Individual Application

The Facts

The area where the applicant’s immovable property is also located is largely classified as an industrial area in the Hadımköy Industrial Zone master plan on a scale of 1:5,000 and the Hadımköy Industrial Zone, 1^st Stage urban development plan on a scale of 1:1,000. In the letter addressed by the Anatolian Industrialists Collective Workplace Building Society (ASKOOP) to the Housing Development Administration of Türkiye (TOKİ), it was requested that the area covering the applicant's immovable property be expropriated, provided that all relevant expenses be covered by the ASKOOP. On this request, an order was issued for the expropriation of the area also covering the applicant’s immovable property, pursuant to Article 9 of Law no. 1164 on Land Production and Utilisation, with a view to bringing the industrial facilities in the European Side into a single centre.

Following the expropriation order issued upon the ASKOOP’s request, a protocol was signed by and between the TOKİ and the ASKOOP whereby it was agreed that ASKOOP would deposit advance payment in the TOKİ's bank account for the expropriation procedures and that it would also be liable for the expropriation prices, title deed expenses as well as any kind of taxes and fees to accrue. It was also agreed between the parties that the proceedings would be monitored by the ASKOOP’s lawyers and that following the expropriation, the immovable properties registered in the title deed in the name of the TOKİ would be transferred to the ASKOOP. Accordingly, the immovable properties were sold and transferred to ASKOOP after the relevant area covering that of the applicant had been registered in the title deed in the name of the TOKİ. Upon the expropriation order, the TOKİ filed an action before the civil court against the applicant for the determination of the expropriation price. At the end of the proceedings, the civil court indicated the expropriation price as 7,250,000 Turkish liras and concluded that the immovable property would be registered in the name of the TOKİ on condition of the payment of the expropriation price to the applicant. However, the Court of Cassation quashed the first-instance decision, stating that the expropriation price determined by the court was high.

The action filed by the applicant against the TOKİ for the annulment of the expropriation process was rejected by the incumbent administrative court for lack of jurisdiction. Thereupon, the applicant brought an action for the annulment of the relevant process before the competent administrative court, which also dismissed the action. After the Council of State had quashed the administrative court’s decision, TOKİ requested rectification of the decision. The Council of State subsequently revoked its quashing decision and upheld the first-instance decision.

The Applicant’s Allegations

The applicant claimed that his right to property had been violated due to the dismissal of his action for the annulment of the impugned expropriation. 

The Court’s Assessment

It should be primarily noted that there is no necessity for the expropriation of the industrial zones, which are not an area of public service, by the State and public legal entities. Accordingly, the ASKOOP is empowered to directly purchase the immovable property in question without filing a request with the TOKİ for expropriation.

However, pursuant to the Law no. 1164, the TOKİ is authorised to make expropriation for the allocation of lands and territories for industrial investments, despite not being an area of public service. Nevertheless, in order for the termination of private ownership by way of expropriation by the State and all public legal entities including the TOKİ, the expropriation process must be conducted in accordance with the safeguards laid down in Article 46 of the Constitution.

In the present case, all expenses incurred in connection with the expropriation process initiated upon the request of the ASKOOP, a legal entity under private law, were covered by the ASKOOP. After the completion of the expropriation process under the supervision of ASKOOP, the immovable properties registered in the name of the TOKİ were transferred, by way of sale, to the ASKOOP. In the light of these circumstances, it is apparent that the expropriation process was conducted through the TOKİ for the ASKOOP that is a private-law legal entity, as it was agreed before the expropriation process that the immovable properties to be expropriated would be transferred to the ASKOOP.

Given its nature, the expropriation may be conducted by the State and public legal entities, under Article 46 of the Constitution, where the public interest so requires. An expropriation process revealed to be conducted upon, and entirely in the name of, a private person’s request casts doubt on the existence of any public interest which would be capable of justifying the deprivation of property. This would remove the individuals’ opportunity to dispose of their own immovable properties as they wish -including the refusal to hand over their property- under free-market conditions. Besides, it is laid down in Expropriation Act no. 2942 that the expropriation process may be conducted, by the State and public legal entities, in the name of the real and private-law legal entities merely relying on a lex specialis. However, in the present case, the authorities could not point to a lex specialis, in the favour of the ASKOOP, that would justify the impugned expropriation process.  

Consequently, although it appears that the expropriation process was conducted by the TOKİ, the impugned expropriation process revealed to be conducted for the ASKOOP falls foul of the safeguard inherent in Article 46 of the Constitution, according to which the State and public legal entities shall be empowered to expropriate in cases where the public interest so requires and in accordance with the principles and procedures prescribed by law. It has been thus concluded that the impugned expropriation process led to unforeseeable and arbitrary circumstances within the meaning of the prevention of the right to property, and that this interference had no legal basis.

Consequently, the Court has found a violation of the right to property.