The Erosion of Property Rights in Turkey

Ali Yildiz &

Leighann Spencer

Arrested Lawyers Initiative & Charles Sturt University's

The right to property is enshrined in both international and regional law (including in the European Convention on Human Rights (ECHR), which binds Turkey). In Turkey, it is also given constitutional recognition. Yet, on the pretext of handling a domestic emergency and fighting terrorism, the Turkish Government is infringing on the right using state of emergency and anti-terror laws.

The Right to Property in Turkish Law

The Turkish Constitution entrenches the right to property in article 35, which reads:

Everyone has the right to own and inherit property. These rights may be limited by law only in view of public interest. The exercise of the right to property shall not contravene public interest.’

The Constitution also explicitly proscribes the confiscation en masse of property as punishment (article 38) and the confiscation or seizure of ‘printing houses and their annexes, and press equipment’ (Article 30). Articles 46 and 47, on the other hand, provide for the expropriation and nationalization of private property if the public interest requires it. However, this is on condition of payment of actual compensation (historical cost) or compensation based on the enterprise’s real value, in cash, in advance. Ordinary legislation gives further detail regarding both the exercise (in the Turkish Civil Code) and the limitation (in the Turkish Penal Code) of this constitutional right.

Conditions Meriting Intervention Into the Right to Property

Neither the Turkish Constitution nor the ECHR regards the right to property as absolute.  To the contrary, both recognize that intervention into the right to property can be justified under certain conditions.

In terms of article 1 of Protocol 1 of the ECHR and ECHR’s case law, intervention into the right is permissible if: (i)  provided for in law; (ii) in the public interest; (iii) in compliance with general principles of international law; and (iv) reasonably proportionate (the “fair balance" requirement).

The Turkish Constitution also allows for such intervention, if it is provided for in law, is  in the public interest and is proportional. In addition, the Constitution prohibits any limitation that prejudices the essence of the right.

In cases of deprivation, compensation payments are a requirement of customary international law, international treaties and the Turkish Constitution. The standard for determining the appropriate level of compensation includes a provision requiring account be taken of the dual individual and community functions of the right to property.

The Turkish Government’s Interventions into the Right to Property Since 2015

Legal conflicts arising from the Turkish State’s intervention in the right to property are not new. The European Court of Human Rights has handed down 3224 judgments against Turkey – of those 674 (21%) established a breach of the right to property. Statistics on the Constitutional Court’s (TCC) judgments related to the right to property are even more alarming: 31% (2454 of 8036) of decisions handed down, in individual application procedures, established a breach of the right to property.

Since 2015, Turkey has witnessed two new forms of unlawful intervention into the right to property. First, the suspension of property rights through the appointment of a board of trustees to manage the private property. Second, closure of legal entities, in terms of an Emergency Decree, and transfer, without compensation, of those entities’ assets to the State.

Criminal Peace Judgeships and Intervention Into the Right to Property Through Appointment of Trustees

Turkey’s notorious Criminal Peace Judgeship (CPJ) system has been weaponized, along with the Anti-Terrorism Provision (Article 314, Penal Code), and used to take over dissidents’ properties.

Since 2015, the Turkish Government has used CPJs and the Anti-Terrorism provision to appoint trustees to manage entities during criminal investigations or prosecution. One particular governmental body, the SDIF, is appointed as trustee by CPJs. As of March 2020, the SDIF controls 998 companies and the assets of 113 natural persons.

State of Emergency and Intervention Into the Right to Property by Emergency Decrees

After the 2016’s coup attempt, the Turkish Government, relying on emergency decrees, closed more than 1500 legal persons including foundations, associations, private universities, and trade unions. More than 2400 companies, including private health institutions, educational institutions and media outlets were also closed down.  Allegedly the State implemented these measures because the entities were affiliated with, connected, or related to, or a member of either the Fetullahist Terrorist Organization (FETÖ/PDY) or some other organization, determined by the National Security Council to have carried out activities considered to be a threat to national security.

These decrees are problematic in at least three ways. First, as they apply generally, they are not specifically tailored to address unique circumstances. Second, they do not define what it means to be a  ‘member’ or ‘contact’ of, ‘related’, ‘connected’ or ‘linked’ to, or ‘affiliated’ with terrorist organizations. Third, they do not include any assessment criteria for determining which legal persons can be closed down under the terms of their provisions.

In a recent report, ‘The Erosion of Property Rights in Turkey’, we show that the total worth of the assets confiscated, seized or frozen since 2015, in terms of either decree-laws or CPJs, amounts to at least USD32.24 billion.

Analysis Under International and National Law

The Turkish Government has used the state of emergency to confiscate all these assets but has not offered any compensation.

According to several international instruments, including the International Covenant on Civil and Political Rights, ECHR and Paris Minimum Standards for Human Rights Norms in the State of Emergency, emergency measures must be limited in scope, exceptional and temporary. Furthermore, all measures implemented as a result of an emergency should terminate as soon as the crisis is over. In addition, immediate restoration of all rights and freedoms that had been suspended or restricted during the emergency is imperative.

These requirements under international law are also requirements reflected in the Turkish Constitution (articles 121§3 and 15§1). Additionally, the principle of moderation requires that emergency provisions are suitable, necessary and proportionate.

The Act on the State of Emergency (Law No. 2935) provides a closed list of measures that the Government may implement if, and when, a State of Emergency has been declared. Rather than closure and confiscation, Law no.2935 provides for temporary measures, such as the short-term suspension of activities and the freezing of assets.

Thus the adoption by the Turkish Government of permanent measures, without any justification as to why temporary measures would be unsuitable for achieving the state of emergency’s proclaimed purpose, infringes the principle of proportionality. Even if the Government had met the proportionality requirement for lawful intervention into the right to property, it would still need to pay compensation as well. The declaration of a state of emergency thus does not legitimize either the general and permanent confiscation of property or the confiscation of property without compensation.

In conclusion, the Turkish Government’s confiscation, without due process and compensation, of private property under emergency-decree laws, contravenes international law andarticles 30, 38, 46 of the Constitution. The failure to provide compensation also violates both international law and the Constitution, and runs  counter to the case-law of the Turkish Constitutional Court.

Ali Yildiz is a practising attorney and the director of the Arrested Lawyers Initiative (TALI). Leighann Spencer is a PhD candidate at Charles Sturt University's Centre for Law and Justice.

Suggested Citation: Ali Yildiz & Leighann Spencer, “The Erosion of Property Rights in Turkey” IACL-AIDC Blog (28 May 2020) https://blog-iacl-aidc.org/2020-posts/2020/5/28/the-erosion-of-property-rights-in-turkey