The Constitutional Court Annulled Certain Provisions in the Regulation Regarding the Electronic Sale of Seized Goods Under the Execution and Bankruptcy Law No. 2004, Deeming Them Unconstitutional

The Constitutional Court’s (the “Court”) decision dated 25 December 2024, numbered 2022/6 E., 2024/2225 K. (the “Decision”) was published in the Official Gazette dated 24 March 2025 and numbered 32851. The Court annulled the provisions added to paragraphs 7, 8, and 9 of Article 111/b of the Execution and Bankruptcy Law No. 2004, which sets out the procedures and principles for the electronic auction of seized goods as unconstitutional, with these provisions having been introduced through Article 13 of the Law No. 7343 on Amendments to the Execution and Bankruptcy Law No. 2004 and Certain Other Laws, dated 24 November 2021.

The Court’s recent annulment rulings will significantly impact the process of the electronic auction of seized goods through public auctions, with key changes explained below.

1. Removal of the Authority to Block Access to the Auction Portal

Article 111/b, paragraph 7, stipulated the authority to block access to websites that are deemed to harm the rights and interests of auction participants to ensure the security of the system for the electronic auction sale of seized goods. The regulation referenced Article 8/A of Law No. 5651, which allowed the administration to quickly block access to specific online content in cases where delay is undue. The Court concluded that the rule allowing the removal of content from websites or the blocking of access to such websites, which harm the rights and interests of auction buyers, constitutes a restriction on freedom of expression. With that being said, it annulled the regulation on the grounds that it lacked legal predictability and granted excessive discretionary power to the administration, thereby allowing arbitrariness. The Court annulled this provision on the grounds that it restricted freedom of expression, lacked legal predictability, and granted excessive discretionary powers to the administration. As a result, the administration no longer has the authority to intervene directly without a judicial decision, in accordance with the principle of legality.

2. Removal of the Ministry of Justice’s Access Restriction Authority

The first sentence of paragraph 8 of Article 111/b authorised the Ministry of Justice to block access to the electronic auction platform for individuals engaged in specific actions for a period of three months. The Court ruled that the authority granted to the Ministry of Justice to participate in auctions for the sale of seized goods and to grant rights through contracts violated the freedom to enter into legal relations through contracts, and consequently annulled the relevant provision.. Additionally, under the fifth sentence of the same paragraph, the restriction on the individual’s right to apply to the criminal peace court within the legal timeframe, or the restriction of the right to apply and the removal of the access block only after the completion of the auctions, effectively eliminated the possibility of requesting the annulment of the auction. The Court held that this situation imposed an unbearable burden on individuals whose access to the Portal was blocked by the Ministry, and found it to be in violation of the principle of proportionality, thereby annulling this sentence as well.. As a result, the Ministry of Justice will no longer be able to impose direct access restrictions against persons alleged to have interfered with the auction process and only decisions taken by the judicial authorities will be enforceable.

3. Impact of Maintenance Works on the Validity of Auctions in the IT System

The second sentence of paragraph 9 of Article 111/b stipulated that maintenance or improvement work on the IT system during the bidding period would not affect the validity of the auction. This was intended to prevent possible disruptions caused by system maintenance or updates from leading to the cancellation of the auction process. The Court ruled that the regulation, which prevented judicial authorities from examining claims regarding the violation of contractual specificity due to maintenance and improvement operations of the information system during the bidding period, violated the freedoms of access to justice and contractual liberty, and therefore declared it unconstitutional.As a result, participants unable to submit bids due to technical problems will now be able to request the cancellation of the auction.

The Decision will enter into force after nine months upon its publication in the Official Gazette.

The full text of the Decision can be accessible via this link. (Only available in Turkish)