ERDEM-NEWSLETTER-2018-metin

304 NEWSLETTER 2018 Court as per this Article is referred to as “concrete norm control” in the doctrine. Within this context, unconstitutionality may only emerge regard- ing a “norm to be applied in a case.” According to one opinion, the expression of “norm to be applied” should be accepted as “every law to be enforced by one of the parties.” 1 According to another opinion, the measure to detect the norm to be applied is “effectiveness on the merits;” thus, the Constitutional Court should only make an examina- tion limited to the norm to be applied to the merits of the case. 2 The Constitutional Court, taking into account the fact that the transaction was made between the siblings in the present case, stated that the transaction to be deemed as a donation concerns the term “ kinship by blood ” in subparagraph (1) of the third paragraph of Ar- ticle 278 of the EBL. In this context, due to the fact that there is no transaction between conjoints, relatives to the third degree by blood or marriage, adopter and adopted, and the parts of “conjoints, relatives …by marriage, adopter and adopted,” in subparagraph (1) of the third paragraph of Article 278 of the EBL, will not be applied in the present dispute, and it has decided that the court is not authorized to render a decision regarding the annulment of these statements. Therefore, the Constitutional Court conducted a limited examina- tion regarding Article 278’s part to be applied in the present case by interpreting the concrete norm control and, pursuant to the Article, has only examined the transactions that are deemed to be donations, as the transactions between kinship by blood. Assessment on Unconstitutionality Article 35 of the Constitution includes the provision that “ Ev - eryone has the right to own and inherit property . These rights may be limited by law only in view of the public interest . The exercise of the right to property shall not contravene public interest .” 1 Armağan, Servet : Anayasa Mahkememizde Kazai Murakabe Sistemi, İstanbul, İ.Ü.H.F. Yayını, 1967, p. 86. 2 Kıratlı, Metin : Anayasa Yargısında Somut Norm Denetimi (İtiraz Yolu), Sevinç Matbaası, Ankara, 1966, p. 22.