Cancellation Of The Rule Preventing Appeal Against Final Decisions In Expropriation Value Determination Cases
Rule Subject to Objection
The rule subject to objection stipulates that the judgements regarding property lawsuits, the amount or value of which does not exceed three thousand Turkish Liras, shall be final.
Grounds for Application
In the application decision, in summary; it was argued that the rule is unconstitutional by stating that the right holder, who claims that the court has valued his immovable property less than its real value, should have the opportunity to express his claims in this direction by applying to the legal remedy in order to determine the real value of his immovable property, and that this is also necessary for the protection of the right to property.
Evaluation of the Court
In the judicial judiciary, the remedy of appeal is foreseen as a rule against the final decisions of the courts of first instance. The fact that the legal remedy is closed against the decision of the court of first instance rendered against the individual constitutes a limitation on the right to request the judgement to be reviewed by another court. In this respect, the rule stipulating that the decisions regarding the determination of the expropriation price cases that do not exceed a certain amount are final imposes a limitation on the right to request the judgement to be reviewed by another court.
According to Article 13 of the Constitution, regulations restricting the right to request review of the judgement must be made by law and must be proportionate and in accordance with the reasons for restriction stipulated in the Constitution. In this context, it is not enough for a legal regulation to exist in form to limit the right to request review of the judgement; the legal rules must be specific, accessible and foreseeable regulations that do not allow arbitrariness.
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The phrases “the amount or value of…” in the rule essentially express the value of the assets subject to the dispute between the parties. However, in expropriation price determination cases, the essence of the dispute is the determination of the value of the asset by a judicial decision, in other words, the determination of the value of the immovable by the court. Therefore, expropriation value determination lawsuits differ from other types of property lawsuits in this respect, where persons may indicate the subject of the claim or dispute with a certain amount or value. From this point of view, since the subject matter of these lawsuits does not consist of claims involving a certain amount or value, it is not possible to base the determination of the finality limit of the judgement on a criterion such as the unaccepted part of the claim asserted in the lawsuit.
On the other hand, it is also clear that the amount awarded by the court in favour of the owner of the immovable property does not have any importance in determining the finality limit of the decision, in other words, whether it is appealable or not. As a matter of fact, due to the nature of the dispute, the main basis of the immovable owner’s request for appeal is the claim that the amount determined by the court as the expropriation price is erroneous and does not reflect the real value of the immovable.
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In this respect, it is seen that the rule does not clearly and unambiguously determine which criterion will be taken as the basis for the calculation of the finality limit of the decisions regarding the determination of the expropriation price. Therefore, it is concluded that the rule restricting the right to request the review of the judgement does not fulfil the requirement of legality.
On the other hand, the first paragraph of Article 46 of the Constitution stipulates that expropriation shall be made on condition that the real value of the immovable is paid, and it is a requirement of the right to property guaranteed under Article 35 of the Constitution that the immovable is expropriated at its real value in accordance with the provision of the said article.
The ambiguity of the rule regarding which criterion will be taken as basis in the calculation of the finality limit of the decisions regarding the determination of the expropriation value cases may lead to the deprivation of the real value of the immovable property of the individual in practice, based on differences in interpretation and evaluation.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and cancelled.
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