8. Legal Department 2015/17822 E. , 2015/18376 K.
“Text Of Jurisprudence”
COURT : Ankara 11. Executive Civil Court
DATE : 13/07/2015
NUMBER : 2015/652-2015/868
Upon the request of the plaintiff for the examination of the appellant within the time limit of the Court decision with the date and number written above, the file related to this work was sent from the district to the Apartment, and after the report prepared by the Examining Judge for the case file was heard and all the documents in the file were read and examined, the work was discussed and considered as necessary:
K A R A R
The creditor’s attorney, bailiff’s court filing in the probate case kamulastirmasiz elatma compensation sourced from the subject of the case, the immovable 04.11.1983 hand thrown after the date on which the Constitutional Court and the Supreme Court decisions in accordance with the relevant procedures and the Executive Directorate of the executive as a fixed retainer to appreciate against the law, noting that the executive has requested a determination relative to the retainer.
Although the decisions of the Executive court by the Court do not technically constitute a final judgment, the Supreme Court’s decision to make the account according to the victim’s power of attorney in the file will bind the parties to the decision that has been finalized by going through the Supreme Court’s audit, after which the Constitutional Court revokes the existing law 153 of the constitution. according to the article the key to the annulment of the Constitutional Court to make decisions that would constitute a judgment between the parties pursuant to the rules backwards yurumezlig dismissed the complaint on the grounds granted, the judgment was appealed by the creditor by counsel.
Article 21 of the Law No. 6487, which entered into force on 11.06.2013. article 6 of the Law No. 2942 amended by Article. Article 7. in its paragraph; “Court and enforcement fees and all kinds of power of attorney fees in cases filed under this article are determined as victims in the manner provided for in price determination cases.” It’s 13 again. also in the paragraph; ”Nationalisation or expropriation procedures until the effective date of this paragraph, the date the incomplete 04.11.1983 never have been made, although it de facto that is allocated to the public service or the public interest relating to the immovable is allocated on a need for compensation in case of nationalization by the government of the facility and made by the owners to compensation by the courts ruled in favor of the first paragraph of this article, in any case against immovable property remaining within the scope of this paragraph shall apply the provisions of the seventh paragraph.” arrangements are available.
However, Provisional Article 6 of the Expropriation Law No. 2942, which has been amended by Law No. 6487. item 13. the paragraph has been revoked by the Decision of the Constitutional Court dated 13.11.2014, dated 2013/95 and numbered 2014/176. Although it has been decided to enter into force six months after the publication of the cancellation decision in the Official Gazette; 11 of the Constitution. in its article, the principle of binding and supremacy of the Constitution is regulated, 138. first of all, its article gave judges the right to make decisions in accordance with the Constitution. Article 11 of the Constitution. and 138. its articles give the judge the power or even the obligation not to apply even if there is a violation of the Constitution and the decision to cancel the provision of the law has not entered into force. Because the implementation of the revoked provision will mean Decriminalizing the freedom to seek rights, and the principle of the Rule of Law will be violated. As a matter of fact, the Dispute Tribunal and the Council of State have decisions indicating that the provisions of the Law that have been found to be contrary to the Constitution cannot be applied even if the cancellation decision has not entered into force. The announcement of the annulment decision of the Constitutional Court becomes a measure to stop the implementation of the annulled Law. At least the announcement of the annulment decision will prevent the application of the provision of the Law contrary to the Constitution in the face of the long time it takes to write and publish the reasons for the decision. (Turan Yildirim Marmara University Faculty of Law Id. Huk. Faculty Member of the Department-Journal of Public Administration, volume: 26). The fact that the cancellation provision will enter into force 6 months after its publication in the Official Gazette is the period given to the Legislator for the preparation of a new article of Law in accordance with the Constitution, and this period will not prevent the implementation of the cancellation provision.
In the concrete case; in the following statement dated 10.12.2013; There is no claim and information that the administration’s expropriation-free act dates back to before 1983. For this reason, since it is necessary to accept that the action on expropriation-free elimination is after 1983, it is necessary to apply the Temporary 6 of the Expropriation Law No. 2942 in the event. item 13. the paragraph was deemed to be contrary to the Constitution and was canceled by the Constitutional Court on 13.11.2014, but it has no longer any applicability. Thus, court and enforcement fees and all kinds of proxy fees should not be calculated in court and enforcement proceedings regarding expropriation-free e-fees related to confiscation after 1983, but should be determined in relative terms.
In this case, it is inappropriate to establish a provision for the rejection of the request on written grounds, rather than deciding on the acceptance of the creditor’s complaint, taking into account that the relative calculation of the executive power of attorney fee should be made in accordance with the cancellation decision referred to by the Court
CONCLUSION: The decision of the Court on the acceptance of appeals of the creditor’s deputy for the reasons set out above is based on Article 366 of the IIK. and Provisional Article 3 of HMK No. 6100. article 428 of the HUMK No. 1086. in accordance with Article 388/4 of the CMB, the parties are obliged to (H.M.m.297/o) and IIK’s 366/3. in accordance with the articles, it was unanimously decided on 15.10.2015 that a request for correction of the decision could be made within 10 days from the notification of the Supreme Court of Appeal, the return of the advance fee of 27.70 TL to the appellant upon request, on 15.10.2015.
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