Important Annulment Decision Of The Constitutional Court Regarding De Facto Expropriation Cases

1. INTRODUCTION

The Constitutional Court (“CC”), following an application for concrete norm review filed by the Bursa 4th Enforcement Court, annulled the rule set forth in the second paragraph of Additional Article 4 of the Expropriation Law No. 2942, as added by Law No. 7421, which allows the administration to request a stay of enforcement without providing security in enforcement proceedings concerning compensation awarded for de facto expropriation, on the grounds that it is contrary to the Constitution.

The decision, published in the Official Gazette dated 7 August 2026, is of particular significance for dispute resolution and enforcement practice, as it concerns the balance between the public interest, individuals’ right to property, and the procedural privileges afforded to public administrations.

2. LEGAL FRAMEWORK: DE FACTO EXPROPRIATION AND STAY OF ENFORCEMENT

• De Facto Expropriation: This refers to the administration’s de facto or de jure seizure of privately owned immovable property without complying with the procedures and principles prescribed under Article 46 of the Constitution and Law No. 2942 (i.e., without obtaining a public interest decision and without paying the compensation in advance and in cash). In response to such seizure, the owner whose right to property has been interfered with may bring an action against the administration seeking payment of compensation on the grounds of de facto expropriation.
• Stay of Enforcement (Article 36 of the Enforcement and Bankruptcy Law): As a general rule under the Code of Civil Procedure, an appeal or cassation against a first-instance court judgment does not stay its enforcement. In order for the debtor to have enforcement proceedings stayed until the conclusion of the appellate review, the debtor is generally required to provide security sufficient to cover the amount awarded in the judgment (such as cash or a bank guarantee letter) with the enforcement file and obtain a decision from the enforcement court.
• Provision Subject to Annulment (Additional Article 4/2 of Law No. 2942): The provision subject to annulment stipulated that public administrations would be exempt from the requirement to provide security when requesting a stay of enforcement under Article 36 of the Enforcement and Bankruptcy Law in the enforcement of judgments arising from de facto expropriation. However, for the reasons explained below, the Constitutional Court ruled to annul this provision.

3. ASSESSMENT OF THE DECISION

The Constitutional Court assessed the provision in question within the scope of Articles 13 (Limitation of Fundamental Rights and Freedoms), 35 (Right to Property), and 46 (Expropriation) of the Constitution.

• Requirement for Full and Prompt Payment of the Value of the Immovable Property: De facto expropriation constitutes an interference with the right to property that is manifestly contrary to the Constitution, as also stated by the Constitutional Court in its Decision dated 13 May 2026, No. E. 2026/24 and K. 2026/106.[1] The Constitutional Court emphasized that a court’s award of compensation alone is not sufficient and that, in order to provide genuine redress for the loss suffered, the awarded amount must be paid to the rights holder without delay.
• Disproportionate Burden and Loss of Value of Money: Granting the administration the privilege of staying enforcement without providing any security suspends the owner’s access to compensation, attorney’s fees, and litigation expenses until the appellate review is concluded. The decision states that delaying the collection of the awarded amount, without providing for compensatory legal mechanisms to prevent the loss of value of money in an inflationary environment, imposes an excessive and disproportionate burden on the rights holder.
• Disruption of the Balance Between the Public Interest and Individual Interests: Although the provision pursues the legitimate aims of protecting public resources and ensuring the restitution of enforcement, it was stated that allowing the enforcement of a claim arising from compensation for the administration’s unlawful seizure to be stayed without security creates a disproportionate situation to the detriment of the individual and upsets the reasonable balance between the public interest and the right to property.

Following these assessments, the Constitutional Court, in its Decision dated 13 May 2026, No. E. 2026/24 and K. 2026/106, ruled that the second paragraph of Additional Article 4 of the Expropriation Law No. 2942 is unconstitutional and annulled it insofar as it applies to compensation actions brought on the grounds of de facto expropriation. It was determined that the provision in question is incompatible with the right to property, the right to an effective legal remedy, and the principle of proportionality, thereby eliminating the administration’s privilege to obtain a stay of enforcement without providing security.

4. CONCLUSION AND IMPACT ON PRACTICE

Following the Constitutional Court’s annulment decision, the period during which administrations could obtain a stay of enforcement without providing security in cases where compensation, litigation expenses, and attorney’s fees are awarded against them as a result of de facto expropriation proceedings has come to an end.

Following the annulment decision, in enforcement proceedings to be carried out;

• If the defendant administrations seek a stay of enforcement upon appealing or filing for cassation against the judgment, they must now, pursuant to the general provisions (Article 36 of the Enforcement and Bankruptcy Law), provide cash or a valid bank guarantee letter in an amount covering the entire debt under the enforcement file.
• In the absence of security, rights holders will be able to request the enforcement of the judgment through compulsory enforcement without waiting for the appellate review to become final.

REFERENCES: Decision of the Constitutional Court dated 13 May 2026, No. E. 2026/24 and K. 2026/106 (Official Gazette dated 7 August 2026, No. 33333)

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