Av. Gökçe ATUĞ

Jurisdiction Competent in Non-Expropriatory Legal Confiscation Cases

COMPETENT JUDICIAL AUTHORITY IN CASES OF NON-EXPROPRIATION UNLAWFUL APPROPRIATION

Non-Expropriation Unlawful Appropriation
Non-expropriation unlawful appropriation refers to the situation where an entity authorized to expropriate unlawfully and without legal basis, and without conducting expropriation, permanently takes possession of an immovable property belonging to a private individual.

De Facto Appropriation

De facto appropriation occurs when the public administration, acting in violation of the law, without expropriating through legal means, intentionally or unintentionally, without the consent of the owner, and without paying compensation, constructs buildings or other facilities on a privately owned immovable property or allocates the property for public services, thereby appropriating it de facto.

De Jure Appropriation

De jure appropriation occurs when the public administration includes the immovable property, which originally belongs to a private individual, in an urban planning plan in compliance with the law, designating it for expropriation and public service; however, the administration responsible for implementing the plan either fails to implement it altogether or does not take any action in accordance with the urban planning plan within a reasonable period.

JURISPRUDENCE AND LEGAL DEVELOPMENTS

It was first established by the Court of Cassation’s Grand General Assembly for the Unification of Jurisprudence (Yargıtay İçtihadı Birleştirme Büyük Genel Kurulu) in its decision dated 16.05.1956 and No. 1/6 that in cases of non-expropriation unlawful appropriation, the owner may file a prevention of interference or compensation lawsuit against the administration that unlawfully appropriated the property.

In its decision dated 16.05.1956 and No. 1/7, the Court of Cassation also ruled that the statute of limitations does not apply to such compensation lawsuits.

In its decision dated 15.12.2010, E:2010/5-662, K:2010/651, the Court of Cassation’s General Assembly of Civil Chambers stated:

“Due to the failure to implement the urban planning plan that had been included for many years, the plaintiff administration passively and silently intervened in the immovable property without proceeding with expropriation or exchange. This constitutes an intervention that affects the essence of the right of property and eliminates it, thereby establishing the existence of non-expropriation appropriation. De jure appropriation is also evaluated within the scope of non-expropriation appropriation. No assessment was made regarding jurisdiction, and in practice, it is accepted that the ordinary courts (adli yargı) are competent.”

However, Law No. 6487, published in the Official Gazette dated 11.06.2013 and No. 28674, amended the 6th Transitional Article of the Land Expropriation Law (Law No. 2942). In the 10th Paragraph, 6th Sentence of Article 21, it was stipulated:

“After the completion of administrative applications and procedures provided for in the Urban Planning Law (Law No. 3194) regarding immovable properties restricted in use due to their allocation in urban planning plans for public services or public institutions, lawsuits may be filed with the administrative courts.”

This amendment introduced the principle that compensation lawsuits arising from de jure appropriation (i.e., restrictions on property rights due to urban planning designations) fall under the jurisdiction of the administrative courts.

CONSTITUTIONAL COURT INTERVENTION

A petition to annul certain paragraphs of the amendment was filed with the Constitutional Court (Anayasa Mahkemesi). In its decision dated 25.09.2013, E:2013/93, K:2013/101, the Constitutional Court concluded:

“The restriction on the right of disposal of the plaintiff’s immovable property due to its designation as an ‘absolute protection area’ in urban planning plans constitutes non-expropriation appropriation. The damage caused by this restriction can only be addressed through a full judicial lawsuit filed with the administrative courts.”

Following this decision, the Court of Cassation’s General Assembly of Civil Chambers ruled in its decision dated 30.10.2013, E:2013/603, K:2013/1503 that lawsuits seeking compensation due to de jure appropriation fall under the jurisdiction of the administrative courts.

However, the Constitutional Court’s decision dated 20.12.2018, E:2016/181, K:2018/111 resolved the jurisdictional dispute by concluding that de jure appropriation cases are under the jurisdiction of the ordinary courts (adli yargı), not the administrative courts.

SUBSEQUENT AMENDMENTS AND REVERSALS

Law No. 6745, dated 20.12.2016 and published in the Official Gazette No. 30199, added Supplementary Article 1 to Law No. 2942. The relevant section stated:

“If the specified actions are not taken within this period, the owners of the immovable properties may file a lawsuit with the administrative courts against the administration responsible for expropriation, after completing the reconciliation process under the 6th Transitional Article of this Law and the administrative procedures under Law No. 3194.”

However, this provision was annulled by the Constitutional Court in its decision dated 05.04.2019, published in the Official Gazette, which referenced the 20.12.2018 decision (E:2016/181, K:2018/111).

Article 153 of the Constitution explicitly states:

“Decisions of the Constitutional Court... are binding on the legislative, executive, and judicial organs, administrative authorities, and real and legal persons.”

Thus, Constitutional Court decisions are authoritative and must be complied with by all public institutions and judges.

POST-2018 JURISPRUDENCE

Following the 2018 Constitutional Court ruling, subsequent decisions by the Court of Cassation reverted to the pre-2013 jurisprudence, affirming that de jure appropriation cases fall under the jurisdiction of the ordinary courts.

For example:

• In its decision dated 04.07.2019, E:2018/207, K:2019/13651, the 5th Civil Chamber of the Court of Cassation emphasized that the portion of a previous decision suggesting jurisdiction of the administrative courts had been annulled by the Constitutional Court. It concluded:

  “Therefore, although the immovable property was not de facto appropriated, the fact that it has been allocated for public service for many years and the property right was indefinitely restricted constitutes non-expropriation appropriation. This case regarding the immovable property in question falls under the jurisdiction of the ordinary courts.”

• Similarly, in its decision dated 03.03.2021, E:2020/10454, K:2021/2531, the 5th Civil Chamber ruled:

  “Thus, due to the indefinite restriction of the property right as the immovable property has been allocated for public service for many years, non-expropriation appropriation has occurred. This case regarding the immovable property in question falls under the jurisdiction of the ordinary courts.”

ROLE OF THE CONFLICT OF JURISDICTION COURT

Decisions by the Conflict of Jurisdiction Court (Uyuşmazlık Mahkemesi) regarding de jure appropriation cases after 2018, claiming jurisdiction of the administrative courts, are misleading. These decisions only establish finality for the specific files in question and do not create binding precedents for all public institutions or judges. Furthermore, given that cases filed after the Constitutional Court’s 2018 decision cannot be retroactively affected, even new decisions from the Conflict of Jurisdiction Court may still occasionally reflect the previous stance of administrative court jurisdiction.

CONCLUSION

Following the Constitutional Court’s 2018 decision, the Court of Cassation has consistently ruled that lawsuits arising from non-expropriation unlawful appropriation (both de facto and de jure) fall under the jurisdiction of the ordinary courts (adli yargı). This principle has been reaffirmed in numerous post-2018 rulings, overriding prior conflicting jurisprudence.