European Union and Turkey Crypto-Assets Regulations: Gaps and Recommendations

Crypto-Assets have gained significant traction in the financial system in recent years. Consequently, regulatory bodies have been developing regulations to address the opportunities and risks presented by cryptocurrencies. This article compares the European Union’s (EU) Markets in Crypto-Assets Regulation (MiCA) and Turkey’s current draft legislation, highlighting key gaps in Turkey’s regulation and offering recommendations for improvement.

Authorization Procedures

EU Regulation: MiCA mandates specific authorization procedures for electronic money tokens issuers. For example, an e-money token cannot be publicly offered or admitted to trading on a crypto-asset trading platform unless the issuer is authorized as a credit institution or an ‘electronic money institution’ under Article 2(1) of Directive 2009/110/EC. These specific authorization requirements ensure the credibility of issuers and market order.

Turkish Draft: The Turkish draft legislation does not clearly define these specific authorization requirements and procedures. This lack of clarity creates uncertainties in the authorization process of issuers and risks market security. To address this gap, Turkey needs to detail the authorization process and set specific criteria for issuers.

Prohibition of Interest Payments

EU Regulation: MiCA prohibits e-money token issuers and crypto service providers from offering interest to e-token holders. This regulation aims to prevent unfair competition among market participants and maintain market stability.

Turkey Draft: The Turkish draft legislation does not include a clear prohibition on interest payments. This gap could lead to unfair competition and negatively impact market stability. Therefore, Turkey should implement similar regulations prohibiting interest payments.

Crypto-Asset Service Providers

EU Regulation: MiCA includes detailed rules for identifying and regulating significant crypto-asset service providers. Article 85 outlines criteria for defining these significant providers, enhancing market security and transparency.

Turkish Draft: The Turkish draft legislation lacks clear definitions and regulations for significant crypto-asset service providers. This omission can create market uncertainties and reduce the effectiveness of regulatory oversight. Clear definitions and regulations for significant crypto-asset service providers are necessary.

Insider Information and Market Manipulation

EU Regulation: MiCA provides detailed regulations on the definition of insider information, the disclosure of such information, and prohibitions on market manipulation. These regulations ensure market transparency and investor protection.

Turkish Draft: The Turkish draft legislation addresses insider information and market manipulation less comprehensively than the EU regulations. This gap can adversely affect market transparency and reliability. More detailed and stringent regulations on insider information and market manipulation are needed.

Technical Documents and Marketing Communication

EU Regulation: MiCA sets out detailed rules and responsibilities regarding crypto-asset technical documents and marketing communications. These regulations ensure that investors have access to accurate and comprehensive information.

Turkish Draft: The Turkish draft legislation lacks sufficient regulations regarding technical documents and marketing communications. This deficiency can hinder investors’ access to adequate information and reduce market transparency. More detailed regulations on technical documents and marketing communications should be implemented.

Supervision and Sanctions

EU Regulation: MiCA outlines comprehensive supervision obligations, administrative sanctions, and other measures. These regulations enhance the compliance of market participants and the effectiveness of regulatory oversight.

Turkish Draft: The Turkish draft legislation does not clearly define supervision and sanctions. There are uncertainties regarding the implementation and enforcement mechanisms. Clear and detailed regulations on supervision and sanctions are necessary for effective regulatory oversight.

Conclusion

The Turkish cryptocurrency regulation has several gaps compared to the EU MiCA Regulation. Enhancing regulations in areas such as authorization, insider information management, supervision, and sanctions can increase market transparency and reliability. Addressing these gaps will contribute to establishing a more robust regulatory framework for Turkey’s cryptocurrency market.

Attorney Gökhan Cindemir

(Gökhan Cindemir is currently PHD candidate at Istanbul Commercial University – European Union and International Trade Law. His phd thesis is being conducted on the European Union regulation of the Markets in Crypto-Assets (MICA)

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As the digital asset space continues to grow and evolve, it’s more important than ever for businesses to prioritize responsible innovation and customer protection. That’s where Cindemir Law Office comes in. Our team of experienced attorneys can help your digital asset business comply with the Global Digital Asset & Cryptocurrency Association’s Core Principles, which set minimum standards and best practices for the conduct of businesses that handle customer digital assets and funds. At Cindemir Law Office, we understand that every digital asset business is unique, with its own scope and nature. That’s why we offer tailored legal services to help you meet the Core Principles in a manner that’s fit and commensurate with your business.

We’ll work with you to identify the specific risks and challenges facing your business, and develop policies and procedures that address those risks while also ensuring compliance with applicable regulations. Our legal services can include: – Policy and procedure development: We’ll help you develop and implement policies and procedures for compliance with the Core Principles, including those related to customer due diligence, anti-money laundering, and risk management. – Monitoring and auditing:

We’ll assist with ongoing monitoring and auditing of your business to ensure that your policies and procedures are being followed and that your business is meeting the highest standards of customer protection and risk management.

– Disclosures and reporting: We’ll help you ensure appropriate disclosures regarding the handling of customer funds and assets, including their make up, use, and disposition.

– Legal advice and representation: We’ll provide legal advice and representation on a range of issues related to digital assets, including regulatory compliance, intellectual property, and dispute resolution. By working with Cindemir Law Office, you can be confident that your digital asset business is meeting the highest standards of customer protection and risk management. Contact us today to learn more about how we can help your business thrive in the digital asset space.

Introduction

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The Role of Legal Affidavits in International Relationships

Legal affidavits are crucial in various international legal processes, including visa applications and marital procedures. These sworn statements, prepared under oath, are essential for verifying the authenticity of information across different legal jurisdictions.

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Introduction:
The Turkish legal system offers a myriad of measures under the umbrella of judicial control to manage individuals suspected of criminal activities. Of these, the exit ban has garnered significant attention, both domestically and internationally. This article delves deep into the nuances of the exit ban as a form of judicial control in Turkey.

1. What is an Exit Ban?
An exit ban, as defined by the Turkish Code of Criminal Procedure (TCCP), is a restriction placed on a suspect, preventing them from leaving the country. It’s one of the various obligations that can be imposed under judicial control.

2. Rationale Behind Exit Bans:
At its core, the exit ban serves a dual purpose:

Securing Legal Proceedings: To ensure that suspects remain within the jurisdiction, thus avoiding any potential flight risk and ensuring they face legal proceedings.
Protection of Public Interests: In certain high-profile or sensitive cases, the suspect’s departure might be deemed contrary to national interests.

3. Imposition of Exit Bans:
As per Art. 109, if there are grounds for arrest, a decision to put the suspect under judicial control may be rendered. This can result in imposing an exit ban. Importantly, even in scenarios where there’s a legal prohibition against arrest, exit bans can still be applied.

4. Other Judicial Control Measures vs. Exit Ban:
While the TCCP lists various judicial control obligations, from regular visits to financial safeguards, the exit ban stands out for its direct implications on an individual’s freedom of movement. It can significantly affect a person’s professional, educational, and personal pursuits, especially if they have commitments or connections outside of Turkey.

5. Critiques and Controversies:
The imposition of exit bans has been the subject of critique:

Overreach: Concerns arise when exit bans are applied too broadly, potentially affecting not just genuine flight risks but also journalists, activists, and academics.
Human Rights Concerns: Prolonged exit bans, especially when applied without clear justification, might be seen as an infringement on human rights, particularly the right to freedom of movement.

6. Implementation & Oversight:
The decision to impose an exit ban, as with other forms of judicial control, is made considering the specifics of the case. The Justice of Peace, during the investigation phase, or the trial court, during the prosecution phase, issues these decisions. The views of the public prosecutor, the suspect, and their defense counsel play a crucial role in this.

Conclusion:
Exit bans, as a form of judicial control in Turkey, exemplify the delicate balance between upholding the integrity of the judicial process and ensuring individual rights. Their application, while valuable in specific contexts, necessitates rigorous oversight and a commitment to justice and human rights.

The Form C Turkey Form C, also known as the International Death Certificate, is a document that contains information related to a person’s death and is issued for submission to foreign authorities. This document includes details such as the deceased person’s identity, nationality, educational background, residential address, as well as the manner and cause of death, along with other important information. Form C is requested by official institutions for international death registration procedures, wills, inheritance matters, repatriation of remains, or the deceased person’s life insurance claims.

While Form C can be obtained through the Population Registry Office in Turkey, it can be obtained from the relevant country’s consulates abroad. The individual seeking the document should apply to the provincial or district population registry offices in Turkey, or to the consulates of the relevant country when abroad, to obtain Form C.

An important point to note is that apostille authentication is required for the document to be valid internationally. In Turkey, the apostille authentication can be obtained from the relevant district governorships or governorates, while in foreign countries, it should be requested from the respective competent authorities. However, it’s important to be aware that some countries do not recognize apostille authentication. In such cases, consular certification is required in that country. Consular certification is an alternative authentication method used in countries where apostille authentication is not recognized.

Form C death certificate is an official document that is internationally recognized and contains crucial information regarding the death. Obtaining this document correctly and obtaining the necessary certifications is of great importance to ensure the validity of claims related to inheritance, death registration, repatriation of remains, or the deceased person’s insurance rights.

The Form B Turkey The Form B document is a multilingual certificate that can be used by anyone who gets married in Turkey, and it is prepared by the Vienna ICCS Convention on the issue of the Multilingual Extracts from Civil Status Records. This document is designed to prove your international marriage records and serves as evidence of your marriage worldwide. The Form B certificate can be obtained through third parties via the Population Directorates or by granting a notarized power of attorney at the Governorships. Additionally, for the document to be valid, a notarized copy of the Family Registry Certificate and authentication through Governorships, apostille, or attestation process is required.

The Form B certificate is used to prove your marriage records at an international level. This document contains your marriage registration information in multiple languages. In Turkey, you can obtain the Form B certificate through the Population Directorates, and for overseas applications, it can be obtained through Consulates or Embassies. However, the person applying for the document must personally visit the relevant authorities in Turkey (Population Directorates) or provide a notarized power of attorney, while overseas applications can be made through Consulates or Embassies. Form B certificate is a document that is translated into different languages. The information found on the international marriage certificate Form B is also present on the translation form.

Apostille certification is a process used to make a document valid internationally. In Turkey, apostille certification can be obtained from the Governorships, while in foreign countries, it can be acquired from the relevant competent authorities. However, in countries where apostille certification is not recognized, Consular authentication can be obtained instead. Consular authentication serves as an alternative to apostille certification in countries where apostille is not recognized. With the apostille certification or Consular authentication on the Form B certificate, you can prove your marriage worldwide. This document assists in establishing the validity of your marriage as an officially recognized document.

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In Turkey, there are two types of documents that are accepted as legal proof of birth. Firstly, the most commonly used document by foreigners born in Turkey is called “Form A.” This document can be used by anyone born in Turkey and is issued with a registration number. It can be requested by anyone regardless of their nationality or citizenship. If the person does not know their registration number, they need to apply at the population registry office where the newborn was registered. To obtain the Form A document, any person with a power of attorney (“PoA”) signed by the subject of the document can apply at any population registry office. For children under 18 years old, a power of attorney from a parent is sufficient to obtain the Form A document. The Form A document can later be certified at the district governorship or undergo the apostille process. The Form A document can be requested for various purposes, such as marriage procedures, birth registration, citizenship, or visa processes.

Secondly, another document accepted as proof of birth is the “Population Registry Extract”. This document can be obtained from population registry offices or through third parties with a notarized power of attorney. Additionally, it can be obtained electronically through an online system called “e-government” (e-devlet). To obtain an electronically issued Population Registry Extract, the person needs to create an e-government account. However, district governorships do not legalize or apostille this electronic version. The district governorship only certifies or apostilles a manually signed and stamped Family Registration Record obtained from the population registry office. In summary, the documents representing the legal proof of birth in Turkey are Form A and Population Registry Extract. Both documents are used to prove birth, for official procedures, and other purposes.

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Turkey is a vibrant country that attracts millions of tourists, foreigners and business professionals every year. However, some foreigners may be subject to entry restrictions, such as a 5-year entry ban due to visa violations, criminal convictions or national security. Fortunately, the Turkish government has created a process through which individuals can request that this ban be lifted under certain conditions. This article examines the reasons for a 5-year entry ban, the process for requesting its removal, and the factors that can affect a successful outcome. Reasons for a 5-year entry ban The Turkish government imposes an entry ban on foreigners for several reasons, such as: Overstaying your visa or overstaying Engage in illegal activities or crimes in Turkey Submit false or forged documents when applying for a visa Threat to national security or public order Previous expulsion from Turkey Application process to remove 5-year entry ban To request the removal of the five-year entry ban, the applicant must submit a request to the Directorate General of Migration Management (DGMM).

The application must include: A written statement explaining the reasons for canceling the ban Documents justifying the application (e.g. proof of family ties, job offer, training opportunity or compelling personal reasons) Any relevant legal documents or court decisions related to the applicant’s case Passport or valid ID Factors affecting a successful removal request The success of an application to cancel a five-year entry ban depends on a number of factors, such as: The seriousness of the offense leading to the ban Applicant’s previous history in Turkey (e.g. visa compliance, legal history) Showed remorse and commitment to comply with Turkish laws and regulations Personal, family or professional reasons for requesting removal Possible results of an erasure request After reviewing the application, the Turkish authorities may decide:

The five-year entry ban must be fully lifted, allowing the applicant to immediately return to Turkey Shorten the duration of the ban so that the applicant can return to Turkey after a shorter period of time Deny the removal request, maintaining the five-year ban Conclusion Lifting the five-year entry ban in Turkey is not guaranteed, but is possible under certain circumstances. The application requires a well-prepared petition, supporting documents and a convincing case to convince the Turkish authorities to allow the removal. It is important that applicants understand the reasons for the entry ban, collect relevant information and provide solid evidence of their commitment to comply with Turkish laws and regulations. With careful planning and decision-making, the committed individuals can overcome this obstacle and regain the opportunity to experience Turkey’s rich culture and opportunities.

The Turkish Civil Code governs the legal aspects of marriage and divorce, and it is the basis for determining the legal rights of spouses and their heirs. If a married couple wants to ensure that their assets are distributed according to their wishes after their death, they can make a will. However, the terms of the will must comply with the provisions of the Turkish Civil Code, and any changes to the will must be made in accordance with the legal requirements.

Article 181 of the Turkish Civil Code lays down the legal framework that governs the status of divorced spouses as legal heirs. Under this article, divorced spouses cannot inherit from each other unless otherwise provided by the terms of a testamentary disposition made before the divorce. In other words, if a couple makes a will while they are married that leaves their assets to each other, that arrangement will become null and void if they get divorced. This means that if one spouse dies after the divorce, the surviving spouse cannot inherit anything from them.

This provision is aimed at ensuring that divorces result in a complete separation of assets and legal rights between the former spouses. It also serves to protect the interests of other potential heirs, such as children or parents of the deceased spouse, who would be entitled to inherit in the absence of a valid will.

Furthermore, if a divorce case is ongoing at the time of one spouse’s death and the other spouse is found to be at fault, the surviving spouse will also be excluded from inheriting from the deceased spouse. This provision ensures that a spouse who is responsible for the breakdown of the marriage cannot benefit from their partner’s death.

It is important to note that Article 181 applies only to divorced spouses. If a marriage is ended by absolute nullity due to reasons such as one of the spouses being already married, mental illness, or kinship that prevents marriage, the marriage is deemed to have never existed, and neither spouse can inherit from the other. In this case, any testamentary dispositions made by the deceased spouse will also be invalidated. The heirs can prove the invalidity of the marriage by applying to the court for a decision on the absolute nullity of the marriage.

If a marriage is invalidated by relative nullity due to reasons such as temporary deprivation of the power of discernment, mistake, deception, or intimidation, the legal consequences are different. In such cases, if the surviving spouse is not in good faith, meaning that they were aware that the marriage was invalid, they will not be entitled to inherit from the deceased spouse or benefit from any previous testamentary dispositions. In such a case, the surviving spouse will not be able to become an heir only if the heirs prove that the marriage is invalid and the surviving spouse is not in good faith by continuing a lawsuit.

In conclusion, Article 181 of the Turkish Civil Code enables the heirs of divorced spouses to protect their legal rights. While it ensures that the dissolution of the marriage results in the complete separation of assets and legal rights between the former spouses, it also protects the interests of other potential heirs.

Institutionalized Nominee Director Services in Turkey — contact cindemir@cindemir.av.tr

Inheritance contracts are an important aspect of estate planning and succession management. In Turkey, the Turkish Civil Code provides regulations regarding inheritance contracts, which are divided into two categories: positive inheritance contracts and negative inheritance contracts. Positive inheritance contracts oblige the inheritor to leave a certain portion of their inheritance or property to the person they have contracted with or to a third party. In contrast, negative inheritance contracts involve the renunciation of inheritance rights by the inheritor.

Article 527 of the Turkish Civil Code regulates positive inheritance contracts. According to this article, the inheritor may be obliged to leave their inheritance or specific property to the person they have contracted with or to a third party. Under a positive inheritance contract, the inheritor may appoint a person as the heir or bequeath specific property to an individual. This can be in favor of the party to the contract or a third person not involved in the contract.

The renouncer loses their title of heirship, and unless otherwise stipulated in the agreement, the renunciation of inheritance by providing a provision shall also have consequences for the heirs of the renouncer. Article 528 of the Turkish Civil Code regulates the renunciation of inheritance. According to this article, an heir may enter into a contract of renunciation of inheritance with another heir without consideration or in return for consideration. The renouncer loses the title of heirship and is not entitled to any portion of the inheritance.

The renunciation of inheritance must be made in writing and signed by the renouncer and two witnesses. Unless otherwise stipulated in the agreement, the renunciation of inheritance by providi Furthermore, the renunciation of inheritance does not affect the rights of any other heirs or beneficiaries named in the will or under the law. They will still receive their rightful portion of the inheritance, and the renouncer’s portion will be distributed accordingly. Article 528 of the Turkish Civil Code provides a legal framework for the renunciation of inheritance.

It is important to note that to make a death-dependent disposition in an inheritance contract, the party must have the capacity to do so. The person must have the power of discernment, be an adult, and not be restricted. However, the other party to the inheritance contract, the one who does not make a testamentary disposition, is not required to have full capacity. In a waiver of inheritance contract, the heir who waives the inheritance must have full capacity.

Inheritance contracts in Turkey must be made in the form of an official will. Officials authorized by law to issue official wills, such as the judge of the civil court of peace, notaries public, and Turkish consulates in foreign countries, have the right and authority to issue official wills. Additionally, the inheritance contract must be made in the presence of two witnesses.

In conclusion, inheritance contracts are a crucial tool for managing estates and ensuring a smooth succession process. Positive inheritance contracts obligate the inheritor to leave a certain portion of their inheritance or property to the person they have contracted with or a third party. In contrast, negative inheritance contracts involve the renunciation of inheritance rights. It is important to understand the legal regulations and requirements when entering into an inheritance contract in Turkey to ensure its validity and effectiveness.

The ongoing economic sanctions against Russia have resulted in increased difficulty for Russian nationals looking to establish companies abroad. However, there is a solution that could help overcome these obstacles – the use of a nominee director and shareholder. Our law office can provide assistance in arranging these services, which can be done in the form of a Turkish company.

A nominee director and shareholder is a legal arrangement where a trusted third party is appointed as the public face of a company, while the true owner maintains their anonymity. The nominee director and shareholder will hold legal ownership of the company on paper and carry out legal duties on behalf of the company, such as signing contracts or managing finances. This legal arrangement can help Russian nationals avoid potential legal risks and access financial and business networks that may be closed off due to sanctions.

Our law office can assist Russian entrepreneurs in setting up a Turkish company, with a nominee director and shareholder who will act on their behalf. This solution can provide numerous benefits, including the ability to gain access to new markets and opportunities, as well as bypassing any restrictions due to sanctions.

However, it is important to note that the use of a nominee director and shareholder is not without risks. The arrangement can potentially lead to fraudulent activities and unethical behavior by the nominee director and shareholder. For this reason, it is crucial to work with a reputable law office, such as ours, that can ensure compliance with all legal requirements.

In conclusion, the use of a nominee director and shareholder can provide a viable solution for Russian nationals seeking to establish companies abroad. Our law office can provide assistance in setting up a Turkish company with a nominee director and shareholder who will act on behalf of the Russian entrepreneur. It is important to work with a reputable law office that can provide guidance and support to ensure compliance with all legal requirements. With the right assistance and careful planning, Russian nationals can successfully establish their companies and gain access to new markets and opportunities despite the ongoing economic sanctions.

In addition to providing assistance with the arrangement of nominee director and shareholder services, our law office can also offer further support for Russian nationals seeking to establish companies abroad. This includes the provision of accountant and virtual office services.

The accountant we will arrange can provide entrepreneurs with the necessary support to manage their company finances in a compliant and efficient manner. This can include preparing financial statements, managing accounts payable and receivable, and providing tax advice and planning. Our experienced accountants are well-versed in Turkish commercial law and can ensure that your company is fully compliant with all relevant regulations and requirements.

Furthermore, our virtual office services can provide an ideal solution for Russian nationals who do not have a physical presence in Turkey. Our virtual office services include a dedicated business address and phone number, mail forwarding, and administrative support. This can provide entrepreneurs with a professional image and a physical presence in Turkey, without the need for costly office rental expenses.

It is important to note that all of our services are provided with a high level of professionalism, confidentiality, and compliance with all legal requirements. Our law office has extensive experience in assisting foreign entrepreneurs to establish companies in Turkey, and we have a proven track record of success.

In conclusion, our law office can provide comprehensive support for Russian nationals seeking to establish companies in Turkey despite the ongoing economic sanctions. Our services include the arrangement of nominee director and shareholder, accountant, and virtual office services. With the right support and guidance, entrepreneurs can successfully establish their companies and access new markets and opportunities. Contact us to learn more about our services and how we can assist you in achieving your business goals.

Damage Claim Earthquake — cindemir@cindemir.av.tr

Compulsory Earthquake insurance is a vital component in the protection of homes against earthquakes and related disasters like fire, explosion, landslide, and tsunami. In the event of an earthquake in a region declared as a state of emergency, insurance companies are obligated to prioritize the claim notifications and indemnity payments for policies in all insurance branches according to Article 7 of the Sector Announcement on the Measures to be taken in the Regions Declared State of Emergency due to earthquake 2023/3.

The coverage offered by compulsory earthquake insurance provides protection for material losses directly caused by an earthquake, as well as any fire, explosions, tsunamis, or landslides resulting from the earthquake, within the policy limits. The coverage includes the following building sections: foundations, main walls, common walls separating independent sections, garden walls, retaining walls, ceilings and floors, stairs, elevators, landings, corridors, roofing, chimneys, and complementary parts of the building.

Despite the comprehensive coverage provided by compulsory earthquake insurance, there are certain cases that are excluded from the coverage. These include debris removal costs, loss of profit, interruptions to business, loss of rental income, alternative residential or workplace expenses, financial responsibilities and similar indirect losses, movable goods, articles and similar items, bodily harm including death, non-pecuniary compensation claims, damages not caused by the earthquake or events caused by the earthquake, and damages that occur over time due to building defects and characteristics.

The TCIP provides compulsory earthquake insurance with a maximum coverage limit of TL 640,000 for all building types as of 25 November 2022, with the aim of enabling insurance holders to quickly resume their lives after a possible earthquake disaster. The maximum coverage limit is determined by the cost of rebuilding the demolished dwelling, excluding the plot value, and is based on the size and construction type of the dwelling, subject to the maximum coverage limit. If the value of the dwelling exceeds the maximum coverage limit, the insured party can opt for additional coverage from insurance companies.

Compulsory earthquake insurance covers dwellings within the boundaries of a municipality and includes buildings that are privately owned, commercial buildings, and dwellings built by the state or with loans disbursed due to natural disasters. Buildings for which floor servitude is established, cooperative housing where the title deed has not yet been allocated, and dwellings built before 2000 can also be insured based on the declaration of the insured person and with the information pertaining to the plot title deed.

On the other hand, buildings that are excluded from compulsory earthquake insurance include public housing and public service buildings, buildings built in and around village settlement areas and hamlets, commercial or industrial buildings, buildings without engineering services, modified or weakened buildings, buildings constructed in violation of legislation, and condemned buildings.C ompulsory earthquake insurance is a vital tool in the protection of homes and buildings against the damage caused by earthquakes. With comprehensive coverage and a rapid recovery process, insurance holders can quickly resume their lives after a disaster, with the peace of mind that their homes and possessions are protected.

Earthquakes can have devastating effects on both people and properties. In case of such a natural disaster, it is important for individuals to know the process of obtaining compensation for the damages incurred. In this article, we will look at the process of compensating individuals for damages caused by earthquakes through compulsory earthquake insurance.

Compulsory Earthquake insurance is an insurance policy that protects individuals from the financial losses incurred due to earthquakes. The indemnity for this insurance policy is based on the current cost of rebuilding the building that has been damaged in the market conditions prevalent at the time and place of the occurrence of the risk. However, it is important to note that the insurance indemnity cannot exceed the sum insured as defined in the policy. A deductible of 2% of the sum insured is applied to each claim. If an individual has compulsory earthquake insurance, they can make a damage notification either directly or through authorized insurance companies. The Turkish Catastrophe Insurance Pool (TCIP) evaluates the damage and opens a damage file. Then, damage assessors are appointed to determine the extent of the damage.

Once the compensation amount has been determined, it can be collected from any branch of Vakıfbank. This is made possible by using the citizenship number of the beneficiary along with a password sent to them as a text message.

In conclusion, compulsory earthquake insurance is a crucial way for individuals to protect themselves from financial losses incurred due to earthquakes. It is important for individuals to consider getting compulsory earthquake insurance in order to ensure that they are protected from the financial losses incurred due to earthquakes.

As Turkey continues to emerge as a hub for foreign investment, many international companies are seeking a presence in the country to take advantage of its favorable business climate. However, for many foreign investors, the thought of revealing personal information or risking their assets can be a major barrier to entry. This is where institutionalized nominee director services come in, offering a secure and legal solution for investors looking to establish a presence in Turkey.

What are Institutionalized Nominee Director Services?

Institutionalized nominee director services refer to the practice of appointing a legal entity, rather than a real person, as the nominee director of a company. This entity acts on behalf of the actual owner, making decisions related to the company and handling legal and financial obligations. The key difference between institutionalized nominee director services and traditional nominee director services is that the legal entity is created specifically for the purpose of providing nominee director services, making it a more secure and professional solution.

How do Institutionalized Nominee Director Services Work in Turkey?

The process of using institutionalized nominee director services in Turkey is straightforward. The foreign investor sets up a company in Turkey and then appoints the institutional nominee director as the director of the company. The institutional nominee director then acts as the public face of the company, handling all legal and financial obligations, while the actual owner retains control over the company. The institutional nominee director is a legal entity that is registered with the Turkish government and operates under Turkish law, offering a secure and reliable solution for foreign investors.

Benefits of Institutionalized nominee directory services in turkey

There are several benefits of using institutionalized nominee director services in Turkey, including:

Legal Compliance: Institutionalized nominee director services ensure that the company is fully compliant with Turkish law. The institutional nominee director is a legal entity that operates under Turkish law, so investors can be confident that their company is in compliance with all legal requirements.
Security: Institutionalized nominee director services offer a more secure solution than traditional nominee director services. The legal entity that acts as the institutional nominee director is created specifically for the purpose of providing nominee director services, making it a more professional and reliable solution.
Anonymity: Institutionalized nominee director services provide a high level of anonymity for investors. Since the institutional nominee director acts as the official director of the company, their personal information does not have to be disclosed publicly, providing a level of privacy for the investors.Professionalism: Institutional nominee directors have typically experienced professionals with a deep understanding of the Turkish legal and business environment. This provides the company with access to valuable knowledge and expertise that can help the company operate more effectively and efficiently.

Cost-effective: Institutionalized nominee director services can be more cost-effective than hiring an individual nominee director, especially for companies that are just starting out or have limited resources. Since the institutional nominee director is a legal entity, there are no personal salaries or benefits to pay, making it a more cost-effective solution.

In conclusion, institutionalized nominee director services in Turkey can provide a range of benefits to investors, including legal compliance, security, anonymity, professionalism, and cost-effectiveness. These benefits make institutionalized nominee director services a popular choice for foreign investors looking to establish a company in Turkey.

Our law office can arrange and supervise the agreement that you will conclude with institutionalized nominee director services.

Nominee Directory Services in Turkey — cindemir@cindemir.av.tr

Turkey has a rapidly growing economy and is considered as a prime destination for foreign investment. With its favorable economic conditions, many foreign companies are interested in setting up their business operations in Turkey. However, the process of establishing a business in Turkey can be challenging and complicated, especially for foreign investors who are unfamiliar with the local business laws and regulations. This is where nominee director services can come in handy.

A nominee director is a person who acts as the official representative of a company, but does not have any decision-making power or ownership in the company. The role of a nominee director is limited to representing the company in legal and official matters, such as signing legal documents and attending board meetings. In Turkey, nominee director services are provided by local firms that specialize in helping foreign companies establish their presence in the country.

One of the benefits of using nominee director services in Turkey is that it provides a level of anonymity for foreign investors. This is particularly useful for investors who wish to keep their business activities confidential, or for those who do not want their personal details to appear in the public records. Using a nominee director can also help to protect the privacy of the real owners and investors, who can remain in the background while the nominee director handles the public-facing aspects of the company.

Another advantage of using nominee director services in Turkey is that it helps to streamline the process of setting up a company in the country. Local firms that provide nominee director services can assist foreign investors with all the necessary steps involved in establishing a business, including registering the company with the local authorities, obtaining necessary licenses and permits, and opening a bank account. This can save foreign investors a significant amount of time and effort, as well as help to ensure that all the required legal procedures are properly followed.

In conclusion, nominee director services can be a valuable asset for foreign investors looking to establish their business operations in Turkey. With the help of a local firm, foreign investors can enjoy the benefits of anonymity and a streamlined process, while also complying with local business laws and regulations. Nominee director services can also provide foreign investors with peace of mind, knowing that their business is in good hands and that they have a reliable local partner to assist them with any legal or administrative matters that may arise.

Our law office is capable of assisting foreign clients to prepare and conclude contracts with institutional nominee directors.

Finding a nominee director in Turkey can be a complex task for businesses, but having a trusted law office on your side can make the process much easier. If you’re looking for a nominee director, consider working with Cindemir Law Office, a law firm that can help you find the best institutionalized nominee director companies for your needs. Here’s why you should choose Cindemir Law Office for your nominee director needs:

Expertise: CinDemir Law Office has a team of experts who are knowledgeable about the local regulatory environment in Turkey. They can help you find the best nominee director companies for your needs and ensure that your company is in compliance with all relevant regulations and laws.
Legal Assistance: As a law office, CinDemir Law Office can assist with the agreements and legal aspects of finding a nominee director. They can ensure that all contracts are legally binding and provide you with peace of mind.
Access to Nominee Director Companies: CinDemir Law Office has established relationships with nominee director and shareholder companies that can act as a legal entity. This makes it easier for you to find the right nominee director for your needs.
Confidentiality: Cindemir Law Office understands the importance of confidentiality and will keep your company’s information and details confidential.
Ease of Use: Cindemir Law Office provides an easy-to-use platform for managing your nominee director needs. You can access your account and manage your nominee director services from anywhere in the world.

By choosing Cindemir Law Office for your nominee director needs, you can ensure that your company is in compliance with local regulations, while also saving time and money. With a team of experts, a commitment to confidentiality, and a cost-effective solution, CinDemir Law Office is the right choice for your nominee director needs in Turkey.

Opening a bank account for a company in Turkey can be a challenge if it has foreign directors or shareholders. Banks in Turkey have become increasingly cautious about opening accounts for companies with non-resident directors or shareholders, making it difficult for international businesses to operate in the country. However, this problem can be easily solved with the help of nominee director and shareholder services.

Nominee director and shareholder services offer a solution for companies with foreign directors and shareholders that are struggling to open a bank account in Turkey. These services provide a substitute director or shareholder who is a resident of Turkey, allowing the company to fulfill the requirements set by the banks.

The nominee director or shareholder acts as a representative of the company and assumes all the legal responsibilities associated with the role. This way, the company can establish a bank account in Turkey and carry out its business operations without any hindrance. Moreover, the nominee director or shareholder does not have any say in the company’s decision-making process and does not participate in its management.

The benefits of using nominee director and shareholder services are numerous. Firstly, it helps companies to bypass the restrictions imposed by Turkish banks, making it easier for them to do business in the country. Secondly, it provides a convenient and cost-effective solution for companies that do not have a physical presence in Turkey. Finally, it ensures that the company complies with all the regulations and laws of the country, protecting its interests and reputation.

In conclusion, if you are a company with foreign directors or shareholders struggling to open a bank account in Turkey, nominee director and shareholder services are the perfect solution. With the help of these services, you can easily bypass the limitations imposed by Turkish banks and carry out your business operations without any hassle. So, if you want to take your business to the next level in Turkey, consider using nominee director and shareholder services today.

Legal requirements: In some countries, it is a legal requirement for companies to have a certain number of directors on their board, and a nominee director service can help a company meet these requirements.

If the director of a foreign company has not received a work permit, then he may face some significant difficulties. For these reasons, a foreign company director needs to obtain a work permit. It is important to apply for a work permit through the legal legislation of the country and submit the necessary documents.

In Turkey, an employer who hires a worker without proper work permit can be subject to a penalty. An administrative fine is a penalty imposed by a government agency for violating a regulation or law. In the case of an employer hiring a worker without proper work permit in Turkey, an administrative fine may be imposed as a form of punishment for breaking the regulations regarding work permit. In order to obtain a foreign work permit from within the country, those who will apply must have a residence permit for at least 6 months.

The fees for the Work Permit Certificate for the year 2023 vary according to the duration of the work permit. If it is requested to be taken indefinitely, a fee of 30,914.50 TL must be paid. If the period is selected, this permission will need to be renewed.

-Employers who employ a foreigner who does not have a work permit are given an administrative fine of TL 35,815 for each foreigner.

-A person who has not received a work permit may experience difficulties when entering the country or may be blocked when leaving the country.

-A person who has not received a work permit does not have to accept a job or a job offer, since he cannot work legally in the country.

-A person who has not received a work permit may be deported from the country if he cannot provide a valid reason for staying in the country.

-A person who has not obtained a work permit may not benefit from health insurance in the country as long as he enters or stays in the country.

-A person who has not received a work permit may not be exempt from tax and other legal obligations in the country, since he can not legally work in the country.

Privacy: By using a nominee director, the real owners of the company can remain anonymous, which can be useful for protecting personal privacy or for maintaining a low profile for business reasons. Nominee director service is a service in which an individual or company acts as the official director of a corporation on behalf of the true beneficial owner(s) of the company for maintaining privacy and protecting the true owners of a company from being publicly identified.

Asset protection: Nominee director can help protect the assets of the company by ensuring the company’s legal compliance while ensuring the real owners remain anonymous.

Professionalism: Some companies may prefer to have a nominee director with specific expertise or experience to add credibility and professionalism to the company.

Ease of incorporation: Obtaining a nominee director service can make the process of incorporating a company easier and faster, as the nominee director can help with the paperwork and administrative tasks associated with setting up a company. We assist our clients to find nominee director in this sense.

freetradezone company — cindemir@cindemir.av.tr

Establishing a company in a Free Zone in Turkey provides a range of advantages for businesses looking to expand into the country. Free Zones are regions within the political borders of the country but outside the customs territory, where commercial and economic regulations are not fully applied. These regions offer a favorable environment for foreign investment, lower production costs, and the opportunity to create new jobs.

Foreign or local real or legal entities can operate in a Free Zone by obtaining an activity license, and there are no restrictions on domestic or foreign capital for legal entities operating in these regions. Individuals can also establish a company in a Free Zone as long as they operate exclusively in the region.

To establish a company in a Free Zone, businesses must first obtain an activity license. This requires filling out the Activity License Application Form, depositing the application fee of USD 5,000 into the Free Zones Special Account at the Central Bank of the Republic of Turkey, and sending the application form and necessary documents to the Free Zone Directorate. Once approved, the articles of association must be prepared according to Circular No. 1998/4, and an application for the establishment of the company must be made to the trade registry. The company can then be established in accordance with Turkish Commercial Code provisions and commence operations in the Free Zone.

Additionally, establishing a company in a Free Zone in Turkey offers businesses many benefits, including a favorable investment environment, lower production costs, and opportunities for transit sales. To take advantage of these benefits, businesses must first obtain an activity license, follow the proper procedures for setting up a company, and ensure that their articles of association comply with the Circular No. 1998/4

To apply for an activity license in a free zone in Turkey, the following documents are required to be attached to the Activity License Application Form:

Information about the applicant:

A separate page that details the real or legal person making the application and explains the free zone activity
Authorization certificates and signature circulars of the signatory, and authorization certificates and signature declarations of the company representative (if any)
If the applicant is a legal entity and an already established company, then Turkish Trade Registry Gazettes and Chamber of Commerce and Industry Registration that show the company’s establishment announcement and latest capital and shareholding structure must be attached.

Articles of Association of the Company:

The articles of association must be prepared in accordance with Circular No. 1998/4 titled “Evaluation of Activity License Applications, Branches, Companies with Branch Addresses”. The company title should reflect the free zone activity, and the article titled “Purpose and Subject” should be written in the context of the free zone. The use of the expression “purchase and sale” instead of “import” and “export” is recommended in the provisions under “Title”, “Purpose and Subject”, and related headings. The company’s fields of activity under “Purpose and Subject” must take into consideration the characteristics of the free zone and exclude goods prohibited from entering the zone. The purchase-sale and production sections of the application form must be compatible. The company’s duration must be at least as long as, or longer than, the activity license. The articles of association must include a section titled “Amendments to the Articles of Association” which states that the company must obtain approval from the Undersecretariat of Foreign Trade (General Directorate of Free Zones) for any changes to the title, purpose and subject, center, duration, etc. before registering these changes in the trade registry.

Additional requirements for a company to be established in the free zone:

Balance sheet and profit and loss statements for the last three years
Bank receipt showing payment of the Activity License fee to the Central Bank of the Republic of Turkey
Document showing the amount of foreign currency brought to Turkey in the last three years by the applicant (if any)
Permission certificate from the Banking Supervision and Regulation Agency (BRSA) for banks and financial leasing institutions and from the Undersecretariat of Treasury General Directorate of Insurance for insurance institutions
Original and photocopy of the Activity License Application Form

After approval, the company must submit a copy of the workplace contract within 30 days to the General Directorate of Free Zones along with other necessary documents. The company can then be established in accordance with the Turkish Commercial Code and start its activities in the free zone.

Activity licenses are granted for 20 years and can be renewed. If the company changes its address, the new address must be registered with the trade registry and announced in the Turkish Trade Registry Gazette and notified to the Undersecretariat of Foreign Trade (Ministry of Economy & General Directorate of Free Zones).

Intentional Injury

To act intentionally means to perform an action deliberately and on purpose. Injury refers to harm or damage to a person’s body or well-being.

Intentional injury occurs when a person knowingly causes harm to another. It also includes acts that are likely to result in physical or mental harm to an individual.

Penalty

A person found guilty of intentional injury may be sentenced to imprisonment for a period of one to three years.

However, exceptions apply. If the consequences of the intentional injury are not severe, the punishment is reduced to imprisonment for a period of four months to one year. In certain cases, a judicial fine may be imposed instead.

Prosecution for this offense is initiated ex officio, meaning that legal proceedings commence upon the victim’s complaint. However, in certain aggravated cases, no complaint is required, and the penalty is increased by half. These aggravated circumstances include committing the offense:

Against an ancestor, descendant, spouse, or sibling,
Against a person unable to protect themselves due to physical or mental disability,
Against a public official due to their duties,
By abusing the influence of public office,
Using a weapon, or
With extreme cruelty.

Abortion

The Population Planning Act of 1983 and the Penal Code regulate abortion. The former sets out general provisions, while the latter includes specific regulations.

Article 99 of the Turkish Penal Code (TCC) on Abortion by Third Parties:

Performing an abortion without the woman’s consent is punishable by five to ten years of imprisonment.
Performing an abortion after the tenth gestational week without medical necessity, even with the woman’s consent, is punishable by two to four years of imprisonment.
If a woman consents to an unlawful abortion, she may face up to one year in prison or a monetary fine.

Justifiable Grounds for Abortion

Consent
Consent is explicitly recognized in Article 5 of the Population Planning Act. The law permits abortion only if the mother consents, and only within the first ten weeks of pregnancy.
Risk to the Mother or Child
After ten weeks, abortion is only permitted if:
- The pregnancy endangers the mother’s life, or
- The child or its siblings are at risk of severe impairment, as confirmed by a gynecologist or specialist.
Emergency Situations
If the mother’s life or vital organs are in immediate danger, a doctor may perform an abortion as an emergency medical procedure.

Software Escrow Agent Services

A software escrow agent service agreement is a legal contract between a software developer and an escrow agent that outlines the terms and conditions of a software escrow arrangement. This type of agreement is typically used when a company or organization is licensing software from a developer and wants to ensure that they will have access to the source code in the event that the developer is unable to maintain or support the software.

The primary purpose of a software escrow agent service agreement is to protect the licensee, who is the company or organization that is licensing the software, by providing them with access to the source code in the event that the developer is unable to maintain or support the software. This allows the licensee to continue to use the software, even if the developer goes out of business or is otherwise unable to provide support.

The software escrow agent service agreement typically includes several key elements, including a definition of the software and its components, a description of the escrow agent’s responsibilities, and details about the conditions under which the source code will be released.

One of the main responsibilities of the escrow agent is to hold and maintain the source code for the software in a secure location. This is known as the “escrow deposit.” The escrow agent is also responsible for verifying that the deposited code is a true and accurate copy of the software, and for releasing the code to the licensee under the terms of the agreement.

There are different triggers that can activate the release of the software source code from escrow. These triggers are typically outlined in the software escrow agent service agreement

escrow account, Turkey, financial arrangement, third party, transaction, secure, payment, regulated, CMB, real estate, e-commerce, online transactions, international trade

An escrow account is a type of financial arrangement in which a third party holds and regulates payment of the funds required for two parties involved in a given transaction. This type of account helps to make transactions more secure by keeping the payment in a secure escrow account, which is only released when all of the terms of an agreement have been met and verified by the escrow company.

One of the most common uses of escrow accounts in Turkey is in real estate transactions. When a buyer wants to purchase a property, they will typically make a deposit into an escrow account. The funds will then be held in escrow until the transfer of ownership is complete and all necessary documents have been signed. This helps to ensure that the seller has received the necessary funds and that the buyer has a valid and enforceable claim to the property.

In addition to real estate transactions, escrow accounts in Turkey are also commonly used in e-commerce and other online transactions. In these cases, the escrow account serves as a way to protect both the buyer and the seller by holding the funds until the transaction has been completed and both parties have fulfilled their respective obligations.

Another important feature of escrow accounts in Turkey is that they offer a high level of security and regulation. Escrow companies are required to comply with strict regulations. This helps to ensure that the funds in an escrow account are safe and that the terms of the transaction are being upheld.

In addition to security and regulation, escrow accounts in Turkey also offer a number of other benefits. For example, they can help to reduce the risk of fraud and disputes by providing a neutral third party to oversee the transaction. They can also help to facilitate international transactions by providing a secure way to exchange funds between parties located in different countries.

Overall, escrow accounts in Turkey provide a valuable service to businesses and individuals by helping to make transactions more secure and by providing a regulated environment for the exchange of funds. Whether you are buying or selling real estate, conducting an online transaction, or engaging in international trade, an escrow account can help to protect your interests and reduce your risk.

Escrow is a legal concept that is used in Turkey to ensure the safe and secure transfer of funds and property. It is a process that involves the use of a neutral third party, called an escrow agent, who holds and controls the funds or property until certain conditions are met. This can provide a level of security and peace of mind for both the buyer and seller in a transaction.

In Turkey, escrow is commonly used in real estate transactions. When a buyer agrees to purchase a property, the funds for the purchase are placed in an escrow account, which is controlled by an escrow agent. The escrow agent will then release the funds to the seller once the necessary conditions of the sale have been met, such as the transfer of the title to the property to the buyer.

Escrow can also be used in other types of transactions, such as online transactions or the sale of goods. In these cases, the escrow agent will hold the funds until the buyer has received and inspected the goods, and the seller has received payment.

In Turkey, escrow services are typically provided by banks or other financial institutions. These institutions will have strict regulations and oversight to ensure that the escrow process is conducted in a fair and transparent manner.

Overall, escrow can be a valuable tool for securing transactions in Turkey. It allows for the safe and secure transfer of funds and property, providing peace of mind for both the buyer and seller.

In Turkey, an individual’s criminal record can only be accessed by the Attorney General’s Office or the individual themselves after a period of five years has passed since their conviction. This is in line with the right against self-incrimination as outlined in Article 76 of the Turkish Constitution.

To obtain a copy of their criminal record, an individual can authorize a legal attorney registered with the Union of Turkish Bar Associations (https://www.barobirlik.org.tr/en) to apply on their behalf. A list of registered attorneys in Istanbul can be found on the Istanbul Bar Association website (https://www.istanbulbarosu.org.tr/AttorneySearch.aspx).

For foreigners, obtaining a criminal record from Turkey requires an apostille stamp. It is important to provide a Turkish Residence ID Card or ID number to avoid issues that may arise with long Arabic names that may not be recognized by the digital system. The document will only be provided in Turkish, and if the foreigner’s country is part of an apostille agreement, it will be valid in their country and can be translated to their language if necessary. If the country does not have an apostille agreement with Turkey, the document must be approved by the Turkish Consulate in that country to prove its authenticity.

The process of obtaining a criminal record from the Attorney General’s Court department typically takes only a few hours.

Meta keywords: Turkey criminal record check, apostille stamp, Turkish Constitution, Union of Turkish Bar Associations, Istanbul Bar Association, Turkish Residence ID Card

Meta description: This guide explains the process of obtaining a criminal record check in Turkey, including the requirements for apostille stamp and the role of the Union of Turkish Bar Associations and Istanbul Bar Association. The article also covers the importance of having a Turkish Residence ID Card to avoid issues with digital system and the maximum time to get the records.

The company will be terminated in accordance with the legal reasons for termination and the decision of the shareholders. The terminated company will then begin the liquidation process. This will be reflected in the trade registry directorate, and the company will be known as “in liquidation.”

The purpose of liquidation is to sell the company’s assets, collect outstanding debts, pay off any liabilities, and complete any unfinished business. The liquidation process will be managed by liquidation officers, at least one of whom must be a Turkish citizen and resident in Turkey. These officers may be appointed by company agreement or general assembly resolution, and their appointment must be registered and announced in the trade registry.

Creditors will be informed of the liquidation by registered letter, and other creditors will be notified through three announcements in the Turkey Trade Registry Gazette, the company’s website, and in accordance with the articles of association. The liquidation officers will prepare financial statements at the end of each year and present a final balance sheet to the general assembly at the end of the liquidation.

Once the company’s debts have been paid and shareholders have received their returns, any remaining assets will be distributed among shareholders based on their paid-in capital and privilege rights, unless otherwise stipulated in the articles of association. In the event of a concession in the liquidation share, the regulations in the articles of association will apply.

Distribution of remaining assets will not occur until six months have passed since the date of the third announcement to creditors. Upon the completion of liquidation, the liquidation officers will apply to the trade registry directorate to have the company’s trade name removed from the register. This will mark the end of the company’s legal entity.

In the event of bankruptcy, liquidation will be carried out by the bankruptcy administration in accordance with the Enforcement and Bankruptcy Law.

escrow agreements in Turkey

Escrow agreements are a useful tool for protecting the interests of both parties in a contract. They involve transferring obligations to a third party, known as the escrow agent, in order to secure payment. This type of agreement is often used in real estate transactions, but can also be applied to other types of contracts.

There are several key elements to an escrow agreement. The first is the parties involved. There are three main parties in an escrow agreement: the transferor, who agrees to transfer assets or make a payment; the transferee, who will receive the assets if certain conditions are met; and the escrow agent, who holds the assets until the conditions are satisfied. Both individuals and legal entities can be transferors or transferees, and there may be more than one of each party involved in an escrow agreement.

The legal relationship behind the escrow agreement is also important. In most cases, escrow agreements are written contracts that include provisions such as the details of the assets involved and the conditions for transferring them.

The assets involved in an escrow agreement can be money, securities, or other valuables. It is important that these assets are clearly defined in the agreement.

Finally, there are the conditions for transferring the assets. These conditions must be clearly stated in the escrow agreement and must be met before the transfer takes place.

The escrow agent has a duty to act in good faith and must be neutral in the performance of their duties. They are responsible for holding the assets until the conditions of the agreement are met, at which point they will transfer the assets to the transferee.

In the event of a dispute regarding an escrow agreement, the parties have the option of resolving the issue through arbitration or by taking the matter to court.

By understanding the key elements of escrow agreements and the legal requirements in their jurisdiction, businesses can confidently utilize these agreements to ensure the smooth completion of their transactions.

nominee director services — contact cindemir@cindemir.av.tr

Turkish lawyers can help you find a nominee director in Turkey, who can assist with the management of your company when you are not in the country. A nominee director can handle tasks that are required by law, such as paying taxes, going to banks, and signing contracts, on your behalf. Under Turkish law , legal entities can take an action on behalf of a company as well. In this sense, as a law office we can assist you to find such type of management companies which will run your company as a nominee director. In the establishment of the company process, we can help you to arrange for director nomination in case that you will recieve services from such companies.

If you appoint a nominee shareholder, they will appear to be the owner of your company’s shares, while you retain all of the rights and benefits of the shares, such as the ability to sell the shares, receive dividends, and vote at general meetings. Nominee directors and shareholders are often chosen from the entrepreneur’s family or trusted friends.

There are several legitimate reasons to use a nominee director arrangement, such as maintaining confidentiality about your ownership of a company and complying with the requirement that at least one director be a locally-resident person. For example, if your business is expanding into a new market and you want to keep your involvement a secret from potential customers, suppliers, or distributors, a nominee arrangement may be helpful.

However, it is important to be cautious when using a nominee director arrangement, as there are risks involved. These risks can include a breakdown in the relationship with the nominee, the nominee demanding more payment or treating the shares as a gift, the nominee passing away or losing mental capacity, the nominee becoming uncontactable, the nominee taking actions contrary to your wishes or intentions, or the nominee disclosing the arrangement to others. To minimize these risks, it is recommended to set up a proper nominee structure using written documents, such as a trust declaration or a shareholders’ agreement. It is also advisable to seek legal advice before using a nominee director arrangement.

The following are sexual offences against sexual inviolability in Turkey;

Sexual assault (Art.102) (cinsel suçlar)
Sexual abuse of children (Art.103) ( cocuklarin cinsel istismari)
Sexual intercourse with the person who has not attained the lawful age (Art.104)
Sexual harassment (Art.105) ( Cinsel Taciz)

Sexual Assualt

This is the infringement of a person’s physical morality by sexual conduct.

Penalty

Any person found guilty of this crime will be sentenced to imprisonment for a term of five to ten years. Where it is a case of molestation, the offender will be liable to imprisonment for a period of two to five years.

In a situation where such an act is committed by inserting an object into the body of the victim, such an offender will be liable to a punishment of not less than twelve years in prison. Note that the prosecution in the above situations is instigated upon complaint by the victim.

Where the act leads to the death of the victim or leaves the victim in a vegetative state, the penalty shall be that of life imprisonment.

Some occasions are considered aggravating. The penalties imposed here shall be increased by half. It is considered aggravating when the offence is committed;

against a person who is physically or mentally incapable of defending himself.
By misusing the influence derived from a position in public office or a private working relationship.
Against a person in a first, second, or third-degree blood relationship or a relative by marriage, stepdad, stepmom, step-siblings, or adoptive relations.
By using weapons or together with the cooperation of more than one person
By enjoying the convenience provided by the environment where the people have to live together.

Marital Rape

This is where the offender’s spouse is the victim of such sexual conduct. Here also, investigations and prosecution shall only commence upon the complaint of the victim in question. The court of cassation has held that sexual acts falling short of rape done without the requisite approval between the spouses is not an offence.

However, several Turkish lawyers do not support this interpretation of the court.

Note

The force which is commonly used in the commission of sexual assault does not invoke a separate punishment. Where it, however, leads to intentional injury, the provisions of the law with regards to intentional injury will apply.

Sexual Abuse of Children

Sexual abuse here means;

All kinds of sexual behaviour against children who are under the age of fifteen or against those who attained the age of fifteen but cannot understand the legal consequences of such actions.
Sexual behaviours committed against other children by force, threat, fraud or any other reason affecting willpower.

Penalty

An offender of such an act will be liable to imprisonment between eight to fifteen years. Where it is molestation only, the penalty will be imprisonment from three to eight years. If the victim is under the age of twelve, the term of imprisonment cannot be under ten and five years in the former and latter cases respectively.

Where an organ or object is inserted into the body of the victim, the offender shall be convicted for imprisonment of not less than sixteen years. The period of confinement cannot be eighteen years where the victim has not attained the age of twelve.

Note that the penalty of life imprisonment shall be imposed where

The violence used in the commission of the offence results in serious effects of intentional injury.
The offence leaves the victim in a vegetative state or dead.

The following circumstances are considered aggravated of which the penalties shall be increased by half.

Where the offence is committed;

Together with the cooperation of more than one person.
By enjoying the convenience provided by the environment where the people have to live together.
Against a person of first, second, third-degree blood relationship or a relative by marriage, adoptive relations or stepdad, stepmother or step-siblings.
By the guardian, tutor, instructor, custodial parents or those who provide healthcare or are under an obligation to protect, care or supervise.
By misusing the influence derived from a public office position or a private working relationship.

Art 103 goes ahead to provide for two additional circumstances considered aggravating but dependent on the age range of the child victim. They are:

If the crime is committed through the use of force or threat against children who are under the age of fifteen or against those who attained the age of fifteen but cannot understand the legal consequences of the act.
If the crime is committed by using a weapon against other children, namely those who attained the age of fifteen and have the ability to understand the legal consequences of the act. In these circumstances.

The penalty for the above circumstances shall be increased by half.

Sexual Intercourse With the Person Who Has Not Attained the Lawful Age

A person who has sexual intercourse with a child who has obtained the age of fifteen without force, threat or fraud is liable to imprisonment for a period of two to five years.

The offender will be sentenced to a period of ten to fifteen years in prison without complaint where ;

The offender is under the restraint of marriage with the victim.
The offence is committed by a person who takes care of the child to be adopted before the adoption.
The offender is a person who is under a legal obligation to protect, care and supervise the child within the scope of the foster family relationship.

Sexual Harassment

This sexual offence is quite different from the above mentioned sexual offences. Unlike the others which require physical contact, sexual harassment does not.

Penalty

Any person found guilty of this offence shall, upon the complaint of the victim, be sentenced to a period of three months to two years in prison or liable to pay a judicial fine.

If the victim of the sexual harassment is a child, the offender shall be sentenced to prison for a period of six months to three years.

Certain circumstances are considered aggravating and the penalties imposed shall be increased by half. They are where the offence is committed ;

By using influence derived from a public office position or a private working relationship or using the advantage of the intra-familial relationship
By the guardian, tutor, caregiver, instructor, custodial parents or by those who provide healthcare or are under the obligation to protect and supervise.
By using the advantage of working in the same workplace with the victim
By using the advantage provided by mail or electronic communication instruments.
By indecent exposure.

Note that if the victim of an act of sexual harassment was made to quit his/her job, or leave school or family, the punishment given shall not be less than one year.

Bodily Harm

Intentional Injury

To act intentionally means to do something on purpose and deliberately.

Injury simply means damage or harm to one’s body.

Intentional injury means knowingly causing harm to another person. It can also mean to effect an act which will probably lead to the damage of a person’s fitness and mental strength.

Penalty

Any person found guilty of this crime will be sentenced to imprisonment for a period of one to three years.

To every general rule, however, there is an exception. Here, where the consequence of the effect of an intentional injury is not grievous, the punishment for the offender becomes imprisonment for a period of four months to one year. In some cases, a judicial fine only can be required.

Note that prosecution against this crime is commenced ex-officio. This means that the action against the accused is commenced upon the complaint of the victim.

There are circumstances of intentional injury that the Penal Code considers exacerbating.

In the event of such situations, no complaint is required before the prosecution acts and the penalty shall be increased by one half.

Committing the offence;

Against antecedents or descendants, or spouse or brother/sister.
Against a person who cannot protect himself due to corporal or spiritual disability.
Against a person because of his duties as a public officer
On account of a public officer misusing his influence; or
By use of a weapon
Ferociously

Abortion

The population planning Act of 1983 and the Penal Code are the laws that provide for abortion. The former act provides for abortion generally while the latter act provides some specific laws with relation to abortion.

Article 99 of the TCC which governs abortion by third parties provides that;

Whoever aborts the child of a woman without her consent will be sentenced to a prison term of between five to ten years.
Whoever aborts the child of a woman without medical necessity, even with the

woman’s consent after the pregnancy has gone past the tenth gestation week, will be sentenced to between two and four years in prison.

Note that where the woman in question consents to the abortion, she will be sentenced to up to one year in prison or will be subject to pay a fine.

Grounds for justification of Abortion Consent

Consent as a ground is exclusively provided for in Article 5 of the population Planning Act. The law permits abortion where the consent of the mother is obtained. This, however, is allowed only until the end of the tenth gestation week.

Abortion as a result of Risk to the child or siblings

Where the pregnancy is beyond ten weeks, then the only justified grounds for abortion are;

If the pregnancy endangers the life of the mother.
If the child or later siblings were severely impaired. Here, the diagnosis of the gynaecologist or any other specialist doctor must be provided.

Emergency

In situations of an emergency, if the life of the mother or her vital organs is threatened, abortion may be carried out by the doctor.

If the parties have a valid reason for terminating the employment contract, they may do it immediately.

Introduction :

One of the grounds for termination expressly listed in Articles 24 and 25 of the LC exists, the parties to an employment contract with a defined or indefinite term may terminate the contract without complying with the notice periods, this sort of termination is also known as “instant termination.” It’s worth noting that the lawful termination of employment control is governed differently for employees and employers. The grounds for rightful termination for employees are regulated by Article 24 of the LC, whereas the grounds for rightful termination for employers are regulated by Article 25 of the LC.

Termination Of The Contract By Employees

Article 24 of the LC, which governs the grounds for legitimate termination of employees, divides them into three categories:

Health Concerns
Situations That Violate Moral Principles And Good Faith.

Health Concerns

Health difficulties may be utilised as a legal basis for an employee terminating his or her employment contract in a variety of ways (Art. 24/I). For example, an employee may terminate his or her employment contract if the execution of his or her work endangers his or her health or life for whatever reason. The employee has the right to terminate the contract regardless of whether or not that cause could have been anticipated at the time the contract was signed.

Furthermore, if the employer, his representative, or another employee with whom he or she has direct or indirect contact is infected with an infectious disease or a disease that makes it impossible for him or her to perform his or her duties, the employer, his representative, or another employee with whom he or she has direct or indirect contact may terminate this contract of employment.

Situations That Violate Moral Principles and Good Faith

In all the below-mentioned cases, the employee can terminate the contract immediately with just cause.

When an employer misleads an employee regarding an important aspect of the contract by erroneously misrepresenting work conditions or giving him/her misleading information after the contract is signed ( 24/2-(a) LC). • when an employer talks or acts in a manner that is an offence against the employee’s or a member of the employee’s family’s honour or reputation, or when the employee experiences sexual harassment (Art. 24/2-(b) LC).
when an employer teases or threatens the employee or a member of his/her family, encourages them to commit an illegal action, commits an offence against them, which requires imprisonment; or makes a serious and groundless dishonourable accusation against the employee ( 24/2-(c) LC).
Where an employee is sexually harassed at work by another employee or a third party, and the employer fails to take necessary measures to prevent recurrence of such events after being told ( 24/2-(d) LC ) It’s worth noting that if the employer engages in sexual harassment, the employee has the right to cancel the contract with just reason. If sexual harassment occurs in the workplace and is perpetrated by another employee or a third party, the employee can terminate the contract with reasonable cause only if the employer fails to take necessary measures to prevent recurrence of such instances, even though HC/She was told.
When an employer fails to calculate an employee’s wage or pay his or her image, including premiums, bonuses, in-kind benefits, and overtime payments” in compliance with the law and the contract’s conditions (Art. 24/2-(c) LC). As previously established, the parties are free to adjust working conditions at any time. Employers, on the other hand, are not above unilaterally decreasing employee wages. According to Article 22 of the LC, any change in working conditions by the employer can only be implemented after the employee has been given written notice. Changes that are not by this procedure or that are not acknowledged in writing by the employee within six working days are not binding for the employer. As a result, if the employer pays the employee less than the agreed-upon wage, the employee has the right to terminate the contract without cause.
When an employee is paid a fixed piece rate or a task rate, and the employer assigns the employee fewer pieces or a smaller task than specified in the contract, and the employer refuses to cover the employee’s deficits or continues to fail to implement the stipulated working conditions ( 24/2-(I) LC).

Act of Providence

A providential act is an unforeseen, uncontrollable external event such as a fire, flood, or earthquake. Any act of providence that forces the employee’s workplace to be closed for more than one week authorises the employee to terminate the contract with reasonable cause (LC Art. 24/3).

Termination of the Contract by Employers
Health Issues

Because of his or her willful activities, irregular life, or drunkenness, an employee may contract an illness or become incapacitated. In such instances, if the employee is absent for three consecutive workdays or more than five workdays in any month, the employer has the right to terminate the employment contract for reasonable cause.

Another risk is that an employee contracts an incurable sickness. If a health committee concludes that the sickness is incurable and incompatible with the employee’s job tasks, the employer has the option to terminate the employee’s employment contract immediately.

In instances of illness, accident, confinement, or pregnancy, the employer has the right to terminate the work contract if the situation lasts for more than six weeks after the notice periods specified in Article 17 of the LC (Art. 25/I LC). For example, an employee with one year of seniority has a four-week notice period. If this employee is sick for a total of ten weeks (4+6), the employer has the right to terminate the employee’s employment contract for cause.

Situations that are Against the Moral Rules and Good Faith

According to Article 25/2 of the LC, there are situations under this category.

If an employee deceives the employer by pretending to have the qualifications or conditions for a contract’s fundamental characteristic, or by providing misleading information or making false claims ( 25/2-(a) LC). (For example, if an employee claims to have advanced foreign language skills but does not, the employer has the right to terminate the contract without cause.
If an employee speaks or acts in a way that is offensive to the employers or a member of the employer’s family’s honour or dignity. Making a significant and baseless dishonest accusation against the employer is also a valid grounds for the employer’s termination (Art.25/2-(b)LC).
If one of the employer’s employees sexually harasses another. Furthermore, the victim of harassment does not have to be another employee of the company, according to Supreme Court precedent (Art. 25/2-(c)LC). The Supreme Court has determined that an employee’s sexual harassment of an intern is also a valid grounds for immediate dismissal.
If an employee teases the employer, a member of the employer’s family, or another employee; or when an employee arrives at work inebriated or under the influence of a substance (at. 25/2-(d) LC).
If an employee commits a dishonest act against the employer, such as a breach of trust, theft, or disclosure of the employer’s trade secrets (Art. 25/2-(e) LC);
If an employee commits a crime punishable by more than seven days in prison that cannot be suspended (Art. 25/2-(f) LC);
If an employee is away without the employer’s consent or without a good reason for two consecutive workdays, or for Evo days on the workdays following a rest day in one month, or for three workdays in one month (Art. 23/2-($) LC). Illness or disability can be used as a justification. However, as previously stated, if an employee is absent for three consecutive workdays or more than five workdays in any month due to illness or disability that is the result of his or her deliberate acts, irregular life, or drunkenness, the employer has the right to terminate the contract with just cause.
If an employee refuses to perform his or her duties despite being reminded of them ( 25/2-(h) LC), when an employee jeopardises work safety, or when an employee damages machinery, facilities, objects, or materials that belong to the workplace or are in the employee’s care even if they do not belong to the workplace, and the damage cannot be compensated by an amount equal to thirty days of his or her wage (Art. 25/2-(h) LC),

In all the above cases, the employer may terminate the contract of employment for just cause.

Absence due to an Arrest or Detention

When an employee is absent for more than the notice period (specified in Article 17 of the LC) due to arrest or incarceration, an employer will be authorised to terminate the contract of employment immediately for reasonable cause.

Absence due to detention or arrest

When an employee is absent for more than the notice period (specified in Article 17 of the LC) owing to an arrest an employer will be authorised to terminate the contract of employment immediately for reasonable cause.

Termination Procedure With Just Cause.

After six working days from the day of learning that the incident has occurred, the right to cancel the contract with fair cause based on circumstances that do not meet with the moral principles and good faith established in Articles 24/II and 25/II may not be exercised. In any situation, the parties must exercise their right to cancel the contract within one year of the action’s completion. If the employee achieves a financial profit, however, the one-year limit does not apply (LC Article 26/1).

As previously indicated, employees with at least six months of seniority and who work under an indefinite-term contract at a company with at least 30 employees are protected by law, in that their employers cannot terminate their contracts without a solid reason. Otherwise, within one month of receiving the termination notice, such employees may launch a lawsuit. The “re-employment litigation” is the name given to this action.

If the parties agree for reemployment via required mediation or in the case that the court rules the contract termination is invalid, the employee can apply for reemployment with the employer.

In this sense, the employer has one month to recruit the employee under the same terms as before the termination.

The employee who filed the reemployment case may or may not be reemployed by the employer. If the employer does not employ the employee within one month and under the same terms as before the termination, the employee is entitled to compensation equal to 4 to 8 months’ gross wage. On the other hand, the employee’s wage and other entitlements are paid for a period of up to four months until the court’s ruling is finalized (Art. 21 of LC). Even if it takes more than four months for a court judgment or mandated mediation to declare the employment contract illegal, the employee is only entitled to up to four months’ wages.

The payment, wage, and other rights are determined by the court or special arbitrator based on the earnings on the date of the case (LC Art. 21/4).

Within ten working days of receiving notice of the final court ruling or special arbitral award, the employee must apply for reemployment with the employer. If the employee does not apply within this time frame, the employer’s termination will be considered lawful, and the employer will be exclusively accountable for the legal repercussions (Art. 21/6 of L).

If the employee is rehired, the compensation instead of notice and the severance pay provided in advance are removed from the pay for the period until the court ruling is finalized (LC Art. 21/5). Employment of the employee’s wage and other entitlements for up to four months.

In case the employee is rehired, the money instead of notice and severance pay received in advance will be deducted from the pay the employee receives. If the employee is not rehired by the employer, the employee’s compensation is not subject to a notice period, and the payment for the notice period is not made in advance (LC Art. 21/5).

To conclude, if an employer annuls an employment contract of an employee who is covered by employment security without a justifiable reason and if an employer does not reemploy the employee, the employee is entitled to severance pay, a no compensation payment of 4 to 8 months of the employee’s wage; and the employee’s wage and other entitlements for up to four months (if the employer has not provided a notice period or made the payment for the notification period in advance).

termination of employment contract

Introduction

In principle, indefinite-term employment contracts can be ended by serving notice on the other party by the terminating party.” The parties to such contracts do not agree on the length of the contract, hence the employment contract does not have an end date. However, as previously stated, the parties cannot be expected to be bound by an employment contract for an indeterminate amount of time. As a result, the LC permits both the employer and the employee to terminate an indefinite-term employment contract on notice, as long as the notice period is followed.

Notice Periods of Termination

The contract of employment ceases after the notice period, which is regulated in Article 17 of the LC in accordance with the employee’s seniority, whenever a termination notice is served by the employer or the employee. The contract will expire, according to this report;

In the case of an employee who has been employed for less than six months, after the second week following the termination notice;

After the fourth week following the notice of termination, in the instance of an employee whose employment lasted six months to one and a half years

After the sixth week following the notice of termination in the case of an employee who has worked for one and a half to three years;

At the conclusion of the eighth week following the notice of termination in the case of an employee who has worked for more than three years.

The above-mentioned termination notice durations are the minimums, and the parties are not permitted to lower or eliminate them from the employment contract. Unless the contract is terminated, the parties may agree to extend these terms. It hinders parties from using their right to sue. The purpose of the termination notice period is to give the employee time to locate other work while also giving the business time to hire new employees. For this purpose, employees have the right to look for new work for at least two hours every day.

On the other side, the employer has the option of terminating the employment contract by prepaying the employee’s wage for the notice period. In such instances, the parties do not need to wait until the notice time has expired before terminating the contract. The contract is considered canceled on the day of prepayment, according to Supreme Court Decisions.

Termination of an employee’s employment contract that benefits the employee’s job security

Overarching

Although both the employer and the employee have the right to terminate the employment contract by notice, the employer must have a sufficient reason to do so when the employee is within the scope of employment security.

Individual Labor Law in Turkey

Employee job security is a concept aimed at preventing employees from losing their employment. Employees might feel more secure about their future and less afraid about losing their pay, which is their primary source of income for them and their families if they have job security.

Employment Security’s Scope

Article 18 of the LC regulates the scope of employment security. As a result, if the employee works under an indefinite-term contract in an entity with at least 30 workers and has at least six months of seniority, the employer must depend on a solid basis to terminate the contract of employment.

To be eligible for employment security, the employee must first operate under the scope of the LC or the Code on Regulation of Employee-Employer Relationships in the Press Sector1 (number 5953). As a result, government servants or workers operating within the scope of TCO do not have job security.

Second, in order for an employee to have job security, the enterprise must have at least 30 employees. When an employer has more than one workplace in the same field of activity, the total number of employees in all of these workplaces is used to calculate the number of employees (LC Art. 18/4). When calculating the total number of employees, all employees must be considered, regardless of the type of employment contract they are bound by. Temporary employees or subcontractor employees, on the other hand, are not considered because they work for a separate company.

Finally, the employee must have worked for the company for at least six months to be eligible for job security. The employee’s six-month minimum seniority will be determined by adding his or her length of service at one or more of the same employer’s workplaces (LC Art. 18/4). The workplaces, in contrast to the second criterion, may be in distinct branches of activity. Employees working at subterranean operations, on the other hand, are exempt from the need for six-month minimum seniority (LC Art. 18/1).

Fourth, the individual must be employed under an indefinite contract of employment. Employees on a fixed-term contract are not covered by job security provisions.

Finally, job security does not apply to the employer’s representative and his or her assistants who are authorized to manage the entire company, as well as the employer’s representatives who are permitted to manage the entire workplace as well as recruit and fire employees.

Termination on Reasonable Grounds

Article 18 of the LC specifies the legal reasons for terminating a contract of employment. As a result, the employee’s ineptitude, behaviors, and causes resulting from the company, workplace, or labor are all-sufficient grounds for terminating a contract of employment.

To begin with, employee incompetence means that the employee is less productive than a comparable employee doing a similar job; or that the employee is ineligible for the job; or that the employee is incapable of learning and self-development; or that the employee underperforms in proportion to his or her abilities 147.

Second, when the employee’s behavior is not to the point where the contractual connection becomes uncomfortable for the employer, but his or her actions disturb the job or have an adverse effect on the task. These behaviors are judged to be a solid reason for terminating the employment contract48.

Finally, factors such as a drop in sales, orders, or demand; an economic downturn; or the adoption of new technologies or working techniques by the company are all deemed sufficient grounds for employers to terminate the employment contract. 49,

Even if an employer may depend on one of these legal reasons for termination, according to the “ultimate remedy” principle (ultima-ratio / son çare ilkesi), all other conceivable procedures that would maintain the work connection must have been explored before terminating the contract 150. Otherwise, the termination of the employment contract will be regarded as null and invalid.

The notification of termination, on the other hand, must be in writing in order for the termination to be legitimate. The notification and termination will be null and void if this is not the case.

homicide

Serious criminal offences against life are regulated by the Turkish Penal Code (“TCP”) and covers acts of homicide and suicide.

Homicide

Voluntary Manslaughter – Intentional Killing/Homicide (Article 81-83 TCP)

Voluntary manslaughter may be regarded as one of the most serious offences and is defined as willfully and unlawfully ending the life of another human being. Therefore, it is the deliberate killing of a person for which the offender can be imprisoned for life.

The sentence depends on the circumstances of the offence that would increase the severity of the act. The following circumstances are likely to result in being sentenced to heavy life imprisonment:

Planning; or
Use of nuclear, biological or chemical weapon to cause destruction; or
Intentionally killing a spouse, family members, a child, a disabled person, a pregnant woman or someone who is unable to protect themselves; o
Blood feud; or
Being ferocious or brutal; or
By virtue of public office; or
Resentment by the offender because they are unable to commit an offence; or
Intention to conceal or facilitate the commission of an offence.

To prove that an offender has committed voluntary manslaughter, the elements of a crime must be present, namely the guilty act (actus reus) and the guilty mind (mens rea). The mens rea is particularly important to determine voluntary manslaughter, and the Court of Cessation provides the following guidance on factors to consider regarding the offender’s behavior:

Whether there is animosity between the parties and the extent and reason;
Nature, place and quantity of the wounds inflicted;
Whether the offender targeted vital organs of the victim (heart, lungs, etc.);
Choice of weapon used by the offender and how deadly it is;
Course of events leading to the offence and the underlying reasons;
Whether the offender had a chance to choose the victim;
Offender’s behavior towards the victim after the offence was committed.

The TCP also covers acts of omission (failure to act) that result in voluntary manslaughter. In these circumstances, the offender may be sentenced to 20 to 25 years instead of heavy life imprisonment and 15 to 20 years instead of life imprisonment.

Suicide

Under Article 84 TCP, someone who incites, directs or encourages another to commit suicide is guilty of an offence. Imprisonment may range between 2 to 5 years or 3 to 8 years (incitement and encouragement), or 4 to 10 years (where death occurs).

The smuggling of migrants

Article 79 of the Turkish Penal Code (“TPC”) regulates crimes regarding the smuggling of immigrants. The smuggling of migrants is defined as assisting foreign nationals to enter or stay illegally in Turkey or assisting foreign nationals or Turkish citizens to leave Turkey illegally with the intention of directly or indirectly obtaining a material benefit. Such assistance may be in the form of providing transportation means or even false passports. Article 79 TPC stipulates penalties of three (3) to eight (8) years imprisonment and hefty monetary fines for migrant smugglers. If the crime is committed by perpetrators who are acting as an organization, the penalty imposed will be increased by half.

Human trafficking

Human trafficking differs from migrant smuggling. According to Article 80 TPC, human trafficking is committed with the intention of making someone or the victim work or serve, or subjecting them to prostitution or persuading someone to give up their bodily organs through pressure, use of force, threats, coercion, use of undue influence or to secure their consent by deception or exploiting them. Therefore, the consent of the victim is void for this type of offence. A perpetrator who makes someone enter or leave Turkey, kidnap, supply, take from one place to another, transfer or provide shelter will be sentenced to eight (8) to twelve (12) years imprisonment and a significant monetary fine. If the perpetrator in question is younger than eighteen (18) years of age, the sentence will be applied, even if he or she did not use any threats, coercion, use of force or undue influence.

Both offences are considered different types of international crimes given their serious nature. The TPC also covers crimes of genocide (Article 76), crimes against humanity (Article 77) and setting up an organization for the purpose of committing genocide and crimes against humanity (Article 78).

Individual offences

In the TPC, offences against an individual refer to a broad array of criminal offences which usually involve bodily harm or other actions committed against the will of an individual. Those involving bodily harm include soliciting suicide (Article 84) and homicide, whether it is intentional (Articles 81 to 83) or negligent (Article 85).

SOFTWARE END USER LICENSE AGREEMENTS
When you click “Accept” on a piece of software, a software end-user license agreement protects you and your users by governing liability on both sides. This can be an app for cell phones or tablets, a system, or more complex custom software for a business.

We make sure that your contract is tailored to your company, its activities, the laws in your country and the countries where your customers are located.

SOFTWARE LICENSING

We offer corporate advice for clients around software licensing and negotiating contract terms with third parties – this could be for a mobile app or game that uses open source software or that relates to a brand being used under license such as from a movie or TV show.

We review contracts and draft agreements on licenses and other intellectual property rights.

WEBSITE LEGAL COMPLIANCE

Whether you run an e-commerce or brochure site, a social network or a blog, any website visited by a UK or EU citizen must have the appropriate licence:

At Digital Law, website compliance is more than just a legal requirement. It’s a way to ensure complete transparency between you and your website visitors. We help you implement all of these requirements in plain English – with solid, straightforward, jargon-free advice.

WEBSITE SMALL PRINT Packet

We offer a website small print package that provides good governance for both SMBs and large enterprises. This includes terms of use, a privacy policy and a cookies list – the three most important elements to ensure your website terms are watertight and up to date.

Terms of Use

Terms of use are essential to limit liability for your website. They make it clear who you are on your site, what you are responsible for, and whether what you say should be taken as professional advice or opinion. To be watertight, they must be specific to your business, the activities on your website, and the countries in which you operate.

Privacy Policy

A privacy policy provides clarity on how personal data is handled – that is, data about users that has been collected, stored, processed, transferred or deleted through your website. It is also necessary to comply with the GDPR and detail how users can exercise the rights granted to them by the GDPR, such as the right to be forgotten and the right to access their data.

Cookies

Turkish law requires that you list all cookies that collect data on your website. These can be analytics cookies that collect information about users, such as their location and the pages they visit, to third-party cookies that collect more detailed user data.

E-COMMERCE COMPLIANCE

The Turkish Data Protection Law (“TDPL”) was drafted similar to the EU’s Directive 95/46/EC, which was abolished by the EU General Data Protection Regulation (“GDPR”).

The TDPL requires data controllers to register with the Turkish Data Protection Authority (“TDPA”) and to notify them of processing activities of their data subjects, including:

The name and address of the controller and its representative, if any;
The purpose or purposes of the processing;
The recipients to whom the data might be transferred;
The method and legal basis for the collection of personal data; and
The data subjects’ rights.

As such, data controllers have an obligation to inform their data subjects about the processing operations they will carry out over the subject’s personal data, which is similar to the GDPR. Based on a recent decision by the TDPA, this processing requirement is also applicable to data controllers located outside of Turkey that carry out personal data processing activities in Turkey directly or through its branches or any of its associated offices.

The obligation to notify the TDPA under the TDPL is usually done by providing information to the data subjects by means of a privacy notice. The TDPA has taken an active role in publishing guidelines to complement the TDPL, including issuing a communiqué to elaborate the content of privacy notices, in that, privacy notices must be written in a way that they are easily understood by the intended audience.

Notably, even if a privacy notice may be compliant with the GDPR, it would not automatically be sufficient to meet the requirements of the TDPL as the TDPL is a bit more comprehensive with its additions and revisions. Therefore, the privacy notice would need to be amended in order to be presented to Turkish data subjects.

Accordingly, for data controllers that have to comply with the TDPL, GDPR, or both, it would be prudent for them to adopt a data processing model that would meet the obligations of the relevant data protection authorities across multiple jurisdictions.

Information technologies and the Internet have found a place in our lives and has made it very easy with innovations. However, the result of these developments is that our personal information is transferred to the technological environment and has made us susceptible to illegal activities such as blackmail and threats. Because of the increase in these activities, legislation such as the Turkish Criminal Code No. 5237 (the “Turkish Criminal Code”) has emerged to protect victims of these crimes.

Article 106 of the Turkish Criminal Code makes it a criminal offence to threaten another individual by attacking their life, body integrity or sexual immunity or that of their relative(s). The offence also extends to property damage.

The crime of blackmail is where the perpetrator compels the victim to do or not to do something unlawful or not liable or to gain an unfair advantage by mentioning that he will or will not do something that he is right or obliged to do. If the person who violates the privacy of her private life provides an unfair advantage with the threat of revealing it, he is punished for the crime of blackmail (Article 107 Turkish Criminal Code).

These types of crimes are typically carried out by targeting victims through social media platforms such as Facebook, or LinkedIn, internet applications like Skype and websites or even in person. The perpetrator then attempts to establish communication with the victim through devices such as smartphones, computers and tablets. This way, the perpetrator can threaten to expose embarrassing information in order to coerce money or other goods or forms of cooperation out of the victim. Therefore, people should exercise caution and remember that anything done on the internet is recorded.

If a threat or blackmail crime has been committed, it is important that the victim gathers all information about the perpetrator as evidence such as screenshots, photographs or profile information to file a criminal complaint with the relevant authorities. Where the authorities conduct their investigations and it is found that the perpetrator is guilty of an offence, he or she will be imprisoned from 6 months up to 2 years in the case of a threat crime and from 1 to 3 years and a judicial fine of up to 5,000 days for blackmail crime. The sanction will be applied according to the severity of the threat or blackmail and the damage to the victim.

As an alternative to international refrugee protection, under Turkish law a foreigner may also seek for humanitarian residence permit. This residence permit type has an advantage as compared to international protection from the aspect of the location of residence. In international protection, the administration will show a location to the applicant where to reside and this location is generally a small city. However, you can request humanitarian residence from the place you reside. Application petition for explaining legal grounds for permit must be

Humanitarian residence permit shall be regulated by Articles 46 and 47 of the Law on Foreigners and International Protection No. 6458.

Besides, humanitarian residence permit shall be regulated by Article 44 of the Regulation for Implementation of the Law on Foreigners and International Protection.

Who May Apply To Humanitarian Residence Permit?

– VVhere the best interest of the child is of concern;

– Where, notvvithstanding a removal decision or ban on entering Turkey, foreigners cannot be removed from Turkey or their departure from Turkey is not reasonable or possible,

– In the absence of a removal decision in respect of the foreigner pursuant to Article 55.

– Where is a judicial appeal against the actions carried out pursuant to Articles 53,72 and 77;

– Throughout the removal actions of the applicant to the first country of asylum or a safe third country;

– İn cases when foreigners should be allowed to enter into and stay in Turkey, due to emergency or in vievv of the protection of the national interests as well as reasons of public order and security, in the absence of the possibility to obtain one of the othertypes of residence permits dueto their situation that precludes granting a residence permit;

– İn extraordinary circumstances humanitarian residence permit may be issued.

For How Long Can Humanitarian Residence Permit Be İssued?

Humanitarian residence permit shall be granted or renevved by the governorates subject to the approval of the General Directorate, provided that they are limited to the specified times by the Ministry.

What Are The Conditions For Humanitarian Residence Permit?

Conditions attached to other types of residence permits shall not be sought vvhile issuing humanitarian residence permit.

What Are The Reasons Of Refusal, Cancelation Or Non-Renev;al Of Humanitarian Residence Permit?

The humanitarian residence permit shall be cancelled and shall not be renev/ed by the governorates in cases vvhere the compelling conditions no longer apply, subject to the approval of the Ministry.

Other Circumstances Related Humanitarian Residence Permit

Foreigners that are granted humanitarian residence permit should get registered with the address based registration system no later than twenty vvorking days as of the issuance date.

Foreigners holding humanitarian residence permit, vvithin the duration of this permit, may apply for one of the other residence permits, except for the long term residence permit, as long as they meet the requirements.

Durations of humanitarian residence permits shall not be added to the total duration in calculation of residence permit durations determined by the Law.

limits of the will — cindemir@cindemir.av.tr

Under Turkish Law, there are two (2) types of dispositions or transfers of property that take effect upon the death of the person making it (also known as a “testator or testatrix”), namely agreements of inheritance and wills.

Agreements of inheritance. Pursuant to CC. Art. 545, an agreement of inheritance is a legal contract where the testator/testatrix agrees to pass their property to their heirs. Unlike a will, this contract is a bilateral agreement.

Wills. Under CC. Art. 502, a will is a legal document that coordinates the distribution of a person’s estate, which would take effect after that person dies.

Wills may take three (3) forms:

An official will is prepared by a law officer, such as a notary or peace court pursuant to the testator’s instructions.
A halographic will is written by the testator/testatrix in handwriting. The testator/testatrix must be at least 15 years old and mature for the will to be valid.
An oral will or a “soldier will” is an oral declaration of the testator that is executed in exceptional circumstances where it would be impossible to execute a halographic or official will. Such circumstances include war, danger, or a serious epidemic illness.

The law imposes limits on a testator/testatrix who wants to dispose of their estate by means of the ‘reserved portion’ principle. This principle aims to preserve a specific percentage of the deceased’s estate in favor of close relatives or “privileged heirs” including descendants (children), ascendants (parents), brothers and sisters and surviving spouses. As such, not everyone who is entitled to inherit under the estate has a reserved portion. For instance, the reserved portion for:

Children would be half of their statutory share;
Parents would be one-fourth of the statutory share;
Brothers and sisters would be one-eighth of the statutory share; and
Surviving spouse depends on the closeness of the surviving heirs to the deceased. Where the parents or children of the deceased are still alive, the reserved portion is the entire amount of the statutory share. In other cases, the reserved portion is three-quarters of the statutory share.

Turkish descents and right of succession — TRAFİK KAZALARINDA YAYALARA ÇARPMA TAZMİNATIDe

Many foreigners confronted with the situation of losing their rights on inheritance stemming from their relatives in Turkey. Turkish citizens abroad generally register their children to the Turkish demographic records. However, some of Turkish citizens refrain to inform Turkish consulate about their children and these children become invisible once succession issue arises. Inheritance can be only requested for people as a family member who are officially registered under Turkish demographic records. In case registration of children lacks, Turkish courts will not accept them as an inheritor, and it may cause irreversible damages for them. If a person who is registered to family tree in Turkey and over 18, he/she needs to file a case to fix demographic records. In this case, DNA test has a main role to establish the link between the family members. Court can obtain tissue samples for DNA tests and send it to forensic for examination in order to determine the family links based on applicants claim. To be registered to Turkish family records does not grant citizenship directly without application. Therefore, in case of court’s acceptance of paternity case, the applicants claiming ancestral link will be registered to the foreigner family member records.

One of the most prominent case as a foreign element involved case in this field was Naim Suleymanoglu’s case. In Hurriyet Daily News,

“Apaternity test of the late world record-holding Turkish national weightlifter Naim Süleymanoğlu has confirmed Japanese national Sekai Mori is the daughter of “Pocket Hercules.” The remains of Süleymanoğlu, who died last November and was buried in Istanbul’s Edirnekapı, were exhumed in July after a paternity lawsuit was filed by his alleged daughter Mori. A sample of the weightlifting legend’s DNA indicated that Mori is Süleymanoğlu’s daughter, with 99.9 percent certainty. The result of the forensic medicine test means that Mori will inherit a share of Süleymanoğlu’s legacy. Mori alleges that Süleymanoğlu met with her mother Kyoko Mori, a Japanese journalist, at the 1988 Seoul Olympics. According to Mori, the couple got close and the rest is history. She requested a paternity test through her lawyer and Turkish officials decided to exhume the remains of Süleymanoğlu in order to obtain tissue samples for DNA tests. The weightlifting legend has two other daughters, Esin and Sezin Süleymanoğlu, who protested the decision to exhume the body. Süleymanoğlu never married. Süleymanoğlu died at age 50 in November 2017 after he was admitted to an Istanbul hospital due to liver failure caused by cirrhosis.” (source : https://www.dailysabah.com/turkey/2018/08/08/paternity-test-confirms-naim-suleymanoglus-japanese-daughter)

In that case, allegedly daughter Sekai Mori is found 99.9 percent certainty linked with deceased Olympic champion. Sekai Mori decide to come to the country in order to give dna samples Turkish court. However, in some cases coming to Turkey is not always possible due to many reasons like health problems, transportation and etc. In that case, it is possible to use judicial cooperation treaties concluded among the states. Turkish court can request to collect evidence with a rogatory letter from foreign court. Therefore, dna samples can be also request from other jurisdictions by the help of treaties envisaging collection of evidence.

Any company incorporated under the laws of a foreign country may establish a liaison office (aka representative office) in Turkey upon obtaining a license from the Ministry of Industry and Technology, provided that the company does not engage in any commercial activities in Turkey. To establish a liaison office, the following documents should be submitted to the Ministry of Industry and Technology, General Directorate of Incentive Implementation and Foreign Investment (GDIIFI).

Application form*
Statement outlining the works to be conducted by the liaison office, an undertaking that the office shall not engage in any commercial activities*, and proof that the signatory to the statement is fully authorized by the company
A certificate of activity issued by the foreign country and verified by the relevant Turkish Consulate or in accordance with the provisions of the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (the Apostille Convention)
A certificate of activity issued to foreign companies or balance sheet and income statement
A certificate of authorization issued to the individual(s) appointed to conduct the activities of the liaison office
A power of attorney in the event that the procedures for establishing the liaison office are carried out by another representative

*May be obtained from the Ministry of Industry and Technology

In the event that the original documents are submitted to GDIIFI, copies of the same shall be approved by GDIIFI. The originals shall be returned to the applicant.

During the initial application for liaison offices, licenses are granted for a maximum of three years within the scope of the declared activities. Liaison offices willing to extend their term of operation shall apply to GDIIFI before the expiration of their terms of operation. GDIIFI may conclude applications for the extension of their tenure based on the nature of activities of the office over the previous year, business plan, the company’s future objectives in Turkey, existing and anticipated amount of expenditure and the number of employees. The tenure of operation of offices licensed to conduct market research or promotion of foreign company products or services shall not be extended.

Applications for establishment and tenure extension shall be concluded in fifteen working days from the date of application provided that the requested information/documents is/are complete and accurate.

Applications submitted by foreign companies to set up a liaison office to conduct financial activities subject to special legislation such as money and capital markets or insurance shall be evaluated by competent agencies such as the Capital Markets Board of Turkey and the Banking Regulation and Supervision Agency – both being the duly authorized bodies pursuant to special legislations. The ministry may conclude foreign companies’ applications to set up liaison offices in other industries that require licenses for operations or similar authorizations, if necessary, upon consulting competent bodies that are duly authorized to issue such permits or licenses.

Copies of tax registration and tenancy agreement for the liaison office shall be submitted to GDIIFI within a maximum of one month. Liaison offices shall notify GDIIFI of any changes with regard to the office representative(s) or foreign company title within a maximum of one month following the change. Liaison offices shall produce a new tenancy agreement comprising the new address, the certificate of authorization of the newly appointed representative or the document(s) related with the change of title of the foreign company.

In the event that a liaison office terminates its operations, it shall furnish GDIIFI with a statement of termination to be obtained from the relevant tax office. Offices may not claim transfers of funds except for balances that remain outstanding upon termination and liquidation thereof.

branch in turkey — cindemir@cindemir.av.tr

Investment Office of Turkey prepared a guidance related to establishment of Branch office in Turkey. As law office, we thought the best guidance would be the source that the government provide to its citizens and its potentional foreign investors regarding branch in Turkey.

Branch Office

No shareholder.
Not an independent legal entity. Its duration is limited to the duration of the parent company.
No capital requirement, however, it would be wise to allocate a budget for the operations of a branch office.
A branch office may be incorporated only for the same purposes as those of the parent company.
Repatriation of branch profit is allowed. The branch profit transferred to the headquarters is subject to dividend withholding tax at a rate of 15 percent, which may be reduced by Double Taxation Prevention Treaties.

An application with the following documents must be submitted to the relevant Trade Registry Office for the registration of a branch:

Petition (must be signed either by an authorized signatory under the company seal or by proxy; if signed by the latter, then the original or the notarized copy of the power of attorney must be attached to the petition)
The resolution of the competent organ of the parent company to open a branch
A certified original copy of the parent company’s articles of association
Certificate of Activity of the parent company or any equivalent documentation that sets forth registration and current status of the parent company
A power of attorney granted by the parent company in favor of its resident representative, assigning full representation and accountability
Five copies of the Establishment Declaration Form (the related fields must be filled and signed by the authorized person)
Two copies of the power of attorney stating the representative in Turkey
If the branch representative is a Turkish national, a notarized copy of his/her ID card. If not, a notarized copy of the authorized representative’s passport translated into Turkish
Two copies of the signature declarations of the branch representative under the branch title
A letter of commitment (must be signed by authorized person)
A Chamber Registry Declaration Form Statement to be obtained from the Trade Registry Office (including photographs of the branch representatives)

It should be noted that all the necessary documents that will be issued and executed outside Turkey must be notarized and apostilled or alternatively ratified by the Turkish consulate where they are issued. The original executed, notarized, and apostilled documents must be officially translated and notarized by a Turkish notary.

https://www.invest.gov.tr/en/investmentguide/pages/establishing-a-business.aspx

Turkey where stands as a crossroad of the civilisations, it had always been a place of asylum seekers since from its history. First international treaty of the human history can be still seen at the Istanbul Archeology Museum. Kadesh treaty was signed between Hititites and Egypt stating that “If a man flee from the land of Egypt–or two or three– and they come to the Great Prince of Hatti, the Great Prince of Hatti shall lay hold of them, and he shall cause that they be brought back to the great ruler of Egypt.”. As can be understood from written historical source, people were confronted with extradition or deportation since from 1258 BC in the geography of modern Turkey.

Turkey, while party to the 1951 Refugee Convention, maintains the geographical limitation only to people originating from Europe. Despite this limitation, it provides non-European refugees with protection and temporary asylum, pending UNHCR’s search for durable solutions elsewhere.[1]In addition, Turkey enacted a specific law related to international protection called Law on Foreigners and International Protection entered into force in 2013. Article 61 of the law particularly made the refugee definition stating:

“A person who as a result of events occurring in European countries and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his citizenship and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his former residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it, shall be granted refugee status upon completion of the refugee status determination process”

According to provision mentioned above, people coming from Europe due to the incidents can have right to apply refugee status. As can be seen, Turkey repeated the same stance on the refugee status as in the Refugee Convention. Fear of being persecuted for reason of face, religion nationality, membership of a particular social group or political opinion are mentioned as the reasons to be eligible for application to refugee status. Therefore, Turkey widely covers application comes from the people who escaped from European country. European country must be considered as the countries which are member of European Commission. Therefore, applications come from Kazakhstan and Russia standing as Eurasian countries while being part of European commission must be evaluated by Turkish authorities under the scope of this provision.

Article 62 of the law stipulates the people coming from out of European countries. This provision gives definition about the conditional refugee status:

“A person who as a result of events occurring outside European countries and owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it, shall be granted conditional refugee status upon completion of the refugee status determination process. Conditional refugees shall be allowed to reside in Turkey temporarily until they are resettled to a third country. “

As can be seen from the definition unlike Article 61 conditional refugees shall be allowed to reside in Turkey temporarily until they are resettled to a third country. Therefore, people coming outside European countries conditionally can stay in the country. However, if a foreigner or a stateless person confronts with the death penalty, torture, degrading treatment or punishment, violence in an armed conflict, subsidiary protection comes to an agenda regardless of a persons’ refugee or conditional refugee status. Article 63 holds this issue out as below:

Subsidiary Protection ARTICLE 63 – “(1) A foreigner or a stateless person, who neither could be qualified as a refugee nor as a conditional refugee, shall nevertheless be granted subsidiary protection upon the status determination because if returned to the country of origin or country of [former] habitual residence would: a) be sentenced to death or face the execution of the death penalty; b) face torture or inhuman or degrading treatment or punishment; c) face serious threat to himself or herself by reason of indiscriminate violence in situations of international or nationwide armed conflict; and therefore is unable or for the reason of such threat is unwilling, to avail himself or herself of the protection of his country of origin or country of [former] habitual residence.”

APPLICATION PROCEDURE

Application procedure is perfectly described by the UN refugee agency. In the application process, lawyer is important for preparation of your file. However, a lawyer cannot apply on behalf of you. In that regard, UN refugee agency also mentioned the instructions for applications : (source : https://help.unhcr.org/turkey/information-for-non-syrians/national-asylum-procedures-ip/)

As an international protection applicant, you will not be subjected to criminal action for irregular (illegal) entry into Turkey or irregular (illegal) stay in Turkey, provided that you give a justified reason for your irregular entry or presence. After registration with PDMM, and in accordance with the law, you should reside in the city that has been assigned to you.

Following your registration with PDMM, an International Protection Applicant ID (IPAID) will be issued for you and your family members; you will be legally staying in Turkey with your ID document. On the ID document, an individual foreigner’s ID number (99 xxxxxx), will be printed for you and for each of your family members. This ID number grants you and each of your family member the access to a set of rights and services in Turkey.

Please note that the law also obliges you to maintain regular contact with PDMM; this is done by reporting to PDMM at regular intervals and signing yourself in (“signature duty”). You will be notified of the scheduled times for your signature duty.

Complying with signature duty is very important. Unless you have presented valid reasons for why you are not able to fulfil your signature duty, PDMM may consider your international protection application as implicitly withdrawn, and accordingly issue a decision which needs to be appealed in Court. Therefore, to avoid possible deportation and lengthy court procedures, please perform your signature duty at the scheduled times.

Status determination procedure conducted by the Turkish authorities

The Turkish authorities have the primary responsibility for receiving and assessing your international protection application.

At the time of your registration with PDMM, you will be asked to provide information on your reasons for leaving your country of origin or former habitual residence; your experience following departure; and events that led to the application.

As per the law, an in-person interview should normally be conducted with you within 30 days from the date of registration; however, it is possible that it may take place later. It is important that you present yourself at PDMM at whatever time your interview is scheduled. Additional interviews may be conducted when considered necessary. National law and regulations require that the confidentiality of your identity and the information that you provide shall be respected.

As per the law, the assessment of the application will be finalized no later than six months after the date of your registration by the Directorate General of Migration Management (DGMM). Please note this may take longer. Decisions will be made on an individual basis; applications on behalf of a family will be evaluated as a single application and the decision will be valid for the whole family. Your personal circumstances and the current general conditions in your country of origin or former habitual residence will be taken into consideration in making the decision.

Appeal procedure

If your international protection application was rejected or has been considered withdrawn by DGMM/PDMM, and you disagree with the decision, you may appeal the negative decision. Appeals need to be submitted to the International Protection Evaluation Commission (IPEC) within 10 days, or alternatively to the administrative court within 30 days, of the date of the notification of the decision. If your application was considered in the accelerated procedure, or considered inadmissible, you can appeal the negative decision to the administrative court within 15 days. Should you fail to appeal the negative decision within that time, the negative decision will become final.

You may benefit from legal aid services to appeal these negative decisions. Legal aid is provided by the Legal Aid Bureaus under each Bar Association in Turkey.

[1] https://www.unhcr.org/474ac8e60.pdf

Article 62 of the law stipulates the people coming from out of European countries. This provision gives definition about the conditional refugee status:

APPLICATION PROCEDURE

Application procedure is perfectly described by the UN refrugee agency. In the application process, lawyer is important for preparation of your file. However, a lawyer cannot apply on behalf of you. In that regard, UN refrugee agency also mentioned the instructions for applications : (source : https://help.unhcr.org/turkey/information-for-non-syrians/national-asylum-procedures-ip/)

Status determination procedure conducted by the Turkish authorities

The Turkish authorities have the primary responsibility for receiving and assessing your international protection application.

Appeal procedure

You may benefit from legal aid services to appeal these negative decisions. Legal aid is provided by the Legal Aid Bureaus under each Bar Association in Turkey.

[1] https://www.unhcr.org/474ac8e60.pdf

International Apostille Services in Istanbul — Consequences of a Divorce Decision in Turkey

Obtaining Apostilles in Turkey can be complex. Avoid trusting untrained or inexperienced people who don’t understand the process well enough and who do not have intimate knowledge of the Turkish legal system and its unique demands.

If your paperwork is rejected, you will have lost valuable money and time. Don’t allow yourself to waste valuable resources in this way. Remember that you will need to have some of your documents notarized before an Apostille.

Apostille Services in Turkey (International)

What you need to know about the Hague Apostille Convention

Turkey became part of the Hague Apostille Convention in September of 1985. This was under the Convention 5 of October 1961 which abolished the requirement to legalize foreign public documents.

Turkey is now part of the Hague Apostille Convention and has introduced a legalization system for validating documents that is international and applies to all states that are party to the Hague Apostille Convention.

Any official document issued from a public institution in Turkey needs to be Apostilled before it can be used abroad. This includes documents issued by local authorities.

Competent Authority

Only a Competent Authority – one designated by the Contracting Party that has been designated by the originating Contracting Party as per the public document. Apostille certification approval in Turkey happens in Governorships and sub-Governorships. The Ministry of Justice, Justice Commission, and Heavy Penal Courts also issue Apostille approval for documents under the Ministry of Justice.

Documents Coming in From Abroad

For foreign country documents , only the applicable public institutions within Turkey can provide Apostille Certification in case the document was Apostilled or legalized by the Turkish Embassy or Consulate within the issuing country.

Apart from this, each country makes its own Apostille approvals for documents that were issued within its borders. Therefore, if a document originates from a foreign country, it needs to be apostilled in its country of issue and brought into Turkey already Apostilled.

The embassies and consulates of certain countries within Turkey provide Apostille services for documents issued from their countries. To be sure about this, contact the specific embassy or consulate and get more information about the opportunity. If such a service is not available, your documents will have to be sent back to their country of issue and be Apostilled there.

Intent of the Convention

The function of the Apostille Convention is to allow public documents which were executed in one member state of the Convention to be applicable in another member state.

The Apostille Convention frees contracting parties from having to go through the lengthy and expensive formalities of a complete legalization process by replacing it with an Apostille.

Some countries have no requirements for legalization of foreign public documents or have no concept of it in their law, and these countries have benefited from the Apostille Convention because their citizens can invoke it when they need to table a domestic public document in another remember country that requires the documents authenticated under the Convention.

What is the Effect of an Apostille?

An Apostille certifies signatures as authentic, as well as certifying that the person whose signature appears on the document was acting in the right capacity. Where appropriate, an Apostille also confirms the identity of the seal/stamp borne on the document.

The Apostille has no bearing on the actual content of the documents.

Which Documents require Apostille?

There is a wide range of documents that may require Apostille. The requirement may apply to all sorts of documents as long as they come from official institutions.

Here are some of the most commonly requested documents:

Birth Certificates

Divorce Decree

Marriage Certificates

Single Status Affidavit

Power of Attorney

Single Status Affidavit

Copies of Passports

Diplomas

Background Checks

Authorization Letter

Copy of Driver’s License

Company documents

Transcripts

Articles of Incorporation

Transcripts

Chamber Registration

Travel Consent Letter

Certification of Origin

Company Documents

Corporate Power of Attorney

Company Documents

Certification of Free Sale

Certificate of Good Standing

Judgment of Courts

Commercial Invoice

Criminal Records

Tax Certificate

Apostille Certifications for Documents Originating from Turkish Institutions

If the issuing authority is Turkish, there are still some procedures required in order to obtain Apostille approval. The Certificate of Apostille legalization has to be translated from Turkish to the official language of the country where it is going to be used. Only a certified translation office can undertake this task.

A notary will undertake the notarization after the document has been translated at a certified translation office. After this, the office of the provincial or district governor of the province where the approval is due will make the Apostille Approval and complete the entire process.

If the country of origin is part of the Apostil Convention, you will not require any further approval from embassies or consulates once this is done.

Validity

The Apostille Convention does not have standard stipulated validity period. Apostille legalizations have a validity period that varies depending on the individual country that is party. To get specific information about your document’s Apostille validity period, consult with the document’s country of use.

Non Members of the Apostille Convention

If you are looking to use your document in a country that has not enjoined itself to the Apostille Convention, there will be a different legalization procedure.

Apart from following the procedures already mentioned, the Ministry of Foreign Affairs as well as the country’s Embassy or Consulate must approve the document.

For countries that are outside of the Apostille Convention (United Arab Emirates, Algeria, Sudan, Palestine, Nigeria, Qatar, Afghanistan, Kuwait, Pakistan, Saudi Arabia, Morocco, Lebanon, Egypt, Jordan, Iran, Afghanistan, Iraq), the procedures for legalization approval of documents to be used in their territories is different.

First translate a certificate of Apostille legalization into the country’s official language. Only a certified translation office should do this for you.

For the document to be translated at a certified translation office, you also need the notarization carried out by a notary. Once the document is officially notarized, the office of the district governor or provincial governor where the approval is made completes the process by issuing the Apostille Approval.

The Ministry of Foreign Affairs will legalize the document after you have obtained Apostille approval.

The document should finally be submitted to the embassy or consulate for legalization approval which could take a couple of days.

Every country charges its own unique fee payable for legalization approval of documents. Some countries vary the fees depending on the specific document.

Approving like diplomas might be cheaper while other documents like company documents might cost more.

E-Apostille system

Turkey’s National Post and Telegraph directorate (Posta ve Telgraf Teşkilatı Anonim Şirketi) launched an e-Apostille system starting from 2019 which made it easier for public documents originally issued within Turkey to be certified online.

It is important to point out that the system now only covers documents that related to court decisions and criminal records.

PTT that it has an e-Apostille system to cover the following documents:

Identity Register Copy

Name Equivalence Copy

Birth Certificate Copy

Company formation documents

Death Certificate Copy

Work completion certificates

Marriage Certificate Copy

Diploma

Transcript

entry ban to turkey — cindemir@cindemir.av.tr

The purpose of this article is to explain the rights of foreigners who are banned to enter to Turkey. Upon deportation from Turkey, an entry ban on the foreigner can be applied on the foreigner. The ban can be also given by Directorate General of Migration Management without deportation situations.

In addition, entry ban implemented on the foreigners who are already deported can be given by governorship of the cities. Duration of the entry ban cannot be longer than 5 years. However, in case there is a severe risk for public order and security, entry ban can be extended 10 years more. In other words, the duration regarding entry ban can be 15 years. The entry ban to Turkey for foreigners whose visa or residence permit has expired and who has applied to the governorates to exit from Turkey before their situation is established by the competent authorities upon which a removal decision has been taken, shall not exceed one year. Among those who have been invited to leave Turkey pursuant to Article 56, an entry ban might not be imposed for those who leave the country within the specified period of time. The Directorate General may revoke an entry ban or, allow the foreigner to enter into Turkey for a given period of time, without prejudice to the entry ban. For reasons of public order or public security, the Directorate General may introduce advance clearance conditions for the admission of certain foreigners’ to Turkey.

How to lift the entry ban?

Administrative decisions as well as entry bans can be challenged under administrative courts. Decisions which don’t match the facts of a foreigners can be annuled by the administrative courts which are obliged to supervise the decisions regaring conveniency of the law. Wrong intellegence reports, error in the name of the foreigner, confusion in the person are often confronted situations in the practice. Entry bans contradicting the factual findings can be canceled by the courts. In addition, entry bans which constitutes violation of human rights can also challenged. Entry bans may also violate the rights stemming from European Convention on Human Rights. The entry bans violating the human rights such as family union, right for education, prevention on discrimination can be always canceled. In case Turkish Courts will resist on the issue, the cases can be brought to ECHR (European Court of Human Rights). There are similar cases given in favor of applicants.

Related Provisions in the legislation

Entry ban to Turkey
ARTICLE 9 –
(1) The Directorate General, when necessary and upon consultation with the relevant government departments and institutions, may impose an entry ban against foreigners whose entry into Turkey is objectionable for public order, public security or public health reasons.
(2) The Directorate General or governorates shall impose an entry ban for foreigners who are deported from Turkey.
(3) The entry ban to Turkey shall not exceed five years. However, in cases where there is a serious public order or public security threat, this period may be extended for a maximum of an additional ten years by the Directorate General.
(4) The entry ban to Turkey for foreigners whose visa or residence permit has expired and who has applied to the governorates to exit from Turkey before their situation is established by the competent authorities upon which a removal decision has been taken, shall not exceed one year.
(5) Among those who have been invited to leave Turkey pursuant to Article 56, an entry ban might not be imposed for those who leave the country within the specified period of time.
(6) The Directorate General may revoke an entry ban or, allow the foreigner to enter into Turkey for a given period of time, without prejudice to the entry ban.
(7) For reasons of public order or public security, the Directorate General may introduce advance clearance conditions for the admission of certain foreigners’ to Turkey

Notification of the entry ban to Turkey
ARTICLE 10 –
(1) The entry ban shall be notified to foreigners who are within the scope of paragraph one of Article 9 by the competent authority at the border gate when they arrive to enter into Turkey, whereas, foreigners who are within the scope of paragraph two of Article 9 shall be notified by the governorates. The notification shall also include information on how foreigners would effectively exercise their right of appeal against the decision as well as other legal rights and obligations applicable in the
process.

Our English speaking lawyer often visits Sapanca. Our law office provides legal services in English. Because of our profoundly established business relations in Sapanca, it is possible to set an appointment with our English speaking lawyers. We also provide legal services in Sapanca courts and administrations. Considering the proximity of Sapanca to Istanbul, our lawyers often goes to the Sapanca and assist its clients for the legal matters in Sapanca.

Introduction

With the increase in road traffic accidents and resulting injuries, including death, there is the question of how is it possible to protect a road traffic accident victim’s best interests and achieve a positive outcome under Turkish Law? This article will discuss the general provisions under the law and draw a distinction between personal injury compensation and compensation in the event of death resulting from a road traffic accident.

Liability

Article 49 of the Turkish Code of Obligations (“TCO”) governs tort liability and provides that, “Whoever causes damage unlawfully to another, whether intentionally or due to negligence is obliged to indemnify this other person”. The section, therefore, covers intentional and negligent conducts. There is also the tort of strict liability, which does not require proof of intention and so, is established independently from the wrongdoer’s conduct. Strict liability is dealt with under the Road Traffic Act (or “RTA”) which provides that for liability to be imposed, the motor vehicle that was involved in the accident must have been “in operation”. The motor vehicle must have also collided with a moving or immovable object. However, the motor vehicle operator can still be at fault even if the car is not in operation, especially if the operator is to blame or if a faulty car caused the accident.

The RTA further defines what is considered a motor vehicle, that is, vehicles moving with an engine power. It also clarifies who may be considered an operator under Article 85. This is someone who has the supervision of the motor vehicle. The owner is usually deemed to be the operator but the owner need not always be the operator. Below are common scenarios:

Employer/employee relationship

A motor vehicle driven by an employee of the operator will render the operator liable under strict liability rules. In cases where the motor vehicle is operated under a name of a commercial enterprise, the motor vehicle operator and the enterprise owner will be deemed jointly and severally liable.

Third-parties

A person using a vehicle on a short- term basis, for instance, someone who borrows the vehicle for a couple of days will usually not be treated as operator. However, in cases of a long-term lease agreement, the user may be treated as the operator if he is taking care of all the running costs. A similar approach is taken in cases of vehicle liens except when the lien is put on the vehicle by registration instead of establishing possession. The pledgee is not going to be deemed as operator. If the motor vehicle is used with the operator’s consent or was stolen because of the negligence of the operator, the operator will remain liable.

Defenses?

A possible defense the defendant may raise is force majeure under Article 86 of the RTA. However, he must prove the accident was caused as a result of unforeseeable and unavoidable events including natural events, or circumstances that can be imputed to the gross fault of the victim or a third party. The defense is not available defects in the construction of the vehicle, mechanical failure, or human failure.

Contributory Negligence

The claimant’s portion can be reduced if it is proven that he was at fault during the incident. The aim is to adequately attribute to each party involved their part of the loss.

Awarding Damages

A claimant will almost always be awarded damages because of strict liability regulations. Article 91 of the RTA imposes an obligation on insurers to provide the minimum mandatory coverage since the amount of compensation might be high in value for the defendant. The victim is also given a right of action against the insurer according to Article 97 of the RTA. However, in the absence of insurance, there are regulations in place regarding a trust account to compensate the damages caused by a driver.

Compensation

Personal injury

The injured party can claim pecuniary damages for material injuries caused such as the amount required to restore the damaged vehicle to its former condition or loss of use with a daily rate depending on the type of the vehicle. Article 54 of the TCO also define the types of specific damages that the defendant has to pay:

Medical expenses
Lost wages
Loss or impairment of working capacity
Loss resulting from jeopardized economic future

The TCO makes provisions for persons who are closely related to the victim (spouse, parents, siblings and in special cases, fiancé) who have also suffered severe injury to be paid reparations, but this is subjective and is evaluated based on the facts presented.

Death

Relatives who were indirectly affected by the claimant’s death can claim material and moral damage, especially if they were his dependents, that is, those who the victim had been supporting. These persons include his mother, father, spouse, children, siblings, fiancé and the persons who are in the care of the victim. They are also entitled to claim:

Funeral expenses
Medical expenses and victim’s losses concerning the loss or impairment of working capacity if the injured party was alive for a while after the accident

It is at the judge’s discretion whether the compensation to be awarded is an annuity or a lump sum, but oftentimes, a lump sum is usually awarded to the injured party.

Statutory Limitations

Claims for damages based on the provisions of RTA have a statutory prescription period of 2 years starting from the time when the damage and the defendant became known by the victim. For other cases, it is 10 years starting from the date of the road traffic accident.

Conclusion

Road traffic accident claims are predominantly brought in negligence or intentional conduct. However, Turkish Law also considers circumstances involving strict liability. Further, the law takes varied approaches between awarding compensation in the event of personal injury or death.

Tort Law
Introduction
Suppose a motorist knocks you off the sidewalk as you were walking or off your bicycle as you were riding, is this a wrong you can sue him for? What if your neighbours keep making an intolerable noise, can you get a court to stop them? These types of conducts are considered wrongful acts and are referred to as torts. If the courts would accept your claim in the examples given above, we say that the defendants are liable to you and the law, therefore, requires redress in the form of compensation for your injuries. So, the law of tort is about when liability exists.
1. Conditions for Tort
There are four (4) main conditions for tort:
a. Acts Against Law. This is understood to mean not only the provisions within statutes, by-laws and regulations but also acts of omission (or a failure to act). Take, for example, a landowner who leaves a hole in his yard will be liable if somebody enters his premises and falls into the hole because there was no adequate warning. The omission, however, can be a basis for liability only if a person has a duty to act.
b. Damages. Most victims of tort want money, and so a court may order the wrongdoer to pay damages. Damages are compensatory, meaning, it can be computed in monetary terms. It may also be classified as material or immaterial (moral). Material damages may arise if a house burns down or when your car is damaged. However, if a man becomes ill and incurs hospital expenses because of the death of his only son, the person who caused the son’s death may be obliged to pay moral damages. But, normally, the law requires compensation of material damage.
c. Causation. Damages are due to the victim only if the harm was because of the defendant’s misconduct. Causation must, therefore, be established. To hold a person responsible as a wrongdoer, there must be a causal link between the act or omission and the injury sustained. The court may apply various tests to determine the issue of causation.
d. Negligence. This is a ground for liability and it occurs when one fails to take reasonable care to avoid causing damage to another person. Thus, a person cannot be negligent unless he can make fair judgments. Consequently, minors who lack capacity have no tortious liability. However, to limit liability to cases where there is negligence may cause some unjust results. For instance, the owner of a building can be liable for damage caused by defective design or construction or by deficient upkeep.
2. Compensation
Where the above conditions have been met, the injured party may claim compensation. The amount of compensation will be decided by the judge by assessing the amount of the injury that the victim suffered (stage one) and determining the amount of compensation after taking into account circumstances and the degree of fault (stage 2). Concerning stage two, damages for an injury may be reduced to the extent that the claimant’s fault contributed to it, that is, contributory negligence. It affects the claimant’s quantum of recovery rather than the defendant’s liability.
3. Third-Party Injuries
Where someone has died from a tortious act, the dependents of the deceased who have suffered may demand compensation. These dependents (relatives or otherwise) have received or would have received support payments from the victim.
4. Statute of Limitation
Turkish laws can restrict the time within which legal proceedings may be brought to claim compensation from the tortious act. The term is one year running from the date on which the victim received the knowledge of the damage and of the person who caused the damage. This may not be longer than ten (10) years from the date when the act causing the damage occurred.
Private International Law Regarding the Tort
Under Turkish laws, Article 34 of the Turkish Code of International Private Law and Procedural Law (“PIL Code”) covers the liability for torts and the application of the lex loci delicti commissi (the law of the place where the tortious act is committed) or put simply, the place of the injury or wrong. It applies to the conditions of arising of torts, the capacity to commit torts, willful intent and negligence in torts, the provisions of torts and compensation and its scope.
If the elements of liability (act and damage) took place within the boundary of one state, then the places of the act and the damage would be identical and obligations arising from the tort will be governed by the law of that state. However, where the act and damage are committed in separate places, the law of the state where the damage occurred shall govern.
Interestingly, where it is clear from all the circumstances of the case that the tort is manifestly more closely connected with another country, the law of that other country shall apply. The application of lex loci delicti laws can be restricted in favour of the law of place with the manifestly closer connection. When the incidents and the parties have a more common relationship with one state, then the law of the manifestly closer connection can be applied.
Conclusion
Accordingly, a tort is an act or omission, which gives rise to injury or harm to another and amounts to a wrong for which courts impose liability. In other words, a wrong has been committed and the remedy is money damages to the person wronged. However, to prove whether a tort exists, several conditions must first be met.

Introduction

Succession law concerns the distribution of a person’s property on his or her death and is a vital area that affects almost everyone. Succession law serves to consider the wishes of the individual as well to provide preservation and security of the family. Under this topic, we will discuss the principles under which the Turkish system of succession operates.

Parental System

Where the deceased did not provide for the distribution of his estate at his death, his estate will pass, in the proportions prescribed by law, to his relatives. These relatives are divided into four (4) groups called parentals.

The first parental consists of the descendants of the deceased (i.e. children, grandchildren), the second of his parents and their descendants (i.e. parents, brothers, sisters), the third of his grandparents and their descendants (i.e. grandparents, uncles, aunts). The final group covers the great grandparents of the deceased who survived.

There is a level of priority among the members of each parental and those nearest in degree take priority over those further removed and any predeceased person will be represented by his or her descendants. In addition, the heirs in the same parental participate in the estate equally. So, for instance, where there are four (4) surviving children of the deceased, the estate will be portioned on a ¼ basis.

As for a surviving spouse, he or she will participate in the distribution of the estate with every parental in different portions. As such, the spouse will take a ¼ in the first parental; ½ in the second parental; ¾ in the third parental and the whole ownership in the fourth parental.

Interestingly, if the deceased leaves no surviving heirs, his estate becomes the property of the State.

Testamentary Dispositions

A testamentary disposition may take the form of a:

Will. A will or testament is essentially a declaration of the intention of the person making it of his wishes to take effect upon or after his death. Under Turkish laws, a will can either be:
1. An official will, which has been prepared by an official authority;
2. A halographic will, which was prepared by the deceased himself; and
3. An oral will or a “soldier will”. This can only be formed in certain circumstances such as war, danger, serious epidemic illnesses and the like. For instance, someone who met in an accident and is unable to perform an official or halographic will may request witnesses to write his wishes on his behalf and give the testament to the court as soon as possible.
Agreement of inheritance. This is a testamentary contract wherein the deceased has agreed to make the passage of his property to his heirs. Unlike a will, the agreement of inheritance is not a unilateral disposition but a bilateral transaction. It, therefore, needs the full capacity (age and mental capacity) of the parties involved in the agreement.

Limits of Free Will

A testator is not wholly free to dispose of his entire estate as he pleases as the law places restrictions that are in favor of his close relatives, by what is referred to as a reserved portion. This portion is reserved for certain relatives of the deceased, including the descendants (children, grandchildren who may receive ½ of their statutory heir), ascendants (father and mother, who may receive ¼ of their statutory heir), brothers and sisters (who may receive 1/8 of their statutory heir) and the surviving spouse (share is dependent) who are classified as privileged heirs.

Requirements for Being a Successor

In order to fulfil the conditions of being a successor, the following must be met:

Being alive at the date of death of the deceased. Only the surviving heirs will inherit the estate;
Being one of the legal or testate successors. Turkish law states that successors are determined by legislation or by the free will of the deceased;

Not be barred from inheritance. The testator may have expressed in the will that a successor should not inherit the estate;

Not to lose inheritance rights by means of law. Turkish laws provide grounds for disqualification of heirs from inheriting the estate. For example, to kill or attempt to intentionally or unjustly would justify the loss of the right of inheritance;
Not relinquish the right of inheritance. A successor who has refused inheritance will lose his rights;
Not to disclaim the inheritance. Turkish law provides that a successor can disclaim the inheritance within three (3) months after the recognition of the death of the deceased or official notice was given about the will; and

Fulfil the official necessities. The successor may apply for and receive a certificate of inheritance from the Peace Court. Once the successor receives, he may distribute the inheritance according to the respective portions that have been prescribed in the certificate. Where there is disagreement concerning the portions, the heirs may request distribution by a court decision.

Conclusion

Accordingly, succession rights result from the blood relationships between the kinships and aims to protect the extended family, including imposing a reserved portion for the benefit of said family. However, to become a successor to the deceased’s estate, it is important that certain conditions be satisfied.

Introduction

In the previous article on defining the “foreign law” element in Private International Law (“PIL” or “Conflict of Laws”), an example was given of a dispute involving a breach of contract between Y and Z where the contract was made in Turkey (place of contracting), but the terms of the contract require Z’s performance in England (state of the forum). It was determined that if legal proceedings were brought at the forum then the English courts will decide whether there was a breach of contract. Therefore, having accepted that justice might best be served by the application of a foreign law, another question nevertheless presents itself. How can the courts apply foreign law?

Rules of Private International Law

There are two (2) sets of rules under Turkish PIL laws. Multilateral (absolute or total) PIL rules determine the applicable law, that is either domestic or foreign law, to a particular issue. Turkish PIL rules are usually of a multilateral nature, except in a few instances. The other set of rules is the partial unilateral rules. These determine in which cases domestic law may be applied regarding an issue that involves a foreign element. For instance, Article 11 of the PIL Code of 2007 on the declaration of disappearance or death by absence regulates situations where only Turkish law is applicable.

These rules comprise two (2) components, namely a connecting subject and a connecting factor. These concepts are best illustrated using examples. Article 9(1) of the PIL Code states, “The capacity to have rights and to act is subject to the national law the person concerned.” When broken down, “The capacity to have rights and to act” constitute the connecting subject whereas “…the national law”, that is, the citizenship of the person concerned, is the connecting factor.

A connecting factor defines the relationship which the issue at hand has with a certain legal order. This relationship considers factors such as, inter alia, citizenship, place of domicile, the place where the contract was executed or where a tort was committed. Interestingly, the concept of “connection” defines a legal order or a command stipulated within the PIL rules that determine a connecting subject. As an example, the provision “Ownership and right in rem are subject to the laws of the place where the object concerned happens to be” found in Article 21 of the PIL Code would be broken down in that the “ownership and right in rem” constitute the connecting subject and “...the place where the same thing happens to be” is the connecting factor.

Applying Foreign Law

Recall that in applying foreign law, the foreign law does not become the judge’s law and consequently becomes domestic law; it still remains a foreign law.

Jura Novit Curia

Jura novit curia, commonly translated as “the judge knows the law”, is a fundamental principle of legal procedure. It means that if a court knows the law, the parties are mostly expected to furnish the facts to which there is a dispute and then leave the decision to the courts. However, this principle is not valid in cases where foreign law is applied, but there are some special circumstances that would need to be considered in determining the contents of foreign law. These are discussed below:

According to Article 2(1) of the PILC Code, the judge who is required to rule on his own motion pursuant to Turkish laws, applies his own conflict of laws rules of his own motion without the parties to the dispute claiming the application of foreign law. Thus, the judge determines applicable rules pursuant to the provisions of the PIL rules just as he does with the domestic. This considered the official duty of the judge, and when this happens, the jura novit curia is
In a court of law, the facts presented by the parties are the only considerations the judge will take into account. Note that connecting factors which may enable the application of foreign law must be asserted and evidenced by the parties concerned.
The judge who determines that a foreign law is to be applied is not required to know this law. But, where he/she knows then he/she is entitled to apply it to their motion. Where he/she does not know, they must exercise discretion in searching for them.
The correct content of foreign law must be determined correctly and in depth so that the issue at hand can be resolved. Where the foreign law may not be so determined, it is at this point that Turkish law is to be applied.
Determining the applicable law and its application is subject to the review of the Court of Appeal.
Because a judge has recourse to several sources of information to determine the applicable law, including the European Convention on Obtaining Information Regarding Foreign Law, he/she may rule pursuant to this information having based his/her decision from the validity and completeness of the information obtained.

Conclusion
Courts must consider the type of PIL rules in approaching foreign law issues. These rules are further comprised of a connecting subject and connecting factor, both of which are required to measure an individual’s connection to a particular country so as to establish jurisdiction and determine the applicable law.

Some Conventions that Turkey is party

1. 19.5.1956 dated (Convention on the Contract for the International Carriage of Goods by Road) (O.J.Number 22161, 4.1.1995).

2. 20.6.1956 dated (Convention on the Recovery Abroad Maintenance) (O.J.Number 13782, 18.3.1971).

3. 24.10.1956 (Convention on the Law Applicable to Maintenance Obligations Towards Minors) (O.J.Number 14052, 24.12.1971).

4. 15.4.1958 dated (Convention Concerning the Recognition and Enforcement of Decisions Relating to Maintenance Towards Minors) (O.J.Number 14418, 11.1.1973).

5. 10.6.1958 dated (UN Convention Concerning the Recognition and Enforcement of Foreign Arbitral Awards) (O.J.Number 21002, 25.9.1991).

6. 4.9.1958 dated (Istanbul Convention on the Changing of Name and Surname) (O.J.Number 11153, 13.7.1962).

7. 18.4.1961 dated (Vienna Convention on Diplomatic Relations) (O.J.Number 18615, 24.12.1984).

8. 21.4.1961 dated (European Convention on International Commercial Arbitration Done at Geneva) (O.J.Number 21000, 23.9.1991).

9. 14.9.1961 dated (Convention Portant Extension de la Competence des Autorites Qualifiees Pour Recevoir les Reconnaissances d’Enfants Naturels) (O.J.Number 13329, 17.10.1969).

10. 5.10.1961 dated (Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions) (O.J.Number 17931, 17.1.1983).

11. 5.10.1961 dated (Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Minors) (O.J.Number 17966, 21.2.1983).

12. 15.11.1965 dated (European Convention Concerning the Transmission of Requests for Judicial Cooperation) (O.J.Number 17918, 4.1.1983).

13. 15.9.1977 dated (Convention for the Dispensation from the Requirement of Legalization of Certain Documents) (O.J.Number 29343, 16.1.1987).

14. 11.4.1980 dated (United Nations Convention on Contracts for the International Sale of Goods.) (O.J.Number 27545, 7.4.2010).

15. 20.05.1980 dated (European Convention Concerning the Recognition and Enforcement of Decisions on the Custody of Minors and the Re-establishment of the Custody of Minors) (O.J.Number 23864, 2.11.1999).

16. 5.9.1980 dated (Convention Relative a la Reconnaissance Volontaire des Enfants nes Hors Manage) (O.J.Number 19510, 7.7.1987).

17. 5.9.1980 dated (Convention Relative a la Delivrance d’un Certificat de Capacite Matrimoniale) (O.J.Number 19969, 24.10.1988).

18. 25.10.1980 dated (Hague Convention on the Civil Aspects of International Child Abduction) (O.J.Number 23965, 15.2.2000).

19. 29.5.1993 dated (Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption) (O.J.Number 25432, 19.4.2004).

20. 0.9.1998 dated (Convention on the Issue of a Life Certificate)(O.J.Number 25404, 16.3.2004).

21. 12.10.1929 dated Unification of Certain Rules for International Carriage by Air (Warsaw Convention) (O.J.Number 16128 2.12.1977)

22. 28.7.1951 dated (Convention Relating to the Status of Refugees) (O.J.Number 10898, 5.9.1961).

23. 1.3.1954 dated (Hague Convention Concerning the Law of Civil Procedure) (O.J.Number 14137, 23.3.1972).

24. 13.12.1955 dated (European Convention on Establishment) (O.J.Number 20285, 17.9.1989).

25. 2.10.1973 dated (Convention on the Law Applicable to Maintenance Obligations) (O.J.Number 17951, 6.2.1983).

26. 5.7.1974 dated (Additional Protocol to the European Convention on Information on Foreign Law) (O.J.Number 25433, 14.4.2004).

27. 10.9.1975 dated (Convention on Legitimation by Marriage) (O.J.Number 15364, 22.9.1975).

28. 10.9.1964 dated (Convention Tendant a Faciliter la Celebration des Marriage a I’Etranger) (O.J.Number 12783, 22.12.1967).

29. 18.3.1965 dated (Multilateral Investment Guarantee Agency Preamble) (O.J.Number 20011. 6.12.1988).

30. 7.6.1968 (Convention Europeenne Relative a la Supression de la Legislation des Actes Etablis par les Agents Diplomatiques ou Consulaires) (O.J.Number 19429, 12.4.1987).

31. 15.11.1965 (Hague Convention Concerning the Notification of Official and Non-Official Documents on Civil and Commercial Matters) (O.J.Number 14218, 17.6.1972).

32. 8.9.1967 (Convention Concerning the Recognition of Decisions Pertaining to the Bond of Marriage) (O.J.Number 15356, 14.9.1975).

33. 7.6.1968 (European Convention on Obtaining Information on Foreign Law) (O.J.Number 15338, 26.8.1975).

34. 18.3.1970 (Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters) (O.J.Number 25493, 15.6.2004).

35. 2.10.1973 (Convention Concerning the Recognition and the Enforcement of Decisions Relating to Maintenance Obligations) (O.J.Number 17961, 16.2.1983).

Consequences of a Divorce Decision in Turkey

Introduction

Turkey’s Constitution provides for several protections to the institution of family that are implemented through several statutory laws. The family is defined as the foundation of Turkish society, and the state must take necessary precautions to maintain the stability of families in Turkey and addresses the principle of equality between men and women. There are additional protections afforded under the Turkish Civil Code (Law No 4721) which govern marriage, marital breakdown, and the welfare of children. However, issues may arise when there is a breakdown of the marital structure, which can result in divorce.

In Turkey, divorce can be based on a number of grounds, including what is known as a divorce decision. This can either involve a breakdown of the marriage or consensual divorce. This differs from a decision of annulment whereby a court grants a legal decree that the marriage is effectively null and void. This may be based on the fact that either spouse is suffering from a mental disease or either of them consented to marry by mistake.

Consequences of a Divorce Decision

Not only does the marriage end by a divorce decision, but several other consequences flow from it, including the consequences of divorce regarding the ex-spouses.

Consequences of Divorce Regarding the Ex-Spouses

Article 130 of the Turkish Civil Code (“TCC”) states that once the divorce resolution has been finalized, the present marriage will end. The period of limitation will start to run afterwards.

Termination of the Marriage and the Opportunity to Remarry

Both ex-spouses, on the finalization of the divorce resolution, can go back to being single and/or remarry if they so desire. However, Article 132 of the TCC creates a minor hindrance to the ex-wife as she has to wait for three (3) months from the date of the termination of the marriage to remarry. If she does not, the marriage concluded, will still be valid.

Dissolution of the Matrimonial Property

There are two different systems that govern the marital property regime under Turkish law. According to Article 179 of the TCC, “In the dissolution of the matrimonial property regime, provisions regarding the regime which the spouses are up with, shall apply”. Therefore, depending on what the parties agreed to, the arrangement can be based on the legal marital property system or a separate nuptial agreement.

Maintaining or Changing the Personal Status Acquired by the Marriage

Article 173 of the TCC provides that an ex-wife maintains the personal status or condition (such as kinship by marriage, citizenship, and surname) she acquired through the marriage. This is also applicable to men. However, this section highlights the importance of the issue of surnames.

The divorced woman cannot keep the surname of her ex-husband and has to return to her maiden name. However, she may request to keep the ex-husband’s surname where: 1) there was some economic benefits such as not losing her customers or her fame, and 2) no harm will be caused to the man. Note that the ex-husband can always object to this decision if he feels that such an action would give offence to him. For example, if the woman has been involved in fraudulent dealings.

In light of the surname variations, the European Court of Human Rights examined the surname of a person within the scope of a right to private life under Article 8 of the European Convention of Human Rights, and forcing a married woman to acquire her husband’s surname would constitute a violation of such as privacy. But there is an argument to suggest that until there is an amendment to the provisions in the TCC, it is an interpretive rule and does not act in contravention of the international treaty.

The Termination of the Mutual Rights Arising from Inheritance Law

Divorce causes the termination of the matrimonial union and as such, the status of the ex-spouses being the legal heirs of each other also ends. Consequently, they lose all the rights granted to them through testamentary dispositions that were prepared prior to the divorce, which become void, unless there is contrary intention under Article 181 of the TCC, such as declaration made in writing. In those instances, the transactions will remain valid, even on the condition of a divorce. If there is a blood relationship between the ex-spouses (they could be children of sisters or brothers), the inheritances through blood relatives will continue.

However, situations will arise where divorce proceedings have commenced but there has been no resolution because, say, for example, one of the spouses die during the suit. According to Article 181 of the TCC, if one of the parties of a divorce suit passes during the proceedings, the marriage ends through death, and the rights of inheritance are determined without taking the suit into consideration.

There is an exception to the rule involving the pending suit because there may be an opportunity for the heirs of the deceased spouse to obstruct the acquisition of legal heirship by the other party (alive spouse) provided there is evidence that the one whose actions caused the divorce in the termination of the marriage is the spouse who is alive.

Conclusion

At the end of a marriage, the parties’ needs are altered completely. It is clear that there are a number of consequences resulting from a divorce decision, some of which are controversial areas in Turkish family law, including the subject of a woman’s surname. It can, therefore, be difficult to reconcile some of these practices with the principle of gender equality as stipulated under Turkish laws.

conflict of laws in Turkey — cindemir@cindemir.av.tr

Introduction

Over the years, the problem of how to define the rules of private international law (“PIL” or “Conflict of Laws”) has been evident as some scholars have suggested concentrating on describing and classifying the factual situations where a PIL problem is involved. PIL covers rules that determine the scope and application of domestic rules of various countries in legal disputes containing a foreign element. The foreign elements in the case may be events that have occurred in foreign countries or they may be foreign residence or place of business of the parties involved in the dispute.

In Turkey, the first codification of the PIL rules dates back to 1982 with the Private International Law and International Civil Procedure Code of 1982 (“1982 Code”). The 1982 Code focused on the modernization and codification of the existing PIL system. However, its provisions were inadequate to address the changing and increasing needs in the globalizing world. For instance, adjustments were taking place in PIL in European (“EU”) Law which were in line with the Turkey’s future membership, amendments were needed to provide clarity on ambiguous matters, and determining the new specialized courts that would have jurisdiction on the new rules. Therefore, it was against this backdrop and the need for further development of PIL 1982 that the new PIL (“PIL 2007”) was enacted.

Definition

As previously mentioned, PIL comprises rules that determine the provision of which States from among the provisions of various other States will be applicable in a legal dispute containing a foreign element.

Foreign Element

The use of the word “foreign” in connection with PIL emphasizes a feature characteristic of this branch of law. Every country has been built for the purpose of translating the rules of its own law, so how can it ever happen that a legal dispute is governed by foreign law?

Where a PIL problem arises, what happens is that the rules of the foreign law will not replace the rules of the forum (the place where the legal dispute is held), but it will govern the translation process. Suppose there’s a particular dispute involving a breach of contract between Y and Z. The contract is made in Turkey (place of contracting), but the terms of the contract require Z’s performance in England (state of the forum). If legal proceedings were brought then the English courts will decide whether there was a breach of contract by reference to the law of the forum. In determining this, the courts must find a way to bring England’s legal terms to the understanding of the forum by translating into the corresponding terms of Turkey’s laws. This type of translation therefore requires finding a common ground of understanding.

Scope

This foreign element can arise in one of three ways: (1) jurisdiction, (2) choice of law and (3) recognition and enforcement of foreign judgments.

Judgment

The first point which may have to be decided in a case having foreign elements is whether the Turkish court has power to deal with the case at all. This raises the issue of when foreigners should be able to sue or be sued in the Turkish courts.

Choice of Law

If the Turkish court does assume jurisdiction, the next question is whether in deciding the case it will apply the rules of Turkish law or those of a foreign country with which the case has connections.

Recognition and Enforcement of Foreign Judgments

According to PIL 2007, foreign court judgements are not directly enforceable in Turkey. A final judgement from a foreign court can only be enforced if competent Turkish court decides that it is enforceable.

Conclusion

Certainly, a foreign element plays an important role in determining the applicable law under PIL rules as it can help to prescribe the conditions under which a court is competent to entertain a particular claim. Therefore, it is only when a foreign element is present in a particular case that PIL rules have a function to perform.

Establishing a Commercial Enterprise in Turkey — contact cindemir@cindemir.av.tr

Introduction

A business that intends to operate in Turkey needs to know the type of company it should form as well as the requirements needed to establish that company. Under the Turkish Commercial Code Law No. 6102 (TCC), companies can be classified as either a capital or a non-capital company. It is important to consider the particulars of a company type because while some individuals may decide to set up a small or medium-sized company, others may opt for larger corporations.

This article will explain the concept of commercial enterprises and the different types of corporations pursuant to the provisions of the TCC.

I) Commercial Enterprise

Article 11 of the TCC a commercial enterprise as an undertaking that engages in activities whose aim is to secure income in a continuous and independent manner and at such a level as to exceed the limits prescribed for tradesmen and artisans. In other words, an enterprise’s main characteristics involve the performance of economic activities (aim of income), continuity and independence (this means the company is able to take independent decisions in the company’s affairs). The TCC also states that a commercial enterprise is a legal unity, which allows it to be recognised as a subject of legal transactions in law. Therefore, commercial enterprises can be transformed into commercial companies like corporations.

Branches and Centres

Article 40 of the TCC states that all commercial enterprises must have a main or central office, which should be registered with the Trade Registry. This office is where the legal, administrative and commercial activities of the company are executed. Certainly, this place can differ from the place where other technical activities take place, especially where a company abroad prefers to manage their affairs locally though having a branch set up.

II) Corportation Types: Capital Company vs Non – Capital Company

Under the TCC, companies are classified into two main groups:

Capital companies, including:
- joint stock companies (JSCs);
- limited liability companies (LLCs); and
- commandite partnerships with a share capital divided into shares in which the shareholders have limited liability.
Non-capital companies (in which shareholders have unlimited liability), including:
- collective partnerships; and
- commandite partnerships.

JSCs and LLCs are the most common types of capital companies in Turkey. There are some similarities in terms of their corporate structure, such as:

Single shareholder: LLCs and JSCs can be established with a single shareholder.
Liability: The liability of shareholders of JSCs and LLCs is limited to their capital contribution based on the corporate veil principle. There are however, some exceptions to public debts or unpaid taxes that can lead to personal liability of directors or shareholders.

However, the advantages of establishing a JSC and LLC differ. For instance, an LLC can be used to set up holding companies and is also managed by managers who are chosen from among non-shareholders, real persons and/or legal entity shareholders. A JSC however, are more suited for large entities such as financial institutions are managed by the board of directors.

Shareholders of collective partnerships and commandite partnerships (personal companies) have unlimited liability for the company’s debts and undertakings.

Conclusion

Because the corporations described above differ from one another in several key respects, business that wish to do business in Turkey are free to choose from any of the structures provided that their business needs and purposes are met.

turkish commercial code — cindemir@cindemir.av.tr

Introduction

Commercial law governs the broad areas of business, commerce and consumer transactions. It involves issues that arise during the course of running a business at any stage of its commercial cycle.

As a civil law country, Turkey’s legal system comprises codified sets of rules or legislations. In the area of commercial law, these rules are covered in several pieces of legislation and are grouped under two main sources of law: written and unwritten sources of law.

This article will give an overview of the main sources of commercial law in Turkey.

Written Sources of Law
- Turkish Commercial Code Law No. 6102 (TCC)

The TCC, which was enacted on 1 July 2012, is the main legislative framework on commercial law. Its aim is to develop commercial law, while at the same time, harmonising Turkish law with European Union laws. TCC covers the following six (6) areas:

Commercial Enterprises (Articles 11 to 123). The TCC defines a commercial enterprise as an enterprise that goes beyond the scope of an artisanal or “craftsman” enterprise, aims to generate profit and continuously and independently realises its activities. This concept is of particular importance as it plays a role in a range of issues from defining a “merchant” to a “commercial transaction”, as well as determining the scope of a limited general partnership and limited partnership business.
Commercial Companies (Articles 124 to 644). This section provides for the types of companies that are recognised under the TCC. The most common forms are joint stock companies and limited liability companies.
Negotiable Instruments (Articles 645 to 849). Examples of these include cheques and promissory notes. Both are important payment instruments in commercial law.
Issues of Transportation (Articles 850 to 930). This section provides general rules governing transportation. It also deals with issues on, inter alia, the carriage of goods, passengers and freight forwarding.
Maritime Commerce (Articles 931 to 1400). This section covers both international conventions that Turkey has chosen to abide by, and domestic law.
Law of Insurance (Articles 1400 to 1520). This section includes provisions on insurance contracts and the supervision and regulation of insurance law.

Note: The Turkish Code of Obligation (TCO) is also recognised another main source of commercial law.

Turkish Protection of Competition Code Law No. 4054 (TCPC)

The Turkish Constitution safeguards the country’s competitive business environment in ensuring the State takes necessary steps to prohibit any instance of unfair competition. With this idea in mind, the TCPC was passed. The TCPC’s aim is to prevent restrictive agreements and concerted practices, abuses of dominance and mergers and acquisitions that either create or strengthen a dominant position in the market.

Turkish Capital Market Law No. 6362 (TCML)

Alongside the TCC is the TCML, which establishes the rules governing capital markets. These include ensuring the functioning and development of capital markets in a secure, transparent, efficient, stable, fair and competitive environment. It also seeks to protect the rights and interests of investors.

Turkish Law of Checks Law No. 5941 (TLC)

This law applies to the inter alia, use of cheques, content of cheque books, protection of cheque bearers, and sanctions for when non-sufficient funds and breach of other liabilities in the law.

Unwritten Sources of Law

These are essentially customary commercial law and commercial practices that have developed over many years.

Legislative Relations

The relations between these laws is important to developing a comprehensive body of commercial laws. For instance, the TCC references the TCL in answering certain legal questions (for example, issues about cheques). The TCL also recognises the TCO as the fifth book, and is a part of the TCL.

Conclusion

This article highlighted the key legislations within the Turkish commercial law framework, and in some instances, illustrated the relationship between them. Indeed, these rules are needed for the effective functioning and development of commercial law in Turkey.

Turkey was ranked third in medical tourism by the International Medical Travel Journal. Accordingly, malpractice cases related to foreigners increases day by day. Health tourism is also governed under the law of Regulation concerning International Health Tourism and Tourist Health.According to head of the Istanbul International Health Tourism Association ,Medical tourism has become a booming sector in Turkey with 700,000 people visiting the country last year.

There are three types of health tourism:

1. Senior Tourism and

Accessible Tourism
2. Thermal Health Tourism and Spa Wellness
3. Medical Tourism

Hair transplant, Dental Treatments, Plastic Surgery, Eye Treatments are one of the most popular treatments which attract foreigners. Plastic Surgery mainly encompasses operations such as nose aesthetics, body aesthetics, breast aesthetics, facial aesthetics, ear aesthetics, genital aesthetics.

Is Plastic Surgery Malpractice Different than Common Malpractice Cases?

Yes. This article is written for that purpose. Unlike common malpractice cases, plastic surgery requires 5 times care as compared to ordinary malpractice cases. Turkish High Court has dozens of decisions stating care liability of the plastic surgery malpractice.

On the Basis of Which Contract Plastic Surgery Must Be Considered?

Ordinary treatment is considered as a proxy agreement (in other words, agency agreement) which means that doctor does not guarantee about the result. If you have a fever, doctor is not liable in case of failure of recovery. Doctor must do the best to recover the patient however he/she is not liable for recovery. For instance, Doctor gives the pills for ordinary treatment and if it does not work, he cannot be held liable for the failure. Doctor may involve in a cardiac operation. In this risky operation, even high care and all duties of doctor is performed the patient may die. In that regard, doctor cannot be found liable due to result. Negligence is the main factor in ordinary treatments to find doctor responsible.

One more example can be given concerning agency agreement. This type of agreement also applies to the lawyers in Turkey. Lawyer does not promise to win the case. Under this agreement type, lawyer supposed to follow the case with care. However, even lawyer loses the case in the end of court process, lawyer cannot be found liable due to the agency agreement between client and the lawyer.

Which Contract Type Must Apply to the Plastic Surgery and Malpractice?

Under article 471 of code of obligation, agreement for work type applies to plastic surgery cases. Accordingly, unlike agency contract applying to ordinary treatments, plastic surgery is an agreement for work.

What Is the Definition of Agreement for Work?

Article 470 defines the agreement for work as below:

“A contract for work is a contract whereby the contractor undertakes to carry out work and the customer undertakes to pay him for that work.”

In Which Scope Agreement for Work Relates to Plastic Surgery Cases?

Type of agreement for work is commonly used in the sector of construction. Construction companies undertake the result of construction projects by signing agency contract with their customers. In the end of the construction, the result must be identical as in the project which is promised by the constructor. In this case, negligence of doctor is not only raising liability of the doctor, in addition, the result promised must be identical. Failure in result plays important role in plastic surgery cases.

Does Plastic Surgery Doctor Have the Same Liability as Constructor?

Exactly, it is the same. Plastic surgery doctor must do the same as patient showed in the photograph of a model that he/she admires. Thus, if a patient said that she/he wants a Brad Pit nose, operation result must be the same as it is promised.

How Can We Request Compensation from the Doctor Due to Plastic Surgery Malpractice?

Answer of the question requires a new article. Method of compensation cases will be described in an independent article.

Enforcement of ICSID Awards in Turkey — contact cindemir@cindemir.av.tr

This article is written for the purpose of enlightening the law society concerning the last developments in Turkey regarding the enforcement of ICSID awards. There was a debate about the enforceability of ICSID awards in due to lack authorization appointment concerning validation of ICSID awards in Turkish Territory. In other words, until today Turkey did not assign any administrative body for certification of ICSID award despite of the fact that Washington Convention is ratified by Turkey.

Article 54 P 2 of the convention is as following:” A party seeking recognition or enforcement in the territories of a Contracting State shall furnish to a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary-General. Each Contracting State shall notify the Secretary-General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation.”

Accordingly, there was a big question mark regarding implementation of the enforcement provision of Washington Convention. The main debate was concentrated on the lack of establishment or assignment of such authority for certification of ICSID award would result with a rejection by the local execution office. However, doctrinal main opinion was against it. There are currently two law books written by Prof. Nuray Eksi and Salih Uygun particularly touches the subject of the “execution” or “enforcement” of ICSID awards in Turkey. In consideration of two authors’ main idea , rejection of enforcement of ICSID award due to lack of certification means the violation of the international convention under article 90 of Turkish Constitution. Formal conditions of the award must not affect the enforcement which is declared by Turkey

Under Turkish Law, direct enforcement of an award given by foreign arbitration without any court case is very exceptional situation. There are only few exceptions that applicant can apply to administrative execution office for direct implementation of execution procedure along with an award given by a foreign arbitration. This exceptional situation is also important to see the reaction of the execution officers which is unlike to the common procedure. Additionally, foreign awards enforcement without any certification of Turkish administrative bodies is not also a common practice as compared to other implementations related to foreign award enforcement.

Turkey ratified Washington Convention on the 27.05.1988 and the convention is entered into force on 02.06.1988. From that day to today, there were 4 cases initiated against Turkey by foreign investors. 2 of 4 cases are still pending and other 2 is already concluded. As can be seen from the ICSID case records of Turkey, all cases were filed against Republic of Turkey. Cases against Republic of Turkey did not clarify lack of ICSID authorization body because execution against administrative bodies do not have any similarity as a private law execution procedure and the most needed clarification for certification issue was execution procedure under Turkish Private Law. Because there is no any requirement of any originality of the award copy where Turkey as a defendant part of arbitration. However, awards against Turkish companies are not the same. Accordingly, there had been no any award given against Turkish Legal Entity (company) since 2016 and debate related to lack of certification body issue was ongoing issue.

In the Award rendered on 8 March 2016, which was accompanied by the dissenting opinions of both the Claimant- and the Respondent-appointed arbitrator, the Tribunal decided that it had jurisdiction to hear the dispute between İçkale İnşaat Limited Şirketi and the Republic of Turkmenistan and that the Claimant’s claims were admissible. The Tribunal also found that none of the claims made by the Claimant had merit and hence dismissed them in their entirety.

Turkmenistan Justice Ministry requested execution of said award against İçkale İnşaat Limited Şirketi from Cindemir Law Office. And the award firstly and directly executed against Turkish Company in Turkish History. Execution of award is implemented by Istanbul Anadolu 2. İcra Dairesi ( Istanbul Anadolu 2^nd Chamber of Execution). However , execution procedure is objected by İçkale İnşaat Limited Şirketi based on main legal ground mentioned above. İçkale raises an objection claiming that award which is not certified by an assigned authority cannot be executed in Turkey. There were also additional objections by İçkale but the most debated matter in doctrinal discussion was the objection related to certification.

Objection is reviewed by Court of 2. İstanbul Anadolu İcra Mahkemesi (Court of 2^nd chamber of Istanbul Anadolu Execution Court). The court decided to get an opinion from Kocaeli University Law Faculty. After submission of expert report, the court rejected İçkale’s objection to the execution procedure. Expert report also stated that even Turkey did not assign any administrative body for certification of ICSID award, binding international agreement cannot be violated due to the failure of assignment. Article 54 of convention explicitly states that “Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.” . The court did not want to violate article concerned because Turkey did not fulfil the duty of authority assignment stemming from the international agreement which has superiority and direct applicability under article 90 of Constitution.

Upon rejection of 2^nd Chamber of İstanbul Anadolu Court, İçkale applied to the high court and the court rejected the objections as a final decision is given in 2017. İstanbul Bölge Adliye Mahkemesi 21. Hukuk Dairesi ( 21^st Chamber of Istanbul Regional Court) ended discussion of ICSID Award.

In this article, you can find relevant responses for the questions concerning traffic accidents. Compensation and civil law procedure is explained with details in accordance with Turkish Law.

According to official statistics of Turkey, every year there are 5000 people who lost their lives and more than 100.000 injured people due to the traffic accidents. What’s more, it is estimated that 10.000 people die apart from the official statistics.

Moral and material damages arising from accidents increase year by year. In parallel with increase of vehicles, the traffic accidents also raise in Turkey. Material damage of the traffic accidents which occurred in Turkey last 20 years amount to 2,3 billion dollars.

In general, traffic accidents cause loss of limb and organs but in some situations it may result in death. In these type of cases, claim for damages become an issue in order to compensate material and moral damages for inheritors. In this article, we decided to mention briefly about the claim for material and moral damage in response to the questions.

Who can file a case as a claim for material and moral damage?

In this regard, there are two distinctions. In case that the victim of a traffic accidents stay alive, victim can claim for damages pursuant to articles of 41, 45 and 47 of code of obligation. In case of the death of a victim, people who indirectly effected due the death have right to claim for material and moral damage such as the victim’s relatives, mother, father, spouse, children, siblings, fiancé and the persons who are in the care of the victim. If the victim claimed for a damage prior to his/her death, said relatives have right to resume this filed case.

In traffic accident, material and moral damages are claimed against whom?
The damages stemming from the accidents can be demanded depending upon the other side’s economic power, mistake level of the other side, lost of the other side, the address shall be the insurance company.

The amount of the compensation stemming from the traffic accident might be high for the defacer. Accordingly, the case filed against an insurance company would be well-directed party. According to article 97 of Highway Law, “A victim can directly demand its compensation from the insurer by the means of a law suit within estimated boundaries of compulsory liability insurance.

The lawsuit must be filed against an insurance company which concluded a motor policy or a car insurance policy with a person causing the traffic accident. In case that those insurance companies are different companies, the lawsuit must be filed against both of them.

What can be done in the absence of traffic insurance of a driver causing damage?
According to article 85 of Highway Traffic Law, compulsory automobile liability insurance (traffic insurance) is required for every vehicles and it interdicted to travel by a vehicle without having this insurance type.

Despite of this fact, there are many vehicles in the street which do not have traffic insurance and involving traffic accidents in practice. For these types of situations, lawmaker has established a trust account in order to compensate the damages caused by a driver who lacks traffic insurance.

What is the term of litigation and prescription for the cases related to traffic accidents?
The compensation case must be file within a year after perpetrator or the damage has become known. If the case filed against an insurance company, the duration is 2 years. In any case, duration of 10 years is the maximum duration for litigation of a compensation case.

If the traffic accident requires a criminal case procedure then prescription shall be prolonged pursuant to Penal Law and longer prescription durations shall become valid.

Is it possible to file a lawsuit for damage by a mistaken driver or passengers?
Passengers certainly have a right to file a case against the driver or the owner of vehicle. On the other hand, generally the people who have a right to file a case are unwilling to do it due to familial or emotional reasons. In this regards, is it possible to file this lawsuit against insurance company? Then, we see two type of insurance policy. These are compulsory automobile liability insurance (traffic insurance) and voluntary liability insurance (car insurance).

Compulsory automobile liability insurance established in order to compensate for the damages caused by insurance owner. Accordingly, except the driver who caused the accident the passengers can file a case against the insurance company. The driver of the vehicle can file this case against insurance company on the condition of having car insurance. In case that passengers and drivers are dead, the inheritors have also right to file this case related to compensation.

How the amount and the scope of material and moral compensation is determined by the courts?
In case that traffic accident resulted in death, inheritors have right to claim for compensation due to being destitute of help and the expenses related to funeral. The compensation can be claimed also for compensating moral damages such as depression and sadness due to the death.

If the injury occurred, bare of the job, duration of unemployment, loss of wage due to injury and treatment costs can be requested. Additionally, moral compensation can also be requested.

If the person become disabled due to accident, he/she can request compensation depending upon severity of the disability and power loss. The proportion of disability is extremely important for determination of the compensation amount. Besides, damages related to vehicle and other property can be also requested.

The economic condition of the applicant is also very important for the determination of compensation amount. If the damage cannot be proved properly with evidences, the compensation amount will be lower or minimum wage amount will be considered as damage. Considering feature of moral compensation as a intangible concept, provability requires significant evidences related to damages. In this regards, getting assistance from a professional would be the best and satisfactory method.

Getting Criminal Record in Turkey — contact cindemir@cindemir.av.tr

This article is explaining the issues concerning proving the damage of a victim by forensic hospitals under Turkish Law. It touches on the issue related to malpractice related to plastic surgery or personal injury cases. Compensation requests from insurance arbitration or litigation is important from the perspective of damage level in the victim.

In case of a malpractice claim, the victim must get an international valid (apostille or consulate approval) report from a forensic hospital authority.

Turkish High Court has several precedents regarding validity of foreign country’s forensic hospital reports. In high court precedents, it’s seen that Russian and British forensic hospital reports are considered as a primary source of evidence by Turkish High Court and which means that the reports obtained from foreign competent forensic hospital is valid.

Please note that if injury level of victim will be indicated in the report. Evaluation of injury level must be carried out in accordance with WHO (World Health Organization) standards. If injury level is not indicated in the report (some country’s forensic hospitals refuses to write it), Turkish forensic hospital can reconsider the report obtained from foreign country along with Rontgen and x-ray documents and it can determine the injury level based on Turkish standards.

Injury level indication in the report is required to apply insurance company by law. Injury level has a big role in order to understand how the victim will suffer in his/her ordinary life and compensation will be determined based on the result. Injury level indications on the report are usually needed concerning personal injury and accident cases. However, unlike injury cases the reports related to malpractice cases indicate the negligence level of the doctor. Accordingly, as well as Turkish forensic hospitals foreign forensic hospitals must show negligence level of the doctor by considering victim medical certificate obtained from the hospital operation took place.

Application to the Forensic Hospital for damage report

In Advance of Arbitration

In several cities of Turkey, there are private forensic hospitals established under universities’ forensic department bodies. Thus, the victim can always apply to private forensic hospital in order to obtain a report regarding injury or malpractice. (expenses might be around 500 – 1000 USD). Expenses can be demanded from defendant in case of existence of an invoice.). In that regard, these reports are usually accepted by the courts and the arbitration. It must be noted that evidences of insurance arbitration claims must always be ready in advance of application. Submission of evidences to insurance arbitration requires all evidences to be submitted.

2. In Duration of Court Litigation

Court can request forensic hospital report during the court case. In that regard, victim must visit government forensic hospital in some specific periods which is determined by the court handling the case. It gives victim flexibility to be ready in the hospital. On the other hand, court litigation procedure is longer than insurance arbitration.

turkey criminal record check — contact cindemir@cindemir.av.tr

Under Turkish Law, after five years later convicted person can request expunge his/her criminal record. The right against self-incrimination arises as an inherent right of a person pursuant to Article 76 of Turkish Constitution. Accordingly, criminal records can be saved for 5 years. Only Attorney General’s Office or convicted person has right to access that private personal data.

Criminal record can be obtained via power of attorney issued by convicted person. Legal attorney who is registered to Union of Turkish Bar Associations (https://www.barobirlik.org.tr/en) . Registered attorneys at law in Istanbul can be found at the link : https://www.istanbulbarosu.org.tr/AttorneySearch.aspx

Turkish lawyer can apply to Attorney General’s Office in order to get the document . Criminal record document requires apostille stamp, if it is requested from a foreigner. Please note that it is very important to provide Turkish Residence Id Card or at least ID number. Sometimes problem arises generally with Arabic names due length of the name. In that regard, sometimes digital system is not able to search correct name. Therefore, ID number during residence of a foreigner is very beneficial.

Document can be only given in Turkish. If foreigners country is part of an apostille agreement , it will be valid in their country and they can translate the document to apostille country’s language in case it is needed. In case that country of a foreigner does not have apostille agreement, they need to get approval from Turkish Consulate of their country to prove it is a document given by Republic of Turkey.

Getting criminal record from a Attorney General’s Court department takes maximum few hours.

You can find the same article in our international website.

opening bank account in Turkey — contact cindemir@cindemir.av.tr

Opening a bank account for foreigners without residence permit is possible. In addition, Turkey does not require any presence in Turkey from the foreign entities. In that case, Turkey presents alot of opportunites to the foreigners who are willing to open a bank account in the country. There are few documents and one day procedural actions to open the bank account. However, the foreigner must be ready in front of the bank officer while signing the bank custormer contract. In that regard, the clients are obliged to come to Turkey to open a bank account. We can assist to open a bank account for Russians and Iranian origin foreigners. As mentioned before, foreign company does not require to open a company in Turkey to have a bank account. There is no legislation restricting to have a account of a foreign company which is not registered in Turkey. Definitely the banks are checking the company before opening bank account and in ordinary circumstance the clients don’t confront with any problem. In any case, during the signature conclusion process we accompany to our clients and assist them at the bank.

Attorney Gökhan Cindemir

hotel accident claims in Turkey — contact cindemir@cindemir.av.tr

Ottoman title deeds has different classification depending on the date of the document. In 19th century, “defteri hakani” documents are issued as a property document and this documentation started after tanzimat reformation period which was the time that right of property is given to non-muslims. Christians were able to purchase land and immovable property as muslims. Previously , private ownership as a land was also restricted for muslims and all lands used to be assets of the sultan. Modernisation of Ottoman government also brought reforms in ownership.

There are title deeds relates to that period and some of them are still valid under Turkish Law. Sened-i Hakani (Deeds issued during Sultan Abdulhamid Han) have still legal impact under Turkish law. However, the most complicated part of these documents are to determine the boundaries of land from the the content. There was no any parcelling at that time. Parcel numbers and cadastral maps became widely used after foundation of Turkish Republic. Content of sened-i hakani (late ottoman deed) describes the land based on the information related to the boundaries. In sened-i hakani, there are statements like “south east border touches to the graveyard of the village and north east is next to the mosque.” . In that sense, investigation is required by an expert in order to determine the location of the land. Location can be found by the experts specialized in that field. Ottoman archive are opened to all citizens and lawyers have right to access to these knowledges. In that regard, deed records can be found in the archive and more detailed descriptions regarding the location can be understood from the records. It must be noted that Ottoman archive documents are all in Ottoman script and Ottoman Turkish. Today’s modern Turkey’s people cannot read these scriptures and even they will read the language is barely understandable due to heavy influence on the language by Persian and Arabic language.

Therefore, experts who can read these scriptures are the must to access the archive files. Lawyer and expert coordination can assist to the persons who seek their land remained from Ottoman era.

You can find chronological historical explanation :

Directorate of the Registry of Real Property) was established within the structure of “Defter-

hane-i Hakani” (Imperial Office of the Registry of Real Property). For the purpose of

putting title deed transactions and affairs in order and carrying out affairs within certain rules and procedures however “Regulation to be Executed on Title Deed” had been promulgated. on 21st May, 1847. The date of “21 May 1847” has been accepted as the anniversary of establishment of the present “Directorate General of Land Registry and Cadastre”.

According to the Regulation (Nizamname) dated 1847, exercising all sorts of disposals related with “miri arazi” ( demesne/public property), and works for keeping books were assigned to “Defter- hane-i Amire Kalemi” (Clerical Office of Directo¬rate of the Registry of Real Property) set up in “Defterhane-i Hakanı Eminliği” ( Office of Imperial Trust of the Registry ofReal Property). Procedure regarding dispatching one copy of the books for the records kept in situation according to the Regulation to the headquarters and issuance of sealed (Sultan’s Signature) title deeds according to these books kept by “Defterhane-i Hakani Eminliği” and sending them to their locality and delivering them to land- owners commenced to have been implemented.

Upon starting of implementation of the Regulation to be Executed on Title Deeds, with “Arazi Kananname-i Hümayunu” (Imperial Law of Land) promulgated on 23 Şeval “October” 1274 (1858 A.D.) legal arrangements related with land and property were made and as such was reconstructed on much more secure and strong foundations.

With the Law of Land dated 1858 land was treated in 5 sections, namely property, demesne, endowment, desolate and “mevat” (waste land). For the purpose of not being contradictory to the Islamic Law, having consulted with “Sheikhulislam” (Grand Islamic Scholar), integrity and unity were provided with this statutory law promulgated so as to cover all affairs and transactions related with land.

Throughout the process of reformist movements gained acceleration with “Tanzimat Fermani” (Imperial Decree for Reformist Movements), performance of consecutive a lot of arrangements on the particulars related with the property has been continued to be made until the Republican Period. All of these arrangements have constituted steps of establishment of organization of modern Land Registry Office.

Cadastral surveys however have commenced rather a recent period in our country compared to Title Deed. As the result of studies carried out by “Mahmut Esat Efendi” who appointed to the ofîıce of the Ministry of the Imperial Superintendent of Registry of Landed Property (Defterhane-i Hakani Nezareti Nazırlığı) in 1911, Cadastral Surveys were begun pursuant to the “ Provisory Law No. 1384 on Restriction and Determination of Real Estates” (Emvali-Gayrimenkullering Tahdit ve Tespiti Hakkındaki Kanunu Muvakkat).

While initially in our country cadastral surveys were begun in district of Çumra/Konya, unfortu- nately, works were discontinued due to Wars of Balkan and then the first World War and thus the Law could not be fully implemented. Nevertheless, since initially cadastral works were commenced in Turkey by “Mahmut Esat Efendi”, the Minister of the Registry ofLanded Property (Defteri-i Hakani Nazırı), he is accepted as the founder of the Cadastre in Turkey.

In modern meaning, while “Defterhane-i Haka¬ni Nezareti” was a department at the level of Mi¬nistry, it was affiliated to the Ministry of Finance under the name of “Defter-i Hakani Emaneti (Office of Trustee of the Registry ofReal Property) in the year 1329 (1913 A.D.). It was reorganized on 28 Teşrini Sani (November) 1338 (1922 A.D.) under the name of “Umur-i Tasarrufiye Müdüriyeti Umumiyesi” ( General Directorate of Disposal Affairs).

In 1924 following foundation of the Republic of Turkey our Administration was given the name of “Tapu Umum Müdürlüğü” (General Directorate of Land Registry) and thereafter a cadastral unit was added to our General Directorate by the Law No. 658 dated 22 April 1925 (Hegira 1342). In the year 1927 however our Administration was given the name as used today which called in the Law of “General Equilibrium” (Muvazenei Umumiye) as “Tapu ve Kadastro Müdüriyeti Umumiyesi” (Gene¬ral Directorate ofLand Registry and Cadastre).

Present day establishment of the General Di¬rectorate of Land registry and Cadastre, its tasks and powers have been defined by promulgation of the LawNo. 2997 of 29 May 1936 on Organization and Tasks of the General Directorate ofLand Registry and Cadastre and our Administration has been organized as a General Directorate affiliated to the Ministry of Finance on the strength of the said Law.

There are many accidents resulted with injury and even death in Turkey. As a touristic country , there are many foreign victims filed law suit against the hotels regarding the negligence in their services or conditions they provide. Swimming pool accidents, construction related accidents and such relevant cases are all compensated by the hotel company or its insurance company. All hotels must have policy with insurance companies covering their visitors. In case that visitor confronts with a damage, insurance covers the damage with a certain limit. This limit is generally determined per incident and per person. Accordingly, in case that damage exceeds that certain limit envisaged by the insurance policy, visitor or third party have to file a law suit in a court for remained amount against the hotel.

Insurance arbitration requires certain documents for compensation application. Insurance arbitration decides only on material compensation. Upon application to insurance arbitration, decision must be given within 4 months. Insurance arbitration decisions can be appealed in the same judicial body in arbitration appeal commission. Appeal commission must decide within 2 months. Thus, in total all application must be decided in maximum 6 months.

What are the documents required for insurance arbitration application ?

It must be noted that application to the insurance company is mandatory prior to application for insurance arbitration situating in Istanbul. 90 percent applications return with rejection. by the insurance companies. This ratio can be less if the victim applies with a Turkish lawyer. In that case, application

Accident report ( Turkish lawyer can generally obtain the document from the police station or from the chief prosecutor.)
Medical certificate regarding injury reports from the hospital. Hospital records stating the history of the treatment
Forensic examination report regarding the injury level indicated as percentage. (Most crucial)
Income documents like employment contract, payslips and translation of them.
Power of attorney authorizing Turkish lawyer

Unlike the courts, arbitration seeks for these documents without any deficiency. In case one of them lacks , the decision will be rejected based on the ground that sufficient documents were not submitted.

In the court process, collection of the documents are extended over a long time period and completion of the documents can be done during the litigation. The courts also require application to insurance company regarding compensation request. The court can decide on both material and moral compensation. However , it is minimum 2 years process.

Liability of Building Owner Under Turkish Obligation Law

a. Liability to compensate

Article 69- The owner of a building or any other structure is liable for any loss and damage caused by defects in its construction or by inadequate maintenance

As can be seen from the provision, owner of the building has also liability for the damages regarding accidents resulted with injury or death. In that case, if the hotel does not own the building itself this damage can be requested from the building owner also.

turkish tort law — contact cindemir@cindemir.av.tr

In case of a car accident that you confronted in Turkey, our first advice is to get a accident report from the police. If you are unable to request it, the lawyer must figure out where the accident is occurred and obtain the accident report. The report will determine the negligence level of the accident. Negligence is very important for determination of compensation amount. Accordingly, it does not necessarily mean that victim of a car accident will be entitled to a compensation.

One of the most important factors playing as a role is negligence and negligence level in the traffic accident. Second important factor is the damage of the victim stemmed from the accident. If damage is an injury degree of disablement must be documented. Hospital report is not enough to prove the injury degree, they only demonstrate history of the operations or treatment.

However, injury assessment is required to claim under law. Report acquired from forensic hospital is considered as a sole evidence proving the degree of injury. In main big cities of Turkey, private forensic hospitals exist. Hospital expense for said assessment is around 300- 500 USD. Forensic hospital reports concerning degree of injury can be also obtained from the country where victim resides. However, forensic hospital reports given from another country must contain degree of injury as a percentage. The greater part of foreign forensic hospitals do not state degree of injury as a percentage. Because of this fact, we strongly advice victims to apply Turkish forensic hospitals.

The damage can be moral and material. It must be noted that in Turkey all vehicles must have compulsory traffic insurance. Material and moral compensation can be claimed against defacer. However, the defacer may not have enough asset and expected compensation by the victim might be unpaid. Hence victims can apply to the insurance company of defacer to be compensated.

In that case, insurance company must compensate the damage based on the documents provided by victim. After application generally insurance companies reject to pay the compensation. In that case, there are two authorities to apply 1. Courts 2. Insurance Arbitration. Court option is explained in our articles.

Insurance arbitration. Arbitration is quick and efficient way to recover damages. Disadvantage of insurance arbitration is moral compensation. Moral compensation cannot be requested from Insurance company as a matter of fact. Separately tort case must be filed against the defacer at the court.

Insurance arbitration process is very fast as compared to a court case. Court case may take minimum 1 – maximum 3 years. In case that victim cannot also provide forensic report containing percentage of injury degree, opening a court case is also sensible. If all documents are ready, insurance arbitration decides within 4 months.

who can collect debt in Turkey? — contact cindemir@cindemir.av.tr

This article is written to inform the public and to prevent them to involve a crime under Turkish legislation. It is important to inform the potential creditors not to involve any contractual relationship with collection agencies, collection companies stating that they can collect debt in Turkey. Collecting debt in Turkey is only possible by Turkish Attorneys under the law. Other possibilities are prohibited. There are many foreign based companies claiming that they can collect debt in Turkey and these claims fall into criminal liability in Turkey.

No Cure- No Pay slogans are all prohibited under Turkish Attorney Law. Commercial activities and claiming that there will be no payment will be requested is totally crime. It is also not possible to transfer the credit, buying credit and asking for collection on behalf of company in case that the company’s main activity became collection. This right is uniquely belong to Turkish attorneys. Turkish lawyers cannot get any case by using any commissioner.

Offering an attorney commission in exchange for personal interest Article 48 of Turkish Attorney Law – Persons who mediate in soliciting commission for an attorney in exchange for a fee or any kind of gain promised or given by the attorney or the client,
and attorneys who resort to the services of an agent will be punished with imprisonment from six months to one year.
The imprisonment sentence may not be less than one year in the event the perpetrators are public servants.

So those companies claim that they can collect debt in Turkey commits crime under Turkish Law. Companies get the client and by the assistance of a Turkish lawyer , they collect the debt. It is clear under the law that it is a crime in Turkey.

Scope of the attorneyship contract Article 163 – <Amended as per Article 4667/76 dated 2 May 2001> The attorneyship contract is drawn up at liberty. The attorneyship contract must cover a specific legal service and an amount or a value. Unwritten contracts will be proven in accordance with general provisions.Attorneyship fee Article 164 – <Amended as per Article 4667/77 dated 2 May 2001> The attorneyship fee represents the amount or value that the legal service is worth. The attorneyship fee to be imposed on the opposite party at the end of the suit depending on the decision and the tariff belongs to the attorney. This fee may not be traded or deducted due to the client being in debt; nor may it be attached.

As can be seen from the article, the companies which claims debt collection in Turkey is possible without any payment as they state “no cure – no payment” are not relevant to Turkish law. Foreign creditors must be aware of the responsibility to contact with these type of companies instead of Turkish lawyer. These companies have no any legal background in Turkey. It is not possible to establish a debt collection firm in Turkey. It is a crime and prohibited.

company establishment in turkey — contact cindemir@cindemir.av.tr

The preestablishment permits to be taken from The Undersecretariat of Treasury and Ministry of Industry and Trade, required by the previous legislation has been abolished.Aim is to explain details regarding company establishment in Turkey.
COMPANY ESTABLISHMENT IN 1-DAY
It is now possible to establish a company just in 1 day when applied to the related Trade Registry Office with the required documents. The company gets its “legal entity” upon registration at the Trade Registry.
COMPANIES WHICH CAN BE ESTABLISHED Incorporated Companies such as:
• Joint Stock Companies
• Limited Companies
• Commandite Companies
• Collective Companies
Unincorporated Companies such as:
• Joint-Venture
• Business Association
• Consortium
COMPANIES WITH SPECIAL LEGISLATION
Banks, private finance institutions, insurance companies, financial leasing companies, factoring companies, holding companies, companies operating foreign currency exchange offices, companies dealing with public warehousing, publicly held companies subject to the Capital Markets Law, companies that are founders and operators of free zones are still subject to permit from the Ministry of Industry and Trade.
JOINT STOCK COMPANY
The company’s stock capital is divided into shares and the liability of the shareholders is limited to the capital subscribed and paid by the shareholder. At least 5 shareholders (real person or legal entity) and
minimum capital of TL 50.000 is mandatory. The mandatory company organs are general assembly, board of directors and supervisory board.
LIMITED COMPANY
It is the company established with at least 2 and at most 50 real person or legal entities and the liability of the shareholders is limited to the capital subscribed and paid by the shareholder.Minimum capital of 10.000 is mandatory. Unlike joint stock companies, no stock certificate is
issued.
COMMANDITE COMPANY
It is the company established to operate a commercial enterprise under a trade name. Whereas the liability of some shareholders is limited to the capital subscribed and paid by the shareholder (commanditer), for some shareholders there is no limitation of liability. Legal entities can only be commanditer. No minimum capital is required. The rights and obligations of the shareholders are determined by the Articles of Association.
COLLECTIVE COMPANY
It is the company established to operate a commercial enterprise under a trade name and, the liability of none of the shareholders is limited only to the capital subscribed and paid by the shareholder. No minimum capital is required. It is mandatory that all the shareholders be real person. The rights and obligations of the shareholders are determined by the Articles of Association.
COMPANY ESTABLISHMENT IN TURKEY AND PROCEDURES
3 copies of articles of association (one copy original) which are notarized are prepared.
Following the notarization of articles of association, within 15 days at latest, application to the relevant Trade Registry Office with the documents set below is needed.
Documents for the Company Establishment
1. Company Establishment Petition and Notification Form, duly filled in and signed by persons authorized to represent the company*,

2. Notarized signatures of persons authorized to represent the company together with the company trade name,
3. Letter of Commitment in accordance with Article 29 of the Trade Registry Regulation,
* The list of the documents to be procured and forms to be filled can be downloaded from www.sanayi.gov.tr and www.hazine.gov.tr
4. Bank receipt of the deposit, amounting to 0.04% of the company capital,
5. Certified copies of the ID certificates of the real person founders and their residence certificates (if they have Turkish citizenship),
6. In case there are any real persons of foreign citizenship among the founders of the company, the xerox copy of his/her passport to be presented together with the passport itself or its notarized copy,
7. In case the foreign shareholder(s) is a legal entity; the original copy of the Certificate of Activity issued by the competent authorities and approved by the relavant Turkish Consulate or apostilled and its notarized translation,

8. In case there are any rights and movable and immovable assets to be put in as capital for a company to be established; expert report of the assesment made to ascertain the value of these and the related court decision for the expert assignment.

Treasury Department of Turkey

rehber_Eng

http://www.lexadin.nl/wlg/legis/nofr/eur/lxwetur.htm
http://www.lexadin.nl/wlg/legis/nofr/eur/lxwetur.htm

Taken from Lexadin.nl

The Republic of Turkey legally recognizes marriages executed in Turkey only after the marriage is registered at a local Vital Statistics office (Nufus Dairesi). In Turkey, all family records are recorded in the Vital Statistics office that was the original home to the family. Even if no one currently lives in that area, births, marriages, divorces, and other events are recorded in this one location. In the event the marriage was executed in another country, the marriage may be registered through the nearest Turkish consulate. The Turkish Consulate will forward the documents to the office that handles that family record book.

To terminate a legal marriage recognized in Turkey, American citizens are required to obtain a court divorce decree from a Turkish civil court. Divorce decrees issued in jurisdictions outside of Turkey are not considered valid for purposes of divorce in Turkey. A divorce decree issued in the United States is valid for the purposes of petitioning for a beneficiary with the Department of Homeland Security and interviewing with the U.S. Embassy. However, under certain circumstances it may be advisable for the divorcees to also register the divorce with the Turkish courts in order to legally terminate the marriage in Turkey. This is not necessary for all cases and would generally only take place for a marriage which was originally registered with the Turkish courts, where one member may continue to reside in Turkey, and for the purposes of that person’s legal standing within Turkey.

A power of attorney, available in Turkey from any notary public, must be granted to an attorney who will start the divorce proceedings. A separate list of attorneys is also available from the U.S. Embassy.

Divorce proceedings are generally open to the public. However, at the request of either party, a judge may choose to preside over a closed or private court case. Judges may also take temporary measures for the protection of the parties, their property, and the welfare of their children.

When a divorce case is opened, a judge may decide on separation if he or she determines there is a possibility of the parties reconciling. A period of 1-3 years can be given for separation before the final decision to grant a divorce is reached.

Following a divorce, the woman generally resumes the last name she had before the marriage. She may, however, continue to use her husband’s last name if the judge approves this decision. The divorced woman may not legally remarry within 300 days following the date of the dissolution except in cases where court permission is obtained. Additionally, some divorce decrees may have a specific notation restricting marriage for any reason; the party subject to the restriction may not remarry within the period specified on the decree.

In divorce cases in Turkey, the court also rules on child custody issues. The court may compel non-custodial parents to contribute to each child’s health and education expenses in proportion to the parent’s economic status.

Chapter 2 of the Turkish Civil Code provides the following possible grounds for opening court cases for a divorce or separation in Turkey:

Adultery, Maltreatment, threat to life, severe insult
Committing a crime which degrades the integrity or the prestige of the other party
Deserting home: If one of the parties leaves home and does not return for at least 6 months without showing a valid reason and also does not respond to the Judge’s warnings, the deserted spouse may open a court case for a divorce. The party who has forced his/her spouse to leave home or who prevents the return of the spouse without any valid reason is also considered to have deserted his/her home.
Mental illness: If one of the parties has a mental problem which is confirmed by an official medical committee report that it cannot be treated, a court case for a divorce can easily be opened.
Incompatibility: Though this is the widest area of grounds for opening divorce cases, the Defendant has the right to reject a court case if the Plaintiff is found to be more at fault. If the judge, however, decides that the right of rejection is being exploited and that there is no benefit for the Defendant and the children in maintaining the marriage, a decision for divorce can be made.

If the marriage has lasted for at least one year and a joint application for divorce is made, or a court case opened by one spouse is accepted by the other spouse, the marriage is considered to be impaired. In such cases, the Judge listens to both sides and approves the agreement reached by the parties regarding the protection of the children and financial affairs. The Judge has the authority to make any changes on the arrangements. If both parties consent to these changes, the divorce decision is given.

If three years have elapsed from the date a divorce case is rejected and living together has not been established, the marriage is considered to be impaired and a divorce decision is given upon application to the court by either spouse.

PART ONE
General Provisions

Purpose

Article 1 – These Regulations have been prepared for the purpose of prescribing the rules pertaining to the establishment, operation, and termination of attorney partnership with legal personality to be engaged in rendering attorneyship services.

Scope

Article 2 – These Regulations cover the attorney partnerships to be established in Turkey and the foreign attorney partnerships which may be established within the framework of the statutes on incentives to foreign capital and on a reciprocal basis in order to render consultancy services exclusively in the fields of foreign laws and international law.

Legal basis

Article 3 – These Regulations have been prepared in accordance with Subparagraph B of Article 44 of the Attorneyship Law, number 1136, dated 19 March 1969.

Nature of the partnership and taxation

Article 4 – The operation of an attorney partnership is a professional activity and will not be regarded as commercial. Attorney partnerships will be subject to the same provisions as applicable to small business firms as far as taxation is concerned.

PART TWO
Establishment Of The Attorney Partnership

Partnership contract

Article 5 – The basic contract of an attorney partnership must be prepared in accordance with the standard basic contract for attorney partnerships (standard basic contract for foreign attorney partnerships) to be prepared by the Union of Bar Associations of Turkey, and signed by all the partners. The basic contract may include special terms provided that they are not contradictory to the provisions in the Attorneyship Law and these Regulations.

Partnership shares

Article 6 – The shares of participation in the partnership committed by the partners will be indicated separately for each partner in the basic contract. The partners may commit as partnership share immovable assets, movable assets, money in cash, professional documents, archives, knowledge, and labor suitable for the rendering of the professional activity. The shares committed will be registered as partnership assets immediately and in full upon the registration of the partnership.

Any and all changes that may occur in partnership shares after the registration of the partnership will become valid upon the modification and registration of the basic contract accordingly.

If immovable assets or movable assets such as automobiles or stocks have been committed as partnership shares, the official records for such securities must be turned over to the partnership immediately upon the registration of the partnership. The transactions in connection with the registration of such securities in the name of the partnership will be accomplished by the transferring partner and the partnership representative applying together to the place where the records are kept.

Application

Article 7 – Attorneys wishing to establish an attorney partnership will apply to the bar association where the attorney partnership will be registered with a letter of application signed by all the partners. Two copies of each of the following documents will be appended to the letter of application:

a) The basic contract of the partnership with each page signed by all of the partners.

b) Authenticated facsimiles of the deed for immovable property, the registration booklet for automobiles, bank receipt for money in cash, and the certificate for movable assets committed in the basic contract as security for the share in the partnership.

c) A document received from bar associations certifying the entry of the partners in the directory. (Will not be required for foreign attorney partnerships provided that reciprocity is observed.)

d) Authenticated facsimiles of the identification cards of the partners (passports of foreign partners.)

e) The following documents will be required additionally for foreign attorney partnerships:

(1) Permission from the General Directorate of Foreign Capital of the Undersecretariat of the Treasury to the effect that operations in Turkey are authorized within the framework of the statutes on incentives to foreign capital.

(2) The attorneyship license or certificate of authorization of each foreign partner received from the bar association he/she is enrolled with in the foreign country, and a translated and notarized attestation that there are no impediments to practicing his/her profession.

(3) A document issued by the authorities concerned in the country of citizenship of each foreign partner acknowledging the fact that reciprocity as regards foreign attorney partnerships exists between his/her country and the Republic of Turkey in accordance with the provisions of the Attorneyship Law and regulations, and that Turkish attorneys may also render attorney partnership activities under equal conditions in the countries of these persons.

Decision

Article 8 – The application will not be processed until the letter of application and the full set of documents required to be appended thereto have been submitted to the clerical office of the bar association with which the attorney partnership will be registered. The board of directors of the bar association will make a decision within one month as to the entry of the attorney partnership in the attorney partnership register of the bar association. The application will be considered as rejected unless a decision is made within this period. The request for entry in the register may only be rejected on the grounds of contradiction to the Law and the standard basic contract. Decisions of rejection will be written with their reasons.

Acceptance of the request

Article 9 – The board of directors of the bar association will decide to enter the attorney partnership in the attorney partnership register of the bar association if the application for the establishment of an attorney partnership is considered to be in compliance with the Law and the Regulations.

The bar association will enter the attorney partnership in the attorney partnership register of the bar association in keeping with this decision and forward a copy of the basic contract to the Union of Bar Associations of Turkey.

The attorney partnership will assume legal personality upon being entered in the attorney partnership register of the bar association. The title of attorney partnership may not be used and professional services may not be rendered in the name of the partnership before the entry of the attorney partnership in the attorney partnership register of the bar association.

The attorney partnership will be issued a certificate attesting to its entry in the attorney partnership register of the bar association.

Rejection of the request and objection

Article 10 – The board of directors of the bar association will reject the requests considered to be in contradiction to the Law, the relevant regulations, and the standard basic contract. The decision of rejection with the reason will be communicated separately to each partner requesting to establish a partnership. A notice served to the address indicated in the basic contract will be considered as having been made to the partner in person.

The partners may raise an objection to this decision with the Union of Bar Associations of Turkey within fifteen days from the date of notification through the bar association that made the decision.

The mailing costs will be received from the objector. If requested, the bar association will draw up a document verifying the date of the objection and give it to the requestor. This document will not be subject to any taxes, charges, and duties.

The decisions of the boards of directors of bar associations regarding the rejection of a request for the entry of the partnership in the register will become final if not objected to within the period allowed.

The Union of Bar Associations of Turkey will decide to accept or reject the objection after conducting the necessary examination on the file. The objection shall be considered as having been rejected if a decision is not made by the Union of Bar Associations of Turkey within one month as of the date of objection.

The Union of Bar Associations of Turkey will submit its decisions of acceptance or rejection of objections to the Ministry of Justice within one month as of the date they were made. These decisions will become final if no decision is made by the Ministry of Justice within two months as of the date of their receipt by the Ministry of Justice or if the decisions are approved. However, the Ministry of Justice will return the decisions it does not deem appropriate to the Union of Bar Associations of Turkey for reconsideration together with the reasons for return. The decisions thus returned will be considered as approved if passed unchanged by a two thirds majority vote of the Board of Directors of the Union of Bar Associations of Turkey; otherwise they will be considered as not approved.

The result will be communicated to the Ministry of Justice by the Union of Bar Associations of Turkey.

Suits may be filed with administrative tribunals by the Union of Bar Associations of Turkey, the candidate partners, and the bar association concerned against the decisions made by the Ministry of Justice; and by the Ministry of Justice, the candidate partners, and the bar association concerned against the decisions made by the Union of Bar Associations of Turkey after reconsideration of the decisions found inappropriate and returned by the Ministry of Justice.

The bar associations are under the obligation to implement immediately the decisions that have become final.

PART THREE
Foreign Attorney Partnerships

Foreign Attorney Partnerships

Article 11 – Foreign attorney partnerships wishing to operate within the framework of the statutes on incentives to foreign capital will apply to the bar association in the place where they will operate.

Foreign attorney partnerships will operate on the conditions that such operation is on a reciprocal basis and that the partnership has been established in accordance with the provisions in the Attorneyship Law and these Regulations.

Foreign attorney partnerships will also be under the obligation to fulfill the conditions and furnish the documents required as per these Regulations and the Attorneyship Law regarding their establishment.

Foreign attorney partnerships may render consultancy services only in the fields of foreign laws and international law. They may not overstep these bounds in their professional activities and may not practice attorneyship. This restriction will also be applicable to the attorneys of Turkish or foreign citizenship employed by the foreign attorney partnership.

When more than one attorney of non-Turkish citizenship, or an assemblage of attorneys of Turkish and non-Turkish citizenship wish to establish a foreign attorney partnership under the conditions stated in the first paragraph, they will apply to the bar association in the place they wish to operate in Turkey.

As dictated by the prerequisite of reciprocity in the Attorneyship Law, the rendering of consultation services in the fields of foreign laws and international law by foreign attorney partnerships in Turkey is contingent upon Turkish attorneys and Turkish attorney partnerships being granted the right to render attorneyship services under the same conditions by the respective country of each foreign partner.

The condition of enrollment in a bar association will be waived for partners forming a foreign attorney partnership established in accordance with the provisions in the Attorneyship Law and the Regulations. However, the partnership will be required to be entered in the attorney partnership register of the bar association in the place where it will operate. Otherwise, the title of partnership may not be used and services may not be rendered in the name of the partnership.

Foreign attorney partnerships and their partners will also be under the obligation to comply with the Attorneyship Law, the regulations, and the professional rules.

PART FOUR
Standard Basic Contract Of Attorney Partnerships

Scope of the contract

Article 12 – The standard basic contract of attorney partnerships will cover the following points:

a) Names, last names, nationalities, addresses of residence, bar associations enrolled with, bar association registration numbers, and union numbers of the partners.

b) The title and address of the partnership.

c) The term of the partnership.

d) Partnership shares.

e) Principles pertaining to the relations and the settlement of disputes between the partners.

f) Principles pertaining to the division of labor in suits and cases.

g) Powers of the managing partners.

h) Management and representation of the partnership.

i) Board of partners

j) The duties and powers of the board.

k) Division of revenues and expenditures.

l) Inspection and audit.

m) Withdrawal from partnership.

n) Dismissal from partnership.

o) Transfer of shares and the provisions thereof.

p) Termination of the partnership.

r) Voluntary and statutory dissolution.

s) Liquidation.

The basic contract of attorney partnerships will be prepared in accordance with the standard basic contract.

The basic contract may not include terms contradictory to the Attorneyship Law, the regulations, the professional rules, the law, ethics, and the honor and independence of the profession.

Title and address of the partnership

Article 13 – The title of the attorney partnership will be formulated by adding the expression “attorney partnership” to the names and/or last names of one or several partners.

Whether the name and/or last name of a partner who has withdrawn or a deceased partner will be retained in the title of the partnership will be provided for by the partners in the basic contract of the attorney partnership.

The address of the attorney partnership is the address where partnership activities will be rendered on a permanent basis.

Term of the partnership

Article 14 – The term of the partnership may either be limited to a definite duration by the partners in the basic contract of the partnership or be indefinite. The term will be considered as having been set indefinitely if no term is specified in the basic contract.

Partnership shares

Article 15 – Partnership shares and rates may be decided at liberty between the partners. The partnership shares of the partners will be equal unless otherwise provided for in the basic contract. Partnership shares may not be pledged.

Transfer of shares

Article 16 – Partnership shares may only be transferred to other partners or third parties who are attorneys.

The board of partners may grant or deny approval to the transfer of shares at its discretion.

The partners may prohibit all manner of transfer of shares for a specified period or indefinitely by the basic contract.

In the event that an inheritor is not an attorney or declines partnership; or a partner withdraws from partnership due to withdrawal or medical reasons, or is deleted from the directory of the bar association, or leaves the profession, or is disbarred, or an attachment is imposed on his/her shares in the partnership, his/her partnership share may be transferred to the other partners or, by a decision of the board of partners, to a third party who is an attorney at their current value. Action will be taken in accordance with Subparagraph B of the Attorneyship Law in case of a dispute over the price.

Board of partners

Article 17 – The board of partners is composed of the shareholders. It is the entity with the highest powers in the partnership.

The place, time, and formalities of the meetings of the board of partners and the quorums for meeting and decision making will be determined at liberty in the basic contract.

The board of partners may be called to a meeting to discuss an agenda to be prepared in writing by one of the partners and communicated to the other partners unless otherwise provided for in the basic contract. The board of partners will be considered as having convened with validity when a minimum of three fourths of the partners are present or represented by proxy provided that the date and time of the meeting has been communicated to the partners in writing at least three days before the meeting. If this quorum is not reached, the partners will be called a second time by the same procedure; in which case the presence or the representation by proxy of a minimum of two partners will be adequate. The board of partners will meet at least once a year in the month of January.

A partner may give proxy to another partner to represent him/her at the meeting of the board of partners. A person may not hold proxies from more than one partner. Persons who are not partners may not be appointed as representatives.

The decisions of the board of partners will be writted in the decision book of the partnership and signed by the partners participating in the meeting. Dissenting partners will sign the decisions by annotating the reasons for their dissension.

Duties and powers of the board of partners

Article 18 – The duties and powers of the board of partners are as follows:

a) Identifying the partners charged with the management and representation of the partnership.

b) Defining the limits of power in management and representation.

c) Defining the general rules regarding the rights of the attorneys other than the partners and other staff employed by the partnership.

d) Defining the general rules regarding the activities of the partnership and the division of labor among the partners.

e) Approving with or without modifications the budget to be prepared by the managing partner(s).

f) Defining the monthly advance amounts the partners will receive from the revenues, the division of the annual revenue, and the amount to be allocated for the development of the partnership.

g) Deciding whether to admit or reject a new partner in the transfer and succession of the partnership shares.

h) Deciding on the purchase of the share of a partner who wants to withdraw from the partnership or has an attachment imposed on his/her share.

i) Deciding on the dismissal of partners from the partnership.

j) Deciding on the investments required for the operations of the partnership.

k) Deciding on the modifications to be required in the basic contract of the partnership.

l) Deciding on whether to decline an offer for a job when a claim is made to this effect by one of the partners.

m) Deciding on the continuation of the partnership when the term of the partnership expires.

n) Deciding on the dissolution of the partnership.

o) Appointing a liquidator in the event of the voluntary or statutory dissolution of the partnership.

Management and representation of the partnership

Article 19 – Which partners will represent and make undertakings on behalf of the partnership, and in what manner, may either be provided for in the basic contract of the partnership or decided by the board of partners. In the event that no partner or partners have been designated for the management and representation of the partnership either in the basic contract or by the decisions of the board of partners, all of the partners will have authority in the management and representation of the partnership.

A copy of the decisions modifying the provisions governing management and representation will be submitted to the bar association and kept in the registration file of the partnership.

The signature samples and authorization documents of the persons empowered to manage and represent the partnership will be certified by the president of the bar association.

Powers of the managing partners

Article 20 – The board of partners may elect one or several partners as managing partners.

The election of the managing partners, their terms of duty, procedures of replacement, powers, meeting times, manner of invitation to meeting, and the quorum for decisions will be detailed in the basic contract of the partnership.

The managing partners will direct the operations of the partnership, represent and make undertakings on its behalf, and perform the duties assigned by the board of partners in accordance with the Law, regulations, the basic contract, and the decisions of the board of partners.

The managing partners may be paid a fee in addition to dividends if so provided for in the basic contract or decided by the board of partners.

The duties of the managing partners may be terminated and other partners assigned in their stead by the board of partners at any time.

The powers of the managing partners may not be exercised in any manner that would violate the professional independence of the other partners and the attorneys employed by the partnership.

Division of revenues and expenditures

Article 21 – The partners will be under the obligation to divide the expenditures of the partnership with priority. The partners will be at liberty to decide in the basic contract the manner in which the revenues will be divided.

Relations between partners and settlement of disputes

Article 22 – The partners will be under the obligation to conduct themselves in compliance with the honor of the profession of attorneyship and the rules of the profession in their dealings with each other, the staff, and third parties.

The partners may not be engaged as partners in more than one attorney partnership, may not have an office other than the office of the partnership, and may not conduct legal action independently.

Conduct to the contrary will be a reason for dismissal from the partnership; and the right of the partnership to claim damages from a partner displaying such conduct will be reserved, as will be the provisions regarding discipline in the Attorneyship Law.

Any and all disputes to arise between partners in connection with their mutual affairs with one another, the affairs of the partnership, or affairs with third parties regarding price in the transfer and succession of partnership shares will be settled by the arbitration board in accordance with the provisions of the Attorneyship Law and relevant regulations.

Division of labor

Article 23 – The execution of actions, the division of labor among the partners, and the rendering of services will be defined at liberty in the basic contract of the partnership.

The jobs assigned to the partners and the attorneys employed by the partnership will be recorded in the suits and actions book.

Inspection and audit

Article 24 – Every partner will have the right to receive information about the partnership and to inspect the books of the partnership and the documents on suits and cases.

The partners will appoint in the basic contract of the partnership an audit board composed of one or several persons to inspect the financial affairs of the partnership. The duties and powers of the audit board will be provided for in the basic contract.

Withdrawal from partnership

Article 25 – Unless otherwise provided for in the basic contract of the partnership, every partner may withdraw from the partnership by transferring his/her partnership share to any other partner or several partners, or another person eligible for partnership. The partner wishing to withdraw from the partnership will communicate his/her intention of withdrawal, the value of his/her share, and the identity of the person to whom the shares will be transferred in writing to the partnership and to all the partners. The transfer of the partnership share will be considered as having been approved by the partnership if the partnership does not make a decision on the transfer within two months from the date the last partner was notified of the intended transfer.

Action will be taken in accordance with Subparagraph B of Article 44 of the Attorneyship Law and the Bar Arbitration Board Regulations of the Union of Bar Associations of Turkey.

Dismissal from partnership

Article 26 – A partner may be dismissed from partnership by a decision made by a quorum of three fourths of the members of the board of partners in the event of the presence of rightful reasons pertaining to his/her person.

PART FIVE
Termination Of Partnership

Voluntary dissolution

Article 27 – The partners may decide the dissolution of the partnership at any time unless otherwise provided for in the basic contract.

The provisions of the Attorneyship Law and the Regulations will be applicable in the event of the voluntary dissolution and liquidation of the partnership if no provisions exist therefor in the basic contract.

Statutory dissolution

Article 28 – An attorney partnership will dissolve by statute under one of the following circumstances:

a) The number of partners in the attorney partnership dropping below two due to withdrawal or dismissal of the partners from partnership, death of the partners, inheritors not being attorneys or declining partnership, withdrawal of the partners from attorneyship due to withdrawal or medical reasons, deletion from the directory of the bar association, withdrawal from the profession or disbarment, or the imposition of an attachment on the shares of the partners in the partnership.

b) The materialization of circumstances indicated as a reason for dissolution in the basic contract of the partnership.

c) Non-extension of the term of partnership indicated in the basic contract of the partnership.

d) Non-completion within three months of the actions prescribed in Article 44, Subparagraph B, Sub-subparagraph a/1 of the Attorneyship Law.

e) Merging of the attorney partnership with another attorney partnership.

f) The deletion of the attorney partnership from the attorney partnership register in accordance with Subparagraph 5 of Article 135 of the Attorneyship Law.

Liquidation

Article 29 – An attorney partnership that dissolves by statute will get into liquidation.

An attorney partnership that gets into liquidation will retain its legal personality until the completion of the liquidation on a basis restricted to business relevant to the liquidation. It may not continue its professional activities. The partners to an attorney partnership that gets into liquidation may render professional services independently.

The provisions of Article 42 of the Attorneyship Law will apply by analogy to an attorney partnership that gets into liquidation, if necessary.

The status of an attorney partnership that gets into liquidation will be recorded in the attorney partnership register of the bar association.

The liquidation actions will be conducted by the managing partner or the managing partners unless a specific procedure has been prescribed in the basic contract of the partnership for the appointment of a liquidator.

The liquidators or the managing partners appointed in accordance with the basic contract may be dismissed by the board of partners at any time.

The board of directors of the bar association may also appoint replacements for liquidators upon the request of a shareholder supported by rightful grounds.

Upon assuming his/her duty, the liquidator will promptly determine the condition and status of the partnership and report his/her findings to the board of directors of the bar association. The board of directors of the bar association will assess a fee to be paid to the liquidator by taking into consideration the status report submitted by the liquidator. The manner of payment of this fee will be decided by the board of directors of the bar association. The partners in liquidation will be under the obligation to deposit the fee fixed by the board of directors of the bar association in the account to be designated by the bar association in proportion to their shares in the partnership. Non-payment of the fee will constitute a disciplinary offense.

The board of partners may unanimously decide the division of the movable and immovable assets owned by the partnership among the partners on the condition of the liquidation of the debts of the partnership.

The liquidator will pay all the expenses incurred in connection with the suits and cases filed by or against the partnership in liquidation out of the assets of the partnership.

At the end of the liquidation process, the assets of the partnership remaining after the payment of the debts will be divided among the shareholders in proportion to their shares.

The attorney partnership will be deleted from the attorney partnership register of the bar association upon a notification by the liquidator as to the completion of the liquidation process.

PART SIX
Merger And Transfer Of Attorney Partnerships

Merger and transfer

Article 30 – Two separate attorney partnerships registered with the same bar association may merge themselves into a new attorney partnership under the name of either partnership or a new name by the decisions to be made by the respective board of partners of both partnerships. Liquidation provisions will not be applied in such a case. The rights and obligations of the two attorney partnerships deciding to merge will succeed to the newly formed attorney partnership.

An attorney partnership may request transfer in accordance with Article 68 of the Attorneyship Law.

PART SEVEN
Books, Records, And Documentation

Mandatory books

Article 31 – An attorney partnership is under the obligation to keep a suits and actions book, a shares book, a decision book, an income and expenses book, and an assets book.

The partner in charge of the management and representation of the partnership will be responsible for the keeping of the books. The books that attorney partnerships are required to keep will be printed by the Union of Bar Associations of Turkey and obtained through bar associations for a price.

Certification of the books

Article 32 – Of the books that attorney partnerships are required to keep, the revenues and expenses book and the assets book will be certified by a notary public. The time and manner of notarization will be determined in accordance with the provisions of the Tax Procedure Law, number 213, dated 4 January 1961.

Upon the application to be made to the president of the bar association by the partnership for the other books, the bar association will count the pages of the books and put its stamp on all the pages. A memorandum will be prepared in two copies on the certification. One copy will be kept in the registration file for the partnership. The certification procedure will be carried out by the bar association at cost.

Suits and actions book

Article 33 – The suits and cases received by the partnership will be recorded in the suits and actions book with their date of arrival and serial number. These records will also indicate the client, the nature of the suit or case, information on the significant stages and the outcome of the suit or the case, and the attorneys assigned the suit or the case.

Shares book

Article 34 – A separate page will be opened for each partner in the shares book, indicating the partners identification data, the proportion of his/her shares, whom the shares were taken over from if the shares came by way of transfer, the date, and whom the shares were turned over to in case of a transfer. The necessary information will also be recorded for the succession of shares.

A file will also be kept for each partner in addition to the shares book.

Documentation on the share of participation in the partnership and the transfer of shares will be kept in this file.

Decision book

Article 35 – All the decisions made by the board of partners in connection with the activities of the partnership will be recorded in this book by date and serial number and signed by those present in the decision making. Dissenting partners will sign the decisions by annotating their reasons for dissension.

Revenues and expenses book

Article 36 – The revenues earned by the partnership from its professional activities will be recorded in this book by reference to the private profession receipt. The private profession receipt will be prepared on the date the revenue has been collected. All the expenditures incurred by the partnership will also be recorded in this book by order of the date they were incurred and by reference to documentation. The documents on which the revenues and expenditures recorded in the revenues and expenses book are based will be kept until five years have lapsed from the end of the year in which they were drawn up. The provisions in special laws are reserved.

Assets book

Article 37 – All of the movable and immovable assets owned by the partnership will be recorded in this book by order of the date of acquisition. Depreciation records will also be indicated in this book. Movable assets that become unusable from wear or are sold off will be deleted from the records using proper procedure.

PART EIGHT
Power Of Attorney

Power of attorney and certificate of authorization

Article 38 – The powers of attorney pertaining to the services to be rendered by the partnership will be drawn up in the name of the partnership.

The partnership will issue a certificate of authorization drawn up as per proper procedure to its partners or employed attorneys assigned to a suit or a case. If the power of attorney allows delegation of authority, the partnership may issue certificates of authorization to third party attorneys in addition to its partners or employed attorneys, in which case the partnership will remain jointly and severally liable in accordance with the Law and the present Regulations.

Power of attorney record book

Article 39 – Powers of attorney received in the name of the partnership for rendering services will be recorded in the power of attorney record book of the partnership by indicating the identification data of the person giving the power of attorney, data on the notary public that drew up the power of attorney, and the serial number and date of notarization; and the originals of the powers of attorney will be archived by the partnership by cross reference to an alphabetical listing.

PART NINE
Disciplinary Provisions And Final Provisions

Criminal liability

Article 40 – The partnership may not be the subject of a disciplinary prosecution independent of the disciplinary prosecution of the partners.

Every partner and the attorneys employed by the partnership will be under the obligation to act in compliance with the Attorneyship Law and the professional rules. Those acting in contradiction of the Law and the professional rules will also be personally liable for their acts.

In the event that the act or acts of the partner(s) and the attorney(s) employed by the partnership which constitute a disciplinary offense have been committed by a decision of the board of partners or under the instructions of the managing partner, or that the partnership fails to take the necessary action against those of its partners or employed attorneys who have gotten into the habit of committing acts or actions in contradiction of the Law and the rules, disciplinary punishments will be imposed as prescribed in the Law depending on the gravity of the acts.

Legal liability

Article 41 – Attorney partnerships will have unlimited joint and several liability for the acts, actions, and debts of the partners and the employed staff in connection with their professional duties, together with the said partners and staff. The right of the partnership to revert to the person concerned will be reserved.

Entry into effect

Article 42 – These Regulations will enter into effect on the date of their publication.

Enforcement

Article 43 – The provisions in these Regulations will be enforced by the board of directors of the Union of Bar Associations of Turkey.

Under Turkish Law, there is a difference between recognition of foreign decision and enforcement of the decision. Applicant may ask recognition of the foreign decision solely but the decision on recognition will not enable applicant to enforce the decision by the execution department. For instance, divorce can be recognized after the court decision and records regarding the marriage under Turkish records regarding the marriage between spouses will be deleted but the content of foreign decision such as alimony issue, compensation issue will not take effect in Turkey due to solely recognition request. Which means that alimony, guardianship and compensation issues cannot be executed by execution department. Legal conditions of “recognition” of foreign court decision are more liberal than enforcement of the content.

On the other hand, an applicant can file a lawsuit by requesting “recognition and enforcement” of a foreign decision. In that case, legal conditions of the enforcement which are stricter than recognition will come to an issue. The main difference of the condition between recognition and enforcement procedure is the condition of “reciprocity”. In recognition procedure, Turkish Courts don’t seek reciprocity criteria. Relevant provisions regarding recognition and enforcement is indicated in the end of the article.

Considering our specific title of the article, Russian Decisions can be recognized in Turkey. On the other hand, enforcement of the Russian Decisions is very complicated in Turkey currently. Unlike Russian Civil Code, Turkey inserted provisions regarding enforcement and recognition of the foreign decisions into its International Private Code. In addition, Turkish provisions concerned are more liberal than Russian provisions. Reciprocity criteria of Turkey is not only depended on the international and mutual agreement as regulated in Russia (Disregarding Supreme Court Decision).

Under Turkish Reciprocity Conditions are as following:

Existence of an agreement, on a reciprocal basis between the Republic of Turkey and the state where the court decision is given
A provision of law enabling the authorization of the execution of final decisions given by a Turkish court in that state,
De facto practice enabling the authorization of the execution of final decisions given by a Turkish court in that state,

In case one of these conditions is existing and if one of them will be proved in the lawsuit, then there will be no problem regarding the reciprocity issue.

Reciprocity conditions are debatable. In that case, all cases must be examined based on their specific content.

Chapter II. Enforcement and Recognition of Decisions of Foreign Courts and Arbitral

Awards

Enforcement of Court decrees

Article 50-

(1) Enforcement of court decrees rendered by foreign courts in the course of civil lawsuits in Turkey which are final

pursuant to the law of that foreign state shall be subject to the enforcement decision of the competent Turkish court.

(2) Enforcement decision may also be requested with regard to judgments on personal rights stipulated in the court

decrees of foreign criminal courts.

Jurisdiction and Competency

Article 51-

(1) The Courts of First Instance (3) shall have jurisdiction over enforcement decisions.

(2) These decisions shall be requested from the court at the place of habitual residence of the person against whom

enforcement is requested if he/she does have a domicile in Turkey, or from one of the courts in Istanbul, Ankara, or Izmir

if he/she does not have a domicile or habitual residence in Turkey.

Request for Enforcement of Court Decrees

Article 52-

(1) Anyone who has legal interest in enforcement of a decree can request so. Enforcement shall be requested by a

petition. Copies of the petition in the number of opposing parties shall be attached. The petition shall contain the

following:

a) The names, surnames, and addresses of the parties and their legal representatives, if any,
b) The court of the state that has rendered the decree subject to the enforcement and the name of the court, the date

and number of the decree, and a summary of the judgment,

c) If partial enforcement is sought, an indication as to which part of the decree is the subject of the request.

Documents to Be Attached to the Petition

Article 53-

(1) The following documents are to be attached to the petition:

a) The original copy of the court decree certified by the authorities of the foreign state or an exemplar of the decree

certified by that organ of jurisdiction and a certified translation thereof,

b) A document or written statement from the authorities of the state which officially confirms that the court decree is final

and a certified translation thereof.

Conditions of Enforcement

Article 54-

(1) The competent court shall render enforcement subject to the following conditions:

a) Existence of an agreement, on a reciprocal basis between the Republic of Turkey and the state where the court

decision is given or a de facto practice or a provision of law enabling the authorization of the execution of final

decisions given by a Turkish court in that state,

b) The judgment must have been given on matters not falling within the exclusive jurisdiction of the Turkish courts or, in

condition of being contested by the defendant, the judgment must not have been given by a state court which has

accepted himself competent even if there is not a real relation between the court and the subject or the parties of the

lawsuit,

c) The court decree shall not openly be contrary to public order,
d) The person against whom enforcement is requested was not duly summoned pursuant to the laws of that foreign state

or to the court that has given the judgment, or was not represented before that court, or the court decree was not

pronounced in his/her absence or by a default judgment in a manner contrary to these laws, and the person has not

objected to the exequatur based on the foregoing grounds before the Turkish court,

Notification and Objection

Article 55-

(1) The petition for the request for enforcement shall be served upon the opposing party and shall contain the date of the

hearing. Recognition and enforcement of undisputed court decrees are also subject to the same provision. For

recognition of undisputed court decrees the provision of notification shall not be applied. The request is to be reviewed

and resolved by the court in accordance with the provisions of simple trial procedure.

(2) The opposing party may only raise objection by claiming that the enforcement conditions under the provisions of this

chapter are not present or that the foreign court decree was partially or wholly executed or a reason hindering the

enforcement has arisen.

Court Decision

Article 56-

(1) The court may decide for full or partial enforcement of the foreign court decree or may dismiss the request. This

decision shall be written on the foreign court decision and signed and sealed by the judge.

Execution and Appeal

Article 57-

(1) Foreign court decrees for which enforcement is rendered shall be executed as court decrees rendered by the Turkish

courts.

(2) Court decrees regarding dismissal or acceptance of the enforcement request may be appealed pursuant to the

general provisions of the Civil Procedure Law. The appeal suspends the execution.

Recognition

Article 58-

(1) A foreign court decree may serve as a definitive evidence or final judgment, provided that the court decides that the

foreign court decree fulfills the conditions of enforcement. Subparagraph (a) of Article 54 shall not apply to recognition.

(2) The same article shall apply to the recognition of undisputed court decrees.

(3) The same procedure shall apply in concluding an administrative transaction based on a foreign court decree.

Final Judgment and Definitive Evidence Effect

Article 59-

(1) A foreign court decree serve as a definitive evidence or final judgment from the time the foreign court judgment

becomes definitive.

Compensation of Damages for Foreign Victims due to Terror under Turkish Law — contact cindemir@cindemir.av.tr

Within the scope of the Law No. 5233 on the Compensation of Damages Resulting from Terrorism and the Fight against Terrorism, the damages of our citizens who are victims of terrorism are compensated. Under Law No. 6353 and Law No. 6495, employment rights in the public services and salaries are provided for our citizens (including foreigners) who are victims of terrorism. Procedures for the allocation of salaries and the compensation of damages are conducted by the Governors’ Offices and by the Organization of Social Security. Procedures for employment are conducted by the Ministry of Family and Social Policies and by the State Personnel Administration.

Training was provided by the Department of Veterans and Relatives of Martyrs for the personnel assigned at the Provincial Directorates of the Ministry of Family and Social Policies for the relatives of martyrs, veterans and citizens who are victims of terrorism on 24-28 February 2014.

It must be boren in mind that there are exceptions regarding the scope of the law.

This law does not apply to:

a) The damages compensated by the state by way of awarding land or houses or in any other

way.

b) The damages compensated due to a court decision or in accordance with Articles 30-31 of

the Code no 4353, Concerning The Service of Finance Proxy Head Law Counselor and Cases

l Public Directorate, Prosecution of GovernmentTrials Procedures and Changes on Central and Town Staff,

c) The damages compensated in accordance with the final judgment of the ECHR taken in line with Article 41 of the Convention for the Protection of Human Rights and Fundamental Freedoms for violation of the articles of the convention or its additional protocols or the damages paid in accordance with the provisions of the Convention by way of friendly settlement.

d) The damages which occurred due to reasons other than terrorism, such as economic and social reasons, and the damages which occurred due to displacement of persons on their own

will.

e) The damages occurred due to deliberate acts of the persons themselves.

f) The damages suffered by persons on account of their act of aiding and abetting in terror incidents or due to crimes falling under Articles 1, 3 and 4 of the Anti Terror Law provided

that they have been convicted of such crimes

Under article 7, damages which must be compensate is stated as below:

The damages to be compensated by this Law through peaceful settlement are as follows:

a) All damages given to the animals, trees, – products and other movable and immovable properties.

b) Damages resulting from injury, physical disability and death and the expenses made for medical treatment and funerals.

c) Material damages due to the reason that people could not reach their assets because of the activities carried out under the fight against terrorism.

divorce in turkey — contact: cindemir@cindemir.av.tr

The competent court related to the foreign elements involved divorce cases are the courts which have jurisdiction over concerning alimony, guardianship, liquation and compensation. Accordingly, a foreign decree encompassing orders of alimony, guardianship, compensation and liquation may refer to Turkish Courts’ competence as an international jurisdiction arising from articles 40 and 41 of international private law. Articles concerned also refers to Article 168 of Turkish Civil Code. According to the provision, competent court for divorce is the court of the place where one of spouses resides or the place both spouses resides together last 6 months prior to the divorce case. Therefore, generally speaking, Turkish Law does not prohibit foreign court’s divorce jurisdiction based on location principle which is indicated in the provision mentioned above.

The other possibility is in case of judgement given by foreign court containing elements related to alimony, guardianship, compensation which are against “Turkish Public Order”, that judgement will not be enforced by Turkish Government. In that situation, solely judgement’s recognition can be carried out by Turkish Court, not enforcement. For instance if foreign court decided that guardianship of common child must be given to one of the spouse but child’s psychology is disregarded while giving the judgment, in that case Turkish Courts only recognize the decision and rejects enforcement of the decision based on violation of Turkish Public Order. In that situation, both spouses must open a new case again in Turkey to fix guardianship status in accordance with Turkish Law. As can be seen that, Turkish Law envisages that issues which can be against Turkish Public Order must be reviewed again under Turkish Jurisdiction. Turkish Public Order criteria related to Divorce Cases are explained with more details below:

Boundaries of Jurisdiction in Divorce Under Turkish Law

It is noteworthy to mention that below criteria cannot be found in Turkish Legislation. These principles became precedent by high court decisions

Child Support Maintenance

A foreign court may give a judgement regarding child support, this judgement solely does not constitute a problem for Turkish Public Order. On the other hand, if a foreign court did not consider the income of the spouse who will pay the alimony, Turkish Court may find it as a violation of Turkish Public Order. Accordingly, rocketing amounts of child maintenance will not be enforced by Turkish Court and that issue must be reviewed under Turkish Jurisdiction with an independent case.

Alimony

From the perspective of consideration of spouse’s income, the same criteria related to “Turkish Public Order” mentioned under title of Child Support also exists for Alimony.

Guardianship

In case that a foreign court will give a judgement concerning guardianship without taking consideration of child’s benefits. For instance, if foreign law gives guardianship Rex Officio to the mother or to the father without examining the needs of the child, Turkish Court will reject enforcement of the judgement based on “Turkish Public Order” Especially if guardianship is decided based on discriminative purposes such as ethnicity, religion, ages or sexuality would be found against “Turkish Public Order”. There are also high court decisions which support this point of view. In case that foreign court does not touch on guardianship issue in its judgement, then there would be no violation of “Turkish Public Order.

Compensation

In case of enforcement of foreign divorce decree in Turkey, Turkish Courts will not examine justness of conviction of compensation. Thus, Turkish Court will not review the reasons related to compensation issue. However, if amount of the compensation given by foreign court significantly causes over exploitation of one of the spouses, Turkish courts would reject enforcement of that decision. Accordingly, compensation determined by foreign court must not cause poverty on one party and at the same time enrichment on another party.

Immovable Assets

It is very important to note that Turkish Courts will not reject enforcement of a foreign divorce decree given by foreign court if the decision does not refer any real estate property in Turkey (Turkish Civil Procedural Law). Main principle of Turkish Law related to real estate property situating in Turkey is defined as “exclusive competence”. Therefore, in case foreign court gives an order related to the real estate property in Turkey, that part of foreign decision cannot not be regarded as enforceable. Thus, a new case must be filed in Turkish Courts related to real estate property for liquation of common assets stemming from family relationship. “Disputes involving real property is to be suited in the court of place where it located” (CC. Pr.Art. 13)

In that case as mentioned already, Turkish Law and related high court decision refers to the necessity of opening an another case in Turkish court of real estate property which has jurisdiction. If the divorce case is filed in Turkey, Turkish Courts would be able to give a decision related to real estate property located in Turkey. However under reciprocity principle, Turkish Court would also avoid to give a judgement concerning the real estate property located in other country

Lastly, it is important to state that, assets stemming from inheritance are regarded as private personal belonging under Turkish Law which means that in case of litiquation of the assets, property acquired by inheritance are totally belonging to the heir.

Asset division/liquidation of the matrimonial property regime

Under Turkish Law, the spouses may regulate their property relations before or after their marriage by means of a contract “marriage settlement”. They may choose one of the contractual systems which are of three kinds as, property separation (mal ayriligi), common property system (mal ortakligi) and partionary property separation system (paylasmali mal ayriligi) The legal property system is called as “system of fusion of the acquired property” (Civil Code Art. 218.241) which basically depends on the participation of the property and income acquired during the marriage. This property may be called as “marital” or “community property”, in other words matrimonial property systems.

Accordingly, Turkish Law also recognizes matrimonial property system as one of the selection of contractual marriage. In that regard, decision given by foreign court related to liquidation based on matrimonial property system will not constitute any problem regarding enforcement of the judgement in Turkey. And under Turkish Law, competent court which has jurisdiction for liquidation is the court which also have jurisdiction for divorce. In other words, the court which has jurisdiction for divorce must decide on liquidation of assets also. (Article 168 of Turkish Civil Code). As a response to your question, there is no separation between jurisdiction to liquidation of assets and jurisdiction of divorce.

Jurisdiction of Divorce under Turkish Divorce Law

Divorce suits may be brought in the place of court of the plaintiffs domicile or the cohabitated domicile of the spouses used within the last 6 months (CC.Pr. Art 9/3)

As can be seen above, there is no any provision prohibiting divorce case against Turkish Citizen in foreign country. Unlike some strict countries, jurisdiction principle is not based on nationality principle, it is based on location principle.

Enforcement of a Foreign (Iran) Judgment in Turkey — contact cindemir@cindemir.av.tr

This article aims at explaining enforcement of foreign judgments obtained from Courts of Iran in Turkey. It explains the procedure of implementation of Iranian Decrees/Decisions in Iran based on judicial and legal cooperation agreement which enables reciprocity between Turkey and Iran as a core treaty. It also touches arbitral awards enforcement which are given by Iranian Courts.

There is a mutual international agreement (Legal, Commercial and Judicial Cooperation Agreement between Republic of Turkey and Iran ratified on date of 03/02/2010 and entered into force in 10/03/2011 by publishing of National Gazette) on legal cooperation between Turkey and Iran. This agreement is entered into force in Turkey in 2011. According to Article 19 of this agreement both countries are obliged to enforce court decisions in concerned with both countries. In addition Article 15 of the agreement stipulates that waiver of security deposit (Catio Judicatum Solvi) for filing cases in both countries.

Accordingly under this agreement, reciprocity principle between Iran and Turkey has become explicit. It means that Iranian Judgments obtained from Iranian Courts shall be recognized and enforced without discussion of reciprocity thanking to the mutual agreement mentioned above.

In addition to that, agreement also enables enforcement of arbitral awards given by Iranian courts.

What are other conditions regarding enforcement of decree (from Iran) in Turkey?

Said international treaty also stipulates that other conditions regarding implementation of Iranian court decisions in Turkey. In 5th section of agreement, the provisions regarding the enforcement of decisions are as mentioned below:
Article 19 of treaty specifies the types of decision which can be enforced in both Iran and Turkey. Accordingly, the decisions must be given by court based on legal, compensation and criminal matters. Arbitral awards and settlement agreements concluded by the courts shall also fall into the content of this agreement.

Article 22 defines the methods of legal cooperation between Iranian and Turkish Courts in the matters of recognition and enforcement of court decisions. The court of mutual side can request information and documents regarding the decisions.

Article 23 of the treaty envisages that the decisions which have not become absolute shall not be enforced in the courts of parties.

Presence of Absoluteness decision: In this criteria, Turkish Courts are very strict as compared to other countries, despite of New York conventions spirit. Because 6th Article of the conventions’ definition is the word “binding” instead absoluteness”. Turkish Courts must take into account of this provision due to the superiority of International Agreements compared to ordinary Turkish Law.

This criteria generally makes applicant to obtain a new document related to judgment from a foreign court, clearly stating that the decision is not appealed. In practice, courts refuse to enforce a decision without that clarification, despite of the fact that defendant can explain to the court that the judgment is not absolute.

Therefore, upon judgment’s delivery it is better to have a separate document from the court that the judgment is not appealed by the other party and explanation that judgment is a final decision.

Right to Defend: If the defendant was not given a full right to defend themselves, and/or was not informed about the judgment, and was not represented at the court, then application to the court for the enforcement of a foreign judgment will be declined.

According to the agreement, the procedure of enforcement shall be implemented by the means of contracting states’ own national procedural law regarding implementation of foreign decrees.

death claim turkey — contact cindemir@cindemir.av.tr

As in common law countries, Turkish Law also covers damages stemming from death involved incidents by third parties. Traffic Accidents, Construction Accidents and other death involved accidents caused by third parties are subjected to Turkish Tort Law and also Criminal Law. Wrongful Death is also stipulated under Turkish Penal Law under the section of “intentional murder” or “murder with negligence”. In Turkish Criminal Law, there are levels of negligence and penalty of the perpetrators are depending on this negligence level. In case of death caused by third person, deceased relatives (official inheritors of deceased) can claim compensation with a civil case and also request punishment from the criminal court at the same time. Under Turkish Law, prosecutor must start prosecution against third party in order to find out liability of offender. It is important to note that negligence level which is decided in Criminal Court does not have to be same as in Civil Court. Civil and Criminal courts have technically different concept of negligence level. In that case, if criminal court finds perpetrator 100 percent mistaken, it does not mean that Turkish Civil Court will take that ratio completely into consideration. Because determination of negligence level process and conditions in both law field is different.

Criminal Case

Under Turkish Law, Offenses against life is stipulated under article 81. :

“Offenses against Life

Voluntary manslaughter (Felonious Homicide)

ARTICLE 81-(1) Any person who unlawfully kills a person is sentenced to life imprisonment.”

“Life imprisonment” is envisaged for intentional murder situations. Death by negligent conduct is stipulated under article 85 as below:

ARTICLE 85-(1) Any person who causes death of a person by negligent conduct is punished with imprisonment from three years to six years.

(2) If the act executed results with death or injury of more than one person, the offender is punished with imprisonment from three years to fifteen years.

It must be noted that Turkish Prosecutor must start and follow the case with or without consent of the decease’s relatives. Accordingly, criminal case’s procedure is not depending on the will of the decease’s family. Under Turkish Law, killing is dealing with public policy matter and prosecutor and Turkish Courts are responsible to punish the perpetrator who violates the public order.

Civil Case

Evidences from criminal case is very crucial for civil case. In litigation, facts and evidences from the criminal case must be requested for civil case to be examined in litigation. In civil case, moral and material compensation can be demanded from the third party which caused the death (or from the insurance company of a third party). Loss of support for relatives of deceased, compensation for funeral, hospital expenses, and etc. can be demanded under title of material compensation. Defendants who are financially affected from the death of deceased must prove their loss of support and their financial dependency to deceased. Dependents are those survivors who have received or would have received support payments from the victim. They are usually the relatives of the deceased person. In Turkish Law, finance may be considered as dependents. Family members of the deceased person may additionally demand equitable compensation for their emotional suffering.

Compensation

If the conditions of a tort exist (act against law, damage, casual relation, negligence), then injured party may claim compensation. The amount of compensation shall be decided by the judge in the two stages. The judge determines first the amount of the injury that the damaged person has actually suffered. The person claiming compensation has to prove the damage. The judge subsequently determines the amount of compensation after taking into account the circumstances and the degree of fault. The judge may reduce or completely deny any compensation if the damaged person has consented to the tortious act, or if circumstances for which is responsible have caused or aggravated the damage, or have otherwise adversely affected the position of the party liable.

The claims of compensation because of tortious act cease after a certain period of time normally the term is two years running from the date on which damaged person received knowledge of damage and of the person who had caused the damage. This may not be longer than 10 years from the date when the act causing the damage occurred.

But if criminal case is started along with civil case then criminal cases’ statute of limitations will apply to the matter.

Turkish Criminal Act, Article 66 states statute of limitations as below:

(1) Unless otherwise is provided in the law, public action is dismissed upon lapse of ;

a) Thirty years in offenses requiring punishment of heavy life imprisonment,
b) Twenty-five years in offenses requiring punishment of life imprisonment,
c) Twenty years in offenses requiring punishment of imprisonment not less than twenty years,
d) Fifteen years in offenses requiring punishment of imprisonment more than five years and less than twenty years,
e) Eight years in offenses requiring punishment of imprisonment or punitive fine not more than five years

In that case, Turkish Lawyer shall determine the statute of limitation applying to a specific issue.

Introduction To Turkish Law, Tugrul Ansay, Kluwer Law International, Page 170

Turkish labor law — contact: cindemir@cindemir.av.tr

In Turkey, the employment contract may be terminated in several ways;

By the consent of the parties about terminating the contractual relation.
By the death of the employee (Code of Obligation)
Due to Deadline of the Contract
Termination of Labor Contract with notification

In case of termination of the labor contract, Employer or Employee must notify the contract’s termination prior to certain time periods which are determined by the law. These periods are depending on the employment duration of employee. If termination is done without notification, then employer must pay the salary which amounts to the period determined by the law.

“Article 17. Before terminating a continual employment contract made for an indefinite period, a notice to the other party must be served by the terminating party.

The contract shall then terminate:

in the case of an employee whose employment has lasted less than six months, at the end of the second week following the serving of notice to the other party;
in the case of an employee whose employment has lasted for six months or more but for less than one-and-a-half years, at the end of the fourth week following the serving of notice to the other
party;
in the case of an employee whose employment has lasted for one-and-a-half years or more but for less than three years, at the end of the sixth week following the serving of notice to the
other party;
in the case of an employee whose employment has lasted for more than three years, at the end of the eighth week following the serving of notice to the other party.

These are minimum periods and may be increased by contracts between the parties.”

Up to 6 months of employment 2 weeks Notification prior to termination of contract
Up to 6 months to 12 months 4 weeks Notification prior to termination of contract
1,5 years to 3 years 6 weeks Notification prior to termination of contract
More than 3 years 8 weeks Notification prior to termination of contract

These periods cannot be lessen by employer with provision stipulated in the employment contract.

debt recovery — contact: cindemir@cindemir.av.tr

Article 166/3 of Turkish Civil Code permits a divorce by mutual consent under specific conditions. Accordingly, spouses can divorce based on a mutual agreement concluded by themselves. In case of a contract in contemplation of divorce, the judge must divorce the parties.

Consensual divorce in Turkey is the most cost effective and quick procedure for separations. It also benefits to spouses in moral way due to lack of long and stressful duration.

The component court for divorce is in Turkey are family courts “Aile mahkemeleri). In case that family courts are lacking in the place of spouses, then the case must be filed in “Asliye Mahkemeleri” (court of first instance).

There are conditions for consensual divorce. If the conditions don’t fit your situation, you need to follow contested way of divorce instead of uncontested divorce procedure.

At least 1 year marriage is required for mutual consent (consensual) divorce.
Application to the court by together. Or acceptance of the divorce by defendant spouse upon one of spouse’s application to the court.
Hearing participation by the spouses themselves. In other words, judge must hear spouses directly about the settlement protocol’s approval. The purpose of this rule is to comprehend the wife’s consent is real or it is given under pressure of the husband or her family. Accordingly, judge must hear consent of spouses’ will related to consensual divorce / separation. Therefore, participation of spouses to hearing is crucial and obligatory. In case of lack of presence of the spouses, the judge will reject the case. (In case that the spouses or one of spouse is not able to speak and understand Turkish Language, then simultaneous translator certified by authorizes must provide translation service in the court.
Lastly, judge’s reviews regarding the provisions of settlement protocol is important. The provisions concerning guardianship, children, financial issues in the settlement agreement will be also reviewed by Turkish Judge for approval of agreement’s fairness.

The settlement agreement must be convenient with Turkish Contract Law (Turkish Obligations Act). Accordingly, there must not be any provision in the agreement which is against public policy, general moral values. In agreement, there must be will of divorce from the spouses. In case that children exists from the marriage, provision related to guardianship, visiting schedule, alimony and compensation requests must be reflected to the agreement. Personal assets (movable such as car, personal belongings and immovable such as apartment, building, field) , expenses of the court and attorney fee must be also obligatory elements which must be reflected to the settlement agreement. Lastly and certainly, spouse’s signatures are very important in the document.

As can be understood, divorce with uncontested procedure without legal help is difficult choice. Therefore, we strongly suggest a lawyer assistance to your situation, especially in the course of conclusion of a settlement agreement it is very important.

In case that court will reject the divorce case, spouses must wait for 3 years due to the Turkish Civil Code’s stipulation. After 3 years later of rejection, spouses can apply for divorce again.

Uncontested divorce procedure is very quick because 95 percent of the cases finish in first hearing. The first hearing is determined upon application to the court with divorce petition (including settlement agreement) based on settlement separation. And courts generally set an hearing 2-3 months after the application via petition (in big cities). Accordingly, we can say with 3 months, spouses can divorce.

Court fees for this procedure is approximately 200 USD. And also if one of spouse or spouses are foreigner, translation expenses for protocol will be another expense. Certified translator’s hearing participation is approximately 100 USD. According to Tariffs of Istanbul Bar Association on Attorney’s Services Fee dated 2015, 1900 USD is recommended fee for lawyers as their attorney fee.

personal injury cases turkey — contact: cindemir@cindemir.av.tr

The claims of compensation because of a unlawful act cease after a certain period of time. Normally the term is 2 years running from the date on which the damaged person recieved knowledge of damage and of the person who had caused the damage. This may not be longer than ten years from the date when the act causing the damage occured. (New Code of Obligation of Turkey entered into force in 2011, article 72)

There is one important issue to consider in Turkish Law related to statute of limitations of tortious acts ( in other words acts stemming from Personal Injury). In case that wrongful act causing the damage also became an issue of a criminal offence , Statute of Limitations applying to Criminal Offence would be taken into account by civil court dealing with personal injury case.

For example, in case that a person died by a brick which is fell out from the building, this negligence will be an issue of both civil and criminal case. In these situations, we need to consider time period stated in criminal act and in contract law of Turkey. If criminal act’s time period is longer then we need to take into account to criminal act provision related to this issue. To make it more concrete, according to Turkish Criminal Law, statute of limitation applies to killing of a person by negligence is 15 years, thus case can be filed within 15 years due to characteristic of offence.

Turkish Criminal Act, Article 66 states statute of limitations as below:

(1) Unless otherwise is provided in the law, public action is dismissed upon lapse of ;

a) Thirty years in offenses requiring punishment of heavy life imprisonment,
b) Twenty-five years in offenses requiring punishment of life imprisonment,
c) Twenty years in offenses requiring punishment of imprisonment not less than twenty years,
d) Fifteen years in offenses requiring punishment of imprisonment more than five years and less than twenty years,
e) Eight years in offenses requiring punishment of imprisonment or punitive fine not more than five years

(2) Public action is dismissed upon lapse of half of the a/m periods if the convict completed the age of ten but not yet attained the age of fifteen at the commission date of the offense; as for the convicts who completed the age of fifteen but not attained the age of eighteen, public action is dismissed upon lapse of one third of the a/m periods.

(3) In determination of statute of limitation, the qualified form of offense which requires imposition of heavy punishment is considered on the basis of the evidences presented to the file.

(4) The maximum limit of the punishment assessed in the law for the offense is taken into account during determination of the periods mentioned in afore subsection. In offenses, where imposition of alternative punishment is in question, the punishment of imprisonment is taken as basis with regard to statute of limitation

(7) Statute of limitation may not be applicable in case of commission of offenses in abroad, which require heavy imprisonment, or imprisonment or imprisonment more than ten years.

Accordingly, in case that personal injury stemming from criminal offence we also need to take into account the provision which is mentioned above. Civil court will also consider prescription periods concerned above.

Personal injury liability is well described under Tort Law Definition of Turkish Obligation Code. Under Turkish Law, there must be 4 conditions for tortius liability (in other words, personal injury liability).

Acts Against Law
Damage
Causal Relation
Negligence

Act Against Law

If a defective product damages a person, if someone falls into construction’s hole on the road due to lack of warning , etc. Accordingly in Turkish Law not only intentional acts against victim is covered by the law, additionally the acts which have omission character are included as an act against law. Therefore, personal injury must be arising from intentional act or acts stemming from negligence.

It is also noteworthy to mention that as in all Roman based laws self-defence is one of the exception for “act against law” principle. In case of harming third people as self-defence purpose will be not be considered as Act Against Law. Thus, self-defence is a legitimacy reason for personal injury cases.

Damage

Damage is a key factor in Turkey when determination of compensation amount will come to an issue.This may be material or immaterial damage. Generally in Turkish Court Practice, judges appoint an expert in order to determine compensation amount stemming from the damage. Forinstance, in case of a truck accident, traffic report which is written in the incident place will play a role to evaluate negligence level and experts who are specialized in personal compensation will determine the compensation amount.

The amount of compensation shall be decided by the expert in two stages. The expert determines first the amount of the injury that the damaged person has actually suffered. The person claiming compensation has to prove the damage. The judge subsequently determines the amount of compensation after taking into account the circumstances and the degree of fault. Unlike Former Turkish Obligation Code in New Turkish Obligation Code, consideration of defendant’s (wrongdoer or tortfeasor) financial situation for determination compensation does not exist. Accordingly, the priorty and purpose of the law is to satisfy the injured person as much as possible. Such as loss of support related to family members, occurance of ability in daily life, permanent disability, contemporary disability, hospital expenses (in case that there is no social security registration), funeral expenses are all playing role in calculation of compensation amount.

Casual Relation

The third condition of liability is the existence of proximate cause. There must be reasonable link between wrongdoer’s act and the injury to hold wrongdoer’s responsible. This casual relation must be evaluated under the principle of ordinary rules and circumstances of life.

Negligence

Negligence levels are important in personal liability cases. Fault , defects and negligences are categorized as a level of “Severe” and “ Slight”. A person cannot be negligent unless he has ability to make fair judgments. The head of the family may be responsible for a minor’s act which caused a damage. A master is liable for damages caused by his employees or servants in the course of performing their duties, unless he proves that he exercised all reasonable in the circumstatances to precent such damage, or that the damage would have occured notwithstanding the exercise of such care. The modern trend in Turkey is to make the wrongdoer’s responsible for his acts.

There are some risky fields in life practice that also made lawmaker to pass a law to enable insurance companies for undertaking risks of possible damages. Forinstance, all vehicles are subjected obligatory insurance and personal damages stemming from traffic accidents must be compensated from these insurance companies (material compensation only) . Doctors and lawyers are entitled to obligatory insurance for the damages which may arise from their misconducts.

Reference: Turkish Code of Obligation and Introduction to Turkish Law edited by Tuğrul Ansay and Don Wallace.

In this article I tried to explained the new development in Turkish Law upon Turkish Constitution Court Decision related to rejection of 1 year statue of limitation for paternity suits in Turkish Civil Code.

Creation of Parent between Child Relation can be only possible :

Biological Relationship
Adoption

Biological Relationship: It is so obvious to determine the relation between the child and the mother. Accordingly, the fact of the birth will determine the mother. The parent-child relationship is formed between child and mother on the birth of the child. It is formed between child and father by virtue of the latter being married to the mother, by recognition or by court declaration.

From husband aspect; Where a child is born in wedlock, the husband is deemed to be the

Father. If the husband dies, he is deemed to be the father provided the child is born within 300 days of his death or, if born thereafter, if it is shown that the child was conceived before the husband’s death. If the husband has been declared presumed dead, he is deemed to have been the father provided the child is born within 300 days of the life-threatening event or the last sign of life.

A child who was born outside of marriage because of a defect in the maritial status of the parents may be legitized subsequently. One of the methods of such a correction is the marriage of the parents after the birt of acknowledgement (consent) of the father and mother. Certain amnesty laws in Turkey made the correction of the status of children possible in the past. These laws were expecialy enacted to legitimize the status of 10,000 children who were born of imam marriages.

There are two ways to establish relationship with father. Acknowledgment, father’s application to the court as wel as to the birth registration officer. This application can be challanged by mother or third person who has interest in that relation (such as inheritors). Prior to Turkish Constitution Court’s decision, there was one year limitation to challange to this application. One year limitation is found against fundemental individual rights by Turkish Constitution Court.

Another menas of establishing the affiliation of a child to the natural father is getting a court decision (babaliga hüküm) In order to establish the blood relation between the father and the child, scientific tests are being used, but there is also a strong presumption that the child is from that man who had sexual relations with the mother between 300 and 180 days prior to birth (C.C., Article 302,I). This suit may primarily be brought by the child and mother. As mentioned “Within one year after the birth” limitaion is annuled by Constitution Court. Accordingly, a person who suffers previously because of that limitation is able to open a new case against father to establish paternity relation. (21.7.2012 gün ve 28360 sayili Resmi Gazetede yayimlanan 15.3.2012 gün ve 2011/116 E. 2012/39 K.)

Boundaries of Jurisdiction in Divorce Under Turkish Law

It is noteworthy to mention that below criteria cannot be found in Turkish Legislation. These principles became precedent by high court decisions

Child Support Maintenance

Alimony

From the perspective of consideration of spouse’s income, the same criteria related to “Turkish Public Order” mentioned under title of Child Support also exists for Alimony.

Guardianship

Compensation

Immovable Assets

Asset division/liquidation of the matrimonial property regime

Jurisdiction of Divorce under Turkish Divorce Law

Divorce suits may be brought in the place of court of the plaintiffs domicile or the cohabitated domicile of the spouses used within the last 6 months (CC.Pr. Art 9/3)

Is it possible to enforce Austrian judgments in Turkey?

There is a mutual international agreement (Legal, Commercial and Judicial Cooperation Agreement between Republic of Turkey and Austria ratified on date of 23/05/1989 and entered into force in 23/09/1991 by publishment of National Gazette) on legal cooperation between Turkey and Austria. This agreement is entered into force in Turkey in 1991. According to Article 1 of this agreement both countries are obliged to enforce court decisions pertaining to each other.

Accordingly under this agreement, reciprocity principle between Austria and Turkey has become explicit. It means that Austria Judgments obtained from Austrian Courts shall be recognized and enforced without discussion of reciprocity thanking to the mutual agreement mentioned above.

What are other conditions regarding enforcement of decree (from Austria) in Turkey?

Said international treaty also stipulates that other conditions regarding implementation of Austrian court decisions in Turkey. In the agreement, the provisions regarding the enforcement of decisions are as mentioned below:

Article 4 of treaty specifies the types of decision which can be enforced in both Austria and Turkey. Accordingly, the decisions must be given by court based on legal, compensation and criminal matters.

Article 11 defines the methods of legal cooperation between Austrian and Turkish Courts in the matters of recognition and enforcement of court decisions. The court of mutual side can request information and documents regarding the decisions.

Article 3 of the treaty envisages that the decisions which have not become absolute shall not be enforced in the courts of parties.

Presence of Absoluteness decision: In this criteria, Turkish Courts are very strict as compared to other countries, despite of New York conventions spirit. Because 6th Article of the conventions’ definition is the word “binding” instead absoluteness”. Turkish Courts must take into account of this provision due to the superiority of International Agreements compared to ordinary Turkish Law.

Therefore, upon judgment’s delivery it is better to have a separate document from the court that the judgment is not appealed by the other party and explanation that judgment is a final decision.

Right to Defend: If the defendant was not given a full right to defend themselves, and/or was not informed about the judgment, and was not represented at the court, then application to the court for the enforcement of a foreign judgment will be declined.

According to the agreement, the procedure of enforcement shall be implemented by the means of contracting states’ own national procedural law regarding implementation of foreign decrees.

enforce ukraine judgement turkey — contact cindemir@cindemir.av.tr

Is it possible to enforce Ukraine judgments in Turkey?

There is a mutual international agreement (Legal, Commercial and Judicial Cooperation Agreement between Republic of Turkey and Ukraine ratified on date of 09/07/2003 and entered into force in 22/12/2003 by publishment of National Gazette) on legal cooperation between Turkey and Ukraine. This agreement is entered into force in Turkey in 02/05/2004. According to Article 35 of this agreement both countries are obliged to enforce court decisions pertaining to each other.

Accordingly under this agreement, reciprocity principle between Ukraine and Turkey has become explicit. It means that Ukrainian Judgments obtained from Ukrainian Courts shall be recognized and enforced without discussion of reciprocity thanking to the mutual agreement mentioned above.

What are other conditions regarding enforcement of decree (from Ukraine) in Turkey?

Said international treaty also stipulates that other conditions regarding implementation of Ukrainian court decisions in Turkey. In the agreement, the provisions regarding the enforcement of decisions are as mentioned below:

Article 36 of treaty specifies the types of decision which can be enforced in both Ukraine and Turkey. Accordingly, the decisions must be given by court based on legal, compensation and criminal matters.

Article 38 defines the methods of legal cooperation between Ukrainian and Turkish Courts in the matters of recognition and enforcement of court decisions. The court of mutual side can request information and documents regarding the decisions.

Article 37 of the treaty envisages that the decisions which have not become absolute shall not be enforced in the courts of parties.

Therefore, upon judgment’s delivery it is better to have a separate document from the court that the judgment is not appealed by the other party and explanation that judgment is a final decision.

According to the agreement, the procedure of enforcement shall be implemented by the means of contracting states’ own national procedural law regarding implementation of foreign decrees.

Enforcement of US Judgements in Turkey — contact cindemir@cindemir.av.tr

As a civil based law country (continental European Law) in Turkey, enforcement of foreign judgments are entitled to specific provision in International Private Act (MOHUK). It is noteworthy to mention that Turkey is not part of European Union and accordingly Brussels Convention and other relevant legislation which deal with judgement enforcement does not have any effect in Turkish Law.

The Conditions of Exequatur (Enforcement ) Article 38 of MOHUK (Turkish International Private Law Act)

The court of competent jurisdiction shall render the exequatur under the following conditions:

a) The presence of an agreement, which rests on the principle of reciprocity, between the Turkish Republic and the State where the judgment has been rendered, or a provision of law or an application de facto enabling the execution in that state of judgments rendered by the Turkish courts,
b) The judgment shall have been rendered on a subject, which does not come under the exclusive jurisdiction of the Turkish courts,
c) The judgment shall not have been expressly contrary to the public policy,
d) Pursuant to the laws of that place, the person against whom execution is requested shall have not been duly cited to the court that rendered the judgment or represented before that court, or a judgment by default shall have been rendered as contrary to these laws and this person shall have not objected to the Turkish court against the request for execution through basing on one of the matters above,
e) The law, which is authorized in accordance with the Turkish rules of conflict of laws,shall have not been applied in the foreign judgment concerning the civil status of the Turcs and the defendant, who is a Turkish citizen, shall have not objected in this respect against the execution.

In consideration of these information, what is the final situation with US court decrees in Turkey?

As can be seen above, the first condition is presence of a mutual agreement with the country whose judgements will be enforced in Turkey. There is no specific agreement between USA and Turkey related to this issue. Accordingly, other conditions will come to an issue such as reciprocity.

Mostly, it is very difficult to prove reciprocity between USA in regards of legislation due to common law structure of the USA law (except State of Lousiana which has uniquely continental law background) . In this regard, generally Turkish Courts reject USA decrees based on the fact that there is no proof of a reciprocity between USA and Turkey. Please also note that, according to Turkish High Court decisions state that the first time enforcement of a foreign court decision does not constitute an obstacle for enforcement.

Considering all these facts, in general we can say that USA decisions against Turkish defendants are not enforceable in Turkey. There is one exception for this general precedent.

One of a Turkish High Court decision related to enforcement matter states that in general it can be said that there is no reciprocity between USA and Turkey, on the other hand, every state of USA has different practice to enforce Turkish Decisions in its jurisdiction. For instance, one of Turkish High Court decision states that, Turkish first instance Courts must consider the law of USA’s specific state which judgement is given, and reciprocity must be determined based on that state’s attitude to Turkish judgements. Thus, if i Turkish Courts decisions are enforceable in the jurisdiction of judgement given state then first instance court must have accepted the enforceability of judgment.

Let me to exemplify it with an example, in case that Turkish Court decrees are accepted to be enforced in state of Florida, and if it can be proved by the applicant then US decree must be enforceable in Turkey based on reciprocity principle. Accordingly, proof of reciprocity in certain state of USA related to Turkish Decrees are priority to start a enforcement procedure in Turkey.

Lastly, there is also one more obstacle regarding Turkish Law for US applicants under “caution judicatum solvi” of Turkey. There is no any specific agreement between Turkey and United States stating that Turkish citizens must not pay any additional deposit fee to open a case in USA as foreigner. In that regard, based on reciprocity Turkish Courts seek for security deposit (generally 15 percent of disputed amount) from US applicants to start a case in Turkey.

Therefore, there are two obstacles which US citizens or US legal entities can confront with :

Reciprocity of Enforcement of US Judgements
Security Deposit Requirement for filing a case based on lack of agreement between Turkey and USA which regulates exemption of security deposit for Turkish Citizens in case of filing a case in USA.

Accordingly, there are two critical points that US applicant must prove in Turkish Courts to enforce US Court decision. Firstly, applicant must prove that the judgement which is given from relevant state accepts also Turkish Courts Decrees in its jurisdiction. This can be proved by court decree examples obtained from local state courts stating Turkish Court’s decision is enforced. And also if there is specific law in that state which stating liberal provision for enforcement of Foreign Court Decree.

Secondly, in case that applicant is not willing to remit security deposit to Turkish Court as 15 percent of disputed amount for filing a suit, then US applicant must also prove that Turkish Citizens are not subject to this requirement in their state.

As can be understood from this article, enforcement of US decisions in Turkey requires legal struggle which can be only achieved by US attorney and Turkish Attorney cooperation by submitting evidences proving reciprocity between the court practices.

Enforcement of UK Judgements in Turkey — contact cindemir@cindemir.av.tr

High Court 11st Council of Law Case number: 2007/1335 decision number: 2007/3808

Decision date: 02.03.2007 Subject : Enforcement of Foreign Judgment, this decision of high court states that there is reciprocity between UK and Turkey. Accordingly, this high court decision confirms in case of a UK judgement will come to an issue, Turkish Court is obliged to follow the high court decision. Thus, enforcement of an UK judgment based on this high court decision is possible. Ofcourse every decision obtained from UK has its own specific conditions. Due to this reason, Turkish First instance court will examine other conditions satify criterias of Turkish Law or not. But as can be understood from the high court decision which is in favor of enforcement of UK judgments, general rule became like acceptence of the cases based on UK judgments. Despite of this general opinon stemming from the high court decision, there are other conditions that UK applicants must also consider in Turkish international private law of artice 38:

a) The presence of an agreement, which rests on the principle of reciprocity, between the Turkish Republic and the State where the judgment has been rendered, or a provision of law or an application de facto enabling the execution in that state of judgments rendered by the Turkish courts,
b) The judgment shall have been rendered on a subject, which does not come under the exclusive jurisdiction of the Turkish courts,
c) The judgment shall not have been expressly contrary to the public policy,
d) Pursuant to the laws of that place, the person against whom execution is requested shall have not been duly cited to the court that rendered the judgment or represented before that court, or a judgment by default shall have been rendered as contrary to these laws and this person shall have not objected to the Turkish court against the request for execution through basing on one of the matters above,
e) The law, which is authorized in accordance with the Turkish rules of conflict of laws,shall have not been applied in the foreign judgment concerning the civil status of the Turks and the defendant, who is a Turkish citizen, shall have not objected in this respect against the execution.

Under these conditions, it is noteworthy to stress that reciprocity matter with UK does not constitute any problem any more due to Turkish High Court Decision. In regards to relevant high court decision, Turkish Justice Ministry of International General Directorate opinion about reciprocity with UK is positive. Other conditions such as public security policy is totally different subject which requires to be examined in different article with Turkish High Court Decisions concerned. For instance, UK court decrees which is given concerning with real estates in Turkey will constitute violation of Turkish Public Security Policy. The examples can be expanded with more specific cases uniquely related with content of the case matter.

As a summary, UK legal entities’ or citizens has big chances to enforce their judgments given against a Turkish Citizen or a company. Note that, there is also “caution judicatum solvi” principle stemming from Turkish Law for foreigners. It means foreigners are subjected to remit security deposit which amounts to 15 percent disputed amount of the case for starting court procedure. On the other hand, based on UK – Turkey Judicial Assistance agreement entered into force in 1933, UK nationals and Uk companies are exempted from this requirement.

This article aims at explaining enforcement of foreign judgments obtained from Courts of Romania in Turkey. It explains the procedure of implementation of Romanian Decrees/Decisions in Romania based on judicial and legal cooperation agreement which enables reciprocity between Turkey and Poland as a core treaty. It also touches arbitral awards enforcement which are given by Romanian Courts.

There is a mutual international agreement (Legal, Commercial and Judicial Cooperation Agreement between Republic of Turkey and Romania ratified on date of 25/10/2007 and entered into force in 11/01/2008 by publishing of National Gazette) on legal cooperation between Turkey and Poland. This agreement is entered into force in Turkey in 2008. According to Article 16 of this agreement both countries are obliged to enforce court decisions in concerned with both countries. In addition Article 13 of the agreement stipulates that waiver of security deposit (Catio Judicatum Solvi) for filing cases in both countries.

Accordingly under this agreement, reciprocity principle between Romania and Turkey has become explicit. It means that Polish Judgments obtained from Romanian Courts shall be recognized and enforced without discussion of reciprocity thanking to the mutual agreement mentioned above.

In addition to that, agreement also enables enforcement of arbitral awards given by Romanian courts.

What are other conditions regarding enforcement of decree (from Romania) in Turkey?

Said international treaty also stipulates that other conditions regarding implementation of Romanian court decisions in Turkey. In 5th section of agreement, the provisions regarding the enforcement of decisions are as mentioned below:
Article 19 of treaty specifies the types of decision which can be enforced in both Romania and Turkey. Accordingly, the decisions must be given by court based on legal, compensation and criminal matters. Arbitral awards and settlement agreements concluded by the courts shall also fall into the content of this agreement.

Article 22 defines the methods of legal cooperation between Romanian and Turkish Courts in the matters of recognition and enforcement of court decisions. The court of mutual side can request information and documents regarding the decisions.

Article 23 of the treaty envisages that the decisions which have not become absolute shall not be enforced in the courts of parties.

Therefore, upon judgment’s delivery it is better to have a separate document from the court that the judgment is not appealed by the other party and explanation that judgment is a final decision.

According to the agreement, the procedure of enforcement shall be implemented by the means of contracting states’ own national procedural law regarding implementation of foreign decrees.

This page aims at explaining deportation law in Turkey under new law called protection on foreigners. Related provisions regarding deportation can be seen above:

As can be seen under mentioned provisions Turkish lawyer are authorized to seize the deportation process in case of application to the court. Administrative courts of Turkey are specialized on these matters.

SECTION FOUR Deportation

Deportation

ARTICLE 52- (1) Foreigners may be deported to their country of origin or a transit country or a third country by a deportation decision.

Deportation decision

ARTICLE 53- (1) Deportation decision shall be issued upon instruction of the Directorate General or ex officio by governorates.

(2) The decision and the reasons on which it is based shall be notified to the foreigner, his or her legal representative or his or her lawyer. In case the person against whom a deportation order is issued is not represented by a lawyer, he or she or his or her legal representative shall be notified of the result of the decision as well as the procedures and time limits for appeal.

(3) The foreigner, his or her legal representative or his or her lawyer may appeal to the administrative court against the deportation decision within fifteen days as of the date of notification. The person who has appealed the decision shall also inform the authority that has issued the deportation decision about the appeal lodged to the court. Applications to the court shall be concluded in fifteen days. The decision of the court on the issue shall be final. In case of an appeal or in the term of litigation, the foreigner shall not be deported until the finalization of the judgment, without prejudice to the consent of the foreigner.

Those against whom a deportation decision shall be issued

ARTICLE 54- (1) A deportation decision may be issued against foreigners:

a) For whom a deportation decision is deemed necessary pursuant to Article 59 of the Law No. 5237,

b) Who are a leader, member, supporter or of a terrorist or a benefit-oriented criminal organization,

c) Who use false information and fraudulent documents in procedures concerning entry into Turkey, visa and residence permits,

ç) Who make a living through illegitimate means during their stay in Turkey,

ç) Who constitute a threat to public order and security or public health,

d) Who exceed the duration of visa or visa exemption more than 10 days, or those whose visa has been cancelled,

e) Whose residence permits are cancelled,

f) Who hold residence permits but exceed the duration of the residence permit for more than 10 days without an acceptable excuse,

g) Who are identified as having been working without a work permit,

g) Who violate the provisions on legal entry into or legal exit from Turkey,

i) Who are identified as having arrived in Turkey despite a valid ban on entry,

g) From among persons whose applications for international protection are rejected, who are excluded from international protection, whose applications are considered as inadmissible, who withdraw their application, whose applications are deemed to be withdrawn, whose international protection statuses have ceased or have been cancelled, those who are not entitled to stay in Turkey pursuant to any other provision of this Law following a final decision,

j) From among persons whose applications for the extension of residence permits have been rejected, those who do not leave Turkey within 10 days.

(2) Among applicants or beneficiaries of international protection, a deportation decision may be issued only when there are serious indications to believe that such persons constitute a threat to the security of the State, or when such persons are convicted of a crime which constitutes a threat to public order.

Those against whom a deportation decision shall not be issued

ARTICLE 55- (1) Regardless of whether they fall under the scope of Article 54 of this Law, a deportation decision shall not be issued against those:

a) for whom there are serious indications that he or she will be subjected to the death penalty, torture, cruel or degrading treatment or punishment in the country to which they will be deported,

b) who face risks in case of travel due to reasons of serious health problems, age and pregnancy,

c) who cannot receive treatment in the country to which he or she will be expelled while treatment for the life-threatening health problem is continuing,

ç) who are victims of human trafficking benefitting from victim support processes,

ç) who are victims of psychological, physical or sexual violence until their treatment is completed.

(2) Evaluations concerning foreigners who fall under the first paragraph shall be made on an individual basis. These persons may be subject to administrative obligations such as residence in a designated address and reporting to authorities in the form and intervals requested.

Summons to leave Turkey

ARTICLE 56- (1) Provided that it is stated in the deportation decision, a period no less than fifteen days and no longer than thirty days shall be granted for foreigners to leave Turkey. However, this period shall not be granted to foreigners who may abscond or disappear, who violate rules for lawful entry and exit, who use fraudulent documents, who attempt to obtain or who have been identified as having obtained a residence permit with fraudulent documents, and who constitute a threat to public order and public security or public health.

(2) A “Departure Permission Document” shall be issued to persons who have been granted a period to leave Turkey. This document shall be issued free of charge. Visa and residence fees and obligations arising from penalties of such fees shall be reserved.

Administrative detention for deportation and its period

ARTICLE 57- (1) In the event that foreigners who fall under Article 54 of this Law are apprehended by law-enforcement units, the governorate shall be informed immediately to take a decision for such persons. Among the mentioned persons, a deportation decision against those for whom a deportation decision is deemed necessary shall be taken by the governorate. The period of evaluation and decision shall not exceed 48 hours.

Among the foreigners for whom a deportation decision is issued, those who may abscond or disappear, who violate rules for entry into and exit from Turkey, who use fraudulent or unfounded documents, who do not leave Turkey in the granted period without an acceptable excuse, who constitute a threat to public order and security or public health shall be placed under administrative detention by decision of the governorate. Those against whom an administrative detention decision is issued shall be transferred by the law-enforcement unit which has apprehended the foreigner to a removal center within 48 hours.

The period of administrative detention in removal centers shall not exceed six months. However, in case the deportation procedures cannot be completed due to non- cooperation of the foreigner or misinformation or false documents provided by the foreigner regarding his or her country, this period may be extended for a maximum of six additional months.

The necessity to continue the administrative detention shall be re-evaluated regularly every month by the governorate. When necessary, re-evaluation can be conducted at an earlier period. In case administrative detention is no longer deemed to be necessary for the foreigner, administrative detention shall immediately be ended. Foreigners whose administrative detention is ended may be subject to obligations such as residence in a designated address and reporting to authorities in the form and periods requested.

The administrative detention decision, the extension of the period of administrative detention and the results of the monthly assessments, along with the reasons on which it is based, shall be notified to the foreigner, his or her legal representative or his or her lawyer. In case the person against whom a deportation order is issued is not represented by a lawyer, he or she or his or her legal representative shall be notified of the result of the decision as well as the procedures and time limits for appeal.

The person who has been placed under administrative detention, his or her legal representative or his or her lawyer may appeal against the administrative detention decision to the Magistrates’ Court judge. The appeal shall not stay the execution of the administrative detention. In case the petition is submitted to the administration, it shall be conveyed to the authorized Magistrates’ Court judge without delay. The Magistrates’ Court judge shall conclude the review within five days. The decision of the Magistrates’ Court judge shall be final. The person who has been taken under administrative detention or his or her legal representative or his or her lawyer may lodge a further appeal to the Magistrates’ Court judge, claiming that the conditions for administrative detention have ceased to exist or have changed.

Among those who appeal against the deportation decision, those who do not possess the ability to afford a lawyer, shall be provided legal service upon demand, according to the provisions on legal aid stipulated in the Attorneyship Law No. 1136 dated 19/3/1969.

There is a mutual international agreement (Legal, Commercial and Judicial Cooperation Agreement between Republic of Turkey and Poland ratified on date of 12/04/1988 and entered into force in 23/07/1990 by publishing of National Gazette) on legal cooperation between Turkey and Poland. This agreement is entered into force in Turkey in 1990. According to Article 19 of this agreement both countries are obliged to enforce court decisions in concerned with both countries. In addition Article 14 of the agreement stipulates that waiver of security deposit (Catio Judicatum Solvi) for filing cases in both countries.

Accordingly under this agreement, reciprocity principle between Poland and Turkey has become explicit. It means that Polish Judgments obtained from Polish Courts shall be recognized and enforced without discussion of reciprocity thanking to the mutual agreement mentioned above.

In addition to that, agreement also enables enforcement of arbitral awards given by Polish courts.

What are other conditions regarding enforcement of decree (from Poland) in Turkey?

Said international treaty also stipulates that other conditions regarding implementation of Polish court decisions in Turkey. In 5th section of agreement, the provisions regarding the enforcement of decisions are as mentioned below:
Article 19 of treaty specifies the types of decision which can be enforced in both Poland and Turkey. Accordingly, the decisions must be given by court based on legal, compensation and criminal matters. Arbitral awards and settlement agreements concluded by the courts shall also fall into the content of this agreement.

Article 22 defines the methods of legal cooperation between Polish and Turkish Courts in the matters of recognition and enforcement of court decisions. The court of mutual side can request information and documents regarding the decisions.

Article 23 of the treaty envisages that the decisions which have not become absolute shall not be enforced in the courts of parties.

Therefore, upon judgment’s delivery it is better to have a separate document from the court that the judgment is not appealed by the other party and explanation that judgment is a final decision.

According to the agreement, the procedure of enforcement shall be implemented by the means of contracting states’ own national procedural law regarding implementation of foreign decrees.

There is a mutual international agreement (Legal, Commercial and Judicial Cooperation Agreement between Republic of Turkey and People’s Republic of China ratified on date of 27/09/1994 and entered into force in 12/11/1994 by publishing of National Gazette) on legal cooperation between Turkey and China. This agreement is entered into force in Turkey in 1994. According to Article 12 of this agreement both countries are obliged to enforce court decisions pertaining to each other.

Accordingly under this agreement, reciprocity principle between China and Turkey has become explicit. It means that Chinese Judgments obtained from China Courts shall be recognized and enforced without discussion of reciprocity thanking to the mutual agreement mentioned above.

In addition to that, Agreement also enables enforcement of arbitral awards given by the Chinese courts.

What are other conditions regarding enforcement of decree (from china) in Turkey?

Said international treaty also stipulates that other conditions regarding implementation of Chinese court decisions in Turkey. In 3rd section of agreement, the provisions regarding the enforcement of decisions are as mentioned below:
Article 21 of treaty specifies the types of decision which can be enforced in both China and Turkey. Accordingly, the decisions must be given by court based on legal, compensation and criminal matters. Arbitral awards and settlement agreements concluded by the courts shall also fall into the content of this agreement.

Article 22 defines the methods of legal cooperation between Chinese and Turkish Courts in the matters of recognition and enforcement of court decisions. The court of mutual side can request information and documents regarding the decisions.

Article 23 of the treaty envisages that the decisions which have not become absolute shall not be enforced in the courts of parties.

Therefore, upon judgment’s delivery it is better to have a separate document from the court that the judgment is not appealed by the other party and explanation that judgment is a final decision.

According to the agreement, the procedure of enforcement shall be implemented by the means of contracting states’ own national procedural law regarding implementation of foreign decrees.

Enforcement of foreign judgments in Turkey — contact cindemir@cindemir.av.tr

This article aim to explain Enforcement Procedure and Conditions in Turkey. International private and civil procedure law of Turkey and Turkish Procedure Law are the main laws governing the procedure of enforcement of Foreign Judgments in Turkey. In this article, we’ll guide our readers based on the provisions of the laws concerned. It is also important to note that Turkey ratified Convention on the Recognition and Enforcement of Foreign Arbitral Awards which apply to the cross-border enforcement regarding Arbirtral Awards.

How can a party enforce a decree in Turkey?
Turkish Law does not permit a party to enforce the decision directly without examination of formal requirements of decree. Except some specific situations such as alimony and some decrees concerning family law, foreign judgments cannot be enforced in Turkey without any court stage by just directly applying Turkish Enforcement Offices established under Turkish Law. As mentioned, judgements concerned can be only enforced in exceptional situations based on a certain International Agreements. On other hand, this direct applicability is not possible for judgments related to litigation cases or divorces.

Is that guaranteed that foreign judgment shall be enforced in Turkey?
As mentioned, if foreign judgment fulfills formal criteria of Turkish Law envisaged, it can be enforced. In addition, if a foreign judgment is relating to immovable assets in Turkey, it shall not be accepted.

Then what is the procedure?
The procedure is governed with petty sessional (simple procedure) procedural principles. It means that after couple of petitions among parties (applicant and defendant), the case must be concluded. Therefore, as compared to other case procedures, enforcement of foreign judgment procedure is quicker.

What are Turkish Courts are examining during the procedure?
It is worth to mention that Turkish Law and Turkish Courts are very strict to the formal requirements.

Reciprocity : It is a precondition for enforcement in Turkey. The principle of reciprocity states that favors, benefits, or penalties that are granted by one state to the citizens or legal entities of another, should be returned in kind. Therefore, Turkish Citizens or Turkish Legal Entities must be also capable for enforcement in the country where the judgment is given.

Presence of a Judgment: There must be a judgment which clearly states the decision, amount of dispute, the right given to favor party.

Presence of Absoluteness decision: In this criteria, Turkish Courts are very strict as compared to other countries, despite of New York conventions spirit. Because 6th Article of the conventions’ definition is the word ‘binding’ instead absoluteness’. Turkish Courts must take into account of this provision due to the superiority of International Agreements compared to ordinary Turkish Law.
This criteria generally makes applicant to obtain a new document related to judgment from foreign court, clearly stating that the decision is not appealed. In practice, courts refuse to enforce a decision without that clarification, despite of the fact that defendant can explain to the court that the judgment is not absolute.
Therefore, upon judgment’s delivery it is better to have a separate document from the court that the judgment is not appealed by the other party and explanation that judgment is a final decision.

Turkish Public Order : We confront with that problem generally with judgments violating individual’s rights protected under Human Rights Charters. Western State’s courts are mainly considered as Law State by Turkish Courts. Turkish Courts shall question unsecular decisions given by Islamic countries, if foreign court gave the judgment based on western law principles, it is generally acceptable by Turkish Courts.

What is the procedure upon Turkish Court’s approval for enforcement?
Favor judgment which is given by Turkish Court can be executed in Turkish Territory by application to Turkish Enforcement Offices under the framework of Turkish Courts. The decision shall be binding in Turkey and applicable as another ordinary Turkish Court Degree.

Finalization Matter

Enforcement of foreign judgements in Turkey is only possible when right of appeal is exhausted. There 2 high courts in Turkey. Accordingly, if the judgement is above 10.000 USD amount, it will be reviewed by 2 other superior courts (İstinaf and then Yargıtay). After finalization of the judgement , creditor may request the money from the debtor. In other words, finalization process may take more than 3 years minimum. In that regard, we highly recommend to our clients to start enforcement process by depositing 15 percent of the debt amount and to request interim measure on the assets of the debtor during the court procedure. This action forces the debtor immidiately to pay the debt due to the reputation problem to the banks.

Interim injunctions are required to avoid any possible negative results in the course of the case. Therefore, in the course of the case, court may decide cautionary judgment in order to prevent any damages. Interim injunctions can be requested from the court before or after the case is filed. Implementation of interim measures on the debtor can be seizure of the bank account (mostly) or seizure of goods from the debtor company. In case of considering many years of this court process, interim measures are so efficient. And foreign judgments are prima facae documents proving the debt and it is very easy to get the interim measure decision from the court by submitting similar high court decisions.

You can find more details regarding interim injuctions here on our article: Interim Injunctions In Turkish Law

Power of Attorney

Giving power of attorney to third person is regarded as unilateral legal transaction in Turkish Law. Power of attorney for legal case representation cannot be regarded as a contract. POA is not a service contract in Turkish law, it is only a document transferring client’s will to an attorney for representation.

The lawyer can be retained via POA even without its consent. Because giving power for representation is a transaction which can be carried out one-sided. This does not mean that attorney approves providing a service on behalf of a client. Issuing a power ofattorney is regarded as an offer at last but not a mutual offer. On the other hand, attorney is not obliged to accept that offer. There are two sorts of power of attorney which can be issued.

POA for Specific Law Suit / POA for General Law Suit

Special lawsuit POA is used only to enable the lawyer for representation of a specific matter/case.
General lawsuit POA enables Turkish attorney to represent the client in any case. The general procedural rule of POA for validity is to be approved by a notary. The only way to follow a case on behalf of a client is possible with a POA approved by a notary.

In foreign countries, POAs approved by Turkish embassies are also valid without notary stamp. In other words, Turkish Embassies’ duty is to check and approve whether the POA is given to an attorney according to relevant country.

POA’s Delivery to Court

It is not obligatory to deliver original POAs to the court. Turkish lawyer have authority to convert copied version of POAs as certified as original with signature or stamp pertaining to the lawyer.

As mentioned above, it is general rule to file a case with POA. However, there are some exceptional situations that the applicant can file a case without POA. In case that occurrence of a damage is imminent and delay of filing a case due to lack of POA might lead a damage, the court agrees to initiate the case on the condition that the POA shall be deliver to the court as soon as possible in the course of proceedings.

Context of POA

Context of POA are the authorities which can be used on behalf of a lawyer. Therefore the client can limit the authorities of the lawyer. For instance, the client may insert a provision to the POA in order to limit settlement capabilities of the lawyer.

In divorce cases, it is compulsory to have photo of the client on the POA. The case can be followed-up with more than a lawyer. In that case, it is possible to write lawyer’s name to POA in order to retain more than a lawyer. In case of retaining more than one, the court correspondences and documents must be served to a lawyer selected by the court.

Resigning a Lawyer

The client certainly has right to expulse a lawyer by notifying the court with a petition. From that moment, the lawyer’s capability to follow the case is terminated. The lawyer is also able to resign from the case by stating a sensible reason. This article is written in the light of new Turkish Procedural Law numbered 6100 which is entered into force on October 2011.

Turkish citizenship lawyer — cindemir@cindemir.av.tr

This article aims to clarify the matters concerning Turkish citizenship acquisition in relation with Turkish Citizenship Law. The article touched on the questions and answers related to Acquisition of Turkish Citizenship.

Who is an alien according to Turkish Citizenship Law?

According to Turkish Citizenship Law, the person who does not hold Turkish citizenship must be considered as an alien.

Who are the Turkish Citizens?

A person who is from Turkish father or Turkish mother even they born in Turkey or not are regarded as Turkish citizen since from their birth.

Can alien mother’s illiterate child be regarded as Turkish citizen?

If illiterate child who is born from alien mother becomes Turkish citizen if he/she can prove his/her link with a Turkish citizen via explained above ways:

A ) Declaration of legitimation,

B) With decision of paternity

C) Recognition

Can adoption grant Turkish citizenship?

Adoption does not grant Turkish citizenship to an adopted child. On the other hand, in case that the child’s mother and father is not known or not found, the child can acquire Turkish citizenship.

Childbirth in Turkey is sufficient to grant Turkish citizenship?

The child who could not acquire any citizenship from the mother and the father is considered as a Turkish citizen since from their birth. The children who are found in Turkish territory are regarded as a Turkish citizen.

Is it possible to acquire Turkish citizenship via marriage?

Marriage with Turkish citizen does not grant Turkish citizenship by itself. On the other hand, if the alien shall loose his/her own citizenship by marriage with a Turkish citizen, the alien can acquire Turkish citizenship at the moment of the marriage.

But in ordinary conditions subsequent to marriage with a Turkish citizen, marriage must be continued for 3 years with actual together living. If these conditions are satisfied, alien spouse must apply to interior ministry’s relevant department or if she/he lives outside of Turkey, they must apply to Turkish consulate in country of residence. Subsequent to application, component department interrogates the status of ongoing marriage in order to detect authenticity of the marriage.

What are the conditions of acquisition of Turkish citizenship by means of Council of Ministers decision?

The aliens who hold following criteria’s can obtain Turkish citizenship:

A) According to his/her national law if the alien is stateless, he or she must be at least 18
B) 5 years residence is required prior to application
C) Intention to settle in Turkey must be understood from alien’s attitudes
D) Having good moral values ( no conviction)
E) Having no any serious disease which threats public of the country
F) Ability to speak satisfactory Turkish
G) Having sufficient income or profession to maintain his/her living
Plus , it is recently hold out that Turkey will grant citizenship to foreigners who buy properties worth at least $250.000 USd or deposit at least 500.000 USD in a bank account for more than three years, according to a revised decree that was published in the Official Gazette on Jan. 12.
What are the criteria’s of the aliens to become Turkish citizen by means of Turkish Interior Ministry proposal?

Aliens can be granted to Turkish citizenship by means of Turkish Interior Ministry proposal or decision of Turkish Council of Ministers.

Children of the person who lost their Turkish citizenship. The child must be in lawful age for citizenship.

Person who is married with Turkish citizen and his/her lawful age children

Person who decide to settle in Turkey with the decision of marriage with a Turkish citizen

Person who brought industrial facilities to the country or a person who is having ability to contribute significant values in social, economic field or technical, science standards

Who can apply to Turkish Citizenship?.Can Turkish Citizenship Lawyer apply on behalf?

Person who has Turkish citizenship conditions can apply to the citizenship by him/herself. However, legal assistance is important to fulfill the documents and criteria of the content. Turkish citizenship lawyer can be appointed to act on behalf of a potential citizen by a power of attorney. You can check our article related to it: Appointment of a Turkish Citizenship Lawyer With Power Of Attorney

Anti-dumping Measures — contact cindemir@cindemir.av.tr

Regulation (EC) No 384/96 aims to transpose the provisions of the new agreement on the implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (1994 Anti-dumping Agreement) into Community law with a view to ensuring appropriate and transparent application of the new anti-dumping rules.

ACT

Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community

SUMMARY

Scope

From a geographical point of view, the Regulation applies to all countries that are not members of the European Community (EC). However, the Community may adopt specific provisions in relation to countries without a market economy or whose economy is in transition. The Regulation also stipulates that its provisions do not preclude the application of any special rules laid down in agreements concluded between the Community and third countries.

From a physical point of view, the Regulation applies to all products. However, with regard to agricultural products, particularly products where common market organisations protect Community production through the use of levies, the provisions of the anti-dumping regulation may be applied by way of complement to and in derogation from any provisions which preclude the application of anti-dumping duties.

The Regulation lays down two conditions for the application of anti-dumping duties: the existence of dumping and proof of injury to the Community industry as a result of this dumping.

Definition of dumping

Dumping must be distinguished from simple practices of low-price sales resulting from lower costs or greater productivity. The key criterion in this respect is not, in fact, the relationship between the price of the exported product and that on the market of the country of import, but the relationship between the price of the exported product and its normal value. Thus, a product is considered to be dumped if its export price to the Community is less than the comparable price for a like product established in the ordinary course of trade within the exporting country.

The normal value to be taken into account to determine if there is dumping is usually based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country.

However, where the exporter in the exporting country does not produce or does not sell a like product, the normal value may be established on the basis of prices of other sellers or producers. In addition, when there are no or insufficient sales of the like product in the ordinary course of trade (for example, sales by a company with a monopoly) or where because of the particular market situation such sales do not permit a proper comparison, the normal value may be calculated on the basis of the cost of production in the country of origin.

In the case of imports from non-market economy countries, the normal value is determined on the basis of the price or constructed value in a market economy third country, or the price from this country to other countries, or where those are not possible, on any other reasonable basis.

The second basis of comparison, the relationship with the normal value in the country of origin which determines the dumping margin, is the export price. This is the price actually paid or payable for the product when sold for export to the Community.

In cases where there is no export price or where the price is set under an association or a compensatory arrangement between the exporter and the importer or a third party, any reference to the export price becomes impossible. It may thus be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis. In these cases, adjustments are made to take account of all costs incurred between importation and resale as well as for profits accruing.

Dumping margin

The dumping margin is the amount by which the normal value exceeds the export price. The comparison is made between sales at the same commercial stage and on dates which are as close to each other as possible. The necessary adjustments are made to take account of differences in sales conditions, taxation and other differences which affect price comparability.

Injury

The application of any anti-dumping duty presupposes the presence of a second key element: significant injury to a Community industry, be it injury caused to an industry established in the Community, the threat of injury or substantial retardation of the establishment of such an industry.

The determination of injury must be based on positive evidence and involve an objective examination of the following elements:

the volume of the dumped imports, particularly where there has been a significant increase, either in absolute terms or relative to production or consumption in the Community;
the price of dumped imports, in particular to determine whether there has been significant price undercutting as compared with the price of a like product of the Community industry, or whether the effect has been to depress prices or prevent price increases;
the consequent impact on the Community industry concerned, particularly in relation to production and utilisation of capacity, stocks, sales, market share, price changes, profits, return on investments, cash flow and employment.

The Regulation stipulates that there must be a causal link between dumping and injury. Known factors other than the dumped imports which at the same time are injuring the Community industry must also be examined.

Moreover, the effect of the dumping must be assessed in relation to the production of the like product by the Community industry, taking into account the narrowest production sector.

The term “Community industry” means the Community producers as a whole or those of them whose collective output constitutes a major proportion of the total Community production. However, when producers are themselves importers of a dumped product, the term “Community industry” may be interpreted as referring to the other producers in this sector.

Initiation of proceedings

Proceedings are initiated upon a written complaint by any natural or legal person, or any association not having legal personality, acting on behalf of a Community industry. Where, in the absence of any complaint, a Member State is in possession of sufficient evidence of dumping and of resultant injury to the Community industry, it shall immediately communicate such evidence to the Commission.

The complaint must include evidence of dumping, injury and a causal link between these two elements. It shall contain such information on the following: identity of the complainant and a description of the volume and value of the Community production concerned, a complete description of the allegedly dumped product, the country of origin, the identity of each known producer/exporter and importer, information on prices at which the product in question is sold when destined for consumption in the domestic markets of the country of origin or export, export price of the product, volume of imports of the product concerned and effect of those imports on prices of the like product.

The complaint is considered to have been made by or on behalf of the Community industry if it is supported by those Community producers whose collective output constitutes more than 50% of the total Community production.

The complaint is examined by the Advisory Committee, which consists of representatives of each Member State, with a representative of the Commission as chairman. If this consultation reveals that the complaint does not contain sufficient evidence to justify initiating a proceeding, the complaint is rejected and the complainant duly informed.

Where, after consultation within the Committee, it is apparent that there is sufficient evidence to justify initiating a proceeding, the Commission must do so within 40 days. The Commission publishes in the Official Journal of the European Communities a notice of initiation of the investigation, indicating the product and countries concerned, giving a summary of the information received and stating the period within which interested parties may make themselves known and present their views.

The complaint may be withdrawn prior to initiation of the investigation.

Investigations

The investigation carried out by the Commission, in cooperation with the Member States, covers both dumping and injury simultaneously. An investigation period is selected which normally constitutes a period of not less than six months immediately prior to the initiation of the proceeding. The Commission sends questionnaires to the parties involved, who are given at least 30 days to reply.

The Commission may request Member States to supply information, carry out checks and inspections, particularly amongst importers, traders and Community producers, as well as carry out investigations in third countries (provided that the firms concerned give their consent and that the government of the country in question raises no objection). Officials from the Commission may be authorised to assist the officials of Member States in carrying out their duties. More commonly, the Commission may carry out visits to examine the records of the parties concerned; it may also carry out investigations in third countries involved.

The Commission may meet with interested parties who request such a meeting. It may also organise meetings between these parties so that opposing views may be presented. The interested parties may examine all information provided to the Commission, with the exception of confidential documents.

An investigation is concluded with termination of the proceeding or with the adoption of a definitive measure. It should normally be concluded within 15 months of the initiation of the proceeding.

Termination of the proceeding without measures

The final outcome of the proceeding may be negative. Where, after consultation, protective measures are considered unnecessary and there is no objection raised within the Advisory Committee, the proceeding is terminated. If there are any objections, the Commission shall immediately submit to the Council a report on the results of the consultation, together with a proposal that the proceeding be terminated. The proceeding shall be deemed terminated if, within one month, the Council has not decided otherwise.

A proceeding is terminated where the dumping and injury are considered to be negligible. A proceeding may also be terminated without the imposition of provisional or definitive duties when commitments are undertaken and are considered acceptable by the Commission. These commitments may take the form of a price review or a freeze on exports such as is required to eliminate the injurious effects of the dumping.

Imposition of provisional anti-dumping duties

Provisional duties may be imposed if a provisional affirmative determination has been made of dumping and injury, and if the Community interest calls for immediate intervention to prevent such injury.

The amount of the duty must not exceed the margin of dumping, and it should be less than the margin if such lesser duty would be sufficient to remove the injury.

The duties must be imposed no more than nine months after the initiation of the proceeding. They are normally imposed for a period of six months.

These duties are imposed by the Commission, after consultation of the Committee or, in cases of extreme urgency, after informing the Member States. The Commission informs the Council and the Member States of these provisional measures. The Council may decide to take a different course of action.

Imposition of definitive anti-dumping duties

Where the facts as finally established show that there is dumping and injury caused thereby, and the Community interest calls for intervention, a definitive anti-dumping duty is imposed by the Council.

As with the provisional measures, the definitive duty may not exceed the dumping margin and should be less than the margin if it would be adequate to remove the injury.

The duty must be imposed on a non-discriminatory basis on imports of a product found to be dumped and causing injury. The regulation imposing the duty specifies the amount of duty applied to each supplier or, if that is impracticable, to the supplying country concerned.

Provisional and definitive duties may not be applied retroactively. However, a definitive duty may be levied on products which were entered for consumption not more than 90 days prior to the date of application of the provisional measures.

Community interest

Anti-dumping measures may not be applied if it is concluded that their imposition is not in the Community interest. To this end, all the various interests are taken into account as a whole, including the interests of the Community industry and of the users and consumers. All the parties concerned are given the opportunity to make their views known.

Duration and Review

The duties shall expire five years after their date of imposition or five years after the conclusion of the review of the measures concerned. This review is carried out on the initiative of the Commission or at the request of the Community producers. The duties shall remain in force during the period of the review.

Refund of duties

Duties collected may be refunded where the importer can show that the dumping margin has been eliminated or reduced to a level below the anti-dumping duty.

The importer must request a refund within six months of the date on which the amount of the definitive duties to be levied was duly determined or within six months of the date on which a decision was made definitively to collect the provisional duties. The application must be submitted via the Member State in which the product was released for free circulation. The Member State shall forward the application to the Commission, which comes to a decision after consultation of the Committee.

UNITED NATIONS COMMISION ON INTERNATIONAL TRADE LAW

Article 30. Settlement

“(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.

(2) An award on agreed terms shall be made in accordance with the provisions of article 31 and shall state that it is an award. Such an award has the same status and effect as any other award on the merits of the case.”

Scope of Article 30:

Article 30 contemplates two situations for settlement by agreement by parties depending on whether or not the parties wish to have their settlement recorded as an award on agreed terms.

In the first situation, where parties decide not to record their settlement agreement in the form of an award , but concerning agreement is rather a contract between the parties, enforceable to the extent that the governing contract law permits. Parties to dispute may choose this way because the terms of settlement are simple and easily enforceable without an award.

Case no. B-25 before the Iran-US Claims Tribunal presents such an example. In that case, the United states agreed to an Iranian bank, once the Tribunal received notification that these funds had been transferred into the US Goverment’s possession. Upon receipt of the funds by the US goverment, the enforcement of the parties’ agreement was no longer an issue and thus an award on agreed terms was not necessary.

In the second situation, the parties have their settlement agreement recorded as an award on agreed terms, resulting in several important benefits. First and foremost, a recorded settlement becomes an “award by consent” withing the meaning of the Rules and is generally considered to be enforceable domestically and internationally. The ‘award by consent’ does provide such a binding and enforceable title.

As regards to the second paragraph of the article, ‘award by consent’ has the same status and effect as any other award on the merits of the case. And as any other awards, it must be in writing and signed by the arbitrator or arbitrators. Second paragraph refers to article 31 stating that no reasons are to be given or the award is an award on agreed terms under article 30. Thus according to this article, parties are not obliged to give reasons with respect to award by constent

The Process of Recording Award :

First Step,

The parties jointly petition the arbitral tribunal to record the settlement agreement.

Second Step,

The tribunal renders the award on agreed terms in accordance with the applicable technical provisions of the rules. The award on agreed terms should incorporate the settlement agreement by reference, include statements that the arbitral tribunal has accepted and recorded the settlement agreement by reference, include statements that the arbitral tribunal has accepted and recorded the settlement agreement, and set forth the operative terms of the settlement in the dispositif.

Discretion to record a settlement agreement

The parties decision to record their settlement as an award must be “accepted by the tribunal.” The arbitral tribunal should possess some measure of discretion to refuse an award on agreed terms, even if requested by the parties, in cases in which the settlement was deemed unlawful or against ordre public at the place of the arbitration. In its final form, article 30 grants the arbitral tribunal a discretion to refuse recording a settlement. Additionally, If the parties settlement involves new subject matter outside the scope of the original agreement, the arbitral tribunal may interpret the settlement agreement as an implied amendment of the arbitration agreement. If the settlement includes third parties who are not orginal signatories to the arbitration agreement, however then those new parties must accede to the arbitration agreement in order for the settlement agreement to be recorded as a valid award.

TURKISH PERSPECTIVE OF ARTICLE 30 OF UNCITRAL MODEL LAW

International Commercial Arbitration Act, 2001

Prior to the act, Turkish International Private Law Act was setting out the provisions with respect to arbitration rules. By passage of time, a new amendment was needed therefore in 2001, Turkish goverment enacted recent act called as International Commercial Arbitration Law.

Article 12(d) of Turkish act sets out the settlement matter with respect to arbitration rules. It describes settlement as :

“During arbitral proceedings, if the parties settle the dispute, arbitral proceeding shall be terminated. In the case that arbitrator or arbitrator tribunal approves request of parties, settlement shall be recorded in the form of award.”

DIFFERENCE BETWEEN ARTICLE 30 OF MODEL LAW AND ARTICLE 12(D) OF INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2001

According to Turkish Act, during the proceedings, there is no possibility to establish a settlement agreement without award. Therefore, all settlement agreements must be in the form of award, on the contrary, according to Model Law unless parties request to record the settlement agreement in the form of award, the settlement agreement is not obliged to be recorded in the form of award.

Institutions and organizations which are responsible for electric distribution and transmission in Turkey and their legal grounds by taking account of their duties and hyriearchic structures 4628 numbered Act defined the main frame of the institutions and organizations which are responsible for electric transmission and distribution. The purpose of the act is to provide transparent, stabilized, low cost and financially strong electric market functioning with competitive rules in accordance with private law provisions where consumers benefit from sufficient, well qualified and continious electricity. Additionaly, the purpose is to establish independent supervision. The act numbered 4628 encompasses production of electricity, distribution, wholesale, retail sale, retail sale service and all rights and obligations of personal and legal entities related with export and import activities. It also encompasses the procedures related to the establishment of Electric Market Regulatory Authority and its working principles and procedures. In this act, the definitions below means following:

1. Ministry: Ministry of Energy and Natural Resources

2. Minister: Minister of Ministry of Energy and Natural Resources

3. TEAS : Electric Production Transmision Inc. Of Turkey

4. TEDAS: Electric Distribution Inc. Of Turkey

5. EPDK:Energy Market Regulatory Authority

Ministry of Energy and Natural Resources

Ministry of Energy and Natural Resources had been established with the act numbered 3154 .

The duty of ministry is to help define targets and policies related to energy and natural resources in a way that serves and guarantees the defense of the country, security, welfare, and strengthening of the national economy; and to ensure that energy and natural resources are researched, developed, generated and consumed in a way that is compatible with said targets and policies. The Article 2 of 4th paragraph of the act numbered 3154 establishing ministry holds that one of the other duty of ministry is to provide coordination of energy transmission, distribution, investigation of facilities, foundations and general policies of enterprises? services and its supervision.

ELECTRIC MARKET REGULATORY AUTHORITY

This institution had been established by the Electric Market Act numbered 4628. According to Article 5 paragraph 6th establishing Authority, the authority is responsible to make necessary regulations in order to provide reliable, qualified, continuous electric energy service for consumers. According to sentence (e) of the article, one of the other duty of authority is to determine the security standards and conditions regarding production, transmission, distribution enterprises,autoproducer and facilities of autoproducer groups . According to sentence h of the article, authority has duty to determine the rules and procedures in order to prevent declaration of all sensitive type of informations related to trade including trade secrets and confidential informations related to competiton. Additionally, ministry has duty to monitor security of supply concerning electric energy and has to take necessary measures for it.

TEIAS

TEIAS is responsible for electric transmission system and electric transmission activity. In the context of the act numbered 4628: Transmission: The transport of electricity through lines higher than 36 kV,

Transmission System: Electricity transmission facilities and grid;

TEDAS is responsible for electric distribution system and activitiy. It distributes electricty which is obtained from TEIAS to regional distributor enterprises. Dstribution system: Electric distribution system facilities which are owned and governed by regional distribution enterprises Distribution: Transfer of electric energy below 36 kV and less than 36kv

DISTRIBUTION ENTERPRISES OF ORGANIZED INDUSTRIAL ZONES

Organized Industrial Zones: These are organisations which are responsible of electric distribution in organized industrial zones.
Legal entities which are established in accordance to Act of Organized Industrial Zones numbered 4562 engage in distribution and production activity in the light of Turkish

Commercial Law numbered 6762 on the condition of having licence from the institution without seeking condition for permission of company establishment. Legal entities of organized industrial zones are considered as eligible consumers regardless of their consumption amount aiming at covering electric need. The consumers who exceeds eligible consumer limit among participants of organized industrial zone have right to select its provider on the condition of payment is done related to distribution cost. The prices of electricty produced by organized industrial zones and distribution costs are determined by the EPDK in consultation with Industry and Commerce Ministry.

Direct Foreign Invesment Law in Turkey — contact cindemir@cindemir.av.tr

The article aims to clarify the conditions of being foreign investor in Turkey and the scope of Turkish Direct Foreign investment law which come into force August 20, 2003.

As is known, the Law no. 4875 on Direct Foreign Investments, published on April 17, 2003 and come into force consequently, has abrogated the Law no. 6224 for Promoting Foreign Capital and brought in an important renewal in terms of foreign investments and changed the “permission and approval” system by the “notification” system in respect of any foreign investments due to come to Turkey. Together with this arrangement, it is not necessary for the investor to get permission from the Undersecretariat of State for Treasury of the Republic of Turkey on the matters that are defined in the second article of the Law no. 4875 and included in the direct foreign investment conception, and to fulfill its obligation to inform the General directorate of Foreign Capital within the prescribed procedures and principles, determined by the Application Regulation of the Direct Foreign Investment Law, come into force on August 20, 2003Being a “foreign investor” according to the sub-paragraph no. a/2 of Article 2 of Direct Investment Law (DYK) is to conduct in the same manner is a “direct foreign investment” according to the subparagraph no. b of Article 2 of the same Law. Within this scope, foreign entities engaged in investment will benefit from all advantages and conveniences that may be provided by Article 3 of the DYK, and on the other hand, is subject to the notification obligation, envisaged in the related regulation and also to the principles pertaining to thereto. The advantages that a foreign investor may have within the scope of Ar-ticle 3 of DYK may be listed as follows:

*To set free any foreign investors to make direct foreign investment in Turkey unless it is indicated otherwise by the provisions of private law and international agreements;

*To make the foreign investor be subject to equal treatment with the domestic investors;

*Not to nationalize or expropriate the direct foreign investments unless the public benefit requires so and they are remunerated accordingly pursuant to the applicable legislation;

*Possibility of transferring any net profit, dividend, sales, liquidation and compensation values, any amounts that may arise from the activities and procedures of the foreign investors in Turkey to be payable in return to any licenses, management and similar agreements, and payments of the principals and interests of any foreign loans by means of banks and private financial institutions freely to abroad;

*To set free any foreign companies at the status of a legal entity that the foreign investors may have established in Turkey or participated in to ac-quire any immovable assets or limited rights in-kind in the regions open for the acquirement of Turkish citizens;

*Legal opportunity to apply to any national and international arbitration institutions or any other settlement channels along with any competent courts pertaining thereto, on condition that the conditions, indicated at the related legislation applicable thereto, come out and parties agree upon in that respect, for the settlement of investment disputes arising from the public service concessions and contracts due to be executed by the related foreign investors with the administration and settlement of any disputes that are arisen from any investment contracts subject to the private law;

*The determination of value of the capital beyond cash shall be made within the framework of the provisions of the Turkish Commercial Code. To take the assessments of any international assessment bodies or experts due to be determined or designated by the courts of country of origin or competent authorities, authorized to make assessment according to the applicable legislation of the country of origin as basis in case of the use of securities of any companies, established in foreign countries, as an investment instrument,

*Issuance of a work permit by the Ministry of Labor and Social Security for any foreign origin personnel to be employed at the companies, branches and corporate bodies, established within the scope of the Law on Direct Foreign Investments;

*Issuance of a license for the companies, established according to the laws of foreign countries, to open a liaison office in Turkey, provided not to involve in any commercial activities there.

Sales of Real Estate to Foreigners In Turkey — contact cindemir@cindemir.av.tr

This Article examines the legal situation of Sales of Real Estates to Foreigners in Turkey. The recent changes in Turkish legislation in regard with real estate had been also taken into account. One of the influence of globalization to nation states is concerning with sales of real estates sale to foreign entities. In this article, you can find the story of EU candidate Turkey and Europe in relation with sales of real estates.real estate in turkey , turkish property law
property law in turkey, can foreigners buy property in turkey

Sale of Real Estates In Turkey in Relation to Globalization 1. Introduction Real estate has historically been viewed as a local phenomenon. Builders and investors for decades prided themselves in their ability to find the best “location, location, location” based on their local knowledge. It is among the least “tradable” of products, in the sense of being physically unmovable, even though it can be bought and sold both domestically and internationally. This combination of local knowledge and predominantly local tradability was the primary reason why discussions of globalization in the 1990s and earlier overlooked the real estate industry as a possible participant in the ongoing phenomenon of increasing global economic integration. Although an occasional headline would be grabbed by a foreign purchase of a local landmark the business itself remained largely local.

In the last decade, however, globalization has increasingly involved the internationalization of services sectors as much as of manufacturing, and the various sub-sectors of the real estate industry have been enthusiastic participants in this global surge. Builders, brokerage firms, consulting and services firms, real estate finance firms and investors have extended their area of operations beyond local markets to a worldwide base. Several factors have led to this transformation of the industry. Technological changes have extended the geographic reach and weakened the nexus between “local” and “location.” The opening up of formerly closed economies in the developing world has provided significant opportunities for real estate firms across the globe.

In the early 21st Century the rules and principles of international trade and investment require states to provide additional domestic legal frameworks, though the pressures sometimes sit uneasily with local constitutional constraints and legal traditions. There have long been national restrictions on the sale of land to foreigner entities; ground leases may be permitted in such countries. Such restrictions are often associated with “closed societies” or developing countries. For example, Singapore has for many years restricted the sale of land to foreign individuals while perhaps permitting the sale of its scarce land residential purposes to foreign companies that wish to make house available for their expatriates, China has long restricted the sale of lands to foreign entities; ground leases may be available to foreigners.

The Countries of the middle east, which are sometimes called ‘close societies’ partly due to the dominance of the Muslim religion, usually do not permit the sale of lands to foreign entities, individual, company, for any purpose. If a foreigner developer wishes purchase land in Bahrain or Saudi Arabia, for example questions about land sales restrictions should be asked far in advance of any location decision making. Generally the Middle Eastern governments encourage foreign partnership or joint ventures with local property and business owners. Usually, government wishes the local partners to own the majority interest in the partnership, while the foreign entity contributes the majority of the funds and controls the business while holding only a minority interest in the company and no ownership of the real property.

A Brief Legal Overview of Land Acquisition In Turkey Land Registry A land registry (Tapu Sicili) has been established for the purpose of evidencing the transfer of possession and ownership of real property as well as rights such as mortgages. Such registry is also essential to the security of ownership in real property in that it permits the establishment of clear title as a matter of record. Some of important principles regulate land registration can be found below:

1) No real right in immovable property may be acquired without registration of such right. If land is bought, this fact must be registered in the land registry, otherwise the formal owner will remain the legal owner and may resell the land to a bona fide purchaser who will take the title.
2) All person having a convincing interest may inspect the land registry.
Acquisition of immovable property

Generally, transfer of title to real property is valid only if recorded in the land registry either by way of entry or by a cancellation of an existing entry. Such registration is the equivalent of the transfer of possession of personal property by delivery. In order to register a property there should be an agreement between the parties, which, if it is to be valid, is made before the land registration officer. If the parties are not able to present at that office personally, they may authorize another person by a notarial deed to represent them.

3) Sales of Real Estate In Turkey Traditionally Western Europeans have bought property mainly in European-Mediterranean countries such as Spain , France , Italy and Cyprus as well as famous US destinations like Florida . However, these places have recently become extremely expensive and saturated. Nowadays, the European citizens have been seeking other alternative destinations. Turkey is on one of the fastest growing global emerging markets. It’s prospective European Union membership has opened the floodgates of foreigners interested in buying property in Turkey. The increase in Turkey’s political and economic stability is likely to add the multitude of world travelers that flock to the country’s pristine beaches and rich ancient cultural sites.

Turkey’s impending EU membership provides growth potential that will certainly boost the prices of real estate there in the future. Buying property now can lead to gains as property prices there continue to increase. The property prices in Turkey are significantly lower than other European destinations and still at value prices. Taxes are comparatively low in the country, as well. Property investment experts Amber lamb rated Turkey’s property sector as one of the top five expected European market performers in capital terms of capital

appreciation in 2007. Both residential and vacation properties are available and profitable purchases for foreign nationals in Turkey.

Additionally, housing availability trails demand in the country. Since Turkish parliament ratified a law in January 2006 allowing foreign nationals to purchase property, foreign nationals are afforded the same property ownership rights as Turkish citizens. The reciprocity clause also must be met for foreign nationals to purchase property in Turkey. The clause states citizens of countries whose governments allow Turkish nationals to purchase real estate in their country are allowed to purchase real estate in Turkey. Most Western countries meet this standard. Also, there are no restrictions on selling and reselling, so recently bought property can quickly be sold.8 The Turkish property market is emerging rapidly and offers the investor a variety of possibilities to maximize gains on property investments. Property prices in Turkey are dependent upon where the property is located, the type of material used in construction and the property’s architectural elements. Other value-determining aspects include how easy it is to reach the property, its proximity to an airport, the region’s economic activities and availability of nearby services.

4) EU As A Global Power and Its Impact Over The Recent Members As Regards To Sale Of Real Estates
A) Candidate State’s Position In Reaction To Liberalization On Sale of Real Estates In The Process Of EU Enlargement
Before the accession of new countries to EU, in Eastern Europe and in the Mediterranean Area, some countries were agreeing to liberalize land sales to foreigners, others were requesting transition rules for foreign purchase of their land as they all seek entrance into the European Union. The EU favored liberalization of the foreign land sale regulations of prospective Eastern European countries as a part of the requirements for EU membership. Here are some examples of the requests from individual Eastern European and Mediterranean Countries to the European Union.

Poland negotiated for an 18-year ban on farm building land sales to foreigners and a 6 –year ban on land purchase for industrial purposes following the country’s approved membership in the EU. Poland hoped to be an EU member by the end of 2002. The transition periods would have run from the date of the membership admission. Foreigners had to apply for permission to purchase property in Poland. Since Poland had taken over a big part of prewar Germany, the Polish government was fearful that the German land would have been brought back without a land purchase ban. Land in Germany was approximately 10 times more expensive than Poland. The Polish government expected the land prices of Germany and near convergence by the end of proposed ban. The Czech Republic was expected to approach the EU with the same negotiating strategy as that of Poland, a very restrictive transitional plan for sales of Czech Land to foreigners.

Estonia, which is one of the Baltic countries split away from Russia, and Slovenia, which was the northernmost state of the previous Yugoslavia and borders the Adriatic Sea across from Italy, both had agreed to fully liberalize land sales to foreigners. Since Estonia still had strong associations with Russia, its government actually had some anxiety over future land purchase by Russian entities. Slovenia wished to develop independence from its old Yugoslavian ties and not wanted to encourage Slovenian Land sales to Serbian and old Yugoslavian entities.11 Cyprus which is located in the Mediterranean Sea off the southeast of Turkey, was negotiating for a transition agreement on the sales of houses to foreigners.
B) Judicial Process Concerning Liberalization Of Sale Of Real Estate In The Course Of EU Enlargement

The central basis of the relationship between the EU and the Central Eastern European candidate countries in the pre-accession period has lain in the Association Agreements or so-called Europe Agreements. These agreements established an association between EU and individual countries, and aimed to help the countries to achieve their goal of EU membership. It’s initially designed by the Commission as an alternative to accession, The European Agreements gradually evolved towards the main vehicle for accession.

In the Europe Agreements Romania, Bulgaria, Latvia, the EC has excluded legal acts concerning real estate in frontier regions. By comparison, by Romania, Bulgaria and Lithuania had more areas excluded in their EAs. Romania has done so in relation to the purchase, ownership and sale of land, forestry and residential buildings not related to foreign investments, cultural and historic monuments and buildings, the organization of gambling , betting, lotteries and similar activities, and legal services (apart from advisory services) whereas Bulgaria has done so only in relation to the acquisition of land and dwellings (except where construction rights have been performed) and the ownership of real estate in certain regions. Lithuania has excluded the acquisition of land, mineral deposits and natural resources, and the organizations of gambling, betting, lotteries and similar activities. Latvia and Estonia had not excluded any sectors at all. Finally, Slovenia has excluded EC companies and nationals from organization of gambling, betting, lotteries and similar activities as well as from dealing and agency activities in relation to historical monuments and natural reserves, whereas the EC has not excluded any sector at all.

During the negotiations for the 2004 accession candidate countries requested the possibility to maintain existing national provisions restricting the acquisition of agricultural land or forests by foreigners. They considered these derogations necessary in order to protect the socio-economic agricultural structure of the countries from shocks that might arise from the differences in land prices and incomes with the rest of the Union, and to be able to pursue an effective agricultural policy. The derogations were also deemed necessary because of the unfinished process of privatization and restitution of agricultural land to the farmers in some countries. Some candidate countries provided detailed arguments justifying the transitional periods in the framework of the common positions expressed by the European Council during the negotiations.

Seven new member states – the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland and Slovakia were granted transitional periods during which they could maintain existing provisions of their legislation restricting the acquisition of agricultural land or forests, in derogation of the freedom of capital movement enshrined in Art. 56 of the EC Treaty, as detailed in Annexes V,VI, VIII, IX, X, XII and XIV of the Act of Accession of 2003. In that context, a midterm review of the transitional measures was stipulated, to determine whether the transitional periods should be shortened or terminated.

C) Legal Development in Turkey Under The Impact Of EU And Global Markets
Globalization brings pressure for countries to harmonize unify laws in many areas of business and commerce in order to facilitate international trade and investment.

As an EU candidate country, Turkey is required to adapt the acquis communautaire into its legislation. During negotiation process with EU, Turkey enacted many laws and amended many provisions in accordance to the EU harmonization process. In this sense, the principle of free movement of capital is one of the essential principle which EU is based on. The full liberalization of capital movements in the EU was agreed in 1988 (Directive 88/361/EEC) and came into effect in 1990 for most Member States, while for the rest specific transitional periods were agreed.18 Therefore, as other member countries Turkey was obliged to remove restrictions affecting foreign direct investments originating from the EU. For this purpose, Turkey amended the article 35 of Land Registry Law within the regulation of the acquisition of real estate in the country by foreigners within the framework of EU principles.

The principles governing purchase of property by foreign (i.e. non-Turkish) nationals in Turkey is governed by the 1934 Property Act (Law Nr. 2644 dated 22 November 1934). The legal framework set up in 1934 was modified for a first time by a by-law (Law Nr. 4916) dated 3 July 2003. This law was predicated on a reciprocity clause; that is to say, citizens of countries whose governments allow Turkish nationals to purchase real estate in their country, were to be allowed to purchase real estate in Turkey.20

However, following steps taken by Turkey’s main opposition party CHP, the modifications brought by the 2003 by-law were declared as void by the Turkish Constitutional Court on 26 April 2005, in a decision to enter into effect as of 27 July 2005 and the purchase of real estate by foreign nationals was suspended until a modified law dated 7 January 2006 was brought into effect. Constitutional Court annulled some parts of the provision due to its unlimited sale character. The court has decided not to strike out sections E and F, but annulled Section D, which reads as follows: “Companies may freely acquire real estate or limited rights in rem through a legal entity established or participated in by foreign investors in Turkey, provided that such acquisitions are permitted for Turkish citizens.” (Rights in rem, distinguished from rights in personam, refer to those property rights acquired by owners either by first possession or by grant from a previous owner.) This section means that as foreign legal persons, companies with Foreign Direct Investment capital, registered under the Turkish Commercial Code, can acquire real estate under the principle of national treatment.

A new Law Nr. 5444, now enacted, instead of being a by-law modifying various paragraphs of the 1934 Land Registry Law, is a fully stated legal text (still on the basis of a modification of the 1934 Act). This current law is retrospective in its application to 26 July 2005 and is largely the same as the law of 3 July 2003, with notable amendments, especially with regards to size limitations. The total area of the real estates and limited real rights on real estates that a real person of foreign nationality can acquire all over the country can’t exceed 25.000 square meters (6,17 acres). Within the same conditions set out in this paragraph, the Council of Ministers is authorized to increase the area up to 30 hectares (74,13 acres).”22 Concerning article was explicitly laid down the sale of real estates as stating “With the reservation of reciprocity and compliance with legal restrictions, foreign real person can acquire real estates for the purposes of using as residence or business aims in Turkey that are separated and registered for these purposes in the implemented development plans or localized development plans. The same conditions shall be stipulated in the establishment of limited real rights on real estates.

D) Analysis Of Legal Situation
In the light of such information, it can be said that there is an apparent controversy between the government which is under the pressure of global markets and the constitutional court which devotes itself to protect interests of the nation state. It is necessary to say foreign ownership of real estate has been controversial for historical reasons dating back to the Ottoman Empire as well as for ideological reasons. But considering EU accession process, in the future this type of arguments will apparently intensify the struggle between the protectionists and EU supporting business class. 5. Turkish Foreign Direct Investment Law numbered 4875

In line with this idea, the “Foreign Direct Investment Law No. 4875” (“FDI Law”), which emphasizes the opening of the investment environment in Turkey, was enacted. This law was enacted with a view to eliminate a variety of problems relating to the foreign investors concerned about their ownership rights in host countries and to the worries of host countries’ public with regard to the probable decrease in employment and loss of independence and ineffectiveness of the former existing Foreign Investment Promotion Law No. 6224 (the “Old Law”). The FDI Law also appropriately deals with foreign investors’ rights by current international standards. The main objective of the FDI Law is to reduce the bureaucratic barriers that foreign investors face when doing business in Turkey. The FDI Law reflects Turkey’s liberal approach to international investments and makes FDI easier to implement than the Old Law.

It should be noted that foreign investment companies incorporated in Turkey are not subject the aforementioned restrictions in Turkish Law. According to the Foreign Direct Investment Law numbered 4875 and dated June 5, 2003, foreign investors are subject to equal treatment with Turkish investors, and because of that, foreign investment companies that are established in Turkey are not considered as foreign companies, but regarded as Turkish companies. Due to this Law, companies having legal personality which foreign investors participate in or establish in Turkey are allowed to acquire real estate or limited real rights in areas where the acquisition of these rights is allowed for Turkish Citizens.24 The main opposition party CHP brought the dispute to the Constitutional Court asserting that reciprocity character of the provision is lacking.

The Constitutional Court has resolved with its decision dated 11.03.2008 and numbered E. 2003/71, K. (decision) 2008/79 to annul the provision set forth in subparagraph (d) of article 3 of the Foreign Direct Investment Law numbered 4875 which regulates acquisition of real estate by foreign investors through companies that possess legal personality which they establish or participate in Turkey, which reads as follows: “Companies that possess legal personality and are incorporated or participated in by foreign investors in Turkey may freely acquire real estate or restricted rights in rem in the regions that are open to acquisition by Turkish citizens” and in order to prevent creating a legal loophole, it has decided to have the mentioned decision to become effective six months after its publication in the Official Gazette.25 The annulment decision of the Constitutional Court was published in the Official Gazette numbered 26849 on 16.04.2008 and it has become effective on 16.10.2008. However, as a result of the mentioned annulment of the Constitutional Court, in order not to cause any uncertainty, the Turkish Grand National Assembly adopted Law numbered 5782 Regarding Amendment of the Land Registry Law on 03.07.2008 and Article 2 of the Law numbered 5782 has amended Article 36 of the Land Registry Law numbered 2644, in a manner that would enable acquisition of real estate by the companies incorporated or participated in by the foreign investors in Turkey.

The Law numbered 5782, which enables the mentioned change, has been published in the Official Gazette on 15.07.2008, and in accordance with article 4 of the same Law, became effective with its publication in the Official Gazette. Therefore, with the Law numbered 5782 becoming effective, the concerns regarding the acquisition of real estate in our country by the companies incorporated or participated in by foreign investors in Turkey have been removed. However, even if the Law numbered 5782 which provides for this change was not in effect, companies possessing legal personality and are incorporated or participated in by foreign investors in Turkey could have continued to acquire real estate as there are no provisions preventing or prohibiting acquisition of real estate by these companies.

Before the new regulation, there was an impression that acquisition of real estate by the companies possessing legal personality and are incorporated or participated in by foreign investors in Turkey would be prevented after 16.10.2008, due to the annulment decision of the Constitutional Court. However, annulment of only subparagraph (d) of article 3 would not be sufficient to prevent acquisition of real estate by the companies possessing legal personality and are incorporated or participated in by foreign investors in Turkey. To the effect that, within the context of the Foreign Direct Investment Law numbered 4875,companies that are incorporated or participated in by the foreign investors are companies that are subject to Turkish laws. This matter is explicitly stated in article 9 of the Regulation for Implementation of Foreign Direct Investment Law. According to article 9 of the Regulation, the companies, which can be incorporated or participant.

Alternative Dispute Resolutions In Turkey — contact cindemir@cindemir.av.tr

In this article, historical background of Alternative Dispute Resolutions and its legal position in Turkish law are examined.

Law in Ottoman Empire
Ottoman legal system accepted the Religious law over its subjects. The Ottoman Empire was always organized around a system of local jurisprudence. Legal administration in the Ottoman Empire was part of a larger scheme of balancing central and local authority. The jurisdictional complexity of the Ottoman Empire was aimed to permit the integration of culturally and religiously different groups. The Ottoman system had three court systems: one for Muslims, one for non-Muslims, involving appointed Jews and Christians ruling over their respective religious communities, and the “trade court”.

The entire system was regulated from above by means of the administrative Kanun, i.e. laws, a system based upon the Turkic Yasa and Töre which were developed in the pre-Islamic era. The kanun law system, on the other hand, was the secular law of the sultan, and dealt with issues not clearly addressed by the sharia system.

Alternative Dispute Resolutions – Ottoman Period Law Sources for Alternative Dispute Resolutions
Legitimacy for settlement consists of Koran, Behaviours of Mohammed and interpretations of Islamic schools. According to court records, settlements are defined as “Allah’s great expectation from the people” referring to the verse of the Koran which states “settlement is the best award among the other awards.

Methods of Settlements
To the Islamic law books, in case of parties have dispute, there are 2 ways for settlement to resort. The first one is to settle the dispute without resorting to the court. It’s always possible for the parties to resort this way which does not require any procedure or any guidance. Bear in the mind that these settlements are generally referring to acknowledgments.

The second one is the way of the settlement which can be implemented by Ottoman lawyers in accordance to a particular form and system. As compared to the first way, negotiations between parties initially take place at the court and thereafter resume outside the court. According to this procedure, parties participate in the hearings which are governed by judge. In case that parties don’t bring any final evidences judge may call them to settle the dispute by themselves. Thereafter, the settlement procedure commences.

Call for the settlement must be made in advance of the court decision. Because after the decision, it would constitute complexity to reach a settlement again. Call for the settlement must be done for twice and it can’t exceed more than 2 times in order to prevent abeyance of the case. If the parties don’t approach for the settlement, judge may conclude the proceeding.

Subject Matters of Settlements
Subject matters of settlements are in connection with the obligations, the claims, compensations and blood money which emanates from murder. Criminal cases such as adultery and drinking alcohol can’t be settled by any instrument of resolution. This clear distinction in regard to subject matters of settlements can be inferred from the records of Ottoman Courts. Generally judge calls both parties to the court in case that defendant rejects the personal actions against him. Inheritance law also falls in the scope of settlement.

Mediators for the settlement in Ottoman State
The second stage of settlement may commence in case of acceptance of judge’s proposal by both parties. In this stage, independent mediators (Muslihun Muslimuns) comes up in order to reach a consensus with respect to the dispute. Muslihun Muslimuns consist of three adult males, but considering the records of the period there is no detailed information indicating their qualifications. It’s assumed that those mediators were selected from among the people who are well respected and also confidential in the society. The mediators hold meetings with the parties and seek for a settlement. Participation of the mediators such as witnesses to the meetings prevents the claims in respect of non-existence of the settlement.

Conclusions of the Settlement
Settlements can be concluded in several ways. Firstly, the debt in concerned with the dispute can be paid cash. But, generally paid off money amounts to less than the demand of applicant from the defendant. The other way of conclusion is to pay the debt in exchange of assets. Moreover, some of the settlements can be concluded by the means of abdication. In this case, the applicant must abdicate from his/her claims over the defendant and this abdication must be recorded in the form of a concrete document. Generally, the cases related to inheritance epitomizes to this way of conclusion. According to Ottoman Law, the only method to settle the dispute which arises from the criminal actions such as battery, hurting, theft is abdication.

Conclusion in the Alternative Dispute Resolution in Ottoman State
There is no definite information indicates us how many cases had been resolved by the method in the foregoing mentioned. Despite of this fact, there is an elaborated court record in Balikesir city of Turkey. According to this record, 12 of 61 cases had been concluded by the method of settlement in pais which amounts to 20 percent of the cases.

As a conclusion, during 17th and 18th century of Ottoman Empire, settlements in pais had been played an important role to facilitate and reduce the workload of the courts. At intervals, Ottoman intellectuals and thinkers encouraged the people to resort amicable settlements. After the establishment of modern “Nizamiye Courts” in 1870, law-maker preserved the concerning procedures by codifying them under the terms of “amicable settlement” and “release of debt”.

Alternative Dispute Resolutions in Modern Turkey ADR In the Terms of Private Law In Civil Code
Considering the actual legislation, article 213 of code of civil procedure states that “in every instance of the case, judge may call the parties or their attorneys to hear their declarations and he/she may encourage settle a dispute in case that there is an obvious hope for the settlement between the parties.

In Consumer Rights Law
Article 22 of the law on the protection of consumers’ rights law had been amended in 2003 in accordance to concerning EU directive. According to this article, concerning ministry must establish arbitration committees to settle the disputes which arise from the complaints of the consumers. Citizens should apply to these committees if the amount of consumer dispute is below 500 Turkish Liras. The decisions of the committees are binding for the parties. The decisions of the committees can be carried out under the law of enforcement and bankruptcy. Within the 15 days of the decision’s announcement, parties may object to the court but they can’t cease the execution of the judgment. In the case of an objection, consumer rights courts will examine the issue.

ADR In the Terms of Penal Law
According to Turkish Penal Law, parties of the settlement can be either real person or legal entity and it exists for the crimes which require civil claim. There are 27 particular crimes under this category. Moreover, the law on protection of the children lays down the particular crimes committing by the children.

ADR in Penal Procedure
According to Code of Penal Procedure, the dispute can be settled during the investigation section of the case and also prosecution section of the case. Considering the features of the crime if the conditions for the settlement are fulfilled, the prosecutor must try to settle the dispute.

To commence the settlement procedure firstly, the perpetrator must accept the crime and its liability and the damages must be compensated by him/her. Finally, the convicted should accept the settlement proposal. Besides, prosecutor or judge may appoint lawyers among from the bar association for the parties if they can’t reach to an accord with the selection of their lawyers who will settle the dispute.

There is no definite provision in the Code of Penal Procedure indicates the role of the mediator. But it can be inferred from the spirit of article 253 of the code that the role of mediators must be active and responsible for striking balance among the parties of the dispute.

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Authorization Procedures

Prohibition of Interest Payments

Crypto-Asset Service Providers

Insider Information and Market Manipulation

Technical Documents and Marketing Communication

Supervision and Sanctions

Conclusion

Introduction

The Role of Legal Affidavits in International Relationships

Understanding Apostille Certification

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Success Stories: Assisting International Clients

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Conclusion

Intentional Injury

Penalty

Abortion

Justifiable Grounds for Abortion

Sexual Assualt

Penalty

Marital Rape

Note

Sexual Abuse of Children

Sexual abuse here means;

Penalty

Sexual Intercourse With the Person Who Has Not Attained the Lawful Age

Sexual Harassment

Penalty

TRAINING ON BEST PRACTICE

SOFTWARE LICENSING

WEBSITE LEGAL COMPLIANCE

Apostille Services in Turkey (International)

What you need to know about the Hague Apostille Convention

Competent Authority

Documents Coming in From Abroad

Intent of the Convention

What is the Effect of an Apostille?

Which Documents require Apostille?

Apostille Certifications for Documents Originating from Turkish Institutions

Validity

Non Members of the Apostille Convention

E-Apostille system

PART ONE General Provisions

PART TWO Establishment Of The Attorney Partnership

PART THREE Foreign Attorney Partnerships

PART FOUR Standard Basic Contract Of Attorney Partnerships

PART FIVE Termination Of Partnership

PART SIX Merger And Transfer Of Attorney Partnerships

PART SEVEN Books, Records, And Documentation

PART EIGHT Power Of Attorney

PART NINE Disciplinary Provisions And Final Provisions

Jurisdiction of Divorce under Turkish Divorce Law

Jurisdiction of Divorce under Turkish Divorce Law

Who can apply to Turkish Citizenship?.Can Turkish Citizenship Lawyer apply on behalf?

The article aims to clarify the conditions of being foreign investor in Turkey and the scope of Turkish Direct Foreign investment law which come into force August 20, 2003.

PART ONE
General Provisions

PART TWO
Establishment Of The Attorney Partnership

PART THREE
Foreign Attorney Partnerships

PART FOUR
Standard Basic Contract Of Attorney Partnerships

PART FIVE
Termination Of Partnership

PART SIX
Merger And Transfer Of Attorney Partnerships

PART SEVEN
Books, Records, And Documentation

PART EIGHT
Power Of Attorney

PART NINE
Disciplinary Provisions And Final Provisions