ABSTRACT
Public goods that belong to a municipality are non-seizable. Constitutionally, there are some regulations municipality’s some private assets that cannot sequestrate except the goods that assigned to satisfy local and collective needs and public services that are discharged by municipalities that have public legal personality . This study discusses the issue of sequestrating a municipality’s goods due to that municipality’s debt. Because with the decision of Constitutional Court 2014/194 E. and 2015/55 K. numbered and 17.06.2015 dated, regulation of non-seizability in Municipality Code was rescinded, there are some discrepancies caused by different interpretations. This study also aims at eliminating these discrepancies. According to this, after presenting non-seizable goods of the municipality because of that special regulation, principles, and procedures that will be applied assets and incomes, which can be seizable.
I. INTRODUCTION
According to Article 82 of the Bankruptcy and Enforcement Law no.2004 (“The Law No. 2004”), property and government property, which is non-seizable according to particular laws, cannot be sequestrated1. This norm still causes some discrepancies in practice. In particular of debate is which state goods are considered government property and whether the assets of other public institutions are included or not2. Considering that the provision in question was brought before the Constitutional Court with the unconstitutional allegations, the Supreme Court of Appeal, considering that it is a requirement of the state of law and that the sequestration is an immediate execution against the state. Constitutional Court denied the cancellation request by stating that it would not be appropriate to use it3.
The uninterrupted provision of public service comes under the principle of continuity of public service. The administration of a public service has responsibility under the law of continuity of public service4. Therefore, every administration which has a public service obligation must take the necessary measures to ensure continuity of service. According to this, by force of the principle of continuity of public service, non-seizability of public goods and moreover, the principles brought by the budget shall not be subjected to non-predictive violations as a result of forced execution to provide the service without interruption5. With the in another expression, sequestration of government property changes these goods’ form of allocation, it will damage public interest by disrupting continuity in state property (patrimuan) and commercial law6. In the scope of Law No. 2004 states that with the decision in question, only whether public goods or private goods that belong to “state legal entity” cannot be sequestrated.
According to Article 127 of the Constitution, municipalities, which are local administrations, are a separate legal public entity that provide public service within the framework of the duties assigned to them under the Municipality Law No. 5393 (“The Law No. 5393”) and other legislative provisions. Municipalities are public administrations created by decision-makers established to meet the local and collective needs of inhabitants and have administrative and financial autonomy. Therefore they have an independent legal personality separate from the legal personality of the state and do fall within the scope of regulations for the state. Despite this, Law No 5393 creates some provisions about non-seizability with attributing the rule of “cannot be sequestrated in special laws” that regulated under Article 82 of the Law No. 2004 and included the regulation of municipalities that some of its public and private property cannot be sequestrated.
This study first provides a general explanation of the principle of non-seizability of public goods and which municipality assessts are covered by non-seizability protection. Following this, the sequestration of goods procedure is evaluated together with the partial annulment decision given by the Constitutional Court.
II. SEQUESTRATION OF MUNICIPAL PROPERTY
A. The Principle of Non-Seizability of Public Goods
In the doctrine, public goods are defined as properties that are continuously used for the general purpose, usage, and benefit of society7. As these goods are directly associated with public service, they amount to most of the goods owned by an administration and used by the community either directly or as public services8. However, an administration’s goods are not limited to public goods, which are subject to public law. Administrations generally also have private goods. The goods owned by municipalities, which are a public legal entity, are subject to the distinction between “public good” and “private good” are characterized as public goods. A municipality’s public goods are protected within the framework of the principle of non-seizability of public goods. Despite this, legal regulation is required for a municipality to benefit from this principle of private goods if they are not directly allocated to public service.
Law No. 5393 Article 15 Subclause 9 expressly states when public or private goods cannot be sequestrated. According to this, public goods that are used by the municipality in the course of providing public service cannot be sequestrated. Goods that come under the public service of a municipality are, for example, municipal offices, libraries, university buildings, amphitheaters, laboratories, stadiums, museums, parking areas, irrigation channels, hippodromes, health centers, lodgings, police stations. These cannot be sequestrated because thye are goods in use. In addition, goods allocated for use in part or wholly by the public such as roads, squares, marketplaces, parks, fairgrounds, and pastures are also non-seizable9. The critical point in relation to the sequestration of goods is the presence of actual allocation. According to this, even if the administration has not allocated the related goods by administrative procedure, these goods should not be used in public service. Otherwise, also the goods in question cannot be sequestrated thereunder The Law No.5393 Article 15.
It should also be pointed out that under this regulation, any goods allocated to the public service directly by the municipality do not need to be in use. In addition, although a municipality's goods may not be in use by the municipality, if these goods are allocated to public service by a private legal person serving public service, these goods may not be sequestrated as they have been allocated.
B. Municipal Goods that Are NonSeizable
According to Law No.5393 Article 15 Subclause 9, “Any municipality income from project borrowing, conditional donations, and goods used in public services, and any taxes, duties, and fees collected by the municipality cannot be sequestrated.” In addition to this provision, under Law No.5393 Article 73, real estate transferred to a municipal by agreement cannot be sequestrated in areas declared subject to urban development and transformation. The following is an analysis of the regulations that expressly include the principle of non-seizability.
1. Revenues from Project Borrowing,
The first sentence of the last paragraph of Article 15 of Law No. 5393, reads “The revenues of the municipality through borrowing in return for the project … cannot be sequestrated.” According to this provision regarding municipalities’ provision of public service, income from projects such as bridge construction, subway construction, and construction of treatment facilities from both domestic and foreign institutions and foundations or international institution borrowings (except grants) should not be sequestrated. “İller Bankası”10, provincial private office and other public institutes and institutions or from international institutions.
2. Conditional Donations
The inferior goods which cannot be sequestrated under the regulation in question are the conditional donations to municipality11. When the issue of conditional donations that cannot be sequestrated is examined in the light of 285th and subsequent articles of the Law of Obligations No.6098 regarding “donation”, conditional donations to municipalities are all kinds of securities, real estate and monies that are donated for public use, for a specific purpose, given by a public or private legal and real persons for a specific business or practice or covers similar things donated by imposing an absolute obligation on the municipality under a certain condition, for a certain purpose, the condition of non-transferability, unsalability, and indivisibility should be taken as a basis in a conditional donation.
In practice, in any sequestration, if the good that sequestrated by the municipality is claimed to be that is a conditional donation, considering that the municipality is a public institution and all kinds of transactions are carried out in accordance with certain procedures, principles, and records if it is a chattel good, a document (official or private) indicating that it has been donated conditionally and a formal document that this donation has been registered in the municipality records should be submitted; if it is an immovable property, this property has been registered and annotat ed to the title deed that a conditional donation has been made, similary, for other chattels that need to be registered, the same issue must be confirmed by the municipality. For example, if the real person (A) has donated a property that belongs to him, on condition that a protection house for women and children is built to (Y) and if this condition is registered and annotated, it is not possible to sequestration the land in question.
In accordance with the opponent meaning of the regulation, the donations to the municipalites without including any condition can be sequestrated. In our opinion, legislator’s exclusion of “conditional” donations is because the donations made to the municipality express a provision on condition and it is a right decision.
3. Taxes, Duties and Other Revenues
Taxes, duties, and fees collected by the municipality are non-seizable. In this context, in accordance with the first paragraph of Article 7 of the Law No. 5779 on Providing Shares from General Budget Tax Revenues to Municipalities and provincial administrations, the shares to be allocated to the provincial administrations and municipalities and the shares to be given to these administrations by the other laws, is non-seizable as it is accepted under the tax. In this regard, it is possible to come across regulations in other laws regarding the inability to obtain the public receivable. For example, the share of the municipality's participation in the expenditures of roads, sewage and water facilities regulated in Articles 86 and 88 of the Municipal Revenues Law No. 2464 is collected from people who directly benefit from the services provided by the municipality, even though they are not taxed, not paid, under the Law No. 5779. Participation shares must not be sequestrated because they impose a financial obligation in terms of Tax Law12.
On the other hand, the municipalities' money collected in a bank with a single account number can be sequestrated without any separation in terms of taxes, duties, and fees. However, if there are tax, duty and fee revenues that cannot be sequestrated in this account, it should be put forward by the municipalities to prove the claim in this regard, to be shown with sufficient and convincing documents or to be fixed by the court decision to be taken, or to the relevant institu tions; For example, if the correctness of the claim is understood as a result of the correspondence with the banks, the sequestration on the part of the tax, duty and fee income that are non-seizable will be removed, and sequestration process on revenues other than these will continue13.
On the other hand, it is essential to note that the revenues of the municipality that are collected in return for water14, wastewater and service, which are excluded from tax, duties and, fees, and which are required to be collected in accordance with the provisions of private law, can be seized.
4. Real Estates that Transfer to Municipal Property by Agreement in the Regions Declared Urban Development and Transformation Area
Paragraph 7 of Article 73 of Law No. 5393 states that "(r)eal estates that are transferred to the municipal property as a result of the agreement cannot be foreclosed." The works and procedures related to the declaration of the transformation area regarding the applications within the scope of Article 73 of the Municipality Law No. 5393 are also carried out by the Ministry of Environment and Urbanization. According to Article 73 of the Law No. 5393, the municipalities under the Law on Real Estate Owners in Urban Transformation and Development Project Areas and Some Transactions to be Applied to the Buildings and Buildings That are in Conformity with the Zoning and Slum Law No. 2981 dated 24.02.1984 and the Law No. 6785 Real estate owners in the urban change and development project areas are granted rights in the urban transformation and development project area in case of agreement with the beneficiaries. Real estates that are transferred to the municipal property as a result of the transaction cannot be sequestrated. In this context, if the municipalities agree with the people who have rights in the urban transformation and development project areas, the rights of the urban change and development project area and the real estate that have been transferred to the municipal property as a result of the agreement should not be sequestrated. However, since there is no declaration in the land registry encumbrance documents from the related land registry offices, the right or real estate of the municipalities have been sequestrated and appealed by the municipality if the above-mentioned right has been sequestrated and the objection was made by the municipality. In order to determine whether it is within the scope of Article 73, asking the last title of the encumbrance from the related land registry office, with sufficient and convincing documents that the municipalities have been obtained by agreement (the Council of Minister’s decision, Municipal Council, Municipal Council decision, the contract made with the owners before the notary public. etc.) if it is proved or fixed by a court decision, as a result of the necessary research to be carried out before the Ministry of Environment and Urbanization, the sequestrated right or real estate It will be removed if it is determined that the attachment is obtained by the article 73 of Law 5393 through agreement urban transformation and development. It should be noted that if the relevant regulation was not included, the real estates in question would be deemed to be seizable; since it is not possible to directly or indirectly allocate the real estate obtained by the item arrangement to the public service, these goods should be accepted among the special properties of the municipality; it could be assessed in a foreclosable nature. With the regulation of the law, it brought an exception to the goods in question, which, as a rule, did not take advantage of the sequestration principle. By the regulation, it brought an exception to the goods in question, which, as a rule, did not use the principle of sequestration.
5. Municipalities' Income and Revenues under the Law No. 6306 on Transformation of Areas Under Disaster Risk
The immovables in the transformation practices to be carried out under the Law on the Transformation of Areas Under Disaster Risk, numbered 6306 if the real estate sales contract was transferred to the contractor undertaking the construction work under the construction contract, except for the materials and labor receivables belonging to that construction work until the floor easement was established on behalf of the owners. Sequestrations and measures cannot be applied on these immovables due to the contractor's debts to third parties. If the floor easement is not established within six months from the start of the construction work, sequestrations and measures shall be applied for these properties. The movable and immovable assets and all kinds of rights and receivables allocated to the works, transactions, and services specified in the related law shall be deemed to be allocated public benefit, no sequestrations or measures can be applied in any way about these and the guarantees to be taken under this Law.
C. Goods Evaluated As Seizable
As stated above, due to the fact that the money found in the bank accounts of the municipalities that will be exhausted by spending due to the nature of the money and that it will be used for any purpose by changing this decision until the last moment; so it can be used for any purpose, it is possible sequestration of money in the accounts of municipalities, provided that it is not from tax-like items. The Supreme Court of Appeal narrowly interprets paragraph 9 of article 15 of the Law No. 5393 which provides immunity for sequestration to municipal property15.
In this context, in cases where the taxes, duties, fees, and other incomes that can be seized are collected in a “pool” account that cannot be separated from each other in Article 7 of Law No. 5779, which cannot be sequestrated in bank accounts belonging to the municipality, if a warrant of sequestration is written to the bank regarding the said pool account, since it is not possible to determine whether the money in the said account is tax, duty or fee income or seizable income, rejection of the complaint is decided16.
The European Court of Human Rights, on the other hand, ruled that the sequestrations to be applied to municipal accounts due to its debts was not made so that the lien applied to municipal accounts was removed and the applicants' inability to take their receivables were evaluated in terms of the right to a fair trial and the right to property17.
III. PROCEDURE FOR ENFORCEMENT OF THE SEIZABLE GOODS
When it comes to the sequestration stage in the enforcement proceedings to be initiated against the municipality, it is requested to write to the municipality a warrant of sequestration and demand that “to notify the goods of sequestration within ten days.” In this case, if a sufficient amount of seizable goods are reported to the debt within ten days by the municipality, sequestrations will be applied to these goods, and the receivables will be collected by converting them.
According to previous regulation of the related law; “(i) Before the sequestration decision is taken by the enforcement office, the municipality is asked to show sufficient amount of goods to the debt and the sequestration process is applied only on this shown property. If sufficient goods are not declared within ten days, the sequestration process cannot be performed in a way that will exceed the amount of the receivable or disrupt public services.”
Accordingly, since the sequestration is done only on the goods to be shown by the municipality and in practice, this situation caused the municipalities to declare the same goods to the enforcement office for all their debts and, the creditors could not collect their receivables by ordering them on the same goods.
Although to the Law No. 655218 on the Amendment of Certain Laws and Decree Laws and Restructuring of Some Claims Article 121 and Municipality Law No. 5393 to the last paragraph of Article 15; “Before the decision of sequestration is taken by the enforcement office, the municipality is asked to show a sufficient amount of seizable goods to the debt and the sequestration process is applied only on this property shown. If sufficient goods are not declared within ten days, the sequestration process cannot be done in a way that will exceed the amount of the receivable or disrupt the public service.” has been added, the Constitutional Court, with the decision dated 17.06.2015 and numbered 2014/194 Principles and 2015/55, in the first sentence, “and the sequestration process is applied only on this property.” and canceled the "or disrupt public service" statements in the last sentence.
However, the article 123 of the Law No. 6552 and the temporary article 8 which is added to the Law No. 5393 stating that “(t)he provisions of the last paragraph of the article apply to any ongoing enforcement proceedings. According to the execution proceedings made before the effective date of this article, all sequestrations are removed by taking into consideration the provisions of that paragraph.” has been added. Although it is understood that the said regulation was made to prevent the municipalities from limiting their capacity to serve, the provision of the last paragraph of Article 15 of Law No. 5393 was applied in all enforcement proceedings and the sequestration proceedings made against the municipality prior to the effective date of this article. Since the removal of sequestrations may cause people to delay or fail to collect their receivables, it damages the sense of trust in the law and is incompatible with the principle of legal security19. The said provision was canceled by the Constitutional Court, with the decision as mentioned above dated 17.06.2015 and numbered 2014/194 and 2015/55.
By the Constitutional Court's cancellation decision, if the municipality does not declare the goods or the goods that are reported are not able to meet the debt, or there are preliminary sequestrations, the creditor will be able to demand a lien on the other assets of the municipality and their rights and receivables. In this case, the executive discretion about whether the goods in question are seizable belongs to the bailiff.
If the bailiff thinks that the goods are capable of sequestration, the municipality makes a complaint, claiming that their assets are within the rule of sequestration. The objection to being made by the municipality will be considered as an indefinite complaint as it is based on the claim that the bailiff's transaction is contrary to Article 15 or 73 of the Law No. 5393 established to protect the public order. However, the burden of proof is in the municipality, and the court will be investigating its motion (ex officio) and will be able to a conclusion by evaluating the evidence that the municipality does not present or rely on. If the bailiff finds that the goods requested to sequester may not be seized, the creditor will have to file a complaint against the bailiff's decision.
The point of importance, here is the creditor's complaint is subject to duration. Accordingly, a claim must be filed within seven days following the decision of the bailiff. In this context, the creditor burden of proof that there is no obstacle to the sequestration of the goods for which the sequestration is requested in the complaint application to be made to the official and authorized Civil Court of Law belongs to the creditor.
IV. CONCLUSION
Non-seizability is an exceptional principle regarding public goods. It is essential to interpret the legal regulations regarding the private property of the administration, which cannot be sequestrated except for public goods to introduce the non-seizability law. Accordingly, the assets in the bank accounts of the administration cannot be expected to benefit directly from the non-seizability rule. Considering whether the current assets of the administration are allocated or not, it should be possible to make a lien to the assets not assigned to the public service.
In the relevant regulation, if the municipality determined the “seizable property” within the framework of its direct discretion, it was almost impossible for the individuals to collect the foreclosure with the property shown. Because the municipality showed the same assets in terms of all creditors for the collection of debts, the receivables were put in order and, the receivables could not be collected in a long time. With the decision of the Constitutional Court, by keeping a balance between the principle of continuity of public service and the interests of creditors; the individual's receivable right is protected within the scope of the right to property, and following the principle of the continuity of the public service, it becomes compromised with the discretionary right of the bailiff, even if the administration does not show the assets in the bank accounts that are not allocated to the public service. Thus, creditors can reach their receivables in cases where the municipality is in debtor position.
BIBLIOGRAPHY
BAK I KURU / RAMAZAN ARSLAN / EJDER YILMAZ, “İcra ve İflas Hukuku”, 28th Edition, Ankara 2014.
SA IM ÜSTÜNDAĞ, “İcra Hukuku Esasları”, Nesil Publication, Istanbul 2004.
EJDER YILMAZ, “Devlet Malları Hak ve Rüçhanlığına Sahip Malların Haczedilememesi”, Yaşar Karayalçın’a 65. Yaş Armağanı, Ankara 1988.
HASAN NUR I YAŞAR, “İdare Hukuku Genel Esaslar”, Der Publications, Istanbul 2016.
İSMET G I R ITL I / PERTEV B ILGEN / TAYFUN AKGÜNER / KAHRAMAN BERK, “İdare Hukuku”, 4. B., Istanbul 2011.
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MET IN GÜNDAY, “İdare Hukuku”, 10. B., İmaj Publications, Ankara 2011.
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FOOTNOTE
1 Whether the Mayor’s office vehicle should be available for the municipality to carry out the public service, and whether a vehicle allocated as an authority vehicle is actually used in the public service, the municipal vehicle of the debtor municipality, which is the subject of the sequestration complaint, does not have to find the municipal vehicle of the mayor’s office. See Supreme Court of Appeal for decision.
2 Ejder Yılmaz, “Devlet Malları Hak ve Rüçhanlığına Sahip Malların Haczedilememesi”, Yaşar Karayalçın’a 65. Yaş Armağanı, Ankara 1988, by enforcement and bankruptcy law 603. m. 82, I/1 provision It is possible to collect goods that cannot be seized in four categories. These state (public) goods, assets such as government goods, goods that are specified as not to be taken but not belonging to the state, and goods with state property rights and priority.
3 The Constitutional Law, T. 21.10.1992, E. 1992/13, K. 1992/50.
4 Hasan Nuri Yaşar, “Idare Hukuku Genel Esaslar”, Istanbul, Der Publications, 2016, p. 227.
5 Baki Kuru, Ramazan Arslan, Ejder Yılmaz, “Icra ve İflas Hukuku”, Yetkin Publications, 2014, p. 268-269.
Saim Üstündağ, “Icra Hukuku Esasları”, Nesil Matbacılık, Istanbul 2004, p. 190.
6 Talih Uyar, “Icra Hukukunda Haciz”, Bilge Yayınevi, Manisa 2016, p. 396.
7 Gozler defines public goods as goods belonging to public legal entities allocated to public service by direct use of the public or special regulations. Kemal Gözler, “Idare Hukuku Dersleri”, 10. B., Ekin, Bursa, 2019, p. 615. Two conditions, organic and material, are sought in determining public goods. To be considered as a public good, what is meant by the organic condition must belong to a public legal person, that is, the state, local administrations, or public institutions. According to the material condition, the commodity must be allocated to the frequent use and use of the public or a special arrangement for public service.
8 Hamza Eroğlu, “İdare Hukuku Genel Esasları İdari Teşkilat ve İdarenin Denetlenmesi”, Işın Publications, 1984, Ankara, p. 306.; İsmet Giritli / Pertev Bilgen /Tayfun Akgüner / Kahraman Berk, “Idare Hukuku”, 4. P., Der Publications, Istanbul 2011 p. 835.
9 Hakan Hasırcı, “Belediye Mallarının Haczi”, https://dspace. ankara.edu.tr/xmlui/bitstream/handle/123456789/49230/22304.pdf?sequence=1&isAllowed=y, (Access Date: 25.02.2020).
10 A development and investment bank was established under the title of “Iller Bankası Joint Stock Company”, which has been accepted on 26.01.2011 and promulgated, dated 08.02.2011 and numbered 27840, and is subject to the provisions of private law with the status of a jointstock company. The shortened title is “Ilbank”.
11 It is sufficient for the donation to the municipality to be conditional; see whether the donation is conditionally and does not prejudice the quality of the donation. The General Assembly of the Court of Cassation, 20.03.2013, E. 2012 / 12-719, K. 2013/388.
12 The Constutituonal Court, 28.03.2002 T., 2001/5, E. 2002/42, K. Official Gazette: 05.09.2002.
13 The General Assembly of the Court of Cassation, 08.06.2016 E., 2014/1015 K. 2016/767.
14 “In the concrete case, it is in the court’s acceptance that the money in the bank account number 5009 of the debtor municipality, which was placed on sequestration, was drinking water revenues. Drinking water revenues of municipalities are not taxes, duties, fees; therefore, sequestrations are possible.” see, the Supreme Court of Appeal 12. H.D., T. 21.11.2011, E. 2011/6618, K. 2011/27104.
15 The Court of Cassation, 12. H. D. T. 03.02.2014 E.2013/36417 K. 2014/22806.
16 The General Assembly of the Court of Cassation, T. 08.06.2016 E., 2014/1015 K. 2016/767, The Court of Cassation, 8. H.D., T. 09.09.2015 E. 2015/13944 K. 2015/15921.; Yargıtay 12. H.D., T. 17.09.2012 E. 2012/8811 K. 2012/26628.
17 Kanioğlu and the others / Turkey’s Case, Application No: 44766/98, 44771/98 ve 44772/98.
18 The Official Gazette: 11.09.2014 dated and 29116 numbered.
19 Metin Günday, “İdare Hukuku”, 10. B., İmaj Publications, Ankara 2011, p. 39.
