The Constitutional Court recently cancelled part of Article
13(4) of the Capital Markets Law, deeming aspects of the article to
be unconstitutional in decision number 2015/29, dated 22 October
2015. The court's decision was published in the Official
Gazette number 29530 on 12 November 2015. The court held that
Article 13(4) indefinitely and absolutely removed peoples'
property rights on capital markets instruments, also removing
indemnity for people who wish to invest in capital markets. The
court held that Article 13(4) offered no form of compensation if
these rights were injured. Accordingly, the Constitutional Court
held that Article 13(4) did not provide a reasonable balance
between public interests and personal property rights.
Article 13 of the Capital Markets Law outlines dematerialization
of capital markets instruments. Article 13(4) states that fund
units cannot be redeemed by intermediaries and capital market
instruments which are not delivered by the end of the seventh year
following the date they began to be monitored on record will be
transferred to the Investor Compensation Centre. Limited real
rights will be automatically regarded as terminated and the
instrument will be sold within three months of the transfer.
The Constitutional Court held that Article 13(4) contradicted
key provisions in the Turkish Constitution regarding property
rights and restriction of fundamental rights and freedoms.
The Constitutional Court held that Article 13(4) of the Capital
Markets Law indefinitely and absolutely removed peoples'
property rights on instruments they own, also removing indemnity
for people who wish to invest in capital markets. The court held
that Article 13(4) of the Capital Markets Law offered no form of
compensation if these rights were injured. Therefore, it cancelled
the related parts of Article 13(4).
Please see this
link for full text of the Constitutional Court Decision (only
available in Turkish).
Information first published in the
MA | Gazette, a fortnightly legal update newsletter produced by
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