Supreme Court Decision

Supreme Court of Appeals, Case No. 2018/824 E., Decision No. 2019/1210 K.

"Case Law Text"

COURT: Civil Court of First Instance

Following the trial in the case concerning the "determination and registration of expropriation compensation" between the parties, the decision dated 18.02.2014 and numbered 2013/828 E., 2014/72 K., issued by the Siirt 1st Civil Court of First Instance, accepting the case, was appealed by the plaintiff, the General Directorate of State Water Works, through its representative, and the defendant, through its representative. The 5th Civil Chamber of the Supreme Court of Appeals, in its decision dated 26.05.2016 and numbered 2016/507 E., 2016/10598, ruled as follows:
“…The case concerns the determination of the expropriation price based on Articles 10 and 18 of the Expropriation Law No. 2942, as amended by Law No. 4650, and the request for registration of the expropriated property in the name of the plaintiff administration.
The court ruled in favor of the plaintiff; the judgment was appealed by the plaintiff administration and the defendant's attorneys. The
method of determining the value of the property scientifically based on its net income if used as agricultural land, assigning a fixed value to the trees on the property that do not give it the characteristics of an orchard, and deciding to block the determined price and hold it in a three-month term bank account to be paid to the person who proves ownership at the end of the property dispute case is correct. However,
since the pomegranate, peach, and apple saplings on the property in question appear to be 4 years old as of the date of the lawsuit, a new expert examination should be conducted to determine the age of the saplings, and witnesses should be heard if necessary.”
..."
and in the subsequent trial, the court upheld its previous decision.

DECISION OF THE GENERAL ASSEMBLY OF LAW

was examined by the General Assembly of Law and it was determined that the appeal against the resistance decision was filed within the time limit, and after reviewing the documents in the file, the following was considered:
The case concerns the determination of the expropriation price and the request for registration.
The plaintiff's representative argued that the expropriation of the defendant's property was decided upon because it is located within the Ilısu Dam and Hydroelectric Power Plant reservoir area, that a conciliation commission was established to determine the value of the property to be expropriated, and that the property owner was invited to express their intention to sell the property subject to expropriation through negotiation and to hold negotiation talks with the conciliation commission, but the property owner did not participate in the negotiation talks, and therefore the expropriation process did not take place through the purchase procedure. Therefore, the plaintiff requested and sued for the determination of the expropriation price of the property in question and its registration in the name of …
The defendant's representative argued that the value of the property was determined to be too low.
The court; The present lawsuit was filed to determine the expropriation price of the immovable property in question, and an on-site inspection was conducted to determine the true value of the property. The expert report obtained from the expert panel determined the value of the property. The expert report is detailed, verifiable, consistent with scientific data, complies with expropriation criteria, and is therefore suitable for rendering a judgment. However, although the value of all structures and plants on the property in question was calculated separately at the time of the inspection, it is not correct to consider the value of structures and saplings planted recently in determining the expropriation price. In expropriation price determination and registration lawsuits, the condition and value of the property at the time the lawsuit was filed should be taken into account. Considering that the lifespan of a structure is at least 50-60 years, the property owner may have resorted to this method to obtain a higher price for a place they knew would be flooded within two or three years. With the amendment made to Article 25 of the Expropriation Law No. 2942 by Law No. 6495, the period for announcing the public interest decision has been extended. It was added that, from the end of the project, the value of fixed structures and trees planted on the properties to be expropriated would not be taken into account in determining the expropriation price, and that this limitation on the properties could not exceed five years from the end of the announcement date; that after the dam construction began, houses were built and saplings were planted with malicious intent to obtain a price much higher than the actual expropriation price by the administration; that these houses and saplings negatively affected the expropriation price and the profitability of the expropriation project; that the legislator has the duty to make an assessment regarding the use outside of the limitation on the right of ownership, in accordance with Article 1 of the Turkish Civil Code No. 4721, primarily in accordance with the general provisions of the Law, together with Article 4 of the said Law; that the court also conducted an examination in this direction; that even if it is thought that the right of ownership offers the right holder all kinds of possibilities of disposal until this right is taken away, according to Article 2 of the Turkish Civil Code, everyone is obliged to comply with the rules of honesty when exercising their rights and fulfilling their obligations, including the right of ownership; that the legal system will not protect the blatant abuse of a right. It should be noted that the principle of honesty can be defined as the conduct of a right holder, when exercising their rights or fulfilling their obligations, in a manner expected of an honest, reasonable, and moderately intelligent person; that expropriation procedures are carried out with public interest in mind and with the benefit of the entire community or at least those living in that region in mind; and that the expenditures made during expropriation procedures constitute national wealth. It should also be remembered that in villages where expropriation cases are ongoing, a situation of "collective bad faith" exists, and the idea of ​​obtaining unjust gains in a manner contrary to the general customs and cultural structure of the community has developed. During inspections in the region, even plastic bags were found in the fields.

It was observed that there were saplings planted without being removed, that even if the bags were removed, there was no irrigation system, that some saplings had not even integrated with the soil, and furthermore, it was determined that some saplings had dried up due to neglect during subsequent inspections. The purpose of the principle of good faith is to protect the rest of society from the erroneous attitudes and behaviors of an individual; the judge, when deciding whether the behavior in question complies with the principle of good faith, must consider the general understanding and values ​​of society; personal unjust interests cannot outweigh social interests based on a certain right; otherwise, the welfare of society would be harmed by the malicious attitudes of individuals without any legal basis; Article 35 of the Constitution stipulates that the right to property cannot be used in a manner contrary to the public interest; therefore, considering both the court's observations and photographs taken during the inspection, as well as the characterizations in the expert reports, it was deemed inappropriate to consider the value of very new saplings (5 years and under) in calculating the expropriation compensation; and the case was adjourned based on the remaining amount after deducting the amount determined for the saplings. It has been decided to accept it.
Following appeals by the plaintiff's legal representative and the defendant's legal representative, the judgment was overturned by the Special Chamber for the reasons explained above.
The local court issued a decision of resistance, reiterating its previous reasoning.
The decision to resist was appealed by the defendant's lawyer.
The dispute, which came before the General Assembly of Law through an appeal, concerns whether the saplings on the immovable property were planted with the aim of increasing the expropriation price in the present case filed for the determination and registration of the expropriation price, and whether the right exists in accordance with Article 2 of the Turkish Civil Code bad usage The question at hand hinges on whether the prohibition rule should be applied, and depending on the outcome, whether the value of the saplings will be taken into account in determining the expropriation price.
To clarify the matter, it would be beneficial to first examine the legal regulations concerning honesty and good faith.
Article 2 of the Turkish Civil Code No. 4721, titled "Acting Honestly," states:
“Everyone must abide by the rules of honesty when exercising their rights and fulfilling their obligations. A right must be clearly defined..." bad its use "The legal system does not protect."
The ruling is included.
Accordingly;
The principle of honesty is a general and objective rule of conduct that everyone must adhere to. Generally, the principle of honesty means that individuals should act honestly, honorably, morally, and consistently with the trust they inspire in others in the legal relationships they are involved in. Accordingly, behavior consistent with the principle of honesty in a particular legal relationship is the manner in which an honest, honorable, and moderately intelligent person in society would behave in accordance with general morality, truthfulness, and mutual trust. In determining this behavior consistent with the principle of honesty, the general moral rules prevailing in society, the customs and practices of the day, and the content and purposes of the legal relationships in question will also be taken into consideration (Dural, M./Sarı, S.: Turkish Private Law, 6th Edition, Istanbul 2011, pp. 226-227).
In other words, acting honestly means "a right holder acting in a good and proper manner when exercising their rights or a debtor acting when fulfilling their obligations; that is, acting in the way that any honest, honorable, reasonable person of average intelligence would follow in similar situations, knowing the consequences of their actions.".
Article 2 of the Turkish Civil Code states that all rights granted to individuals by the legal system.. in use Two general principles that should be considered and followed are mentioned: the principle of honesty and the principle of justice bad usage prohibition. The legal system defines the scope of each right it grants to individuals and their prohibitions use It has specifically regulated the conditions and form of the relevant rights. However, given the impossibility of foreseeing the infinite possibilities of life and regulating them down to the smallest detail, all rights.. in use It has become necessary to establish a general limitation to be taken into consideration. The rule of honesty and justice bad usage The prohibition appears as a general rule that must be followed in this respect (Dural/Sarı, p. 225).
Article 2 of the Turkish Civil Code states that rights must be granted in accordance with the principle of good faith usage It was stated that it was necessary, and then the rights were explicitly mentioned bad its use It has been stated that the legal system will not protect it. Based on this wording, it can be concluded that a right.. in use The penalty for failing to comply with the principle of honesty is that this right is explicitly.. bad It can be accepted that it is considered used and is not legally protected (Dural/Sarı, p. 225).
A right contrary to the principle of honesty usage the right to cause harm to another person bad This constitutes the exercise of rights. Article 2/I of the Turkish Civil Code mandates that everyone exercise their rights in accordance with the principles of honesty, integrity, and mutual trust required by social and business relationships. The criteria for the exercise of rights are determined by the rules of honesty according to the Turkish Civil Code. Furthermore, there is no need to investigate whether the rights holder acted with the intention of harming another. What matters is not the intention to harm another, but whether the right was exercised in violation of the rules of honesty usage The result is that someone else has been harmed.
Property is considered a right that grants individuals the broadest powers over property, but also imposes obligations. According to the positive content of the right of ownership, the owner is endowed with the power to dispose of the property as they wish, including using it actively, benefiting from it and its fruits, possessing it, selling it, donating it, establishing objective rights, and limiting it with personal rights. However, the positive content of the right of ownership also includes obligations use the limit of public interest as well as right bad usage It constitutes a ban.
In addition, Article 3 of the same Law, titled "Good Faith," states:
“In cases where the law attaches a legal consequence to good faith, the existence of good faith is what matters.”.
However, the situation No one who fails to exercise the diligence expected of them according to the requirements can claim to be acting in good faith
The regulation is included.
Although the concept of good faith is addressed in various articles of the Civil Code and the Code of Obligations, none of these provisions provide a precise definition of good faith. However, based on the content of legal provisions, particularly Articles 3 and 1024 of the Turkish Civil Code, it is possible to provide a general definition of good faith. According to this definition, good faith is the state of being unaware of, or unable to know, even with due diligence, an existing obstacle, deficiency, or similar fact that prevents the acquisition of a right or the occurrence of a legal consequence. The opposite of good faith is bad faith. Bad faith can be defined as knowing about, or being able to know about, an existing obstacle, deficiency, or similar fact that prevents the acquisition of a right or the occurrence of a legal consequence, even with due diligence.
Considering these definitions and the legal provisions on which they are based, good faith and bad faith refer to an assessment made regarding a person's knowledge and belief concerning a specific event or fact. Based on this assessment, it is said that a person is acting in good faith or bad faith in a particular situation. In this respect, good faith is personal and subjective. However, in daily life and in some decisions, being in good faith or bad faith is treated as a form of behavior; people are said to be acting in good faith or bad faith. It is not possible to accept that this usage is consistent with the meaning given to the concepts of good faith and bad faith in the Civil Code. However, this type of usage is also influenced by Article 2 of the repealed Civil Code No. 743, which states that "everyone is obliged to observe the principles of good faith in exercising their rights and fulfilling their obligations." Whereas, rights.. usage The rules of conduct applicable in the performance of obligations are objective in nature, as they apply to everyone. Considering this fact, Article 2 of the Turkish Civil Code No. 4721 states that everyone is "obligated to comply with the rules of honesty when exercising their rights and fulfilling their obligations," and expresses these rules of conduct with the concept of the rule of honesty. Although they are different concepts, the rule of honesty and good faith are based on the rule of acting honorably, truthfully, and honestly (Dural/Sarı, pp. 218-219).
However, the principle of good faith enshrined in Article 2 of the Turkish Civil Code does not possess the exact same quality as the principle of good faith regulated in Article 3 of the same Code.
While good faith, as defined in Article 3 of the Civil Code, relates to "acquisition of rights," honest conduct, as stated in Article 2 of the Civil Code, relates to "acquisition of rights." use” and it comes into play in "the fulfillment of obligations".
Good faith, as stated in Article 3 of the Civil Code, means not knowing, and not needing to know, a situation that would prevent the acquisition of rights. While good faith objectively involves an unjust act, the legal system protects it because the individual is unaware of the wrongdoing. Therefore, in the cases specified by law, the negative or unfavorable situation of the person acquiring the right is removed or eliminated, and their acquisition of the right is ensured. Even if a wrong situation arises, good faith must be protected due to the principle of trust expressed in Article 2 of the Civil Code. In other words, the protection of good faith is based on the protection of trust, which is fundamental to the principle of honesty. For example, in the acquisition of ownership of movable property from a possessor acting in good faith, the lack of knowledge that the transferor lacks the power of disposition (i.e., good faith), or in other words, the reliance on the existence of the power of disposition, is protected. This protection of trust is based on the principle of honesty. However, it should be noted that this closeness does not eliminate the existing difference between the principle of honesty and good faith. The principle of honesty describes the behavior of a morally sound, moderate, reasonable, and upright person. Good faith, on the other hand, is merely a matter of claiming a right or legal standing the situation not knowing and not needing to know about a situation that could prevent it from being won (Akyol, Ş.: The Rule of Honesty and Right To the bad Usage Ban, Istanbul 1995, pp. 10-11).
Article 2 of the Turkish Civil Code, which regulates the principle of honesty and is also defined as objective good faith, states that all rights.. in use It is guaranteed that actions will be taken within the framework of honesty, and that no one will infringe upon their rights with the intention of harming or putting another in a difficult situation bad It has been stated that the law will not protect its use. The right, regulated in the second paragraph of the same article, bad usage The purpose of the prohibition rule is to allow the judge to render a ruling (in a manner consistent with justice) in special and exceptional circumstances.
As stated in the Supreme Court Grand General Assembly decision No. 3/1 dated 25.01.1984, a right use In cases of necessity where a clear injustice has been created and all legal avenues for recognizing true rights and protecting the individual have been exhausted, Article 2 of the Turkish Civil Code finds application and provides an extraordinary opportunity; it fulfills its function of correcting the injustice and supplementing the rules in the law.
In other words, the right regulated in the second paragraph of Article 2 of the Civil Code bad usage The purpose of the prohibition rule is to enable the judge to render a ruling (in a manner consistent with justice) in special and exceptional circumstances. This feature of the article's provision is mentioned in the Swiss Federal Council's 1904 message regarding the submission of the Civil Code draft to the National Assembly: "A right..." use The purpose of Article 2, paragraph 2 of the Civil Code is explained as follows: "In cases where there is a clear injustice and all legal avenues are closed for the recognition of true rights and the protection of the individual, the purpose of Article 2, paragraph 2 of the Civil Code is to provide an extraordinary opportunity arising from necessity." The rule in the second paragraph of Article 2 of the Civil Code creates an exception to the principle of the absoluteness of law and right. However, considering the subsidiary nature of this rule, the relevant legal provisions should be applied to each case first; and in some exceptional cases where the applied legal provisions may be contrary to justice, the rule in Article 2 should be applied in a way that corrects the injustice.
Indeed, the right is applicable in every area of ​​law bad usage The prohibition rule also constitutes a limit on the right to raise formal irregularities, due to its mandatory nature judge It is now undeniably accepted in Turkish-Swiss doctrine and practice that this should be considered ex officio (Supreme Court of Appeals decisions dated 13.2.1974, no. 524/103 EK; 2.10.1974, no. 2/810-1043 EK; 7.12.1983, no. 4/224-1276 EK).
However, the Supreme Court's Unification of Jurisprudence Decision dated September 30, 1988, numbered 1987/2 E., 1988/2 K., also included the following statement: "...Because law only serves to satisfy legitimate interests; if it serves anything else, it loses its reason for existence. On the other hand, Article 4 of the Civil Code calls upon the judge to make a decision in accordance with justice. He is obliged to make a correct and fair balance of interests and to consider the facts.".
The principle of honesty refers to the behavior expected of an honest person. Whether a behavior possesses this quality is determined by the prevailing moral standards, customs, and traditions of society, as well as the purpose of relationships that establish rights.
On the other hand, the right bad when determining whether or not it was used; that person's right in use the existence of a valid and legitimate interest, the right use The criteria for a right include ensuring there is no extreme disproportion between the benefit it will provide and the harm it will cause to others, that it is not based on one's own immoral behavior, and that it does not violate the trust that has been established bad It determines whether or not it is used (Oğuzman, MK: Civil Law - Basic Concepts 5th Edition, Istanbul 1985, p. 154 et seq.).
Civil code, bad While stating that the exercised right will not be protected by the legal system, it also clarifies when a right can be exercised bad It does not include any explanation as to under what circumstances the right will be considered used. Essentially, it does not specify in advance under what circumstances the right.. bad It is not possible to determine or specify whether it will be considered used. As previously stated, the principle of honesty and right.. bad usage Prohibitions are rules created as a result of the impossibility of predicting and regulating the infinite possibilities of life. In the face of this aim of regulation, the right to predetermine is.. bad use It would not be an accurate approach to determine the elements and criteria to be used in establishing the existence of the right. Therefore, the right.. bad Whether or not a right has been exercised must be determined by the judge in each specific case, taking into account the characteristics of the event. However, the existence of certain facts does not constitute a right bad This could be an indication that it has been used. Indeed, the right bad taking into account the incidents in which the use of the right is accepted, bad Some facts are presented that show that it has been used. However, the right bad These facts, which help determine whether a right has been exercised or not, must be present in the specific case to definitively establish the existence of that right bad This does not indicate that it was used, nor does its absence prove the right bad This does not mean that it has not been used (Dural/Sarı, p. 239).
In other words, the right exercised must be based on concrete, not abstract, circumstances. If a situation involves a violation of objective good faith principles, then the right in question.. bad The issue at hand is the use of good faith. It is not possible to find an objective measure of good faith that can be accepted as valid in every case. Determining whether the rights holder acted in good or bad faith in exercising their rights is quite difficult, as it relates to the inner world of the person exercising the right. Therefore, in each specific case, whether or not there has been a violation of the rules of good faith must be evaluated within its own context.
Your right bad to accept that it has been used in a way that is contrary to the purpose of the right usage And the person exercising the right must not have a vested interest in doing so. Remembering that the definition of "right" is "an interest recognized and protected by law," a right.. usage the use of this "right" by the user in a manner contrary to its purpose and without any "interest" to be protected in case According to formal logic, it can be concluded that in this case, the protection of the law should be withheld (Akyol, p. 21).
Therefore, if a right is used in a manner contrary to the purpose for which it was granted, and if the user has no benefit or only a very small benefit in such use, then that right may be terminated from its use no, your right bad from its use It is mentioned that an owner is entitled to benefit from their property rights. If the owner uses their property rights in a way that is not in their best interest, for example, by building a wall of unnecessary height, then the right is forfeited bad We conclude that it is used (Akyol, p. 21).
In this situation, a rights holder must act in accordance with this condition when exercising their right or a debtor when fulfilling their obligation; otherwise, they will lose their right bad It can be concluded that he used it.
Your right bad usage the prohibition of an apparent right from its use It concerns those who are disturbed and offended... If one of the commands of the law is to abide by the rule of honesty, then one of its important prohibitions is "to deny one's rights." bad It is "using one's right." Thus, one's right bad The use of [substance] is one of the prohibitions imposed by law. By its nature, it is mandatory (Akyol, p. 23).
Your right bad Even if this is not presented as a defense, since this matter is accepted as an objection rather than a defense, the judge is obliged to take such a situation, as understood from the case file, into consideration ex officio (Supreme Court of Appeals Civil Chamber's decision dated 04.11.1964, no. 1964/2-953 E., 1964/640 K.; and Supreme Court of Appeals Unification of Jurisprudence Decisions dated 14.2.1951, no. 1949/17 E., 1951/1 K.; and 8.11.1991, no. 1990/4 E., 1991/13 K.).
Indeed, the same issue is addressed in Article 29 of the Code of Civil Procedure No. 6100.
Article 29 of the Code of Civil Procedure (HMK), titled "Obligation to act honestly and tell the truth";
“(1)The parties are obliged to act in accordance with the principle of honesty.
(2) The parties are obliged to make statements regarding the facts on which the case is based in a truthful manner.”
It includes the regulation.
The first paragraph of this article establishes the principle of honesty, while the second paragraph imposes the obligation to tell the truth; these are seen as the limits of "party dominance.".
The first paragraph of the article is the manifestation of the "principle of good faith" in the Turkish Civil Code within the Code of Civil Procedure. The principle of good faith is also included in the Codes of Civil Procedure in comparative law. This rule will have an effect in the area of ​​procedural actions between parties. If the action is contrary to this rule, the court will prevent it from producing legal consequences.
The duty to tell the truth is one of the obligations of the parties in a trial. The principle of honesty, a fundamental principle of law, must be observed during the trial. The main points of this obligation are facts and evidence. Although the parties are engaged in a struggle in the trial, it cannot be assumed that everything will be considered valid in this struggle. Various articles concerning the trial process also prescribe certain sanctions to prevent malicious behavior that violates the principle of honesty. The underlying aim of all these provisions is to ensure compliance with the principle of honesty.
The second paragraph of the article explicitly regulates the duty to tell the truth, a special and important element of the principle of honesty. Parties are free to assert or not assert anything in their own interests during the proceedings. However, what they assert must be true, and their statements and declarations must not be contrary to reality. Parties cannot be expected to declare matters that are against their own interests. However, they must not mislead the court in their statements concerning themselves or the opposing party. The duty to tell the truth applies to both written and oral statements and declarations. In case of a breach of this duty, the statements will not be considered or evaluated by the court. Furthermore, a party's deliberate lying may constitute a procedural fraud.
The principle of honest conduct in litigation refers to Article 2 of the Turkish Civil Code, which states: "Everyone is obliged to comply with the rules of honesty when exercising their rights and fulfilling their obligations. A right must be clearly defined..." bad its use The principle that "the legal system does not protect" is also applicable in the present case (Yılmaz, E.: Commentary on the Code of Civil Procedure, Yetkin Publications, Ankara 2012, p. 310).
All rights in use and the principle of honesty that must be observed in the performance of obligations and the right that constitutes the general limits of rights bad usage Prohibitions are rules established due to the needs and requirements of public order. Therefore, both paragraphs of Article 2 of the Civil Code are mandatory. The principle of good faith and justice in the relationship between the parties.. bad usage It is not possible for them to decide that the prohibition will not be applied. The principle of honesty or right.. bad usage Since conduct contrary to the prohibition directly eliminates the existence of the right, it constitutes an objection. Therefore, based on the information and documents in the case file, the judge can determine whether the conduct is contrary to the principle of good faith and constitutes an objection to the right bad usage If it identifies the behavior constituting the offense, it should take it into account ex officio, even if it has not been raised by the party concerned (Dural/Sarı, pp. 243-244).
In light of the above explanations, when the specific case is examined; although the inspection report states that there were mixed fruit saplings aged 4-5 years on the property in question, the defendant's action was a transaction aimed at increasing the expropriation price of the property. Furthermore, in many decisions of the local court, it has been explicitly stated that during inspections, some new houses lacked stairs to reach the upper floors, some houses had taps but no plumbing, the interior walls of the houses were not painted, very large structures without walls or columns were built in the middle of the fields, and saplings were found planted in the fields without their bags being removed, and even if these saplings had their bags removed, there was no irrigation system, and some saplings had not even integrated with the soil. Therefore, it is understood that there was an intention to obtain unjust enrichment by acting contrary to the principle of good faith, and the action constitutes a violation of Article 2 of the Turkish Civil Code, and it is not possible to pay compensation for the saplings on the property.
Therefore, the local court's decision to resist the appeal, based on the reasoning that it would not be legally permissible to pay additional compensation for the saplings located on the property, is correct.
Therefore, the decision to resist should be upheld.
CONCLUSION: For the reasons explained above, the appeal of the defendant's attorney is REJECTED, and the dissenting decision is AFFIRMED for the reasons explained above. In accordance with Article 440 of the Code of Civil Procedure No. 1086, which is being applied pursuant to Temporary Article 3 of the Code of Civil Procedure No. 6100, the right to request a correction of the decision is open within fifteen days from the date of notification of the decision. The decision was made unanimously on November 26, 2019.