FIRST SECTION
DECISION
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President
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Serruh KALELİ
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Members
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Burhan ÜSTÜN
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Nuri NECİPOĞLU
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Hicabi DURSUN
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Erdal TERCAN
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Rapporteur
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Selami ER
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Applicant
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Celalettin AŞÇIOĞLU
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I. SUBJECT OF APPLICATON
1. The
applicant alleged that in the case he filed in order to collect the damage
incurred as a result of the immovable of which he is the owner being turned
into a channel by the Directorate General of Water and Sewage Administration of
İzmir (İZSU), his rights to a fair trial and to property were violated as a
result of the case being treated as expropriation without confiscation without
the request of the parties to the case, a decision being delivered to cancel
the immovable as road and determining a lower compensation by means of relying
on the agricultural net income method and requested the return of the
confiscated immovable and compensation.
II. APPLICATION PROCESS
2. The
application was lodged on 12/2/2013 via the Civil Court of First Instance of Seferihisar.
As a result of the preliminary examination of the petition and annexes thereof
as conducted in terms of administrative aspects, it was found out that there
was no deficiency that would prevent referral thereof to the Commission.
3. It was
decided by the First Commission of the First Section on 29/3/2013 that the
examination of admissibility be conducted by the Section and the file be sent
to the Section.
4. In
accordance with the interim decision of the First Section dated 17/9/2013, it
was decided that the examination of admissibility and merits of the application
be carried out together.
5. The facts
and cases which are the subject matter of the application and a copy of the
application were sent to the Ministry of Justice for its opinion on 24/9/2013,
the opinion letter of the Ministry of Justice dated 14/11/2013 was notified to
the applicant on 9/12/2013. The applicant submitted his statements against the
response of the Ministry of Justice on 19/12/2013 within its legal period.
III.
FACTS AND CASES
A. Facts
6. As
expressed in the application form, the annexes thereof and the relevant case
file, the facts are summarized as follows:
7. The section
of the 5.207 m2 immovable, of which the applicant is the owner,
bearing the quality of a field located with the boundaries of the subprovince
of Seferihisar of the province of İzmir, which bears the quality of a field
road, has a lower elevation than the field and causes water to accumulate
during winter was accepted as a riverbed by the Directorate General of İZSU
during rehabilitation works in October 2009, it was dug at a depth of 2 meters
in the shape of a strip with a width of 1,5-2 meters without conducting any
measurement and a portion of 229,01 m2 of it was turned into a
channel.
8. With his
petition dated 22/10/2009, the applicant applied to the Directorate General of İZSU
(the administration) and requested that the mistake, which had been made, be
resolved, that the field road be brought back to its former level by being
filled in, that the entry road into the field be opened and that the valuable
soil taken from his field be returned.
9. Following
the request to revert the immovable back to its former state, the Directorate
General of İZSU filled the channel, which had been opened, with 0,5 meter green
rock fill material instead of fertile soil.
10. Upon this
the applicant applied to the Civil Court of First Instance of Seferihisar and
requested that the damage be determined, a viewing was conducted by the Court
on 25/3/2010, with the decision numbered miscellaneous action 2010/31 it was
indicated as per the expert report dated 12/4/2010 that production and
transport with a total cost of 13.551,65 TL needed to be made in order for the
immovable to be reverted back to its former state and be used as arable land.
11. Following
the failure to cover the damage that occurred as a result of the negligent and
unjust action of the Directorate General of İZSU, the applicant filed a case
before the Civil Court of First Instance of Seferihisar on 3/6/2010 with a
request of 13.500,00 TL in compensation by keeping his rights pertaining to
excess reserved. The defendant administration indicated that they did not cause
the damage to the immovable, that the damage occurred as a result of an
overflow of the river due to excessive rainfall and that the damage could not
be covered since filling work could not be carried out again due to excessive
rainfall, requested the dismissal of the case by stating that the
administration could not be held responsible for a catastrophe that occurred
due to a natural disaster.
12. A viewing
was carried out by the Court on 13/1/2011 along with experts on the site where
the immovable is located, it was determined with the export report dated
28/1/2011, which was submitted to the Court, that the immovable was confiscated
without expropriation within the scope of the river rehabilitation work and
that the confiscation price was 5.141,27 TL.
13. Upon the
objection of the parties, a second viewing was carried out by the Court on
11/5/2011 at the place where the immovable is located accompanied by experts in
order to have a second export report prepared, it was determined with the
expert report dated 9/6/2011 that the immovable, which is the subject of the
case, was confiscated without expropriation within the scope of the river
rehabilitation work and that the value of the confiscated area of 229,01 m2
was 7.495,50 TL with the agricultural net income calculation method.
14. At the
hearing dated 21/6/2011, a period of 20 days was granted to the parties for
them to submit their objections to the expert report and the parties submitted
their objections to the Court.
15. At the
hearing dated 26/7/2011, a new expert examination was requested in order to
determine the damage according to unjust act principles and it was determined
with the expert report dated 19/8/2011 that the cost of production and
transport, which needed to be carried out in order for the immovable that
belongs to the applicant to be used again as arable land, was 13.551,65 TL as
of the date of the case. At the hearing dated 11/10/2011, a period of two weeks
was granted to the parties for them to submit their objections to this report
as well and the parties submitted their objections to the court.
16. With its
decision dated 1/11/2011 and numbered M.2010/139, D.2011/259 the Court
determined that the road, which surrounds a part of the immovable that is the
subject of the case, was registered as İrimi Creek and road during cadastre
work, that it appeared as road on the section, that it was used as a road in
dry weather, that however, it filled with water in rainy weather and caused
overflows, that a part of the immovable belonging to the applicant was also
taken when the administration was conducting river rehabilitation work and that
confiscation without expropriation took place and ruled that 7.495, 50 TL in
compensation be paid to the applicant along with the legal interest that would
accumulate starting from the date of the case by relying on the agricultural
net income method according to the principle of confiscation without
expropriation in line with the expert report.
17. The
applicant appealed the decision of the court of first instance with the
justification that the fact that the judgment was established based on the
value calculated with the agricultural net income procedure instead of
conducting a calculation according to unjust act provisions was unlawful; the
defendant administration appealed the decision with the justification that it
was not taken into consideration that the case was an action for compensation
due to unjust act and that there was no causality relation between the damage
and the work conducted by the administration, that therefore, the fact that a
judgment was established in terms of confiscation without expropriation without
investigating whether or not the conditions for the compensation that needs to
be paid due to unjust act were met was unlawful.
18. The 5th
Civil Chamber of the Supreme Court of Appeals, which examined the request for
appeal, decided with its decision dated 13/6/2012 and numbered M.2012/4383,
D.2012/12659 that the judgment of the court of first instance be approved with
correction by adding the sentence “on
the cancellation as road of the 229,01 m2 part of the immovable,
which was confiscated and turned into road” with
the justification that there was no inappropriateness concerning the ruling on
the collection of the price of the immovable due to the fact that the cost of
reverting to former state was determined to be superior to the cost of the
immovable.
19. The request
for correction, which was examined by the same Chamber of the Supreme Court of
Appeals, was also dismissed with the dated 29/11/2012 and numbered
M.2012/18214, D.2012/24560. The decision became final on the same date.
20. The
finalized decision was notified to the applicant on 18/1/2013.
B. Relevant Law
21. Paragraphs
one and six of provisional article 6 added to the Code of Expropriation dated
4/11/1983 and numbered 2942 with the Code dated 18/6/2010 and numbered 5999
prior to being amended with article 21 of the Code dated 24/5/2013 and numbered
6487 are as follows:
“In the event
that compensation is requested from the administration by the owner due to
immovables or resources, which were de facto set aside for public service or
allocated to a need pertaining to public benefit and on which facilities were
built between the dates of 9/10/1956 and 4/11/1983 despite the fact that their
expropriation actions were not completed or that they were not expropriated at
all, being de facto confiscated partially or completely or by means of
establishing a right of easement without the consent of the owner, resorting
first to the settlement remedy shall be essential.
…
In the event that an agreement cannot be achieved
between the administration and the owner, merely an action for compensation can
be filed by the owner within three months starting from the date on which the
disagreement minutes are drafted or the period under paragraph two expires
without an invitation to agreement. In the event that an action is filed, the
value of the immovable that is de facto confiscated or of the right of easement
established on it on the date of application shall be determined by the court
as per the procedures in the first sentence of paragraph two and it shall be
adjudged that the immovable or the right be registered in the name of the
administration or canceled and that compensation be paid to the owner. The
judgment pertaining to registration or cancellation shall be final and the
right of appeal of the parties as regards the adjudged compensation shall be
reserved.”
22. The
abolished provisional article 2 of the Code on the Restructuring of Some
Receivables and Amendments in the Code of Social Insurance and Universal Health
Insurance and Some Other Codes and Decrees in the Force of Code dated 13/2/2011
and numbered 6111 is as follows:
"Applicable for a period of fifteen years
starting from the date on which this Code enters into force; the provision of
the provisional article 6 of the Code of Expropriation dated 4/11/1983 and
numbered 2942 shall be applied to actions of confiscation without expropriation
after the date of 4/11/1983. However, an additional five percent share shall be
set aside from the allowances that are foreseen for capital expenditures in the
annual budgets of administrations in order to be used, in the event that this
is needed, in payments as per paragraph seven of provisional article 6 of the
Code numbered 2942 with regard to court decisions that are delivered and
finalized in actions for compensation filed due to acts of confiscation without
expropriation after this date.
23. Article 999 of the Turkish Civil Code dated 22/11/2001
and numbered 4721 with the side heading ''Immovables that will not be
registered'' is as follows:
“Immovables
that are not subject to private ownership and that have been spared for the
benefit of public are not registered in the log as long as the establishment of
a right in-kind pertaining to these that needs to be registered is not
concerned. If an immovable that is registered in the land registry transforms
into an immovable that is not subject to entry, it is taken out of the land
registry.”
IV. EXAMINATION AND JUSTIFICATION
24. The
individual application of the applicant dated 12/2/2013 and numbered 2013/1436
was examined during the session held by the court on 6/3/2014 and the following
were ordered and adjudged:
A. Claims of the Applicants
25. In the
case he filed with the request that the damage incurred as a result of the
negligent and unjust act of the Directorate General of İZSU be compensated, the
applicant indicated that the Court ruled on compensation by taking into account
the principle of confiscation without expropriation and by relying on the
agricultural net income method without the request of the parties, that upon
the appeal of the judgment, the Supreme Court of Appeals approved with
correction the judgment of the court of first instance by adding the sentence “on the cancellation as road of the 229,01
m2 part of the immovable, which was confiscated and turned into road” and alleged that his rights to a fair trial
and to property were violated and requested that the violation be removed, that
the canceled share be returned to him and 13.444,65 TL in material compensation
in exchange for his damage.
B. Evaluation
1. In Terms
of Admissibility
a. In Terms of the Right to a Fair
Trial
26. In the
case he filed with the request that the damage incurred as a result of the
negligent and unjust act of the Directorate General of İZSU be compensated, the
applicant alleged that the fact that the Court ruled on compensation by taking
into account the principle of confiscation without expropriation and by relying
on the agricultural net income method without the request of the parties was
not fair, that the court delivered an erroneous decision and that in the end
his rights were violated by means of taking the property he owned away from
him.
27. In its
opinion letter, the Ministry of Justice stated that the acceptance and
evaluation of evidence was primarily the competence of local courts, that the
Constitutional Court is not liable to inspect material and legal mistakes of
local courts as long as rights and freedoms are not violated by local courts
during their assessment of facts and the law, that the applicant expressed his
complaints that are the subject of the application before the Civil Court of
First Instance in the concrete application, that the court provided him with a
period in order to examine the expert reports, that the court obtained an
additional expert report upon the objection of the applicant, that it assessed
the complaints of the applicant as per its due procedure and delivered a
decision away from arbitrariness and in compliance with its due procedure.
28. In his
statements against the opinion letter of the Ministry of Justice, the applicant
indicated that the land, which was confiscated, was at a distance of 1000
meters to the sea, that it had a better value than the value that had been
determined, that neither himself nor the administration had a request for
expropriation, that the fact that the Court delivered a decision in a way that
was not requested by the parties was arbitrary.
29. Paragraph (2) of article 48 of the Code numbered 6216
with the side heading ''The conditions and evaluation of admissibility of
individual applications" is as follows:
“The Court,
.... can rule on the inadmissibility of applications, which are clearly devoid
of grounds.”
30. Article 25 of the Code of Civil Procedure dated
12/1/2011 and numbered 6100 with the side heading ''Principle of the case
being brought by the parties' is as follows:
1)
Apart from the exceptions
envisaged in the law, the judge cannot take into consideration a thing or
incidents not stated by either one of the parties and cannot even display
behavior which may remind these.
2)
Apart from the situations
described by law, the judge cannot automatically collect evidence.
31. Article 33 of the Code numbered 6100 with the side
heading "Implementation of law" is as follows:
“The judge
applies Turkish law in an ex officio fashion.”
32. The
applicant alleged that the fact that the case was dealt with according to
principles of confiscation without expropriation instead of unjust act and that
the value was determined at a low level violated his rights to claim rights and
to property. Since it is understood that the essence of the application relates
to the claim that the legal qualification and interpretation of the dispute
that is the subject of the case by the courts of instance was not on point and
that it fundamentally pertains to the outcome of the trial, the mentioned
complaint will be assessed within the scope of the right to a fair trial, the
claim of violation of the right to Property due to confiscation without
expropriation will be separately examined.
33. In
paragraph four of Article 148 of the Constitution and paragraph (6) of Article
49 of the Code numbered 6216, it is stated that the matters that need to be
taken into account in the legal remedy in examinations as regards individual
applications cannot be subjected to an examination; in paragraph (2) of article
48 of the Code numbered 6216, it is stated that a decision can be issued on the
inadmissibility of the applications which are clearly devoid of grounds by the
Court.
34. It is
clear that applications, which do not contain a claim of violation of a
constitutional right, where it is simply requested that the decisions of courts
of instance be reexamined, are clearly devoid of grounds and that they relate
to matters, which are left outside the venue of the Court by the Constitution
and the Code.
35. In
accordance with the aforementioned rules, the certainty of the incidents which
are made the subject matter of a case before the courts of instance, the
evaluation of the evidence, the interpretation and implementation of legal
rules and whether the consequence reached as regards the dispute by the courts
of instance is fair in terms of merits or not cannot be a subject matter of the
examination of an individual application. As long as the rights and freedoms
stipulated in the Constitution are not violated and unless they contain any obvious
arbitrariness, material and legal mistakes in decisions of courts of instance
cannot be handled in the examination of an individual application either. In
this framework, unless an obvious arbitrariness is present in the evaluation of
the evidence by the courts of instance, the Constitutional Court cannot
intervene in this discretion (App. No: 2012/1027, 12/2/2013, § 26).
36. As a
result of the action for compensation, which the applicant filed with the
purpose of compensation of the damage (reverting to former state) caused by the
administration as a result of unjust act, the viewings conducted by the court,
the expert reports that were obtained, the statements of witnesses, the
examination of relevant documents; it was determined that rehabilitation work
was carried out in the area, which appears as river and road in the records and
surrounds one side of the immovable that belongs to the applicant, in order to
prevent water accumulation and that during this work a total of 229,01 m2
of the immovable belonging to the applicant was confiscated in the form of a
strip of 1,5-2 meters; that moreover there was water accumulation in the area
accepted by the administration as riverbed, which was the subject of the
rehabilitation work, that in winter season it completely filled with water,
that in summer season this area was used as road and the case was handled as an
action for compensation due to confiscation without expropriation by means of
determining that public benefit lied in the action of confiscation.
37. In
addition, the Court conducted the required research during the trial, carried
out on-site viewings two times, obtained two expert reports; moreover, it
obtained an additional expert report upon the request of the applicant for the
determination of the price of reverting the immovable to its former state and
it gave the applicant the opportunity to submit his objections at all stages
and evaluated these objections. As a consequence, the Court delivered its
decision by conducting a trial that is in conformity with its due procedure.
38. With the
justification that there was no inappropriateness concerning the ruling on the
collection of the price of the immovable due to the fact that the cost of
reverting to former state was determined at the appeal stage to be superior to
the cost of the immovable, that moreover, a part of the immovable, which is the
subject of the case, was confiscated as a result of the work conducted in an
area where it was necessary to carry out river rehabilitation, that since the
confiscated part was transformed into road, it could not be the subject of
private property as per article 999 of the Turkish Civil Code, it was decided
that it be canceled off the land registry and that the decision of the court of
instance be approved with correction.
39. As per the
principle of being brought by the parties included under article 25 of the Code
numbered 6100, the judge cannot take into consideration a thing or incidents
not stated by either one of the parties and cannot display behavior which may
remind these. Apart from the situations described by law, the judge cannot
automatically collect evidence. The meaning of this principle is that the
authority to collect the case material, which is composed of the incidents and
evidence that will form the basis for the judgment, belongs not to the judge
but to the parties. As per this principle, the judge is liable to consider the
case material brought by the parties as the basis for the judgment “as they bring it”.
In the incident, which was made the subject of the concrete individual
application, the Civil Court of First Instance delivered its decision by
relying on the evidence that was brought by the parties.
40. Although
it is clear that the judge cannot take into consideration the incidents that
are not brought by the parties as per the above mentioned principle of being
brought by the parties, delivering a decision regarding the dispute by means of
examining the existing case material as per article 33 of the Code numbered
6100, that is, the implementation and interpretation of law are matters, which
the judge will ex officio observe. Within this framework, the legal
qualification and interpretation of the dispute that is the subject of the case
and the solution brought to it are within the discretionary authority of the
judge. Unless an obvious arbitrariness is present in the legal qualification
and interpretation of the subject of dispute by the courts of instance, the
Constitutional Court cannot intervene in this discretion.
41. For the explained reasons, as it is understood that
the claim of the applicant as regards the qualification of the case is related
to the matters that need to be taken into account in the legal remedy, that the
decisions of the court of instance do not contain any obvious arbitrariness, it
should be decided that the complaint of the application pertaining to the
freedom to claim rights is inadmissible due to the fact that "it is
clearly devoid of basis" without examining it in terms of other
conditions of admissibility.
b. In Terms of the Right to Property
42. The
complaint of the applicant to the effect that his right to property was
violated as a result of him being deprived of his property by means of
confiscation without expropriation instead of the expropriation procedure
contained within the Constitution is not clearly devoid of basis, neither any
other reason for inadmissibility is present for this complaint. For this
reason, it is necessary to deliver a decision of admissibility as regards this
part of the application.
2. Examination in Terms of Merits
43. In the
case he filed with the request that the damage incurred as a result of the
negligent and unjust act of the administration be compensated, the applicant
indicated that the Court ruled on compensation by taking into account the
principle of confiscation without expropriation and by relying on the
agricultural net income method without the request of the parties, that
delivering a decision in this manner would pave the way for arbitrary
practices, that in this way the administration could acquire any immovable of
its choosing by infringing upon it and then paying the expropriation price and
alleged that his right to property was violated.
44. In its
opinion letter, the Ministry of Justice indicated that the legal way in
intervention to the right to property with a view to immovables is to conduct
an action of expropriation, that, in practice, interventions in the form of
confiscation do exist, that this situation is criticized in the judgments of
the ECtHR, that in the concrete case, the only matter that legitimizes the
confiscation of the immovable belonging to the applicant without an action of
expropriation was the court decision that determined that this situation was
not legal and ruled on the payment of compensation, that in this way the legal
assurance was ensured by establishing a reasonable balance between the
applicant's right to property and the public benefit and provided a statement
to the effect that these matters are submitted to attention when examining the
applicant's complaint regarding the right to property.
45. In his
statements against the opinion letter of the Ministry of Justice, the applicant
indicated that the land, which was confiscated, was at a distance of 1000
meters to the sea, that he had not wanted its expropriation, that neither
himself nor the administration had a request for expropriation, that the fact
that the Court delivered a decision in a way that was not requested by the
parties was arbitrary.
46. Article 35
of the Constitution with the side heading ''Right of Ownership''
is as follows:
"Everyone has the right to property and
inheritance.
These rights may be restricted by law only for the
purposes of public interest.
The exercise of the right to property cannot be
contrary to public interest."
47. Article 46
of the Constitution with the side heading ''Expropriation'' is as
follows:
“When the
public interest requires so, the State and public entities are entitled to
completely or partly expropriate real estate under private ownership and
establish administrative easement on them on the condition that their real
value is paid in advance and in accordance with the principles and procedures
set forth by law.
The expropriation compensation and the fee for
increase as it is finally decided are paid in cash and in advance. ...In such
cases where the law may allow payment in installments, the period of
installments cannot exceed five years; in such a case, the installments are
paid in equal amounts.
…
48. Article 1
of the Additional Protocol 1 to the Convention with the side heading ''Protection
of property" is as follows:
"Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any
way impair the right of a State to enforce such laws as it deems necessary to
control the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or penalties.”
49. Following
the violation of the immovable pertaining to the applicant during the
rehabilitation work conducted on the riverbed and the field road, which
surround the immovable that the applicant uses as field, and the subsequent
handling of the case by the court as an action for compensation due to
confiscation without expropriation, the ownership of the part of the immovable
that was confiscated as a result of the trial was taken from the applicant and
it was transformed into road. In this case, although it is clear that there is
an intervention to the applicant's right to property, whether or not this
intervention violated the applicant's right to property should be examined.
50. It is
stipulated under article 35 of the Constitution that the right to property is
not an absolute right and that it can be restricted for public benefit
purposes. Whereas article 13 of the Constitution determines the general
principles in restricting the fundamental rights and freedoms, article 46 of
the Constitution, which grants the authority to expropriate immovables under
private ownership to the State and public legal entities and determines the
principles of expropriation, contains special provisions as to the restriction
of the right to property. As per the principle of the holism of the
Constitution, articles 13 and 46 of the Constitution need to be taken into
consideration along with article 35 in the evaluation of the mentioned request
of the applicants (App. No: 2013/817, 19/12/2013, § 28).
51. Modern
democracies are regimes in which fundamental rights and freedoms are ensured
and guaranteed in the broadest manner. Restrictions, which restrict fundamental
rights and freedoms to a great extent and render them non-exercisable, bear
prejudice to the essence of the right. Not only the measure of the restrictions
imposed upon fundamental rights and freedoms, but its conditions, reason, method
and assurances such as the legal remedies that are prescribed against the
restriction should all be evaluated within the scope of a democratic societal
order. As a result, the fundamental rights and freedoms may be limited
exceptionally and only without prejudice to their essence to the extent that it
is compulsory for the requirements of the democratic societal order and only
with law. It is unthinkable in a democratic society that a restriction imposed
upon fundamental rights and freedoms be in excess of what is required by the
purpose that is sought with this restriction. In a democratic state of law,
regardless of what the sought after purpose is, restrictions should not be
imposed via methods that are not specific to these regimes and they should not
be taken to a level where they would render the exercise of a particular
freedom significantly difficult or completely remove it (CC, M.2012/108,
D.2013/64, D.D.22/5/2013).
52. Whereas it
is adjudged under article 35 of the Constitution that restrictions to be
imposed upon the right to property must be introduced for public benefit
purposes and via law, article 1 of the Protocol (1) stipulates that deprivation
from property can be realized for public benefit, under circumstances envisaged
in the code and in compliance with international conventions. While the ECtHR
acknowledges that principles, which have been developed based on case law that
relies on judicial decisions that have become stable, by interpreting
conditions envisaged in code, in other words, lawfulness in a large manner (see
Malonei v. the United Kingdom, App. No: 8691/79, 2/8/1984, §§ 66-68), the
Constitution provides a wider protection that the Convention by stipulating
that all restrictions are to be imposed absolutely by code (App. No: 2013/817,
19/12/2013, § 31).
53. The
regulation of rights and freedoms and interventions and restrictions to be
imposed on these by code is one of the most important elements of the
democratic state of law that prevents arbitrary intervention to these rights
and freedoms and ensures legal security. Nevertheless, the obligation to
regulate with code does not prevent the implementation of an intervention to be
made to a right via secondary arrangements to be issued by the executive organ
such as regulations, by-laws, communiqués and circulars in such a way as not to
exceed the framework of the code (App. No: 2012/1246, 6/2/2014, § 60)
54. The
principles of legal security and certainty are among the preconditions of a
state of law. The principle of legal security, which aims to ensure the legal
security of individuals, requires legal norms to be predictable, individuals to
be able to have confidence in the state in all of their acts and actions, and
the state to avoid methods that would tarnish this feeling of confidence in its
legal regulations. The principle of certainty refers to legal regulations being
explicit, clear, understandable and implementable in a way that will not give
rise to any interruption and doubt in terms of both individuals and the administration,
moreover, to them including protective guarantees against arbitrary practices
of public authorities. (CC, M.2013/39, D.2013/65, 22/5/2013).
55. The action
of confiscation of immovables that are the subject of private ownership by the
State, public legal entities, public institutions, which are authorized to
carry out expropriations, or by real and private law persons to the benefit of
whom expropriation can be carried out on the condition that public benefit
exists, in violation of article 46 of the Constitution or the Code of
Expropriation numbered 2942, partially or completely, de facto or
legally without a price is called “confiscation
without expropriation”.
56. Confiscation
without expropriation is a method which offers a lesser assurance compared to
expropriation and which is not legal. Indeed, as per the Code numbered 2942, in
order for a decision of expropriation to be delivered, first the administration
needs to have the value of the immovable determined, in the event of a
conflict, the administration needs to request the determination of the price by
applying to the court. The decision of expropriation becomes final with the
depositing of the determined price to the bank in advance. For this reason, a
public administration will not be able to make a decision of expropriation
unless it possesses sufficient allowance to pay for the expropriation price. On
the other hand, the burden of settlement and applying to the case remedy in
relation to immovables that have been confiscated without expropriation is
attributed to owners. For this reason, the liability of paying case fees also
belongs to owners (See CC, M.2010/83, D.2012/169, 1/11/2012).
57. Confiscation
without expropriation provides the administration with the opportunity of
utilizing the immovable and acquiring the immovable without performing an
action of expropriation. Since there is no such action of expropriation, the
only element that offers the opportunity of legitimizing the transfer of the
immovable that is used and providing a certain legal guarantee is the court
decisions, which determine that the utilization by the administration is not
legal and rule on the payment of “compensation
due to confiscation without expropriation” to
individuals. The practice of confiscation without expropriation forces the
applicants, who remain as the owner of immovables on the legal front, to file
cases against the administration, which does not render its action rightful
with any justification of public benefit. The authenticity of such a public
benefit justification is evaluated only later by the courts. In other words,
whatever the case might be, confiscation without expropriation leads to legally
accepting an unlawful situation that is voluntarily created by the
administration and providing the administration with the opportunity to benefit
from its unlawful action. This kind of a practice, which provides the
administration with the opportunity of trespassing beyond the official rules of
expropriation bears the danger of coming across unpredictable and arbitrary
situations for individuals. The practice in question is not of the quality to
provide a sufficient degree of legal guarantee and to constitute an alternative
to an expropriation that is duly realized (See ECtHR, Sarıca and Dilaver v.
Turkey, 11765/05, 27/5/2010, §§ 40, 43, 45).
58. Articles
35 and 46 of the Constitution make it obligatory for interventions that would
terminate ownership of immovables to be legal. This obligation is a requirement
of the state of law. As per the provision of article 46 of the Constitution and
the Code numbered 2942, what is essential is the administration acquiring the
immovable by means of conducting an action of expropriation. As it is a
question of conducting an action of expropriation that is compliant with the
Constitution and codes as per the method, confiscation without expropriation,
which is a practice that is not based on the Constitution or codes and
terminates individuals' right to property, cannot be considered within the same
legal framework as an expropriation that is compliant with the codes. This kind
of a practice, which provides administrations with the opportunity of
trespassing beyond the official rules of expropriation bears the danger of an
intervention that is unpredictable and arbitrary for owners of immovables.
59. When the
documents present in the application file are examined; it is understood that
the administration's confiscation of the immovable in the form of a strip of
approximately 1,5-2 meters occurred as a result of the perception by the
administration that a part of the immovable belonging to the applicant was road
due to the fact that the wire fence of the adjacent immovable was put up in
such a way as to violate the road and that a sufficient measurement was not
performed, that is, as a result of neglect and that this situation is also
acknowledged by the applicant.
60. In the
incident that is the subject of the application, it is determined with court
decision that while the administration was conducting rehabilitation work in
order to prevent water accumulation that had the potential of harming areas
used as agricultural land in the area that appears as road on the section and
was registered as İrimi Creek and Road in the field sketch during cadastre
work, used as road in dry weather, part of which was determined to have the
appearance of a riverbed, that is, while conducting riverbed rehabilitation
work for a legitimate public benefit purpose, it caused loss of fertile soil by
means of confiscating without expropriation a strip of 229,01 m2 of
the immovable with an area of 5.207 m2 pertaining to the applicant,
fertile soil was taken away, it was replaced with fill material, in this manner
the immovable that is under the ownership of the applicant was confiscated
without expropriation without following the processes stipulated by the
Constitution and codes.
61. As a
result, it has been concluded that the administration's confiscation without
expropriation of a part of the immovable belonging to the applicant within the
framework of river rehabilitation work as a result of its negligence is an
intervention that does not conform to the procedure indicated under articles 35
and 46 of the Constitution and the Code numbered 2942 and that the intervention
made to the right to property violated the principle of lawfulness.
62. For the
aforementioned reasons, it should be decided that the applicants' right to
property guaranteed by Article 35 of the Constitution was violated by means of
not abiding by the principle of lawfulness.
C. In Terms of Article 50 of the Code
Numbered 6216
63. The
applicant alleged that his right to property was violated as a result of
confiscation without expropriation by means of the administration's filling a
229,01 m2 part of the immovable belonging to himself with fill
material within the scope of river rehabilitation work, requested that the
expropriation decision be annulled and the 229,01 m2 part of the immovable
be returned to him and that 13.444,65 TL be paid to him by applying interest to
the sum obtained after the deduction of expenses from the price that is
necessary to revert the damage inflicted to his field.
64. Despite
not making an explanation directly related to compensation, the Ministry of
Justice made an assessment in its opinion to the effect that there was no
arbitrariness in the Court's hearing and concluding of the case as a case of
confiscation without expropriation and that the expropriation price determined
as per the Code numbered 2942 along with its interest was paid to the applicant
in exchange for the part of the immovable that was confiscated and that
therefore a balance was struck between the benefit of the public and the
benefit of the individual.
65. Paragraph
(2) of Article 50 of the Code numbered 6216 with the side heading ''Decisions"
is as follows:
"If the determined violation arises out of a
court decision, the file shall be sent to the relevant court for holding the
retrial in order for the violation and the consequences thereof to be removed,
In cases where there is no legal interest in holding the retrial, the
compensation may be adjudged in favor of the applicant or the remedy of filing
a case before the general courts may be shown. The court, which is responsible
for holding the retrial, shall deliver a decision over the file, if possible,
in a way that will remove the violation and the consequences thereof that the
Constitutional Court has explained in its decision of violation."
66. It has
been decided that the intervention to the immovable belonging to the applicant
in the form of confiscation without expropriation, which is not envisaged in
the Constitution and the Code numbered 2942, violated the right to property.
67. In addition,
a fair balance needs to be struck with the mentioned intervention between the
desired public benefit that is in the form of preventing water accumulation and
overflows by rehabilitation of the riverbed and the applicant's right to
property. This balance is achieved by paying the real equivalent of the part of
the immovable that was confiscated determined by the court to the applicant. The
fact that courts decide on the payment of compensation due to confiscation
without expropriation achieves a fair balance between the public benefit and
the benefit of the individual, it also provides a certain legal guarantee by
means of determining that the utilization by the administration is not legal.
68. Even
though the applicant alleges that the immovable is more valuable, there is no
doubt regarding the fact that the Court and experts who carry out price
determinations need to carry out price determinations by relying on objective
criteria. In the concrete case, the expropriation price, which was calculated
as compensation according to the agricultural income method in compliance with
the price determination principles stipulated in the Code numbered 2942 for the
229,01 m2 part of the immovable that was taken away from him with
the confiscation, was paid to the applicant along with its legal interest that
would accumulate starting from the date of the case. The Court concluded the
price determination by carrying out two viewings, resorting to expert reports
and allowing the applicant to submit his objections at all phases and taking
these objections into consideration.
69. In this
case, when it is taken into consideration that a reasonable proportion is
established between the desired public benefit and the applicant's right to
property, to which an intervention was made, by paying to the applicant the
expropriation price determined according to the date of the case along with its
interest that accrued starting from the date of the case in exchange for the part
of immovable 229,01 m2 that was confiscated, that the confiscation
action of the administration stemmed from negligence and that a violation
decision was delivered with regard to the unlawful confiscation, it should be
decided that there is no need to separately pay compensation to the applicant.
70. It should
be decided that the trial expense composed of the fee of 198,35 TL which was
incurred by the applicant and determined in accordance with the documents in
the file be paid to the applicant.
V. JUDGMENT
In the light
of the reasons explained, it was decided UNANIMOUSLY on 06/03/2014 that;
A. The
application
1- is INADMISSIBLE
in terms of its complaint regarding the right to a fair trial due to it
being "clearly devoid of basis" without examining it in terms
of other conditions of admissibility,
2- is
ADMISSIBLE in terms of the complaint pertaining to the right to property,
B. That the
applicant's right to property enshrined in Article 35 of the Constitution WAS
VIOLATED,
C. The compensation
requests of the applicant be DISMISSED,
D. that the
trial expense composed of the fee of 198,35 TL, which was incurred by the
applicant be PAID to the applicant,
E. The payment
be made within four months as of the date of application by the applicant to
the State Treasury following the notification of the decision; that in the
event that a delay occurs as regards the payment, the legal interest be charged
for the period that elapses from the date, on which this period comes to an
end, to the date of payment. F. A copy of the decision be sent to the
relevant court.
