THE FACTS

[7-33] A power transmission line was made to run through a part of the property registered in the name of the applicant, without expropriation. The applicant brought a civil action seeking compensation for the impugned confiscation without expropriation.

The incumbent court requested an expert report on the value of the property. Relying on the expert report and also considering that the value of the property decreased by 5.5 percent, the court awarded the applicant 375,129.98 Turkish liras (TRY) and held that the administration would be granted a permanent easement on the part of the property remaining under the power transmission line and that the relevant part would be registered in the name of the administration.

Upon appeal, the Court of Cassation quashed the first instance court’s decision on the ground that the rate of decrease in the value due to easement could not exceed 2.5 percent of the total value of the property. The applicant’s request for rectification of the decision was dismissed.

During the proceedings carried out following the quashing judgment, a new expert report was issued and the easement value was calculated as TRY 171,034.92 and it was decided that the administration would be granted a permanent easement on the part of the property remaining under the power transmission line and that the relevant part would be registered in the name of the administration.

The decision was upheld by the Court of Cassation. Besides, the applicant’s request for rectification of the decision was dismissed. The applicant subsequently lodged an individual application.

V.           EXAMINATION AND GROUNDS

34.         The Constitutional Court, at its session of 25 October 2018, examined the application and decided as follows:

A.           The Applicant's Allegations

35.         The applicant claimed that his immovable property was de facto expropriated and he was unable to construct on his own property on account of the fact that an energy transmission pipeline passed through it. According to the applicant, due to this restriction imposed on the immovable property, the value of the entire immovable must be paid as compensation, not the amount corresponding to the easement right. The applicant stated that the decrease in value of the immovable property caused by the passage of the energy transmission pipeline which was allegedly 2.5% did not reflect the truth. The applicant asserted that in the calculation of compensation, the value of the whole section through which the energy transmission line was passed, as well as the decrease in the value of the remainder of the immovable property should have been taken into account. Moreover, the applicant further maintained that the value of the immovable property was not 2, 2 times lower than that of the immovable property taken as an example, that as its value was the same as that of the example, that an error was made in the calculation of the compensation, and that as a result, his rights to a fair trial and property were violated.

B.           The Court’s Assessment

36.         Article 35 of the Constitution, titled “Right to property”, reads follows:

"Everyone has the right to own and inherit property. These rights may be limited by law only in view of public interest. The exercise of the right to property shall not contravene public interest.”

37.         The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). Even though the applicant alleges that his right to a fair trial was violated, it has been found that the complaints of the applicant regarding the de facto expropriation should be examined, in essence, within the scope of the alleged violation of the right to property.

1.             Admissibility

38.         Alleged violation of the applicant’s right to property must be declared admissible for being manifestly ill-founded and there being no other grounds for its inadmissibility.

2.             Merits

a.             Existence of Property

39.         In the present case, there is no doubt about the existence of the property to which the impugned right of easement was granted as it was registered on behalf of the applicant.

b.            Existence and Nature of Interference

40.         The right to property, regulated in Article 35 of the Constitution, encompasses the above and bottom of the immovable property. In this respect, the owner of the immovable property may also use his powers arising from the right to property in terms of both above and bottom of the immovable. As a matter of fact, it is clearly stated in Article 718 of the Turkish Civil Code no. 4721 dated 22 November 2001 that the ownership of the land also covers the layers of air above and the layers of supply below. Accordingly, construction of cable cars and similar transportation lines and all kinds of bridges above and subway and similar rail transport systems under private immovable property constitutes an interference with the right to property. Therefore, in the concrete case, there is no doubt that granting an administrative easement right to pass a power transmission line through a section of the applicant's immovable constitutes an interference with the right to property.

41.         The first paragraph of Article 35 of the Constitution provides for the right to peaceful enjoyment of the property, stipulating that everyone has the right to property and the second paragraph draws a framework of interference with the right to peaceful enjoyment of property. In the second paragraph of the said article, the conditions under which the right to property may be restricted are listed and a general framework of the conditions for deprivation of property is provided. In the last paragraph of the said article, it is set out as a rule that the use of the right to property cannot be contrary to the benefit of the society. Thus, the state was allowed to control and regulate the use of property. Special provisions allowing the control of property by the state may be found also in other articles of the Constitution. It should also be noted that deprivation of property and regulation of property are special forms of interference with the right to property (see Recep Tarhan and Afife Tarhan, no. 2014/1546, 2 February 2017, §§ 55-58).

42.         In the present case, the immovable property of the applicant was confiscated without granting of an administrative right to easement, and the right of easement was registered in the title deed on behalf of the administration in the action filed by the applicant. Accordingly, the main purpose of the granting of the administrative easement is not to impose a prohibition of construction. Therefore, the confiscation of the under or above layers of the immovable property as is the case with the present dispute results in partial deprivation of the property. In this case, the owner of the immovable property has been deprived of the layers of air above or the layers of supply below it. Accordingly, the interference by means of granting easement right to the administration for the passage the energy transmission line from the applicant's immovable must be examined within the framework of the second rule on deprivation of property (For similar judgments of the ECtHR, see Kahyaoğlu and Others v. Turkey, no. 37203/05, 31 May 2016, § 28; and Cinga v. Lithuanina no. 69419/13, 31 October 2017, § 84).

c.             Whether the Interference Constituted a Violation

43.         Article 13 of the Constitution reads as follows:

“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”

44.         The right to property is not regulated as an unlimited right in Article 35 of the Constitution and it was provided for that this right may be restricted by law for the public interest. While interfering with the right to property, Article 13 of the Constitution which regulates the general principles concerning the limitations on the fundamental rights and freedoms, should be taken into consideration. In accordance with the article in question, fundamental rights and freedoms may only be limited by law, on account of the reasons stated in the relevant articles of the Constitution, without violating the requirements of the democratic public order and the principle of proportionality. In order for the interference with the right to property to be in compliance with the Convention, the interference must be based on the law, must pursue the public interest, and must be carried out in accordance with the principle of proportionality (see Recep Tarhan and Afife Tarhan, § 62).

i.               General Principles

45.         In accordance with Article 46 of the Constitution which regulates expropriation, the constitutional elements of expropriation are the performance by state and public legal entities, the existence of the public interest, the compliance with the principles and procedures provided for in the decision on expropriation, and the payment of the real value of the immovable in advance and in cash as a rule. Expropriation, of which the primary element is acknowledged to be public interest, is the state's interference with private property. Expropriation is deemed to be lawful when it is compulsory to confiscate an immovable property, when the public interest prevails the right to private property and when it is performed by in compliance with the procedural safeguards set out in the Constitution (see the Court’s judgment no. E. 2017/110, K. 2017/133, 26 July 2017, § 11).

46.         As provided for in Article 46 of the Constitution, expropriation is a constitutional limitation imposed on the right of property guaranteed in Article 35 of the Constitution. As such, an arrangement in accordance with the constitutional elements of expropriation stipulated in Article 46 does not contradict Article 35. Expropriation is regulated in the Constitution as a method that may be used for the transfer of private property to the public and means the termination of the right to private property on an immovable by the state for the public interest without the consent of the owner on the condition that its value is paid to the owner (see the Court’s judgment no. E. 2017/110, K. 2017/133, 26 July 2017, §§ 12, 15).

47.         In its various judgments, within the scope of both norm control and individual application, the Constitutional Court acknowledged that the interferences in the form of de facto expropriation violated the right to property for being unfounded.

48.         The Constitutional Court annulled Article 38 of Law no. 2942, which provides for a prescription period of twenty years in terms of filing an action in respect of a de facto expropriated immovable. In the judgment in question, it was stated that the administration cannot act in breach of the principles about expropriation by confiscating the immovable property without using the means and powers granted by the Constitution in accordance with the law. It was emphasized in the judgment that the confiscations made without using the expropriation method whose limits were determined and permitted in the Constitution did not have a constitutional basis and transfer of the immovable property at the end of the 20-year prescription period to the administration without any compensation is beyond the limitation of the right to property and damages the essence of the said right (see the Court’s judgment no. E. 2002/112, K. 2003/33, 10 April 2003).

49.         On the other hand, Provisional Article 2 of Law no. 6111 dated 13 February 2011 on the implementation for fifteen years of Provisional Article 6 of Law no. 2942 with respect to de facto expropriations carried out after 4 November 1983 was also annulled by the Constitutional Court. In the said judgment, it was emphasized in particular that the contested provision contained more unfavourable rules than the guarantees provided for in Article 46 of the Constitution and Law no. 2942. Accordingly, enabling administrations to acquire immovable properties by way of de facto expropriation instead of properly expropriating them will not only undermine the principle of legality but also legal certainty and foreseeability. Consequently, it was decided that the impugned rule must be annulled for being in violation of Articles 2, 35 and 46 of the Constitution, noting that it is unacceptable for laws to promote illegal practices in a state of law (see the Court’s judgment no. E.2010/83, K.2012/169, 1 November 2012).

50.         As regards individual applications, the interferences with the right to property through de facto expropriation were discussed for the first time in the application of Celalettin Aşçıoğlu (no. 2013/1436, 6 March 2014). In the incident which constituted the subject matter of this application, the inferior courts accepted the applicant's action for compensation. In the said application, the Constitutional Court noted that Articles 35 and 46 of the Constitution require that the interferences that terminate the ownership of the immovable property be based on the law, and that this is indeed a requirement of being a state of law. Accordingly, as required by Article 46 of the Constitution and Law no. 2942, the administration should acquire an immovable property by expropriation. In the face of lawful expropriation in accordance with the Constitution and laws, de facto expropriation, which does not derive its basis from the Constitution and laws and is a practice that terminates the right of ownership of individuals, cannot be evaluated within the same legal framework as a legal expropriation. Such an application, which allows administrations to go beyond the official expropriation rules, carries the risk of unpredictable and illegal interference for the owners of the immovable property (see Celalettin Aşçıoğlu, § 58). In terms of redress in the judgment in question, it was decided that there was no need to award compensation on the grounds that the Constitutional Court found a violation and it was decided by the inferior courts to pay the expropriation compensation with the interest to the applicant (see Celalettin Aşçıoğlu, § 69).

51.         Similarly, in the case of İbrahim Oğuz and Others (no. 2013/5926, 6 October 2015), the Constitutional Court ruled that the right to property was violated in terms of the legality criteria on account of de facto expropriation (see İbrahim Oğuz and Others, §§ 56-89). In the said judgment, the compensation awarded by the inferior courts was found to be sufficient and the finding of a violation was considered to be sufficient (see İbrahim Oğuz and Others, §§ 106, 107).

52.         In the applications of Mustafa Asiler (no. 2013/3578, 25 February 2015) and Funda İnciler and Others (no. 2014/2582, 14 September 2017), it was decided that the right to property was violated in terms of the legality criteria due to de facto expropriation (see Mustafa Asiler, §§ 26-46; and Funda İnciler and Others, §§ 26-32). In terms of redress with regard to the consequences of the violation, the amount of compensation in respect of pecuniary damages awarded by the inferior courts was considered to be sufficient and it was decided to pay non-pecuniary compensation to the applicants separately (see Mustafa Asiler, §§ 64, 65; and Funda İnciler and Others, §§ 52, 53).

ii.            Application of Principles to the Present Case

53.          In the present case, as can be understood from the relevant proceedings, the administration de facto expropriated the applicant's immovable property. It was found established by a court decision that that the immovable property owned by the applicant was de facto expropriated without following the procedure set out in Law no. 2942 in breach of Articles 13, 35 and 46 of the Constitution.

54.         De facto expropriation gives the administration the opportunity to use and obtain the ownership of an immovable property without expropriation. On the other hand, this interference deprives the property owner of very important constitutional guarantees. First of all, in spite of the fact that it is stipulated in the first paragraph of Article 46 of the Constitution that the expropriation compensation corresponding to the real value of the immovable property shall be paid in advance, the in-advance payment condition is not fulfilled in case of de facto expropriation. In de facto expropriation, pecuniary compensation corresponding to the real value of the immovable property is awarded only if the applicant filed an action for compensation at the end of the proceedings, the immovable property that was de facto expropriated is registered in the name of the administration. Whereas in the ordinary expropriation procedure, appropriation is provided at the beginning of expropriation and at the end of the relevant action, it is decided to register the immovable on behalf of the administration if the expropriation compensation is secured to be paid to the owner of the property. Thus, de facto expropriation grants the administration the ownership of the property without the in-advance payment of the real value of the property. It is clear that this violates Article 46 of the Constitution as well as provisions of Law no. 2942.

55.         Furthermore, the fact that the value of the immovable property is not paid in advance produces new problems in terms of the execution of legal decisions. As a matter of fact, in the application of Kenan Yıldırım and Turan Yıldırım (no. 2013/711, 3 April 2014), the Constitutional Court ruled that the right to property was violated due to the non-payment of the compensation awarded in the compensation case filed on account of de facto expropriation (see Kenan Yıldırım and Turan Yıldırım, §§ 55-75). Following this application, the Constitutional Court held in nineteen separate applications concerning de facto expropriation that the right to property was violated due to the fact that the compensation based on the court decision was not paid for the same reason (see Halil Afşin and Others, no. 2013/4824, 25 February 2015; and Nurdan Erkan and Others, no. 2014/311, 14 September 2017 and other similar applications). Accordingly, it is clear that the in-advance payment of the expropriation compensation is a very important constitutional guarantee in terms of the right to property.

56.         Undoubtedly, the main basis of the expropriation process is public interest according to Articles 13, 35 and 46 of the Constitution, and the expropriation process made by the administrations and the decision on whether this process is for the public interest or not must be subject to judicial review. As a matter of fact, it is stipulated in Article 14 of Law no. 2942 that property owners may file an action for annulment before administrative court against the expropriation procedure. In the practice of de facto expropriation, the ability of owners to file administrative actions against the expropriation procedure and the decision on public interest is eliminated.

57.         Moreover, pursuant to Law no. 2942, in order to decide on expropriation, the value of the immovable must be determined by the administration in the first place, and in case of a dispute, the administration must apply to the court and request an expropriation compensation appraisal. On the other hand, in the event of de facto expropriation, the burden of reconciliation and filing an action is imposed on the owners. Lastly, it should also be noted that there is a procedure regulating seizure in matters of urgency in Law no. 2942 regarding the situations where the administrations are in an urgent need of immovable properties and where the public interest requires. In other words, while it is possible for the administration, that is in need of an immovable property for public interest, to apply to the ordinary expropriation procedure and in urgent cases to the expropriation procedure stipulated in the Law mentioned; it is not legitimate to prefer the de facto expropriation method.

58.         Consequently, de facto expropriation leads to the legal acceptance of a situation created by the administration which is against the both Constitution and the law and it gives the administration the opportunity to benefit from its unlawful behaviour. Such a practice, which allows the administration to go beyond certain rules with regard to expropriation in breach of the constitutional guarantees, causes unpredictable and arbitrary issues in terms of protecting the right to property. The practice in question which clearly does not respect the legal guarantees provided for in Articles 13, 35 and 46 of the Constitution, should not be seen as an alternative way to the expropriation procedure.

59.         In the present case, there is no case that requires departure from the principles mentioned. Therefore, it has been concluded that the de facto expropriation carried out on the applicant's said immovable property was a procedure which did not comply with the principles set out in Articles 13, 35 and 46 of the Constitution and with Law no. 2942, and that the interference with the right to property was not lawful.

60.         Consequently, the Constitutional Court has found a violation of the right to property safeguarded by Article 35 of the Constitution.

C.           Application of Article 50 of Code no. 6216

61.         Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“(1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a judgment finding a violation has been rendered, what is required for the resolution of the violation and the consequences thereof shall be ruled on...

(2) 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 favour 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.”

62.         The Constitutional Court has concluded that the right to property was violated due to the de facto expropriation of the applicant's immovable property by the administration. Thus, in the present case, the violation was caused by an administrative act.

63.         Within the framework of the application, it must be determined in the first place whether the financial damages that the applicant suffered due to the violation have been redressed. In the present case, the inferior courts decided to establish the easement right of the de facto expropriated immovable property on behalf of the administration and awarded pecuniary compensation to the applicant. The applicant complained that the amount of pecuniary compensation awarded was not sufficient. The applicant based this claim on two different grounds:

i.               Firstly, the applicant stated that the immovable property which had been qualified as a building land (arsa) lost its quality of being eligible for construction due to the passage of the energy transmission line through it, that it became completely unusable, that appraisal of the value of the easement right was incorrect, and that the value of ownership of the part of the immovable property that had been de facto expropriated must be calculated as compensation. According to the applicant, the value of ownership of the area where the easement right was established on behalf of the administration as well as the sum of the loss of value in the remaining part of the immovable property constituted the total damages and accordingly the loss of value should be calculated as 5.62 percent.

ii.            Secondly, the applicant expressed that the immovable property which is the subject matter of the case was as valuable as the immovable taken as an example and complained that although the value of one square meter of the immovable property taken as an example was TRY 389.38; the expert panel determined the value of his immovable property TRY 106.19.

64.         As the Constitutional Court has noted before, the task of determining the expropriation compensation, as a rule, belongs to the inferior courts, which have the opportunity to access the evidence at first hand and which are specialized in this field. Determination of the value of the immovable property is a technical matter which requires expertise. For this reason, the determination of the value of the expropriated immovable property is within the scope of the authority and duty of the specialized courts and the specialized chambers of the Court of Cassation. The Constitutional Court is neither a specialized court in this matter, nor does it have a duty to calculate the compensation and decrease in value in individual applications made under the right to property. The finding to be made by the Constitutional court in respect to the relationship between the interference in the right to property and the compensation paid is merely an examination of proportionality (see Mukadder Sağlam and Others, no. 2013/2511, 22 January 2015, § 49; Abdülkerim Çakmak and Others, no. 2014/1964, 23 February 2017, § 52).

65.         The applicant's claim that he could not completely use a part of the immovable property due to the passage of an energy transmission line from his immovable was considered to be ill-founded. Because, the passage of the energy transmission line from the immovable, per se, does not completely transfer the ownership of the immovable property to the administration. As mentioned above, the applicant is deprived of the air layer above or the supply layer below it. However, the ability of the applicant to benefit from the soil or lower layers thereof does not cease to be. In the event that the immovable was determined as a public service area as a result of a zoning application, that would be a separate interference. Therefore, as the impugned immovable property is going to be remain registered in the applicant's name in the land register, the payment of the amount of the easement as compensation instead of paying the value of the whole value of the part from which the energy transmission line passes is considered to be a reasonable redress to remedy the pecuniary damages of the applicant.

66.         As a matter of fact, the inferior court declared that in accordance with Article 11 of Law no. 2942, the compensation regarding the right of easement amounts to the total loss of value in the entire immovable property due to the grant of this right. Accordingly, the value of the immovable property which is the subject matter of the case before the grant of the right of easement was established, and then the rate of decrease in value that occurred in the entire immovable due to the energy transmission line was determined. Subsequently, the compensation to be paid due to the grant of the easement was calculated by multiplying this ratio and the total value of the immovable property which is the subject matter of the case. In this context, it has been observed that the damage caused by the fact that the applicant cannot construct on the part below the energy transmission line was among the factors considered in determining the rate of decrease in the value of the immovable property. In addition, it has also been recognized that the value of the pylon area was also added to the compensation amount.

67.         Moreover, the immovable property to be taken as an example and how the compensation will be calculated according to the differences between the immovable property taken as an example and the impugned immovable property could be appreciated by the experts in their fields. The applicant, on the other hand, did not submit any concrete information, document, or report indicating the opposite of the findings in the expert report and he only raised an abstract allegation that the immovable property which is the subject matter of the dispute had the same value as the immovable property taken as an example. In this regard, the inferior court concluded the compensation appraisal by carrying out on-site inspection, requesting expert reports, enabling the applicant to submit their objections at any stage and taking into account these objections. The applicant did not have any other clear complaints regarding the determined amount of compensation other than those mentioned above. When an examination limited to the applicant's complaints, the amount of compensation awarded by the inferior courts was considered sufficient to cover the pecuniary damages suffered by the applicant.

Mr. Serdar ÖZGÜLDÜR and Mr. Serruh KALELİ did not agree with this conclusion.

68.         On the other hand, the practice of de facto expropriation is a very important issue that leads to a violation of the right to property directly under Article 46 as well as Articles 13 and 35 of the Constitution. Moreover, arrangements aiming at the settlement of the de facto expropriation practices conducted until 9 October 1956 were made under Article 1 of Law no. 221 on the Real Estates Allocated for Public Service by the Public Utility Bodies or Institutions dated 5 January 1961 and between 9 October 1956 and 4 November 1983 by Provisional Article 6 of Law no. 2942. Nevertheless, it is observed that even after 4 November 1983, the administrations continued carrying out de facto expropriation. Therefore, de facto expropriation, which causes a violation of the right to property, which is secured as a fundamental right, constitutes a structural issue in our country.

69.         In the face of such a problem, the inferior courts award only pecuniary compensation, which only consists of the expropriation compensation, and do not impose other sanctions such as non-pecuniary compensation. This, in turn, leads administrations to prefer de facto expropriation practice rather than the ordinary expropriation procedure. Hence, since the legally unfounded de facto expropriation practice does not satisfy the requirements of the protection of the right to property stipulated in the Constitution, it cannot be considered as an alternative to the ordinary expropriation procedure. As a matter of fact, in the Action Plan on Prevention of Violations of the European Convention on Human Rights annexed to the Council of Ministers Decree which had been promulgated in the Official Gazette no. 28928 dated 1 March 2014, certain arrangements were provided for in order to prevent the administrations from carrying out de facto expropriation. The importance of implementing these measures and arrangements aiming at ending the de facto expropriation is apparent.

70.         Consequently, even if the applicant's financial losses were compensated, it should be noted that the interference with the right to property de facto expropriation, which is found to be contrary to the explicit wording of the Constitution and which is not based on law, constitutes a structural issue as mentioned above. For this reason, in order to take necessary measures by the administration knowing that there is a violation of the right to property, which is guaranteed by the Constitution, and in order not to cause new violations of a similar nature, a copy of the decision must also be sent to the Ministry of Energy and Natural Resources, to which Türkiye Elektrik Dağıtım A.Ş., the responsible administration that confiscated the immovable, is associated.

71.         The total court expense of TRY 2,206.90 including the court fee of TRY 226.90 and the counsel fee of TRY 1,980, which is calculated over the documents in the case file, must be reimbursed to the applicant.

VI. JUDGMENT

For these reasons, the Constitutional Court held on 20 September 2018:

A.           UNANIMOUSLY that the application be declared ADMISSIBLE,

B.           That the right to property guaranteed under Article 35 of the Constitution was VIOLATED;

C.           BY MAJORITY and by dissenting opinion of Mr. Serdar ÖZGÜLDÜR and Mr. Serruh KALELİ, that the applicant's compensation claims be REJECTED;

D.           That a copy of the judgment be SENT to the Ministry of Energy and Natural Resources;

E.            That the total court expense of TRY 2,206.90 including the court fee of TRY 226.90 and the counsel fee of TRY 1,980 be REIMBURSED to the applicant;

F.            That the payments be made within four months as from the date when the applicant applies to the Treasury and the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time-limit to the payment date;

G.           That a copy of the judgment be SENT to the Hilvan Civil Court of First Instance (E. 2014/58, K. 2014/85); and

H.           That a copy of the judgment be SENT to the Ministry of Justice.

CONCURRING AND DISSENTING OPINIONS OF JUSTICE SERDAR ÖZGÜLDÜR AND JUSTICE SERRUH KALELİ

1.             In the grounds advanced in the majority opinion, it was stated that even though the amount of compensation awarded by the inferior courts was sufficient to cover the pecuniary damages suffered by the applicant, the payment of the value of the immovable property as pecuniary compensation does not, per se, provide redress for damages incurred due to the violation of the applicant's constitutional right and consequently, it was held that the applicant's right to property, guaranteed by Article 35 of the Constitution, has been violated. However, we agree with the conclusion in question with the grounds we had previously stated as we held, in the examination of the case file, that the applicant's immovable property, which was classified as a "building land"(arsa), was treated as if it had been farmland (tarım arazisi) during the calculation of the pecuniary compensation arising from de facto expropriation; that the limit of 2.5% value depreciation was unfounded; that therefore the allegations in question were not addressed in the grounds stated by the inferior courts; that hence the judgment was rendered without providing a relevant and sufficient grounds in respect of the for the claims that amount of pecuniary compensation which was determined as the expropriation compensation was calculated faultily; that in view of those, the applicant's right to property was violated.

2.             In view of the grounds indicated above, as we deem it appropriate to send the case file back to the relevant inferior court, we do not agree with the judgment that only requires one copy of the decision to be sent to the institution that performed de facto expropriation.