Press Release No: Individual Application 71/18
07.12.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING NO VIOLATION OF THE RIGHT TO PROPERTY DUE TO A SEARCH CARRIED OUT IN THE WORKPLACE

On 15 November 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 Elit Hancı Akaryakıt ve Petrol Ürünleri Gıda İnşaat Sanayi ve Ticaret Ltd. Şti. (no. 2015/20).

The Facts

A criminal investigation was launched by the chief public prosecutor’s office against the suspects running certain petrol stations, on suspicion of smuggling oil within the scope of the activities of a criminal organization.

Hidden fuel tanks were found by the police officers during the searches carried out in a petrol station. It was observed that the national marker level of the samples taken from these tanks was invalid and that the automation in the cash register warning system had been deactivated in order to prevent the illegal fuel mechanism from being revealed.

The applicant company took over the relevant petrol station and started to run it. During the searches and excavations carried out in this petrol station on suspicion of smuggling and selling defective and mixed fuel, pipes belonging to the hidden underground tanks that had previously been subject to a legal action were found, however it was observed that they were inactive and not used. Besides, 1300 litres of diesel oil, the invoice of which could not be submitted, was seized.

The applicant company brought an action for compensation before the assize court, stating that it sustained damage as a result of the searches that had been carried out disproportionately. The court dismissed the case. Upon the applicant’s appeal, the decision was upheld by the Court of Cassation.

In addition, it was stated in the indictment issued by the chief public prosecutor’s office that a criminal organization had been formed for selling mixed and smuggled fuel and that the shares of many companies, including the applicant company, had been transferred to third parties just before or during the dates when the searches and seizures were performed. The proceedings against the suspects are still pending before the criminal court of first instance.

The Applicant’s Allegations

The applicant maintained that the search alleged to have been carried out disproportionately was in breach of its right to property.

The Constitutional Court’s Assessment

In order for an interference with the right to property to be in conformity with the Constitution, it must be prescribed by law, serve the public interest and be proportionate.

In the present case, searches were carried out in accordance with the decisions of the magistrates’ courts based on the provisions of the Code of Criminal Procedure. Therefore, there is no doubt that the interference with the applicant’s right to property was lawful.

The search carried out for the purposes of collecting evidence and preventing crimes within the scope of the criminal investigation conducted against the benefit-oriented criminal organization pursued a legitimate aim based on the public interest.

While the applicant company argued that the same conclusion could have been reached by detector scanning instead of excavation during the search, it could not submit any concrete information or document supporting its claim. The public authorities enjoying a wide margin of appreciation in the fight against crime considered that the search was necessary. The applicant failed to prove to the contrary thereof.

In the present case, as a certain amount of fuel the invoice of which could not be submitted was found in the station where hidden fuel tanks had been found previously, excavations works were needed in order to determine whether there were other hidden tanks and whether the illegal fuel tanks that had been found previously were still active.

Although it was claimed that the alleged search had not been carried out proportionately, it was inevitable that the mentioned search, which had undoubtedly been appropriate and necessary, led to a loss of commercial earning and the inferior courts stressed that the relevant criminal evidence could be revealed only by excavation.

The applicant failed to explain what kind of improper actions, which resulted in extra damage for them, had been conducted. Nor did it submit any concrete information or document in respect thereof.

It was also stressed by the inferior court that the applicant had an opportunity to bring an action for compensation depending on the outcome of the criminal proceedings.

Therefore, when the interference with the applicant’s right to property was compared with the public interest it served, it was considered that the alleged interference did not impose an excessive and extraordinary burden on the applicant.

Accordingly, it was concluded that the fair balance to be struck between the applicant’s right to property and the public interest had not been impaired and that the alleged interference had been proportionate.

Consequently, the Constitutional Court found no violation of the applicant’s 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