Individual Application

The Facts

A power transmission line was made to run through the property of the applicant twice, before and after 1983, without expropriation or administrative easement. The applicants brought an action seeking compensation for the impugned confiscation without expropriation against the Turkish Electricity Distribution Corporation (TEDAŞ) before the civil court of first instance.

The court awarded the applicants 13,837.33 Turkish liras (TL), which was determined by taking into account the proportion of oscillation indicated in the expert report. TEDAŞ filed an appeal against this decision, and the Regional Court, after examining the case, overturned the judgment of the court. The Regional Court of Appeal rendered a decision to compensate the applicants for a total of 3,998.03 TL, calculated on the basis of the projected area in the expert report, as well as a fixed counsel’s fee of 2,180 TL in favour of the defendant TEDAŞ, and decided that 1,678.66 TL of the total trial expenses of 2,518.80 TL should be borne by the applicants.

The Applicants’ Allegations

The applicants maintained that their right to property was violated due to the incomplete determination of the easement value of the property through which a power transmission line was made to run through without expropriation, and the award of litigation costs and counsel’s fees against them in the action for damages brought on this ground.

The Court’s Assessment

1. As regards the Easement Value

When the expert report relied on by the court for its decision was examined, it was found that the report omitted an explanation of why the oscillation of the power transmission line should be utilised to establish the property's devaluation. This was not made clear in the decision of the court either. On the other hand, despite using the projected area of the power transmission line as the basis for its decision, the regional court of appeal did not provide any explanation. In this instance, it has been determined that the first instance courts failed to disclose the procedure for estimating the decrease in property value in the event that an administrative easement were to be established, which would be in accordance with the guarantee of payment of the actual compensation safeguarded in Article 46 of the Constitution.

However, in cases involving administrative easements, it is not the responsibility of the Constitutional Court to decide whether the projected area or oscillation area of the power transmission line is the actual equivalent of the decline in value of the property in question. This is an issue of expertise that should, if required, be decided by the courts of first instance with the assistance of expert witnesses. In the present case, the report issued by the expert committee referred to by the court falls considerably short of providing details to guide the judicial authorities on this matter. The aforementioned report suggested that the oscillation area of the power transmission line should be utilized as a basis without providing justification.  

In the present case, it has not been disclosed with a relevant and sufficient justification whether the compensation awarded by the regional court of justice is the actual equivalent of the decrease in property value in terms of the calculation method.

For these reasons, the Constitutional Court decided that the guarantee for the actual compensation stipulated in the first paragraph of Article 46 of the Constitution, titled right to property, was also violated.

2. As regards the Award of Litigation Costs Against the Applicants

As stated in the judgment of the Constitutional Court rendered regarding Sadettin Ekiz, the determination of the value of the property taken by expropriation falls, as a principle, within the competence of the public authority. The costs of the administrative and judicial procedures carried out within the framework of this obligation can only be imposed on the owner of the property under certain conditions that can be justified. Even though the immovable property has been expropriated, imposing these costs to the property owner in any case may place an excessive burden on the applicant and prevent the payment of the expropriation price at its actual value.

In the present case, the applicants, who were obliged to file a lawsuit due to the fact that the administration had carried out a de facto confiscation instead of pursuing the legal procedure, had to pay 3,858.66 TL (litigation costs of 1,678.66 TL and counsel’s fee of 2,180 TL) against the 3,998.03 TL in easement fees awarded to them as a result of this lawsuit. Accordingly, in practice, the easement fee granted to the applicants was reduced by 3.858,66 TL to 139,37 TL. In this case, there is no indication that the actual value of the easement in favour of the public on the applicants' property has been paid to the applicants.

On the other hand, Article 29 of the Expropriation Law No. 2942 stipulates that the litigation costs in cases of determination of the expropriation value shall be borne by the expropriating administration. Given the guarantee of payment of the actual value in Article 46 of the Constitution, this provision was introduced in order to prevent the expropriation price to be paid to the owner from being reduced by the award of litigation costs against the owner.

Since there is no explicit legal provision that requires the courts to charge the applicant with the counsel's fees and litigation costs in cases of confiscation without expropriation, it would be in accordance with the principle of the Constitutional supremacy for the courts to interpret in the light of the special guarantees of Article 46 of the Constitution and to determine the scope of Article 29 of Law No. 2942 within this framework.

The courts examining the case of compensation for confiscation without expropriation should consider that it is not simply a matter of preference on the part of the administration not to apply the ordinary expropriation procedure under Law No. 2942 or not to file a lawsuit for the determination of the expropriation value. It is a constitutional and legal obligation for the administration to carry out the procedure stipulated in Law No. 2942. This negligence on the part of the administration constitutes 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, has been filed by the owners due to the administration's attitude, which manifestly violates the Constitution. In addition, it should be kept in mind that confiscation without expropriation is a practice that is manifestly violates 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.

In addition, it should be noted that, although in the present case a counsel's fee was awarded in favour of both parties, the applicants were obliged to pay the counsel's fee awarded in their favour to their attorney pursuant to Article 164 of the Attorneyship Law No. 1136. Therefore, the counsel's fee paid by the applicants cannot be considered as a direct equivalent of the counsel's fee awarded in their favour.

Consequently, the Court has found a violation of the right to property, safeguarded by Article 35 of the Constitution.