1. Giriş

Property rights in land occupy a central position in legal systems, serving as a cornerstone of economic development, social stability, and individual autonomy. Unlike movable property, land is inherently limited, immobile, and closely connected to public regulation, urban planning, and environmental considerations. For this reason, the legal protection of property in land has always involved a delicate balance between individual rights and collective interests. In contemporary legal systems, this balance is increasingly framed within the context of human rights law, particularly under the protection afforded by Article 1 of Protocol No. 1 to the European Convention on Human Rights (ECHR). Türkiye occupies a prominent position in the case-law of the European Court of Human Rights. In recent years, it has consistently ranked among the States with the highest number of applications and violations before the Court. A substantial proportion of the Court’s docket originates from Türkiye, and a significant majority of judgments concerning Türkiye result in findings of at least one violation. This pattern is not limited to a specific category of rights but extends across multiple areas, including the right to property.

The frequency and persistence of property-related cases – ranging from expropriation disputes and compensation issues to zoning restrictions, administrative interference, and deficiencies in legal certainty – indicate that the problem is not merely incidental or case-specific. Rather, it suggests the existence of deeper structural challenges affecting the effective protection of property rights in Türkiye. The persistence of violations of the right to property in Türkiye presents a paradox. On the one hand, the Turkish legal system provides a comprehensive framework for the protection of property rights. The Constitution explicitly guarantees the right to property and establishes conditions for lawful expropriation, including the requirement of public interest and compensation. Moreover, domestic legislation and judicial practice formally align with the standards developed under the ECHR. On the other hand, the jurisprudence of the European Court of Human Rights reveals recurring findings of violations in this area. These violations arise in diverse contexts, including delays in compensation, excessive restrictions on the use of property, failures in the land registration system, legislative interferences, and procedural deficiencies in the enforcement of judicial decisions. This discrepancy between normative guarantees and practical outcomes calls for a deeper examination of the underlying causes.

Against this background, the central question of this article is: 👉 Why do violations of the right to property in land remain frequent in Türkiye under Article 1 of Protocol No. 1, despite the existence of a modern legal and constitutional framework aligned with international human rights standards? This article argues that the persistence of property-related violations in Türkiye cannot be explained solely by contemporary administrative inefficiencies or isolated legal shortcomings. Rather, it reflects a multi-layered structural imbalance in the relationship between public authority and individual property rights. This imbalance is shaped by a combination of factors, including:

• a historically rooted, state-centric conception of property originating in the Ottoman land regime;
• the continuation of strong administrative and regulatory practices in the modern period;
• institutional weaknesses affecting legal certainty and the functioning of land registration systems;
• legislative and planning mechanisms that may result in indirect or disproportionate interference with property rights; and
• procedural deficiencies, particularly in the enforcement of judicial decisions and the complexity of legal remedies.

While none of these factors alone is determinative, their interaction contributes to a systemic difficulty in maintaining the fair balance required under Article 1 of Protocol No. 1.

The article adopts a combined historical and doctrinal approach. First, it examines the evolution of property rights in land in Türkiye, beginning with the Ottoman land regime and continuing through the reforms of the nineteenth century and the legal transformations of the Republican period. This historical analysis highlights the enduring influence of a state-centered understanding of property. Second, the article analyses the conceptual framework of property protection under the ECHR, with particular emphasis on the principles of lawful interference, proportionality, and fair balance. It then evaluates the jurisprudence of the European Court of Human Rights concerning Türkiye, identifying recurring patterns and typologies of violations. Finally, the article develops a structural explanation for the persistence of these violations, integrating historical, institutional, and doctrinal perspectives. In doing so, it seeks to contribute to a deeper understanding of the relationship between legal tradition, administrative practice, and human rights protection in the field of property law.

2. Conceptual Framework: The Right to Property in Land

2.1. Property as a Legal Institution

Property is one of the most fundamental legal institutions, yet its content is neither uniform nor static. In classical legal theory, property has often been described as an absolute right, conferring upon its holder the powers of use (usus), enjoyment (fructus), and disposal (abusus). However, modern legal systems increasingly conceptualize property not as a monolithic entitlement but as a bundle of rights, subject to regulatory limitations and social considerations.

This shift reflects a broader transformation in legal thought: property is no longer understood solely as an individual right, but also as a social institution embedded within a framework of public interests. As a result, the protection of property involves reconciling individual autonomy with the legitimate regulatory functions of the State.

1. The Specific Nature of Property in Land

Property in land occupies a distinct position within this conceptual framework. Unlike movable property, land is characterized by:

• Immobility, which ties it to a specific territorial and administrative order;
• Scarcity, which necessitates allocation and regulation;
• Public significance, particularly in areas such as urban planning, environmental protection, infrastructure development, and agriculture.

For these reasons, land is subject to intensive public regulation, and the exercise of property rights over land is more frequently limited than in the case of movable assets. Consequently, legal systems tend to recognize a broader scope for State intervention in land-related matters, provided that such intervention complies with principles of legality and proportionality.

1. The Autonomous Concept of “Possessions”

Under the European Convention on Human Rights, the notion of property is expressed through the term “possessions”, which constitutes an autonomous concept independent of domestic classifications.

According to the 2023 Guide on Article 1 of Protocol No. 1:

• “Possessions” include not only existing property rights, but also:
  • claims having a sufficient basis in law;
  • legitimate expectations of obtaining effective enjoyment of a property right.

This functional and expansive interpretation enables the European Court of Human Rights to extend protection beyond formal ownership, encompassing a wide range of economic interests. As a result, property protection under the Convention is substantive rather than formal, focusing on the real impact of State measures on the individual’s economic position.

1. Structure of Article 1 of Protocol No. 1

Article 1 of Protocol No. 1 establishes a structured framework consisting of three distinct but interrelated rules:

1. The general rule of peaceful enjoyment of possessions, which guarantees the right to the undisturbed use of property;
2. The rule concerning deprivation of property, which permits expropriation under certain conditions;
3. The rule on control of the use of property, which allows States to regulate property in accordance with the general interest.

These rules are not mutually exclusive; rather, they must be interpreted in light of the general principle underlying the provision—namely, the protection of property while allowing for legitimate public intervention.

1. The Three-Step Test for Interference

The European Court of Human Rights applies a structured analytical approach when assessing alleged violations of property rights. This approach can be summarized in three steps:

1. Existence of a possession
   The Court first determines whether the applicant has a “possession” within the meaning of the Convention.
2. Existence of an interference
   It then examines whether there has been an interference with that possession, whether through deprivation, regulation, or other forms of restriction.
3. Justification of the interference
   Finally, the Court assesses whether the interference is justified. This requires that the measure:
   • be lawful;
   • pursue a legitimate aim in the public interest; and
   • maintain a fair balance between the interests of the individual and those of the community.

Failure at any of these stages may result in a finding of violation.

1. Fair Balance and Proportionality

The principle of fair balance constitutes the central element of the Court’s analysis. It requires that the State strike a reasonable equilibrium between:

• the demands of the general interest; and
• the protection of individual property rights.

A violation occurs when the individual is made to bear an “individual and excessive burden.”

This proportionality test does not prohibit State intervention per se. On the contrary, it recognizes that interference with property may be necessary and legitimate. However, such interference must not be arbitrary or disproportionate in its effects.

1. Positive Obligations of the State

In addition to refraining from unjustified interference, the State has positive obligations to ensure the effective protection of property rights. These obligations include:

• maintaining a reliable and coherent legal framework;
• ensuring legal certainty, particularly in land registration systems;
• providing effective remedies against violations; and
• guaranteeing the enforcement of judicial decisions.

The failure to fulfil these obligations may itself give rise to a violation of Article 1 of Protocol No. 1, even in the absence of direct State interference.

1. Scope of State Discretion: Margin of Appreciation

The Court recognizes that States enjoy a certain margin of appreciation, especially in areas involving economic and social policy, such as land use planning and expropriation. This discretion reflects the diversity of national legal systems and policy priorities.

However, the margin of appreciation is not unlimited. The Court retains the power to review whether the balance struck by the State complies with Convention standards, particularly in relation to proportionality and legal certainty.

1. Implications for the Present Study

This conceptual framework provides the basis for analysing the case law of the European Court of Human Rights concerning Türkiye. It highlights that property protection under the Convention is not confined to formal ownership, but extends to a wide range of economic interests and situations.

Moreover, it underscores that the central issue in many cases is not the existence of State intervention, but rather its justification and proportionality. The persistence of violations therefore points to difficulties in maintaining the fair balance required by the Convention.

This framework will guide the subsequent analysis of both the historical development of property rights in Türkiye and the contemporary jurisprudence of the European Court of Human Rights.

III. The Ottoman Land Regime: Structure and Legal Character

1. Foundations in Islamic Law

The Ottoman land regime was shaped by a combination of Islamic legal principles, sultanic legislation (kanunnames), and administrative practices. Within Islamic legal thought, land was not conceived as an object of purely absolute private ownership but rather as a resource subject to stewardship (khilafa) and social responsibility. This perspective allowed for considerable flexibility in the organization of land relations and enabled the State to play a central role in regulating land use and distribution.

As noted in the literature, Islamic law did not impose a rigid, unified model of land ownership, leaving room for rulers to develop systems adapted to administrative and fiscal needs. This legal and doctrinal openness facilitated the emergence of a state-centered land regime in the Ottoman Empire (Armağan, 2010; Bantekas).

1. Classification of Land

Ottoman land law developed a pluralistic system of land classification, most clearly codified in the nineteenth century but rooted in earlier practice. The principal categories included:

• Miri land: land formally owned by the State;
• Mülk land: land subject to full private ownership;
• Vakıf land: land dedicated to religious or charitable purposes;
• Metrûk land: land reserved for public use;
• Mevat land: uncultivated or “dead” land.

This classification demonstrates that Ottoman land law did not adhere to a single concept of property but instead recognized a diversity of tenure forms, each with distinct legal characteristics and functions (Bıyık & Yavuz; Armağan, 2010).

1. Dominance of State Ownership

Despite the existence of private ownership, the defining feature of the Ottoman system was the predominance of miri land, which constituted the majority of agricultural land. Under this regime:

• bare ownership (rakabe) belonged to the State;
• individuals were granted rights of use (tasarruf).

This separation between ownership and use represents a fundamental departure from modern civil law systems, in which ownership is typically unified. In the Ottoman context, the State retained ultimate control over land, while individuals exercised conditional rights of possession and cultivation.

1. Nature of Individual Rights

The rights granted to individuals over miri land were:

• usufructuary in nature, allowing use and benefit;
• heritable, subject to certain conditions;
• transferable, often with administrative approval.

However, these rights were not equivalent to full ownership. They were:

• conditional, depending on continued use and compliance with regulations;
• revocable, particularly in cases of abandonment or misuse.

Accordingly, individuals did not enjoy an absolute right to land but rather a derivative and regulated entitlement, reflecting the broader objectives of the State.

1. Functional and Regulatory Character of Property

The Ottoman land regime was fundamentally functional, designed to serve a range of state objectives, including:

• taxation, ensuring a stable revenue base;
• military organization, particularly through the timar system;
• social stability, by regulating access to land and preventing excessive concentration.

Property was thus conceived as an instrument of governance rather than merely a sphere of individual autonomy. The State’s regulatory role extended to:

• allocation of land;
• supervision of its use;
• maintenance of cadastral records.

This functional understanding of property underscores the extent to which land rights were embedded in a broader system of administrative control and public policy (Bıyık & Yavuz; Armağan, 2010).

1. Implications for the Development of Property Law

The Ottoman land regime did not lack property rights; rather, it embodied a distinct conception of property, characterized by:

• the predominance of State ownership;
• the conditional nature of individual rights;
• the integration of property into fiscal and administrative structures.

This conception differs significantly from the modern understanding of property as a strong individual right, protected against State interference. At the same time, it reveals a continuity in the idea that property is subject to regulation in the public interest.

The legacy of this system is particularly relevant for the present study. It provides a historical foundation for understanding the persistence of a state-centric approach to property, which may continue to influence legal and administrative practices in contemporary Türkiye.

1. Transformation of Property: Tanzimat and the Emergence of Private Ownership
2. Drivers of Reform

The nineteenth century marked a period of profound transformation in the Ottoman Empire, commonly referred to as the Tanzimat era. This period was characterized by efforts to modernize the administrative, fiscal, and legal structures of the الدولة in response to both internal challenges and external pressures. Increasing integration into the global economy, the need for more efficient taxation, and the desire to strengthen central authority prompted a reorganization of land relations.

Land, as a primary source of revenue and social organization, became a focal point of reform. The existing system—based largely on miri land and conditional use rights—was increasingly perceived as insufficient for supporting a modern fiscal and administrative state. Accordingly, reforms sought to clarify land rights, formalize ownership structures, and integrate land into a more market-oriented framework.

1. The Land Code of 1858

The Ottoman Land Code of 1858 (Arazi Kanunnamesi) represented the most significant legislative milestone in the transformation of property relations. Rather than creating an entirely new system, the Code aimed to codify and systematize existing practices, while introducing mechanisms to enhance administrative control and fiscal efficiency.

One of the central innovations of the Code was the establishment of a formal land registration system (tapu). Landholders were required to register their rights, thereby enabling the State to:

• identify land users and owners;
• improve tax collection;
• monitor land use and prevent abandonment.

Although the Code did not abolish the miri system, it contributed to the individualization of land rights by recognizing transferable and inheritable interests in land. In this sense, it laid the groundwork for the gradual emergence of private ownership.

1. State-Induced Propertization

A distinctive feature of the Tanzimat reforms was that the development of private property was largely initiated and structured by the State. Rather than emerging organically from social or economic practices, property rights were increasingly defined through legislation, registration, and administrative processes.

This process—often described as state-induced propertization—served multiple purposes. It enabled the State to:

• consolidate control over land resources;
• expand the tax base;
• facilitate land transactions within a developing market economy.

At the same time, it contributed to the transformation of land from a resource governed by customary and administrative practices into a legal object subject to formal ownership and transfer.

1. Land Registration (Tapu) and Its Structural Limitations

Despite its importance, the implementation of the land registration system faced significant practical challenges. Many landholders were reluctant to register their land due to concerns about:

• increased taxation;
• potential military obligations;
• greater State oversight.

As a result, land was often registered in the names of:

• local notables;
• intermediaries;
• administrative officials.

This practice led to a divergence between formal title and actual possession, creating structural distortions in land ownership. Over time, these distortions contributed to:

• concentration of land in the hands of elites;
• legal uncertainty regarding ownership;
• disputes over title and use rights.

These early deficiencies in the registration system would have long-term implications for the reliability of land records and the protection of property rights.

1. Continuity and Limits of Reform

Although the Tanzimat reforms introduced important innovations, they did not fundamentally alter the underlying structure of State control over land. The miri system remained intact, and the State continued to retain ultimate authority over land allocation and use.

In this sense, the reforms represented a process of gradual transformation rather than radical change. They combined elements of modernization—such as codification and registration—with enduring features of the earlier system, including:

• strong administrative oversight;
• functional regulation of land use;
• the central role of the State in defining property relations.

 

1. Implications for the Evolution of Property Law

The Tanzimat period occupies a critical position in the historical development of property law in Türkiye. It marks the transition from a predominantly state-centered and functional system to a more formalized and individualized regime of property rights.

However, this transition was neither complete nor uniform. The persistence of structural limitations—particularly in relation to land registration and administrative practice—suggests that the foundations of modern property law were shaped by a combination of continuity and transformation.

These historical dynamics are of particular importance for understanding contemporary challenges in property protection. The coexistence of formal ownership structures with underlying administrative and institutional constraints continues to influence the functioning of property law in Türkiye, and provides an essential context for interpreting the case law of the European Court of Human Rights.

1. Republican Period: Legal Modernization and Continuity
2. Reception of the Civil Law Model (1926)

The foundation of the Republic of Türkiye initiated a comprehensive process of legal transformation aimed at aligning the domestic legal order with continental European models. A pivotal moment in this process was the enactment of the Turkish Civil Code of 1926, largely derived from the Swiss Civil Code. This reform replaced the pluralistic and functionally differentiated structure of Ottoman land law with a unified and abstract concept of ownership.

Under the new system, ownership (mülkiyet) was conceived as a full and exclusive real right, encompassing the powers of use, enjoyment, and disposal. This doctrinal shift marked a transition from a regime in which land rights were conditional and mediated by State authority to one in which property was recognized as an individual legal entitlement grounded in private autonomy. In formal terms, this represented a decisive break with the Ottoman model.

1. Constitutional Entrenchment of Property Rights

The protection of property was subsequently reinforced at the constitutional level. The Turkish Constitution guarantees the right to property under Article 35, while Article 46 regulates expropriation by requiring:

• a public interest justification, and
• the payment of compensation, generally in advance.

At the same time, the Constitution explicitly permits the limitation of property rights by law, provided that such limitations serve the public interest. This dual structure reflects a modern constitutional approach in which property is recognized as a fundamental right, yet remains subject to regulatory intervention within a legal framework. In principle, this approach is compatible with the standards developed under Article 1 of Protocol No. 1

1. Statutory Framework Governing Expropriation

The constitutional principles governing property are operationalized through statutory instruments, most notably Expropriation Law No. 2942. This legislation establishes:

• procedural rules for the taking of property;
• methods for the determination of compensation;
• mechanisms for judicial review.

The framework is designed to ensure that expropriation is carried out in a manner consistent with:

• legality, through clearly defined procedures;
• legitimate public interest, as the basis for intervention;
• fair compensation, reflecting the value of the property.

From a doctrinal perspective, this structure mirrors the requirements of the European Convention on Human Rights, particularly in relation to proportionality and fair balance.

1. Continuity in Administrative and Regulatory Practice

Despite the formal adoption of a modern and individualistic concept of property, the regulatory role of the State has remained both extensive and influential. Public authorities exercise broad powers in areas such as:

• land-use planning and zoning;
• infrastructure and urban development;
• environmental regulation;
• administrative restrictions on property.

While these powers are inherent in modern governance, their scope in practice suggests a degree of continuity with earlier traditions in which property was closely linked to public administration and policy objectives. The State thus continues to function not merely as a guarantor of property rights, but also as a central actor in their definition and limitation.

1. Divergence Between Normative Guarantees and Practical Implementation

A key feature of the contemporary Turkish property regime is the divergence between formal legal guarantees and their practical application.

At the normative level, the legal framework provides:

• constitutional recognition of property rights;
• detailed statutory regulation;
• access to judicial remedies.

However, in practice, individuals frequently encounter:

• delays in compensation, particularly in expropriation cases;
• prolonged or indefinite restrictions arising from planning measures;
• difficulties in enforcing judicial decisions;
• inconsistencies in administrative practice.

This discrepancy between law and practice has been acknowledged in policy instruments such as the Human Rights Action Plan (2021), which identifies areas including expropriation, enforcement, and zoning as requiring reform

1. Implications for the Analysis of Property Protection

The Republican period illustrates a process of legal modernization that is both significant and incomplete. While the formal legal framework reflects a strong commitment to the protection of individual property rights, the persistence of regulatory practices and implementation challenges indicates that the transformation of the property regime has not been absolute.

This duality—between a modern normative framework and continuing structural characteristics—is central to understanding the case law of the European Court of Human Rights concerning Türkiye. It suggests that property-rights violations are not merely the result of isolated deficiencies, but are linked to broader patterns of administrative practice, institutional capacity, and historical continuity.

This insight provides an essential bridge between the historical analysis and the examination of contemporary ECHR jurisprudence.

VI. ECHR Jurisprudence on Property Rights in Türkiye

A. General Framework

The protection of property under the European Convention on Human Rights is governed by Article 1 of Protocol No. 1, which establishes a structured and autonomous system of protection. As clarified in the Court’s case-law and the 2023 Guide, the provision comprises three interrelated rules: the general principle of peaceful enjoyment of possessions, the conditions governing deprivation of property, and the regulation of the control of use of property.

In assessing alleged violations, the European Court of Human Rights follows a consistent analytical methodology. It examines:

1. whether the applicant has a “possession”, understood as an autonomous and functional concept;
2. whether there has been an interference with that possession;
3. whether the interference is justified, requiring:
   • a sufficient legal basis,
   • pursuit of a legitimate aim in the public interest, and
   • compliance with the principle of proportionality, expressed through the requirement of a fair balance.

The central question in most cases is not the existence of State intervention as such, but whether the individual has been made to bear an individual and excessive burden.

B. Scale and Structural Character of Violations

Türkiye occupies a significant position within the jurisprudence of the European Court of Human Rights, both in terms of the number of applications and the frequency of violations. A considerable proportion of cases brought against Türkiye concern property rights, reflecting recurring disputes across a wide spectrum of legal and administrative contexts.

These cases encompass issues such as:

• expropriation and compensation;
• land-use regulation and zoning;
• administrative interference;
• deficiencies in land registration systems;
• legislative measures affecting property;
• procedural and enforcement shortcomings.

The persistence and diversity of these cases suggest that the problem is not limited to isolated deficiencies but reflects structural and systemic challenges in the protection of property rights.

C. Patterns of Interference in the Court’s Case Law

The case law of the Court reveals a multi-dimensional pattern of property-related violations, which may be categorized according to the nature and source of the interference.

1. Expropriation and Compensation

A significant number of cases concern expropriation procedures, particularly in relation to the timeliness and adequacy of compensation. In Aka v. Turkey, the Court found that substantial delays in the payment of compensation, combined with the effects of inflation, resulted in a disproportionate burden on the applicant.

This line of cases illustrates that expropriation, while permissible in principle, must be accompanied by prompt and adequate compensation in order to satisfy the requirement of fair balance.

2. Administrative and Emergency Measures

Another category of cases involves extensive administrative interventions affecting property rights. These include measures such as:

• confiscation of assets;
• appointment of trustees;
• interventions adopted in exceptional or emergency contexts.

While such measures may pursue legitimate public aims, their implementation raises concerns regarding proportionality, procedural safeguards, and the availability of effective remedies. The Court’s scrutiny in these cases often focuses on whether sufficient guarantees exist to prevent arbitrary or excessive interference.

3. Deficiencies in Legal Certainty

The Court has repeatedly emphasized the importance of legal certainty in property relations. In Koçer v. Turkey, it found that errors in the land registration system, combined with the absence of adequate compensation, resulted in a violation of the applicant’s property rights.

Such cases highlight the State’s positive obligation to maintain reliable systems of land registration and to ensure that individuals are not adversely affected by administrative deficiencies. Legal certainty is thus an essential component of effective property protection.

4. Indirect Interference and Control of Use

The Court has also developed a broad understanding of interference, recognizing that property rights may be affected even in the absence of formal deprivation. In N.A. and Others v. Turkey, restrictions on the use and enjoyment of property were found to fall within the scope of control of use.

These cases demonstrate that regulatory measures—such as restrictions on access, development, or utilization—may significantly impair the value and utility of property. Such interferences must therefore satisfy the requirements of legality, legitimate aim, and proportionality.

5. Legislative Sources of Interference

In certain instances, the source of interference lies not in individual administrative acts but in the legislative framework itself. The case of Kaynar and Others v. Turkey illustrates how statutory provisions may generate systemic effects that interfere with property rights.

This category of cases is particularly significant, as it indicates that violations may be embedded at the level of normative design, raising questions about the adequacy of legislative safeguards and the compatibility of domestic law with Convention standards.

6. Enforcement of Judicial Decisions

The effective enjoyment of property rights depends not only on substantive legal guarantees but also on the execution of judicial decisions. In Özden v. Turkey, the Court held that delays in enforcing final judgments may themselves constitute an interference with property rights.

This line of case law underscores the principle that a right recognized in law must be practically effective, and that failure to enforce judicial decisions undermines both property protection and the rule of law.

7. Procedural Complexity and Fragmentation

In Yücel and Others v. Turkey, the Court identified problems arising from procedural fragmentation, where individuals are required to pursue multiple and parallel legal proceedings before different judicial bodies. Such complexity may lead to:

• prolonged litigation;
• increased financial and procedural burdens;
• uncertainty regarding the outcome.

These procedural features may, in themselves, affect the effective enjoyment of property rights, particularly when they delay or complicate access to remedies.

8. Planning Measures and De Facto Confiscation

A particularly significant category concerns the impact of planning and zoning measures on property rights. In some cases, land is designated for public purposes without the initiation of formal expropriation procedures. As a result, owners may be prevented from using or developing their property for extended periods.

This phenomenon—often described as “confiscation without expropriation”—may lead to a substantial loss of economic value and place an excessive burden on the owner, especially where compensation is absent or delayed

D. Interim Assessment

The analysis of the Court’s jurisprudence demonstrates that property-related violations in Türkiye arise from a diverse and interrelated set of factors, rather than from a single type of interference.

These include:

• deficiencies in compensation mechanisms;
• broad administrative discretion;
• weaknesses in institutional and registration systems;
• legislative shortcomings;
• procedural inefficiencies and fragmentation.

The recurrence of these issues across different contexts indicates the existence of a systemic problem in the protection of property rights. This systemic character suggests that the difficulties encountered in maintaining the fair balance required by Article 1 of Protocol No. 1 are rooted in broader structural features of the legal and administrative system, which will be examined in the following section.

VII. Historical Legacy and Structural Imbalance in Property Protection

1. Introduction: Structural Imbalance in Contemporary Practice

The jurisprudence of the European Court of Human Rights concerning Türkiye reveals recurring tensions between individual property rights and the exercise of public authority under Article 1 of Protocol No. 1. While the Convention framework is premised on the requirement of a fair balance between the demands of the general interest and the protection of individual rights, the frequency and diversity of violations indicate that this balance is not always maintained in practice.

These violations arise in a wide range of contexts, including expropriation, zoning restrictions, administrative interference, deficiencies in legal certainty, and procedural shortcomings. The breadth of these issues suggests the existence of a structural imbalance, in which the protection of individual property rights may, in certain circumstances, be outweighed by considerations of public interest.

1. Historical Foundations: The Ottoman Conception of Property

This structural imbalance cannot be fully understood without reference to the historical development of property law in Türkiye.

As discussed above, the Ottoman land regime was characterized by:

• the predominance of state ownership (miri land);
• the allocation of limited rights of use to individuals;
• a functional and regulatory approach to land.

Although private ownership (mülk) existed, it was relatively limited and operated within a broader framework of State control. Property was not conceived as an absolute individual right, but as a conditional and socially embedded institution, shaped by fiscal, administrative, and policy considerations (Armağan, 2010; Bıyık & Yavuz; Bantekas).

This conception of property reflects a model in which the State plays a central role in defining, allocating, and regulating land rights.

1. Transformation and Continuity

The reforms of the nineteenth century, particularly the Land Code of 1858, introduced important changes, including:

• the formalization of land registration;
• the expansion of individual land rights;
• the integration of land into a market-oriented system.

However, these reforms were largely state-driven and did not eliminate the underlying structure of State control. Rather than representing a complete rupture, they constituted a process of gradual transformation, in which elements of the earlier system persisted.

The subsequent adoption of a modern civil law framework in the Republican period further strengthened individual property rights at the normative level. Nevertheless, the persistence of:

• administrative discretion;
• regulatory interventions;
• functional approaches to land use

suggests a degree of continuity in the underlying legal culture.

1. Influence on Contemporary Legal and Administrative Practices

The historical evolution of property law in Türkiye has contributed to the development of a legal and administrative environment in which:

• the State retains a central and active role in regulating property;
• property rights are frequently subject to public policy considerations;
• the boundaries of permissible State intervention may be interpreted broadly.

While such features are not inherently incompatible with the European Convention on Human Rights, they may influence the manner in which proportionality is assessed in practice. In particular, a historically rooted perception of property as a regulated entitlement rather than an absolute right may affect:

• the weight accorded to individual interests;
• the threshold for justifying interference;
• the design and implementation of administrative measures.

1. Structural Continuity and Proportionality

Under the ECHR framework, the central question is not whether the State may interfere with property, but whether such interference maintains a fair balance. However, where legal and administrative traditions emphasize the regulatory function of property, there may be a tendency toward:

• broader discretionary powers for public authorities;
• insufficient consideration of individual burdens;
• delays or deficiencies in compensation and remedies.

This may result in situations in which individuals bear an excessive burden, leading to findings of violation by the European Court of Human Rights.

1. A Contributing Factor, Not a Determinant

It is important to emphasize that the historical legacy of the Ottoman land regime does not, in itself, determine contemporary outcomes. Property-related violations in Türkiye arise from a combination of factors, including:

• administrative inefficiencies;
• institutional weaknesses;
• legislative design;
• procedural shortcomings.

However, the historical evolution of property law provides an important background context, helping to explain why certain patterns of interference and imbalance persist.

1. Concluding Observation

The relationship between historical legal traditions and contemporary human rights practice reveals a complex interaction between continuity and change. The Ottoman conception of property as a state-regulated and functionally defined institution has, to some extent, left a lasting imprint on the legal and administrative understanding of property in Türkiye.

This historical dimension, when combined with modern governance challenges, contributes to a structural environment in which maintaining the fair balance required under Article 1 of Protocol No. 1 may be particularly difficult. Understanding this interaction is essential for explaining the persistence of property-related violations and for identifying pathways toward more effective protection of property rights.

VIII. Evaluation: Explaining the Persistence of Violations

1. A Multi-Layered Structural Explanation

The analysis conducted in the preceding sections demonstrates that the persistence of property-related violations in Türkiye cannot be attributed to a single cause. Rather, it reflects a multi-layered structural problem, arising from the interaction of several factors operating at different levels of the legal system.

These factors include:

1. Historical legacy, shaping the underlying conception of property;
2. Administrative practices, reflecting the scope and intensity of State intervention;
3. Institutional weaknesses, particularly in ensuring legal certainty;
4. Planning mechanisms, affecting the use and value of land;
5. Legislative frameworks, which may themselves generate interference;
6. Procedural deficiencies, especially in enforcement;
7. Procedural complexity, increasing the burden on individuals.

The cumulative effect of these elements contributes to a structural environment in which maintaining the fair balance required under Article 1 of Protocol No. 1 becomes particularly challenging.

1. Legal Certainty as a Structural Problem

One of the most significant issues identified in the jurisprudence of the European Court of Human Rights is the lack of legal certainty in property relations. This is particularly evident in cases involving:

• inaccuracies in land registration systems;
• discrepancies between formal title and actual possession;
• administrative errors affecting ownership rights.

As illustrated by cases such as Koçer v. Turkey, deficiencies in the land registry system may result in individuals bearing the consequences of administrative failures. Such situations undermine the reliability of property rights and weaken trust in the legal system.

The roots of this problem may be traced, in part, to the historical development of land registration during the Ottoman period, where discrepancies between formal records and actual use were common. Although the modern system has evolved significantly, the persistence of such issues suggests that legal certainty remains a structural challenge.

1. Planning Law and De Facto Confiscation

A further source of violations arises from the operation of planning and zoning mechanisms. In many cases, land is designated for public purposes without the initiation of formal expropriation procedures. As a result:

• owners are unable to use or develop their property;
• the economic value of the property is significantly reduced;
• restrictions may persist for prolonged or indefinite periods.

This phenomenon, often described as “confiscation without expropriation,” represents a form of indirect interference with property rights. While planning measures are a legitimate tool of public policy, their application may lead to a disruption of the fair balance required by the Convention, particularly where compensation is absent or delayed

1. Legislative Framework and Systemic Interference

The jurisprudence of the European Court of Human Rights also demonstrates that violations may arise from the legislative framework itself, rather than from individual administrative acts. As seen in cases such as Kaynar and Others v. Turkey, the structure and content of legislation may create situations in which property rights are systematically affected.

This raises broader questions regarding:

• the design of legal norms;
• the adequacy of safeguards against disproportionate interference;
• the compatibility of domestic legislation with Convention standards.

Where legislation allows for broad or insufficiently defined powers, the risk of systemic violations increases, further contributing to the structural nature of the problem.

1. Procedural Deficiencies and Enforcement Problems

The effective protection of property rights depends not only on substantive legal guarantees but also on the functioning of procedural mechanisms. The case law of the Court highlights several recurring issues, including:

• delays in judicial proceedings;
• failures in the enforcement of final judgments;
• lack of effective remedies.

As illustrated by Özden v. Turkey, delays in enforcing judicial decisions may deprive individuals of the practical benefit of their rights. Similarly, procedural fragmentation, as seen in Yücel and Others v. Turkey, may require individuals to pursue multiple parallel proceedings, increasing both the duration and complexity of disputes.

These procedural deficiencies contribute to a situation in which property rights, although formally recognized, are not effectively protected in practice.

1. Administrative Practices and Discretion

Another important factor concerns the role of administrative practices and the exercise of discretion by public authorities. The State retains broad powers in areas such as:

• expropriation;
• zoning and planning;
• regulatory control of land use.

While such powers are necessary for the pursuit of public interest objectives, their exercise may, in certain cases, lack sufficient safeguards. This may result in:

• inconsistent application of legal rules;
• insufficient consideration of individual circumstances;
• disproportionate restrictions on property rights.

The persistence of such practices reflects a broader tendency toward strong public control over property, which may influence the balance between State and individual interests.

1. Gap Between Normative Framework and Practice

A central theme emerging from this analysis is the gap between the formal legal framework and its practical implementation.

On the one hand, the Turkish legal system provides:

• constitutional protection of property rights;
• detailed legislation governing expropriation and land use;
• formal alignment with ECHR standards.

On the other hand, the continued findings of violations by the European Court of Human Rights indicate that these guarantees are not always effectively realized in practice.

This gap is acknowledged in policy documents such as the Human Rights Action Plan (2021), which identifies the need for reforms in areas including:

• expropriation procedures;
• enforcement mechanisms;
• zoning practices;
• administrative transparency

1. Interaction Between Historical Legacy and Contemporary Factors

The persistence of property-related violations in Türkiye can best be understood as the result of an interaction between historical and contemporary factors.

• The historical legacy of a state-centered property regime has shaped the underlying legal culture;
• Modern administrative and legislative practices reflect this tradition in adapted forms;
• Institutional and procedural challenges further affect the effective protection of rights.

This interaction creates a structural environment in which the fair balance required under Article 1 of Protocol No. 1 is difficult to achieve consistently.

1. Concluding Assessment

The analysis undertaken in this section demonstrates that property-related violations in Türkiye are neither accidental nor isolated. Instead, they reflect a complex and interrelated set of factors that operate across different levels of the legal system.

The persistence of these violations points to the need for:

• strengthening legal certainty;
• improving administrative practices;
• enhancing procedural efficiency;
• ensuring that legislative frameworks incorporate adequate safeguards.

Ultimately, achieving effective protection of property rights requires not only formal compliance with legal standards but also a sustained effort to align practice with principle, thereby restoring the balance between public authority and individual rights.

1. Conclusion
2. Summary of Findings

This article has examined the right to property in land in Türkiye through a combined historical and doctrinal perspective. The analysis has shown that the protection of property rights cannot be fully understood without considering both the evolution of legal structures and the jurisprudence of the European Court of Human Rights.

Historically, the Ottoman land regime was characterized by a state-centered conception of property, in which land was predominantly owned by the State and individuals held conditional rights of use. Although the nineteenth-century reforms and the subsequent adoption of a modern civil law system introduced a model of individual ownership, elements of the earlier system persisted, particularly in the form of strong State regulation and administrative control.

In the contemporary period, the Turkish legal framework provides robust formal guarantees for the protection of property rights, including constitutional recognition and detailed legislative regulation. Nevertheless, the case law of the European Court of Human Rights reveals recurring violations in this area, indicating a discrepancy between normative standards and practical implementation.

1. Core Insight: Structural Imbalance

The central finding of this article is that the persistence of property-related violations in Türkiye reflects a structural imbalance between public authority and individual property rights.

This imbalance is not attributable to a single factor. Rather, it arises from the interaction of multiple elements, including:

• the historical legacy of a state-centered property regime;
• the continuation of extensive administrative and regulatory practices;
• institutional weaknesses, particularly in ensuring legal certainty;
• planning mechanisms that may result in indirect interference;
• legislative frameworks that can generate systemic effects; and
• procedural deficiencies, including delays and enforcement problems.

Taken together, these factors create conditions in which the fair balance required under Article 1 of Protocol No. 1 is not consistently maintained.

1. Contribution of the Article

This article contributes to the existing literature by offering a holistic and structurally grounded explanation of property-rights violations in Türkiye. Rather than focusing solely on individual cases or contemporary administrative shortcomings, it situates these violations within a broader context that includes:

• historical legal development;
• institutional design;
• doctrinal standards under the ECHR.

In doing so, the article highlights the importance of understanding property rights not only as legal entitlements, but also as products of legal culture and institutional practice.

1. Implications for Legal Reform and Practice

The findings of this study suggest that improving the protection of property rights in Türkiye requires a comprehensive and multi-dimensional approach. In particular, attention should be given to:

• strengthening legal certainty, especially in land registration systems;
• ensuring that planning and zoning practices are accompanied by adequate safeguards and compensation mechanisms;
• enhancing the effectiveness and timeliness of judicial remedies;
• reviewing legislative frameworks to ensure compatibility with Convention standards; and
• promoting a more consistent application of the principle of proportionality in administrative decision-making.

These measures are essential not only for reducing the number of violations but also for reinforcing public confidence in the legal system.

1. Final Observation

The evolution of property law in Türkiye reflects a complex interplay between continuity and change. While the formal legal framework has undergone significant modernization, the influence of historical legal traditions and contemporary structural factors continues to shape the practical protection of property rights.

Ultimately, achieving full compliance with Article 1 of Protocol No. 1 requires not only adherence to legal norms but also a sustained commitment to ensuring that the balance between public authority and individual rights is effectively realized in practice.