A Recent Constitutional Court Decision on the Failure to Use Expropriated Immovables for Expropriation Purposes
Introduction
In a decision dated 29.09.2021 with application number 2018/357 (“Decision”), the Constitutional Court decided by a large majority that the applicant's right to property was violated due to the fact that the immovables expropriated for the purpose of mass housing construction were not used in accordance with the purpose given for their expropriation. The Decision was published in the Official Gazette dated 15.11.2021 and numbered 31660.
The Decision made by the Plenary Session of the Constitutional Court, is notable for focusing on the principles set forth in the previous case law of both the European Court of Human Rights and the Constitutional Court.
Factual Background
In the case that is the subject of the application, for a total of fifty-two immovables, including immovables in which the applicant has a share, the Ankara Metropolitan Municipality (“Municipality”) had made a public interest decision for the construction of mass housing and the immovables were subsequently expropriated. The applicant and other owners gave consent for the transfer of shares, the immovables in the title deed were transferred to the Municipality and the price became final after a lawsuit to increase the price.
Next, the cooperative that had taken over some shares of one of the immovables in which the applicant had a share from Municipality made an application to the Çankaya Cadaster Directorate to determine the immovable’s actual size. It was determined that the immovable was 16,651 m2 larger than the size stated in the land registry. Following this development, various lawsuits were filed by the Applicant before the courts:
(i) A claim based on unjust enrichment was filed by the applicant alleging that an unjustified increase in the assets of the Municipality has occurred because of 16,651 m2 for which the expropriation price has not been paid. The court hearing the dispute decided to dismiss the case since it had not been filed within the 30-day prescription period following the notification of the expropriation process. The decision became final after the Supreme Court's review.
(ii) A lawsuit was filed by individuals including the applicant against the Municipality on the grounds that the expropriation fee for 16,651 m2 had not been paid. This case was also dismissed with the mention that the area of the immovable property could only be argued to be greater than the amount written in the expropriation document within the 30-day prescription period following the notification of the expropriation process. The dismissal decision became final after the Supreme Court's review.
(iii) A lawsuit was filed by individuals, including the applicant, against the Treasury on the grounds that the expropriation cost for the 16,651 m2 increase resulting from the correction was not paid, and the lawsuit they filed for this purpose was dismissed on the grounds that it was not filed within the time limit. The case was dismissed by the court. Upon appeal of the decision, the decision of the first instance court was reversed. Following the treasury attorney's request for rectification, the reversal decision was overturned and the decision of the first instance court was upheld. Subsequently, an individual application by the applicant and other plaintiffs was made to the Constitutional Court against the final decision. The Constitutional Court has decided that the applicant and other plaintiffs' property rights have been violated in the file with the application number 2016/13545.[1]
The trial process for the dispute that is the subject of the Decision, began with the filing of a lawsuit by the applicant against the Municipality alleging that the immovables were not used in accordance with the purpose of expropriation. Before the Ankara 17th Civil Court of First Instance, the applicant claimed that some parts of the two expropriated immovables in which he was a shareholder were not used in accordance with the purpose given for the expropriation, and that some of the immovables were reserved under the ownership of the Municipality. Within the scope of the reclaim clause, the applicant requested cancellation of the title deeds of a total of twelve parcels[2] and registration of the parcels in his name, and if this was not possible, the payment of losses incurred. The court of first instance dismissed the case, and the appeal request was also dismissed by the court of appeal. The decision to reject the appeal was approved by the Supreme Court. As it is understood from the Decision, the lower courts and the Supreme Court pointed out that in case of expropriation of more than one immovable for the same purpose, the expropriation should be evaluated on the basis of the whole. Accordingly, they held that in the present case the conditions for reclaiming the expropriated immovables or paying compensation were not met, since the immovables were expropriated by the Municipality with the aim of constructing mass housing together with others that were not subject to the dispute, and activities were carried out in line with the project.
Expropriation and Reclaim of Expropriated Property
Pursuant to Art. 46 of the Constitution, the state and public legal entities are authorized to expropriate all or part of the immovable properties in private ownership and to establish administrative servitudes on them in cases where the public interest requires, in accordance with the principles and procedures laid down by law, provided that the objective value is paid in advance. Expropriation Law No. 2942 (“Expropriation Law”) regulates the procedures and principles regarding expropriation.
Pursuant to Art. 23/1 of the Expropriation Law, if within five years from the date of finalization of the expropriation value, no action or installation is carried out by the expropriating administration in accordance with the purpose of expropriation, or if the immovable property is left as it is without being allocated for a need for the public interest, the owner or his heirs may reclaim the immovable property by paying the expropriation price together with the legal interest to be accrued from the day it has been received.
The fourth paragraph of this provision states that if more than one immovable property is expropriated together in order to achieve the same purpose, the status of these immovable properties constitutes a whole, and the provision will be applied accordingly.
Likewise, mentioning the aforementioned provisions, the lower courts and the Court of Cassation determined that the conditions for the reclaim of immovables or the payment of compensation were not met.
Constitutional Claims
The applicant claimed that although some of the expropriated immovables were allocated to the cooperatives for the construction of houses in accordance with the reason for the expropriation, some of them were not allocated and kept under the ownership of the Municipality. Ultimately, the applicant alleged that his right to property had been violated, claiming that the exorbitant difference that resulted from the lack of a reasonable proportionality relationship between the expropriation price and the amount for which the Municipality later sold the immovables imposed an undue burden on him, and that his right to fair trial had been also violated since his claims based on the right to property were rejected on the grounds that they were not made in due time.
The Constitutional Court determined that applicant’s main complaint was that some of the immovables expropriated for the purpose of mass housing construction were not used for expropriation purpose, that profit was made by selling them, and that the lawsuit filed for the return of these immovables or payment of compensation was dismissed. Therefore, the Constitutional Court examined all these complaints under the right to property.
Article 35 of the Constitution states: “Everyone has the right to poverty and inheritance. These rights can only be limited by law for public interest. The exercise of the right to property shall not contravene the public interest.”[3]
In Art. 35 of the Constitution, the right to property is not regulated as an unbounded right, rather, it can be limited by law and for the purpose of public interest. In its Decision, the Constitutional Court emphasizes that the Art. 13 of the Constitution, which contains the general principles regarding the restriction of fundamental rights and freedoms, should also be considered when interfering with the right to property. Accordingly, in order for an interference with the right to property to be in conformity with the Constitution, it must be based on the law, serve a public interest purpose, and must also be carried out by in accordance with the principle of proportionality.
That being said, the Constitutional Court also emphasizes that the concept of public interest effectively protects the right to property by taking into consideration that the right to property cannot be restricted except for the purpose of public interest (by creating a limitation to restriction in this sense). It is also stated in the Decision that it is not sufficient as a rule to have an abstract purpose of public interest in the deprivation of property by referring to the previous Constitutional Court decisions, and that the reasons on which the purpose of public interest is based must be realized concretely.
The Constitutional Court emphasizes that, in accordance with the principle of proportionality, a fair balance should be struck between the public interest sought and the rights of the individual if their property rights are restricted. The Court explains that this fair balance will be disturbed if it is determined that the applicant has personally endured an excessive burden.
The Constitutional Court also states that the prominent feature of expropriation, which is the state's intervention in the field of private property, is that there is a public interest in the change of ownership and this benefit makes that transaction necessary. In fact, the Constitutional Court asserts that unless there is a compelling public interest, it is unthinkable for the state to seize an individual’s property rights even at prices much higher than its objective value.
In the Decision, it was stated that some of the immovables in which the applicant had a share had been transferred to third parties, and some of them had not been used for any other purpose, that would be suitable for expropriation or beneficial to the public since the date of expropriation. The Constitutional Court emphasized that, although the lower courts and the Court of Cassation had stated that the immovables were expropriated by the Municipality with the intention of constructing mass housing alongside with other immovables that were not the subject of this dispute, and that activities had been carried out in accordance with the project, there was no concrete justification for the activities stated to be carried out in accordance with the project and no explanation as to why the immovables that had not been transferred had been left under the ownership of the Municipality since the expropriation date.
As a result of its evaluation made in the light of the principles set on the subject, considering the length of time that had elapsed since the expropriation date and the increase in the value of the immovables in question during this period, the Constitutional Court considered that the applicant had been deprived of the surplus value created by the property. Thus, the Constitutional Court concluded that since the applicant did not seek compensation for the damage suffered, the intervention imposed an excessive and extraordinary burden on the applicant, that the fair balance was disturbed against the applicant, and decided that his right to property had been violated.
In addition to the determination of the violation of rights, the Constitutional Court decided to remand the case for retrial and send a copy of the decision to the Ankara 17th Civil Court of First Instance, pursuant to Art. 50 of Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court, in order to eliminate the consequences of the violation of the property right.
Dissenting Opinion
Five members did not agree with the majority opinion of the court that the property right was violated. According to the dissent, the issue that needs to be examined in the particular case is whether it would be justified in terms of the Constitution to subject the expropriation procedures related to projects covering a wide area, such as mass housing projects, to a different evaluation than the small-scale expropriation procedures consisting of the expropriation of one or more immovables.
Considering that the purpose of expropriation is to provide land suitable for housing construction, that there was no claim that the immovable was used contrary to this purpose, that the housing area was still preserved in the zoning plan, and the realization of projects that spread over a wide area such as a mass housing area would take time; the dissenting members concluded that it was not possible to state that the balance between the individual’s property right and the public interest imposed an excessive and extraordinary burden on the applicant, and therefore it was not possible to mention that the fair balance was disturbed against the applicant resulting from the rejection of applicants’ claims. In this context, considering that the rejection of the lawsuit filed by the applicant does not violate the property right, the decision is not participated in.
Conclusion
The Constitutional Court decided that the right to property was violated in the concrete case because the immovables expropriated for the purpose of mass housing construction were not used in accordance with the purpose of expropriation. In the Decision established by the Plenary Session of the Constitutional Court, the principles set forth in the prior case-laws of both the European Court of Human Rights and the Constitutional Court were comprehensively addressed, and as a result, despite the dissenting opinion of the five members, it was concluded by a large majority that the right to property guaranteed in Article 35 of the Constitution had been violated.
- Decision of the Constitutional Court dated 23.10.2019 with application number 2016/13545 (Access: https://kararlarbilgibankasi.anayasa.gov.tr/BB/2016/13545)
- The two immovables in which the applicant has a share have been parceled out. Twelve parcels with a total area of 1,228,53 m2, which were allocated from the two expropriated immovables, were the subject of lawsuits.
- Translated by the author.
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