The Constitutional Court has ruled that certain provisions of Law No. 7262 on the Prevention of Financing the Proliferation of Weapons of Mass Destruction are unconstitutional and must be annulled.[1] This law was purportedly enacted following Turkey's placement on the gray list by the Financial Action Task Force (FATF) in an effort to comply with FATF recommendations and be removed from the list. However, the law did not include provisions aimed at preventing corruption and money laundering. Instead, it introduced a series of regulations that tightened controls on associations and imposed harsher sanctions, seemingly treating non-governmental organizations as if they were involved in financing terrorism.In the annulment lawsuit filed by CHP deputies against this Law, which amended many laws, numerous provisions were claimed to be unconstitutional, and their annulment was demanded. The Constitutional Court decided to annul some of these provisions. Initially, the Court annulled the amendment to Law No. 7262, which stipulated that individuals, institutions, and organizations requested by the Audit and Cooperation Commission to provide information and documents cannot refuse to do so based on provisions in other laws. The Court found this provision lacking in assurances regarding the collection, processing, storage, and sharing of personal data, deeming it contrary to Articles 13 and 20 of the Constitution. However, the Court did not find unconstitutional the provision within the same article, which empowers the President of the Republic to determine the individuals, organizations, and means of maritime transportation to be added to the list prepared by the United Nations Security Council on the financing of terrorism. Notably, this provision does not include any principles or rules regarding this determination.Secondly, several provisions amending Law No. 2860 on Aid Collection were annulled by the Constitutional Court. Among these, the provision stating that the criminal judgeship of peace must issue an access-blocking decision on unauthorized fundraisers on the internet within 24 hours was deemed contrary to Articles 13 and 26 of the Constitution. Additionally, the Court invalidated the provision specifying that the principles and rules regarding domestic and foreign aid should be regulated by a regulation, as it was found to be contrary to Article 7 of the Constitution. Furthermore, the provision mandating that all types of information and documents be requested by supervisory bodies during the monitoring of aid collection activities was deemed contrary to Articles 13 and 20 of the Constitution and was consequently annulled. Lastly, the provision specifying the confiscation of goods and money collected without authorization and the transfer of their ownership to the public was annulled on the grounds that it violates the principle of proportionality. This is because the provision dictates that the property of goods and money collected without authorization be transferred to the public instead of being returned to the donors.Thirdly, certain amendments to Law No. 5253 on Associations were annulled by the Constitutional Court. In this regard, the Court invalidated the provision authorizing the Ministry of Interior and local administrative authorities to issue instructions to other ministries and institutions. This decision was based on the absence of hierarchy among ministries, which was deemed contrary to Article 123 of the Constitution. Additionally, the provision stipulates that individuals serving in an organ of the association other than the general assembly or relevant personnel could be suspended from duty by the Minister of Interior as a temporary measure in the event that prosecution is initiated against them for certain crimes within the scope of their association activities was annulled. The Court found this provision disproportionate.The Constitutional Court stated that the measure caused a disproportionate restriction on the freedom of association for several reasons. Firstly, the duration of the measure was unclear. Secondly, it stipulated that if a prosecution was initiated against a person in charge of the association's organs, the organ itself could also be suspended from office. Lastly, it did not allow for a re-evaluation according to the outcome of the criminal case. Similarly, the Court annulled the provision regarding the appointment of a trustee by a court decision in case of the suspension of individuals who are subject to criminal proceedings, deeming it contrary to the freedom of association.Additionally, the Court invalidated the provision allowing associations to be fined up to 50 million Turkish Liras in the event of prosecution for crimes committed in favor of legal entities. This was found to be contrary to the presumption of innocence. However, the Court did not find the provision requiring associations to undergo annual audits unconstitutional, despite it being perceived as a significant tool of pressure on opposition associations.Finally, the Constitutional Court annulled the amendment to Law No. 5549 on the Prevention of Laundering Proceeds of Crime, which obligated lawyers to share professional secrets and information obtained during their practice, including the notification of suspicious transactions, with the administration. The Court found this amendment to violate the confidentiality between lawyers and their clients and to impose a disproportionate burden on lawyers, contrary to Articles 13 and 20 of the Constitution.Despite the annulment of certain provisions that exerted pressure on civil society organizations, associations continue to face pressure through the requirement for annual audits.<a href="#_ftnref1" name="_ftn1" target="_blank" title="" fr-original-style="" style="color: rgb(9, 9, 9); text-decoration: none; background-color: transparent; outline: none; cursor: pointer; transition: color 0.3s ease 0s; touch-action: manipulation; user-select: auto; box-sizing: border-box;"></a>

The Freedom Observer

Despite the annulment of certain provisions that exerted pressure on civil society organizations, associations continue to face pressure through the requirement for annual audits.

Civil Society decision of the Constitutional Court

On November 7, 2023, Omnibus Law No. 7471 introduced noteworthy amendments to Law No. 6306, also known as the Urban Transformation Law, as well as to various other laws and decrees with the force of law. These amendments raise concerns that urban transformation may transform into a mechanism for generating rent and enable arbitrary interference with private property rights.This law, first and foremost, modified the definition of a "reserve construction area" in Law No. 6306 by removing the phrase "as a new settlement area," allowing for the designation of existing settlements as reserve construction areas. Consequently, prime real estate locations within cities have been labeled as reserve construction areas, creating a pathway for the expropriation of privately owned residences and businesses, even in the absence of earthquake risk. A reserve construction area pertains to regions earmarked for use in applications under the law, precisely urban transformation initiatives. These areas can be designated for residential and commercial purposes and opened up for construction.However, the law does not specify which areas will be designated as reserve construction areas or outline the criteria for such designations. Areas can be designated as reserve construction areas by the Urban Transformation Presidency based on requests from TOKİ, municipalities, special provincial administrations, or through ex officio determinations.It is evident that this regulation, which grants the administration the authority to designate any location as a reserve construction area for urban transformation without established criteria, poses a threat to private property rights. The absence of specific criteria in the law also undermines the effectiveness of judicial review in lawsuits filed against the declaration of reserve construction areas. This wide-ranging discretionary power granted to the administration has also limited the scope of judicial oversight. Concerns are further justified by the observation that urban transformation efforts have predominantly been implemented in high-rent areas rather than in regions with the highest earthquake risk or the most structurally vulnerable buildings.Additionally, the law specifies that undesignated areas located within the urban transformation implementation zone, or areas designated for use by the Urban Transformation Presidency, can be transferred to the Presidency after being registered under the treasury's name. Alternatively, they may be transferred to TOKİ and the Administration without charge upon the Presidency's request. This opens the door for publicly owned areas, mainly military properties in high-rent areas, to be converted into revenue sources under the pretext of urban transformation. Unfortunately, the law lacks both objective criteria and institutional safeguards to ensure that each of these transactions is conducted in alignment with the public interest and in a manner that guarantees societal benefit. As in numerous other domains, the administration has been endowed with extensive discretionary authority.To enable both real and legal entities to request the conversion of areas under their ownership into reserve construction areas, the law stipulates that they must consent to the transfer of ownership of thirty percent of the square meters of the land area intended for constructing the immovable in question. Alternatively, they may offer an equivalent amount to the Presidency to be allocated as revenue for special accounts dedicated to transformation projects. It is apparent that the requirement to allocate thirty percent of the land area for construction to the administration represents a substantial portion, which may deter the designation of privately owned areas as reserve construction areas. A more reasonable ratio might serve as an incentive for individuals to participate.Additionally, the law specifies that in cases where the identification of risky buildings is obstructed, the determination can be made ex officio. This involves the opening of closed doors/areas by an adequate number of law enforcement officers, authorized by written permission from the local administration chief. It is evident that such interventions represent infringements on property rights and the sanctity of residences. Nevertheless, it is challenging to assert that the regulations in the law fulfill the requirement that rules granting the authority to infringe upon fundamental rights must be foreseeable and incorporate safeguards to prevent arbitrary actions. Consequently, the law poses significant threats to property rights.

Nevertheless, it is challenging to assert that the regulations in the law fulfill the requirement that rules granting the authority to infringe upon fundamental rights must be foreseeable and incorporate safeguards to prevent arbitrary actions. Consequently, the law poses significant threats to property rights.

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