Individual Application

The Facts

The General Directorate of Highways (“the Administration”) decided to expropriate 439.68 m² of the applicant’s immovable property for designation of road, construction and safety area. As no agreement could be reached with the applicant, the Administration brought an action before the civil court of first instance for the determination and registration of the expropriation compensation. The expert reports issued following on-site inspections determined the expropriation compensation without including the value of the structures located on the remaining part of the property. The applicant objected to the expert report, requesting that the value of the structures situated on the unexpropriated part of the property also be taken into account in the calculation of the expropriation compensation. The court, however, relied on the expert report and determined the compensation as 23,691.77 Turkish liras (TRY), ordering the registration of the relevant part of the property in the name of the Administration. The Court of Cassation quashed this decision.

The Court of Cassation held that as the structures on the immovable property partially extended into the expropriated area and could no longer be used in their current condition, their value must be added to the final compensation amount. Upon new expert examinations, the compensation was increased to TRY 526,358.40 by also including the value of the structures situated on the unexpropriated part of the immovable property. The trial court granted the Administration time to pay the said amount, but the Administration failed to do so within the prescribed period. Thereupon, the court dismissed the case on procedural grounds.

The Applicant’s Allegations

The applicant claimed that his right to property had been violated, arguing that his property had been expropriated without the full payment of the expropriation compensation in advance.

The Court’s Assessment

Pursuant to the Expropriation Law no. 2942, court decisions ordering the registration of expropriated property in the name of the administration are final and not subject to appeal. In this regard, appeal proceedings may be initiated only with respect to the determination of compensation. In practice, once the trial court notifies the land registry of its final judgment, the property is registered in the name of the administration, regardless of whether the compensation determined by the court reflects the real value of the property. Where, during the appeal proceedings, it is revealed that the compensation awarded does not correspond to the real value of the immovable property and must be increased, the current practice results in the transfer of ownership to the administration without ensuring that the real value is paid to the owner. In other words, before the final compensation is determined and fully paid to the owner, the administration acquires ownership of the immovable property, and thereby the right to enjoy it for the purpose of expropriation, while the former loses his property. Apparently, this practice results in the transfer of the immovable property to the administration, contrary to the advance payment guarantee enshrined in Article 46 of the Constitution, which requires that the real value of the expropriated property, consisting of both the compensation and any additional amounts awarded, must be paid in a single instalment at the latest when the property is registered in the name of the administration.

Despite the existence of previous judicial practices which provide that in cases where the administration fails to pay the compensation determined by the court, the property must be re-registered in the name of the owner, Law no. 2942 does not provide for such a mechanism.

Therefore, in the present case, the expropriation compensation corresponding to the real value of the immovable property was neither finally determined nor paid before the registration order. Accordingly, the advance payment guarantee enshrined in Article 46 § 1 of the Constitution was breached, depriving the applicant of the protection afforded by his right to property. The Court has thus concluded that the interference, which resulted the applicant’s total deprivation of his property without the advance payment of its real value, did not comply with the letter of the Constitution within the meaning of Articles 13, 35 and 46 of the Constitution.

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