Events
The applicants’ immovable property was crossed by an energy transmission line twice, before and after 1983, without expropriation or administrative easement. The applicants brought an action for compensation for expropriation against the Turkish Electricity Distribution Corporation (TEDAŞ) before the civil court of first instance.
Court accepted the claim on the basis of 13,837.33 TL, which was determined by taking into account the oscillation share in the expert report. TEDAŞ appealed against this decision, and the regional court of justice, which examined the appeal, annulled the court’s decision. The regional court of appeal decided that a total of 3,998.03 TL, calculated on the basis of the trace area in the expert report, be paid to the applicants as compensation, and also awarded a lump sum attorney’s fee of 2,180 TL in favour of the defendant TEDAŞ, and decided that 1,678.66 TL of the total 2,518.80 TL judicial expenses be left on the applicants.
Allegations
The applicants claimed that their right to property was violated due to the underdetermination of the easement value of the immovable property through which an energy transmission line was passed without expropriation, and the award of judicial expenses and attorney’s fee against them in the compensation lawsuit filed for this reason.
Assessment of the Court
1. In terms of Easement Fee
When the expert report that the court took as basis for the judgement was examined, it was observed that the report did not explain why the devaluation of the immovable property should be determined on the basis of the swing area of the line. This was not clarified in the court’s judgement either. On the other hand, no justification was given in the decision of the regional court of appeal while taking the area of the line’s projection as basis. In this case, it has been evaluated that the courts of first instance failed to reveal the method of determining the decrease in the value of the immovable in the event of the establishment of the administrative easement, which would be in accordance with the guarantee of payment of the real value specified in Article 46 of the Constitution.
However, it is not the duty of the Constitutional Court to determine whether the projection area or the oscillation area of the power line in administrative easements will be the real equivalent of the loss of value in the immovable property. This is a technical issue and a matter to be resolved by the courts of first instance with the help of expert witnesses if necessary. In the concrete case, the report prepared by the expert committee consulted by the court is far from providing information to enlighten the judicial authorities on this issue. In the aforementioned report, it was stated that the oscillation area of the line should be taken as a basis without explaining the justification. The courts of first instance did not fulfil their obligation to clarify the issue affecting the substance of the dispute concerning the applicants’ right to property.
İn the concrete case, the issue of whether the compensation awarded by the regional court of justice is the real equivalent of the decrease in the value of the immovable property in terms of the calculation method could not be revealed with a relevant and sufficient justification.
For the reasons explained, the Constitutional Court decided that the guarantee of the right to property in the first paragraph of Article 46 of the Constitution was also violated.
2. In respect of the award of judgement costs against the applicant
As explained in the Sadettin Ekiz judgment of the Constitutional Court, the determination of the value of the expropriated immovable property is, in principle, the obligation of the public authorities. The costs of the administrative and judicial processes carried out within the framework of this obligation may only be imposed on the property owner in the presence of certain conditions that can be justified. In any case, imposing these costs on the property owner whose immovable property has been expropriated may lead to an excessive burden on the applicant, as well as preventing the payment of the expropriation price at its real value.
In the concrete case, the applicants, who were forced to file a lawsuit due to the fact that the administration had made an actual seizure instead of complying with the legal procedure, faced with 3,858.66 TL (1,678.66 TL judicial expenses and 2,180 TL attorney’s fee) against the 3,998.03 TL administrative easement fee assessed in their favour as a result of this lawsuit. Accordingly, in reality, the easement fee awarded to the applicants was reduced by 3,858.66 TL to 139.37 TL. In this case, it does not seem possible to mention that the real value of the administrative easement established in favour of the public on the applicants’ immovable property was paid to the applicants.
On the other hand, Article 29 of the Expropriation Law No. 2942 stipulates that the trial expenses in the expropriation price determination cases shall be paid by the expropriating administration. The provision in question was introduced in order to prevent the expropriation price to be paid to the owner from being reduced by awarding judicial expenses against the owner, taking into account the guarantee of payment of the real price in Article 46 of the Constitution.
Since there is no explicit provision of law obliging the courts to charge the applicant with the attorney’s fee and trial expenses in cases of expropriation without expropriation, it would be in line with the principle of supremacy of the Constitution for the courts to interpret the special guarantees in Article 46 of the Constitution and to determine the scope of Article 29 of Law No. 2942 within this framework.
The courts examining the compensation case filed due to expropriation without expropriation should consider that the failure of the administration to apply the ordinary expropriation procedure stipulated in Law No. 2942 or the failure to file a lawsuit for the determination of the expropriation price accordingly is not a simple matter of preference. It is a constitutional and legal obligation for the administration to implement the procedure stipulated in Law No. 2942. This negligence of the administration is a neglect of a constitutional obligation.
Therefore, care should be taken not to put the administration in a more advantageous position than in the ordinary expropriation procedure, based on the fact that the lawsuit, which should normally be filed by the administration, was filed by the owners due to the administration’s attitude that clearly violates the Constitution. In addition, it should be kept in mind that expropriation without expropriation is a practice that is clearly contrary to Article 46 of the Constitution, and in cases where the right to property is interfered with in this way, evaluations and interpretations that will derive rights in favour of the wrongful acts of public administrations and make these practices more advantageous for the administrations cannot be reconciled with the rule of law principle.
In addition, it should be taken into account that, although the court decided to pay an attorney’s fee in favour of both parties in the case in question, the applicants are obliged to pay the attorney’s fee awarded in their favour to their lawyer in accordance with Article 164 of the Attorneyship Law No. 1136. Therefore, the attorney fee that the applicants had to pay cannot be considered as a direct equivalent of the attorney fee paid in their favour.
For the reasons explained above, the Constitutional Court decided that the right to property guaranteed under Article 35 of the Constitution was violated.
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