Constitutionality Review

7/5/2021
Press Release No: Plenary Assembly 12/21
Press Release concerning the Decision Annulling the Provisions Precluding the Initiation or Suspension of Enforcement Proceedings in the Absence of Finalised Court Decisions in cases of Confiscation without Expropriation
The Constitutional Court, at its session dated 4 February 2021, found unconstitutional and annulled the first and second sentences of Provisional Article 14 added to the Expropriation Law no. 2942 (file no. 2019/89). |
Contested Provisions
The contested provisions stipulate that no enforcement proceedings shall be initiated with respect to the court decisions issued at the end of the actions brought with respect to the amounts and compensations in cases of confiscation without expropriation unless they become final, and that in such cases, the pending enforcement processes shall be suspended unless the finalised court decisions are submitted.
Grounds for the Request for Annulment
It was maintained in brief that the contested provisions were unconstitutional on the grounds that resorting to the method of confiscation without expropriation, instead of the expropriation procedure enshrined in the Constitution, led the relevant administrations to gain unjust interests vis-à-vis the right holders, that the provisions encouraged administrations to act unlawfully, and that the prolonged payment of the compensations awarded due to the confiscation without expropriation, which was in the form of a tortious act, constituted a disproportionate interference with the right to property.
The Court’s Assessment
In the Turkish law, administrations are allowed, in principle, to dispose of properties which they need in the performance of public services but are not in their possession through the method of expropriation. Expropriation is one of the exceptional cases where the right to property is restricted or set aside by the administration, based on its unilateral decision, without the owner’s consent.
Pursuant to Article 46 of the Constitution concerning the expropriation, this practice, basic element of which is considered as public interest, is the State’s interference in the sphere of private ownership. The act of expropriation is considered lawful only when there is no other option but to seize an immovable and an individual’s right to property is overridden by public interest, as well as when it is in pursuit of the procedural safeguards set forth in the Constitution.
In the past, immovable properties were allocated de facto to public service without expropriation for various reasons such as unplanned urbanisation and restricted budget of the administrations. The administrations’ practice whereby privately-owned immovable properties are allocated to public service through the methods which are sometimes in breach of the Constitution and legislation has resulted in the emergence of the procedure called as the confiscation without expropriation.
The contested provisions cause delay in the owner’s ability to obtain the amount or compensation awarded in his favour for the redress of the interference with his right to property, which has been contrary to the procedure enshrined in the Constitution, by precluding the initiation of enforcement proceedings with respect to the court decisions that have not been finalised yet and leading to the suspension of the pending enforcement proceedings. They therefore impose a restriction on the rights to property and to a fair trial. It is set forth in Article 35 of the Constitution that the right to property may be restricted in the public interest. However, such restrictions cannot be contrary to the safeguards enshrined in Article 13 of the Constitution.
The contested provisions are suitable and necessary for attaining the aims of preserving the resources necessary for the performance of public services for which administrations are liable, as well as of preventing any setbacks likely to occur in public services.
They are, however, related to the receivables in the form of amounts and compensations awarded due to the acts of confiscation without expropriation, which amount to a de facto confiscation, in disregard of the constitutional provisions concerning the expropriation procedure. In consideration thereof, seeking the condition, for the redress of the damage sustained by an owner whose right to property has been infringed, that the court decision awarding him the relevant amount or compensation must be finalised places an excessive burden on him. Therefore, the contested provisions are not proportionate to the aim pursued.
Besides, the provision in the second sentence, which gives rise to a disproportionate restriction on the rights to property and to a fair trial, impairs the public trust in the State and infringes the principle of legal security since it obstructs, to a certain extent, the execution of court decisions on account of the legislative acts of a retrospective nature in the course of the pending process for the collection of the amount receivable.
Consequently, the contested provisions have been found unconstitutional and therefore annulled.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect. |