Discretion Of Judge in Turkey

DISCRETION OF JUDGE

Freedom of discretion which is granted to judge by means of democratic understanding is one of the basic characteristics of civil law. On the contrary, while the law is being put into practice , it is given particular flexibility to judges. Besides, they are given particular authority and function by the law. Power of law creation which is granted to judge by the civil law is the first freedom. Second freedom is the discretion of judge. This right or authority is different from power of law creation of the judge. Discretionary power is more limited than power of law creation. While the judge uses the discretionary power, He, on his own, does not create a rule. However, the judge has a particular flexibility and an estimation power while the rules are applied to present case. In the issues that law gives right for the discretionary power or the law commands the requirements and right causes of situations kept in mind, the judge makes the decision based on the facts of law and justice. Discretionary power of judge ;It is the authority of estimation and adaptation which is well known by judgement when applied to special and present case that law code’s general and abstract regulation. As it is understood from the definition that , there is the rule to apply to the present case in the law so the judge can use discretionary power. But this rule shows only the general principle with the main outline. With the unknown part in the law code, which is let been on purpose bye lawmaker, it is expected from the judge that he solves the problem by looking at the authority’s and basic principle’s properties. For example, in different articles in the civil code and code of obligation have regulated that persons who cause a damage in particular situations are liable for indemnity. But amount of indemnity is not regulated in these article. In such cases, the judge determines the amount of indemnity by taking the characteristics of present case and the faults of the suspect, if there is, into consideration. The other example of that, it is counted a divorce reason if the conjugal community is jarred fundamentally according to the first paragraph of the 166. article of the Turkish Civil Code, it is not defined that which states are counted as the reason of being jarred fundamentally of the conjugal community . At that case, it is foreseen that these states will be defined by judge on the basis of the discretionary power according to the law.As you can see, the judge has used discretionary power.
However, Discretionary power of the judge is not directed towards to the same thing for every event. This power is sometimes directed towards to the condition and causes of the event and sometimes directed towards to not only the condition and causes of the event but also the result of the event. For example, according to 27. article of Turkish Civil Code, alteration of name can only be wanted from the judge with right causes. In this case, the judge decides that there are fair causes or not for alteration of name by using discretionary power. Here, the discretionary power is directed towards to the conditions of the event.The other example of that, nevertheless, for example, using discretionary power directed towards to the result is acknowledged for the judge by the 170. article of the Turkish Civil code. According to this article, if the divorce suit is sued by married couple, the judge will decide to divorce or separation by using discretionary power.

The Situations Where Discretionary Power Of Judge Is practicable

In the execution of every legal principle , the judge does not have discretionary power. The conditions of application of discretionary power is obvious. For example, 11. article in civil code has clarified that, adolescence begins with the age of 18. This rule is clear and absolute. The judge can not evaluate the adolescence different than it is explained in law by attending to features of present case. So the judge can not determine that a person who is seventeen is adolescence. Consequently, the judge can only use discretionary power in the way expressed in clear terms condition in code. However sometimes, the discretionary power is not mentioned clearly in the law code, but statements and words in the code help us to understand that there is discretionary power of judge or not in the code. Consequently, It is clearly mentioned about using discretionary power of judge in some of the clauses of the Law . For example, it is clearly mentioned that “ the judge should understand fully if such an aim is cherished or not” in the 766.article of the Civil code. It is sometimes not clearly mentioned about using discretionary power of judge in the Law, however the result of having such a power of judge. For example, it is mentioned about “right reasons”(C.C. Law 164. or 67.) and “convenient amount”(C.C. law 121.) or is assumed that the judge has discretionary power in any case of using such statements and words.

The Method Of Usıng Discretionary Power Of Judge

According to US constitutional system, while the judge determines , he should observe original intent of the code and the precedent . However, the judge can use legislative history but it is controversial. Constitution, statues, administrative rules and case law are the resources of the US Civil Code .

The judge cannot use this power arbitrarily and without any limit. The judge should use this power in conformity with law and justice. Judge’s attitude should be proper to law and justice. So, while the judge uses discretionary power , he should get rid of his personal feelings and thoughts. However the judge should be unbiased and objective while he judges. Merely with this way, the judge can attain to result which is proper to purpose of law. However this result shouldn’t be adverse to thought of justice and value judgement of society. Also this result should be applied to similar case.

Judicial Review In Discretionary Power Of Judge

The way of using discretionary power of judge is wheter right or not is dependent on judicial review . If the judge goes beyond the limits of discretionary power of judge and does not show the reasons of it, he or she would not have used that power in the way it has to be used. Besides, if the judge makes any decision without taking purpose of law into consideration, he would have misused his duty .Consequently, judicial review can be done. For example, According to 171. article of Turkish civil code, the judge can determine legal seperation between married couples for 1-3 years running. The judge can not determine legal seperation for more than three years otherwise the judge exceeds one’s discretionary powers. Another example, according to 175. article of Turkish civil code, if the person is reduced to poverty because of the divorce, the person can want the alimony. The aim of this article is only correction of poverty. While conjugal community is going on, if the judge adjudges the amount of alimony which is nearly same as standard of conjugal community, it means that discretionary power is used as wrong.

Article Authors and Translators: Semra Erden

Alternative Dispute Resolutions in Turkish Law

Alternative Dispute Resolutions in Turkish Law
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.

Company foundation in Turkey

The foundation of a company in Turkey is with the “direct investment law” from the year 2003 for foreign investors substantially one simplified. Now, in particular foreign investors are on an equal footing with turkish entrepreneurs after abolishing different hurdles like e.g. the minimum investment border at a value of 50.000 USD. Now consists the only one difference in the fact that foreign investor has fulfill some additional formalities as e.g. settled the translation of the documents.

However this equalization position was lightly affected by a judgement of the supreme court in 2008, which leads to the introduction of a licensing procedure for real estate acquisition.

Since 2001 the turkish economy grows more stably and over 7% annually, so that the purchasing power of the recent population increases substantially. The size of the local Turkish market with its about 71.5 million inhabitants and 11,170 USD Gross Domestic Product per inhabitant (conditions 2008) is thus for foreign investors and exporters of outstanding importance. Also the labour costs and work time advantages, play a substantial role for the choice of Turkey as location.

With foreign direct investments in Turkey, turkish limited companies (limited sirket) and turkish corporations (anonim sirket) represent, depending upon individual case the most popular company forms. For this reason our explanations are limited on that in the following.

1. Foundation – Limited Company in Turkey (limited sirket)

The conditions of the Turkish limited are listed in the Turkish commercial code in Article 503 pp.

After Turkish corporate law at least 2 natural or legal entities are necessary to establish a Turkish limited in Turkey. The one-man limited is in Turkey not yet permissible at present, but in the current corporate law reform it is intend to allow ist.

The minimum capital stock of the limited company in Turkey amounts to 5,000 Tl (approx. 2,400 Euros). The turkish Limited is liable to its creditors only with their capital stock. The individual partners are liable with their personal fortune only exceptionally because the limited is in debt at the State of (tax and social security debts).

The turkish Limited possesses at least 2 organs after the law: The company general meeting and the managing directors. The company general meeting may take place also outside of the registered place of business and seize resolutions even with the circulation method. Here it is to be still pointed out that also a foreign citizen can be managing director of a turkish Limited. In this case he has to request for a residence- and work permit for itself afterwards.

The resolutions of the turkish Limited over portion transmission, capital increase, dissolution of the partnership etc. must be approved of ¾ of the shareholders who own together ¾ of the capital stock. This regulation makes the unanimity the rule and must be well considered by the founders, in particular with the turkish Limited with 2 partners.

With the conclusion of the articles of association, before the notary the actual establishment of the turkish Limited begins. The articles of association must be closed in writing, notarize and are subject to legally given minimum requirements, like e.g. the data concerning the partners, i.e. their first names, surnames, domicile and nationality. The founders can assign a lawyer for the completion of all establishment formalities by a notarially authenticated authorization, whereby they must come for the establishment not personally into Turkey. The foundation method is finished after the entry into the Register of Companies and the proclamation in the Register of Companies sheet. The turkish Limited attains its legal capacity with the entry in the Register of Companies.

The establishment takes place within 2 – 7 days after the filing of an application. The foundation charges behave between approx. 600 and 1,200 euros depending upon the number of partners, length of the articles of the association and the number of documents which have to be translated.

2. Foundation – Corporation in Turkey (anonim sirket)

After turkish corporate law at least 5 natural or legal entities must act together, in order to be able to create a corporation in Turkey.

The minimum capital stock of the corporation in Turkey amounts to 50,000 TL (approx. 24,000 euros). The Turkish corporation is liable to its creditors like the turkish Limited only with their capital stock. However contrary to the Turkish Limited there are no liability of the partners (shareholders) with private fortune, even they also have public debts by the State of (tax and social security debts).

The corporation compared with the turkish Limited is in particular more favourable concerning the organization of share transfers. Differently than at a turkish Limited the partners can sell their shares without restrictions at will and for the transmission there is notarial contract necessary.

The corporation in Turkey possesses at least 3 organs after the law: The general meeting, the executive committee and the supervisory board. The general meeting must take place annually at least once and in principle within the competence borders of the respective Register of Companies, since also a representative of the Ministry of Trade must be present thereby. The executive committee consists at least of 3 persons and may take place also outside of the registered place of business and seize resolutions even with the circulation method. In the supervisory board at least one person must sit, who is not to be however with the society in an employer-employee relationship. Also at a corporation foreigners may be ordered to the executive committee and be requested afterwards the residence and work permit.

With the conclusion of the articles of association before the notary the actual establishment of the corporation in Turkey begins. Exactly the same as during the establishment of the Turkish Limited the articles of association must be closed in writing, notarized and are subject to legally given minimum requirements, like e.g. the data concerning the partners, i.e. their first names, surnames, domicile and nationality. The founders can assign a lawyer for the completion of all establishment formalities by a notarially authorization, whereby they must come for the establishment not personally into Turkey. The foundation method is finished after the entry into the Register of Companies and the proclamation in the Register of Companies sheet. The turkish corporation attains its legal capacity with the entry in the Register of Companies.

The establishment of the Turkish corporation takes place within 2 – 7 days after the filing of an application. The foundation charges behave between approx. 800 and 1,600 euros, depending upon the number of partners, length of the articles of the association and the number of documents which have to be translated.

Divorce and Separation: an overview

A divorce formally dissolves a legal marriage. While married couples do not possess a constitutional or legal right to divorce, states permit divorces because to do so best serves public policy. To ensure that a particular divorce serves public policy interests, some states require a “cooling-off period,” which prescribes a time period after legal separation that spouses must bear before they can initiate divorce proceedings.

Courts in the United States currently recognize two types of divorces: absolute divorce, known as “divorce a vinculo matrimonii” and limited divorce, known as “divorce a menso et thoro”. To obtain an absolute divorce, courts require some type of evidentiary showing of misconduct or wrongdoing on one spouse’s part. An absolute divorce is a judicial termination of a legal marriage. An absolute divorce results in the changing back of both parties’ statuses to single. Limited divorces are typically referred to as separation decrees. Limited divorces result in termination of the right to cohabitate but the court refrains from officially dissolving the marriage and the parties’ statuses remain unchanged. Some states permit conversion divorce. Conversion divorce transforms a legal separation into a legal divorce after both parties have been separated for a statutorily-prescribed period of time.

Many states have enacted no-fault divorce statutes. No fault divorce statutes do not require showing spousal misconduct and are a response to outdated divorce statutes that require proof of adultery or some other unsavory act in a court of law by the divorcing party. Nevertheless, even today, not all states have enacted no fault divorce statutes. Instead, the court must only find 1) that the relationship is no longer viable, 2) that irreconcilable differences have caused an irremediable breakdown of the marriage, 3) that discord or conflict of personalities have destroyed the legit ends of the marital relationship and prevents any reasonable possibility of reconciliation, or 4) that the marriage is irretrievably broken.

Rental Agreements Under Turkish Law

By BERK ÇEKTİR
16.12.2009 Rental agreements under Turkish law (1)
I think it’s a good idea to write an article covering the general aspects of rental mat-ters. The following series of articles will cover some basics on rental agreements and will hopefully serve as a rough guide for expats, providing at least some insight into renting a house in Turkey.
I would also like to state that the purpose of this series is to cover residential rentals only; commercial rental agreements are a totally different story. As with everything, rental agreements are subject to exceptions, but seeing how many of them will not often be encountered by expats, I will not go into detail on them.
How is a rental agreement drawn up? Rental agreements are, generally speaking, not subject to any form requirement, with some exceptions.
Rent payment time Landlords usually ask for upfront payment, meaning you pay the rent on the first day for the coming week/month. The payment date and time depend totally on your agreement with the landlord. You can agree to pay your rent one year in advance or pay each month, for example.
Get a receipt upon each payment The best way to get a receipt is to make all such payments through bank transfers. In fact, receiving rent in cash if it amounts to over TL 500 per month carries a fine. A communiqué issued on July 29, 2008 says that, beginning from Nov. 1, 2008, it is a statutory obligation to receive rental income through a bank or postal office money order. The purpose of this declaration is to avoid undeclared rental income. The com-muniqué states that the landlord is obliged to collect the rent for the residential proper-ty via bank account if the monthly rental income is TL 500 or higher. Breakdowns or calculation charts drawn up by banks and postal offices are enough to substantiate payment. Documents printed out from a bank’s Web site are also accepted as proof of payment.
If you are still asked to pay in cash, don’t pay your rent unless the landlord gives you a bank account. If the receiving party does not agree to accept the money via bank transfer, get a written receipt stating: a) amount of payment; b) date of payment; c) reason for payment; d) full and correct name of receiving party; e) full and correct name of paying party; and f) signature of receiving party.
Deposit payment
Here is the point that hurts the most when it comes to a rental agreement. In the eyes of the property owner, his/her property is intact and wonderful and excellent in all
ways. It therefore needs no repair and no paint job, and everything is working proper-ly. The landlord therefore always asks for a deposit that s/he will probably not return at the end of the term. Be prepared to not get it back. I would recommend you take photos of the house on the day you move in — especially if there are items that need to be repaired. Keep the photos in your files for future use to defend your claims.
Get a separate receipt for the payment of the deposit. The rental agreement may not show that you have actually paid the deposit.
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By BERK ÇEKTİR, 21 December 2009
Rental agreements under Turkish law (2)
In my previous article, I mentioned that it is a good idea to get a separate receipt for the payment of a deposit and that a rental agreement may not be evidence that you have actually paid a deposit.
The wording in the standard agreement only states that “a sum of … TL shall be paid as deposit upon the signing of this agreement.” As you can see, it does not say that the deposit has actually been paid; it refers to a future action which should take place upon signing. This requires the tenant to get a separate receipt for the payment of a deposit or to change the wording of the agreement in line with the payment.
Increase in rent rates In regard to an increase in rent rates, I will avoid mentioning figures here as some readers will misunderstand and mistakenly take it as a determined constant num-ber. I strongly recommend that you go through a professional — and if you cannot afford it, to a Turkish friend at least — and find out the rate of rent increases through the Turkish Statistics Institute (TurkStat).
Language of the agreement You should not sign an agreement that you do not understand. It will not be clear what has been agreed with the landlord unless you are proficient in speaking and reading Turkish. I would advise you not to enter into contracts written in Turkish unless you have an excellent command of the language or you get assistance from a professional. You should contact a lawyer, or if you cannot afford it, at least consult your real estate agent about the wording of the agreement you are signing. If you have used the services of a real estate agent when renting a house, they should do this inclusive of their services. However, never forget that the real es-tate agent will be eager to close the deal and may not be too careful about transla-tion. It is solely up to you whether you trust them or not.
Don’t forget that you will be signing a valid and binding contract or agreement even though it is in Turkish. You could try to get the agreement in both languages on the same page which may help you in case of a problem
Bills for utilities I received a question from a dear reader named John, and it might be a good time to respond to this question now. It reads: “Why is it that the electricity company in Turkey forces the new tenant [or the landlord] to pay the outstanding electric bill of a previous tenant rather than pursuing the actual debtor? This matter has always seemed grossly unjust. Thanks, John.” Dear John, it is unjust, but a fact. The electricity company should get the appropriate security first when the con-tract commences and should cut off the electricity as soon as possible when bills go unpaid. As far as I know, the utility companies’ new practice is now based on an upfront payment, or in other words, “pay as you go” or “go as you pay.”
It might be a good idea to check if there is any amount due from the former tenant and ask the landlord to clear it before you move into the house. If you want to register the utilities in your name, you must submit a valid resi-dence permit to the utility company.
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23 December 2009
Rental agreements under Turkish law (3)
This will be the final part of this series on rental agreements. I will check all questions and recent legislation and update this series every year since this is a very common matter for almost all expats who are either tenants or landlords.
Notifications Notifications regarding rental agreements are generally made through a notary public. This is not a general form requirement, but using a notary public is pre-ferred. In some cases, sending notifications through a notary public is a form require-ment regardless of whether the rental agreement is a written agreement or not. In the event a tenant is making rental payments later than the agreed date of payment or if there is no payment, the landlord should notify the tenant through a notary public. The notification should refer to the payment date and proof of the late payment.
Addresses for notification The addresses in an agreement are always important so the parties to the agree-ment know each other’s addresses. During the term of the rental agreement, the address is the premises. The address of the tenant may be more important since the tenant may be subject to a notice (for instance for not paying for repairs that were made after the premises were vacated) after the agreement is terminated. In such cases, it might be a good idea to write down a second address that one can use after the termination of the agreement. This will help you avoid a large bill from a lawyer several years after the termination of the agreement.
Termination The parties can terminate the agreement according to the termination clause. This clause is usually in favor of the landlord. However, Turkish law provides a special way for the landlord to ask the tenant to vacate a rented premises. When you terminate a contract, make sure that you have really terminated it. This means that you should have written proof of termination.
Declaration for vacating Most landlords will expect the tenant to sign a declaration that the tenant will
leave the premises at the end of the term. This declaration is actually not really binding under Turkish law if it is signed only by the parties but without any official authority’s participation. Such a declaration is only valid if it is signed before a notary public on a later date, after the rental agreement is signed.
There are various precedents from the Turkish high court stating that such a dec-laration that is signed at the same time of entering into a rental agreement should not be valid. The reason that this declaration can be invalid is granted by Turkish law on the basis of balancing the parties’ power. When signing a rental agree-ment, the tenant is deemed to be the weaker party. Turkish law automatically protects tenants’ rights since the tenant may be under the pressure of the lan-dlord. Usually the tenants are ready to accept various conditions required by the landlord that they would not accept under normal circumstances.
There are several other matters to write about concerning rental agreements such as the power of signature. Make sure that you are signing the contract with the correct person.
I am planning to write a more comprehensive article later next year.
Finally, I strongly recommend that you consult a lawyer when signing a rental agreement or any declaration that may contain hidden clauses that could put you in trouble in the future.
NOTE: Berk Çektir is a licensed attorney at law and available to answer questions on the legal aspects of living in Turkey. Send enquiries to b.cektir@todayszaman.com. The names of the readers are disclosed only upon written approval of the sender.

Author: By BERK ÇEKTİR

Buying property in Turkey

The interest in real estate investments in Turkey has clearly got with private individuals as well as at company during the last years. We would like to create an overview about the real estate acquisition in Turkey with this professional contribution. However, the professional support is recommendable by a sollicitor to bend forward all potential risks of a real estate purchase in Turkey.

I. Development of the Turkish property market

The stabilisation of the economy and progress in the accession trial in the European Union during the last years has woken the interest of the foreign investors in Turkey. Real estate industry has also profited itself from this positive development. The real estate prices in Turkey rose with it from 2002 to 2006 very strongly also thanks to the domestic demand. Even if the prices do not rise from 2006 any more as strongly as during the previous years, real estate purchase is recommended in Turkey as an investment furthermore, because the real estate demand because of the young population structure of the country will increase.

II. Legal basic conditions of the real estate acquisition through foreigners in Turkey

The principles about the real estate acquisition of foreigners in Turkey were regulated originally in the land register law with the number 2644 from 1934. In 2003 the government with the law Nr. 4916 has made easier the real estate acquisition for foreigners in Turkey. With this legislation amendment foreign-juridical restrictions concerning were lifted by properties in the village law No. 442 / in 1924 (Köy Kanunu) and land register law No. 2644/1934 (Tapu Kanunu). However, the law No. 4916 was contested briefly late by the constitutional court. On it the government according to the submissions of the constitutional court has anew regulated the legal situation about the acquisition of real estate by foreigners in Turkey with the law No. 5444 from the 29.12.2005.

The law No. 5444 from the 29.12.2005 is become effective on the 07.01.2006. With this law became article. 35 of the land register law No. 2644 (Tapu Kanunu) changed and the new basic conditions of the real estate acquisition in Turkey by foreign private individuals as well as companies.

After the current legal situation foreigners can acquire real estate in Turkey with the only following restrictions:

Mutuality principle: The real estate acquisition through foreigners in Turkey follows above all after the mutuality principle. This means that citizens are entitled only from the countries which permit the acquisition of real estate to Turkish citizens as a countermove to purchase real estate in Turkey. Turkey stands with all western countries in the mutuality relation. The current list of the countries with which Turkey stands in the mutuality relation can be read up on the website of the Turkish land registry and cadastral office (www.tkgm.gov.tr) into Turkish and English language.

Surface restriction: Foreigners may acquire in Turkey up to 2.5 hectares (25,000 square metres) of property for residential purposes and trade purposes freely of licence. The licence of the council of ministers is necessary for bigger surfaces up to 30 hectares. Besides max. 0.5% of the total area of a province may be acquired by foreigners.

Local restriction: Foreigners may acquire only in areas a real estate in which a certified land-use plan or local land-use plan gives. Except these places a real estate acquisition through foreigner is not allowed. In addition, an acquisition is excluded in military locking – and security zones. An exemption confirmation of the responsible military management can under certain circumstances be necessary for the transference in the land registry.

Exception: Acquisition through heirship. The abovementioned restrictions find no application with the real estate which was transferred in the way of an heirship on citizens by states with which Turkey stands in the mutuality relation.

III. Liquidation of a real estate purchase in Turkey

According to Turkish right the conveyancing on corresponding declaration of intention of the seller and buyer is carried out exclusively in the land registry. The contract negotiation is dealt with only in the land registry.

In contrast to other many countries notaries are not involved in the liquidation of conveyancing. The parties or their sales representatives (authorised by notarial authority) must deal with the transference and other audits which is carried out in Germany predominantly by the notary.

By the transference in the land registry a sworn in translator must be available if the foreign contracting party doesn’t speak the Turkish language. For the liquidation in the land registry personal bases and information of the foreign contracting party must be prepared in the approach.

The registration in the land register of properties (flats) cannot last with foreign buyers up to 3 months because the land registry has to request before the registration by the military management whether the concerning property is in a military catchment area.

After the transference an extract from the land register called “Tapu Senedi” is handed over to the new owner of the real estate.

In case of a real estate purchase in Turkey we recommend absolutely to take up corresponding consultation with a lawyer. Because in Turkey no notary is involved in the purchase procedure, the buyer should himself check up in own interest whether there are some tax liabilities, barriers or costs in favour of from third in the land register entry of the real estate. The consultation and assignment of an experienced Turkish sollicitor can protect you also to other risks by salemen and brokers etc.

IV. Taxes by the real estate purchase in Turkey

With conveyancing of a real estate in Turkey seller and buyers pay in each case 0.15% (15 of thousandths) of the purchase amount as a land register fee. Then the buyer must announce the acquisition of the real estate of the responsible city administration and the tax office within 3 months after the transference. It is calculated yearly a real estate-tax.

The Foundatıons of Turkısh Law

Towards the end of the 1900’s, many European countries codified much of their law both public and private. On the other hand, in the Anglo Saxon countries the notion of uncodified law prevailed, and many rules are derived from customary laws and judicial precedents. Turkey has followed many European countries and codification of many European laws. Legislative branch has become the most important foundation of the Turkish law.

The Foundatıons of Turkısh Law

I. INTRODUCTİON

The order or pattern of rules that society uses to govern the conduct of individuals and their relationships is called law[1]. Law keeps society running smoothly and efficently. Law consists of the body of principles that govern conduct and that can be enforced in court or by administrative agencies. The law could also be described as a multitude of rights. A right is a legal capacity to require anothor person to perform or refrain from performing an act. Our rights flow from the Turkish Constitution, statutes and ordinances.

The foundation of the Turkish law of a current legal system may be found in Roman law or practices or moral laws applied in bygone ages. Until the 12th century, law in the western world operated on several primary levels. Collections of written laws such as the Augustinian Code or the Code of Charlemagne(both traceable to Roman law) created a broad written legal framework[2]. This basic system still prevails in many European countries and is known as the “civil” law[3].

Towards the end of the 1900’s, many European countries codified much of their law both public and private. On the other hand, in the Anglo Saxon countries the notion of uncodified law prevailed, and many rules are derived from customary laws and judicial precedents. Turkey has followed many European countries and codification of many European laws. Legislative branch has become the most important foundation of the Turkish law.

II. THE FOUNDATİONS OF TURKİSH LAW

The foundations of the Turkish law may be written or unwritten rules. The written rules may be classified in to six categories. There is only one unwritten law ın Turkish system. It is called “customary law”. We will examine the foundations of the Turkish written law first. These are as follows;

A. The Written Laws

The foundations of the Turkish written law is classified in seven categories[4]. These are constitution, statutory law, international treaty, statutory decrees, regulations, by-laws, court decisions and doctrine.

1. The Constitution

The term “constitution” refers to either the structure of the government and ıts relation to the people within ıts sphere of power or the written document setting forth that structure. A constitution is a body of principles that establishes the structure of government and the relationship of that government to people who are governed. Constitutional law is the branch of law that is based on the constitution for a particular level of government. The Turkish Constitution sets forth not only the structure and powers of government but also the limitations on those powers. Turkey has a prominent place among today’s developing countries by the length of its experience.

The Turkish Constitution establishes a tripartite government: a legislative branch to make the laws, an executive branch to execute the laws, and ajudicial branch to interpret the laws. The Turkish Constitution provides that the Turkish Parliament[5] has sole authority to enact laws for application throughout Turkey. The 7th Article of the Turkish Constitution provides that “legislative power is vested in the Turkish Parliament. Members of the Turkish Parliament are popularly elected by the Turkish citizens for a term of five years.

According to the Turkish Constitution, the basic characteristics of the Turkish Republic have been described as “a democratic, secular, and social state governed by the rule of law, in accordance with the concepts of social peace, national solidarity, and justice; respectful of human rights…”

The supremacy of the constitution is expressed clearly in the 11 the Article of the Turkish Constitution which states that “laws shall not be in conflict with the constitution.

2. The Statutory Law

The expression “law” is ordinarily used to indicate a statute enacted by the Turkish Parliament[6]. The statutory law includes this legislative acts declaring, commanding, or prohibiting conduct. Statutes are applied in all parts of Turkey and all Turkish citizens, and aligns are subject to them. An act of the Turkish Parliament to provide leave for officers medical needs is an example of a statutory law.

Statutes are applied until they are abrogated or changed by a new statute. The Turkish Paliament permits both making new laws and abrogating old ones and is an essential instrument for the regulation of modern social life. The Turkish Parliament has become the most important foundation of law.

Bills may be introduced either by the Council of Ministers or by members of the Turkish Parliament. The statute passed by the Turkish Parliament are promulgated by the President of the Republic within fifteen days. The President may, within the same period, refer the law back to the parliament for reconsideration. If the parliament again passes the statute in its original version(without new amendments), the President has to promulgate it.

3. International Treaty
The foundation of the Turkish law also includes treaties made by the Turkish Republican. International Treaties to which Turkey is a party are approved by the Turkish Parliament by enactment of a law. Technically, therefore, international treaties are statutes become enforceable after their publication in the Offical Gazette. Some international treaties become binding without the official approval of the Turkish Parliament such as economic, commercial and technical treaties(The Constitution 90.m)

4. The Statutory Decrees

The Turkish Parliament may authorize the Council of Minister by special statute, to issue statutory decrees on certain topics[7]. In these special statutes the scope, principles, and duration of the power to issue statutory decrees are clearly stated. Statutory decrees become enforceable on the day of their publication in the Offical Gazette, and they are submitted for the review and approval of the Turkish Parliament on the day of their publication. Statutory Decrees cannot subject to the fundamental liberties and political rights of individuals.

5. Regulations

The Council of Ministers has the power to make regulations that regulate for enforcement of statutes[8]. According to the Turkish Contitution, such regulations must have been examined by the Council of State, signed by the President of Republican and promulgated in the same manner as statutes. Regulations cannot contain provisions contrary to statutes. In the hierarchy of laws, therefore regulations come after statutes and contain more concrete rules than statutes.

6. By- Laws

Late in the last century, a new type of governmental structure began to develop to meet the highly specialized needs of government regulation of life. An administrative agency is a government body charged with administering and implementing legislation. An administrative agency may be prime ministry, the ministries, and public corporate bodies such as universities and municipalities. These administrative agencies have the power to make “by laws”[9], in conformity with statutes and regulations in order to regulate a particular segment of life or business.

By laws adopted by these agencies may be intended to interpret or clarify the statute and regulation.

7. Court Decisions

Courts have been created to hear and resolve legal disputes. A court’s specfic power is defined by its jurisdiction. Courts of original jurisdiction are trial court, and courts that review the decisions of trial courts are appellate courts. Turkish courts are bound to make their decisions in conformity with the statutory law, the function of the judiciary being to interpret and apply the law.

In Turkey certain precedents are follower. Thus lower trial courts are bound by some decisions of the Supreme Court and the Supreme Court in turn is bound by some of ıts own decisions.

8. Doctrine

Doctrine is a subsidiary foundations of Turkish law. The research of the legal authority, or jurist, is to discover by logical analysis the several possible interpretations of laws and to indicate their practical consequences. The studies of juristic are not an independent “source of law”, although in some cases juristic opinion leads to the formation of law.

B. Unwritten Laws: Customary Law

As unwritten law, we will examine customary law. Customary law may give us some insights into the development of law. Written laws have mainly developed from customary law. Customary law constituted and observed course of conduct of the society.

For a customary law to have legal validity in the Turkish system. It must be (1) antiquity, (2) countinuity, (3) popular belief in rightness of a custom law, (4) state sanction, (5) agreement with statutory law. In the first Article of the Turkish Civil Code states that “… there is no applicable provisions, the judge should decide according to existing customary law….”.

III. CONCLUSİON

Turkish law consists of the pattern of rules established by society to govern conducy and relationships. These rules can be expressed as constitutional provisions, statutes, administrative regulations, and case decisions. Law can be classified as substantive or procedural, and it can be described in terms of its historical origins, by the subject to which it relates, or in terms of law or equity.

The foundations of the Turkish law include constitutions, statutes, administrative regulations, bylaws, court decisions, doktrine, and customary law.

* Gazi Üniversity Economics & Administrative Faculty, Çorum/TURKEY
[1] . OVACIK, M., English & Turkish Law Dictionary, 1986, s.196.
[2] . ELİAS, Stephan/LEVİNKİND, Susan., Legal Research, How to Find & Understand The Law, 1999 US, s.3.
[3] . A legal tradition called the “common law”, quite different from that of the civil law, developed in England after the Norman conquest in 1066.
[4] . GÜRİZ, A., Introduction to Turkish Law, “ Sources of Turkish Law”, 1987, s. 6 vd.
[5] . Turkish Parliament is called “the Turkish Grand National Assembly”
[6] . GÜRİZ 7.
[7] . GÜRİZ 8.
[8] . OVACIK 272.
[9] . OVACIK 51.

Outhor: Yrd. Doç. Dr. Mustafa CAN