The 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 violation.
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 proportionate.
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 records.
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).