As indicated, the annulment of the transactions in question is ensured by the annulment of donations and suspicious transactions made by the debtor with the aim of evading creditors before seizure, bankruptcy, or insolvency. This process allows the sale of the assets subject to these transactions through compulsory execution, enabling the creditor to recover the debt. In this context, the provision in Article 278/3 of the Enforcement and Bankruptcy Law No. 2004 [1], which states that “transactions made between spouses and relatives up to the third degree (including the third degree) and between adoptive parents and their adopted children for consideration” shall be considered as donations, has been challenged for the annulment of the phrase “between spouses and...”. The Constitutional Court, with its ruling dated 16.12.2021 and numbered 2021/52 E. and 2021/97 K., decided that the phrase “between spouses and...” is unconstitutional and ordered its annulment, with the annulment decision entering into force nine months after its publication in the Official Gazette.

In the context of the judgment, transactions made by the debtor with their spouse for consideration are considered donations in terms of the annulment of the transactions. As specified in the first and second paragraphs of Article 278 of the Law, in cases of seizure, insolvency, or bankruptcy, transactions made within two years before the seizure or insolvency certificate is issued, or the oldest debt being established, are considered null and void.

As understood from the decision, the rationale for the objection is that the legal provision prescribes that all mutual transfers made between the debtor and their spouse during a period when the debtor’s authority to dispose of assets has not yet been restricted, be deemed donations. This provision implies that the courts, seeing the legal dispute, do not grant the opportunity to prove that the transaction was a legitimate one and that the relevant amount was paid. Moreover, the lack of a defense right for the person benefiting from the transaction is argued to violate the right to access justice.

Constitutional Court’s Assessment

• Initially, the Constitutional Court has determined that the legal provision in question limits property rights and the freedom to access justice by considering transactions made between the debtor and their spouse for consideration as donations in annulment of transactions lawsuits.
• In this context, the Constitutional Court has confirmed that the legal regulation restricting property rights and access to justice is in accordance with the Constitution, as it provides a specific, achievable, and predictable framework without allowing arbitrariness, thus satisfying the requirement of legality.
• The Constitutional Court noted that, according to Article 5 of the Constitution, ensuring the welfare, peace, and happiness of individuals and society is one of the state’s fundamental objectives and duties, which justifies the legal provision being challenged both in terms of property rights and the freedom to access justice, as it serves a legitimate constitutional purpose.
• Finally, the Constitutional Court pointed out that the limitation of fundamental rights and freedoms imposed by this legal provision must also meet the requirements of proportionality as outlined in Article 13 of the Constitution.
• The Constitutional Court further explained that the principle of proportionality consists of three sub-principles:
  • Suitability means the limitation should be effective in achieving the intended goal,
  • Necessity means the limitation must be essential for achieving the goal, and it should not be possible to reach the same goal with a less restrictive measure,
  • Proportionality requires that there should be a reasonable balance between the limitation of rights and the intended goal.

After explaining the principle of proportionality, the Constitutional Court, in evaluating the contested provision, considered that the purpose of the rule, which aimed to eliminate the evidentiary difficulties that creditors may encounter regarding transactions between the debtor and their spouse, and to prevent assets from being hidden through suspicious transactions, was not achieved by automatically treating all such transactions as donations. The Court found that this approach was neither suitable nor necessary for achieving the intended purpose.

The Constitutional Court also found that in the provision in question, transactions made between the debtor and their spouse for consideration were deemed donations without any condition, and this was accepted as an unprovable fact. Therefore, whether the value of the asset subject to the transaction was paid in full or more, whether the transaction was beneficial to the creditors, or whether it facilitated or did not hinder the recovery of the debt, would not change the outcome. As a result, the provision that automatically considers transactions made by the debtor with their spouse for consideration as donations, without providing an opportunity for the parties to present evidence or defense regarding these matters, violates the right to access justice and causes an excessive limitation of property rights and the freedom to access justice.

The Constitutional Court, therefore, ruled that the phrase “between spouses and...” is unconstitutional and annulled it, with the annulment decision taking effect nine months after its publication in the Official Gazette.

To access the relevant decision, click here.