PRECEDENT ALERT: Review of the Constitutional Court’s Decision Dated 2019, 21st February

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Uçar Law & Consultancy Office

Uçar Law & Consultancy Office

Review of the Constitutional Court’s Decision Dated 2019, 21st February

Constitutional Court of the Republic of Turkey’s Decision No. 2015/8867 dated 2019, 21st February, published in the Official Gazette No. 30713 dated 2019, 13 March, relates to confiscation measures during international trade and related proceedings. As Uçar Law & Consultancy Office, we would like to share in this article a brief summary of the Decision and the principles set forth by the Constitutional Court.

Subject Decision is related to the allegations that property rights and the right to trial within a reasonable time in the context of the right to fair trial, of the Applicant were violated due to failure to remedy the damages suffered as a result of the confiscation measure during the criminal investigation and due to the long duration of the trial.

Textile products that the corporate entity Applicant wanted to export to Libya was confiscated by the customs authorities on 2019, 15th July on the grounds that products were different in terms of number and quality from the goods specified in the bill of entry and the FOB value was shown higher. The Applicant was acquitted in the indictment filed by İzmir Office of Chief Public Prosecutor and subsequently in the Izmir 1st Heavy Penal Court. The Court also decided to return the subject matter to the crime, textile products, when the Decision was finalized. Upon the finalization of the Decision following the appeal, the textile products confiscated by the customs authorities were returned to the Applicant on 2003, 10th March.

On 2003, 14th July, the Applicant filed a lawsuit against the Ministry of Finance and Customs at the 3rd Commercial Court of First Instance for damages, claiming that it was likely that the confiscated textile products had remained in the parcel for four years and that there had been material damages such as loss of profits and value. Upon the decision of lack of jurisdiction by the court, the Applicant filed a full remedy action and the file went to the Council of State for two times. Consequently, the case was dismissed due to duration and lack of discussion of service defect of the administration.

The Constitutional Court, which has decided on the individual application, found that the violation of the right to trial in a reasonable time was unacceptable because of the lack of application requirements. In relation to the claim that the Applicant’s right to property was violated, the Constitutional Court has reached the following conclusions;

In order to be considered as restricted the right of ownership regulated in the 35th Article of the Turkish Constitution, it is accepted that mere limitation of the right of appointment is sufficient. Property rights, according to the relevant article, shall only be limited for public interest and by law. On the other hand, according to the 13. Article of the Constitution, the limitation of the right should be for a legitimate purpose, be statutory and proportionate. In order to accept the limitation/intervention to be proportionate, it is essential to recognize possibility of recovering the possession of the bona fide owner or to compensate the damage caused by the measure. According to the Constitutional Court, any confiscation measure will inevitably cause damage, but in the event of exceeding damage, the property owner will be burdened with extreme charges. However, in the absence of any compensation, it is explicit that, in the case of interference in the property right by confiscating, the Applicant was personally burdened by excessive charges, and the Applicant’s property right was violated.

In our opinion, subject Decision of the Constitutional Court on the confiscated goods during the export transactions shall be applied to goods subject to import transactions by analogy.

The full text of the Decision of the Constitutional Court can be accessed from here. You can contact us for further information and to take advantage of our advocacy and consulting services. You can find detailed information about our office’s work on International Trade and Customs Law on our website.

Uçar Law & Consultancy Office

Ahmet UÇAR

Adar UÇAR

Diclaimer:

This article is prepared by Uçar Law & Consultancy Office for information purposes only, and the information and visual materials contained in it cannot be used, reproduced, published, transmitted to a third party or translated without prior written permission from us. This legal memorandum is not a comment or legal opinion and was prepared on the publication date and our attorney’s office is not responsible for its failure to
update continuously.”

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