Kamulaştırmasız El konulan Taşınmazın İdarenin Mülkiyetine Geçmesinden Sonra Eski Mal Sahibinin Taşınmazına Tekrar KavuşmasıAtila Erkal
Mülkiyet hakkına müdahale kanunun öngördüğü şekillerde kamu yararı amacıyla gerçekleşebilir. Bu amaçla kanunda farklı imkânlar öngörülmüşse de özel mülkiyete tabi taşınmazlar kamulaştırma yoluyla elde edilmektedir. Kamulaştırma Kanunu (KK) eski taşınmaz sahiplerine, taşınmaza ihtiyaç kalmaması durumunda belli şartlar altında iade imkânı ve geri alma hakkı tanımaktadır. İdare özel mülkiyete tabi taşınmazlara, kamulaştırma yapmadan da hukuka aykırı bir şekilde fiili olarak el atabilmektedir. Bunun yanında hukuki olarak el attığı taşınmazları uzun süre mülkiyetine geçirmeden kişilerin mülkiyet hakkını ihlal edebilmektedir. Kamulaştırmasız el atıldıktan sonra açılan dava neticesinde mahkemece idare adına tesciline karar verilen taşınmazlara ihtiyaç kalmaması, kamu yararı ya da başka bir kamu hizmetine tahsis edilmemesi durumunda, eski maliklerin taşınmazına tekrar kavuşmasını sağlayan, idare tarafından iade ya da malikin geri alma hakkını düzenleyen bir hüküm bulunmamaktadır. Bu konuda bir hukuk boşluğu mevcuttur. Bu hukuk boşluğu KK’daki hükümlerin kıyas yoluyla uygulanmasıyla giderilebilecektir. Bir kanun hükmünün kıyasen uygulanması için, uygulanacak olaya ilişkin kanun hükmünün olmaması, olayın benzerlik taşıması ve sonucun aynı olması gerekmektedir. Özel hukukta kural olarak kıyas yoluyla akıl yürütme önünde bir engel bulunmamaktadır. Kamu hukukunun özelliği sebebiyle kıyas belli şartlar altında uygulanabilmektedir. İdare Hukuku’nda ağırlıklı olarak hak yaratıcı bazı durumlarda kıyas yapılabilmektedir. KK’nun kamulaştırılan taşınmazın eski malikine iadesine ve malikin geri alma hakkına ilişkin hükümleri, uyuşmazlıkta adli yargı öngörüldüğünden özel hukuk bağlamında kıyasen kamulaştırmasız el atmalar bakımından da uygulanabilir niteliktedir.
Re-acquisition of the Land by Former Owner After Administrative Authority confiscated the land without expropriatingAtila Erkal
Interferences with property rights can only be carried out in the public interest in a manner prescribed by law. Although the law provides different options for this purpose, land that is subject to private property is acquired through expropriation. The Expropriation Act grants former owners the right to return the property under certain conditions and to take it back if the property is not needed. The administration can de facto take possession of privately owned land illegally without expropriation. In addition, it can violate the property rights of individuals without legally taking over the property that it has long confiscated. As a result of the lawsuit that was filed after the confiscation without expropriation and the court has made a decision to register the property on behalf of the administration and accordingly the administration does not need the property after a while or not for the public benefit or another public service is not regulated by law that the former owner can take back the property from the administration or the right of return of the property. There is a legal loophole in this regard. This legal loophole can be closed by analogy with the provisions of the Expropriation Act. In order for a legal provision to be applied by analogy, there should be no legal provision regarding the event to be applied, the event should be similar and the result should be the same. As a rule, there is no obstacle to analogous application in private law. Due to the nature of public law, an analogy can be made under certain conditions. There are different views in the areas of constitutional, criminal, tax and administrative law under public law. In administrative law, analogy is mainly carried out in some favorable cases. The provisions of the Expropriation Act on the return of the expropriated property to the previous owner and the owner’s right of repossession apply comparatively to hand assignments without expropriation.
The administration needs immovables belonging to private persons in order to perform public services. The right to property is among the rights and duties of the person in article 35 of the Constitution. Expropriation is among the social and economic rights and duties in Article 46 of the Constitution. Since the confiscation of the immovables belonging to private persons by the administration brings a limitation to the property right, it is obligatory to comply with the basic principles of regulation and restriction. The Expropriation Law stipulates the expropriation of privately owned real estates for public benefit and regulates the procedure of legal intervention in detail. In addition, the 18th article of the Zoning Law gives the authority to confiscate up to 45% of the immovable property free of charge in cases listed in the article.
It is against the law for the administration to take possession of an immovable property without expropriation. In the actual confiscation, it causes an arbitrary behavior without relying on any decision of the administration and without paying the price of the immovable, causing a violation of the property right. In case of actual confiscation, the owner of the immovable property has the right to open lawsuits such as prevention of confiscation, demanding the value of the property, compensation or compensation in return for occupation. However, by making temporary arrangements, the legislator has made legal regulations stating that the ownership of the immovables that are actually confiscated without expropriation will be transferred to the administration and the cost will be paid to the owner of the immovable. These regulations are in the nature of an amnesty against the unlawful act of the administration. In addition to this, as in the zoning plans of a real property, if it does not expropriate or carry out other applications within a period of 5 years, legal confiscation without expropriation is in question. In legal seizure, it is illegal because the administration did not make a zoning program to implement the zoning plans within 5 years, did not take a decision to transfer the property to the administration or expropriated.
The Expropriation Law allows the former owner to regain his property under certain conditions. According to Article 22 of the Law, if there is no need to allocate the property for the purpose of expropriation or a need for public benefit after the expropriation is finalized, the situation is announced to the former owner in accordance with the provisions of the Notification Law, and to pay the expropriation value of him or his inheritors within three months, together with the legal interest that will accrue from the day they receive the expropriation value. provided that he can take back the immovable. Article 23 of the Law regulates the former owner ‘s right to take back the immovable. Accordingly, within five years from the date of the expropriation value, the expropriation authority does not carry out any operation or installation suitable for the purpose of expropriation and transfer, or if the immovable property is left as it is, by not allocating it to a need for public benefit, the owner or the heirs shall be legally charged with the expropriation fee from the day they receive the expropriation fee. He can take back the real estate by paying it together with the interest. The former owner must request from the administration to return the immovable to him within one year from the date of his right to take back.
As a result of a legal expropriation, the possibility of the former owner to regain his / her immovable property is foreseen by law, but there is no regulation for the immovables that have been illegally seized, especially after the court has made a registration decision on behalf of the administration. For this reason, there is a legal loophole. This gap can be eliminated by applying the provisions regarding the return of the immovable property to the former owner or the right to take it back in the Expropriation Law by analogy.
While the comparison is free as a rule in private law, it is a controversial issue in public law. On the other hand, freedom of comparison is considered predominantly in terms of beneficial transactions in Administrative Law. However, since Article 24 of the Expropriation Law mandates the judicial judiciary for disputes regarding the return of the relocation to the former owner and the right of the owner to take back, it should be compared within the framework of private law. Benchmark is the application of a provision laid down in the law for a specific event to a similar event not regulated by law. In order to be able to apply for a comparison procedure, there must be a provision in the law on the compared subject, this provision must not be exceptional, there is no provision regarding the compared event, and the compared event must have the same quality in terms of reason and purpose. Since these conditions for comparison are also available in terms of immovables that are actually confiscated without expropriation, there is no obstacle to the application of the aforementioned provisions by comparison. In addition to the Constitution and the ECHR, which protect the property right, it necessitates the strictness in accordance with the principles of justice and equity. As in the case of the administration selling the said immovables to someone else, a situation on the contrary will constitute a violation of both the aforementioned regulations and principles, and will lead to the violation of the personal right and fair balance recognized by the property right. Moreover, the failure to recognize the rights of the former owner in the acquisition of property by arbitrarily and unlawfully violating the property right of the former owner in the immovable property, which was transferred to the ownership as a result of the decision of the administration to comply with the law, is incompatible with the Rule of Law.