Expropriation Without Compensation and the Protection of Property Rights
The right to property is a fundamental right guaranteed by both Article 35 of the Turkish Constitution and Article 1 of Protocol No. 1 to the European Convention on Human Rights (ECHR) . The state's intervention in the right to property for the public good is only possible through expropriation and with immediate compensation .
However, in practice, it is common to encounter situations where the administration seizes certain properties, either de facto or legally, without expropriation . Such situations are referred to as " seizure without expropriation " and have been a subject of debate for many years, both in domestic law and on international platforms.
This article will examine the concept of expropriation without compensation, its types, legal consequences, judicial remedies, and the protection of property rights in light of the case law of the Constitutional Court and the European Court of Human Rights
2. What is Expropriation Without Compensation?
Expropriation without compensation is the situation where the administration uses a property without any expropriation process or legally restricts the right to ownership . This expropriation occurs in two ways:
-
De Facto Encroachment:
This refers to the administration's physical intervention in a property. For example, the unauthorized occupation of a property for the construction of a road, park, sewage system, school, or hospital. -
Legal Intervention:
This refers to the restriction of the use of real estate or the rendering of property rights ineffective through administrative actions, even without a physical intervention.
For example, a property being designated as a "green area" in the zoning plan but not expropriated for years.
3. Legal Basis and Constitutional Framework
According to Article 35 of the Constitution, everyone has the right to property and inheritance; these rights can only be restricted by law for the purpose of public interest.
Expropriation is regulated by Article 46. According to this article:
"The state and public legal entities may expropriate privately owned immovable properties in cases where public interest so requires, provided that they pay the fair compensation in advance."
Therefore, when the administration begins to use a property without expropriating it, it violates the right to property in a manner contrary to the Constitution.
4. Types of Expropriation Without Compensation and the Judicial Process
4.1. Cases of De Facto Seizure
In de facto expropriation, the administration physically occupies the immovable property.
In this case, the owner a compensation lawsuit due to expropriation without compensation .
These lawsuits, initially shaped by Supreme Court precedents, within the jurisdiction of administrative courts .
The legal avenues are divided as follows:
-
Actual intervention: The judicial branch (civil court of first instance) was responsible.
-
However, following Law No. 6111 of 2010 , administrative courts now have jurisdiction.
4.2. Legal Seizure Actions
In legal expropriation, there is no physical intervention in the property. If the property is designated as a public area such as "park," "green area," or "road" in the zoning plans and is not expropriated for a long time , the owner becomes unable to use the property. In this case, the owner can file a full judicial action against the administration and claim compensation.
According to the established jurisprudence of the Council of State, if the administration does not carry out expropriation within 5 years, the owner has the right to file a compensation lawsuit.
(Council of State Administrative Litigation Chambers Board, E.2012/277, K.2013/1655)
5. Violation of Property Rights and Compensation
Expropriation without compensation is an interference that infringes upon the essence of property rights.
Therefore, the administration the market value .
The factors considered in determining compensation are as follows:
-
The comparable values of the property,
-
History of intervention,
-
Intended use (e.g., road, park, public facility),
-
Inflation difference and interest calculation.
The Constitutional Courtalso considers the delayed payment of compensation as a violation of the right to property.
(Constitutional Court, Mehmet Akdoğan and Others Decision, 2013)
6. Constitutional Court Decisions on Expropriation Without Compensation
The Constitutional Court has examined numerous cases of expropriation without compensation through individual applications.
In its important decisions, it has established the following principles:
6.1. Mehmet Akdoğan and Others (2013)
The court ruled that the administration's act of expropriation without compensation constituted a disproportionate interference with the right to property . The state's failure to immediately pay the price of the immovable property undermines the essence of the right to property.
6.2. Kenan Yıldırım and Turan Yıldırım (2014)
In this decision, the Court characterized the administration's failure to expropriate the property despite its actual use of it as " arbitrary interference ." The Court also considered the lack of an effective remedy as a violation.
6.3. Ayşe Sarıkaya Decision (2019)
The court ruled that the failure to pay compensation for the property, which had been left as a "green area" for many years without being expropriated, a violation of property rights .
7. The European Court of Human Rights (ECtHR) Perspective
The European Court of Human Rights has issued numerous rulings against Turkey regarding expropriation without compensation.
In particular, the Papamichalopoulos/Greece (1993) and Aka/Turkey (1998) judgments are key precedents in this area.
The ECHR has adopted the following principle:
"The actual seizure of real estate without compensation being paid within a reasonable time constitutes a violation of property rights."
Therefore, the administration can be held liable not only for seizing property without expropriation, but also for delaying compensation payments .
8. Legal Course of Action in Cases of Expropriation Without Compensation
Property owners whose properties have been seized without expropriation should follow this process:
-
Application to the Administration:
First, a written application must be submitted to the relevant municipality or public institution requesting the expropriation of the property or payment of its value. -
If No Response or Rejection Occurs:
If the administration fails to respond within 60 days, an implicit rejection occurs. In this case, a full judicial review lawsuit can be filed in administrative courts. -
Statute of Limitations: The lawsuit must be filed within 60 days of the notification of the rejection or the expiration of the implicit rejection period .
-
Competent Court:
In cases of de facto or legal seizure, the competent court is the administrative court. -
Evidence:
Important evidence includes land registry records, zoning plan samples, expert reports, and photographs. -
Interest Claim:
Along with compensation, legal interest may be claimed from the date of seizure .
YAĞMUR YORULMAZ, LAW FACULTY STUDENT
About Post Author
