Newsletter | October 2022

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Uçar Hukuk & Danışmanlık Bürosu

Uçar Hukuk & Danışmanlık Bürosu

Haber Bülteni Ekim 2022

Tuesday, October 4

1-) 2023 Minimum Wage Tariff for Mediation has been published.

The fee schedule in the annex of the tariff, item by item, was created by doubling the fees of the previous year’s tariff.

2-) The decision of the Constitutional Court dated 8/9/2022 and numbered M: 2021/118, RN: 2022/98 has been published.

The Hatay 6th Criminal Court of First Instance, which applied to the appeal, claimed that the 2nd paragraph of Article 193 of the Criminal Court Law (“CCL”) was contrary to Articles 36 and 38 of the Constitution and therefore applied to the Constitutional Court for the annulment of this paragraph.

In Article 193 of the CCL,

Without prejudice to the exceptions of the Law, no hearing shall be held for the accused who is not present. If there is no valid reason for not coming, it is decided to bring the accused by force. (Annex: 25/5/2005 – 5353/28 art.) If it is considered that a decision other than conviction should be made about the accused, based on the evidence gathered, the case may be concluded in his absence, even if no interrogation has been made.

Considering that these non-conviction decisions listed at this point are the decisions taken when it is proven that the act or the crime has been committed, it has been argued that these decisions in the absence of the accused are incompatible with the right to a fair trial and the presumption of innocence, and therefore incompatible with Articles 36 and 38 of the Constitution.

In terms of such decisions, other than conviction, which may contain such consequences for the accused, it has been concluded that allowing the trial to be concluded without interrogation of the accused imposes a disproportionate and therefore disproportionate limitation on the right to a fair trial. For the reasons listed above, it was decided that the objectionable provision was unconstitutional and annulled.

3-) The decision of the Constitutional Court dated 28/7/2022 and application number 2018/32734 has been published.

The application was filed with the allegation that the property right was violated due to the incomplete determination of the easement price of the immovable, over which the energy transmission line was passed, without expropriation, and due to the judgment costs and attorney’s fee in the compensation lawsuit filed for this reason.

As a result of its examination, the Constitutional Court determined that the practice of confiscation without expropriation could not be an alternative to the ordinary expropriation procedure, as it did not contain the requirements of the protection of the right to property as stipulated by the Constitution. The Constitutional Court was convinced that a violation of the right to property had occurred and stated that this violation was caused by both the administration and the court.

 

Wednesday, October 5

1-) The decision of the Constitutional Court dated 7/4/2022 and application number 2018/26689 has been published.

The application is about the violation of the right to liberty and security of person due to the illegality of arrest, detention and detention, the freedom of expression and freedom of assembly and the right to be elected and political activity due to the fact that the charges subject to detention are related to acts within the scope of political activity.

The claim that the right to liberty and security of person has been violated due to the illegality of arrest and detention, which is one of the claims of the applicant, has been deemed inadmissible due to the failure to exhaust the remedies.

2-) The decision of the Constitutional Court dated 28/7/2022 and application number 2018/10972 has been published.

The application is related to the claim that the property right of the company owned by the municipality has been violated due to the transfer of the immovable registered to another municipality by the governorship.

The Constitutional Court, in its examination, concluded that the issue of which public authority to leave a publicly owned immovable property cannot be the subject of an individual application and therefore does not constitute a constitutional problem, so the claim is inadmissible due to lack of jurisdiction in terms of the person.

 

Thursday, October 6

1-) The decision of the Constitutional Court dated 8/9/2022 and numbered M: 2022/61, RN: 2022/101 has been published.

The relevant Civil Court of First Instance, which applied for the appeal, in its examination of the compensation case filed due to confiscation without expropriation, the first sentence of the first sentence of paragraph 1 of the Article 28 of the Law on Fees and the first sentence of the first sentence of the article 32 “The cases where the defendant is exempt from the fee. ” is unconstitutional, and applied to the Constitutional Court. These articles, whose cancellation is requested,

Article 28 – The relative fees written in the tariff numbered (1) are paid at the following times: a) (Amendment: 23/7/2010-6009/18 art.) Decision and verdict fee, One fourth of the decision and verdict fees are paid in advance, the rest is from the notification of the decision. payable within one month.

Article 32 – Unless the fees to be collected from the judicial proceedings are paid, no further proceedings will be carried out.

In its examination, the Constitutional Court found that the fact that the persons who filed a compensation lawsuit due to confiscation without expropriation were obliged to pay the “proportional decision” and “declaration fee” further aggravated the interference with the right to property, and that the immovables of the constitutionally guaranteed persons were clearly contrary to the Constitution, which the administration actually seized. In the disadvantaged situation they were in due to the transaction, it concluded that the existence of these fees was incompatible with the Constitution. In this respect, with the partial or complete acceptance of the compensation lawsuit filed due to confiscation without expropriation, the “proportional decision” and “decision fee” paid by the plaintiff can be made recoverable. Compensation lawsuits filed due to confiscation without expropriation”.

2-) The decision of the Constitutional Court dated 26/7/2022 and application number 2020/8344 has been published.

The application was filed with the allegation that the presumption of innocence was violated in the action for annulment regarding the registration process. The dismissed judge applied to the bar association regarding the request to be registered as a lawyer, but the bar association rejected this request on the grounds that there was a public action against the person.

In its examination, the Constitutional Court also concluded that the refusal decision, on the grounds of the relevant article of the Attorneyship Law, which regulates the obstacles to attorneyship, violates the presumption of innocence, as if the trial was completed and the conviction decision was finalized despite the fact that there was an ongoing trial against the applicant.

3-) The decision of the Constitutional Court dated 26/7/2022 and application number 2020/8844 has been published.

The application is about the violation of the right to life due to the death that occurred as a result of the derailment of a passenger train.

The Constitutional Court, in its examination, concluded that the competent authorities did not take adequate measures within the scope of their positive obligation to eliminate the risks to the lives of individuals due to a dangerous activity such as railway transportation. In the application examined, it was decided that the applicants’ right to life was violated in terms of material and procedural aspects.

 

Friday, October 7

1-) Two decisions on the same subject of the Fourth Chamber of the Council of State has been published.

The incident started with the rejection of the petition in the lawsuit filed for the abolition of the income tax with tax loss penalty for 2020. This decision was notified to the address of the plaintiff written in the petition and in the address registration system, but due to the impossibility of notification, a notification was made to the headman of the neighborhood. While the petition was supposed to be renewed within 30 days, since it was seen that the case was renewed with the petition that was registered much later, the plaintiff’s attorney filed an appeal against the relevant Tax Court decision, which refused to examine the merits due to the statute of limitations, on the grounds of improper notification.

In the examination, it was determined that the address where the petition rejection decision was tried to be notified was not the last address of the plaintiff in the address registration system. The 4th Chamber of the Council of State found it unlawful to reject the lawsuit in terms of time-out, based on the notification made to the previous address pursuant to 21/2, which was not included in the petition, but was served to the last address in the address registration system. If the notification cannot be made to the plaintiff’s known address, it must be made to the last address in the address registration system. For this reason, it was decided to reverse the decision in favor of the law.

 

Saturday, October 8

1-) The decision of the Supreme Court of Appeals Jurisprudence Unification Law General Assembly dated 22/04/2022 and numbered M:2021/7, RN:2022/2 has been published.

In this decision, it was decided that the date of transfer of the money to the offshore account should be taken as a basis in calculating the statute of limitations in cases regarding the collection of “offshore” receivables. For the statute of limitations to be clarified here, it is stated that interest should be charged from the date the money is transferred to the offshore account for the first time in relation to the offshore receivable, which is ruled in the cases subject to consolidation of the jurisprudence. Therefore, it has been decided that the date of transfer of the money to the offshore account should be taken as the date of the tortious act in the determination of the beginning of the statute of limitations in the lawsuits filed by the offshore account holders for the collection of their offshore receivables.

2-) The Regulation on the Amendment of the Legal Aid Regulation of the Union of Turkish Bar Associations has been published.

 

Tuesday, October 11

1-) Decision of the Constitutional Court dated 14/9/2022 and application number 2018/27032

The applicant, who is a faculty member at a state university, received 9 different administrative penalties between 2011 and 2013 and applied to the Administrative Court for each penalty. The court decided to cancel the proceedings. Although the defendant administration took the decisions to appeal and appeal, it could not get any results. During this period with the administration, the applicant started to receive psychological treatment and had to resign. The applicant made an individual application to the Constitutional Court regarding the violation of his right to protect and develop his material and spiritual existence due to psychological harassment, and the court decided that his right protected by Article 17 of the Constitution was violated.

 

Friday, October 14

1-) Decision of the Constitutional Court dated 21/9/2022 and application numbered 2019/2549

The applicant filed an individual application on 18/01/2019 on the grounds that the right to life and fair trial were violated because the necessary protection was not provided in the medical intervention of the children who were injured and subsequently died in the fire, the necessary precautions were not taken in the intervention to the fire, and the compensation case related to the incident was not concluded within a reasonable time. It is clear that the right to life has been violated due to the arbitrary and unlawful behavior of the authorities, that there was no negligence in the right to life as the firefighters arrived at the scene 4 minutes after the notification, intervened and transported the children to the health institution as soon as possible, Since the full remedy lawsuit filed in Samsun 1st Administrative Court on 12/2007 was concluded in 11 years, it was concluded that the right to life, regulated in Article 17 of the Constitution, was violated on the grounds that the state did not carry out due diligence and speedy investigation.

 

Tuesday, October 18

1-) The 7418 Press Law and Amendments in Some Laws has been published.

Along with the Press Law No. 7418, amendments were made to the Turkish Criminal Code, the Press Law No. 5187, the Electronic Communications Law and the Law on the Regulation of Broadcasts Made on the Internet and the Fight Against Crimes Committed Through These Broadcasts.

First of all, the crime of spreading misleading information to the public was added to the Turkish Criminal Code with Article 217/A.

Publicly disseminating misleading information

Article 217/A- (Annex: 13/10/2022-7418/29)

(1) Anyone who publicly disseminates false information regarding the internal and external security, public order and general health of the country, in a way that is suitable for disturbing the public peace, with the sole motive of creating anxiety, fear or panic among the people, is sentenced to imprisonment from one year to three years.

(2) In case the perpetrator commits the crime by concealing his real identity or within the framework of the activities of an organization, the penalty imposed according to the first paragraph is increased by half.

After this important regulation, if we focus on the titles that the amendment affects other laws,

Regulations have been made in the Press Law on “inclusion of internet news sites in the scope of periodicals”, “obligation to deliver and preserve the content published on the internet sites”, “regulation on the publication of the correction and reply letter” and “conditions regarding the purchase of a press card”.

In the Law on the Regulation of Broadcasts Made on the Internet and Intervention of Crimes Committed Through These Broadcasts, regulations were made on the issues of “advertising ban”, information and documents related to the national intelligence agency, the authority of the access providers union, and the obligations of social media providers.

2-) The Decision of the Constitutional Court dated 28/9/2022 and numbered M: 2019/22, RN: 2022/106 has been published.

3-) The Decision of the Constitutional Court dated 5/7/2022 and application number 2019/19788 has been published.

The application was lodged with the allegation that the right to respect for private life was violated due to the annulment of the decision by the Union of Turkish Bar Associations regarding the registration of the lawyer who was dismissed from his duty in the public sector. As a result of the examination, it was decided that the applicant’s right to respect for his private life was violated by the intervention of the judicial authorities, by the annulment of the administrative action for the registration of the person on the bar association plate, by the judicial decision.

 

Wednesday, October 19

1-) The Decision of the Constitutional Court dated 28/7/2022 and application numbered 2019/25727 has been published.

The application is related to the fact that the emergency call to the police could not be answered within a reasonable time and that the right to life was violated by not conducting an adequate investigation in the lawsuit filed against the administration for the compensation of the damage caused by the claim that the person died due to this reason. The Constitutional Court, in its examination, concluded that the right to life, which is included in Article 17 of the Constitution, has been violated in its procedural dimension.

 

Thursday, October 20

1-) The Decision of the Constitutional Court dated 28/7/2022 and application number 2019/16400 has been published.

The application was filed with the allegation that the property right was violated due to the cessation of the continuous aid provided by the Turkish Armed Forces Mehmetçik Foundation.

While examining whether the legal mechanisms that will protect the property right of the applicant and provide sufficient guarantees have been established, it has been determined that the right to property has been violated in accordance with Article 35 of the Constitution, stating that in such cases where the property rights of private persons conflict, which one will be given priority is at the discretion of the legislator and the courts.

 

Friday, October 21

1-) The Decision of the Constitutional Court dated 14/9/2022 and application number 2018/25857 has been published.

The application is about the violation of the property right because the publication of the processed work is considered unlawful. In addition, it was also mentioned that the right to be tried within a reasonable time was violated with the claim that the proceedings regarding this matter exceeded the reasonable time.

The Constitutional Court decided that the right to property protected in Article 35 of the Constitution was violated in relation to this application and decided to separate the claim of violation of the reasonable trial period from the application.

2-) The Decision of the Constitutional Court dated 21/9/2022 and application number 2020/3964 has been published.

The application was filed with the allegation that the witnesses, whose statements were used as decisive evidence in the conviction decision, were not questioned at the hearing and therefore the right to question witnesses was violated. As a result of the examination, the Constitutional Court decided that the right to a fair trial in Article 36 of the Constitution had been violated.

 

Saturday, October 22

1-) The decision numbered 2022/2840 M. and 2022/6374 RN. of the 3rd Civil Chamber of the Supreme Court has been published.

The decision examined by the Supreme Court is a decision regarding the payment of the internship fee not paid during the professional internship and the request for the collection of the annual leave fee. As a result of the assessment,, the relevant legal department of the Court of Cassation decided that the defendant could not be entitled to a remuneration in terms of the time he could not continue his internship due to the pandemic.

 

Tuesday, October 25

1-) Decision of the Constitutional Court dated 8/9/2022 and numbered M: 2021/18, D: 2022/97

Hatay 6th Criminal Court of First Instance, in the first paragraph of Article 324 of the Criminal Procedure Law No. 5271, “attorney fees to be paid according to the tariff …”, this fee may constitute a serious burden for those whose economic situation is not good (defendant), and the attorney’s fee determined In some cases, it was stated that it was even more severe than the penalty and demanded an annulment on the grounds that it was contrary to Articles 2, 36 and 135 of the Constitution. It decided to reject the objection without considering the need for an examination in terms of Articles 135.

2-) Decision of the Constitutional Court dated 14/9/2022 and application numbered 2017/25396

The applicant stated that he resigned from his position as the chairman of the board of directors of the lessee U. Anonim Şirketi during the period when the debts arising from the financial leasing agreement were being paid, and that the court decided to convict without making any evaluation on this matter, although this situation was announced in the Turkish Trade Registry Gazette and the criminal liability of the concepts of private law debt and surety. He argued that the conclusion reached on the basis of this violated the principle of the individuality of the penalties. In the court and chamber decisions, it was concluded that the applicant’s right to a reasoned decision was violated, as it did not explain how the legal responsibility of the applicant, which arises from private law and is accepted to continue even if he leaves the company management, also constitutes a basis for criminal responsibility in terms of the elements of the crime in question.

3-) Decision of the Constitutional Court dated 14/9/2022 and application numbered 2019/12803

İzmir Regional Court of Justice 8th Civil Chamber decided to reject the application for appeal on the grounds that no appeal was filed within ten days after the brief decision of the enforcement court was given against the applicant’s attorney, and that no time-limit petition was filed; The applicant made an individual application on the grounds that the short decision included a justification in order for the appeal period to start, but did not include it in the concrete case, and that they were aware of the decision upon the notification of the reasoned decision, on the grounds that the rejection of the appeal application from the time limit by starting the period from the short decision causes a violation of the right to access the court. As stated in the case-law of the Court of Cassation, the provision that does not carry the elements listed in Article 267 of the Code of Civil Procedure is not considered as a validly interpreted provision, therefore, the period for applying to legal remedy does not begin before the reasoned decision is communicated. It has been decided that the applicant’s right of access to the court has been violated, on the grounds that the time for the application to appeal begins with an annulment without explaining the reason for the decision, on the grounds that the burden that the applicant had to endure was disproportionate to the legitimate aim aimed, that is, the intervention was not proportionate.

4-) Decision of the Constitutional Court dated 21/9/2022 and application numbered 2019/24514

Although the applicant’s defense requested time to defend against the opinion on the merits; The applicant filed an application with the claim that his right to have the necessary time and facilities for defense was violated due to the rejection of his request on the grounds that the trial was protracted . Considering that the indictment should be concluded quickly, that a period of 9 months and 24 days has passed until the date the indictment is drawn up and the request for additional time has passed, and the trial was completed in 4 hearings, the Constitution does not constitute a situation that would prevent the completion of the trial in a reasonable time in giving an appropriate time to the applicant’s lawyer to prepare his defense. It has been decided that the right to have the necessary time and facilities for defense, which is guaranteed in Article 36 of the Turkish Criminal Code, has been violated.

5-) Decision of the Constitutional Court dated 21/9/2022 and application numbered 2019/42821

The applicant was detained by the decision of the Istanbul 5th Criminal Judgeship of Peace and has chronic kidney failure. His wife was called from the organ transplant center and informed that a suitable kidney was found for the applicant. The applicant’s wife explained this situation to the prison officers. has learned. The applicant applied to the Execution Judge on duty in order to inquire about the duration of the transfer to the hospital, to ask whether he made a request to the competent authorities for the transfer to the hospital, if the request was made, why the necessary actions were not taken, and to take the necessary measures to ensure his transfer to the hospital. The applicant’s objection to the decision was rejected by the Silivri High Criminal Court. The court did not inform the administration and the hospital that the applicant was registered in the waiting list for organ transplantation from a cadaver, did not submit any documents indicating that he was registered in the list of patients waiting for organ transplantation, did not make an application or make a statement regarding this matter, in short, the necessary coordination and permission could be given in order to ensure that the applicant was able to access the hospital without delay. It decided that the fact that the applicant was not referred to the organ center and that the applicant was not transplanted could not be regarded as ill-treatment on its own, as he did not do his duty.

 

Wednesday, October 26

1-) Decision of the 3rd Civil Chamber of the Supreme Court No. M: 2022/4462, D: 2022/6370

As a result of the trial held by the court of the case to object to the decision of the arbitral tribunal between the parties, the Ministry of Justice requested that the final decision regarding the dismissal of the case due to procedural benefit be overturned for the benefit of the law, and the appeal petition was decided to be accepted, and the court decided that the İzmir 8th Consumer Court, which was first opened by the plaintiff, filed on 24/03/2017 dated 2016/ Considering that the case file numbered 811 E. and 2017/467 K. did not meet the condition that the case file and the result of the request were not met, the court should enter the merits of the case and give a decision based on the result. decided to accept the request for annulment for the benefit of the law relating to this direction.

2-) Decision of the 3rd Civil Chamber of the Supreme Court No. M: 2022/4760 D: 2022/6371

In the letter of the Ministry of Justice dated 09/06/2022; In the decision of Kahramankazan District Consumer Arbitration Committee dated 09/04/2021 regarding the timeshare subject to the lawsuit , the seller/provider Eliz Hotel Convention Termal Spa Considering that the Welnes firm decided to cancel the 947,00. -TL year and modification cost, it was argued that the court’s decision in writing was contrary to the procedure and the law; demanded the annulment of the decision for the benefit of the law, the dispute is gathered at the point of whether there is hostility to the plaintiff in requesting the annulment of the consumer arbitration committee’s decision. In the concrete case, the Eliz Hotel Convention Thermal Spa complaint in the consumer arbitration committee file Since the Welnes company is shown but the plaintiff company is written in parentheses, the decision to reject the case with a written justification without searching the Trade Registry Gazette about whether the operator of the said hotel is the plaintiff or not and without making the necessary examination on the hostility is contrary to the procedure and the law, the Ministry of Justice’s annulment for the benefit of the law regarding this aspect. the request was granted.

 

Thursday, October 27

1-) Decision of the Constitutional Court dated 14/9/2022 and application number 2018/9314

The applicant filed an individual application on the grounds that his right of access to the court was violated because the lawsuit filed for the annulment of the action regarding the implicit refusal of the objection to the disciplinary penalty was rejected on the grounds that a decision on the objection has not yet been made and there is no finalized disciplinary penalty for this reason. Intervention on the applicant’s right of access to the court on the grounds that the interpretation of the application of the procedural rules regulated in the Law No. The right of access to a court within the scope of the right to a fair trial, which is guaranteed in Article 36 of the Constitution, has been violated on the grounds that it is disproportionate. he has given.

2-) Decision of the Constitutional Court dated 21/9/2022 and application numbered 2019/2236

The applicants stated that the temporary savings certificate of the Bursa Governorship dated 31/05/1932 is a transaction that gives rise to the right of ownership; stated that there is no statute of limitations in terms of the right to property, and that the right to property was violated due to the rejection of the compensation case. The Court complains about the non-execution of the decision of the Council of State, which determines the existence of the applicants’ property, and since the execution of the court decision is a positive obligation and individuals can request the execution of the decision as long as it is not enforced, therefore, the Constitutional Court has jurisdiction over the time of the application, and the non-implementation of a final judicial decision on the right to property is in line with Article 35 of the Constitution. decided that the right to property guaranteed by the article of law has been violated and that he should be sent to the Bursa 5th Civil Court of First Instance for a retrial in order to eliminate the consequences of the violation of the property right.

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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