Press Release No: Individual Application 77/18
18.12.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE RIGHT TO PROPERTY DUE TO LENGTHY ENFORCEMENT OF THE PROVISIONAL ATTACHMENT

On 25 October 2018, the Plenary of the Constitutional Court found a violation of the right to property, safeguarded by Article 35 of the Constitution, in the individual application lodged by Hesna Funda Baltalı and Baltalı Gıda Hayvancılık San. ve Tic. Ltd. Şti. (no. 2014/17196).

The Facts

The creditor commenced execution proceedings against the debtors. He then brought an action, against the defendants and the applicants, for annulment of the acts and actions performed on the ground that the debtor failed to pay the bills he had drawn up.   

The case in question concerns the sale of a residence. The plaintiff maintained that after the date when the bill had been drawn, the debtor sold the residence to the applicant Hesna Funda Baltalı’s husband for a price far lower than its real value; and that the residence was then donated by him to Hesna Funda Baltalı, who subsequently sold it to the applicant company Baltalı Gıda Hayvancılık San. ve Tic. Ltd. Şti. where she and her husband were a partner.

The plaintiff requested annulment of these acts as well as sale of the immovable by auction, arguing that its donation and sale had been malicious actions performed in order to preclude him from receiving his receivables. The incumbent court then annulled the acts performed in respect of the impugned immovable and granted the plaintiff authorization to commence compulsory execution proceedings.

Upon the plaintiff’s request for levying a provisional attachment on the immovable, the court issued an order for provisional attachment. The applicants challenged this order and requested that the provisional attachment be lifted against a security. The court rejected this request.

Claiming that they had suffered from lengthy enforcement of the provisional attachment, the applicants once again requested the court to lift the order for provisional attachment. The court acknowledged that the proceedings had lasted for a long time but decided not to lift the order.

The Applicants’ Allegations

The applicants maintained that their right to property was violated due to lengthy enforcement of the order for provisional attachment.

The Constitutional Court’s Assessment

The allegations that the right to property had been breached for lengthy enforcement of the order for provisional attachment were examined in respect of the applicant Baltalı Gıda Hayvancılık San. ve Tic. Ltd. Şti..

In case of a measure constituting an interference with the right to property, the public authorities applying the measure are obliged to act in a speedy and meticulous manner.

In the present case, the applicant was not deprived of its property due to levying of a provisional attachment on the immovable by the court. However, due to this measure, the applicant’s ability to carry out economic and legal acts and actions with respect to its immovable was restricted to a significant extent. It is explicit that this restriction also has an adverse impact on the value of the immovable.  

In the present case, it has been considered that it fell within the discretionary power of the public authorities to levy a provisional attachment to the effect that would restrict the power to perform any acts and actions only in respect of the impugned immovable and with a view to securing the amount receivable. However, it has been observed that the provisional attachment has been in force for over ten years, which is undoubtedly an unreasonable period as a whole.

Although the State has a wide discretionary power, within the framework of its positive obligations, in restricting the performance of legal acts and actions, for a certain period of time, with respect to immovables, imposition of such measures must not place an excessive burden and result in a disproportionate interference.

It has been revealed that the provisional attachment levied on the applicant’s immovable for over ten years caused the applicant, whose right to property had been restricted, to sustain an unreasonable damage.

Besides, there is no legal remedy whereby the damage sustained by the applicant due to the prolongation of the measure as a result of the public authorities’ fault could be redressed. It has been therefore assessed that the measure placed an excessive and extraordinary burden on the applicant.

It has been accordingly concluded that the positive obligations incumbent on the State with respect to the protection of the applicant’s right to property were not fulfilled in a comprehensive and effective manner.

For the reasons explained above, the Court found a 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