Taking away without expropriation

When the administration needs privately owned real estate while carrying out public services, it can purchase the real estate in accordance with the rules of private law; Without the consent of the owner, it may ensure that the ownership of all or part of the real estate it needs is transferred to the administration by using its expropriation authority, provided that the price is paid and in accordance with other conditions stipulated by law.

The expropriation process of the administration is an intervention that directly eliminates the property right, which is a real right that the real estate owner has and can only be limited by law. Therefore, expropriation is an institution that can only be used by authorized bodies and is legal as long as it is carried out in accordance with the procedures and principles set out in the law and has the purpose of public interest.

Seizure without expropriation is the actual and unjust occupation of privately owned real estate, knowingly or unknowingly, by the administration, which does not want to use the expropriation institution, which is the legal method of acquiring property recognized by the law, without complying with the procedures and rules regarding expropriation and without paying a price.

In other words, seizure without expropriation; state or public legal entities authorized to carry out expropriation, all or part of a privately owned immovable property; It is actually occupying and allocating for public service without a valid expropriation decision, without the consent of the owner and without paying the price.

The General Assembly of the Supreme Court of Appeals, in its decision dated 25.05.2005, stated that confiscation without expropriation; "It means that the administration actually starts to dispose of the immovable property without expropriation and without relying on a provision of law and prevents or eliminates the right of use of the real owner." He explained it as follows.

Although the subject of our article is the seizures without expropriation that took place after 4.11.1983, 2942 p. The seizures without expropriation, which took place between 1956 and 1983, regulated in the provisional Article 6 of the Law, will also be briefly mentioned.

LEGAL REGULATION ON THE PROBLEM OF EXPROPRIATION WITHOUT EXPROPRIATION

The fact that the administration knowingly or unknowingly prefers the institution of confiscation without expropriation, contrary to the law, while it can acquire the ownership of privately owned immovable properties that it needs while carrying out public services through legal methods of acquisition (expropriation, expropriation, regulation, partnership share application, urgent expropriation, nationalization, etc.) and causes great grievances by violating the property rights of people, is a problem that has existed in our country for many years and still continues.

This problem has so far been solved by the Supreme Court's Unification of Jurisprudence Decisions No. 1956/1 E. 1956/6 K. dated 16.05.1956 and No. 1954/1 E. 1956/7 K. Dated 16.05.1956 and constantly changing laws (6830 p., 221 p., 5999 p. and 2942 p.) has been tried to be solved. However, all of the laws that are retroactive and cover seizures without expropriation in a certain period are nothing more than showing that the administration can arbitrarily act unlawfully, rather than relieving the grievances caused by the illegal behavior of the administration. The fact that ECHR has given many violation decisions to our country due to confiscation without expropriation is an indication of this situation.

TYPES OF TAKING OUT WITHOUT EXPROPRIATION

In the established jurisprudence of the Supreme Court, only actual seizures were accepted as seizures without expropriation since the 1950s. However, YHGK changed its opinion with a decision made on 15.12.2010;

"The fact that the defendant Administration, which did not go for expropriation or exchange due to the fact that the development plan, which was not included in the program for many years, was not actually implemented, interfered with the real estate by remaining passive and silent and not taking action, and that the action of the Administration was found to be sufficient for the existence of the phenomenon of seizure without expropriation, which has a nature that touches the essence of the right to property and eliminates it, is beyond all explanations.

In this respect, it is clear that the natural consequence of the existence of the phenomenon of confiscation without expropriation is that the plaintiff, the owner of immovable property, whose property rights have been blocked by the unlawful action of the Administration, may request that the property be converted into a price, in other words, the value of the property will be paid from the administration, in line with the provisions of confiscation without expropriation through a lawsuit.

The concept of seizure without expropriation, which arises due to the legal seizure action of the administration, has come to the fore. After the Supreme Court's change of decision, the Expropriation Law included legal regulations, albeit partial, regarding legal seizures.

Therefore, we can say that there are currently two different types of seizure without expropriation: actual seizure and legal seizure.

ACTUAL HANDLING

Seizures without expropriation, arising from actual confiscation, occur when the administration acts unlawfully, that is, without expropriating through legal means, knowingly or unknowingly, de facto seizing a privately owned immovable property, without relying on the consent of the owner and without paying the price. The act of administration includes the act of laying hands; building, facility, etc. on the real estate. It can be realized by doing so, or by reserving the real estate for a public service.

Although in practice, the administration's de facto seizure of privately owned real estate without expropriation seems to be an action or transaction belonging to the administration, this behavior of the administration is interpreted not as an administrative action, as it involves grave unlawfulness, but as an "actual remedy", by analogy with a tort in private law. Since the actual seizures of privately owned immovable property before 9.10.1956 with the Expropriation Law No. 221 dated 5.1.1961 are considered expropriated, the concept of actual seizure is valid after 09.10.1956.

LEGAL SEIZURE

The reason why the word legal is used in this type of seizures without expropriation, which is against the law; It is the administration's initial development plans, that is, acting in accordance with the law, and allocating it to the public service to be expropriated within the period specified in the law. However, since the administration does not implement the zoning programs, does not take any action in accordance with the zoning plan within a reasonable time, and intervenes in the real estate in a way that violates the essence of the property right by remaining passive, this situation has now become illegal and realizes the phenomenon of confiscation without expropriation.

As we explained above, seizures without expropriation arising from legal seizures were brought to the agenda with the jurisprudence amendment of the YHGK dated 2010.

In the additional Article 1 of the Expropriation Law No. 2942;

"For immovable properties whose disposal is legally restricted in a way that violates the essence of the property right by being reserved for public services and official institutions in the implementation zoning plans, zoning programs or zoning applications are made within the five-year period from the entry into force of the implementation zoning plans, and these immovable properties are expropriated by the relevant administrations within the budget possibilities, or in any case, the zoning plan is amended to remove the restriction that will prevent the use of the property right." In his words, the phenomenon of seizure without expropriation arising from legal seizure; It has been stated that it will occur if the administration does not expropriate within the stipulated time or does not take any action that will remove the restriction of property rights.

DIFFERENCE BETWEEN ACTUAL SEIZURE AND LEGAL SEIZURE

We briefly explained the similar and different points between non-expropriation seizures arising from actual seizure and non-expropriation seizures arising from legal seizure. Namely;

UNEXPROPRIATION TAKEAWAYS ARISING FROM ACTUAL TAKEAWAY

• The administration acts for the public interest.

• The administration permanently seizes privately owned real estate in order to take possession of it.

• While the possession passes to the administration, the ownership continues to remain with the owner.

• It is possible for the property to be transferred to the administration in 3 ways: With the consent of the owner (by agreement), By expropriation in accordance with the procedure, By paying the price of the immovable property through a lawsuit.

• The administration did not initially have the idea of carrying out proper expropriation.

• It is a tort of the administration from the very beginning. Contravention of law does not occur later.

• The Judiciary has jurisdiction in disputes.

UNEXPROPRIATION TAKEAWAYS ARISING FROM LEGAL TAKEAWAY

• The administration acts for the public interest.

• The administration permanently seizes privately owned real estate in order to take possession of it.

• Ownership + Possession does not pass to the administration, it continues to remain with the owner. However, property rights are restricted.

• It is possible for the property to be transferred to the administration in 3 ways: With the consent of the owner (by agreement), By expropriation in accordance with the procedure, By paying the price of the immovable property through a lawsuit.

• The administration initially acts with the idea of ​​expropriating within the period prescribed by law (5 years).

• It is an administrative action resulting from the inaction of the administration. Illegality occurs when the administration does not expropriate the real estate within 5 years from the entry into force of the zoning plan or does not make changes to the zoning plan to remove the restriction on property rights.

• Administrative jurisdiction has jurisdiction in disputes.

CONDITIONS OF APPROPRIATION WITHOUT EXPROPRIATION

In order to file a lawsuit according to the provisions of confiscation without expropriation, the concrete incident must have all the elements of seizure without expropriation. So much so that, in the absence of some elements, the concrete incident can be considered as a tort of the administration. Or the administration may have seized the real estate within the scope of the authority granted to it in some laws (Article 18 of the Zoning Law). Therefore, determining the rights of the owner and the administration depends on the correct legal qualification of the phenomenon. The elements that must exist together in order to be able to talk about taking over without expropriation are as follows:

1- ADMINISTRATION'S TAKEAWAY OF A PRIVATELY OWNED PROPERTY FOR PUBLIC BENEFIT

Expropriation and expropriation without expropriation are similar in terms of purpose and authority, as well as in terms of subject matter. The subject of both expropriation and confiscation without expropriation is only privately owned immovable property. Privately owned resources and easement rights are also included in the concept of immovable property.

The administration can only carry out expropriation for the purpose of public interest, and it can also carry out expropriation without expropriation, even if it is against the law, only for the public benefit. In other words, the owner whose property rights have been interfered with due to the administration's intervention not for the purpose of public benefit can only be held liable in tort by the administration.

2- TAKING MUST BE MADE BY THE AUTHORIZED ADMINISTRATION AND WITHIN THE ISSUES WITHIN THE ADMINISTRATION'S FIELD OF DUTY

In order to be able to talk about expropriation without expropriation, the administration that actually seizes a privately owned immovable property must first have the authority to carry out expropriation. It is clearly regulated in the law that the administrations with expropriation authority are the State and public legal entities.

The administration authorized to carry out expropriation can only use its expropriation authority in matters that are assigned to it by law and are responsible for doing so. Likewise, in order to talk about seizure without expropriation, the actual seizure must have been made on matters within the administration's field of duty. Otherwise, only the wrongful act of the administration can be mentioned.

3- ADMINISTRATION'S TAKEAWAY WITHOUT PROPER EXpropriation

The institution of confiscation without expropriation is a process that does not derive its source and basis from the Constitution and laws, but touches the essence of the right to property. While the method of expropriation is to carry out an expropriation process in accordance with the Constitution and laws, it is not possible to talk about a proper expropriation process in confiscation without expropriation.

If the administration seizes a person's immovable property and builds a facility or building on it, or allocates that immovable property to a service and takes any action against the owner's right to use the immovable property as he wishes, without taking action in accordance with the Constitution and laws, the administration is deemed to have seized the immovable property without expropriation.

Unfortunately, when the administration needs a privately owned real estate, it sometimes acts against the law by not remembering (!) the expropriation institution, which is the legal method of acquiring property. In other words, he may have actually seized the property and built a road or demolished the structures on it, without even starting any expropriation process.

Sometimes, he may have initiated the expropriation procedures but actually took possession of the real estate without waiting for the proper completion, that is, before the ownership of the real estate had yet been transferred to the administration. We can say that there is seizure without expropriation, especially in cases where the immovable property is actually seized without duly making the notification that must be made to the owner during the expropriation process, or by skipping one of the stages that must be completed in the expropriation process.

Supreme Court HGK dated 24.5.2006 and 2006/5-327 e. 2006/316 k. In a decision no., it was stated that the provisions of confiscation without expropriation should be applied due to the lack of proper notification to the owner. Namely;

"Even if the expropriation decision has been taken and the amount has been blocked to the bank, it is clear that the delivery of the immovable property cannot be requested from the owner without notification by the administration, and a completed expropriation process cannot be talked about for the owner.

In this case, if the immovable property has been seized by the administration, the fact of seizure without expropriation must be accepted since the Expropriation Law has not been acted upon.

Therefore, the owner of the property may file a lawsuit against the administration to prevent seizure, as stated in the Unification of Jurisprudence Decision No. 1/6 dated 16.5.1956, or may also request compensation for the value.

As can be understood from the following statements; Although the expropriation decision was taken by the administration and the amount was blocked to the bank, the case was accepted as a case of confiscation without expropriation, although there was no notification made to the owner in accordance with Article 13 of the Expropriation Law No. 2942; Otherwise, it is beyond doubt that it should be seen and finalized within the framework of expropriation law."

4- THE ADMINISTRATION HAS ACTUALLY TAKEN USE OF THE PROPERTY

In order to talk about seizure without expropriation, the administration must have actually seized a privately owned immovable property and must have made an intervention that eliminates the owner's use of property rights. Especially in legal confiscation, that is, if the administration allocates the real estate for a public service through zoning plans, the court determines the applicability of the confiscation provisions without expropriation by investigating whether the real estate has been put into actual zoning practice, that is, whether the administration has restricted the owner's disposition on the property right by actually confiscating the real estate.

This situation was explained in the YHGK decision numbered 2003/(5-281)-284 and dated 9.4.2003. It's like;

"Since the application of the provisions of confiscation without expropriation means preventing the owner's disposal and taking away his property, a lawsuit cannot be filed against the administration as long as the owner of the immovable property is in his possession and has the right to use it. For this reason, showing a real estate as a green field, a parking area or having a road through the middle of it in the zoning plan does not give the owner the right to sue (3rd HD. 04.05.1976 day, E. 2993 K. 3817 and 31.05.1976 day E. 3498 K. 4359 just showing it as a road in the zoning plan is not sufficient for the acceptance of the case. It must be turned into a road.)

In cases where the whole or a part of a real estate is included in the zoning plan and shown as a green field, road and school location and a building permit is not issued upon the application of the owner, the concept of seizure without expropriation does not arise due to the transaction remaining at this end (3rd HD. 17.04.1978 day and E. 2349 K. 2574 The fact that the place that has not been actually seized is included in the zoning plan does not require paying a fee).

For this reason, the owner of the property cannot be granted a right to sue. As a matter of fact, in the decision of the 3rd Civil Chamber of the Supreme Court of Appeals, dated 04.05.1976, No. 2993 K. 3817, it is stated that "However, the cost of the seized place can be claimed as compensation. According to the land registry records, showing the remaining parts as green areas in the zoning plan cannot be considered as a seizure without expropriation" (See: Ali Arcak, Edip Doğrusöz. Seizure without Expropriation, Prevention of Confiscation and Compensation). cases 1992 edition pp. 25-26)."

5- THE ADMINISTRATION HAS TAKEN HANDS PERMANENTLY AND FOR ADOPTION

It is not possible to apply the provisions of seizure without expropriation as a result of the administration's temporary seizure of privately owned real estate. To be able to talk about taking over without expropriation, the taking over must be for the purpose of allocating to public services and of a permanent nature. For example, in the event that the administration, while carrying out public activities, damages the trees on a privately owned immovable property by piling up soil and sand on it, it cannot be said that the administration intends to take possession of the immovable property and seize it permanently. However, the owner has the right to demand compensation and fines in judicial or administrative jurisdiction, depending on the legal nature of the confiscations that are temporary and not for the purpose of appropriation.

WHAT ARE THE RIGHTS OF THE OWNER AGAINST THE ACTUAL SEIZURES THAT OCCURRED BETWEEN 09.10.1956 - 04.11.1983?

In order to prevent disputes and property rights violations caused by seizures without expropriation that took place between these dates, provisional Article 6 titled "Determination of the price of immovable properties allocated to public service without expropriation" was added to the Expropriation Law No. 2942 by Law No. 5999.

"Although the expropriation procedures have not been completed or the expropriation has never been carried out, the immovable properties or resources that were actually allocated to public service or allocated to a need for public interest and established on between 9/10/1956 and 4/11/1983 were seized, partially or completely, or without the consent of the owner by establishing easement rights. In case a price is requested, the price determination and other transactions are made in accordance with the provisions of this article. To be carried out in accordance with this article. "It is a condition for litigation to first apply the conciliation procedure in transactions."

As can be understood from the article of the law, the owner whose immovable property was seized without expropriation between these dates has the right to sue for claims arising from the right of ownership (such as the case of prevention of seizure, the lawsuit of ecrimisil) and the right to request a price determination. However, in order for the owner to exercise his right to sue, it is required that the conciliation procedure detailed in provisional Article 6 be tried first.

If an agreement is reached, a contract is concluded that includes the type of right agreed upon, the terms and procedures of recognition, the amount and payment terms if cash payment is to be made, and the consent to the registration or cancellation of the immovable properties, and the immovable properties subject to the agreement are registered or canceled ex officio in the land registry.

If no agreement is reached, a price determination lawsuit may be filed by the owner or the administration within three months from the date of the dispute report.

WHAT ARE THE RIGHTS OF THE OWNER IN CONSEQUENCES WITHOUT EXPROPRIATION AFTER 04.11.1983?

The resolution of disputes arising from seizures without expropriation made since 04.11.1983 is not made according to the provisional Article 6, but according to the general provisions as stated by the YİBK in its decision dated 16.5.1956. Therefore, if the owner whose property rights have been violated due to the administration's seizure without expropriation wishes;

1. Can file a lawsuit to prevent seizure in order to eliminate the administration's unfair occupation of the real estate,

2. By consenting to the transfer of ownership of the real estate to the administration, he can file a lawsuit for collection of the price,

3. If damage has occurred due to the administration's tortious act (action of confiscation without expropriation), it may file a lawsuit for compensation,

4. He may file an ecrimisil (unfair occupation compensation) lawsuit due to the administration's seizure without expropriation.

CASE FOR PREVENTING SEIZURE DUE TO EXPROPRIATION WITHOUT EXPROPRIATION

If the administration's unlawful seizure of a privately owned immovable property has restricted the owner's rights arising from the right of ownership, the owner has the right to demand through a lawsuit to prevent the administration's unlawful seizure of the possession and ownership of the immovable property. The important points to know about the prevention of seizure case filed due to seizure without expropriation are as follows:

• Since the lawsuit for prevention of confiscation relates to the property right, which is a real right, there is no statute of limitations or limitation period.

• However, if the administration's unfair seizure of the owner's real estate has ended, a lawsuit to prevent seizure cannot be filed.

• A lawsuit to prevent confiscation can only be filed by the title deed owner of the real estate. If the real estate is shared ownership, each stakeholder can file a lawsuit alone. The decision given at the end of the case affects the entire property.

• A lawsuit to prevent seizure is filed against the administration that actually seized the real estate and was in possession of the real estate on the date of the lawsuit.

• If the owner has suffered damage due to the illegal intervention of the administration, he must also file a lawsuit for compensation.

• In order to file a lawsuit to prevent unfair seizure by the administration, it is not necessary for the owner to have suffered damage.

• Whether the administration has committed the act of unfair seizure knowingly or unknowingly does not change the owner's right to sue.

• A lawsuit to prevent seizure is filed in the civil court of first instance where the real estate is located.

CASE FOR COLLECTION OF THE PRICE DUE TO EXPROPRIATION WITHOUT EXPROPRIATION

The lawsuit for collection of the price is a type of lawsuit that can be filed by the owner who consents to the transfer of ownership of the real estate to the administration that illegally seized the real estate on a date after 04.11.1983 and demands the price of the real estate in return. This case is filed based on YİBK's decision dated 1956. Because, in the YİBK dated 16.05.1956, the owner was granted two electoral rights that he could open due to confiscation without expropriation. The first of these is the case of preventing intervention, and the other is the case of collecting the price by consenting to the transfer of the immovable property to the administration. Important points to know about the lawsuit for collection of the price are as follows:

• As stated in the Unification of Supreme Court Jurisprudence decision, the lawsuit for the collection of compensation based on the property right, which is a real right, is not subject to any limiting period or statute of limitations. As long as the administration's unlawful intervention continues, a lawsuit may be filed for the collection of the fee.

• The lawsuit can be filed by the title deed owner of the confiscated real estate. If the real estate is shared ownership, each of the stakeholders has the right to file a lawsuit on their own in proportion to their shares. The decision given at the end of the court is only effective to the extent of the plaintiffs' share.

• The court is obliged to determine the real value of the real estate through the report prepared by experts and by conducting ex officio research. The method used when determining the price is the method used during expropriation.

• In case of collection of the fee, fees and attorney's fees are calculated on a relative basis.

• The competent court in the case of collection of the price is the civil court of first instance where the real estate is located.

COMPENSATION CASE DUE TO EXPROPRIATION WITHOUT EXPROPRIATION

If the immovable property or items on the immovable property, such as trees and crops, are damaged due to the administration's seizure without expropriation, the owner may claim compensation for the damage he suffered due to the unfair act of the administration. Administration BK. In accordance with Article 49, he is obliged to compensate for the damages caused by tort. The injured owner is under the burden of proving his damage and the fault of the administration. If the amount of damage suffered cannot be proven exactly, the judge determines the amount of damage fairly, taking into account the ordinary course of events and the measures taken by the injured party.

In a decision dated 3.6.2015 of the General Assembly of the Supreme Court of Appeals, the court responsible for hearing the lawsuit to be filed for the compensation of the damage suffered due to confiscation without expropriation, stated: "Since actual seizures resulting from the illegal actions of the administration are no different from the actions of private persons constituting torts, it has been accepted that the damages arising from such actions should be subject to litigation in the judicial jurisdiction, just like the damages arising from the torts of private persons." It is expressed as follows.

Anyone who has been harmed due to the administration's unfair seizure can be a plaintiff in a compensation lawsuit.

Compensation for the damages suffered due to the unfair act of the administration must be requested within two years from the date the injured party learned about the damage and the culprit, and in any case within ten years from the date the act was committed.

Civil courts of first instance are responsible for hearing cases for compensation of damage suffered due to confiscation without expropriation, that is, due to the unfair act of the administration. The competent court is the court of the defendant's place of residence, the court of the place where the immovable property is located, or the court of the place of residence of the injured person.

ECRIMISIL CASE DUE TO EXPROPRIATION WITHOUT EXPROPRIATION

Ecrimisil lawsuit, also known as unfair occupation compensation lawsuit, is a compensation lawsuit filed against the occupier by people who cannot use their real estate as they wish due to unfair occupation. It is clear that the administration that seizes the real estate without taking an expropriation decision or completing the expropriation procedures will be in the position of an unfair occupier. The conditions under which the owner can request remuneration from the administration due to confiscation without expropriation have been shaped in the light of the Supreme Court decisions. Due to the administration's unfair seizure of the real estate, the property owner cannot use the rights he has on the real estate and cannot engage in income-generating activities. In this case, the administration is obliged to pay compensation for unfair occupation if the owner requests it. However, there is no doubt that remuneration cannot be claimed for the period after the compensation lawsuit due to confiscation without expropriation.

According to a decision of the 3rd Civil Chamber of the Supreme Court dated 30.04.2002;

"The amount of fine that may be claimed due to unfair occupation may be full profit deprivation or the rental money that the real estate can bring. Full profit deprivation is the profit that the plaintiff is deprived of due to the fact that the real estate cannot be used by the plaintiff. Rental income consists of the rental money that the real estate can normally bring.

The plaintiff who claims to have been damaged must prove the income he would have earned if the real estate had not been occupied and that the occupation prevented him from obtaining this income.

Civil Courts of First Instance are responsible for hearing the civil penalties cases requested due to confiscation without expropriation, that is, due to the unfair act of the administration. The competent court is the court of the defendant's place of residence, the court of the place where the immovable property is located, or the court of the place of residence of the injured party.

The Supreme Court accepts the legal nature of ecrimination as a tort. The statute of limitations for torts is 10 years. However, the Supreme Court of Appeals applies a 5-year statute of limitations in ecrimination cases, as in lease agreements. According to practice, ex-gratia compensation can be requested retroactively 5 years from the date the case was filed. In the Ecrimisil case, the statute of limitations begins on the date the case is filed.

THE COURT IN CHARGE OF EXPROPRIATION CASES

2014/5-84 of the General Assembly of the Supreme Court of Appeals e. This issue was stated in the decision numbered 03.06.2015:

"Since the actual seizures resulting from the illegal actions of the administration are no different from the actions of private persons that constitute torts, it has been accepted that the damages arising from such actions should be subject to litigation in the judicial judiciary, as in the damages arising from the torts of private persons (11.02.1959 day, 1958/17 E., 1959/15 K. Unification Decision of the Supreme Court).

On the other hand, in the third sentence of the tenth paragraph of the provisional article 6, amended by Article 21 of the Law No. 6487 dated 11.06.2013, which was added to the Expropriation Law No. 2942 by the Law No. 5999 of 18.06.2010, which entered into force on 30.06.2010; It is stated that "A lawsuit can be filed in the administrative judiciary after the administrative applications and procedures foreseen in the Zoning Law No. 3194 dated 03.05.1985 are completed, regarding real estates whose disposal is restricted by being reserved for public services and official institutions in the implementation zoning plans or by the application of the relevant laws."

However, this regulation should not be understood as meaning that cases arising from any kind of non-expropriation by the administration will be heard in the administrative judiciary. The scope of this regulation includes compensation lawsuits filed due to legal restrictions imposed on people's use as a result of zoning, even though the administration has not actually taken possession of the real estate owned by individuals. Apart from these restrictions, the duty of the judicial judiciary continues in compensation cases arising from the administration's active seizure of people's real estate and preventing their use in whole or in part.

It is clearly expressed in the form.

FEES AND ATTORNEYS' FEES IN EXPROPRIATION CASES

2019/18-65 of the General Assembly of the Supreme Court of Appeals e. 2019/635 k. This issue was stated in the decision numbered 28.5.2019:

"In the cases of confiscation without expropriation filed regarding immovable properties actually confiscated between 09/10/1956 and 04/11/1983, the fees and attorney fees will be paid as a lump sum in accordance with the 7th paragraph of the Provisional Article 6, and in the cases filed regarding the immovable properties seized after 04/11/1983, the court and enforcement fees and all kinds of attorney fees will be paid proportionally in line with the general provisions. needs to be implemented. It is clearly stated as follows: "Since the date of actual seizure of the immovable property in question must be determined and the fees and attorney fees must be determined accordingly, this issue has been made a reason for reversal."

CAN EXECUTIVE CASES WITHOUT EXPROPRIATION BE EXECUTED BEFORE THEY ARE FINALIZED?

This issue is stated in the provisional Article 14 of the Expropriation Law No. 2942;

"Although the expropriation procedures have not been completed or the expropriation has never been carried out, until the date of entry into force of this article, from 4/11/1983 to the date of entry into force of this article, the court decisions given in the cases regarding the price and compensation for the claims arising from the right of ownership due to the de facto seizure or legal confiscation without the consent of the owner, partially or completely, or by establishing easement rights, on the immovable properties or resources on which the immovable property has been allocated for a need related to the public interest or has been established on it, partially or completely, without the consent of the owner, are finalized. cannot be enforced. Execution proceedings initiated based on court decisions that have not become final before the date of entry into force of this article shall be suspended until the final court decision is submitted."

As can be understood from the article of the law, the lawsuits filed due to legal and actual seizures that took place from 4/11/1983 until 12/06/2019, the effective date of this article, could not be enforced unless the court decisions were finalized.

However, the provisional Article 14 of Law No. 2942 has been CANCELED by the decision of the Constitutional Court dated 04.02.2021 and numbered 2019/89 E. 2021/10 K., published in the Official Gazette dated 07.05.2021.

With the annulment decision of the Constitutional Court, court decisions regarding the requests due to the administration's seizures without expropriation that took place after 04.11.1983 will no longer be expected to be finalized in order to be put into execution. And again, the enforcement proceedings, which were suspended due to the temporary Article 14, can continue upon the request of the enforcement creditor. In this way, delay in receiving the price or compensation awarded in favor of the owner whose property right has been violated is prevented.

The Constitutional Court included the following statements in the justification of the decision annulling the provisional Article 14 of the Expropriation Law;

"… 96. The lawsuit and objection rules of the provisional Article 14 of the Law No. 2942 stipulate that court decisions given in lawsuits regarding the price and compensation filed by individuals due to seizures without expropriation cannot be enforced unless they become final, and that these processes will be stopped until the finalized court decisions are submitted by intervening in the initiated and still ongoing enforcement processes. In this respect, the rules prevent the start of enforcement proceedings regarding the court decisions that have not been finalized and the enforcement that has already started. "For the reasons explained above, the rules limit the right to property and a fair trial."

"…98. The rules in question, which seek the existence of a final court decision in terms of enforcement proceedings, aim to protect the resources required for the public services that the administrations are responsible for and to prevent disruptions that may occur in public services. In this way, it is understood that the rules, which are expected to contribute to the continuous, orderly and systematic maintenance of social life, limit the rights of property and fair trial in order to realize the public interest."

"… 101. However, considering that the rules that are the subject of the lawsuit and objection are related to the price and compensation receivables arising from non-expropriation seizures, which are an actual seizure without complying with the provisions stipulated for expropriation in the Constitution, the court decision regarding the price or compensation receivable for the purpose of compensating the damage of the owner whose property right has been violated due to an actual intervention requires that it be finalized in order to be subject to enforcement proceedings. "It imposes a burden and disrupts the fair balance that should be observed between public interest and personal benefit, to the detriment of the owner. In this respect, it is understood that the rules are not proportionate to the aim to be achieved."