22 November 2018 Thursday
Yıldız Eker [PA] (no. 2015/18872, 22 November 2018)
The applicant was the wife of A.E.E. who died in 2017. In 2009, A.E.E. issued a bond in the value of 200,000 Turkish Liras (TRY), maturity date of which was 2011, in favour of S.M.. In 2013, the creditor S.M. initiated attachment proceedings pertaining to the bills of exchange at the total amount of TRY 277,908.33 against the applicant’s husband. Upon the finalization of the proceedings, the residence owned by the applicant’s husband A.E.E. was attached by the creditor S.M..
The applicant lodged a complaint with the incumbent enforcement court, arguing that the immovable could not be attached for being a residence where she lived together with her husband and children. However, the enforcement court rejected her complaint due to lack of capacity to be a party to the proceedings.
As the creditor S.M. claimed sale of the attached immovable, the enforcement office determined the value of the immovable as TRY 3,500,000 according to the expert examination. At the end of the tender made by auction, it was sold to a third part in return for TRY 1,758,000.
Maintaining that sale of the immovable was unlawful, the applicant requested termination (annulment) of the tender. The enforcement court dismissed the case as there was no irregularity in the tender and imposed, on the applicant, an administrative fine (TRY 175,800) amounting to 10% of the tender price TRY 1,758,000 for being recorded as revenue.
The first instance decision was appealed before the Court of Cassation; however, it was upheld. After the applicant’s request for rectification of the judgment had been dismissed, she lodged an individual application with the Court.
The Applicant’s Allegations
The applicant maintained that the dismissal of her case for termination of the tender as well as her being sentenced to a fine at the rate of 10% of the tender price were in breach of her right to access to court.
The Court’s Assessment
Right to access to court is an element inherent in the right to legal remedies, which is safeguarded by Article 36 of the Constitution. It has been observed that imposition, at the end of the proceedings, of a fine which would place a financial burden on the applicant constituted an interference with her right to access to court in the present case.
In the event that the case filed for termination of the tender is dismissed, imposing a fine at the rate of 10% of the tender price is a convenient means for the protection of the creditor’s right to property. A case filed for termination of the tender without any justified basis may lead to procrastination of the compulsory enforcement process which nearly comes to an end. Therefore, the law-maker naturally introduces certain mechanisms as a deterrent measure. However, it must be assessed whether such an interference is proportionate. In making such an assessment, it is considered whether a reasonable balance has been struck between the creditor’s interests and that of the applicant requesting termination of the tender.
In this respect, regard must be also paid, inter alia, to the amount of fine imposed and the applicant’s ability to pay that amount. In the present case, it must be underlined that the applicant maintained that she had no income for being a housewife; and that the inferior courts did not nevertheless make a determination or assessment in this respect. Besides, given the fact that the debt was very low compared to the price set for the immovable, it must be stressed that it was of great importance for the applicant herself to impede the sale of the immovable.
Although the applicant, arguing that the immovable in question was a matrimonial residence, resorted to judiciary for the stay of execution of the enforcement proceedings, her request was dismissed by the relevant court for not being a party to the proceedings. Matrimonial residence is subject to a special protection mechanism, by virtue of the Turkish Civil Code no. 4721, as a requirement of the positive obligation to protect family life that is enshrined in the Constitution. It must be also taken into consideration that in filing a case for termination of the tender, the applicant also invoked these safeguards concerning the matrimonial residence.
In addition, the administrative fine prescribed in the Enforcement and Bankruptcy Code no. 2004 is directly applied when the case for termination of tender is dismissed on its merits. No upper limit for the administrative fine to be imposed in this respect is not specified in the Code. Neither are inferior courts provided with any flexibility that would ensure them to take into consideration the particular circumstances of the present case; nor are judges granted with any discretionary power. In respect of the present case, this situation led to imposition of a fine, which was quite high according to the conditions of the country, on the applicant who had no opportunity to bring her claim of matrimonial residence before courts at the previous stages.
Regard being had to all these considerations, it has been concluded that no fair balance was struck between the interest in the protection of the creditor’s rights and the applicant’s interest in suing for termination of the tender; that the fine placed an extraordinary burden on the applicant; and that therefore, the interference with her right to access to court was disproportionate.
Besides, in the present case, there is no opportunity for a re-trial. Accordingly, the Court considered that with a view to redressing the applicant’s pecuniary damages, the letter for collecting fee must be revoked by the relevant court in order to preclude its execution by the relevant tax office, and the decision be remitted to the incumbent court for withdrawal of the letter by the relevant authority.
For the reasons explained above, the Court found a violation of the applicant’s right to access to court which falls under the right to a fair trial safeguarded by Article 36 of the Constitution.