Decision of the Turkish Constitutional Court Regarding the Violation of Right to Property

Turkish Constitutional Court’s (the “Court”) decision numbered 2016/6292 constitutes a critical precedent with regard to the violation of the right to property.

Background of the Application:

On 22 June 1976, the properties of the applicants’ predecessors were expropriated on public interest grounds. The applicants’ predecessors filed legal actions to request the expropriation price to be increased and the court partially accepted these legal actions and decided that the expropriation price must be higher.

It was stated in the petition dated 1985 written by the attorney of the applicants’ predecessors to the Governorship of Istanbul that the properties were expropriated in 1976 and that the expropriation payment was blocked since then. Given that the legal actions regarding the expropriation price were finalized, they requested the Governorship to make the payment. Governorship’s response was that the expropriation documents of the parcels were not sent to them, and that they can take action only if the deficiencies are corrected. In 2012, the applicants brought the dispute to the court, claiming damages occurred due to de facto expropriation of property. The local court dismissed their claims and Court of Appeal dismissed their appeal.

Ruling by the Court within the Scope of Individual Application:

The Court stated that an intervention to right to property must be based on the law, have the aim of public benefit, and must be done abiding by the principle of proportionality. In order to consider an intervention as proportionate, a fair balance must be struck between the intended public benefit and the rights of the individual. A fair balance can only be achieved by paying the real value of the property to the owner, and the government authority must make sure that the owner does not incur a considerable loss due to inflation between the date on which the price is determined and the payment is effectively made. If that is the case, the price must be adjusted for the sake of compensating that loss.

In cases where the right to property is in question, there must be a sufficient and relevant justification in the decisions of the courts in order to accept that the procedural safeguards are provided in that particular case. The Court decided that, the court decisions are insufficient because they lack any discussions regarding whether the expropriation price was actually paid or not, if it was paid, when, and whether the expropriation price lost its value due to inflation.

Consequently, the Court decided that the right to property, guaranteed by the Constitution, was violated and decided to send the decision to the local court for a retrial on the dispute.

Takeaways and Highlights from the Decision:

In order to consider an expropriation as a proportionate intervention, the government authority must pay the real value of the property to the owner, and must make sure that the owner does not incur a considerable loss due to the inflation which occurred between the date on which the price is determined and the payment is actually made.