Events
An energy transmission line was installed over the real estate owned by the applicants twice, before and after 1983, without expropriation or the establishment of an administrative easement. The applicants filed a compensation lawsuit against the Turkish Electricity Distribution Corporation (TEDAŞ) in the civil court for unlawful appropriation.
The court accepted the case based on the expert report, which determined compensation of TL 13,837.33, taking into account the fluctuation margin. TEDAŞ appealed this decision; the regional court of appeals, which reviewed the appeal, overturned the court’s decision. The regional court of appeal ruled that a total of 3,998.03 TL, calculated based on the projection area in the expert report, should be paid to the applicants as compensation, and also ruled that a fixed attorney’s fee of 2,180 TL should be paid to the defendant TEDAŞ. and decided that 1,678.66 TL of the total litigation costs of 2,518.80 TL should be borne by the applicants.
Claims
The applicants claimed that their property rights had been violated due to the insufficient determination of the easement fee for the immovable property over which the power transmission line was passed without expropriation, and the ruling against them for litigation costs and attorney’s fees 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 based its decision, it was found that the report did not explain why the decrease in the value of the immovable property should be determined based on the swing area of the line. The court’s decision also did not clarify this. Conversely, the regional court of appeal’s decision did not provide any justification for basing its decision on the projection area of the line. In this case, it was determined that the courts of first instance failed to establish which method of determining the decrease in value of the immovable property upon the establishment of the administrative easement would be in line with the guarantee of payment of the actual equivalent specified in Article 46 of the Constitution.
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 real equivalent of the loss of value of the immovable property. This is a technical issue that must be resolved by the courts of first instance, with the assistance of expert witnesses if necessary. In the present case, the report prepared by the panel of experts appointed by the court fails to provide information that would enlighten the judicial authorities on this matter. The report states that the swing area of the line should be taken as the basis, without explaining the reasoning. In this case, the courts of first instance have 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 method of calculating the compensation awarded by the regional court of first instance did not establish, with relevant and sufficient reasoning, whether it truly reflected the decrease in value of the immovable property.
The Constitutional Court ruled that the reasons stated above also violated the guarantee of fair compensation for property rights under the first paragraph of Article 46 of the Constitution.
2. Regarding the Award of Adverse Litigation Costs
As explained in the Sadettin Ekiz decision of the Constitutional Court, determining the value of the expropriated immovable property is, in principle, the responsibility of public authorities. Within the framework of this responsibility, it is only possible to impose the costs incurred in the administrative and judicial processes on the property owner if certain justifiable conditions exist. Imposing these costs on the property owner in all cases where the property has been expropriated may impose an excessive burden on the applicant and prevent the expropriation compensation from being paid based on the actual value.
In the present 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 faced with 3,858.66 TL in administrative easement fees awarded against them and 3,998.03 TL in litigation costs and 2,180 TL in attorney’s fees awarded in their favor. (the sum of 1,678.66 TL in litigation costs and 2,180 TL in attorney’s fees) against them. 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 say that the real value of the administrative easement established on the applicants’ immovable property in favor of the public has been paid to the applicants.
On the other hand, Article 29 of the Expropriation Law No. 2942 stipulates that the litigation costs in cases concerning the determination of the expropriation price shall be paid by the administration carrying out the expropriation. This provision was introduced to prevent the expropriation compensation payable to the owner from being reduced by imposing litigation costs against the owner, in line with the guarantee of payment of the actual value under Article 46 of the Constitution.
Since there is no explicit legal provision requiring courts to impose attorney’s fees and litigation costs on the applicant in expropriation cases 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 provided in Article 46 of the Constitution and to determine the scope of Article 29 of Law No. 2942 within this framework. within this framework would be consistent with the principle of the supremacy of the Constitution.
Courts examining compensation cases filed due to expropriation without compensation must evaluate the case taking into account that the administration’s failure to implement the normal expropriation procedure under Law No. 2942 or, consequently, to file a case 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. The administration’s failure to do so constitutes a neglect of a constitutional obligation. Therefore, given that the lawsuit that should normally have been filed by the administration was filed by the owners due to the administration’s attitude that clearly violated the Constitution, care should be taken not to place the administration in a more advantageous position than in the normal expropriation procedure. Furthermore, expropriation without compensation is a practice that clearly violates Article 46 of the Constitution Article 46 of the Constitution, and it should be borne in mind that, in cases where property rights are interfered with in this manner, assessments and interpretations that would grant rights to the applicants based on the unjust acts of public administrations and make these practices more advantageous for the administrations cannot be reconciled with the principle of the rule of law.
In addition, although it was decided in the case in question that attorney’s fees should be paid for the benefit of both parties, it should be noted that the applicants are obliged to pay the attorney’s fees awarded in their favor to their attorney in accordance with Article 164 of the Attorney’s Act No. 1136. Therefore, the attorney’s fees that the applicants are required to pay cannot be considered a direct counterpart to the attorney’s fees paid for their own benefit.
The Constitutional Court ruled that the property rights guaranteed by Article 35 of the Constitution had been violated based on the reasons explained above.
