Press Release No: Individual Application 109/21
Press Release concerning the Judgment Finding a Violation of the Right to Property due to Expropriation of the Immovable Translocated by way of an Unlawful Parcelling
On 23 November 2021, the First Section of the Constitutional Court found a violation of the right to property safeguarded by Article 35 of the Constitution in the individual application lodged by Sevda Ülger (no. 2019/4821).
The applicant brought an annulment action against the relevant Municipality before the 1st Section of the Administrative Court, seeking the annulment of the process whereby development plan was implemented. At the end of the proceedings, the 1st Section annulled the relevant process. The first instance decision became final without an appeal being filed. The Municipality did not put into operation a new process as to the implementation of the development plan in line with the annulment decision.
The Housing Development Administration of Turkey (“TOKİ”) brought an action, before the incumbent civil court against the applicant, for the determination and registration of the expropriation price. Having accepted and examined the action, the civil court indicated the expropriation price calculated by an expert. On appeal, the Court of Cassation upheld the civil court’s decision as being in compliance with the procedure and law. The request for rectification of the decision was also dismissed by the Court of Cassation.
The Applicant’s Allegations
The applicant claimed that her right to property had been violated due to the determination of an expropriation price pending the action brought for the determination and registration of the expropriation price of the immovable, which had been allocated by the relevant municipality for the replacement of the applicant’s original immovable for ensuring the implementation of the development plan, although the process as to the implementation of development plan had been annulled.
The Court’s Assessment
The expropriation of the applicant’s immovable indubitably constituted an interference with her right to property. It is beyond doubt that TOKİ is entrusted with the power of expropriation, which may be exercised on condition of being compatible with the procedures prescribed in the law. However, it is evident that if it is established by the courts that the expropriation process and the acts forming a basis of the expropriation process were unlawful, the registration of the applicant’s immovable in the name of the TOKİ would devoid of legal basis.
In the present case, the impugned expropriation process was conducted on the basis of the fact that the immovable with parcel no. 643 had been in the applicant’s possession. However, the process as to the implementation of development plan -whereby the applicant’s original immovable, parcel no of which was 536, was translocated to parcel no. 643- was annulled by the administrative court’s decision. Therefore, the dislocation of the applicant’s immovable to the plot of land, namely parcel no. 643 on the same block, no longer had a legal basis.
Besides, it has been observed that the master development plan -whereby the neighbourhood where the applicant’s immovable is located was designed as a region for prevention of squatter houses- and the implementary development plan were annulled by the 2nd Chamber of the Administrative Court. The applicant informed the Court of Cassation of the annulment decision, issued by the 2nd Chamber of the Administrative Court, during the appeal proceedings. However, the Court of Cassation upheld the first instance decision without making an assessment in this respect.
The case file includes no information as to the outcome of TOKİ’s request for the rectification of the decision whereby the Council of State upheld the decision of the 2nd Chamber of the Administrative Court. However, it is evident that by the date when the annulment decision was issued, the changes in the development plan, which were the grounds of the expropriation process, were no longer legally applicable.
In this regard, it has been considered that the applicant’s deprivation of her immovable became devoid of legal ground as the implementation of the development plan with respect to that immovable as well as the changes in the development plans including the Urban Transformation Project, which was the basis of the impugned expropriation, had been annulled.
Consequently, the Court has found a violation of the right to property.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.