Individual Application

The Facts

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. Nevertheless, these immovables could not be used for road construction as the impugned immovable was later found to be falling within the borders of a protected urban zone after the expropriation proceedings had been realized. The repeated applications of the municipality carrying out the expropriation proceedings to the Board of Conservation yielded no result and the road construction could not start at the date when the individual application was filed. Therefore, the impugned immovables could not be used for the purposes of road construction.

The applicant brought a case for the annulment of the title deed and requested the registration of the property at issue within the scope of exercising its right for the return of the immovable before the Civil Court. Although the Civil Court dismissed the case as being time-barred, the Court of Cassation examined the merits and later dismissed the appeal submission of the applicant. The Court of Cassation evaluated all of the applications filed by the municipality with the Board of Conservation and the decisions of the Board as proceedings serving for the purpose of expropriation and therefore it concluded that the requirements for the return of the immovables had not been fulfilled. The applicant’s request of rectifying the decision was also dismissed by the Court of Cassation

The Applicants’ Allegations

The applicant claimed that its right to property was violated due to the refusal to return the immovable property that was not used in line with the expropriation purpose.

The Court’s Assessment

The legal proceedings and acts conducted on the expropriated immovables contrary to the expropriation purpose and the failure to use the immovables in question in a way that serves the expropriation purpose even after a reasonable period of time has passed, establish a disproportionate interference with the right to property. Accordingly, the failure to allocate the expropriated immovables for the expropriation purpose leaves the immovable owner unable to benefit from the added value increased in the intervening period and in essence, results in the failure to expropriate the immovable at its real value.

In the present case, not only the immovables expropriated by the municipality were not used for the determined expropriation purpose but also their use was not allocated for any purpose serving the public interest. Although the Court of Cassation in its upholding decision evaluated the correspondence of the municipality with the Board of Conversation to use the said immovable for the purpose of public interest as acts carried out to realize the expropriation purpose and concluded that therefore, the requirements for the return of the immovables had not been constituted; it is observed from the documents in the case file and the ones submitted to the Civil Court during the proceedings before instance courts that no steps had been taken to use the impugned immovables for the road construction. As a matter of fact, the decisions of the Board of Conversation indicate that the roads in the region where the immovable is found were impossible to be widened.

Additionally, there has been no allegation that the expropriated immovable was allocated for purposes other than the construction of a road. Under these circumstances, it is not possible to accept the correspondence of the municipality with the Board of Conversation and the decisions of the Board of Conversation as the acts taken for realizing the expropriation purpose

On the other hand, the existence and continued existence of the correspondence with the Board of Conversation regarding the immovables cannot be considered a justified ground for the municipality to continue to hold the immovables without allocating them for the use of the public interest considering the legal obstacles emerged soon after the expropriation date against the use of immovables for the expropriation purpose. The public authorities are obliged to act within a reasonable period of time in accordance with the expropriation purpose or a purpose serving the public interest for each expropriated immovable. Otherwise, it will pave the way for some of the immovables subject to expropriation proceedings not to be used in accordance with the expropriation purpose or a purpose serving the public interest and these immovables will be inevitably transferred only in order to generate income.

In conclusion, it is clear that the applicant’s immovables have not been used in accordance with the expropriation purpose or for any other purpose benefiting the public interest since the date of expropriation. Within 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 added value of the property due to the passed period; yet the immovables have not been returned to the applicant. Therefore, the purpose of serving the public interest was not realized on the grounds that twenty years have passed until the date when the impugned case had been initiated, and considering the added value of the immovables increased during this period, the expropriation price paid to the applicant at that time remains far behind the real value of the immovable. In light of the lack of compensation for the damages suffered by the applicant due to the above-mentioned reasons, it has been concluded that the impugned interference placed an excessive and extraordinary burden on the applicant and that the fair balance to be struck between public interest and protection of the applicant's right to property has been disturbed by the interference to the detriment of the applicant.

In light of the reasons explained above, the Constitutional Court found a violation of the right to property.