Individual Application

The Facts

The applicant is a shareholder of Goldair Havacılık Turizm Ltd. Şti., Beejet Havacılık Ltd. Şti., and Tkjet Havacılık ve İnşaat A.Ş., and is also a partner in Tarkim Uçak Bakım Onarım ve Havacılık Ltd. Şti. (TARKİM). TARKİM, the founders of which were the applicant and her spouse, İ.F.B, was converted into a joint-stock company on 7 January 2014. At the material time, 99 shares belonged to the applicant’s spouse, while 1 share belonged to the applicant. Shortly before the coup attempt staged by the Fetullahist Terrorist Organisation and/or Parallel State Structure (FETÖ/PDY), on 27 June 2016, the applicant’s spouse transferred all of his shares in the company to the applicant. Consequently, TARKİM became a single shareholder joint-stock company, and the applicant was appointed as the chairperson of the company.

While a criminal investigation was ongoing against the applicant for membership of FETÖ/PDY, the chief public prosecutor requested the appointment of a trustee to TARKİM, in which the applicant was a partner and executive. In the request, it was stated that the company had links with FETÖ/PDY and provided financial support to the organisation, and that inspection board reports and police search records indicated that the hangars and administrative offices located at Atatürk Airport were structured in a manner contrary to airport regulations, allowing uncontrolled movement of persons and goods. In light of these findings, the appointment of a trustee was deemed necessary. Upon this request, pursuant to Article 19 of the Decree Law no. 674 on the Measures Taken under the State of Emergency, and Article 133 of the Code of Criminal Procedure no. 5271, the Savings Deposit Insurance Fund (SDIF) was appointed as trustee to the company.

Within the scope of the same investigation, the 14^th Magistrates’ Judge also ordered the appointment of the SDIF as trustee to Goldair Havacılık Turizm Ltd. Şti., Beejet Havacılık Ltd. Şti., and Tkjet Havacılık ve İnşaat A.Ş. In their reasoning, the judge stated that there was sufficient and strong suspicion that the increase in the suspects’ assets had stemmed from criminal activities and that, benefiting from their alleged organisational membership, they had placed their assets at the disposal of the terrorist organisation.

The applicant’s objections against the trustee appointment decisions were dismissed by the 2^nd Magistrates’ Judge, and her subsequent objection was likewise dismissed by the 3^rd Magistrates’ Judge.

The Applicant’s Allegations

The applicant maintained that the appointment of trustees to the companies in which she was a partner and executive, as well as the prolonged duration of the impugned measure, had breached her right to property. She further claimed that given the structure of the magistrates’ judges ordering and reviewing the trustee appointments, her right to be tried by an independent and impartial tribunal had been violated.

The Court’s Assessment

The fight against crime, particularly organised crime, is an area of exceptional sensitivity and difficulty for the maintenance of the democratic social order. In this sense, determining the necessary measures primarily falls within the discretion of public authorities responsible for maintaining public order. The dynamic nature of terrorism and organised criminal structures necessitates that such measures be tailored to the specific circumstances of each case. Accordingly, public authorities must be afforded a certain margin of appreciation to develop effective, timely and purpose-oriented measures. However, in accordance with the principle of the rule of law, such discretion is neither absolute nor unlimited. Any measure adopted must be proportionate to the legitimate aim pursued, and the interference with fundamental rights and freedoms must remain within reasonable bounds.

In the present case, regard being had to the content of the criminal investigations conducted against the companies of which the applicant was a partner and executive, and against her spouse, who was a former partner of these companies, as well as the reports and findings concerning the companies’ fields of activity and financial structures, it is evident that the appointment of trustees constituted a necessary interference in order to prevent the companies’ assets from being used to finance terrorist organisations and to ensure that a potential future confiscation decision would not be rendered ineffective. The said measure therefore served the public interest, thereby pursuing legitimate aims.

The motive for the aforementioned measure was not general or abstract suspicion, but rather concrete facts, such as the transfer of company shares shortly before the coup attempt, and the evolving dynamics of the investigation. The fact that the applicant’s spouse was abroad, that there was an ongoing certainty regarding the purposes for which uncontrolled routes between the apron and controlled zones were used within TARKİM-managed hangars, and that the investigative efforts in this regard were continuing resulted in the expansion of the scope of the investigation and prolongation of its duration.

Considering the extensive examinations conducted to reveal international money transfers, foreign connections and organisational ties, as well as the complexity of the companies’ financial structures, the prolonged duration of the impugned measure, namely the appointment of trustees, cannot be regarded as arbitrary. On the contrary, the nature of the investigation and the multidimensional character of the relationships that needed to be uncovered resulted in the prolongation of the said period. The reason for the appointment of trustees to the applicant’s companies was not based on a general suspicion, but on concrete facts, as well as the complexity of the criminal investigation having international dimension and involving many individuals. Therefore, the length of the measure per se cannot be considered disproportionate. Furthermore, it has been observed that the said interference had been necessary within the scope of the requirements of the investigation, it had not been arbitrarily extended, and it remained subject to continuous judicial review. The availability of safeguards, such as the possibility of applying for review of the duration of the measure and the opportunity to bring actions against the State in respect of the acts and actions of the trustees, demonstrates that the applicant continued to benefit from effective judicial protection throughout the said period.

In view of the foregoing, taking into account the multifaceted elements involved, including the identification of proceeds of crime and the clarification of organisational links, the Court has concluded that there was no manifest disproportionality or arbitrariness in the duration of the impugned measure.

Consequently, the Court has found no violation of the right to property.