Constitutionality Review

Contested Provision

The contested provision stipulates that the increase applicable to the price of the expropriated property shall not be higher than the half of the land’s determined price.

Ground for the Request for Annulment

It was maintained in brief that the actual price of the expropriated property was required to be paid and that the limitation of the objective value increase rate, which varied by the features of the property, by up to 50 per cent in the determination of the price of the property eliminated the possibility of determining its real value. In this regard, it was claimed that the contested provision was in breach of Articles 2, 10, 13, 35 and 46 of the Constitution.

The Court’s Assessment

“Actual price” is one of the constitutional elements of the expropriation process, therefore, legal arrangements concerning the price of the expropriated property must comply with this criterion. Payment of the actual price of the expropriated property to its owner is also a requirement of the principle of proportionality as well as the right to property.

The contested provision stipulates that an increase to be applied to the objective value of an expropriated land on account of the factors having positive effects on its value shall not be higher than the half of the land’s determined price.

In expropriation process, proportional limitations that may prevent, to a considerable extent, the reflection of the land’s features that render it more valuable than the equivalent properties to its price cannot be foreseen. The limitation set out in the contested provision might hinder the determination of the actual price of the properties in respect of which more than 50 per cent objective value increase is required to be applied and hence its payment to the owner. The contested provision has been considered to disturb the fair balance between the public interest and the owner’s right to property, therefore it has been found to be in breach of the principle of proportionality.

The said provision that hinders the determination of the actual price, one of the constitutional elements of the expropriation process, thereby causing a disproportionate restriction on the right to property, has been found unconstitutional and annulled.