The Constitutional Court recently considered a claim alleging violation of property rights under Article 35 of the Turkish Constitution (decision number 2013/4523, dated 16 September 2015). The court held that failing to consider a decrease in value which arises due to inflation between the motion and payment dates is a violation of Constitutional property rights. The court awarded indemnification amounting to the difference in the expropriated property's value between the calculation and payment dates.
In the case at hand, the municipal authority initiated an action on 28 April 2009 to determine and register the expropriation price. The Applicant objected to the unit prices determined by the first instance court. The court did not take these objection into account, ultimately giving a decision regarding payment of the expropriation price to the applicant and cancellation of the registry on 18 January 2012 – around 33 months after the expropriation price was determined.
Accordingly, the Applicant applied to the Constitutional Court on the grounds that his property rights had been violated.
The Applicant claimed that the price of the expropriated land was determined lower than the neighboring land, in a similar case. Therefore, the Applicant argued that the first instance court's decision was inequitable. The Constitutional Court dismissed this claim on the basis that the expropriation price calculations are within the first instance court's authorization and jurisdiction. The Constitutional Court did not identify any arbitrariness.
The Applicant also claimed he suffered a loss because the payment was made on 18 January 2012 without any interest added on, despite the price being calculated according to the conditions on 28 April 2009.
The Constitutional Court ruled that payment of the expropriation price without interest, violates the Applicant's property rights under Article 35 of the Turkish Constitution. Article 35 states that property rights can only be limited for the purposes of public benefit. The court also noted last paragraph of Article 46, which specifically states that interest must be applied to the unpaid expropriation amounts.
The Constitutional Court held that the expropriation price must reflect the expropriated property's actual value and the ultimate amount must not disregard perceptible changes caused by inflation during the period between calculating the expropriation price and the payment date. Accordingly, the court awarded indemnification corresponding to the expropriated property's value difference.
The full text of the Constitutional Court's reasoned decision was published in Official Gazette number 29546 on 28 November 2015 and can be found at this link (only available in Turkish).
Information first published in the MA | Gazette, a fortnightly legal update newsletter produced by Moroğlu Arseven.
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