The Constitutional Court ruled that the expropriation carried out in favor of a private legal entity based on a protocol concluded between TOKİ and a private legal entity violated the right to property assured under Article 35 of the Constitution, as the transaction lacks the element of public interest.
The individual application, which is the subject of the decision of the Constitutional Court published in the Official Gazette dated 14 December 2023 and numbered 32399, is related to the claim that the expropriation decision of the Toplu Konut İdaresi Başkanlığı (“TOKİ“), which included the applicant’s immovable property, violated the right to property on the grounds that the purpose of expropriation was not concretized and the transaction was carried out under the control and in favor of the private legal entity S.S. Anadolu Sanayicileri Toplu İşyeri Yapı Kooperatifi (“ASKOOP“).
A protocol was concluded between TOKİ and ASKOOP for the expropriation of immovable properties in accordance with the request made to TOKİ by ASKOOP claiming that the members of the cooperative are scattered throughout the province and that there is a need for an area suitable for industrial and logistics use. According to this protocol, although the expropriation process was to be carried out by TOKİ, it has been agreed that the expenditures, expropriation fee, all kinds of taxes and fees required during the process will be covered by ASKOOP and even the lawsuits against the expropriation process will be carried out by the lawyers of ASKOOP. Upon completion of the expropriation process, in accordance with the protocol between TOKİ and ASKOOP, the immovable property was transferred to and registered on behalf of ASKOOP. Thereupon, the applicant filed a lawsuit for the annulment of the expropriation and the decision to dismiss the lawsuit was upheld by the 6th Chamber of the Council of State.
The Constitutional Court determined the existence of an interference with the applicant’s right to property and examined this interference within the scope of the principle of legality pursuant to Article 13 of the Constitution, which states that rights and freedoms can only be restricted by the law.
Accordingly, the Constitutional Court decided that the intervention against the applicant’s immovable property violated the right to property guaranteed under Article 35 of the Constitution, as it was contrary to the principle of legality by addressing the evaluations and rulings:
- The public interest stands for the main element in expropriation,
- The immovable property stated to be an industrial area in the zoning plan does not have the characteristic of public service area,
- There is no obligation to expropriate areas that do not qualify as public service areas, in fact, at this point, ASKOOP could purchase the immovable in question without an expropriation request,
- Considering the principles of the protocol between TOKİ and ASKOOP, it is obvious that the immovables to be expropriated will be transferred to ASKOOP before the expropriation process starts and that the expropriation process is carried out for ASKOOP by making TOKİ an intermediary,
- Accordingly, the public interest element of the expropriation process, which is understood to have been carried out upon the request of a private legal entity and entirely on behalf of this private legal entity, has become controversial,
- This situation has led to the loss of the ability of individuals to dispose of their own immovable property as they wish -including not transferring it- in a free market environment within the framework of zoning rules,
The full text of the Constitutional Court’s decision with application number 2019/19597 published in the Official Gazette dated 14 December 2023 and numbered 32399 can be accessed via this link. (Only available in Turkish).
