1. INTRODUCTION
Pursuant to
Article 134 of the Banking Law Nr. 5411, the authority granted to the Savings
Deposit Insurance Fund (SDIF) to establish “Commercial and Economic Integrity”
(CEI) and to sell gives rise to significant constitutional debates with respect
to third-party creditors who stand in a debtor–creditor relationship. The
inability to impose attachment on the assets included within the scope of the
CEI for a period of two years, as well as the prohibition on requesting their
sale through debt enforcement proceedings, constitutes a legal obstacle that effectively
prevents third-party creditors from accessing their claims.
This mechanism,
which aims to ensure the effective collection of public receivables, suspends
the legitimate claims of third-party creditors for a prolonged and
indeterminate period. In this respect, it gives rise to concerns in terms of
the “right to property”, secured under Article 35 of the Constitution, and the “freedom
to seek legal remedies”, set out under Article 36. The constitutional limits of
the CEI decision in question will be examined within the framework of the
principles of proportionality and legal certainty, and it will be assessed— in
light of constitutional principles and the case law of the high courts— whether
the SDIF’s priority in collection turns into a disproportionate and excessively
onerous burden on third-party creditors.
2. THE ROLE OF
THE SDIF AS TRUSTEE UNDER ARTICLE 133 OF THE CODE OF CRIMINAL PROCEDURE AND ITS
RELATION TO THE BANKING LAW
The SDIF, whose
legal basis is established by Banking Law Nr. 5411, was founded in 1983 as a
public institution aiming to safeguard Türkiye’s financial security through
insurance and supervisory mechanisms in adverse situations such as the
bankruptcy of banks or the suspension of their operations. [1]
At present, if
there is strong suspicion that the catalogue offenses, listed under Article 133
of the Code of Criminal Procedure titled “Appointment of a Trustee for
Company Management”, are being committed within the scope of a company’s
activities, the court appoints a trustee to such companies. Pursuant to this
statutory provision, under Decree Law Nr. 674, the trusteeship of companies
appointed a trustee within the scope of Article 133 of the Code of Criminal
Procedure was transferred to the SDIF. This Decree Law was later codified by
Law Nr. 6758, issued in 2016, which also included regulations concerning the
state of emergency.
The second
paragraph of article 19 of Law Nr. 6758 reads as follows:
“After the
entry into force of this article and for the duration of the state of
emergency, if it is decided to appoint a trustee to companies under Article
133 of the Code of Criminal Procedure or to assets under Article 13 of the said
Law due to affiliation, connection, or contact with terrorist
organizations, the Savings Deposit Insurance Fund (SDIF) shall be appointed
as the trustee.”
Thus, it has
been firmly established that the institution to perform the trusteeship in
companies appointed a trustee under Article 133 of the Code of Criminal
Procedure is henceforth the SDIF. Moreover, the provisions of the Banking Law Nr.
5411, which also set out the decisions adopted by the SDIF in its capacity as
trustee for banks, are applied analogously to companies to which the SDIF is
appointed as trustee by court order pursuant to Article 133 of the Code of
Criminal Procedure. This is explicitly provided for in Provisional Article 2, incorporated
into Article 7 of Law Nr. 7539, promulgated on the Official Journal on
04/02/2025:
“…If it is
decided to appoint a trustee to companies pursuant to Article 133 of the Code
of Criminal Procedure or to assets pursuant to the tenth paragraph of Article
128, the Savings Deposit Insurance Fund (SDIF) may be appointed as trustee for
a period of five years from the entry into force of this article. In this
case, with respect to trusteeship rights and authorities, the rights and powers
granted to the SDIF under Banking Law Nr. 5411, dated 19/10/2005, shall apply
mutatis mutandis.”
3. LEGAL NATURE
AND PURPOSE OF THE “COMMERCIAL AND ECONOMIC INTEGRITY” (CEI) DECISION
The Savings
Deposit Insurance Fund (SDIF) plays a role both in resolving the financial
crises of banks and in combating the proceeds of crime resulting from certain
criminal acts. At the forefront of the institutions subject to debate within
this broad scope of authority granted to the SDIF is the “Commercial and
Economic Integrity” (CEI) Decision. The provision in which the CEI Decision is
embodied is Article 134 of Banking Law Nr. 5411.
The relevant
article treats economic integrity as a method of sale. Accordingly, in cases
where the assets seized due to the debts of a bank or company under the
trusteeship of the SDIF—including movable and immovable property, rights and
receivables, and intellectual and industrial property rights—would lose value
if sold separately, or where selling them as a whole would enable a more
effective and advantageous collection of the claim, these assets may be
consolidated through a decision of the Board of SDIF to establish “Commercial
and Economic Integrity”. In this way, the CEI decision adopted by the SDIF aims
to ensure that the debtor’s assets are realized in a manner that maximizes the
collection of the claim.
4. ASSESSMENT
OF THE COMMERCIAL AND ECONOMIC INTEGRITY DECISION IN TERMS OF THE RIGHT TO
PROPERTY AND THE FREEDOM TO SEEK LEGAL REMEDIES
Paragraph 5 of
Article 134 of Banking Law Nr. 5411, as mentioned hereinabove, reads as follows:
“… Within two years from the date of the decision to establish Commercial
and Economic Integrity, the seizure, preservation or sale of the assets forming
the CEI—including movable and immovable property, all types of rights and
receivables, and cash assets held by third parties, including preferential
creditors—may not be requested by third parties; the owners of the seized
assets may not be declared bankrupt; termination of financial leasing contracts
may not be requested; return of assets under such contracts may not
be ordered; and statute of limitations or preclusive periods shall not apply to
the relevant encumbrances.” This provision was introduced by Decree Law Nr.
678, dated 31/10/2016, and was adopted without any change by Law Nr. 7071,
dated 01/02/2018.
The provision
in the relevant paragraph establishes that, for a period of two years from the
date of the decision, no additional attachment may be imposed by any third
parties on the assets subject to a CEI decision, nor may their sale be
requested. Although the SDIF seeks, through the CEI decision, to effectively
collect public receivables, the claims of third-party creditors are placed at
risk, giving rise to certain constitutional debates. Indeed, this regulation
suspends, for as long as two years, the legal collection of claims of all
creditors—including preferential creditors—within the scope of the “right to
property” protected under Article 35 of the Constitution, thereby constituting
an indefinite and severe interference with property rights.
At this point, under
its individual application decision numbered 2013/865 and dated 01/06/2016 (the
“Cemtur Decision”), the Constitutional Court ruled that a sale conducted within
the scope of economic integrity violates the right to property, and that
ignoring the claims of bona fide third parties—even those confirmed by final
court judgments—for a prolonged period of two years is incompatible with the
principle of proportionality. In this individual application decision, the
Court expressed the violation of the right to property and the inconsistency
with the principle of proportionality as follows:[2]
“Another
dimension of the issue concerns the payment of service providers for ongoing
services of the same nature by companies seized by the SDIF. In this context,
the rights of bona fide third parties who provided the same services to these
companies prior to the date of seizure—and for whom no finding exists
indicating that they caused loss to the seized bank or misused its
resources—are completely disregarded, and their receivables remain unpaid. It
is, of course, reasonable that the assets and operations of companies whose
management and supervision have been taken over by SDIF continue to procure
goods and services and make corresponding payments. However, the suspension
of payments for outstanding debts arising from similar past procurements—or,
indeed, the complete disregard of all such debts, including those subject to debt
enforcement or bankruptcy proceedings and confirmed by court decisions—cannot
be justified under the principle of proportionality or the rule of law.”
170. In
conclusion, the applicant’s ability to collect a receivable from the debtor
company—unrelated to its banking activities and already at the stage of
enforceable collection—was obstructed after the company was seized by SDIF.
This obstruction occurred through interventions based on the relevant
legislation, applied to past debt-claim relationships and collection procedures
already underway. Despite SDIF having the authority to use the proceeds from
the sale of all assets of the debtor company to satisfy past debts, these
assets were instead allocated entirely to other public receivables and SDIF’s
claims arising from the seized bank, without regard for the rights of the
applicant, who was recognized as a bona fide third party. Moreover, the
applicant was indirectly burdened with losses caused by the bank, which was
under state supervision. Considering the legal uncertainty imposed on the
applicant for these reasons, it is concluded that, when weighed against the
public interest aim of “covering the losses undertaken by the state” on behalf
of the failed bank, an excessive burden was placed on the applicant, thereby
disrupting the fair balance that should be maintained between the applicant’s
right to property and the public interest.
171. For
the reasons outlined hereinabove, it should be concluded that the applicant’s
right to property, as secured under Article 35 of the Constitution, has been
violated.”
Similarly, in
its recent individual application decision numbered 2016/9303 and dated
29/11/2023, the Constitutional Court held that the failure to protect the
rights of third-party creditors during the process of preparing the priority
list and distributing funds following CEI sale constitutes a violation of the
right to property. The Court referred to the above-mentioned “Cemtur Decision”
and issued a ruling in the same direction. [3]
It should also
be noted that the provision in the last sentence of paragraph 5 of Article 134
of Banking Law Nr. 5411, which completely eliminates the ability of third-party
creditors to request attachment, preservation, or sale of assets for a period
of two years from the establishment of Commercial and Economic Integrity (CEI)
decision, is also inconsistent with the “freedom to seek legal remedies”,
secured under Article 36 of the Constitution. This is because the freedom to
seek legal remedies encompasses not only the right of individuals to apply to
judicial authorities, but also the right to claim their entitlements and to
have these rights effectively protected and resolved within a reasonable time, ensuring
effective access to the courts. By suspending, for a period of two years,
the creditors’ authority to resort to compulsory debt enforcement through an
administratively issued CEI decision without judicial review, the exercise of
this right is rendered meaningless, and judicial protection is effectively
neutralized.
As emphasized
in the Constitutional Court’s established case law, any restrictions on the
right to property and the enforcement powers that serve as its guarantee must
not affect the essence of the right and must comply with the principle of
proportionality. Regardless of the nature of the claim (whether privileged or
not), the two-year administrative restriction applied during this period
without providing the creditor with an effective means of application or
objection disproportionately limits the effective exercise of the freedom to
seek legal remedies and exceeds the constitutional framework envisaged by the
principle of a democratic state governed by the rule of law.
5. CONCLUSION
The authority
granted to the Savings Deposit Insurance Fund under Article 134 of Banking Law
Nr. 5411 to establish and Commercial and Economic Integrity (CEI) and to sell carries
significant constitutional implications, particularly for third-party
creditors. Although the CEI decisions adopted by SDIF—both in its capacity as
trustee under Article 133 of the Code of Criminal Procedure and under the
powers conferred by the Banking Law—are designed as a mechanism prioritizing
the collection of public receivables, in practice they impose substantial
restrictions on fundamental rights and freedoms.
The CEI
decision serves a legitimate public interest objective, such as the effective
and rapid collection of public receivables. However, the provision in paragraph
5 of Article 134 of the Banking Law, which absolutely prevents third-party
creditors from requesting attachment, preservation, or sale of assets for a
period of two years from the establishment of the CEI decision, constitutes
severe interference with the creditors’ right to property, as secured under
Article 35 of the Constitution. This general and rigid prohibition, applied
without regard to the nature or source of the claim or the good faith of the
creditor, disrupts the fair balance that should be maintained between property
rights and public interest and undermines the principle of proportionality.
In the “Cemtur
decision” of the Constitutional Court, as well as in other individual
application rulings on the subject, it has been clearly established that the
complete disregard of the rights of bona fide third-party creditors in
transactions conducted within the scope of CEI imposes an excessive and
disproportionate burden on creditors. Interventions carried out in the name of
public interest, which render even claims based on final court judgments
ineffective, have been considered a violation of the right to property. Recent case
law continues to uphold this approach, indicating that the failure to respect
the rights of third-party creditors when preparing the priority list following
CEI sales constitutes a constitutional violation.
On the other
hand, the suspension of creditors’ ability to resort to compulsory debt enforcement
through an administrative decision without judicial review raises serious
concerns regarding the freedom to seek legal remedies guaranteed under Article
36 of the Constitution. The freedom to seek legal remedies is not limited to
access to the courts; it also encompasses the effective protection and
enforcement of recognized rights within a reasonable time. In this regard, the
provision imposing absolute prohibition on debt enforcement for a period of two
years effectively prevents creditors from benefiting from judicial protection
mechanisms, rendering the freedom to seek legal remedies meaningless.
In conclusion,
it is evident that the application of the CEI decision within the existing
legal framework constitutes an intervention that exceeds the purpose of
protecting public receivables and produces disproportionate effects for
third-party creditors. In accordance with the principle of a democratic state
governed by the rule of law, a reasonable and fair balance must be maintained
between public interest and individual rights. Within this framework, it
becomes a constitutional requirement to strengthen effective judicial review
mechanisms for CEI decisions, to provide differentiated and proportionate
limitations depending on the circumstances of the creditors, and to establish
safeguards that protect the property and freedom to seek legal remedies of bona
fide third-party creditors in particular.
Please note that this article, originally written in Turkish, has been translated with the support of AI-based tools and then reviewed and edited by human editors.
Alperen Furkan Balat, Legal Intern
References:
1. Erdem Bora, “Türkiye’de
Yeni Medya Düzeninin Oluşumunda Tasarruf Mevduatı Sigorta Fonu’nun Rolü” (The
Role of the Savings Deposit Insurance Fund in the Formation of the New Media
Regime in Türkiye), Journal of Human and Human Sciences, Culture, Art, and
Thought, Year: 2025, Volume:2, Issue: 6
2. Individual
Application Decision, dated 01/06/2016 and numbered 2013/865, of the
Constitutional Court
3. Individual Application
Decision, dated 29/11/2023 and numbered 2016/9303, of the Constitutional Court
