Turkey: What Is The Position Of (I) The Turkish Government And (II) Each Of The Core Turkish State Entities In Relation To Sovereign, State, Or Any Other Process Or Asset Immunity?

Last Updated: 22 August 2018
Article by Mehmet Taş, Püren Berik and Burak Dülgeroğlu

According to the Article 125 of Turkish Constitution titled as "Judicial Review"; recourse to judicial review shall be available against all actions and acts of administration.

Disputes arising from the state's public law contracts are subject to administrative jurisdiction unless they are subjected to arbitration by parties and disputes arising from private law contracts are subject to civil court jurisdiction.

Administration's and Public Economic Enterprises' actions and acts cannot benefit from judicial immunity regardless of the law(public/private) they are subject to. If the agreements of Administration are subject to private law, then the dispute arising out of it shall be resolved in civil courts.

Acts of government, which is excluded from the administrative jurisdiction in the previous periods, has been also subject to administrative judicial review in recent Council of State decisions.

Private law rules apply to the Public Economic enterprises (PEEs) except for the matters reserved by law. According to Constitutional Court's 22.12.1994 E. 994/70 K.994/65 numbered decision, "... as foreseen in Decree Law 233 (art.4), Public Economic Enterprises are public legal personalities operating according to the commercial principles, namely the provisions of private law, for the purpose of public interest. The operation of the Public Economic Enterprise in accordance with the private law provisions does not change its public nature. Public Economic Enterprises are bound by their laws and administrative law rules regarding their internal structure and relations. Their liabilities subject to private law are limited to their amount of capital."

Pursuant to the Article 82/1 of the Execution and Bankruptcy Law; "state properties and properties specified as non-distrainable in other codes cannot be distrained." Article 82/1 of Execution and Bankruptcy Law has not generally regulated the non-distrainability of all public legal personalities, solely forbid distraining of State Properties and properties specified as non-distrainable in other codes. The Court of Cassation jurisprudence is parallel to above mentioned explanations1.

By the expression in the provision "State Properties", only the properties belonging to "State Legal Persons" shall be construed. All public legal personalities other than "State Legal Persons" fall outside the scope of herein provision.

Assessment of the question regarding which properties will be deemed as state property and non-distrainable can be determined according to the provisions of the Public Financial Management and Control Law No. 5018. State Institutions listed in charts No.1,2 and 3 which annexed to the abovementioned Law shall fall in the scope of "State Properties" and therefore their properties shall not be distrained. However, State Economic Enterprises namely as EUAS, TEIAS and TEDAS are not listed on the above-mentioned charts and therefore their movable and immovable properties can be distrained.

In addition, Article 57 sub-section 2 of the Decree Law No. 233 stating that "all movable and immovable properties of State Entities (State Economic Enterprises and State Economic Intuitions) cannot be distrained" is abolished by Law No. 4011, dated 14.09.1994, which indicating that henceforward it is possible to distrain the property of State Economic Enterprises.

Footnote

1. The Court of Cassation General Assembly on the Unification of Judgments' decision dated 15.01.1947 numbered E. 1946/14, K.1975/5 regarding reasoning behind enactment of the Article 82 sub paragraph 1 of Enforcement and Bankruptcy Law No.2004

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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