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Legal Highlights of 2001-02 in Turkey
Virginia Keyder
Lecturer in Law
Bilgi University
Istanbul, TURKEY
JURIST Chief Correspondent

2001 and early 2002 have perhaps been two of the most important years in recent history for Turkish law reform. While 1995 saw a raft of laws and decrees passed in anticipation of Turkey's Customs Union with the European Community, the changes of 2001 were arguably more far-reaching in terms of the basic structure of law as it potentially affects the lives of Turkish citizens on the one hand, and its foreign relations (most notably with the EU) on the other. Topping the list of law reforms in 2001 were changes to the Constitution and a revision of the Civil Code. Advances in various areas of human rights law occupied a significant place in the changes effected in these foundational laws. Structural changes were also made in the legal framework of the economy with the so-called "Dervis" laws, after the reformist Kemal Dervis, conscripted from the World Bank to render Turkey IMF-compliant.

Following Turkish Law

Following developments in Turkish law is nowhere near as difficult as it used to be. Thanks to the keen interest the EU takes in tracking the progress of its candidates in their quest for harmonization with the EC/EU acquis, it is now possible to follow legal developments in all candidate countries, Turkey included, through the Enlargement Directorate General. In addition, the Ankara Office of the EU has an informative website, with links other useful sites and documents, including the 2001 Report on Turkey issued in November of last year. The Turkish Government also provides considerable coverage through a variety of English-language websites, including that of the Ministry of Foreign Affairs, which also includes a December 2001 report on measures taken by the Turkish government on the issue of terrorism) and the Ministry of Culture, which devotes considerable space to translations of Turkish copyright law and regulations.

Changes in legislation regarding human rights have been closely followed in a number of international law sites. Among these are the Council of Europe, which noted in May of 2001 that Turkey had enacted legislation establishing a new Human Rights Directorate within the office of the Prime Minister (see Honouring of obligations and commitments by Turkey for an exhaustive treatment of issues and developments in this area). Special reports by Amnesty International (whose office was recently reopened in Istanbul after being closed for 22 years), Human Rights Watch, the UN and the US State Department provide in-depth documentation of changes in this field. Also informative is the site of the Turkish industrialists association.

The Constitution

The 1982 Constitution, widely considered to be a 'military constitution', remains the basic document, but amendments to 33 articles of that Constitution in 2001 are considered to be an indication that Turkey is attempting to move away from authoritarian rule towards some recognition of human rights. If applied in the spirit of the EU's Copenhagen Criteria (which they roughly set out to meet), they signal a positive shift, particularly given the trend away from fundamental constitutional rights exhibited in several Common Law countries over the past two years and particularly after September 11. Though riven with exceptions designed to protect the indivisible integrity of the state, they contain important rights for detainees (Art. 19), protection of privacy, domicile and secrecy of communication (Arts. 20 and 21, and Article 22 respectively), freedom of movement (under an amended Article 23, citizens may no longer be prevented from leaving the country on the basis of national economic considerations), freedom of thought and expression (fifth preamble and Article 26), association (Art. 33), demonstration ( Art. 34), the right to a fair trial (Art. 36), and the right to exclude illegally obtained evidence (38). Article 38 also provides that no one may be incarcerated for solely on the grounds of civil liability in contract.

Article 41, reflective of changes contained in the Civil Code as discussed below, adds to the well worn phrase "The family is the foundation of Turkish society", "and is based on the equality of the spouses". Similarly Article 66 allows citizenship to be passed equally by a Turkish mother and a Turkish father (previously children with foreign fathers were subject in their quest for Turkish citizenship to different laws). Another important provision regarding the rights of foreigners is found in Article 74 , which provides that non-citizens shall have the right to petition the government The text of the amended Constitution is online.

In February, 2002, laws were enacted to implement constitutional changes. The package included amendments to Turkey's Criminal Code and Code of Criminal Procedure, the Anti-Terror Law, and the Law on State Security Courts. Further laws were enacted in March dealing with torture, political parties and the use of languages other than Turkish in the press.

The Civil Code

Changes of 2001 to the Turkish Civil Code, the first major modifications since the reception of the Code from Switzerland in 1926 (published in the Official Gazette on December 8, 2001 and available at http://dosya.hurriyetim.com.tr/medenikanun in Turkish, with highlights in English at http://www.byegum.gov.tr/on-sayfa/new-civil-code.htm) constitute an important recognition of fundamental social change. Amendments include provisions establishing equality of spouses in the family, removal of designation of the husband as head of the household, recognition of equal inheritance rights to children born out of wedlock, and recognition of adopted children as equal family members. Ardently defended by nationalists and religious conservatives, the previous separation of property regime for marital assets (strengthened in its effects by the practice of putting title to all property in the husband's name), has been replaced as a default regime with one which accords the spouses equal shares in property acquired during the marriage (in effect for property acquired after Jan. 1, 2003). Such changes affect only those marriages entered into after the law comes into effect, however. Rules regarding foreign-currency mortgages have also been made less restrictive.

Other news on family law: in the first case after Turkey's joined the Hague Convention on the Abduction of Children, a court in the southern Turkish city of Mersin awarded custody of a child born to a Turkish father to the English mother, in keeping with the Convention principle that children be returned to their country of habitual residence.

Economic law

Major changes in the legal framework of the economy (the so-called "Dervis" laws after the World Bank reformist Kemal Dervis who was drafted to render Turkey IMF-compliant) were also effected in 2001. These included, most notably, deregulation laws (addressing electricity, natural gas, tobacco and other state monopolies), as well as changes in public procurement, banking and international arbitration. (A 1999 constitutional amendment had opened the way for international arbitration - see for background Serdar Bezen's "Recent Developments in International Commercial Arbitration in Turkey" Mealey's International Arbitration Report, March 2001). The Public Procurement Law, adopted on 5 January 2002, will come into effect January 2003 (see abovementioned Turkey/EU website for link to a synopsis of the legislation in English). Banking was also affected by a new banking act (No. 4389 as amended by Law No. 4491 which deals with incorporation, management, transfer, merger, supervision and liquidation of banks to protect depositors). A new independent Banking and Regulation Supervisory Board has also been created.

Corporate taxation also witnessed changes in July 2001 regarding provisions for division of companies.

Law No. 4749 on Public Finance and Regulation of Debt Management, passed on 28/3/2002, sets out, among other things, procedures and principles for domestic and foreign loans and regulates repayment of liabilities assumed by the Treasury. Implementing regulations were also enacted within days of the Law. Law 4743 and accompanying regulations on restructuring of debts to the financial sector are designed to prevent company failures due to temporary liquidity problems and financial market instability through a variety of measures.

Article 272 of the Turkish Commercial Code was amended by publication in the Official Gazette on 19 January 2002 of increased minimum capital requirements for joint stock corporations and limited liability partnerships.

Consumer protection also received a boost the establishment of special courts to deal with consumer issues and the issuance of three communiques in early 2002 regarding the use of the "CE" (Conformite Europeen) mark, and guarantees and service on consumer goods.

Media and Telecommunications

The Telecommunications Authority issued a 'Roaming Regulation' which sets forth among other things the principles of roaming agreements and provides dispute resolution procedures.

In June 2001 a new media law was passed, which extended press controls applicable to other media to the internet and provided for steep fines for websites found to be publishing untrue news, insults, etc. Although the more draconian provisions of the law were abandoned in the final text, this law was subsequently vetoed by President Sezer. On May 15, 2002 a similar law was passed (the Constitution prohibits a second presidential veto). One outstanding feature of this law was that it thwarted previous efforts to block concentrated media ownership and permitted media owners to bid for government contracts, thus creating what many consider an unsavory relationship between government and media. This provision was, however, struck down by the Constitutional Court in early June 2002.

The new law extends control previously exercised over traditional media to the internet. It requires internet sites to submit posted and updated pages to the government and prohibits postings which might provoke violence, discrimination or animosity, as well as programming which violates "traditional Turkish family values". Fines of up to hundreds of billions of Turkish Lira ($1 = roughly 1.5 million TL) may be levied for broadcasting offenses. The law abandons the practice of taking TV and radio stations off the air for first offenses. The Turkish broadcasting watchdog, known as RTUK, will cancel the licenses of institutions targeting national unity and broadcasting 'subversive and separatist propaganda'. The new law is considered by the EU ambassador to contradict entry criteria to the EU and has elicited considerable criticism from the Turkish internet community.

Workers, pensions and the Constitution

A new attitude towards workers also emerged during the year with the beginnings of reform in social welfare. A new Pension Fund Act was brought into effect, for example. Law No. 4632 on Individual Private Pension and Investment Systems entered into effect on 1 October 2001 and regulations thereunder on February 28, 2002.

Changes towards workers are reflected in the new Constitution as well. Article 49, for example, extends protection of workers; Article 51 give the right to form unions to all employees, not only to workers, and removes the requirement of ten years of previous work experience to become a union leader; Article 55 mandates the taking into account of life standards of workers and the general economic situation of the country when estimating the minimum wage.

One provision, that might have changed the course of world history had it been enacted in the US, provides that Article 67 of the Constitution has been amended to allow convicts deprived of legal capacity detained in prisons and other penitentiary institutions to vote in elections.

Terrorism

As in many countries, concern with terrorism resulted in legal changes in 2001. The current 'terrorism' law enacted in 1994, and subject to recent amendments, has been used rather extensively in recent years to prosecute writers and journalists and other parties allegedly engaged in anti-state activities. Reflecting the strong priority to be given to the concept of terrorism, Article 78 of the Constitution, which previously prohibited the election to Parliament of 叢ersons who have been involved in ideological and anarchistic activities', now applies only to 叢ersons who have been involved in terrorist activities".

The death penalty, a focal point of controversy over Turkey's membership in the EU, now applies only to "cases in time of war, imminent threat of war and terrorist crimes". Unlike the situation in the US, no executions have taken place in Turkey since 1984. Although the fate of Ocalan still weighs heavy on national politics, signs in early June point to a willingness to abandon the death penalty all together.

A full report entitled Measures Taken by the Republic of Turkey against Terrorism (December 2001) can be found on the Foreign Ministry's website.

Intellectual Property Law

Long awaited specialized courts for intellectual property issues were established in 2001. On March 3, 2001 important amendments to the Copyright Law came into force. The changes were designed to bring Turkish copyright law into compliance with the 1996 WIPO Treaty on Phonogram and Performers' Rights and to correct problems which had arisen in connection with the last major amendment to the Turkish Copyright Law (1995). On September 15, Regulations were enacted which regulate collection societies, establish copyright royalty tribunals, and allow record producers to collect royalties for traditional as well as on-line broadcasting of their works.

International Conventions

On 2 August 2001, Turkey ratified the ILO Convention on the Worst Forms of Child Labor. This entails a commitment to the elimination of trade in children and any form of forced or compulsory labor. More recently (10 June 2002) Turkey ratified the European Convention on the Exercise of Children's Rights, which will come into force for Turkey on 10 October 2002. Other treaties coming into force this year include the Protocol No. 1 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ratified 17/9/97 and in force as of 1 March) and the Protocol amending the European Convention on Transfrontier Television, which also entered into force on 1 March. Turkey has withdrawn its derogation to Article 5 of the European Convention on Human Rights with respect to the provinces under emergency rule and announced plans to accede to the Ottawa Convention on Anti-personnel Land Mines. In late December, 2001, Turkey ratified International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism. Turkey also acceded to the 1992 International Oil Pollution Compensation Fund Convention and Civil Liability Convention in 2001 . In April of 2001, the Black Sea Port State Control Memorandum of Understanding came into effect in Turkey. In a news bulletin from the Ministry of Foreign Affairs on July 3, 2002, it was announced that Turkey supports the International Criminal Court, which came into existence on July 1. Turkey is currently the only country in the 43-member Council of Europe not to have signed the convention establishing the Court.

July 3, 2002

Virginia Brown Keyder is a law lecturer at Bilgi University, Istanbul, Turkey.

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What are your views on the issues raised by this JURIST column?

  • Sunday December 08, 2002 at 11:06 pm
    Please, I need a copy of the new civil Code of Turkey. Could you send me one to my Email. Thank you. Paola Atoche.

    Paola Atoche Fern疣dez
    Universidad de Lima
    Lima-Per

  • Tuesday January 14, 2003 at 11:40 am
    It has not been translated to English yet and it is doubtful whether it will be translated in the future but you can download the Turkish version from the internet site of the Ministry of justice www.adalet.gov.tr

    Ahmet imirzalioglu
    Turkey

  • Saturday December 13, 2003 at 3:31 am
    I would like to obtain the English version of recent Turkish Association Law. Where can I find it? We are an NGO working on NGO law reform in Turkey and need to share this with field experts for future study.

    Filiz Bikmen
    Third Sector Foundation of Turkey
    Turkey

  • Wednesday April 14, 2004 at 2:54 am
    May I request you to forward a copy of the new civil Code of Turkey. Will appreciate if forwarded by Email Thank you. Shrikant Hathi Mumbai Partner LEX Nexus Advocates & Solicitors, India shrikant@lexnexus.net

    Shrikant Hathi
    LEX Nexus
    Mumbai, India

  • Wednesday April 14, 2004 at 3:10 am
    May I request you to forward a copy of the new civil Code of Turkey. Will appreciate if forwarded by Email Thank you. Shrikant Hathi Mumbai Partner LEX Nexus Advocates & Solicitors, India shrikant@lexnexus.net

    Shrikant Hathi
    LEX Nexus
    Mumbai, India

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