a critical evaluation on the concept of justice in planning process

4.3.1. Actions about Expropriation
According to the Constitution of Turkish Republic/Article No.46, expropriation
is the confiscation of State and public corporations by force partially or totally on
properties under private ownership, in situation that public interest necessitate and in
terms of payment in advance, according to the principles and procedures stated in the
law (Günday, 1997, 185). State and public corporations, who has the expropriation
authority, confiscate private properties using an authority resulted by public power
(Kalabalık, 2002, 181). In another words, expropriation procedure is the arrangement
intervention of public space with the principle of public interest realized by State and
public corporations as representatives of public power. Expropriation procedure, which
also means the restriction of private ownership rights 69 on urban land with the goal of
public interest, can be discussed as an administrative activity regarding the goal of
balancing the tension between private ownership-individual rights and public
ownership-public rights. Authorities that produce public procedures and decisions in the
name of public and representing public, are the government offices which are declared
as state and public corporations in the Act No.2942.
In the conflict between public interest and private interest, superiority belongs to
public interest. In order to provide a balance in this conflict between public interest and
private interest, the consideration of “Self-sacrifice that property owner has to tolerate
because of public interest, is balanced with condition of paying the value of the property
to property owner” is accepted. (Günday, 1997, 170-171)
Administrative stages of expropriation procedures are: “decision of public
interest” taken by authorized government office, notification and announcement of this
decision. After these stages, expropriation becomes an administrative procedure, actions
of nullity are proceeded for these procedures and actions of objection are proceeded
against the value determined in juridical judgement by Civil Court of First Instance.
Actions proceeded in this litigation process, where Administrative Courts 70 are
69 In the Constitution of Turkish Republic/Article No.35 following statements exist; in Clause No.2,
“ownership rights can be restricted for public interest” and in Clause No.3, “ownership rights can not be
used against public interest”. Although existence of these decisions regarding the balance of publicprivate
interest, there are not any certain sentence about in which conditions public interest and in which
conditions private interest can be considered.
70 Procedure is accepted as an administrative transaction because of confiscation by related government
office by force without property owner’s consent and permit. For a detailed discussion, please see;
Günday, 1997, 170-173.
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