Individual Application

The Facts

The Energy Market Regulatory Authority (“EMRA”) rendered a decision, on public-interest grounds, as to the expropriation of the immovable properties of the applicants. Accordingly, the Ministry of Finance decided to expropriate the determined immovable properties, and the Council of Ministers also decided on the application of the urgent expropriation procedure.

In the judicial proceedings initiated by the State Treasury (the Treasury), the impugned immovable properties were decided to be seized. The applicants filed an administrative action requesting the annulment of the decision on public-interest grounds, the decision on expropriation and the urgent expropriation decision taken to register the immovable properties under the name of the Treasury for the construction of a wind power plant. During the proceedings, the applicants’ request for a stay of execution was dismissed. Pending the administrative proceedings, the applicants requested, in the action for determination of the expropriation price and registration filed by the Treasury against the applicants, that the administrative action for annulment should be considered as a preliminary issue. Nevertheless, this request was dismissed on the grounds that the decision on the stay of execution had not been submitted. Following the acceptance of the action for determination of the expropriation price and registration, the Plenary Assembly of Administrative Chambers of the Council of State (“Plenary Assembly”) found unlawful the urgent expropriation procedure and annulled the said procedure. However, the Plenary Assembly upheld the Chamber’s decision insofar as it concerned the decision on public-interest grounds and the expropriation decision.

The Applicants’ Allegations

The applicants alleged that their right to property had been violated due to the refusal to annul the decision on public-interest grounds and the expropriation decision, as well as to the registration of the immovable properties under the name of the administration despite the annulment of the Council of Ministers’ decision as to the application of the urgent expropriation procedure.

The Court’s Assessment

The annulment actions against the ordinary and urgent expropriation procedures fall within the sphere of administrative jurisdiction, while the actions for determination of the expropriation price and registration are carried out before judicial courts. The action for determination of the expropriation price and registration may be sometimes concluded prior to the adjudication of the annulment actions before the administrative courts, despite being heard at around the same time. As the decision rendered in the action for determination of the expropriation price and registration have a final effect, the immovable properties are registered under the name of the administrations, and therefore the administrative courts’ decisions to be given in favour of the owners following the registration lead to the various legal questions. In addition to being subjected to severe interference such as expropriation, the owners are also saddled with the task of filing a separate action to re-register the immovable under their own name.

Moreover, the judicial courts assess that especially the decisions on the stay of execution rendered by the administrative courts against the urgent expropriation decisions should not be considered as a preliminary issue. Therefore, the decision on the stay of execution cannot yield any tangible effect on the action for determination of the expropriation price and registration. In light of this information, it has been observed that the legal regulations on the stay of the execution aiming to prevent discrepancies between the decisions rendered as a result of judicial and administrative proceedings do not have the prospect of providing effective redress and that there is a structural problem as to the urgent expropriation procedure. In this respect, it has been assessed that the institution of stay of execution enshrined in Law no. 2942 was interpreted strictly by the judicial courts in practice and that the said institution thus failed to offer sufficient protection. In addition, it has been concluded that the current jurisprudence of the Plenary Assembly, according to which the stages of the expropriation proceedings should be considered independently of one another, has negative impacts on the prospect of the actions to be brought by the property owners based on the allegations of unlawful registration.

In the present case, the judicial courts ordered the application of urgent expropriation procedure regarding the impugned immovable properties, which began to be de facto used by the administration immediately thereafter. The applicants were deprived of the protection offered by the right to property due to the non-conclusion of the examination of lawfulness for over two years starting from the date when the administration began to de facto use the immovable properties and until the date when the annulment decision was rendered by the administrative court. Furthermore, although the urgent expropriation procedure applied in the applicants’ case was found unlawful by a decision of the administrative court, the immovable properties were registered under the name of the administration. It has been concluded that as a result of the prolongation of the administrative proceedings, the annulment decision rendered in favour of the applicants became ineffective, and that the court decision did not lead to a tangible outcome and yield a prospect of success as an effective legal remedy. Consequently, the Court has concluded that the interference with the right to property by way of the urgent expropriation procedure, which resulted in the deprivation of the property, did not meet the lawfulness criteria.

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