Turkish Constitutional Court has recently published its decision in which it evaluated the expert report’s positive proof qualification upon the finalization of the court decision. As a result, the court decided that the acceptance of the objection to the expert report in the appeal process breaches the proprietary right of the applicant, since the report was not objected by the parties in the first instance.

In the case at hand,

  • A part of the applicant’s estate, which was classified as land, was seized by the administration without expropriation or without establishing right of easement in 1986 and the energy transmission line was installed to the land of applicant.
  • The applicant filed a partial lawsuit against the administration on 3 August 2012 for confiscation without expropriation and requested the payment of TRY 1, with the right to rectification reserved.
  • In the partial lawsuit, the sales price, which should be taken as a precedent, was determined by the expert report prepared as a result of the discovery made with the experts by the court on 11 December 2012. The expert report stated that the value of the estate decreased by 57.19% due to the easement, but since the value decrease rate could be at most 50% for the estates in “land” classification according to the established case law of the Supreme Court, easement value could be TRY 257,693.
  • The applicant rectified the case value as TRY 220,000 with the petition dated 12 February 2013. The court, by grounding on the judgment of the expert report and adhering to the request, decided that the pecuniary compensation in the amount of TRY 220,000 shall be taken from the administration and paid to the applicant. The decision was appealed by the administration and quashed by the 5th Legal Department of Supreme Court on the grounds that the compensation decided in the justification section was not clearly stated and the counsel’s fee was not ruled as fixed fee. It was also stated that there was no illegality or inaccuracy in the expert report and determination of the easement value. The local court ruled again, abiding by the quash decision. Although the decision was appealed again by the administration, the expert report was not mentioned during the appeal process and the decision became final in this matter.
  • The applicant filed an additional lawsuit for the payment of TRY 37,693 with legal interest on the grounds that TRY 220,000 was ruled by the request and the amount of compensation was calculated as TRY 257,693 in the expert report received during the first trial. The local court decided to accept the case on the basis that this case was a continuation of the first case.
  • Administration appealed the decision. In the petition of appeal, it was claimed that the evaluations made in the expert report were not appropriate and the calculations were erroneous.
  • The court of appeal has concluded that the expert report does not qualify as positive proof according to the characteristics of the concrete case, and that the appeal objections can be evaluated against the expert report, which is a discretionary evidence. As a result of the evaluation, the court of appeal concluded that the expert report received in the first case was erroneous and decided to accept the application and reject the additional case. Upon this decision, the applicant made an individual application to the Constitutional Court.

In its decision, the Constitutional Court emphasized that the defendant administration did not object to the expert report neither in the first case nor in the response petition in the additional case, and that these objections were expressed only in the petition of appeal, and at this point, it has now passed the judicial review and has become binding according to the decision of the Supreme Court General Assembly. It was stated that making the report negotiable with the objections that had not been raised before was not in accordance with the law. In that sense, it was decided that the lawsuit filed by the applicant was rejected without any fault of the applicant and as a result, this caused the administration to benefit from its own fault, accordingly, this practice was incompatible with the principles of legal certainty and predictability, and the right to property guaranteed in article 35 of the Constitution was violated on the grounds that the guarantees foreseen in the judicial procedure were not provided.

You may access to the full text of Constitutional Court’s decision dated 16 October 2020 and numbered 31276 at this link.  (Only available in Turkish)