ERDEM-NEWSLETTER-2018-metin

305 ENFORCEMENT AND BANKRUPTCY LAW The Constitutional Court has stated that the right to property is a right that allows a person to use his property, to benefit from its prod- ucts, and to dispose of the property, provided that there is no harm to others, and complies with the limitations set forth under the law. In this context, it states that limiting the owner’s right to use his/her property, to benefit from its products, to dispose of it, and to deprive the owner of its property, constitutes an interference with the rights concerning property. However, it states that the relevant Article does not regulate the rights with respect to property as an unlimited right, and that this right could be restricted for the purpose of public interest and in law, in accordance with Article 13 of the Constitution. In Article 13 of the Constitution, it states that fundamental rights and freedoms may be restricted only by law and must be in conformity with the reasons mentioned in the relevant Articles of the Constitution. Therefore, in accordance with Article 13 of the Constitution, the rights concerning property may be restricted only by law and must be in conformity with the reasons mentioned in the Constitution, provided that these restric- tions are not contrary to the requirements of the democratic order of society and the principle of proportionality. According to Article 36 of the Constitution, which regulates the freedom of expression and the right to a fair trial, every person has the right to litigation, either as plaintiff or defendant, as well as the right to a fair trial before the courts through legitimate means and procedures. In this respect, the Constitutional Court states that the provisions restricting the right to claim and defense, which are the two basic elements of the freedom to claim rights, and that would prevent the exercise of these rights and fair trial, would constitute a violation of Article 36 of the Constitution. The Constitutional Court reviews Article 278 of the EBL, and states that the rule, which causes transactions that are made by the debtor when his/her power of disposition as to the assets has not been legally restricted (as in the present case - a sale transaction between the debtor and his/her brother – and would bear responsibility in property or in cash), and has the obligation to allow the compulsory execution transactions for a third party who makes the transactions, constitutes an interference in the rights concerning property. In addition, as stated by the Constitutional Court, the interfer- ence in the right to property must be directed towards the purpose of