The Constitutional Court Published Its Decision No. 2024/169 E. and 2025/72 K., Ruling a Violation of the Right to Property Based on the Principles of Public Interest and Proportionality
Contents
- Grounds for the Application
- Assessment by the Constitutional Court
- Effective Date
- Dissenting Opinion
An application was filed with the Constitutional Court (“the Court”) by the Gaziosmanpaşa 1st Criminal Judgeship of Peace (“the First Instance Court”), requesting the annulment of the second paragraph of Article 3 of Law No. 1567 on the Protection of the Value of Turkish Currency (“Law No. 1567”), as amended by Article 1 of Law No. 5827 (“the Contested Provision”), on the grounds that it violated Article 35 of the Constitution.
Grounds for the Application
According to the Contested Provision, in cases where assets listed in Article 1 of Law No. 1567 are taken out of or brought into the country without permission — and where such conduct does not constitute a crime or misdemeanor under the provisions of Law No. 5607 — an administrative fine equal to the market value of the goods and assets is imposed; and in cases of attempted acts, a fine amounting to half of the market value is imposed.
The First Instance Court stated that the sanction imposed under the Contested Provision is a fixed administrative fine, which does not allow for the assessment of the specific circumstances of the case and does not provide the judge with any discretionary authority. Therefore, it claimed that a fair balance between the legitimate aim pursued and the right to property could not be achieved, and requested the annulment of the provision for being contrary to Article 35 of the Constitution.
Assessment by the Constitutional Court
In its review, the Constitutional Court elaborated on the core principles of the right to property.
It emphasized that the right to property, guaranteed as a fundamental right under Article 35 of the Constitution, grants individuals the freedom to use, benefit from, and dispose of their property as they wish, provided that they do not harm the rights of others and comply with legal restrictions. The Court noted that any restriction on the right to use, benefit from, or dispose of property constitutes an interference with the right to property.
In this context, the Court concluded that the Contested Provision, by imposing an administrative fine equal to the market value (or half of it in case of an attempt) for the unauthorized transfer of the specified assets into or out of the country — even when the act does not constitute a crime or misdemeanor under Law No. 5607 — constitutes a limitation on the right to property.
The Court also underscored that under Article 35 of the Constitution, the right to property may only be restricted for public interest and by law. Such restrictions must also comply with Article 13 of the Constitution, which requires that any restriction on fundamental rights must be based on legitimate constitutional grounds, must not violate the principle of proportionality, and must be prescribed by a law that is clear, accessible, applicable, and objective, leaving no room for arbitrariness.
The Court noted that the principle of proportionality, as safeguarded by Article 13 of the Constitution, consists of three sub-principles:
o Suitability: The measure must be capable of achieving the intended goal.
o Necessity: The restriction must be essential, meaning there is no less restrictive alternative to achieve the same goal.
o Proportionality in the strict sense: A reasonable balance must be struck between thecrestriction imposed and the legitimate aim pursued.
Referring to its earlier individual application judgment in the Mohammad Atamleh case ([Plenary], App. No: 2020/9691, 29 February 2024) (“Individual Application Judgment”), the Court held that there was no reason to deviate from the conclusions reached therein. In this regard, it found that the Contested Provision imposes an excessive burden on individuals by not allowing the assessment of factors such as the degree of fault, the source of the funds, or the extent of harm to the public interest. Consequently, the provision prevents case-specific balancing and leads to disproportionate interference with property rights. Based on this reasoning, the Court ruled — by majority vote — that the Contested Provision violates the right to property and is contrary to Articles 13 and 35 of the Constitution, and therefore must be annulled.
Effective Date
The Court ruled that the annulment decision shall enter into force nine months after its publication in the Official Gazette, dated 13 June 2025.
Dissenting Opinion
The dissenting members of the Constitutional Court argued that the interference with the right to property did not impose an excessive burden on individuals when compared to the legitimate aim of public interest. They stated that the burden imposed was proportionate to the intended objective, and that the fair balance between the right to property and public interest was not disturbed. Accordingly, they concluded that the interference was proportional and reasonable from a constitutional standpoint and did not concur with the majority’s decision to annul the provision.