Amendments To Certain Laws With The 7th Judicial Package
Law No. 7445 on the Amendment of the Execution and Bankruptcy Law and Certain Laws, which amends three (3) articles of the Attorneyship Law No. 1136, was published in the Official Gazette dated 05.04.2023 and numbered 32154.
Article 10 of the aforementioned Law added the following paragraph to Article 43 of the Attorneyship Law
“In order to cover the expenses of lawyers to establish an office, financial support is provided by credit and financial institutions and lending public institutions and organizations under favorable conditions. The procedures and principles regarding the provision of support shall be determined by the Ministry of Justice in consultation with the Banking Regulation and Supervision Agency and the Ministry of Treasury and Finance.”
Article 11 of the Law amends the phrase “half of the fee” in the second sentence of the first paragraph of Article 65 of the Attorneyship Law as “no fee”.
Article 12 of the Law amended the phrase “two” in subparagraph (a) of the first paragraph of Article 180 of the Attorneyship Law as “three”.
Apart from these, some of the amendments, the details of which are given in the attached comparison table, are stated below:
Law No. 2004 on Execution and Bankruptcy;
An article titled “seizure at the residence” was added to the Enforcement and Bankruptcy Law. Accordingly, it is regulated that if the execution manager determines that the place where the seizure is requested is a residence, he/she shall decide to seize at this place and submit this decision for the approval of the execution court, the court, at the end of the examination to be made on the file within 3 days at the latest from the date of submission of the file, if it is understood that the place where the seizure is requested is a residence, it shall decide definitively to approve the decision and seizure procedures shall be carried out upon notification of this decision to the execution office. If it is understood that the place where the seizure is requested is not a residence, the court will definitively revoke the decision regarding the seizure in the residence, and upon this decision, the executive director will make a new decision on the existing seizure request. In addition, if it is understood that the place to be seized upon the court’s approval decision is not a residence, the seizure will continue, but if it is understood that this place is a residence and the debtor does not consent to the seizure, the seizure will be terminated during the seizure process carried out upon the seizure decision issued regarding a place that is accepted not to be a residence. This provision will not apply to the decisions regarding the seizure of the dwelling and the precautionary seizure of the seized goods issued before the date of entry into force of the regulation on seizure in the dwelling.
Personal belongings belonging to the debtor and family members living under the same roof and all household goods that serve the common use of the family are listed among the goods that cannot be seized.
It is regulated that attachment cannot be made in excess of the receivable subject to enforcement proceedings.
An article titled “liquidation of goods that no longer need to be kept” was added to the Enforcement and Bankruptcy Law.
Amendments to Law No. 2313 on the Control of Narcotic Drugs;
It has been regulated that the confiscation of narcotic substances will be decided by the criminal judgeship of peace at every stage of the investigation, provided that the samples to be taken in accordance with the procedure determined in the regulation are kept after the final reports of the narcotic substances are taken, the narcotic substances decided to be confiscated will be delivered to the local local administrative authority under seal for due process, the narcotic substances taken as samples will be confiscated with the judgment, but will be delivered to the local administrative authority after the finalization of the judgment.
It has been regulated that these amendments will also be applied in terms of drugs or stimulants confiscated before the date of entry into force of the Law.
Amendment to the Turkish Civil Code No. 4721;
In terms of the institution of restriction of liberty for protection purposes, it has been regulated that the court will make a decision within two days at the latest following the completion of the investigation in the files brought before it.
Amendment No. 5235 to the Law on the Establishment, Duties and Powers of the Courts of First Instance and Regional Courts of Appeal;
In disputes that can be measured in money, which are heard by a single judge in the commercial courts of first instance, the value of the case has been increased from five hundred thousand liras to one million liras and it has been regulated that the monetary limit in question will be increased by the revaluation rate every year.
Some amendments to the Turkish Penal Code No. 5237;
The lower limit of the penalty for the offense of migrant smuggling has been increased from 3 to 5 years.
For the offense of manufacturing and trafficking in narcotic drugs or stimulants, the penalty for the offense of manufacturing and trafficking in synthetic cathinones and their derivatives, synthetic opioids and their derivatives, amphetamine and its derivatives will be increased by half.
It is regulated that the postponement decision made by the public prosecutor in the crimes of purchasing, accepting or possessing drugs or stimulants for use or using drugs or stimulants will also be notified to the law enforcement units. The extension period for treatment or probation measures has been increased to 2 years.
Amendments to Law No. 5271 on Criminal Procedure
It has been regulated that the investigator assigned for the crime of manufacturing and trafficking in drugs or stimulants, regardless of whether it is committed within the framework of the activity of an organization, can make audio or video recordings for the purpose of collecting evidence in public places and workplaces with the decision of the judge.
It has been regulated that if it is concluded that a decision other than conviction, non-punishment and security measures should be made about the defendant according to the evidence collected, the case may be concluded in his absence, even if he has not been interrogated.
It is regulated that the decision to defer the announcement of the verdict can be objected to and the objection authority will examine the decision and verdict; if it detects a procedural or substantive violation of the law, it will remove the decision and verdict by showing its justification and send the file to the court for the necessary action.
It is regulated that in the objection of the Chief Public Prosecutor’s Office of the regional court of justice against the final decisions of the criminal departments of the regional court of justice, in order to object against the defendant, there must be a fundamental error that will affect the decision, this objection will be notified to the last address of the defendant or defense counsel determined in the case file, and those concerned may submit a written response within seven days from the notification.
Amendments to Law No. 5275 on the Execution of Sentences and Security Measures;
An article on the postponement of the execution of the sentence of a female convict due to the illness of her child was added.
Article 191 of the Turkish Penal Code stipulates that those convicted of the offense of buying, accepting or possessing drugs or stimulants for use or using drugs or stimulants must participate in treatment and rehabilitation programs, and provisions have been introduced for the implementation of such programs.
Amendments to the Turkish Commercial Code No. 6102;
The amount and value of the commercial cases to which the simple trial procedure is applied has been increased to one million Turkish Liras.
It has been stipulated that mediation is a mandatory condition of litigation in the cancellation of objection, negative assessment and reclamation cases, the subject matter of which is a sum of money.
Amendments to Law No. 6325 on Mediation in Civil Disputes;
It is regulated that at the end of the mediation activity, if the parties are not present, the mediator shall inform the parties who are not present by using all means of communication.
An article on the execution of international settlement agreement documents has been added.
It is regulated that disputes regarding the transfer of immovable property or the establishment of limited real rights on immovable property are eligible for mediation.
It has been regulated that the agreement document signed by the parties and their lawyers and the mediator, and by the lawyers and the mediator for commercial disputes, shall be deemed to be a document in the nature of a judgment without seeking a certificate of enforceability, except in cases where the law requires a certificate of enforceability.
It is regulated that the mediator shall also inform the main party about the assignment, even if the mediator has a lawyer.
After the application to the mediation office, in the event that an enforcement proceeding is initiated against the applicant party regarding the subject matter of the dispute, it is regulated that the provision of the second paragraph of Article 72 shall be applied if the applicant party files and requests a negative declaration lawsuit against this proceeding within two weeks from the date of the final report in accordance with Article 72 of the Law No. 2004.
A number of disputes are included within the scope of mandatory mediation. These are
a) Disputes arising out of the lease relationship, except for the provisions regarding the eviction of leased immovables through execution without judgment in accordance with the Law No. 2004.
b) Disputes regarding the division of movables and immovables and the elimination of partnership.
c) Disputes arising from the Condominium Law dated 23/6/1965 and numbered 634.
ç) Disputes arising from the right of neighbor.
In addition, regarding the enforceability of the agreement document issued for these disputes, it is obligatory to obtain a commentary from the civil court of peace where the immovable property is located for the agreement documents related to the immovable property, and from the civil court of peace where the mediator is assigned for other agreement documents. In the examination to be made by the court in terms of the agreement documents related to the immovable property, it is stipulated that the court will inspect the content of the agreement in terms of whether it is suitable for mediation and enforcement and whether the restrictions, procedures and principles in the laws regarding the immovable property are complied with, and in this context, it may request information or documents from institutions or organizations and may hold a hearing when necessary.
Amendments to Law No. 6384 on the Settlement of Certain Applications to the European Court of Human Rights by Payment of Compensation;
Article 4 on the Commission and its working principles has been amended.
It has been regulated that individual applications pending before the Constitutional Court exclusively as of 9/3/2023 on the grounds that investigations and prosecutions under criminal law, private law and administrative law have not been concluded within a reasonable time and court decisions have been executed late or incompletely or not executed at all, will be examined by the Commission upon the application to be made within three months from the notification of the inadmissibility decision due to non-exhaustion of remedies.
Amendment No. 7036 to the Labor Courts Law;
Mandatory mediation has been regulated as a condition of litigation in cases of cancellation of objection, negative determination and reinstatement filed for employee or employer receivables and compensation based on the law, individual or collective labor agreement, and reinstatement. (Note: Pursuant to Provisional Article 1, it applies to the cases to be filed on and after 1/9/2023)
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