Burden of Proof in Negative Declaratory Actions under Article 89 of the Turkish Enforcement and Bankruptcy Law: An Assessment of the Constitutional Court’s Reasoning
Introduction
In a recent decision (the Decision of the Constitutional Court dated 6 March 2025, numbered E.2024/53, K.2025/73), the Constitutional Court of Türkiye reviewed the constitutionality of a provision in Article 89(3) of the Enforcement and Bankruptcy Law (EBL), which imposes the burden of proof on a third party who files a negative declaratory action. The individual application for concrete norm review was initiated by a first-instance court, claiming that the provision violated Article 10 (equality before the law) and Article 36 (right to legal remedies and a fair trial) of the Constitution.
The referring court argued that the rule placed an undue burden on the third party to “prove a negative fact,” thus contradicting the principles of legal certainty and fair trial. This article examines the content and practical application of the challenged rule in light of the Constitutional Court’s reasoning.
Content and Application of the Challenged Provision
The challenged provision is the sixth sentence of Article 89(3) of the Enforcement and Bankruptcy Law No. 2004. According to this rule, if a third party files a negative declaratory action within the prescribed period after receiving the third garnishment notice, the burden of proof lies with the third party. The text explicitly states, “In this action, the third party must prove that they are not indebted to the judgment debtor or that the property does not belong to the judgment debtor.” Thus, the third party is required to prove the absence of debt or ownership as the plaintiff in the negative declaratory action.
This rule deviates from the usual allocation of the burden of proof by requiring the plaintiff to prove a negative fact. The garnishment notice mechanism is a special procedure regulating the attachment of claims or movable property allegedly held by third parties on behalf of the debtor. When the enforcement office attaches such claims or property, it issues a first garnishment notice to the third party. This notice informs the third party that any payment must be made only to the enforcement office, and payments made to the debtor will be deemed invalid.
Upon receiving the first notice, the third party may, within seven days, object before the enforcement office, stating that they do not owe the debtor or that the specified asset is not in their possession. If the third party makes a timely objection, the burden of proof shifts to the creditor, who must then initiate proceedings before the enforcement court and prove that the third party’s denial is untrue. In such cases, the creditor may also seek legal and criminal liability against the third party for making a false statement.
If the third party does not object to the first notice, the claim or property is deemed to be in their possession or debt. The enforcement office then sends a second garnishment notice, informing the third party that the debt or property is now deemed theirs due to their failure to object. This second notice also provides a final opportunity: the third party may still object within seven days. If they do not object or comply, they are required—within fifteen days—to either pay the debt or file a negative declaratory action.
If the third party remains silent and fails to act within the fifteen-day period, the law assumes the debt or property is definitively in their possession and compels them to comply. The third garnishment notice, while not explicitly named as such in the law, effectively functions as this final call to either pay or litigate. If a negative declaratory action is filed, the enforcement proceedings are suspended; however, if the third party loses the case, the law provides that they may be ordered to pay compensation.
In short, if the third party fails to object during the first two stages, they must file a lawsuit to avoid being legally treated as the debtor. In this action, they bear the burden of proving that they are not indebted, making the rule one that imposes the burden to prove the absence of a debt.
Assessment of the Constitutional Court
In its assessment, the Constitutional Court first analyzed the legal structure of Article 89 and the role of the contested sentence within that structure. It then examined whether the rule violated the principles of equality (Article 10) or the right to a fair trial and access to justice (Article 36). The Court ultimately held that the rule did not infringe on the right to a fair trial guaranteed by Article 36, nor did it conflict with the legality principle under Article 142.
Importantly, the Court emphasized that the rule did not disrupt the balance between the opposing interests of the creditor and the third party. The third party was not placed in a structurally weaker position. Accordingly, the Court found no violation of the principles of equality of arms or adversarial proceedings. The burden of proof imposed on the third party was evaluated in light of the procedural safeguards and options provided by Article 89.
The Court reasoned that, although the burden placed on the third party may appear onerous in isolation, when viewed within the broader legislative design, the rule maintains a fair balance. The Court also noted that the provision did not raise a constitutional concern under Article 10. Therefore, the application for annulment was rejected.
Constitutional Review Through Procedural Safeguards and Systemic Design
The Constitutional Court adopted a holistic and systemic approach in assessing whether the rule infringes the right to access to court and a fair trial under Article 36. Rather than isolating the burden-of-proof clause, the Court examined the full legal mechanism established by Article 89 and its protective measures.
According to the Court, the law grants the third party more than one opportunity to object. The third party can still object after receiving the second notice, even if they don't object to the first. This dual-notice framework offers repeated chances to contest the debt, thus functioning as an effective procedural safeguard.
The Court also underlined that the objection procedure is both procedurally and financially accessible. Objections can be made orally or in writing and are not subject to any court fees or stamp duties. This enables the third party to engage with the enforcement process without undue financial burden.
Additionally, the Court observed that the law provides relief for third parties who fail to object due to reasons beyond their control. In such cases, the mechanism for late objection can be invoked, allowing them to challenge the debt even after deadlines expire. This, the Court held, is consistent with the essence of the right to legal remedies.
Another key consideration was the third party’s ability to prove their case. The Court noted that there were no restrictions on the third party’s right to submit evidence. They could access the necessary documents and information to substantiate their claim. Therefore, the burden of proof did not impair their ability to mount an effective defense or disturb the equality of arms.
In sum, the Constitutional Court held that the rule assigning the burden of proof to the third party in a negative declaratory action was compatible with the principles of due process. The broader procedural context ensured that the party had a meaningful opportunity to protect their interests.
Conclusion
Through this decision, the Constitutional Court upheld the constitutionality of the burden-of-proof rule in Article 89(3) of the Enforcement and Bankruptcy Law. The application for annulment was unanimously rejected.
The key rationale behind the decision was the Court’s systemic perspective. Rather than focusing solely on the sentence in question, the Court assessed the procedural framework as a whole—especially the multiple objection opportunities and the mechanism for late objection. It concluded that the structure preserved the essence of the third party’s right to access to court.
This ruling affirms that the obligation to prove a negative fact is not unconstitutional per se. When accompanied by appropriate procedural safeguards and balance of interests, such a rule may be deemed proportionate. The decision confirms the legitimacy of the third party’s procedural position in enforcement law and stands as a model for evaluating the constitutionality of other procedural obligations in enforcement proceedings.
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