Press Release No: Constitutionality Review 23/22

Press Release concerning the Decision Annulling the Provision Precluding Appellate Review of the Final Decisions concerning the Cases Filed to Determine the Expropriation Price

The Constitutional Court, at its session dated 24 February 2022, found unconstitutional and annulled the first sentence of Article 341 § 2 of the Code of Civil Procedure no. 6100 in so far as it concerned “…the cases filed to determine the expropriation price” (file no. E. 2021/34). 

Contested Provision

It is prescribed in the contested provision that the decisions rendered in the cases pertaining to assets price or value of which is under 3.000 Turkish liras shall be final.

Ground for the Request for Annulment

It was maintained in brief that a person who claims that a given court has set a value, which is lower than its real price, for his immovable property, should have been entitled to raise such claims before courts, through appellate review, in order to obtain the real value of his immovable property, which was also required for the protection of the right to property. It was accordingly argued that the contested provision was unconstitutional.

The Court’s Assessment

In the civil and criminal jurisdiction, there is an opportunity to lodge an appeal against the final decisions of the first instance courts. The inability of the individuals to appeal the first instance decisions, which are not in their favour, constitutes a restriction on their right to appellate review of decisions by another court. In this sense, the contested provision setting forth that the decisions concerning the cases filed to determine the expropriation price, which is under a certain amount, shall be final, restricts the right to appellate review of decisions by another court.

Pursuant to Article 13 of the Constitution, the arrangements imposing a restriction on this right must be introduced by law and in conformity with the grounds of restriction prescribed in the Constitution, as well as must be proportionate. In this regard, the formal existence of a statutory regulation which intends to restrict the right to appellate review of decisions is not sufficient, and the applicable provisions must also be definite, accessible and foreseeable, in order to avoid all risks of arbitrariness.

The phrases “…price or value…” in the contested provision indicate the value of the assets giving rise to a dispute among the respective parties. However, in the cases filed to determine the expropriation price, the very essence of the dispute is the establishment of the value of a given immovable property through court decisions, in other words, the determination of the price of the immovable property by the court. Therefore, such cases differ from the other types of assets-related cases where the individuals may put forward their claims or the subject-matter of dispute by indicating a certain price or value. Therefore, as the claims under certain amounts or value cannot be the subject-matter of such cases, it is not possible to rely on the claim, which has been raised but not accepted by the court, as a criterion in attributing a final nature to the decisions.

Besides, in the cases filed to determine the expropriation price, in qualifying a given decision as final in respect of the owner of the immovable property, in other words, in determining whether the decision may be subject to an appellate review, the amount indicated by the court in favour of the owner is clearly of no importance. That is because, by the very nature of the dispute, the basic reason underlying the appellate request of the owner is his claim to the effect that the impugned amount determined by the court as expropriation price is not correct and does not correspond to its real value.

In this regard, it has been observed that there is no clear and precise arrangement, which would avoid any doubt, as to the criterion in qualifying decisions as final in the cases filed to determine the expropriation prices. Therefore, the Court has concluded that the contested provision imposing a restriction on the right to appellate review of a decision fails to meet the legality requirement.

Besides, it is envisaged in Article 46 § 1 of the Constitution that the assets may be expropriated provided that the actual compensation is paid. Pursuant to this provision, the expropriation of an immovable property on the basis of its real price is also a requisite of the right to property safeguarded by Article 35 of the Constitution.

The vagueness of the contested provision as to which criterion shall be relied on in attributing final nature to decisions rendered in the cases filed to determine expropriation price may prevent individuals from getting the real price of their immovable properties due to discrepancies that may arise in the interpretation and assessment thereof.

Consequently, the contested provision has been found unconstitutional and therefore annulled.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.