Press Release No: Individual Application 44/16
30.11.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF MELAHAT KARKİN ON THE RIGHT TO FAMILY LIFE

The Constitutional Court held, at its plenary meeting on 13/10/2016, with regard to the individual application lodged by Melahat KARKİN (application no. 2014/17751) that there had been no breach of the right to family life guaranteed in Article 20 of the Constitution.   

The Facts

A lien was established on the immovable propertybelonging to the applicant’s spouse and alleged to have been used by the applicant as a matrimonial house since 2001 in favour of a bank on 25/12/2003. Upon the default in payment, the house was transferred to the bank upon the tender made by the İzmir 13th Enforcement Office on 14/5/2010.

On 20/5/2010, the applicant filed a case for release of the lien by maintaining that the house in question was of the nature of a matrimonial house; that she was residing in the house together with her children; that a lien had been established on the matrimonial house by her husband without her knowledge and consent; that the bank which was liable to act as a prudent merchant had been aware of the fact that the immovable property in question was a matrimonial house, and furthermore, an appraisal report had been drawn up by the bank experts in the course of the establishment of the lien; that Article 194 of the Turkish Civil Code dated 22/11/2001 and no. 4721 attached priority to the protection of family while making a preference between the protection of good faith and the protection of family.  

By the decision of the 13th Chamber of the İzmir Family Court dated 10/11/2010, it was held that the case be accepted and the lien be released. However, this decision was quashed by the judgment of the 2nd Civil Chamber of the Court of Cassation dated 9/7/2013 on the ground that the complainant failed to prove that the defendant bank was ill-intentioned. 

At the end of the proceedings held following the quashing judgment, the case brought by the applicant was dismissed by the court’s decision dated 20/12/2013, which was in line with the quashing judgment. Upon the appellate review, the decision was upheld by the judgment of the 2nd Civil Chamber of the Court of Cassation dated 14/4/2014. The applicant’s request for rectification of the judgment was dismissed by another judgment of the same Chamber dated 8/9/2014.

The Applicant’s Allegations

The applicant stated that the state was liable to make legal arrangements which would protect the family; that it was clearly specified in the Constitution that on the basis of which justifications the immunity of domicile could be restricted and that the immunity of domicile cannot be infringed on the basis of any justification other than the above-mentioned arrangement. She also noted that the laws attached particular importance to and a particular protection was provided for the matrimonial houses; that loss of matrimonial house generally lead to damage suffered by the wives and children; and that there was deficiencies in the protection of women and children in spite of the arrangement included in Article 41 of the Constitution. She maintained that although in the first decision of the inferior court, the bank could not be accepted to act in good faith, a dismissal decision was rendered in its last decision on the ground that there appeared hesitation concerning the applicant’s good faith; and that a restriction had been imposed on the matrimonial house in spite of these findings and the explicit provision of Article 194 § 1 of the Law no. 4721.  The applicant accordingly alleged that there had been a breach of her rights enshrined in Articles 5, 10, 13, 17, 21, 35, 36 and 41 of the Constitution.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this application.

It is primarily under the inferior courts’ power and responsibility to resolve the problems concerning the interpretation of the legislation. The role of the Constitutional Court is restricted with the assessment to be made as to the impacts of the interpretation of these rules on the fundamental rights and freedoms.  Therefore, the Constitutional Court monitored the procedure followed by the inferior courts and especially assessed whether the inferior courts had respected the guarantees enshrined in Articles 20 and 41 of the Constitution while interpreting and implementing the relevant provisions of the legislation.

It has been observed that the judgments rendered by the Court of Cassation specify that in cases where an annotation of matrimonial house is not attached on the title deed registry – as in the present incident -, the provisions included in the Law no. 4721 and pertaining to good faith are taken into consideration in circumstances where the matrimonial house is acquired by the third persons. On the other hand, a new approach has been adopted by the judgment of the General Assembly of Civil Chambers of the Court of Cassation dated 15/4/2015. According to this approach, the spouse who is the owner of the matrimonial house and wishes to perform a deed in respect of the matrimonial house is required to prove that the other spouse have explicit consent for the deed. It has been accordingly observed that in the judgments rendered by the General Assembly of Civil Chambers of the Court of Cassation and the 2nd Civil Chamber of the Court of Cassation following 15/4/201, it has been adopted that the restriction imposed by Article 194 of the Law no. 4721 on the juridical capacity of the spouses is not conditional upon the attachment or non-attachment of an annotation on the matrimonial house and the good faith of the third party who is a party to the relevant deed is of no importance.

Although it has been observed that the judicial practice has changed and a new interpretation has been adopted since the above-mentioned date, the Constitutional Court is not authorized to assess the inferior courts’ appreciation concerning the interpretation of the legislation provisions. Moreover, it has been revealed that in the present incident, the final decision was rendered before the date of 15/4/2015 when the above-mentioned case-law was changed; that the dispute was dealt with and concluded as per the explanations concerning the “good faith” provisions acknowledged by the Court of Cassation along with the legislation provisions concerning the matrimonial house; that the applicant’s husband obtained three loans on various dates for his commercial activity from the same bank by means of establishing lien on the matrimonial house in question; that upon default in payment, the immovable property was sold by way of compulsory enforcement; and that the applicant’s case was dismissed on the ground that the defendant Bank was in good faith in respect of its acquisition pertaining to the lien and the presumption to that effect could not be rebutted. It has been noted that in the proceeding in question, the parties’ right to become a party to the proceedings were respected; that their allegations, defence submissions and evidence were assessed; and that the justifications of the conclusion reached were explained in detail.  

Moreover, given the reasoning of the decisions rendered by the inferior courts, it has been revealed that a balance was struck between the legal interests of the parties, and the judicial authorities explained the justifications of their conclusions in detail; and that any finding which indicates that in their decisions, with respect to the evaluations and elements included therein, the judicial authorities went beyond the limits of their discretionary powers in respect of the right to family life could not be found.

The Constitutional Court has consequently held that there was no breach of the applicant’s right to family life guaranteed in Article 20 of the Constitution.

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

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