If The Expropriation Without Expropriation Is After 1983, Even If There Is A Finalised Decision, A Pro Rata Attorney Fee Shall Be Paid
8th Civil Chamber 2015/17822 E. , 2015/18376 K.
“Case Law Text”
COURT : Ankara 11th Execution Law Court
DATED : 13/07/2015
NUMBER : 2015/652-2015/868
Upon the request of the plaintiff to examine the above-dated and numbered Court decision on appeal within the due time, the file related to this matter was sent to the Chamber from the neighbourhood, and after the report prepared by the Examining Judge for the case file was listened to and all documents in the file were read and examined, the matter was discussed and considered:
DECISION
The creditor’s attorney, in his application to the Enforcement Court, stated that the case subject to the judgement is a compensation case arising from the expropriation without expropriation, that the immovable was seized after 04.11.1983, that it is contrary to the procedure and law for the execution directorate to assess the execution attorney fee as lump sum in line with the relevant decisions of the Constitutional Court and the Court of Cassation, and requested that the execution attorney fee be determined proportionally.
The court decided to reject the complaint on the grounds that, although the decisions of the enforcement court do not constitute a final judgment in the technical sense, the decision of the Court of Cassation to make the account in the file according to the fixed attorney fee will bind the parties, and when the Constitutional Court cancels the existing law after the decision, it will constitute a final judgment between the parties in accordance with the rule of retroactivity of the cancellation decisions of the Constitutional Court in accordance with Article 153 of the Constitution, and the judgment was appealed by the creditor’s attorney.
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In paragraph 7 of the Provisional Article 6 of the Law No. 2942 amended by Article 21 of the Law No. 6487, which entered into force on 11.06.2013; “In the cases filed under this article, court and execution fees and all kinds of attorney fees shall be determined in lump sum as stipulated in the price determination cases.”
Again in the 13th paragraph; “In case of expropriation by the administration of immovables for which expropriation procedures have not been completed or expropriation has never been carried out until 04.11.1983 until the effective date of this paragraph, but which have actually been allocated to public service or allocated to a need related to public interest and on which facilities have been built, the provisions of the eleventh paragraph of this article shall apply for the expropriation price and the compensation awarded by the courts in favour of the owners, and the provisions of the seventh paragraph shall apply to all lawsuits filed for immovables falling within the scope of this paragraph.”
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However, the 13th paragraph of the Provisional Article 6 of the Expropriation Law No. 2942, as amended by the Law No. 6487, was cancelled by the Constitutional Court’s Decision dated 13.11.2014 and numbered 2013/95 Esas 2014/176. Although it has been decided to enter into force six months after the publication of the annulment decision in the Official Gazette, Article 11 of the Constitution regulates the principle of binding and supremacy of the Constitution, and Article 138 authorises judges to rule in accordance with the Constitution.
Articles 11 and 138 of the Constitution give the judge the authority and even the obligation not to apply a provision of the law which has been found to be contrary to the Constitution, even if the annulment decision has not entered into force. This is because the application of the cancelled provision would mean the evisceration of the freedom to seek rights and the principle of the Rule of Law would be violated. As a matter of fact, there are decisions of the Court of Dispute and the Council of State indicating that even if the annulment decision has not entered into force, the provisions of the Law that have been found to be contrary to the Constitution cannot be applied. The announcement of the annulment decision by the Constitutional Court takes on the character of a measure to stop the implementation of the annulled Law.
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In view of the fact that it takes a long time to write and publish the reasons for the decision, at least the announcement of the annulment decision will prevent the implementation of the unconstitutional provision of the Law. (Turan Yıldırım Marmara University Faculty of Law, İd. Huk. Department Lecturer – Journal of Public Administration, vol. 26). The fact that the annulment provision will enter into force 6 months after its publication in the Official Gazette is the time given to the Legislator to prepare a new article of the Law in accordance with the Constitution, and this period will not prevent the implementation of the annulment provision.
In the concrete case; in the judgement subject to the proceeding dated 10.12.2013; there is no claim and information that the administration’s act of seizure without expropriation belongs to before 1983. For this reason, since it is necessary to accept that the act of seizure without expropriation is after 1983, the 13th paragraph of the Provisional Article 6 of the Expropriation Law No. 2942, which should be applied in the case, was deemed unconstitutional and cancelled by the Constitutional Court on 13.11.2014, and it is no longer applicable. Thus, court and execution fees and all kinds of attorney fees should not be calculated on a lump sum basis, but should be determined proportionally in lawsuits and proceedings regarding the compensation for expropriation after 1983.
In this case, instead of deciding to accept the creditor’s complaint by taking into account that the execution attorney fee should be calculated proportionately in accordance with the aforementioned cancellation decision, the Court should have rejected the request on written grounds.
CONCLUSION:
With the acceptance of the appeal objections of the creditor’s attorney, the decision of the Court will be DISMISSED for the reasons written above, pursuant to Article 428 of the Code of Civil Procedure No. 1086 with reference to Article 366 of the Bankruptcy Code and Provisional Article 3 of the Code of Civil Procedure No. 6100, and the parties will be required to comply with Article 388/4 of the Code of Civil Procedure (Art. 297 of the Code of Civil Procedure). /ç) and Article 366/3 of the EBL, it was decided unanimously on 15.10.2015 that the request for correction of the decision can be made within 10 days from the notification of the Supreme Court of Appeal Chamber decision, and the advance fee of 27,70 TL shall be returned to the appellant upon request.
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