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Zoning plan-based legal confiscation without expropriation in Turkey in light of ECHR decisions

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  • Coruhlu, Yakup Emre
  • Uzun, Bayram
  • Yildiz, Okan

Abstract

The right to property is a fundamental human right guaranteed by international conventions. In countries like Turkey, where the principles of private ownership apply, this right is guaranteed by laws. The right to property may be restricted by law only in the case of public interest. Nevertheless, the right of ownership of immovable property can be transferred to the public authority only with payment. However, in some cases, a person's immovable property may be de facto converted into a public facility without expropriation. This process is called “confiscation without expropriation”. This concept was introduced into the Turkish Legal System in 1956 by the unauthorized conversion of immovable property for a road. Today, especially in planned areas, a different type of confiscation without expropriation is often seen. Zoning plans are known to be public tools that reorganize properties in public interest. However, the uncertainty in the implementation process of these plans negatively affects the owners of parcels reserved for public use in the zoning plan. This situation is defined in terminology as “legal confiscation without expropriation”. In this study, the subject has been discussed in the light of the European Court of Human Rights (ECHR) decisions and Turkish judicial decisions, and which institutions are responsible for what kind of zoning functions within zoning plans have been investigated. Official (ex officio) applications and voluntary applications have been compared. Conceptual illustrations on the subject have been prepared. According to the results obtained from the study, it has been stated that all public spaces in the zoning plan are not subject to legal confiscation. Due to their location or characteristics, protected areas, unsuitable geological areas and parcels remaining in agricultural areas can be allocated as public spaces in the zoning plan. In such a case, it is not possible to say that there is legal confiscation. In terms of plan classification, there may be legal confiscation in areas if only a 1/1000-scale implementary zoning plan is in practice. As a solution for legal confiscation, land and real estate arrangements should be made ex officio and without delay. In addition to this, alternative models are also needed. Otherwise, public institutions will be subject to severe financial burdens. Some of the proposals include: granting construction right to zone cadastral parcels affecting public facility areas, or granting the right to construct all cadastral parcels in the plan in specified amounts and also developing a zoning right transfer system.

Suggested Citation

  • Coruhlu, Yakup Emre & Uzun, Bayram & Yildiz, Okan, 2020. "Zoning plan-based legal confiscation without expropriation in Turkey in light of ECHR decisions," Land Use Policy, Elsevier, vol. 95(C).
    • Handle: RePEc:eee:lauspo:v:95:y:2020:i:c:s0264837719320678
    DOI: 10.1016/j.landusepol.2020.104598
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    References listed on IDEAS

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    1. Bruce, John W., 1998. "Review Of Tenure Terminology," Tenure Briefs 12814, University of Wisconsin-Madison, Land Tenure Center.
    2. Jack Carr & Lawrence B. Smith, 1975. "Public Land Banking and the Price of Land," Land Economics, University of Wisconsin Press, vol. 51(4), pages 316-330.
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    Cited by:

    1. Uzun, Bayram & Atasoy, Bura Adem & Celik Simsek, Nida, 2022. "Unmanned Aerial Vehicle (UAV) support for subdivision phase of land readjustment: A case study from Turkey," Land Use Policy, Elsevier, vol. 120(C).
    2. Anita Kwartnik-Pruc & Grzegorz Ginda & Anna Trembecka, 2022. "Using the DEMATEL Method to Identify Impediments to the Process of Determining Compensation for Expropriated Properties," Land, MDPI, vol. 11(5), pages 1-21, May.
    3. Xuejiao Fan & Bin Quan & Zhiwei Deng & Jianxiong Liu, 2022. "Study on Land Use Changes in Changsha–Zhuzhou–Xiangtan under the Background of Cultivated Land Protection Policy," Sustainability, MDPI, vol. 14(22), pages 1-17, November.
    4. Yakup Emre Coruhlu & Bayram Uzun & Okan Yildiz, 2020. "Conflict over the Use of Hagia Sophia: The Legal Case," Land, MDPI, vol. 9(10), pages 1-18, September.
    5. Coruhlu, Yakup Emre & Solgun, Necmettin & Baser, Volkan & Terzi, Fatih, 2022. "Revealing the solar energy potential by integration of GIS and AHP in order to compare decisions of the land use on the environmental plans," Land Use Policy, Elsevier, vol. 113(C).

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