Press Release No: Plenary Assembly 32/22
Press Release concerning the Decision Annulling the Provision Entailing the Payment of An Additional Amount of 10% of the Contested Amount if An Action Brought against A Payment Order is Found Unjust
The Constitutional Court, at its session dated 21 April 2022, found unconstitutional and annulled Article 58 § 5 of Law no. 6183 on the Procedure for the Collection of Public Receivables (file no. E. 2021/119).
The contested provision sets forth that in cases where the debtor who raises an objection to his debt in the nature of public receivables is found unjust, the public receivables in respect of which the objection has been dismissed shall be collected plus an additional amount of 10% of the original amount of the debt.
Ground for the Request for Annulment
It was maintained in brief that the accrual of an additional amount, in cases where an action brought against a given payment order was dismissed, in addition to the original amount of the public receivables indicated in the payment order, as well as any associated fine and interest, placed a heavy burden on the debtor, which constituted a disproportionate interference with the right to legal remedies; that any action brought against taxes caused the suspension of the collection process, and only after the action was dismissed by the incumbent court, a payment order for the collection of the relevant tax would be issued; that however, on the other hand, as for public receivables, collection of which would not be suspended even in cases where an action is brought against them, unlike taxes, a payment order would be issued without awaiting the outcome of the action brought for the revocation of the written notice issued with respect thereto; and that therefore, an action was to be brought against a payment order in the absence of a decision rendered as to the request for revocation of the written notice, which led to a disparity between tax-related debts and other public receivables. It was therefore argued that the contested provision was unconstitutional.
The Court’s Assessment
Regard being had to the clear and precious nature of the contested provision where it is explicitly specified under which conditions, from whom and at which rates the public receivables shall be collected, the contested provision has been found to be precise, accessible and foreseeable. It has been therefore concluded that it meets the lawfulness requirement. Ensuring the timely and full collection of public receivables is essential for the continued performance of public services, thus the fulfilment of the duties incumbent on the State. It is therefore in the public interest. It is prescribed in the contested provision that if a debtor is found unjust completely or partially at the end of an action brought against a payment order, the given amount of public receivables -in respect of which the objection has been dismissed- shall be collected plus an additional amount of 10%. It has been observed that the underlying aim of the provision is to attain the publicinterest objective to prevent any procrastination in the collection of public receivables by means of impeding the bringing of actions on unjustified grounds. However, for a given provision to be considered constitutional, the restriction imposed through the provision must not only pursue a legitimate aim in the constitutional context but the provision itself must also be suitable and necessary for, as well as proportionate to, the legitimate aim pursued.
As the bringing of an action against a payment order does not suspend the collection process and the administration proceeds with the collection of public receivables unless the stay of execution thereof is ordered, such an action does not have any delaying or impeding effect on the collection of the relevant amount. In this sense, the provision that has a deterrent effect on the bringing of an action against payment orders has an indirect and limited role in expediting the collection process. It has been accordingly concluded that the contested provision is not suitable for attaining the aim of preventing any procrastination in the collection of public receivables by means of impeding the bringing of actions on unjustified grounds. Besides, without awaiting the finalisation of the action brought against assessment process (tarh işlemi), a payment order may be issued with respect to the amount deriving from such assessment process. The step taken to prevent the bringing of an action against payment orders pending the judicial proceedings with respect to the assessment process, which forms the basis of the public receivables, by way of entailing the collection of the original public receivables indicated in the payment order plus an additional amount of 10% thereof may be hardly qualified as a last resort, thus as a means constituting interference with a given right to the least extent possible. In this sense, the contested provision also fails to meet the necessity requirement. In the contested provision, any given amount or no maximum limit is prescribed with respect to the calculation of the additional amount. In this context, as the original amount of receivables is taken together with its derivatives in the calculation of the additional amount to be paid when an action is found unjust, the debtors may be required to pay an additional amount, which is significantly high in proportion to the original amount of public receivables, given the amount of derivative public receivables. Moreover, the contested provision does not enable the courts to take into consideration the particular circumstances of a given case and grant any discretion to the judge.
In this sense, there is a disproportionality between the public interest of preventing any procrastination in the collection of public receivables by means of impeding the unduly bringing of an action and the burden imposed on the public debtors. It has been accordingly concluded that the provision imposes a disproportionate restriction on the right to property. Besides, it also restricts the right to legal remedies as the original amount of public receivables shall be collected plus an additional amount of 10% if the action brought for the revocation of the payment order is dismissed. In this sense, the contested provision constituting a restriction on the right to legal remedies for impeding, and having a deterrent effect on, recourse to judicial remedies must be examined also under Article 13 of the Constitution. In this regard, the Court has concluded that the assessments made with respect to the right to property under the principle of proportionality are applicable also in terms of the right to legal remedies.
Consequently, the contested provision has been found unconstitutional and therefore annulled.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.