20 September 2018 Thursday

Hüseyin Ünal (no. 2017/24715, 20 September 2018)

The Facts

The applicant filed a request with the municipality for the expropriation of his immovable property that had been allocated as a road in the master development plan.

The municipality proposed exchange of the immovable; however, the applicant refused it as the proposed immovables were not equivalent to his immovable. Thereafter, he filed a case against the municipality before the administrative court and claimed the current market value of his immovable.

The administrative court noted that pursuant to the Provisional Article 11 of the Expropriation Law no. 2942, effective as of 7 September 2016, the five-year period for the expropriation of the immovable properties allocated by implementary development plans for public services and governmental agencies would start running as from the date of entry into force of this provision and, therefore, concluded that it could not decide on the merits of the dispute at that stage.

The applicant then appealed the decision; but the regional administrative court found the first instance decision compatible with the procedure and law and therefore dismissed the applicant’s appellate request with final effect.

The Applicant’s Allegations

The applicant maintained that his right to property was breached for the non-expropriation of his immovable that had been allocated as a road in the city development plan; and he was made to endure another five-year due to the new legal arrangement that took effect after he had filed the case.

The Court’s Assessment

It is explicit that development plan implementations and allocation of an immovable as an area for public service within this scope constitute a breach of the right to property. However, it is acknowledged that such interference has a legal basis and pursues a legitimate aim.

Before amending the Provisional Article 11 of Law no. 2942, in cases where the immovable properties that had been allocated by administrations for public use were not expropriated within five years since the ratification of the city development plan, the inferior courts held that the right to property was led to uncertainty, which impaired the fair balance required to be struck between the public interest and the right to property.

The Provisional Article 11 of Law no. 2942 sets forth that, for the immovables which fall into the scope of the Additional Article 1 and use of which has been restricted by law before the entry into force of the Provisional Article 11, the five-year period shall start running as from the date of its entry into force.

Accordingly, the inferior courts stated that, in respect of the immovables use of which had been restricted prior to the entry into force of the Provisional Article 11 added to Law no. 2942, the five-year period granted to the administration would start running as from the entry into force of the law, and they thereby found no ground to decide on the merits of the cases.

The Constitutional Court annulled, on 28 March 2018, the Provisional Article 11 of Law no. 2942, which sets forth that the five-year period prescribed for the expropriation of the immovables allocated by city development plans for public services and governmental agencies shall start running by 7 September 2016, the date the provision took effect.

In the present case, the applicant’s immovable has not been expropriated yet in spite of being allocated as a road in the 1/1000 scale revision-implementary development plan that was approved on 5 February 2004. Nor has the applicant been awarded any compensation.

During this period pending the construction restriction on the applicant’s immovable, the applicant was deprived of enjoying his right to property as he was not able to appropriate, use, or benefit from his immovable.

As a result, the failure to expropriate the immovable which had been allocated as a road in the city development plan even though fourteen years had elapsed since the ratification of the implementary development plan has placed an excessive personal burden on the applicant.

Accordingly, it has been concluded that the fair balance required to be struck between the applicant’s right to property and the public interest had been upset to detriment of the applicant, and that the interference was not proportionate.

For the reasons explained above, the Court found a violation of the right to property safeguarded by Article 35 of the Constitution.