Press Release No: Individual Application 27/20

Press Release concerning the Judgment Finding a Violation of the Right to Respect for Family Life due to Dismissal of the Challenge against the Attachment Order

On 12 December 2019, the Plenary of the Constitutional Court found a violation of the right to respect for family life safeguarded by Article 20 of the Constitution in the individual application lodged by Emine Göksel (no. 2016/10454).

The Facts

The applicant’s property, a matrimonial home, had been attached due to her husband’s debts. The applicant applied to the enforcement court for release of the attachment on her property, claiming that it is a residence. The incumbent court dismissed the applicant’s complaint, finding that she did not have the capacity to bring an action. The court’s decision was upheld by the Court of Cassation. The applicant’s subsequent request for rectification was also rejected.

The Applicant’s Allegations

The applicant maintained that her challenge against the attachment on their matrimonial home due to her husband’s debts had been rejected for her alleged incapacity to bring an action, which was in breach of her right to respect for her family life.

The Court’s Assessment

Article 82 of the Enforcement and Bankruptcy Law no. 2004 gives priority to the right to housing, stipulating that the “residential house (hâline münasip ev)” of a debtor cannot be subject to attachment. In addition, the regulations regarding matrimonial home, as set forth in Article 194 of the Civil Code, are among the positive obligations envisaged by the right to respect for family life.

Accordingly, where the impugned house is also a family residence, then the guarantees enshrined in Articles 20 and 41 of the Constitution regarding the right to respect for family life come into play as well. Therefore, in cases where the attached house is a family residence, the concept “residential house” should be interpreted as a house suitable for the social and economic situation of the debtor and his family, not only the debtor.

The positive obligations regarding the family residence, which are imposed on the State by the Constitution, are independent of the right to property. Preventing a spouse, who is not the owner of the family residence, from enjoying protective powers may result in a violation of these obligations. Considering that the debtor's spouse also has a legal interest in resorting to the jurisdiction to challenge the attachment of their family residence, she/he should have the opportunity to raise her/his rights arising from the assurance of the family residence as well as to assert them before the judicial authorities.

In the present case, the expert report issued during the proceedings stated that the impugned property was a residential house where the applicant lived together with her husband and daughter. The applicant’s complaint to the effect that the impugned property could not be subject to attachment for its being a family residence was dismissed by the incumbent court due to her alleged incapacity to bring an action. Thus, the applicant was unable to raise her allegations that the safeguards enshrined in the Constitution regarding family residence had not been observed.

Considering the proceedings as a whole, it has been concluded that the applicant, who would be directly affected by the attachment on the impugned property, was entitled to bring an action in residence-related issues by enjoying the guarantees regarding family residence, and that therefore the incumbent court’s narrow interpretation of the capacity for bringing an action did not comply with the guarantees enshrined in Articles 20 and 41 of the Constitution. 

Consequently, the Court has found a violation of the right to respect for family life safeguarded by Article 20 of the Constitution.

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