Issues Regarding Assigned Administrator To Companies On State Emergency
Assigned administrator to companies is regulated in article 133 of Criminal Produce Law, and paragraph 1 of hereby article is formed ‘’in case the crime is necessary for the existence of strong suspicion of being committed within the scope of the activity of a company and in order to reveal the material truth; during the investigation and prosecution process, the judge or the court may appoint an administrator in relation to the conduct of the company affairs’’. Why administrator assign’ and ‘the authorization himself’ shall be clearly set on interested decision. As to 13 article of the Statutory Decrees dated 1.09.2016 numbered 674, seized real estate, if required conducting rights and claims, assigned administrator is regulated in the purpose of managing of assets. 19 article which is titled ‘Transfer and transfer of authority of administrator’ of Same Statutory Decrees is regulated that Saving Deposit Insurance Fund will be appointed as an administrator and the sale and liquidation transactions will be fulfilled by the Savings Deposit Insurance Fund.
The Statutory Decrees dated 07.01.2017 numbered 680 is regulated that until the end of the investigation and prosecution, Under the supervision of the SDI, Companies is managed by managers appointed by the Minister to whom the SDIF is associated, in accordance with commercial practices, as prudent merchants. In case of determining of the current situation is not sustainable due to market conditions or other issues, shareholder structure, financial situation of these companies, The minister who the SDIF is associated shall decide that Liquidation and rescission or sale of the assets which is specified in 10. Paragraph of article 128 the code numbered 5271 or company or its assets.
In companies that are appointed as administrators or are transferred to the SDIF, provided that the shareholders of the company have shares in the new shareholding companies by courtesy of The minister who the SDIF is associated and the recommendation of the company managing body Authorizations of administrators has the establishment of a new company. In this case, the company partners will not be allowed to establish a new company and the capital of the company which is established shall be covered in kind or in cash by the company appointed as administrator by SDIF or transferred to the SDIF. Also in the newly established company, The authority of the administrator shall be deemed to have been transferred to the SDIF without the need to any decision of court or judge.
In companies where the SDIF is appointed as an administrator, in order to pay the debts of directly or indirectly shall be primarily applied to assets of entities person or Third person, manager or shareholder who are not appointed the administrator to personal assets and being guarantor on behalf of the company.
With Statutory Decrees during state emergency, Although the method and the administrator’s institution has changed, the general principles to which it relates are still the same and it shall be appropriate to carry out the relevant transactions, in compliance with the general rules of law in the ordinary period and the case-law of the ECHR.
The appointed administrator must be impartial and must not have the characteristics that may cause the behaviour which may disrupt its impartiality in the battle of its control and administration of company. The administrator must maintain his duties in an impartial manner, while at the same time protecting the company’s benefits and complying with the law. Due to initially or later occurred reason, if it is noticed that it cannot perform duties of the administrator or candidate of administrator in an objective, reliable, qualified way, the judge or the court should not appoint the administrator or should decide to replace the administrator when this situation is determined.
In relevant Statutory Decrees, in addition to the confiscation of the company management, the sales authority of the company is left to the SDIF before the trial is completed. At this point, it is necessary to emphasize how ensure the protection of the right to property. If the Companies alleged to be linked to the terrorist organization sold by sold or liquidated and the judgment is concluded in favour of the owners, violation of the right to property comes to the fore regarding return of the sale/liquidation income to the owner of the company and individual remedies will be subject with allegation restrictions on fundamental rights and freedoms of The administration action established by the SDIF. However, against the Statutory Decrees issued during the state of emergency cannot decide to suspension of execution and as a rule cannot be demanded cancellation of allegation against of the constitution.
Due to the material or non-pecuniary loss suffered of the company, the right to claim for damages originate from the titled Claim for Damages the article of 141/1,j of CPL or the general provisions. However, in the event that there is no fault or negligence which would require their personal responsibilities due to the administrator’s duty, the administrator will not be payer of the claims of damages mentioned here, even if there is an error or negligence of the administrator of the auditor or the management, the payer will be the State Treasury in first phase however, the financial responsibility of the administrator will be discussed in accordance with Article 40/3 of the Constitution. For this reason, the State Treasury will be responsible for the return and compensation provided that the company proves its justification and demand.
Consequently, the relevant administrative actions may result in a violation of the right to property. Unless such institutions, organizations and companies are proved connection with terror organization’s action by judicial processes, seizure of assets, receivables and rights free of charge and sale of companies’ assets and liquidation are deemed violation of property rights. In addition, if there are other options that can be applied instead of the liquidation of the company, it will be questioned whether the intervention in the form of liquidation is proportional.