Press Release No: Individual Application 3/19
18.01.2019

PRESS RELEASE CONCERNING THE JUDGMENT FINDING NO VIOLATION OF THE RIGHT TO PROPERTY DUE TO THE MEASURE OF SEIZURE IMPOSED DURING THE CRIMINAL INVESTIGATION AGAINST A BANK MANAGER ON HIS SPOUSE’S ASSETS

On 25 December 2018, the First 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 Semra Başaran (no. 2015/3309).

The Facts

The private bank, where the applicant’s husband (H.B.) served as a member of the board of directors and directory general, was transferred to the Savings Deposit Insurance Fund (Fund) which requested a measure of seizure to be imposed on the assets of the persons taking office in the bank management as well as their spouses and children. Accepting the Fund’s request, the magistrate’s court ordered an interim measure on the assets of these persons including the applicant. Within the scope of the criminal investigation, the applicant’s husband H.B. was ordered to pay a judicial fine and sentenced to imprisonment. The conviction decision was upheld by the Court of Cassation. 

By the resolution taken by the Board of Fund on 24 December 2003, the Fund sent a payment order to the applicant on 27 January 2004. She then filed an action before the administrative court, on 27 September 2007, against the Fund for the annulment of these acts. The court dismissed the applicant’s action.

The administrative court’s decision, which was appealed by the applicant, was upheld insofar as it concerned the resolution of the Fund but quashed insofar as it concerned the payment order. Accordingly, the administrative court annulled the impugned act concerning the payment order. The decision appealed by the Fund was upheld by the Council of State, and the Fund’s request for rectification of the judgment was also dismissed.

By its letter of 11 October 2013, the Fund decided that the Board would discontinue the execution proceedings initiated against the applicant, by virtue of the Law on Collection Procedure of Public Receivables, as of 3 October 2013 and release the attachments levied within the scope of these execution proceedings.

During the proceedings pending before the assize court, the applicant also requested the court to lift the interim measure on 12 September 2014. Considering that the conviction decision rendered in respect of her husband became final and that the damage was not covered, the assize court dismissed the applicant’s request on 12 November 2014. Upon the rejection of her challenge against the assize court’s decision, the applicant lodged an individual application with the Court.

The Applicant’s Allegations

The applicant maintained that her right to property had been violated due to imposition of seizure measure imposed on her assets during the criminal investigation conducted against her husband, who was the manager of a bank banned from operating.

The Constitutional Court’s Assessment

The applicant’s deprivation of her property, even temporarily, by means of de facto seizure undoubtedly constitutes a breach of her right to property. 

The seizure measure imposed in the impugned incident is explicitly convenient for achieving the aim of ensuring probable confiscation of incomes and assets obtained through offences committed via banking system.

Regard being had to the fact that in the present case, the applicant’s immovables were not seized de factobut merely an annotation was affixed on title deeds, which is the most appropriate means, the interference cannot be said to be unnecessary. Therefore, the inferior courts’ decisions concerning the seizure measure were neither arbitrary nor unpredictable.

Besides, it must be emphasized that public authorities have a discretionary power in implementation of such measures, with a view to preventing and reducing corruptions through banking system which has a significant role in the maintenance of economic life.

The applicant did not raise a complaint that she had not been provided with the opportunity to effectively present her claims and defence submissions against the imposed measure. Nor did she complain that the impugned measure exceeded a reasonable period or was in force for a long period of time that would cause damage beyond the unavoidable level. Besides, as the impugned measure of seizure was applied, by the inferior courts, being limited to the financial interest involved in the case, there is no explicit disproportionality in the present case.  

Finally, it must also be borne in mind that Article 141 of the Code of Criminal Procedure provides the applicant with the opportunity to obtain compensation. It has been therefore concluded that as the safeguards inherent in the right to property had been afforded to the applicant, the interference did not place an excessive and extraordinary burden on her.

Accordingly, it has been concluded that the impugned interference did not impair the balance to be struck between the public interest and the applicant’s right to property and that it was proportionate.

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 © 2015
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