Legislative Proposal on Amendment to Some Laws as a Part of the 7th Judical Reform Package

1. Art. 79/a of the Enforcement and Bankruptcy Law: Should an enforcement director conclude that the place where the lien is requested is a residence, he/she shall decide to make a lien on the place and immediately submit the file to a Court of Enforcement for the affirmation of the decision. The court shall deliver a definitive ruling to affirm the decision if it is established that the place requested to be seized is a residence, as a result of a review to be carried out on the file within three days at the latest from the date of deposit, otherwise it shall be removed. Should it be established that the place foreclosed is a domicile and the debtor does not consent to the lien on the domicile, the foreclosure procedures shall be terminated and the provisions of the first and second paragraphs shall be imposed for the subsequent procedures. The provisions of this article shall not apply to the provisional attachment.

Comment: Under the new regulation to be introduced with art. 79/A of the EBL, it shall not be possible to foreclose on residences without a court order. It is noted that any foreclosure decision made by an Enforcement Officer shall only enter into force after it is affirmed by a Court of Enforcement.

2. Art. 85/1 of the Enforcement and Bankruptcy Law: A debtor's movable properties, immovables, and receivables and rights shall not be seized in a way that exceeds the amount sufficient for all receivables of the creditor, including principal, interest and expenses.

Comment: Under the current legislation, a debtor's movable properties, immovables, and assets related to receivables shall be foreclosed to the sufficient extent for all the receivables. The judicial reform package is intended to impose a ban on the overflow of foreclosure that would be made at the time of foreclosure.

3. Art. 82/3 of the Enforcement and Bankruptcy Law: Personal belongings of a debtor and his/her family members living in the same household and all of their household goods serving the common use of the family shall not be foreclosed except for valuables such as money, negotiable instruments, gold, silver, stones, antiques or jewellery.

Comment: The current version of paragraph three includes the following provision on properties and rights that shall not be foreclosed: “Properties essential for a debtor and his/her family members living in the same household and any one of the properties if there is more than one property used for the same purpose.” The new legislation to be introduced stipulates that personal belongings of family members and all household goods serving for common use shall be among the goods that are not permissible to be foreclosed under Article 82/3 of the Enforcement and Bankruptcy Law instead of the phrase “essential goods”, which are tangible and difficult to be determined in absolute terms at the time of foreclosure.

The ten-day appeal and term of appeal regarding bankruptcy, removal of bankruptcy, ending of bankruptcy, and composition in bankruptcy shall be raised to two weeks upon the entry of the judicial package into force. The proposal is intended to bring about uniformity in terms of appeal.

4. Art. 5/A of the Turkish Code of Commerce It is a cause of action to have sought assistance from a legal mediator before filing a lawsuit for the reversal of an appeal of commercial nature, and negative declaratory and restitution cases.

5. Art. 26 of the Code No. 7036 on Labour Courts Having sought assistance from a legal mediator is an obligation under the Law for employees and employers to file a lawsuit regarding employment contracts, compensation and re-employment, and the new legislation also stipulates that one shall also seek assistance from a legal mediator for the reversal of an appeal of commercial nature, and negative declaratory and restitution cases.

6. Art. 65 of the Law No. 1136 on Legal Profession: The annual sum of the bar association’s fee shall be set by the general assembly and be paid in two equal instalments in January and July of each year. So much so that the bar association’s fee shall not be collected in the first five years of the profession. For any bar association’s fee not paid in due time, the Turkish Central Bank’s yearly default interest shall be charged to the extent of the interest rate charged for rediscount transactions.

Comment: The proposal stipulates that the bar association’s fee should not be collected in the first five years of the profession in an effort to extend financial aid to attorneys at law who have just started practising law.

7. Art. 18/B - (1) of the Law No. 6325 on Mediation for Legal Disputes

a) The new legislation is set to introduce an obligation to seek mediation for any disputes arising from rental relationships in addition to provisions regarding the evacuation of the rented immovables by execution without judgement,

b)   any disputes regarding the allocation of movables and immovables and the dissolution of a partnership,

c) any disputes arising from the Law No. 634 on Property Ownership,

d)   and any disputes arising from the neighbouring rights.

8.Art. 188/4-a of the Turkish Penal Code No. 5237 The penalty to be imposed shall be raised by half should the narcotic substances or stimulants set out above are heroin, cocaine, morphine, base morphine, synthetic cannabinoids and its derivatives, synthetic cathinone and its derivatives, synthetic opioid and its derivatives or amphetamine or its derivatives.

Comment: As they are widely popular in Türkiye, amphetamine derivatives, synthetic cathinone, synthetic opioids and their derivatives have been added to the list of qualified forms of drug production and trafficking. The sale of methamphetamine and derivatives and MDMA substances is punishable by no less than 10 years under the Turkish Penal Code whereas the new regulation stipulates to raise it to 15 years.

Art. 41 of the Law of Criminal Procedure No. 5271 A petition for reinstatement shall be submitted to the court, which is to take procedural actions when the deadline is met, within two weeks from the removal of the barrier.

Comment: Under the current legislation, the term to file a petition for reinstatement is seven days starting from the removal of the barrier. The term shall be extended to two weeks.

9. Art. 193/2 of the Law of Criminal Procedure No. 5271 A conviction may be terminated in the absence of a case even if a defendant has yet to be questioned should it be concluded that there is no need to impose a sentence and that an order other than a safety order should be imposed.

Comment: The article 193/2 of the current version of the Turkish Penal Code reads as follows:” Should it be concluded that an order other than conviction shall be imposed on the defendant based on the evidence collected, the case may be terminated in absentia even if the defendant has yet to be questioned." Under the proposed amendment, a case shall not be terminated in absentia without questioning a defendant in case there is no need to impose a sentence and an order is to be issued for safety.

CONCLUSION

Legislative proposals made as a part of the 7^th Judicial Reform Package are going to be submitted to the main committee after being incorporated into the parliament’s agenda by the Speaker’s Office of the Grand National Assembly of Türkiye, and going to be submitted to the General Assembly of the Grand National Assembly of Türkiye following the committee deliberations. The General Assembly discussions are held over the entire legislative proposal at first and then the articles are voted on. Following the voting in the General Assembly, the amendments proposed under the 7th Judicial Reform Package are to be passed by the absolute majority of the policy-makers whereas the absolute majority must not be less than ¼ (151) of the total number of members of the Parliament. The proposed amendments shall be passed after securing the required majority of the votes. It shall then be submitted to the Presidency for publication in the Official Gazette within 15 days. The legislative proposals that the President affirms to be published in whole or in part shall enter into force after being published in the Official Gazette.

REFERENCES:

1. Chart of Comparison for the Draft Legislative Proposal on Amendments in Some Laws and Decree Law No. 375