Plenary Assembly 7/19

Press Release concerning the Decision Annulling the Provision whereby Prohibition of Attachment is Applied with Retroactive Effect

The Constitutional Court, at its session dated 13 February 2019, found unconstitutional and annulled the phrase “…execution proceedings…” included in the second sentence of Provisional Article 12 § 2 of the Expropriation Law no. 2942, dated 4 November 1983, with regard to the phrase “…eleventh…” included in the first sentence of the same article (file no. E.2018/108).

Contested Provision

In the impugned provision taking effect on 7 September 2016, it is set forth that the prohibition of enforcement shall apply, pursuant to Provisional Article 6 of the Expropriation Law, in execution proceedings that are still pending as of this date and falls within the scope of Article 12 of the Law. It is accordingly set out that in the execution proceedings initiated prior to the entry into force of the relevant provision for the collection of the debts and costs to be paid on account of the disputes falling within the scope of Article 12, properties, rights and receivables of the administration cannot be seized.

Grounds for the Requests for Annulment

In the petition, it is maintained in brief that the impugned provision, which has a retroactive effect, precludes execution of a final court decision forming a basis for the execution proceedings and eliminates acquired rights of the claimant, is in breach of the principles of legal stability and legal certainty and is therefore unconstitutional.

The Court’s Assessment

One of the universal principles required to be protected by the state of law is the principle of legal certainty, a common value which entails that legal norms be predictable; that individuals have confidence in the State in its all acts and actions; and that the State refrain from introducing legal arrangements that would impair such confidence.

In principle, legal certainty necessitates non-retroactive application of laws. Any legislative act that will invalidate legal consequences of the acts and actions that have been previously performed falls foul of the principle of legal certainty.

According to the impugned provision, the administrations’ properties, rights and receivables cannot be seized through execution proceedings, even if final, initiated for the collection of any debt −existence and amount of which were proven before 7 September 2016 and which falls under the right to property− prior to that date. Besides, the attachments levied are to be released.

In the present case, it has been observed that the provision taking effect after the initiation of the execution proceedings, having a retroactive effect and introducing a prohibition of attachment has obstructed, to a significant extent, the claimant’s ability to collect his receivables as well as execution of the court decision.  

The provision, which extends the scope of implementation of Provisional Article 6 § 11 of Law no. 2942 and imposes a prohibition of attachment with respect to pending execution proceedings, intends to protect resources necessary for public services that are to be performed by administrations as well as to avoid any disruption likely to occur in public services. In this respect, it has been observed that the provision expected to make contributions to the continuous, well-ordered and systematic maintenance of social life imposes a restriction on the rights to property and to a fair trial for the pursuit of public interest. However, a restriction on these rights must not only pursue a public interest, but it must also be proportionate.

As a rule, while it is possible that upon the finalization of the execution proceedings, a claimant can collect his receivables after the assets of the debtor -corresponding to the amount covering his debts- have been sold following their attachment, the impugned provision entering into force after the initiation of the execution proceedings has unpredictably taken away this right of the claimant. Deprivation of the owner of any guarantee due to the uncertainty about the execution of the decision and about the process whereby the receivables will be collected imposes an excessive burden on the owner. In this regard, it disturbs the fair balance between the public interest and personal interest to the detriment of the owner. Therefore, the contested provision is not proportionate to the aim sought to be achieved.

The impugned provision, which results in a disproportionate restriction on the rights to property and to a fair trial, also impairs the confidence in the State and violates the principle of legal certainty, as after the beginning of the collection process of the receivables, it obstructs to a great extent the execution of the decision due it its retroactive effect.

For the reasons explained above, the Court has annulled the impugned provision for being unconstitutional.

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