Events
Power transmission lines were installed on the applicants’ real estate twice, before and after 1983, without expropriation or the establishment of administrative easement rights. The applicants filed a compensation lawsuit against the Turkish Electricity Distribution Corporation (TEDAŞ) in a civil court due to unlawful seizure.
The court accepted the case based on the expert report and determined compensation of TL 13,837.33, taking into account the fluctuation margin. TEDAŞ appealed this decision; the regional court of appeal, which reviewed the appeal, overturned the court’s decision. The regional court of appeal ruled that the total compensation of 3,998.03 TL, calculated according to the projection area in the expert report, should be paid to the applicants and that a fixed attorney’s fee of 2,180 TL should be paid to the defendant TEDAŞ, and that 1,678.66 TL of the total litigation costs of 2,518.80 TL by the applicants.
Claims
The applicants alleged that their property rights had been violated due to the insufficient determination of the easement fee for the immovable properties through which the energy transmission line passed without expropriation and the subsequent ruling on litigation costs and attorney’s fees against them in the compensation lawsuit filed for this reason.
The Court’s Assessment
1. Regarding the Easement Fee
Upon examination of the expert report on which the court’s decision was based, it was found that the report did not explain why the decrease in the value of the immovable property should be determined according to the line’s swing area. The court’s decision also did not clarify this issue. Conversely, the regional court of appeal’s decision did not provide any justification for basing the decision on the projection area of the line. In this case, it was determined that the courts of first instance failed to determine which method would be consistent with the guarantee of payment of the actual value specified in Article 46 of the Constitution for establishing the easement and determining the decrease in the value of the immovable property.
However, it is not the duty of the Constitutional Court to determine whether the projection area or the swing area of the power line in administrative easements constitutes the true equivalent of the loss in value of the immovable property. This is a technical issue that must be resolved by the courts of first instance, with the assistance of experts where necessary. In the present case, the report prepared by the panel of experts appointed by the court falls short of providing information that would enlighten the judicial authorities on this matter. The report states that the oscillation area of the line should be taken as the basis, without explaining the reasoning. In this case, the courts of first instance failed to fulfill their obligation to clarify the issue affecting the substance of the dispute concerning the applicants’ property rights.
In the specific case, the regional court of first instance failed to provide relevant and sufficient grounds to demonstrate whether the method used to calculate the compensation awarded truly reflected the decrease in the value of the immovable property.
The Constitutional Court ruled that the above reasons also violated the guarantee of fair compensation for property rights set forth in the first paragraph of Article 46 of the Constitution.
2. Awarding Negative Legal Costs
As explained in the Constitutional Court’s Sadettin Ekiz decision, the determination of the price of the expropriated property is essentially the responsibility of the public authorities. Within the scope of this responsibility, the costs incurred in administrative and judicial proceedings may only be borne by the property owner if certain legitimate conditions are met. Imposing these costs on the property owner in every case of expropriation may place an excessive burden on the applicant and prevent the payment of the expropriation price according to its real value.
In the specific case, the applicants, who were forced to file a lawsuit because the administration resorted to actual seizure instead of complying with the legal procedure, were ordered to pay 3,858.66 TL in administrative easement fees against them, 3,998.03 TL in litigation costs in their favor, and 2,180 TL in attorney’s fees (a total of 1,678.66 TL in litigation costs and 2,180 TL in attorney’s fees). Accordingly, the easement fee actually paid to the applicants was reduced by 3,858.66 TL to 139.37 TL.
In this case, it does not appear possible to state that the actual value of the administrative easement established on the applicants’ real estate for public benefit has been paid to the applicants.
On the other hand, Article 29 of the Expropriation Law No. 2942 stipulates that in cases concerning the determination of expropriation compensation, the litigation costs shall be borne by the administrative authority conducting the expropriation. This provision was introduced to prevent the expropriation compensation from being reduced for the owner by imposing litigation costs on the owner, in accordance with the guarantee of payment of the actual value provided for in Article 46 of the Constitution.
Since there is no explicit legal provision in expropriation cases that provides for the imposition of attorney’s fees and litigation costs on the applicant without compensation, it would be consistent with the principle of the supremacy of the Constitution for courts to interpret the matter in light of the special guarantees in Article 46 of the Constitution and to determine the scope of Article 29 of Law No. 2942 within this framework.
Courts examining compensation claims filed due to expropriation without compensation should evaluate the case by taking into account that the administration’s failure to apply the normal expropriation procedure under Law No. 2942 or, consequently, its failure to file a lawsuit for the determination of the expropriation price is not a simple matter of choice. The administration’s application of the procedure envisaged in Law No. 2942 is a constitutional and legal obligation. Failure to do so constitutes a breach of a constitutional obligation.
In this case, it does not appear possible to state that the actual value of the administrative easement established on the applicants’ real estate for public benefit has been paid to the applicants.
On the other hand, Article 29 of the Expropriation Law No. 2942 stipulates that in cases concerning the determination of expropriation compensation, the litigation costs shall be borne by the administrative authority conducting the expropriation. This provision was introduced to prevent the expropriation compensation from being reduced for the owner by imposing litigation costs on the owner, in accordance with the guarantee of payment of the actual value provided for in Article 46 of the Constitution.
Since there is no explicit legal provision in expropriation cases that provides for the imposition of attorney’s fees and litigation costs on the applicant without compensation, it would be consistent with the principle of the supremacy of the Constitution for courts to interpret the matter in light of the special guarantees in Article 46 of the Constitution and to determine the scope of Article 29 of Law No. 2942 within this framework.
Courts examining compensation claims filed due to expropriation without compensation should evaluate the case by taking into account that the administration’s failure to apply the normal expropriation procedure under Law No. 2942 or, consequently, its failure to file a lawsuit for the determination of the expropriation price is not a simple matter of choice. The administration’s application of the procedure envisaged in Law No. 2942 is a constitutional and legal obligation. Failure to do so constitutes a breach of a constitutional obligation.