 on the Conservation of Cultural and Natural Property, failed to meet the criteria of lawfulness stipulated in the Constitution.

Consequently, the Constitutional Court found a violation of the right to property safeguarded by Article 35 of the Constitution.