Press Release No: Individual Application 19/18
22.06.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING NO VIOLATION OF THE RIGHT TO PROPERTY FOR APPOINTING AN ADMINISTRATOR TO THE COMPANY

On 24 May 2018, the Second Section of the Constitutional Court found no violation of the right to property safeguarded by Article 35 of the Constitution in the individual application lodged by Hamdi Akın İpek (no. 2015/17763).

The Facts

The applicant is one of the co-founders of Koza İpek Holding A.Ş. (“the Holding”).  

Relying on the reports prepared by the Financial Crimes Investigation Board (“the MASAK”) and the security directorates, the chief public prosecutor’s office initiated a criminal investigation against the applicant and the other directors of the Holding for alleged offences of managing and propagating a terrorist organization, financing terrorism, and embezzlement.

The expert examination of the financial documents seized during the search carried out at the premises of the companies of the Holding revealed certain accounting fraud and irregularities, unrecorded inflows and money laundering. It was also observed that charitable donations and spending of these companies were not in line with the ordinary course of life, commercial practices and procedures.

On the 20th of October 2015, the chief public prosecutor’s office requested the magistrate judge’s office to appoint an administrator to the companies of which the applicant was a co-founder and director. In its motion, the chief public prosecutor stated that the benevolence money collected by the Fetullahist Terrorist Organization (“the FETO”) and/or the Parallel State Structure (“the PDY”) were shown as amounts gained through legitimate business activities operated by these companies and were thereby laundered. It was further indicated that the FETO was funded by the incomes of these companies and that the companies recruited new members for the FETO/PDY by providing donations, scholarship or training to certain persons or institutions. Consequently, the chief public prosecutor noted that if administrations of the companies were maintained as they stand, there existed strong suspicion that the offences of laundering illegal assets and managing an armed organization would continue to be committed through the activities of the companies.

Having assessed the request of the chief public prosecutor’s office, the magistrate judge’s office ordered appointment of an administrator to the companies of which the applicant was a director and co-founder. The objection raised by the applicant against this order was dismissed. 

After this individual application had been lodged, a criminal case was filed against the applicant for allegedly managing a terrorist organization. Besides, in the indictment issued by the chief public prosecutor’s office, he was also charged with financing terrorism, abuse of confidence, contravening the Tax Procedural Law and the Capital Market Law. 

The Applicant’s Allegations

The applicant alleged that he was deprived from managing of all his assets because an administrator was appointed to his companies without the conditions required by the law; and that his right to property was therefore breached.

The Constitutional Court’s Assessment

As required by Articles 35 and 13 of the Constitution, an interference with the right to property may be constitutional only if it is prescribed by law, pursues public interest and is in compliance with the principle of proportionality.

There is no ambiguity as to the point that the interference with the applicant’s right to property is prescribed by law.

The judicial authorities state that the main reason for handing over the applicant’s group of companies to an administrator is the existence of strong suspicion that assets acquired through criminal activities have been laundered and terror organization-related crimes have been committed through these companies. It appears that the judicial authorities have reached these conclusions on the basis of certain concrete facts in line with expert and MASAK reports.

It was deemed necessary to assign administrators to this group of companies in order to prevent financing of terrorism and use of incomes obtained through criminal activities. Accordingly, application of this measure pursues a legitimate aim in the public interest.

It is primarily within the competent public authorities’ power to assess which measures are necessary when combating organized crimes. Therefore, administrative bodies have discretion, to a certain extent, in determining measures to be applied.

The applicant maintained that the aim pursed could also be realized by appointing a monitoring administrator. However, the magistrate judge’s office considered insufficient the appointment of an administrator for monitoring the decisions of the company management, given the size of the companies in question as well as the scope, gravity and seriousness of the offences alleged to be committed through the companies.

Regard being had to the above-mentioned grounds and discretionary power of the public authorities in this realm, the Constitutional Court found no reason to depart from the assessment made, under the particular circumstances of the present case, as to the appropriateness and necessity of the said interference.  

Moreover, regard being had to the amount stated in the indictment to be obtained through criminal activities and to the fact that the inquiry for determining such income would require a certain period of time, it has been decided that the order of the magistrate judge’s office to appoint an administrator entails no explicit disproportionality. 

Lastly, legal remedies against the complained measures and legal action for damages against the State due to administrators’ acts and actions in their official capacity are available to the applicant. Accordingly, given the nature of the complained measure and the safeguards afforded to the applicant against this measure, it has been concluded that the interference in the present case does not impose an excessive and extraordinary personal burden on the applicant.

For the reasons explained above, the Court found no violation of the right to property safeguarded by Article 35 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2019