Individual Application

The Facts

The immovable owned by the applicants was allocated, through the implementary development plan, as an area of public service where a school would be built. The applicants sought the expropriation of their immovable before the Special Provincial Administration but could not attain any result.

They then brought an action for compensation before the incumbent civil court against the administration and requested to be paid the current market value of the immovable. The civil court awarded compensation in favour of the applicants; however, on appeal, the first instance decision was quashed by the Court of Cassation. The first instance court, complying with the quashing judgment, dismissed the applicants’ action for lack of jurisdiction.

On the other hand, the administration filed an action before the civil court, seeking the determination of the expropriation price and registration of the impugned immovable. Accordingly, the administration was granted time to pay the relevant amount, which was designated as the expropriation price by the expert reports, to the applicants. Finding that the administration failed to pay the relevant price within the prescribed period, the civil court dismissed the action.

Thereafter, the applicants brought an action for compensation for pecuniary damage against the administration before the administrative court. However, it was dismissed. The applicant’s appeals as well as their request for rectification of the judgment were also dismissed by the Regional Administrative Court.

The Applicants’ Allegations

The applicants maintained that their right to property had been violated as their immovable allocated as an area of public service had not been expropriated for nearly 30 years and the damages they sustained had not been compensated.

The Court’s Assessment

It is undoubted that the immovables allocated for public use in the zoning plans are to be expropriated within a certain period of time; and that extension of this period leads to uncertainty in the exercise of the rights inherent in the right to property.

In the present case, the applicants’ immovable was allocated as an area of public service by the implementary development plan of 1986. It accordingly appears that the restriction imposed on the immovable has been in force for 33 years.

Although the administration stated that it had waived the expropriation of the impugned immovable, it appears that the restrictions resulting from its allocation for public use are still effective. It is clear that such restrictions would be lifted only when the immovable is removed from the scope of the area allocated for public use by an amendment to the zoning plan. However, it has been observed that in spite of the applicants’ request, the public authorities have not made an amendment to the zoning plan yet.

The applicants have been subject to restrictions, such as a ban on construction, for 33 years. They could not take legal steps that they wished in respect of the immovable and were also subject to an unfavourable effect in terms of the value of the immovable. As a matter of fact, the applicants clearly indicated that they had sustained damage due to the lengthy annotation procedure during the proceedings. It accordingly appears that their claims for compensation are not limited only to the expropriation price. In other words, although the applicants claimed compensation for the damage they had sustained on account of the impugned restriction, their action was dismissed by the inferior courts on the ground that the expropriation price was not payable. However, in order for rendering the impugned interference proportionate, the damages caused by the restrictions to the applicants should have been compensated.

Therefore, it has been concluded that the public authorities’ failure to pay compensation placed an excessive and extraordinary burden on the applicants, which upset, to their detriment, the fair balance that had to be struck between the protection of the right to property and the public interest.

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