Our Explanations:

Constitutional Court Decision no. E.2022/134, K.2023/116 dated 22/06/2023

In the relevant dispute, the trial court concluded that disposition between claimants, who were father and son, should be deemed as gift as per Article 28 of Law no. 6183; however, the article did not allow any research on whether the disposition in dispute was made to make collection of public receivables impossible, and the expression “Onerous dispositions between blood relatives up to (including) third-degree and between spouses and relatives by marriage up to (including) second-degree” in Article 28/1-1 of Law no. 6183 disturbed the balance between public interest and personal interest, and led to unmeasured restriction of property rights and right to legal remedies. The Constitutional Court was applied through objection on the grounds that the rule contradicted with Articles 13, 35 and 36 of the Constitution.  

In consequence of its norm evaluation, the Constitutional Court concluded as follows:

• In Terms of Certainty and Predictability:

The Article defines clearly and unambiguously, without any hesitation for persons and administrations, as to which onerous dispositions made by the public debtor to whom or up to which degree of blood or in-law relationship shall be deemed as gifts. Therefore, it is understood that the rule is specific, addressable and predictable. For this reason, there is no unconstitutionality regarding restriction of fundamental rights and freedoms with law.

• In Terms of Legitimate Purpose-Reasonable Means Evaluation:

 According to the article, the presence of some conditions are required for opening an action for annulment of disposition and cancelling the onerous dispositions deemed as gift. In this case, it should be scrutinized whether restriction is required. The purpose of annulment of dispositions that lead to non-payment of public receivables is to make it possible to collect public receivables. If it is possible to achieve a purpose with a milder restriction, this should be preferred. Protection of public receivables is also possible with a rebuttable presumption. It is clear that such preference will have a milder effect on both property rights and right to legal remedies. For the explained reasons, the rule is contrary to Articles 13, 35 and 36 of the Constitution. It was decided that the decision would enter into force nine months after its publication on the Official Gazette.

The decision was published on the Official Gazette dated 19 September 2023, accessible via the attached link.

https://www.resmigazete.gov.tr/eskiler/2023/09/20230915-23.pdf

Regards,