The Constitutional Court Decision Regarding the Effect of the Expert Report in the Partial Claim, on the Additional Claim
Introduction
The Constitutional Court, in its decision dated 08.09.2020 and numbered 2017/15460 (“Decision”), examined an individual application on the grounds that the facts which became conclusive evidence in the partial claim, filed due to confiscation without expropriation, were not taken into account in the additional claim, and decided by majority vote that the property right was violated. The Decision was published in the Official Gazette dated 16.10.2020 and numbered 31276.
Individual Application to the Constitutional Court
Individual application, in other words, constitutional complaint, is a remedy that can be applied by every individual who claims that a fundamental right or freedom is violated, which is regulated in the Constitution, and also included in the European Convention on Human Rights ("ECHR") and its additional protocols. Ordinary legal remedies in domestic law must be exhausted in order to make an individual application. Necessity of this requirement indicates that the individual application remedy is an extraordinary legal remedy[1].
Concrete Case Subject to Individual Application
In the present case, the energy transmission line was installed over the Applicant's immovable property without expropriation or establishing an administrative easement. The Applicant filed a lawsuit for compensation for confiscation without expropriation. In the expert report prepared before the court of first instance, the amount of compensation to be paid was determined as TRY 257,693 and, upon the request of the Applicant, the first instance court ruled that the pecuniary compensation in the amount of TRY 220,000 be paid to the Applicant. The decision became final by legal remedy investigation without any change in terms of the additional compensation awarded.
Later, the Applicant filed an additional claim for the remaining part of the TRY 257,693 determined by the expert, which is TRY 37,693. The court of first instance which examined the file, decided to admit the case; whereas the Regional Court of Appeal, which investigated the case upon the application made by the defendant administration, decided to accept the appeal and to dismiss the case as a final decision. Following this decision of the Regional Court of Appeal, the Applicant applied to the Constitutional Court through individual application.
The dispute is gathered at the point of whether the amount indicated in the expert report acquired in the partial claim (and constituting the basis of the finalized judgment) that exceeds the claim in the partial claim shall be conclusive evidence, which shall bind the court in the additional claim.
Partial Claim and Evidence in Turkish Law
Article 109 of Code of Civil Procedure ("CCP") numbered 6100 regulates partial claims. In this context, in cases where the subject of the claim is divisible due to its nature, it is possible to request only a part of it through a lawsuit. It is not necessary for the plaintiff to explicitly qualify his/her case as a partial claim, understanding that only a part of the receivable has been claimed is sufficient. The remainder of a partially litigated receivable may be filed separately.
In Turkish law, evidence is divided into two categories, those being conclusive and discretionary evidence. While conclusive evidence binds the judge, and the judge has no discretion over this evidence, discretionary evidence does not bind the judge, and can be freely taken into consideration. Deed, oath and final judgement are examples of conclusive evidence; whereas, witness, expert, and site visit could be given as examples of discretionary evidence[2].
Evaluation Made by Regional Court of Appeal in the Additional Claim
Subsequent to the evaluation made in the additional claim, the Regional Court of Appeal decided that the declaratory portion of the partial claim constituted a final judgment in terms of the additional claim; whereas the expert report received in the partial claim is not conclusive evidence. Accordingly, the expert report constitutes an acquired right for the amount ruled in the first case, and the expert report received in the partial claim does not bind the judge in the additional claim that was filed later. However, in the Regional Court of Appeal decision, it is also stated that although the rule is that expert reports are discretionary evidence, they could also be considered as conclusive evidence according to the characteristics of the concrete case[3].
That being the case, in terms of the concrete case, it is stated that the expert report does not qualify as conclusive evidence since it was not completely examined and objected in the partial claim. Moreover, it was concluded that there has been an error of calculation and evaluation in the expert report constituting the basis of the finalized judgment in the partial claim.
Assessment as to Unconstitutionality
The Constitutional Court stated that the essence of the Applicant's complaint is related to the amount of the expropriation price, and that all of the complaints should be examined within the scope of the property right.
Article 35 of the Constitution regarding the right to property includes the provision that "[e]veryone has the right to own and inherit property. These rights can only be limited by law in view of the public interest. The exercise of the right to property shall not contravene the public interest."
In the Decision, it is emphasized that the property right is not unlimited, and this right could be restricted for the purpose of public interest and by law. However, it is stated that in the interventions in the form of deprivation of property right, a fair balance targeted between the public interest and the individual benefit of the owner could only be achieved by paying compensation to the owner.
In the assessment made in terms of the concrete case, it is stated that the Regional Court of Appeal subjected an inspection the report to a re-judicial review. Together with this, it is also emphasized that the defendant administration did not express its objections to the report in the partial claim or even in the petition of reply in the additional claim, but only in the petition of appeal. It was evaluated that this situation made the report arguable with the objections that have not been raised before and, consequently, caused the defendant administration to benefit from its own fault.
The Constitutional Court expressed over all that this situation is incompatible with legal certainty and predictability, and also violates fair balance, because it does not provide the guarantees foreseen in the judicial procedure for the protection of property rights, and by majority vote decided that the property right has been violated.
In addition, the Constitutional Court also evaluated the requests for non-pecuniary compensation and retrial upon the request of the Applicant, decided to send the decision to the Regional Court of Appeal for retrial, and to reject the claim for compensation. At this point, the Constitutional Court considered that the retrial would provide sufficient compensation as the violation stemmed from the court decision, and rejected the claim for compensation. A dissenting opinion was submitted in rebuttal to the majority decision (“Dissenting Opinion”).
Dissenting Opinion
In the Dissenting Opinion, it is stated that the majority decision found that there was a violation only because the determination made by the previous expert report was not accepted fully, and that there has been no evaluation as to whether the amount determined by the Regional Court of Appeal in the additional claim reflects the real value of the real estate or not.
Moreover, it also stated that the approach of the majority decision extends the principle of binding conclusive evidence (the scope and limits of which is controversial even in judicial decisions and in doctrine, and which is a law-level protection) even beyond the principle of immunity of final judgement (which is no doubt a constitutional guarantee).
Moreover, it is stated in the Dissenting Opinion that accepting that the expert report, which is clearly based on an erroneous calculation, and which would lead to the applicant's unjust enrichment, is binding in other trials (citing the principle procedural law in the form of the binding of conclusive evidence) is incorrect.
Conclusion
The Constitutional Court, in the examination made upon the application due to the facts that became conclusive evidence in the partial claim were not taken into account in the additional action and evaluated the issue within the scope of property right, it concluded by majority that the property right was violated. Although a dissenting vote was written, the Constitutional Court ruled that the right to property was violated, through a majority vote.
With this decision, the Constitutional Court ruled on an important issue, as it was also subject to the decisions of the Assembly of Civil Chambers of the Court of Cassation, and concluded that the property right, one of the most important guarantees of the constitution regarding economic rights was violated.
[1] Tanör / Yüzbaşıoğlu: 1982 Anayasasına Göre Türk Anayasa Hukuku, İstanbul, 2015, p. 528.
[2] Pekcanıtez / Atalay / Özekes: Medeni Usul Hukuku Temel Bilgiler, İstanbul, 2018, p. 254.
[3] Decision of Assembly of Civil Chambers of the Court of Cassation No. 2013/1728 E. and 2015/1036 K., 13.03.2015.
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