Abstract:

Collection of public claims timely and absolutely is of great importance as for the financing of public services. In fact, in the collection of public claims law, for the purposes of the collection of these claims which bear an indispensable role for the proper execution of public services, many “privileges” are attained to the administration; in this context, various measures are included to ensure public claims in the Procedure of Collection of Public Claims Code numbered 6183. Institution of “precautionary seizure”, which constitute the subject matter of our article is among the aforementioned assurance measures too. “Precautionary seizure”, that can be defined as, in advance and temporarily attaching public debtor’s certain goods, assets and rights, with an administrative decision due to the reasons stated in the code in order to ensure the collection of public claims; deserves to be questioned in terms of the legal regime of restriction of fundamental rights and freedoms, provided in the Constitution, since it is distinct from the “precautionary seizure” issued in the Execution and Bankruptcy Code numbered 2004, as it is performed with an administrative decision, resulting in limiting the public debtor’s right to property with an “administrative decision”. On the other hand, in terms of execution of the judicial decisions given in the administrative cases against the act of precautionary seizure, the fact that the last sentence of the first paragraph of article 28 of the Procedure of Administrative Justice Code numbered 2577, makes the preservation of the affect of precautionary seizure, that is established with the unilateral will of administration possible and even necessary, despite the decision of annulment given by the administrative court, by stating that “(…) regarding decisions given in the cases concerning the implementation of precautionary seizure, the act shall be implemented by the administration after the judgment becomes final.”; needs to be examined in terms of the article 138 of the Constitution providing the rule for the “immediate” execution of judicial decisions together with the article 6 of the European Convention on Human Rights issuing the “right to a fair trial” in particular and also other relevant provisions of the Constitution and the European Convention on Human Rights from various perspectives. Here, this article evaluates the position of two issues namely the institution of “precautionary seizure” itself which is one of the assurance measures for the ensurance of public claims in the collection of public claims law on the one hand and the regime of execution of the decisions given by the administrative courts in the cases against precautionary seizure on the other hand, within the framework of the provisions of the Constitution and the European Convention on Human Rights; by questioning whether the relevant provisions of the Procedure of Collection of Public Claims Code numbered 6183 and the Procedure of Administrative Justice Code numbered 2577 emerge an overlooked problem of Unconstitutionality for years

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