Türk-Alman Üniversitesi Hukuk Fakültesi Dergisi
Yazarlar: Didem BİRBİR EFENDİOĞLU
Konular:Hukuk
Anahtar Kelimeler:Property Right,Expropriation,Confiscating without Expropriation,Constitution of the Republic of Turkey,European Convention on Human Rights
Özet: This article discusses the concept of expropriation, which is articulated in Article 1 of the Protocol No 1 of the European Convention on Human Rights (the “ECHR”) and Articles 35 and 46 of the Constitution of the Republic of Turkey (“Constitution”), from the aspect of the compensation amount. Article 46 of the Constitution explicitly determines the extent of expropriation concept, which is directly related to property rights. However, no explicit definition regarding the extent or the content of expropriation can be found in Article 1 of the Protocol No 1 of the ECHR. Nevertheless, the European Court of Human Rights (the “ECtHR”) has reviewed the individual applications regarding alleged violations arising out of expropriation actions within the context of Article 1 of the Protocol No 1 of the ECHR. Moreover, the ECtHR with its case law, has included such alleged violations regarding expropriation actions within the scope of protection of property rights. Since expropriation possibly limits and/or abolishes property rights, the determination of the expropriation compensation in a just way to avoid violations of property rights has a critical importance. It is seen that there are many individual applications before the ECtHR alleging violations of property rights against Turkey by individuals, who have been a party to expropriation actions, brought before the ECtHR after exhaustion of local remedies. Due to the high number of such individual applications, the Turkish legislator had reached the conclusion that the Expropriation Law numbered 2942 must be amended. With “The law regarding the amendment of the Expropriation Law” dated 24.04.2001 and numbered 4650, a great number of changes have been made to the existing Expropriation Law. Even though these amendments were highly sweeping and have made solid changes to the implementation, the violation of the property rights through expropriation actions are not completely prevented. This article, by analyzing certain decisions of the ECtHR and the Constitutional Court of Turkey (“CC”), presents the criteria for the just determination of the expropriation compensation, which is of utmost importance to prevent violations of property rights through expropriation actions.