Within the scope of an individual application concerning the refusal to permit the transfer of material obtained as a result of mining activities, the Constitutional Court decided that the right to a reasoned decision within the scope of the right to a fair trial was violated due to the failure to reveal the compelling and exceptional circumstances requiring a further decision of reversal in a way that would require a departure from the principle of procedural vested rights and the failure to meet the applicant’s substantive allegations that could change the outcome of the decision.
The application subject to the Constitutional Court’s decision published in the Official Gazette dated 14 December 2023 and numbered 32399 (“Decision“), is related to the allegations of violations of the right of property due to the refusal to permit the transfer of material obtained as a result of mining activities, and of the right to a reasoned decision within the scope of the right to a fair trial due to the failure to evaluate the objections regarding the procedural vested right arising from the decision to comply with the reversal of the lawsuit filed for the cancellation of this action.
The applicant company (“Applicant“) carried out mining activities between the years of 1994 and 1997 on the grounds of a sand and gravel quarry license granted for a period of three years under the provisions of the abrogated Quarries Regulations for the use of a 75,200 m2 mining area located in Boğaçayı at Konyaaltı district of Antalya as a sand and gravel quarry, and then without a license between 1997 and 2007.
The Applicant filed a lawsuit seeking to annul the action following the rejection of its request for permission to transport the over sieve backfill material that it claimed to have extracted and stored prior to 3 November 1997, the expiry date of its license.
Antalya 2nd Administrative Court (“Court“) dismissed the case on the grounds that the material in question was within the prohibited area and that the Applicant had failed to remove the over sieve backfill material within six months of the expiry of the license in accordance with Article 36 of the Mining Law No. 3113 (“Mining Law“) even though the license expired on 3 November 1997.
The Applicant then appealed the decision.
The 8th Chamber of the Council of State (“Chamber“) stated that the Applicant extracted material in Boğaçayı area at different times after the expiry of the license period by operating without a license and without permission, and that there was no concreate information and document submitted to the case file by the defendant regarding whether the Applicant extracted the material in question during the period when the Applicant was operating with a license.
Furthermore, as a result of the expert examination commissioned by the Applicant in 2000 to determine the amount of over sieve backfill material available in the said field, it was determined by the Antalya 1st Civil Court of First Instance that there was 1,674,296 m3 of material in the field in question, and this situation reveals that the material requested to be transported was extracted in the period until 2000, and that this material is not related to the over sieve backfill material extracted before 1997 and subject to the lawsuit.
In addition, it is regulated in Article 36 of the Mining Law that the material removed from the license area must be transferred from the license area within a period of six months; however, it was stated that the Applicant stored this material in a different area outside the license after removing it from the license area, and it was stated that Article 36 of the Mining Law could not be applied in the concrete case, and the decision was reversed in favor of the Applicant on the grounds that there was no compliance with the law in the action subject to the lawsuit.
The Court’s annulment decision issued in accordance with the decision of reversal, has been reversed once more, this time with the decision of rectification.
At that time, the Chamber issued a decision of reversal on the grounds that the activities of all the facilities in Boğaçayı area were ceased by the Board decisions dated 8 February 1995 and 15 July 1998, that the material in question remained in the area prohibited by the Board decision despite it was claimed that it was transported outside the license area, and that the license which expired in 1997 was not a license that provided a right to take the material remaining in stock.
The Court, in examining the case for the third time, complied with the second decision of reversal and its decision to dismiss the lawsuit on the grounds stated in the second decision of reversal was finalized through the legal remedy.
Thereupon, the Applicant submitted the matter to the Constitutional Court with an individual application.
The Applicant’s individual application complaint is related to the allegation that a decision was issued in violation of the principle of procedural vested right.
The Constitutional Court evaluating the judicial process as a whole, referred to the principle of procedural vested rights developed by the judicial precedent and Article 50 of the Administrative Judicial Procedure Law No. 2577, and decided that the right to a reasoned decision was violated due to the failure to reveal the compelling and exceptional circumstances requiring a further decision of reversal in a way that would require a departure from the principle of procedural vested rights and the failure to meet the Applicant’s substantive claims that could change the outcome of the decision.
In this context, the Constitutional Court decided that the right to a reasoned decision within the scope of the right to a fair trial provided by Article 36 of the Constitution had been violated. There is a dissenting vote on this decision.
In addition, even though the Applicant claimed that its right of property was also violated, the Constitutional Court did not deem it necessary to conduct an examination in terms of the complaint regarding the right of property since it decided to conduct a re-trial due to the violation of the right to a fair trial.
You can access the full text of the Constitutional Court’s decision published in the Official Gazette dated 14 December 2023 and numbered 32399 via this link. (Only available in Turkish)