Violation Of The Right Of Property Due To Failure To Return The Immovable Property Not Used For The Purpose Of Expropriation
Events
The immovables belonging to the applicant, a community foundation, were expropriated – some partially and some completely – by the municipality for the construction of a road. However, after the expropriation, it was found that the immovables in question were within the boundaries of an urban protected area and therefore could not be used as a road. Repeated applications to the Conservation Board by the municipality, which carried out the expropriation, have not yielded any results and road works in the area in question have not started as of the date of the individual application. Therefore, the immovable property could not be used as a road.
In the case of cancellation and registration of the title deed filed by the applicant within the scope of the exercise of the right of restitution, the civil court of first instance dismissed the case on the grounds of out of time, but the Court of Cassation examined the merits of the case and rejected the request for appeal. The Court of Cassation accepted that the applications made by the municipality to the Conservation Board and the decisions of the Board were all in the nature of transactions for the purpose of expropriation and concluded that the conditions for the return of the immovables were not met. The applicant’s request for correction of the judgement was also rejected by the Court of Cassation.
Allegations
The applicant claimed that his right to property was violated as the immovable property, which was not used for the purpose of expropriation, was not returned.
Assessment of the Court
The legal transactions and disposals contrary to the public interest purpose for the expropriated immovables and the failure to use these immovables in line with the public interest purpose after a reasonable period of time has elapsed constitute a disproportionate interference with the right to property. Accordingly, the failure to allocate the expropriated immovable property for the purpose of public interest causes the property owner not to benefit from the surplus value created by the property in the intervening period and, in essence, the immovable property is not expropriated at its real value.
In the concrete case, the immovables expropriated by the municipality were not used for the purpose of expropriation, nor were they allocated to another purpose for public benefit. In the Court of Cassation’s decision of approval, although it was accepted that the conditions for restitution were not met by stating that the correspondence made by the municipality with the Conservation Board in order to use the immovables in line with the public interest was for the use of the immovables in line with the purpose of expropriation, when the documents in the file and submitted to the Civil Court of First Instance during the proceedings in the trial court were examined, it was seen that no steps were taken to use the immovables as a road. In fact, it is understood from the decisions of the Conservation Board that it is not possible to widen the road in the area where the immovables are located.
In addition, it was not claimed that the expropriated immovables were allocated for a purpose other than a road. Under these circumstances, it is considered that the correspondence made by the municipality and the decisions of the Conservation Board cannot be accepted as transactions established in line with the purpose of expropriation of the immovables.
On the other hand, the fact that correspondence has been and is being made with the Conservation Board regarding the immovables does not constitute a justification for the municipality to continue to hold the immovables in the hands of the municipality without allocating them for public benefit purposes, as it is understood that there are legal obstacles to their use in line with the purpose of expropriation very soon after the expropriation date. Public authorities are obliged to act in accordance with the purpose of expropriation or public interest within a period of time that can be considered reasonable for each immovable they expropriate. Otherwise, it will be inevitable that some of the immovables subject to expropriation transactions will not be used in accordance with the purpose of expropriation or the public interest, and that these immovables will be transferred only to generate income.
As a result, it is clear that the applicant’s immovables have not been used for the purpose of expropriation or for any other public benefit since the date of expropriation. In this context, considering the length of time that has elapsed since the date of expropriation and the increase in the value of the immovables in question during this period, it has been evaluated that the applicant has been deprived of the surplus value created by the property and that the immovables have not been returned. Therefore, in the concrete case, although twenty years have passed until the date of the lawsuit, the public interest purpose has not been achieved since the immovables have not been used in line with the purpose of expropriation, and considering the increase in the value of the immovables during this period, it has been seen that the expropriation price paid to the applicant is far from reflecting the real value of the immovable. Since the applicant has not been compensated for the damage suffered by the applicant, it has been concluded that the intervention imposed an excessive and extraordinary burden on the applicant, and that the fair balance between the public interest and the protection of the applicant’s property right has deteriorated against the applicant.
The Constitutional Court decided that the right to property was violated for the reasons explained.
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