The Process for Annulling Administrative Actions in Cases of Expropriation Without Compensation

Entrance

Expropriation without compensation is the act of the administration physically or legally intervening in a property without carrying out any expropriation process, thereby eliminating the owner's right to property. In the Turkish legal system, such interventions constitute a violation of the right to property, which is specifically guaranteed by Article 35 of the Constitution, and are central to many judicial debates.

This article will analyze the aspects of expropriation without compensation that constitute "administrative actions"; distinguish between de facto and legal expropriations; and discuss the possibility of filing an annulment lawsuit, within the framework of the Council of State's jurisprudence, the Supreme Court's changing approach from the past to the present, and the Constitutional Court and ECHR decisions in the context of individual applications.

1. The Concept of Expropriation Without Compensation

1.1 Definition and Types

Expropriation without compensation is classified in legal doctrine and judicial decisions under two main headings:

Actual Occupation: The administration's actual occupation of the immovable property, the construction of buildings, roads, parks, schools, etc.
Legal Intervention: The act of rendering the right to dispose of a property unusable through regulations such as zoning plans, building bans, or declarations of protected areas.

1.2 Discussion of Legal Nature

While de facto seizures are generally considered an "administrative act," legal seizures are often an "administrative process." This distinction is crucial in determining the appropriate judicial authority to appeal to.

2. Administrative Nature of Expropriations Without Compensation and Actions for Annulment

2.1 Evaluation with Administrative Procedure Elements

Administrative acts are unilateral declarations of will based on public authority and producing legal consequences. Actions constituting legal expropriation – for example, properties designated as educational areas in the zoning plan – can be subject to annulment proceedings to the extent that they possess these elements.

Example:

If a property is designated as a road area in the zoning plan for over 30 years without expropriation, its property rights are essentially emptied of their essence. Because this planning decision directly infringes on rights, it constitutes an "administrative act.".

3. The Distinction Between Legal Remedies: Annulment Action or Damages Action?

A person who has been subjected to expropriation without compensation can pursue two different avenues:

3.1 Full Judgment (Compensation) Case

It is filed to seek compensation for damages incurred as a result of expropriation by the administration without compensation. Generally, Civil Courts of First Instance or Administrative Courts have jurisdiction.

3.2 Annulment Case

For regulations that constitute legal intervention – such as zoning plans and building ban decisions – an application can be made to the Administrative Court requesting the annulment of the relevant administrative act.

Council of State, 6th Chamber, Case No. 2018/2365 E., Decision No. 2020/3174 K.:

"If the property right has been completely eliminated under the name of 'development partnership share' in the zoning plan, this action is an administrative act that can be annulled."

4. Procedural Issues and Time Limits in Annulment Cases

In annulment cases, according to Article 7 of the Administrative Procedure Law No. 2577, 60 days . However, determining this period in cases of expropriation without compensation is generally a matter of debate.

4.1 Determining the Start Date of the Period

Actual Intervention: The time limit starts from the date the owner learns of the actual intervention.
Legal Intervention: The time limit begins on the date the property's intended use is changed in the zoning plan, or when the owner learns of this change and suffers a loss.

4.2 Implicit Refusal and Time Limit Issues

If no response is given to the application, it is possible to file an annulment lawsuit after the period of implicit rejection has expired (Administrative Procedure Law, Articles 10-11-12).

5. Constitutional and ECHR Dimension: Protection of Property Rights

5.1 Constitutional Court Decisions

The Constitutional Court has deemed acts of expropriation without compensation a violation of property rights , granting the victim the right to demand compensation or the annulment of the administrative act.

Constitutional Court, Individual Application, Mehmet Tunç and Others, Application No: 2013/9704:

"The fact that the property has been left in a designated public amenity area in the zoning plan for a long period without being expropriated constitutes a violation of property rights."

5.2 ECHR Comments

The European Court of Human Rights similarly considers the state's acquisition of property, whether de facto or through regulation, in conjunction with compensation (see: Sporrong & Lönnroth v. Sweden, 1982).

6. Approach in the Case Law of the Council of State and the Court of Cassation

6.1 Council of State

The Council of State accepts the possibility of annulling planning decisions , particularly due to the enduring effects of zoning plans

Council of State, 6th Chamber, Case No. 2021/1192, Decision No. 2023/2369:

"If the planning decision constitutes a direct interference with property rights, a lawsuit can be filed requesting the annulment of the administrative act."

6.2 Supreme Court

The Court of Cassation primarily with full jurisdiction cases , but acknowledges that zoning plans can also be subject to judicial review if there is legal interference.

Supreme Court Grand Chamber, Case No. 2015/5-426, Decision No. 2016/77:

"The fact that a property has been designated as a road or park area for many years without being expropriated constitutes a serious interference with property rights, even if there is no actual use of the property."

7. Common Problems Encountered in Practice

The municipality has not responded to applications made for the cancellation of the zoning plan
Failure to carry out expropriation despite the request to vacate the property
Devaluation of real estate within the scope of urban transformation projects
The courts dismissed the cases on the grounds that "the planning decision has become final."
The property owner is unable to receive compensation because no actual intervention was made, even though they were unable to physically use their property

8. Conclusion and Evaluation

Expropriation without compensation can be both an administrative act and an administrative procedure. Therefore, the legal recourse available to the owner varies depending on the nature of the expropriation. In legal expropriations, the annulment of regulations that have the nature of an administrative procedure is possible and often necessary. In this context;

For properties that have been left unexpropriated for a long time in zoning plans, a lawsuit can be filed to annul the expropriation process
Legal regulations that prevent the actual use of immovable property are considered by the constitution and the ECHR as interferences with the right to property
Judicial precedents are increasingly broadening the concept of "legal intervention" and making it open to annulment requests.

From the perspective of protecting property rights, the effective use of judicial remedies for the annulment of administrative actions is of great importance.

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