Conversion Of Real Estate Into Forest Land – Expropriation Without Compensation Supreme Court Decision
Republic of Turkey
Supreme Court of Appeals
5th Civil Chamber
Case No.: 2014/16093
Decision No.: 2014/31779
Date: 12/25/2014
Following the trial concerning the claim for the collection of the value of the property seized without expropriation between the parties: The decision to dismiss the case, dated and numbered as above, was requested to be reviewed by the Supreme Court by the plaintiff’s attorney. After reviewing the documents in the file and understanding the dispute, the matter was discussed and considered:
– DECISION –
The case concerns the claim for the collection of the compensation for the expropriated immovable property.
The court decided to dismiss the case; the ruling was appealed by the plaintiff’s attorney.
The right to property is a fundamental right recognized both by the Constitution and laws under domestic law and by the European Convention on Human Rights and its additional protocols. (Constitution Art. 35/1, ECHR Additional Protocol 1-1) Article 683 of the Turkish Civil Code also stipulates that the owner of a thing has the right to use, benefit from, and dispose of that thing as they wish within the limits of the legal order, and that the owner may file a claim for restitution against anyone who unjustly holds their property, as well as bring a lawsuit to prevent any kind of unjust interference.
The right of ownership may only be restricted or completely removed in cases where it is in the public interest.
However, when such restriction or removal is carried out; In accordance with Article 90/5 of the Constitution of the Republic of Turkey and the provisions of the ECHR, which take precedence over domestic law, as stated in the decision of the European Court of Human Rights dated May 30, 2006, No. 1262/02, “…a measure depriving a person of his property…” must pursue a legitimate aim in the public interest…“, and when taking this measure, ”…there must be a reasonable proportionality between the means employed and the aim sought to be achieved…“, and it is clear that ”…if the person is forced to bear an excessive and disproportionate burden, the necessary balance cannot be achieved…”.
In other words, it is essential to establish a reasonable, acceptable ratio between the public interest and the rights of the person who is partially or completely deprived of their property rights, which will ensure a balance of rights and justice.
Meanwhile, one of the issues that needs to be emphasized is determining the nature of the title deed attached to the land registry and thus establishing the property rights in the name of the person.
There is no doubt that the property right provided by a title deed issued by the state and based on a valid record will be valued. While the fundamental characteristic of such a place, namely its status as public property, remains unchanged, it is certain that the person’s right based on the title deed in question must be protected as stated above.
Any other line of reasoning, such as claiming that the title deed issued by the state is invalid, would be incompatible with the property right based on valid registration and would constitute an attitude that undermines the dignity of the state.
In the specific case, part of the immovable property in question was turned into a forest by the defendant administration by planting trees, thus eliminating the owner’s right of ownership and disposal.
Indeed, in its decisions dated September 22, 2009, No. 24620/04, and March 23, 2010, No. 2150/05, in the cases of Cetiner and Yücetürk v. Turkey, the European Court of Human Rights (ECHR) ruled that the Court accepted that the classification of immovable property as public forest land constituted an interference with the owner’s right to property and that this classification had the effect of significantly reducing the owner’s ability to dispose of the property, preventing the owner from truly benefiting from the land and thereby rendering the right to property meaningless in every respect.
The rejection of the plaintiff’s claim for compensation on the grounds that the property was previously forested, despite the fact that the property owned by the plaintiff with a title deed was turned into a forest and the right to use and dispose of the property was restricted, is contrary to Article 1 of Protocol No. 1 and Article 6 of the ECHR.
Therefore, considering that 52,390.00 m² of the property was turned into a forest by the administration through afforestation work, and taking into account the decrease in value caused by the pipeline passing through the property, the court should have determined the price and ordered its collection from the defendant administration.
It is not considered correct to dismiss the case with the written justification.
Since the plaintiff’s attorney’s appeal objections are valid, the ruling is REVERSED for the reasons stated, pursuant to Article 428 of the Code of Civil Procedure, the advance appeal fee is to be refunded upon request, and the appeal fee is to be recorded as revenue for the Treasury. It was unanimously decided on 12/25/2014.