20
Mon, Sep
61 New Articles

Turkish Constitutional Court Ruled that Prolonged Preliminary Injunction Violates Right to Property

Turkish Constitutional Court Ruled that Prolonged Preliminary Injunction Violates Right to Property

Turkey
Tools
Typography
  • Smaller Small Medium Big Bigger
  • Default Helvetica Segoe Georgia Times

On April 13, 2021, Turkish Constitutional Court [the “Court”] ruled that the applicant's right to property is violated because his assets have been restricted by a preliminary injunction for 15 years. The judgement emphasized that for a preliminary injunction restricting right to property to be deemed proportionate, proportionality should be established in terms of both the scope and the duration of the injunction.

Course of Events

In the lawsuit filed against the applicant on 23.05.2006 for the cancellation and registration of the title deed based on inheritor’s collusion, which is still pending, an preliminary injunction was also requested regarding his assets, and the district court accepted this request. As a result, the applicant’s right to dispose his assets have been restrained by a preliminary injunction since then.

The applicant alleged that the preliminary injunction on his immovable properties has been effective since 2006, that the proceedings have not been concluded yet, and that his right to property has been violated given that his right of disposition on the immovables has been restricted for too long.

Court’s Assessment

The Court emphasized that the administration has a wide discretion in taking necessary measures to secure a possible receivable and has the authority to limit the power of disposition on the property for a certain period within the scope of these measures, but the implementation of these measures should not impose an excessive burden on the property owner. That is to say, the public authorities applying measures to protect the rights of the other party in the respective relationship should also consider the effects of the relevant measures on the right to property, and the measures should not lead to a disproportionate intervention in terms of both duration and scope.

In this regard, the Court rules that the preliminary injunction on the applicant's immovables since 2006 exceeded the reasonable period of time, the measure limiting the right to property imposes an excessive burden on the applicant, and as a result, the right to property protected in Article 35 of the Constitution of the Republic of Turkey has been violated.

By M. Tarik Guleryuz, Partner, and Baris Ulker, Senior Associate, Guleryuz & Partners

Turkey Knowledge Partner

NAZALI offers a broad range of services in the fields of Tax, Audit, Corporate and Commercial Law, Mergers & Acquisitions, Corporate Finance, Banking, Finance and Capital Markets, Protective Legal Services and Dispute Resolution, Personal Data Protection and Privacy, Social Security and Labor Law, Occupational Health and Safety, Competition Law, Intellectual Property Law and R&D, Compliance and White-Collar Crimes, Administrative Law, Real Estate Law, Customs and Foreign Trade, Accounting and Payroll, Financial Incentives and Advisory Services and Public Administration and Compliance through its partners, associates and consultants of different seniorities who have both public and private sector experience.

What sets NAZALI apart from others is that NAZALI offers a truly comprehensive service to its clients with experts from different disciplines working collaboratively as a team under one roof enabling us to evaluate all dimensions of legal matters together with financial and technical matters.

The services that NAZALI provides to its clients include the most appropriate solution with the support of technical departments specialized in their fields. In this context, NAZALI associates are supported by NAZALI technical team and work alongside the experts in the fields of finance, social security and customs matters. NAZALI has set out with the aim of providing the most efficient and comprehensive solution for its clients by adapting to the developing conditions and happily gained the trust of its clients by never compromising the quality of service.

As conditions continuously evolve, NAZALI always aims to further itself remaining true to its motto “GROW WITH KNOWLEDGE” and has set out with the aim of providing the most efficient and comprehensive solution for its clients by adapting to the developing conditions and happily gained the trust of its clients by never compromising the quality of service.

Firm's website: http://www.nazali.com

Our Latest Issue