Events
The operating license of Asya Katılım Bankası Anonim Şirketi (the Bank) was revoked by the Banking Regulation and Supervision Agency (BRSA) on 22/7/2016 pursuant to Articles 106 and 107 of the Banking Law No. 5411 and the Bank was transferred to the Savings Deposit Insurance Fund (SDIF). With the SDIF’s decision dated 24/11/2016, a precautionary blockage was placed on the participation fund in the bank on the grounds of doubtful receivables.
The applicant, who was investigated and issued an arrest warrant for membership in the Fetullah Terrorist Organization/Parallel State Structure (FETÖ/PDY) and who had three separate accounts at the relevant Bank – one of which was a special current account and the other two were participation accounts – applied to Vakıf Participation Bank and the SDIF and requested the removal of the blockage on the participation fund, stating its legal basis. The applicant filed a lawsuit at the administrative court upon the rejection of his application for the removal of the blockage; the court decided to reject the applicant’s request. The applicant’s appeal against this decision was also rejected by the regional administrative court.
Allegations
The applicant claimed that his right to property was violated due to the blockage of the participation fund amount in a bank that was decided to be transferred to the SDIF.
Assessment of the Court
In the concrete case, the court concluded that there was no contradiction to the law in the blocking process established as a precautionary measure until the examination was concluded and the doubts about the accuracy of the accounts were eliminated. According to the SDIF’s response dated 25/11/2021, it is understood that the measure was not lifted, but later in the response dated 4/4/2022, it was reported that the measure was lifted. Therefore, the complaint against the injunction imposed by the SDIF’s decision dated 24/11/2016 and understood to have been lifted after 25/11/2021 was evaluated in terms of whether the intervention was proportionate in terms of the length of the injunction.
When Article 63 of the Law No. 5411 and Article 10 of the Regulation are evaluated together, the following conclusions are reached. The accuracy of the deposit and participation fund accounts held by the credit institutions whose operating license has been revoked will be examined by the Commission in accordance with the procedure set forth in paragraph (1) of Article 10 of the Regulation. The assessment to be made by the Commission on the accuracy of insured deposits and insured participation funds will be completed within three months from the date of the revocation of the bank’s operating license, based on the determinations and decisions of the BRSA and judicial and administrative authorities, documents submitted by account holders, records kept by the Insurance and Risk Monitoring Department, bank records and other relevant documents. If necessary, this period may be extended by three months, and if the three-month extension period is insufficient due to compelling reasons, the SDIF Fund Board may extend this period two more times, each of which shall not exceed three months. Accordingly, it is clear that the Commission must make a decision on the accuracy of the deposit and participation fund accounts at the end of one year at the latest from the date the bank’s operating license was revoked. However, in the concrete case, no decision was made on the accuracy of the applicant’s deposit and participation fund accounts from 22/7/2016, when it was decided to revoke the bank’s operating license, until 25/11/2021, nor was there any information or document showing that any research or examination was carried out according to the procedure specified in the Regulation.
In order to be considered proportionate, the measures imposed on the assets of individuals must have a reasonable justification and the reasons justifying the continuation of these decisions must be demonstrated. In addition, the measure should not become disproportionate and therefore disproportionate due to the length of time. In the case at hand, the trial court rejected the request to lift the injunction on the grounds that the examination of the accuracy of the accounts was ongoing. When the court’s reasoning is examined, it is seen that there is no assessment as to whether the SDIF has conducted an examination in accordance with the provisions of Article 63 of Law No. 5411 and Article 10 of the Regulation and whether there are reasons justifying the continuation of the measure. Therefore, the SDIF’s operations were not audited and it is understood that the cautionary decision continued for more than 5 years and 4 months. In the absence of any fault attributable to the applicant for the prolonged continuation of the injunction and in the absence of any justification to justify the exceeding of the one-year period set out in the Regulation, it is not possible to mention that the duration of the injunction on the applicant’s bank account, which continued for more than 5 years and 4 months, was foreseeable and reasonable. Therefore, it is concluded that the prolonged continuation of the injunction imposes an excessive personal burden on the applicant, therefore, the intervention disrupts the fair balance between the public interest and the protection of the applicant’s property right to the detriment of the applicant and is not proportionate.
The Constitutional Court decided that the right to property was violated for the reasons explained.
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