11 July 2018 Wednesday

(E.2018/9, K.2018/84, 11 July 2018)

1.Phrase in Article 278 § 3 (1) of the Law

Contested Provision         

The contested provision provides that the properties transferred by the debtor (in return for a payment) to his relatives up to the third degree (including this degree) shall be accepted as donation.

Grounds for the Request for Annulment

It was argued that the regulation restricting the right to property for the purpose of preventing any damage to the creditor did not serve the public interest, that it impaired the essence of the right to property and that it did not comply with the principle of proportionality, which was in breach of the Constitution.

The Court’s Assessment

According to the contested provision, the debtor shall also subsequently be liable for his transactions on his property, which were carried out during the period when his authority to dispose of the property was not restricted in legal terms, and the third party to whom the property was transferred shall be liable to bear the compulsory enforcement procedures. Therefore, the contested provision is in breach of the debtor’s and the third party’s right to property.

The interference with the right to property must not only pursue a legitimate aim, but it must also be proportionate and not impose an excessive and disproportionate burden on the owner of the property.

The contested provision, which provides that the properties transferred by the debtor (in return for a payment) to his relatives up to the third degree (including this degree) shall definitely be accepted as donation, does not provide the parties with the opportunity to submit their claims and defence regarding these issues, as well as to submit evidence, information and documents to prove thereof. In this sense, the regulation that disturbs, to the detriment of the property owner, the reasonable balance to be struck between the interference with the right to property and the aim sought to be achieved by the interference cannot be regarded as proportionate.

The contested provision leads to the restriction of the right to property and the right to legal remedies disproportionately, by disturbing the balance between public and personal interests.

For the reasons explained above, the phrase “… through ancestry or …” was annulled for being in breach of Articles 13, 35 and 36 of the Constitution, and it was decided that the annulment decision would enter into force nine months after being published in the Official Gazette.

2.Article 278 § 3 (2) of the Law

Contested Provision

The contested provision provides that the contracts where the debtor accepted a price much lower than the value of the property he transferred shall be regarded as donation.

Grounds for the Request for Annulment

It was argued that the contested provision did not serve the public interest, that it impaired the essence of the right to property and that it did not comply with the principle of proportionality, which was in breach of the Constitution.

The Court’s Assessment

The main characteristic of the transactions falling into the scope of the contested provision is that although the property is transferred in return for a payment, the financial interest acquired by the debtor is not equivalent to the advantage afforded to the other party. This provision enables the creditor to prove that in the transaction, the debtor accepted a price much lower than the value of the property he transferred. Therefore, this situation is sufficient to consider the transaction as donation.

It is possible to claim and prove the contrary, as well as it is also possible for the debtor or the third party to whom the property was transferred to prove that the property was transferred at its true or approximately true value, to make claims and defence in this respect and to prevent the cancellation of the transaction by submitting relevant information, documents and evidence. Accordingly, it cannot be said that the contested provision disturbed the fair balance between the public interest and the individual’s rights and freedoms and that it did not comply with the principle of proportionality.

Consequently, the Court concluded that the contested provision was not in breach of the Constitution and therefore dismissed the request for annulment.

  1. 11. Decision Annulling The Provision Stipulating That Individuals Who Do Not Obey The Order On The Execution Of The Interim Injunction Or Act Contrary To The Interim Injunction Shall Be Imposed Disciplinary Imprisonment

(E.2018/1, K.2018/83, 11 July 2018)

Contested Provision

The contested provision provided that the individuals who did not obey the order on the execution of the interim injunction or act contrary to the interim injunction would be imposed disciplinary imprisonment from one month to six months.

Grounds for the Request for Annulment

It was argued that although the trial court was a civil court, the decision rendered within the scope of the contested provision had conclusions falling into the scope of criminal law; that in accordance with the legality of crime, the acts to be punished, the legal elements of the crime and the aggravated circumstances were not specified clearly; and that there was no regulation as regards the course of the proceedings and the legal remedies that can be used after the decision.

The Court’s Assessment

According to the principle of certainty, which is one of the basic elements of the rule of law, legal regulations must be clear, explicit, understandable, applicable and objective in a way that will cause no hesitation or doubt for both individuals and the administration. They must also include protective measures against the arbitrary practices of public authorities.

The principle of legal certainty, which aims to ensure the legal security of individuals, requires that the legal norms be foreseeable, that the individuals have confidence in the State in all their acts and actions and that the State refrain from methods impairing such sense of confidence while making legal regulations.

In terms of its authority to give punishment, the legislator has discretion in determining the acts that constitute offence, the type and gravity of the punishment to be imposed, whether the minimum limit will be set for punishments and the aggravating and extenuating circumstances. Examination to be made as to the appropriateness of the rules laid down by the legislator in this respect falls outside the scope of the constitutionality review.

The contested provision regulated the punishment to be imposed in case of failure to abide by interim injunction that was among the temporary legal protections. In this regard, the acts to be punished and the type, as well as the minimum and maximum limits of the punishment were clearly specified. Therefore, length and type of the punishment to be imposed in case of committal of the acts specified in the law could be foreseen and known. Accordingly, there was no uncertainty as regards the acts to be punished, as well as the type and amount of punishment.

With the interim injunction, it was aimed that the decision to be rendered at the end of the proceedings would always be enforceable, and thereby an effective legal protection would be ensured within the scope of the right to legal remedies. In this regard, imposition of punishment for failure to abide by an interim injunction cannot be regarded as inappropriate and unnecessary.

However, Law no. 6100 contains no explicit provision on the trial procedures and principles concerning the disciplinary imprisonment to be imposed as a result of failure to abide by the interim injunction, as well as on the legal remedies to be used against the disciplinary imprisonment.

It has been understood; that there are various case-law concerning the legal remedy to be used against the disciplinary imprisonment imposed due to failure to abide by the interim injunction; that decisions can be appealed, or challenged in accordance with Law no. 6100 or the Code of Criminal Procedure no. 5271; and that there is no stable and assuring practice indicating the legal remedy to be used against the disciplinary imprisonment.

In this scope, the contested provision is neither precise nor foreseeable in terms of the trial procedures and principles concerning the disciplinary imprisonment to be imposed as a result of failure to abide by the interim injunction, as well as the legal remedies to be used.

Although the disciplinary imprisonment does not have the characteristics of prison sentence and falls outside the concept of crime that is the subject matter of the criminal proceedings, there is no doubt that the disciplinary imprisonment, which is regulated by the contested provision, will be given by a court and restrict the individual’s freedom. Given these aspects of the disciplinary imprisonment, the uncertainty as regards the trial procedures and principles concerning the disciplinary imprisonment to be imposed as a result of failure to abide by the interim injunction, as well as the legal remedies to be used against the interim injunction will damage the individuals’ legal security, as well as their right to legal remedies.

For the reasons explained above, the contested provision was annulled for being in breach of Articles 2 and 36 of the Constitution, and it was decided that the annulment decision would enter into force nine months after being published in the Official Gazette.