Comparative Analysis of Jurisprudence on Interventions to the Right to Property Through Taxation: The Constitutional Court of Türki˙ye and European Court of Human Right

Abstract

Fundamental rights and freedoms of individuals are guaranteed in both constitutions and international treaties. One of the most important treaties protecting fundamental rights and freedoms is the European Convention on Human Rights (ECHR). Türkiye, which adopts a monist understanding, is one of the countries that are party to the ECHR. Since it was founded in 1959, Türkiye has been one of the three countries that are subject to the most judgments by the European Court of Human Rights (ECtHR). In order to make this bad record better and to protect fundamental rights and freedoms more effectively, the individual application mechanism to the Constitutional Court has been entered into force in Türkiye since 2012. This paper argues whether the case law of the Constitutional Court of the Republic of Türkiye, which is necessary to reduce the applications made to the ECtHR against Türkiye and the violation decisions given by the ECtHR, is compatible with the case law of the ECtHR. The paper analyses the right to property, which is one of the most related rights to taxes, and focuses only on tax interventions to this right. The right to property is important not only because it is directly related to taxes, but also because it is the second most violated right among the violation decisions made by the ECtHR against Türkiye between 1959-2022, after the right to a fair trial. The methodology employed is based on a comparative jurisprudential analysis of the Constitutional Court of the Republic of Türkiye and ECtHR. In this way, the similarities and differences between the way the two courts dealt with the cases in the interventions to the right to property through taxes can be analyzed. As a result, it is understood that both Courts treat the right to property in the same way, but the Turkish Constitutional Court adopts a stricter and more protective interpretation than the European Court of Human Rights in terms of legality criteria.