Events
The Housing Development Administration (TOKİ) decided to expropriate the applicant’s immovables without any public interest decision. TOKI filed a lawsuit against the applicant on 24/1/2007 at the Civil Court of First Instance for the determination and registration of the expropriation value. The court ruled on 27/2/2008 that the immovables be registered in the name of TOKI and the decision was upheld. Meanwhile, the applicant filed a lawsuit at the administrative court on 6/3/2007 for the cancellation of the expropriation process. The administrative court dismissed the case on the grounds that TOKİ could carry out expropriation without being bound by any plan. The Council of State reversed the decision on the grounds that a decision should be taken after investigating the existence of an implementation zoning plan. The administrative court emphasised that the implementation zoning plan entered into force in 2011, but cancelled the expropriation by stating that the implementation zoning plan did not exist at the time of the expropriation. After the Council of State reversed the decision by pointing out that the implementation zoning plan had entered into force, albeit later, the administrative court dismissed the case. Upon the applicant’s appeal, the Council of State upheld the decision of the court of first instance.
Allegations
The applicant claimed that the right to property was violated due to expropriation without a public interest decision and the right to effective remedy in connection with the right to property was violated due to the fact that the existence of public interest in expropriation was not subject to judicial review.
Assessment of the Court
1. Regarding the Allegation of Violation of the Right to Property
In the concrete case, it was understood that the expropriation process was devoid of legal basis since there was no public benefit decision or an implementation zoning plan, which is required by Article 6 of Law No. 2942, at the time of the expropriation process.
The Constitutional Court decided that the right to property was violated for the reasons explained.
2. Regarding the Allegation of Violation of the Right to Effective Application
The applicant did not have the opportunity to subject the expropriation of his immovable property to judicial review independently of the expropriation process. In order for the judicial review to be effective with regard to the claim that there is no public interest in the allocation of the immovable to public service, it must be completed before the expropriation process is finalised. Otherwise, the open judicial remedy against the public interest decision would be meaningless.
When it is remembered that the immovable was registered in the name of TOKİ based on the decision of the first instance court dated 27/2/2008 as a result of the case for the determination and registration of the expropriation price, it became impossible for the applicant to have his claim that the expropriation of the immovable was not based on the public interest purpose examined by the judicial authorities before the date he lost ownership of the immovable. The final rejection of the lawsuit filed against the expropriation process has reduced the applicant’s chances of success in possible administrative and judicial applications for the remedy of the violation of his right to property by the unconstitutional interference.
As a result, the applicant’s right to effective remedy in connection with the right to property was violated due to the fact that the applicant could not have the judicial authorities check whether there was a public interest in the allocation of his immovable property partly as a road and partly as an industrial area before the expropriation process was finalised.
The Constitutional Court held that the right to effective remedy in connection with the right to property was violated for the reasons explained.
On the other hand, it should be pointed out that the fact that the legality of the expropriation process and the determination of the expropriation price are subject to litigation in different courts and in different jurisdictions weakens the effectiveness of the case in the administrative jurisdiction in some cases. It is not unlikely that the lawsuit filed in the administrative jurisdiction for the cancellation of the expropriation transaction may be concluded before the lawsuit filed in the judicial jurisdiction for the determination of the expropriation price is concluded. As a matter of fact, in practice, the case in the administrative jurisdiction is mostly finalised after the case in the judicial jurisdiction. Therefore, there is a high risk that a possible annulment decision to be issued by the administrative judiciary regarding the expropriation process will be inconclusive.
Therefore, in order to prevent similar new violations, it has been understood that the relevant legislation should include safeguards to ensure that the lawsuit filed in the judicial jurisdiction for the determination of the expropriation price is decided before the lawsuit filed in the administrative jurisdiction for the cancellation of the expropriation transaction and to prevent a possible cancellation decision to be rendered in the administrative jurisdiction from being inconclusive. Therefore, it has been decided to notify a copy of the decision to the legislative body.
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