ALP TEKİN OCAK
Eminent domain, previously termed dominium eminens, signifies an acquisition by force. Public authorities may seize private property for public use by reaching a settlement with the owner where possible, and if not then through force in the manner specified by law, to fulfill their legally prescribed duties. This forced acquisition may be for the construction of roads or city parks as well as to meet energy demands, set up irrigation systems, or erect public buildings.
Every single one of the 8 Hydroelectric Power Plant (HEPP) projects in the Melet Basin involved an expedited eminent domain procedure. What, then, is expedited eminent domain?
Expedited eminent domain is a very specific and exceptional method of expropriation regulated in article 27 of the Expropriation Law no. 2942. Though it is the same as eminent domain in principle, it differs in terms of execution.
In the regular procedure, the public entity that wishes to acquire land brings a settlement offer to the private property owner according to a price determined by a valuation commission. If an agreement cannot be reached by way of negotiation, the matter is taken to a civil court. Once the sum appraised following a site survey and independent expert assessment is paid to the owner up front, the immovable asset may be acquired by force. In case of an expedited procedure, however, the acquisition of private property “by force” may take place within a period of 30 days simply by depositing the compensation determined into a bank account opened in the name of the owner in a public bank, without having to give them prior notification.
There is one other exception: While in the regular procedure, within the specified period of receiving the preliminary proceedings report, a citizen against whom a civil case is brought is entitled to file an action for the annulment of the expropriation before an administrative court, this right is denied in the expedited procedure.
For instance, when a private owner is invited to negotiate an offer for the expropriation of their land for an urban park or road, in the case of non-agreement, the public entity in question (possibly a municipality or the Public Roads Administration) is required to file a civil suit for the forcible acquisition of the property. The civil court issues a notice to the private owner sued for expropriation (valuation and registration), informing them that they may file an action for the annulment of the expropriation before an administrative court within 30 days. An action of this kind may be on claims that the said park is not for genuine public benefit, that there are other areas in the city that may meet the need for a park, or that the park does not have to be as expansive. In the case of expropriation for the purpose of road-building, the private owner may challenge the action citing reasons such as the possibility of alternative routes, of putting more arid, rocky terrain to this kind of use rather than their arable land used for organic farming, or simply on procedural grounds such as the fact that the public entity in question “does not have the budget required.” In cases of expedited eminent domain, on the other hand, because of exceptional circumstances deemed urgent by the Cabinet such as war or state of emergency, the public entity can seize people’s homes and lands practically “overnight” whether they are informed of this or not, simply by depositing the compensation determined by a court into the owner’s bank account without prior notification.
A settlement offer is brought to the private owner according to the price determined. If an agreement cannot be reached, the property may be forcibly acquired by paying the owner compensation up front. An action for the annulment of the expropriation may be filed at an administrative court to effect the outcome. It is applied when the public benefit requirement is satisfied.
In addition to meeting the public benefit requirement, it should only be applied in extremely exceptional cases deemed urgent by the Cabinet, such as circumstances of war or state of emergency.
Every single one of the 8 Hydroelectric Power Plant (HEPP) projects in the Melet Basin involved an expedited eminent domain procedure.
The last decade has seen an upsurge unprecedented in the history of the Republic in expedited eminent domain decisions by the Cabinet. As in the cases of dams and hydropower plants, thermal power plants, nuclear power plants, energy transmission lines, certain mine sites, and urban transformation projects – countless examples of which are dotted across the Melet Basin, the Cabinet’s unfettered exercise of this power in its discretion has repeatedly brought the issue into public debate. Citizens have been finding out that their homes and fields have been expropriated overnight on the Official Gazette. The established practice of the Council of State considers the Cabinet’s blanket exercise of this power in all of these contexts unlawful. For instance, the Council of State Board of Administrative Litigation Chambers (DİDDK) based its annulment of an urgent expropriation decision taken with reference to Municipal Law on the following grounds:
“In addition to the absence of a designated and announced renewal site as stipulated in the Law no. 5366 and its Implementing Regulations, the presence of the circumstances required for an urban transformation project under article 73 of the Municipal Law no. 5393 does not qualify as adequate grounds for urgent expropriation, nor have the exceptional circumstances meriting an urgent expropriation procedure as detailed in article 27 of the Expropriation Law no. 2942 and the public benefit arising from the implementation of this method been concretely established in the Cabinet decision subject to this review and the municipal board decision for expropriation based on it”(E. 2015/356, K. 2015/895)
The recent implementation of what should be an extremely exceptional method in many controversial projects including HEPPs etc. as well as in urban transformation contexts in an unlawful manner contrary to established legal precedent constitutes a clear violation of the right to property.