Newsletter | November 2022

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Uçar Hukuk & Danışmanlık Bürosu

Uçar Hukuk & Danışmanlık Bürosu

Haber Bülteni

Tuesday, November 1

1-) The decision numbered 2022/2333 M. and 2022/2538 D. of the 1st Civil Chamber of the Supreme Court of Appeals has been published.

At the end of the title deed cancellation and registration case between the parties, the decision of the local court regarding the acceptance of the case was examined by the relevant legal department of the Supreme Court upon the request of the Ministry of Justice to reverse the law. As a result of the examination, due to some contradictions and inaccuracies, it was decided to overturn it for the benefit of the law.

2-) The decision of the 3rd Civil Chamber of the Supreme Court of Appeals numbered 2022/4844 M. and 2022/6372 D. has been published.

As a result of the court’s judgment of the claim between the parties, the final decision regarding the dismissal of the lawsuit was requested by the Ministry of Justice for the benefit of the law. The case is related to the request for annulment of the objection to the execution proceeding made for the collection of the chronometer price taken to the defendant. Dispute; The nature of the legal relationship between the parties is gathered at the points of hostility and statute of limitations. As a result, the Court of Cassation accepted the request for annulment for the benefit of the law, based on the examination of the relevant legal department.

 

Friday, November 4

1-) The Decision of the Constitutional Court dated 28/9/2022 and numbered M: 2022/76, D: 2022/112 has been published.

Pursuant to Article 4 of the Law on Private Education Institutions numbered 5580, which is the subject of objection, in the lawsuit filed by the plaintiff for the cancellation of the administrative action and the refusal of the application filed for the cancellation of the work permit on the grounds that he was working as a teacher in an educational institution that was closed under the state of emergency measures. It was stated that the article was in violation of the presumption of innocence, and that the person was prevented from working in private education institutions due to the fact that he was prosecuted for certain crimes, although there was no final court decision yet, and it was argued that there was a violation of articles 13, 38, 48 and 49 of the Constitution, and concrete norm control was applied.

In its examination, the Constitutional Court decided to annul the phrase “…or not being prosecuted for these crimes…” in the first paragraph of the relevant law, finding it unconstitutional.

2-) The Decision of the Constitutional Court dated 5/7/2022 and application number 2017/37897 has been published.

The application is about the violation of the right to individual application because a lawyer was arrested within the scope of a criminal investigation after a lawyer filed an individual application on behalf of some applicants regarding some of the alleged violations of rights during the curfew in Cizre.

3-) The Decision of the Constitutional Court dated 6/10/2022 and application number 2019/9692 has been published.

The application is about the violation of the property right due to the refusal to deduct the value added tax levied ex officio. In the examination made, it was concluded that the fair balance that should have been between the applicant’s right to property and the public interest was not disturbed and that the intervention was proportionate.

4-) The Decision of the Constitutional Court dated 6/10/2022 and application number 2020/34033 has been published.

The application relates to the allegations that the applicant violated the right to organize a meeting and demonstration march and the prohibition of ill-treatment, as the sit-in protest was unlawfully prevented with disproportionate force and the criminal investigation against the law enforcement officers was inconclusive for this reason, and the full remedy action was rejected. As a result of its examination, the Constitutional Court decided that the right to hold meetings and demonstrations, which is guaranteed in Article 34 of the Constitution, was violated and that non-pecuniary damages should be paid to the applicants.

5-) The Decision of the Grand General Assembly of the Supreme Court of Appeals, dated 18/02/2022 and numbered M: 2019/5, D: 2022/1 has been published.

The subject of combining the jurisprudence is whether the lawsuit filed for a claim that has not arrived due to performance is to be rejected on the procedural or on the merits. As a result of its evaluation, the Grand General Assembly of the Supreme Court of Appeals for Consolidation of Jurisprudence stated that the lawsuit filed for a receivable whose time for performance has not arrived is in the nature of an early lawsuit and that there is no legal benefit in filing this lawsuit yet. For this reason, it is stated that there is no legal benefit, which is among the conditions of the case in clause 114/1-h of the Code of Civil Procedure, and in this case, the case is not on the merits, but on the CCP 115/2. In accordance with the article, it was decided unanimously that it should be rejected out of procedure, and the differences in case law were eliminated.

 

Tuesday, November 8

1-) Regulation on the Establishment and Duties and Working Procedures and Principles of the Executive Offices

In provinces with an annual incoming file number of one hundred thousand or more With the proposal of the Department of Enforcement Affairs and the approval of the Minister of Justice, one or more departments of enforcement may be established under the Department of Enforcement, by determining the jurisdiction. The Directorate of Enforcement Offices has duties such as keeping the enforcement and bankruptcy offices under surveillance and supervision, ensuring that the enforcement and bankruptcy offices operate in an efficient, harmonious and orderly manner, and approving the division of labor. This regulation entered into force on 8 November 2022, and transactions started and not concluded before this date are concluded in accordance with the provisions of the legislation to which they are subject before the effective date.

2-) Regulation on Investigation and Investigation of Civil Aircraft Accidents or Serious Incidents (Hky-13)

The purpose of this regulation is to report, investigate and investigate civil aircraft accidents or serious incidents, and to publish inspection reports on the prevention of possible accidents and serious incidents; to determine the procedures and principles regarding these, as well as duties, powers and responsibilities.

3-) Communiqué Amending the Communiqué on the Procedures and Principles Regarding the Implementation of Article 376 of the Turkish Commercial Code No. 6102

It has been changed to not take into account foreign exchange losses arising from unfulfilled foreign currency liabilities in the calculations regarding capital loss or insolvency, until 1/1/2024.

 

Wednesday, November 9

1-) Decision of the Constitutional Court dated 28/6/2022 and application number 2018/20514

The court decided that the right to respect for private life, which is guaranteed in Article 20 of the Constitution, was violated on the grounds that the prohibition of the applicant, who is a lawyer, from the duty of defense counsel for a period of 1 year, even though it was limited to the crime that was the subject of the prosecution, had negative effects on the applicant’s professional life, reputation and social/professional relations.

2-) Decision of the Constitutional Court dated 4/7/2022 and application number 2019/33243

It is clear that the termination of the employment contracts of the applicants on the grounds that the trust relationship between the employer and the employer has deteriorated due to the shares and likes on their social media accounts, and the sanction of dismissal without providing a relevant and sufficient justification is severe, and it has been decided that the freedom of expression is violated. 

3-) Decision of the Constitutional Court dated 27/7/2022 and application number 2018/37198

The applicant, D.O. He was born in 2005 and the other applicants are D.Ö.’s parents. When D.Ö. came to study on the computer at the Siteler Police Station on 11/09/2013, he had a fight with another child who was there, the police officer OD warned the applicant, after the applicant cursed the police officer, the police officer OD beat the applicant, Mersin Cumhuriyet The Office of the Chief Public Prosecutor initiated an investigation, and as a result of the public lawsuit, it was decided that police officer OD be sentenced to imprisonment for the crime of willful injury and that the announcement of the verdict be postponed (“ HAGB ”), the family objected to this decision and the court rejected this decision. The applicant claimed that the prohibition of persecution was violated due to the ineffective conduct of the investigation and the HAGB decision in the public case. It was decided that the decision of the HAGB violated the prohibition of torture.

4-) Decision of the Constitutional Court dated 27/7/2022 and application numbered 2019/41092

The applicant claimed that he was de facto detained in the police room in the courthouse for 20 minutes without any legal basis and that his right to personal liberty and security was violated due to the unjustified detention at the courthouse. It has been decided that the right to personal freedom and security has been violated on the grounds that he was kept in detention.

5-) Decision of the Constitutional Court dated 3/11/2022 and application numbered 2019/3078

The applicant claimed that his freedom of association was violated because being the head of a branch of an association was considered as evidence in the conviction for the crime of being a member of a terrorist organization, and his right to a trial within a reasonable time due to the length of the proceedings. He stated that even his statement could not be qualified as a terrorist act unless it was shown on the basis of concrete evidence that it caused or incited violence and that he was under the protection of freedom of expression. as evidence, it was decided that the freedom of association had been violated.

6-) Decision of the Third Chamber of the Council of State

In the dispute in which the plaintiff is represented by proxy and despite the decision to abolish the assessment, which is the subject of the case, the Tax Court should decide on the attorney’s fee in favor of the defendant. it was decided to break.

 

Thursday, November 10

1-) Decision on Providing Visa Exemption for Hungarian Citizens of Identity Card Holders for Touristic Travels and Transit Passes with a Maximum of 90 Days of Residence in Every 180 Days (Decision Number: 6368)

Visa exemption is provided for Hungarian citizens for their touristic trips and transit passes to Turkey with a maximum residence period of 90 days every 180 days.

2-) Decision of the 10th Civil Chamber of the Supreme Court

In the lawsuit filed by the plaintiff company with a request for negative clearance, although the court decided to reject the case on the grounds that there was no notification made to the company, since it is clear that this administrative fine was imposed on behalf of the plaintiff company, the court made the necessary investigation and decided based on the result, considering that the request in question was for negative clearance. While it should be given, the fact that a provision has been made in writing is against the procedure and the law and is the reason for annulment.

 

Saturday, November 12

1-) Decision of the Council of State to Unify Jurisprudence (M: 2021/6, D: 2022/2)

After the tax inspection was concluded and assessment was made, it was decided by a majority of votes to unify the jurisprudence, in line with the fact that a precautionary attachment procedure could not be established for the debtor in accordance with the 1st clause of the 13th article of the Law No. 6183 on the Collection Procedure of Public Claims.

 

Tuesday, November 15

1-) The Decision of the Constitutional Court dated 21/9/2022 and application number 2019/25604 has been published.

The application is about the violation of the right to respect for private life and the freedom of communication, due to the fact that the mobile phone correspondence of the applicant working in a private company with a colleague was examined by the employer and the employment contract was terminated on the basis of these correspondences. As a result of its examination, the Constitutional Court decided that the right to respect for privacy that which is guaranteed in Article 20 of the Constitution, and the freedom of communication guaranteed in Article 22 of the Constitution, were violated and that a retrial should be held in order to eliminate the consequences of these rights violations.

2-) The Decision of the Constitutional Court dated 6/10/2022 and application number 2018/23070 has been published.

Application; based on the allegations that the right to live due to the death of the convict, for whom the necessary measures to protect his life were not taken, the ban on ill-treatment was violated due to the fact that the execution was not postponed despite the terminal illness and that an effective criminal investigation was not conducted about the incident. On the basis of the examination and the reasons explained, it was decided that the prohibition of treatment incompatible with human dignity, guaranteed by Article 17/3 of the Constitution, was violated.

 

Wednesday, November 16

1-) The Decision of the Constitutional Court dated 18/10/2022 and application number 2018/5104 has been published.

The application is about the claim that the freedom of expression of the applicant, who is convicted in the penitentiary institution, was violated due to the fact that the document he wanted to send via mail was not sent because it was deemed objectionable. The applicant wanted to send a letter, a text and some caricature drawings to a person outside the Penitentiary Institution. Due to the content of the documents, it was decided by the Letter Reading Commission to submit them to the Disciplinary Board and the process started. As a result, the Constitutional Court concluded that the freedom of expression guaranteed in Article 26 of the Constitution had been violated. It was decided to send the decision to the relevant Enforcement Judge for a retrial in order to eliminate the consequences of the violation

2-) The decision numbered 2022/4845 M. and 2022/6373 D. of the 3rd Civil Chamber of the Supreme Court of Appeals has been published.

 

Thursday, November 17

1-) The Decision of the Constitutional Court dated 28/9/2022 and numbered M: 2021/130, D: 2022/110 has been published.

In Articles 9 and 12 of the Law No. 7339 on the Amendment of the Cooperatives Law and Some Laws, “…is regulated by a regulation.” Some of the deputies demanded the annulment and suspension of their execution on the grounds that the phrases were unconstitutional. As a result of its examination, the Constitutional Court decided that the phrase in article 9 was not unconstitutional, but the phrase in article 12 was unconstitutional in terms of the phrase “…wage tariffs…”, therefore it was annulled and the decision came into force 6 months after the publication of the Official Gazette. has decided.

2-) The Decision of the Constitutional Court dated 18/10/2022 and application number 2018/36354 has been published.

The application relates to the allegation that the applicant, who is a public official, was punished with a disciplinary penalty for a post she made on her social media account, violating her freedom of expression. The Constitutional Court, together with its assessment and the reasons it explained, decided that the freedom of expression guaranteed in Article 26 of the Constitution had been violated and a retrial was required.

3-) The decision of the Council of State Tax Case Chambers numbered 2022/6 M. and 2022/10 D. has been published.

Upon the vacancy of the notary public offices for which they are clerks, it is stated that the attorney fee paid to the plaintiffs who managed the notary public for a while pursuant to Article 33 of the Notary Law No. 1512 is not subject to tax, and if it is subject to tax, which of the income elements specified in Article 2 of the Income Tax Law No. 193 should be taxed. It was decided that the Tax Procedure Law No. 213 could not be examined within the framework of correction and complaint provisions.

 

Friday, November 18

1-) The Main Statute of the Turkish E-Sports Federation has been published.

 

2-) The decision of the 2nd Civil Chamber of the Supreme Court of Appeals numbered 2022/7761 M. and 2022/7783 D. has been published.

 

3-) The decision numbered 2022/10141 M. and 2022/9947 D. of the 9th Civil Chamber of the Supreme Court of Appeals has been published.

The dispute in question is about whether a decision was made in the attorney’s fee decided in favor of the plaintiff in terms of files considered as a serial lawsuit, without considering this issue. As a result of its examination, the Court of Cassation did not consider it appropriate to impose a full attorney’s fee, while a 50% attorney’s fee should be awarded in serial cases filed up to 50 files, pursuant to Article 22 of the Attorney’s Minimum Fee Tariff.

 

Tuesday, November 22

1-) Decision of the Constitutional Court dated 28/9/2022 and numbered M: 2021/107, D: 2022/109

The applicant, who is the Ankara 7th Commercial Court of First Instance, states that the first paragraph of Article 20 of the Civil Procedure Law No. 6100 states that “…Otherwise, the lawsuit is deemed not filed and the court that has decided on lack of jurisdiction or jurisdiction will decide on this matter ex officio.” And in the second paragraph of Article 331 of the same law, “…If the case has not been continued in another court after the decision of lack of jurisdiction or jurisdiction, the court where the case was opened upon request, determines this situation from the file and condemns the plaintiff to pay the costs of the trial.” It was stated that the rules caused a contradiction, that the different practices regarding the rule injure the legal security and that the ex officio verdict of the litigation costs obliges the plaintiff to continue the case, that this situation is incompatible with the freedom of seeking rights, and that the judgment of the litigation expenses upon request contradicts the provisions of the Constitution regarding public revenues and fees. It was alleged that it violated Articles 2, 10, 11, 13, 36, 138, and 141. The principle of proportionality, which is guaranteed in Article 13 of the Constitution, consists of three sub-principles: convenience, necessity and proportionality. For this reason, it has not been concluded that it is contrary to Articles 13 and 36, and it has not been found to be related to Articles 10, 11, 37, 138 and 141.

 

Saturday, November 26

1-) Decision of the Grand General Assembly of the Supreme Court of Jurisprudence, dated 03/06/2022 and numbered M: 2021/1, D: 2022/3

When the debtor, who is subject to enforcement proceedings, objects to the proceedings by proxy, it was decided by a majority of votes that the petition for annulment of the objection to be filed by the creditor should be notified to the principal in order to ensure the continuation of the enforcement proceedings, which was stopped upon the objection.

 

Tuesday, November 29

1-) The Decision of the Constitutional Court dated 10/2/2022 and application number 2017/35282 has been published.

The application is about the violation of the right of court due to the fact that the creditor was not informed of the proceedings regarding the complaint regarding the enforcement proceedings made through foreclosure specific to bills of exchange. As a result of the examination it has made and with the reasons it has explained, the Constitutional Court has decided that the applicant’s failure to participate in the dispute by not being informed about the case (complaint) violates the right of the court and a retrial is required.

2-) The decision numbered 2022/3256 M. of the 6th Civil Chamber of the Supreme Court has been published.

In the relevant decision of the Court of Cassation, it has been determined that the severance pay paid to the worker is calculated over the wages on the date of termination of the employment contract and that the contractors are problematic against the employer in proportion to the period in which the worker was employed from all of this severance pay.

3-) The decision numbered 2022/4834 M. of the 7th Civil Chamber of the Supreme Court has been published.

In its relevant decision, the Court of Cassation explained that the lawsuit was filed with the claimant’s request for mesne profits, that the court decided to partially accept the request and this situation was misjudged. The defendant administration has taken action within the scope of Law No. 6306, and the existence of unjust seizure cannot be mentioned. The claimant’s request was envisaged as a receivable arising from the incomplete provision of rental assistance within the scope of the Law No. 6306 on the Transformation of Areas Under Disaster Risk.

 

Friday, November 30

1-) The Decision of the Constitutional Court dated 13/10/2022 and numbered M: 2020/5, D: 2022/115 has been published.

Some deputies claimed that the relevant provisions in the Presidential Decrees No. 50 and No. 4 were unconstitutional, and the Constitutional Court determined this contradiction and decided to annul the relevant provisions.

2-) The Decision of the Constitutional Court dated 29/9/2022 and application number 2021/47168 has been published.

The application relates to the allegations that the right to life and the prohibition of ill-treatment have been violated due to the decision to deport the foreigner sentenced to death in his country to a third country that has not yet been identified, and the allegations regarding the possible consequences of the deportation in the case brought against this decision. Based on the reasons it explained and its examinations, the Constitutional Court decided that the right to life guaranteed in Article 17 of the Constitution and the prohibition of ill-treatment had been violated and stipulated that a retrial should be made.

You can contact us here for detailed information on the subject.

Uçar Law & Consultancy Office

Diclaimer:

This article is prepared by Uçar Law & Consultancy Office for information purposes only, and the information and visual materials contained in it cannot be used, reproduced, published, transmitted to a third party or translated without prior written permission from us. This legal memorandum is not a comment or legal opinion and was prepared on the publication date and our attorney’s office is not responsible for its failure to
update continuously.”

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