The Turkish Constitutional Court recently considered a claim
that the Istanbul Water and Sewerage Administration
("IWSA") violated an applicant's property rights
under Article 35 of the Constitution by confiscating property
without completing expropriation procedures, or paying the
expropriation price. In its decision, the Constitutional Court held
that the applicant's property rights have been violated and the
case should be re-examined to eliminate the consequences of the
In the case at hand, the IWSA held an expropriation decision
regarding the property, issued against a previous owner of the
property. The previous owner had disputed the expropriation
decision and the expropriation price was blocked in the previous
owner's bank account. However, the property was later sold to
the applicants, without any expropriation annotation existing in
the land registry records. The administration later entered an
expropriation annotation on the land registry records, without
notifying the new owners (the applicant) nor paying the
expropriation price to the new owner. Accordingly, the
administration confiscated the applicants' property based on an
expropriation decision made against the previous owner.
The Constitutional Court considered whether:
An intervention to the property rights occurred.
Legitimate grounds exist for an intervention.
The essence of property rights are infringed.
Restriction of the property right is necessary.
The instruments used for the purposes of the restriction are
The Constitutional Court held the applicants' property
rights were violated by the administration confiscating the
property, without completing expropriation processes or paying the
expropriation price. The court ruled in this way, even though an
expropriation annotation had been entered in the land registry
According to court decisions, if an expropriation process has
not been completed, a lawful expropriation does not exist pursuant
to Article 46 of the Constitution. Therefore, IWSA's
confiscation in these circumstances is considered a tortious act
and the applicants retain property rights despite the confiscation.
Lawsuits in these circumstances are not subject to the statute of
limitations which generally requires actions to be initiated within
30 days of the expropriation.
The full text of the Constitutional Court's reasoned
decision (2013/3667, dated 10 June 2015) was published in Official
Gazette number 29479 on 18 September 2015 and can be found at
this link (only available in Turkish).
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