1- INTRODUCTION
The appointment
of a trustee to administer a company is a special protective measure, as set
out under Article 133 of the Code of Criminal Procedure. This measure is
available only in relation to the offences exhaustively listed under the Code
and may be imposed only where the statutory requirements are satisfied. [1]
Although the
primary purpose of appointing a trustee to administer a company is to establish
the substantive truth, the measure also serves to monitor the company's
operations, obtain information regarding its activities, prevent the company
from losing value as a result of the criminal investigation, and protect the
interests of its employees.
Accordingly,
during the implementation of the measure involving the appointment of a trustee
to administer a company, due regard must be given to the principle of
proportionality, and it must be borne in mind that this measure is merely a
special protective measure. This is of particular importance in preventing
damages that may be difficult to remedy at a later stage.
Pursuant to
Article 7 of Law Nr. 7539 on Amendments to Certain Laws and the first paragraph
of Provisional Article 2 of Law Nr. 7145 on Amendments to Certain Laws and
Decree-Laws, where the appointment of a trustee to companies under Article 133
of the Code of Criminal Procedure or to assets under the tenth paragraph of
Article 128 of the Code of Criminal Procedure is ordered, the Savings Deposit
Insurance Fund (SDIF) may be appointed as trustee.
This article
examines, with respect to companies for which the SDIF has been appointed as a
trustee for management purposes, the requirements that decisions taken by the
SDIF regarding the sale of company assets must satisfy, the legal remedies
available against such decisions and the competent judicial forum for resolving
disputes arising therefrom, as well as the persons entitled to pursue such
remedies.
2- REQUIREMENTS
FOR THE SDIF TO ADOPT A DECISION ON THE SALE OF COMPANY ASSETS
Pursuant to
Article 133 of the Code of Criminal Procedure, the SDIF has extensive powers
over companies to which it has been appointed as trustee. One of its most
significant powers is to “decide on the partial or complete sale of the
company, its assets, or property values, or on its dissolution and
liquidation.”
Given the
significance of this authority, it is important to clearly define the limits of
such power.
First, Article
7 of Law Nr. 7539 on Amendments to Certain Laws and the first paragraph of
Provisional Article 2 of Law Nr. 7145 on Amendments to Certain Laws and
Decree-Laws provide that the companies for which the SDIF has been appointed as
trustee shall be managed in accordance with commercial practices and with the
diligence expected of a prudent merchant.
Accordingly,
where the SDIF intends to sell a company or any assets belonging to a company,
or to initiate its liquidation, certain conditions must be satisfied. Since a
decision to be taken by the SDIF may lead to irreversible consequences, the
scope and limits of these conditions must also be clearly defined and
foreseeable.
The first
paragraph of Provisional Article 2 of Law Nr. 7145 on Amendments to Certain
Laws and Decree-Laws provides that, in order for the SDIF to adopt a sale
decision, the “financial condition,” “shareholding structure,” “market
conditions,” or “other problems” of the companies or assets must necessitate such
a sale.
However, as is
evident from the wording of the provision, the phrase “other problems” leaves
room for a highly broad interpretation, and it is clear that this phrase makes
the judicial review of sale decisions issued by the SDIF more difficult.
Therefore, judicial decisions rendered on this matter become particularly
significant and serve as guidance.
In this regard,
the 10th Administrative Litigation Chamber of the Regional
Administrative Court of Istanbul, in its decision dated 24.05.2022, and bearing
the Basis number 2022/1263 and the Decision number 2022/1109, concerning the
establishment of an economic and commercial integrity for which the same
requirements as those applicable to a sale transaction are sought, made the
following statement:
“… It is clear from
the above-mentioned statutory provisions that, where the Savings Deposit
Insurance Fund determines that the existing situation is not sustainable due to
the financial condition, shareholding structure, other problems, or market
conditions of the companies or personal assets for which the SDIF has been
appointed as trustee, the SDIF may decide on the sale of the company or assets,
or on their dissolution and liquidation.
Under this present dispute,
since it is understood that the contested decision was issued without
determining that the integrity formed by consolidating all of the plaintiff’s
assets, rights, and receivables was not sustainable due to its financial
condition, shareholding structure, other problems, or market conditions, and
without obtaining any financial status report, and since the conditions
stipulated under Article 19(3) of Law Nr. 6758, which provides that “where the
SDIF determines that the existing situation is not sustainable due to the
financial condition, shareholding structure, other problems, or market
conditions of companies...”, were not satisfied, the decision of the
Board of the Fund concerning the establishment of an economic and commercial
integrity and the sale thereof, as well as the judgment dismissing the action,
were found to be unlawful.”
As can be seen, a
financial status report must be obtained before the SDIF adopts a decision, and
the relevant action must be taken accordingly.
Before the SDIF
adopts a sale decision, it must examine whether there are any disputes among
shareholders, managerial deadlocks, or other corporate issues that may prevent
the continuation of the company’s activities; whether the company has a sound
financial structure; whether the company faces any financial bottlenecks,
payment difficulties, capital inadequacy, or insolvency that may affect its
ability to continue operations; and whether there is any market contraction,
collapse in demand, inability to maintain production, or extraordinary crisis
threatening the economic viability of the sector in which the company operates.
Otherwise, the
decision to be adopted by the SDIF will be unlawful and may result in
violations of rights.
3- LEGAL
REMEDIES AGAINST SDIF’S SALE DECISIONS AND THE COMPETENT JUDICIAL FORUM
As discussed
above, the SDIF, which is appointed as a trustee for management purposes to
companies under Article 133 of the Code of Criminal Procedure, must act and
make decisions in accordance with commercial practices and with the diligence
expected of a prudent merchant. From this perspective, at first glance, it may
be considered that actions against sale decisions adopted by the SDIF in its
capacity as a trustee for management purposes should be brought before the
civil courts, given that the provisions of the Turkish Commercial Code and the
Turkish Civil Code may apply in the performance of the trusteeship function.
However, as is
well known, the SDIF is an institution established by law and vested with
public legal personality. Accordingly, the acts and decisions carried out by
the SDIF are, in principle, administrative acts adopted through the exercise of
public authority. The obligation of the SDIF to observe commercial practices in
its operations does not, by itself, suffice to deprive such acts of their
administrative nature.
In practice,
due to the emergence of numerous disputes concerning the competent judicial
forum for sale transactions carried out by the SDIF, the matter was brought
before the Court of Jurisdictional Disputes. Under its decision dated 03.02.2025,
and bearing the Basis number 2025/10 and the Decision number 2025/138, the
Court of Jurisdictional Disputes concluded that such disputes must be resolved
before the administrative courts:
“… Accordingly,
considering that the decision subject to the present action, concerning the
sale of assets allocated to the Gürmed Medical and Technological Systems
Commercial and Economic Integrity and the Garnet Medical and Technological
Systems Commercial and Economic Integrity, was of an administrative nature, it
was concluded that the action seeking the annulment of the decision adopted by
the SDIF through the exercise of administrative authority for the sale of the
economic integrity at a determined value of TRY 46,700,000 on 24/07/2024 falls
within the jurisdiction of the administrative judiciary. The decision
was issued by the SDIF Board, which, pursuant to Article 111 of Law Nr. 5411,
has public legal personality and administrative and financial autonomy, and
which exercised public authority through a unilateral declaration of will in
performing the duties conferred upon it under Articles 19 and 20 of Law Nr.
6758.” [2]
Consistent with
this decision of the Court of Jurisdictional Disputes, the third paragraph of
Provisional Article 2 of Law Nr. 7145 on Amendments to Certain Laws and
Decree-Laws provides that “actions brought against the decisions and acts of
the Savings Deposit Insurance Fund within the scope of its trusteeship duties
shall be heard by the administrative courts situated in the jurisdiction where
the headquarters of the Savings Deposit Insurance Fund is situated.”
4- PERSONS
ENTITLED TO BRING ACTIONS AGAINST ADMINISTRATIVE ACTS ADOPTED BY THE SDIF
Article 2 of
the Code of Administrative Procedure defines an action for annulment as an
action brought by persons whose interests have been violated for the annulment
of administrative acts.
Considering the
fundamental principles governing administrative law and the distinctive
characteristics of this field, the concept of “interest” should not be
understood merely as a benefit or advantage. In actions for annulment, when
assessing whether a person has capacity to bring an action, the concept of
“interest” should be interpreted as a serious and reasonable connection or
concern.
In particular, considering that, in administrative acts adopted by the
SDIF in its capacity as a trustee for management purposes, the authority
deciding on the sale transaction is also the authority determining the
management of the company subject to the administrative act, it is evident that
the company itself will not bring an action against the sale decision adopted
by the SDIF.
It is evident that limiting the assessment solely to whether the company
has capacity to bring an action would result in the sale decision adopted by
the SDIF being exempt from judicial review.
Accordingly,
the Council of State also recognizes that the shareholders of a company have a
current interest in bringing an action for annulment against administrative
acts adopted by the SDIF. In this regard, the decision, dated 26.03.2025, and
bearing the Basis number 2025/4296 and the Decision number 2025/3670, of the 5th
Chamber of the Council of State reads as follows:
“Since actions for annulment aim to determine whether administrative acts
comply with the law, ensure the supremacy of law, thereby establish the
administration’s adherence to the law, and ultimately realize the principle of
the rule of law, the relationship of interest in such actions must be
interpreted in accordance with these purposes. The violation of interest
required for capacity in administrative proceedings refers to even a minimum
degree of connection or concern that may be established between the plaintiff and
the administrative act challenged. In judicial decisions, the requirement of an
infringement of interest has been defined as the establishment of a legitimate,
personal, and current interest relationship between the plaintiff and the
administrative act. A legitimate interest means that the person bringing an
action for annulment seeks to benefit from legal protection. A current interest
refers to an actual and existing connection or concern at the time the action
is brought. The requirement of personal interest, which is a condition for an
infringement of interest to be sufficient for bringing an action, does not mean
that the administrative act must be directly addressed to that person; rather,
it is sufficient that the act affects that person, even indirectly. The
existence and scope of such an interest relationship are determined by the
competent court in each individual case, taking into account the nature of the
dispute.
Upon examination of the case file, it is understood that the Private ... Hospital, operating under Özel ... Sağlık
Hizmetleri A.Ş., in which the plaintiff holds a 7% shareholding, was closed by
being included by name in the list annexed to Decree-Law Nr. 667 on the grounds
of its affiliation and connection with the FETÖ/PDY terrorist organization. It
is further understood that, following the rejection of the application filed
against the closure decision by the Commission for Examination of State of Emergency
Procedures through its decision dated ... and numbered ..., the present action
was brought, and the case is under appellate review for the annulment of the
said decision.
In this present case, it is evident that the plaintiff
has the right to bring before the court the issue of reviewing the lawfulness
of the contested act, as the plaintiff’s personal, current, and legitimate
interest was affected by the act rejecting the application submitted to the
Commission for Examination of State of Emergency Procedures following the
closure of Private ... Hospital, which operated under Özel ... Sağlık
Hizmetleri A.S., in which the plaintiff held a 7% shareholding and partnership
interest at the time of its closure, the company’s ex officio removal from the
Turkish Trade Registry Gazette, and the transfer of its assets to the Treasury. Accordingly, since the action should have been adjudicated on the
merits, the decision of the Regional Administrative Court, which is subject to
appeal and dismissed the appellate application against the Administrative
Court’s decision rejecting the action on the grounds of lack of capacity, is
not legally sound.” [3]
Decision, bearing the Basis number 2019/3075, the Decision number 2023/9604
and dated 20.06.2023, of the 5th Chamber of the Council of State
reads as follows:
“… Accordingly, although the legal personality of the company had been
terminated as of the date on which the action was filed, it is apparent that the plaintiff, who was a
shareholder and authorized representative of the company, had a legitimate,
personal, and current interest in seeking the annulment of the administrative
act at issue. Therefore, the decision
should have been rendered following an examination of the merits of the case.
The decision of the Regional Administrative Court, which is the subject of the
appeal and which dismissed the action on the ground of lack of capacity, is not
legally justified.” [4]
As can be seen,
the shareholder and authorized representative of a company that is the subject
of an administrative act issued by the SDIF has a legal interest in bringing an
action against such administrative act.
V- CONCLUSION
Although the
SDIF, appointed as trustee to companies within the scope of Article 133 of the
Code of Criminal Procedure, has considerably broad powers, the limits of such
authority are prescribed by law. However, as noted above, the Provisional
Article 2 of the Law Nr. 7145 on Amendments to Certain Laws and Decree-Laws
contains ambiguous and open-ended expressions concerning the requirements for
issuing a decision to sell. This situation renders the availability of legal
remedies against sale decisions issued by the SDIF even more significant. Pursuant
to Provisional Article 2 of Law Nr. 7145 on Amendments to Certain Laws and
Decree-Laws, annulment actions may be brought before the administrative courts situated
in the jurisdiction where the headquarters of the Savings Deposit Insurance
Fund is based against decisions issued by the SDIF. In terms of bringing an
annulment action, the shareholder and authorized representative of the company
also have a legal interest.
Att. Gülşah
Işık
References:
1. Cumhur Şahin-
Neslihan Göktürk, Ceza Muhakemesi Hukuku (Law of Criminal Procedure),
(Ankara: Seçkin Publishing House, 2022), p. 363.
2. https://kararlar.uyusmazlik.gov.tr/
3. https://www.lexpera.com.tr/- Decision, dated
26.03.2025 and bearing the Basis number 2025/4296 and the Decision number 2025/3670,
of the 5th Chamber of the Council of State
4. https://www.lexpera.com.tr/- Decision, dated
20.06.2023 and bearing the Basis number 2019/3075 and the Decision number 2023/9604,
of the 5th Chamber of the Council of State
