Edition 76: 27 March 2019
Editorial Team:
Orçun Çetinkaya, LL.M., Ezgi Baklacı, LL.M., and Pelin Oğuzer, LL.M.
Turkey has Established the Real Estate Appraisal System and Department

Turkey has established the Real Estate Appraisal Department being responsible for the adoption and administration of the real estate appraisal system. Real Estate Appraisal Department will be a central service unit affiliated to Turkey’s General Directorate of Land Registry and Cadastre.

The real estate appraisal system is intended to ensure the sale of real estate is declared based on accurate prices instead of market value which has been taken as basis for many years and results in tax evasion.

Primary duties of the Real Estate Appraisal Department are as follows:

-Appraising real estate with the methodology of collective valuation, establishing and administrating value information center in addition to ensuring preparation and update of value maps.

-Making or demanding individual valuation to use in collective valuation studies, if required.

-Performing studies on standards of collective valuation.

-Publishing statistics and reports based on data collected at the end of collective valuation studies.

-Analysis of needs related to real estate appraisal and collective valuation and follow-up of international developments and good practices.

Provisions regarding establishment and duties of Real Estate Appraisal Department were introduced by the Presidential Decree Number 30 published in the Official Gazette numbered 30677 on 5 February 2019, being effective from this date. Please see this linkfor the full text of the Presidential Decree Number 30 (only available in Turkish).

Read More
Turkey Amends the Pricing Regulation for Human Medicinal Products

The Decision Regarding the Pricing Regulation for Human Medicinal Products in Turkey has been amended. The Decision Amending the Decision on Pricing of Human Medicinal Products (“Amendment Decision”) was published in Official Gazette number 30686 on 14 February 2019, entering into effect on the same date.

According to the Decision on Pricing of Human Medicinal Products, in order to determine the Turkish Lira equivalent of 1 Euro for the pricing of the human medicinal products, the adjustment coefficient which is 70% of annual average Euro value calculated based on the previous year’s indicative Euro exchange rates of Central Bank of The Turkish Republic is taken into account.

The Turkish Lira equivalent of 1 Euro used in the pricing of human medicinal products is calculated according to the method declared by the Price Evaluation Commission and announced within the first 45 days of each year.

The Amendment Decision which is published on 14 February 2019 changes the adjustment coefficient rate. Pursuant to the change, the adjustment coefficient rate has decreased from 70% to 60%.

Please see this link for the full text of the Amendment Decision (only available in Turkish).

Read More
Geographical Indication Inventory has been Transferred to the Digital Media

The Turkish Patent and Trademark Office (“TPTO”) has transferred the geographical indication (“GI”) inventory to the digital media. The inventory is now reachable from www.ci.gov.tr.

Newly established website contains;

-The database regarding the geographical indication/traditional cultural specialties registry,

-Statistics regarding GI registration and application numbers, registration holders, types of GI’s and distribution by product groups.

The website is expected to bring together public institutions, non-governmental organizations, producers and consumers on the same platform. Also, the substantial database constituted in this regard will be a rich resource for the researchers working in the field.

Turkey’s Ministry of Industry and Technology declared that new information about the geographical indications will be instantly shared on the web site. The new website also contains guidelines for applications and inspections, success stories of geographical indication implementations, and information regarding registered geographical indications’ producers.

Please see this link for the full text of the announcement (only available in Turkish).

Read More
Turkey Introduces Regulations on Service Providers’ Liabilities in e-Commerce and the Transactions Through the Public Electronic Platform

Turkey has introduced regulations on service providers’ liabilities in e-commerce, as well as transactions to be conducted through the public electronic platform.

The Regulation Regarding Amendment on Service Providers’ Liabilities in e-Commerce (“Amendment Regulation”) by Turkey’s Ministry of Trade (“Ministry”) was published in Official Gazette number 30687 on 15 February 2019, entering into effect the same day.

With the Amendment Regulation, Article 11 of Regulation on Service Providers and Agent Service Providers in Electronic Commerce regarding the burden of proof and retention period of electronic registers published in Official Gazette number 29457 dated 26 August 2015 has been amended.

Accordingly, if the subscription agreements are concluded through a common electronic platform, the service provider will bear the burden of the proof as well as being responsible for the following:

-Saving the electronic registers regarding e-commerce transactions,

-Submitting these registers to the Ministry, if requested.

Furthermore, Article 2 regulating the scope of the Communiqué Regarding e-Commerce Information System and Notification Liabilities dated 11 August 2017 has also been amended with the Communiqué Regarding Amendment on the e-Commerce Information System and Notification Liabilities (“Amendment Communiqué”) published in the same Official Gazette.

As per the Amendment Communiqué, the Communiqué provisions will not be applied to the following:

-The service providers and agent service providers concluding agreements exclusively through e-mail, phone call, SMS or similar communication instruments enabling direct communication in an electronic platform.

-The common public electronic platform providing public services from a single point for subscription agreements.

Please see this link for full text of the Amendment Regulation (only available in Turkish).

Please see this link for full text of the Amendment Communiqué (only available in Turkish).

Read More
Turkish Constitutional Court: Rendering a Decision Before Dissolving the Divergence of Opinions Between Court of Appeal’s Different Chambers Breaches the Right to Fair Trial

The Turkish Constitutional Court recently decided that rendering a decision before dissolving the divergence of opinions between the Court of Appeal’s different chambers breaches the right to fair trial.

The applicant works in a foundation based on an employment agreement. The applicant has asserted that;

-Her workplace is a public institution which is a subsidiary of the relevant ministry’s general directorate, and

-According to the case law of the Council of State, she is considered as a public officer

and filed a lawsuit in order to be entitled to additional payments pursuant to Law Number 6772.

The first instance court has accepted the applicant’s claims. Upon the employer’s appeal of the decision, the Regional Court of Justice rejected the claim for additional payments on the grounds that the employees of social assistance and solidarity foundations are not deemed to be public workers.

Upon the service of the abovementioned final decision, the applicant has filed an individual application to the Constitutional Court on 6 July 2017 alleging that

-The cases brought by the employees who work in similar circumstances had been concluded differently due to the divergence of opinion between the Court of Appeal’s chambers.

-As a result, her right to a fair trial was violated.

After consideration, the Turkish Constitutional Court has stated that;

-The unification of judgments method which ensures to unite extensive and ongoing different legal precedents regarding similar matters was not applied.

-As a result, the applicant could not foresee the outcome of the case.

-This matter undermined the fairness of the judgment, irrespective of the given decision.

In accordance with the reasons specified above, the Constitutional Court has ruled that the applicant’s right to a fair trial stipulated under Article 36 of the Constitution has been violated.

Please see this link for the full text of the Turkish Constitutional Court’s decision dated 25 December 2018 and numbered 2017/29896 (only available in Turkish).

Read More
Turkish Constitutional Court Ruled on Violation of Right to Access to Court

The Turkish Constitutional Court recently ruled that the decision of the first instance court to not review the re-employment case by claiming the case is in the jurisdiction of the State of Emergency Commission (“Commission”) violated applicant’s right of access to court.

The applicant was working under a service contract in Gazi University before the employment contract was terminated upon the Rectorate’s request pursuant to the Statutory Decree numbered 667 on Measures taken under the State of Emergency (“Decree”).

The applicant filed a re-employment lawsuit against the employers claiming the termination was not based on just cause. The first instance court ruled that the employment contract was terminated in accordance with the Decree, and the case is in the jurisdiction of the Commission.

The applicant then applied to the Turkish Constitutional Court by alleging that his right of access to court had been violated due to the decision given by the first instance court.

The Turkish Constitutional Court ruled that the first instance court is the competent authority for resolving the disputes between the employers and employees arising from the labor laws. Accordingly, the decision to end the trial and refer the case to the Commission without reviewing the merits of the case is a misinterpretation of the law. The Constitutional Court further ruled that the subject matter decision is unlawful and violates the right of access to court secured under Article 36 of the Turkish Constitution.

Please see this link for the full text of the Constitutional Court’s decision dated 9 January 2019 and numbered 2017/26326 which was published in Official Gazette numbered 30670 on 29 January 2019 (only available in Turkish).

Read More
Turkish Constitutional Court: Turkish Court of Appeal Derogating From its Jurisprudence without Providing Legal Grounds Violates the Property Right

The Turkish Constitutional Court recently ruled that the property right and the right to a fair trial are violated due to legal uncertainty when Turkish Court of Appeal derogates from its jurisprudence without providing legal grounds.

Pursuant to the application, in summary, the applicant filed an action for annulment and registration for the acquisition of the immovable claiming that the owner of the property was not certain.

In summary, the court rejected the applicant’s claim to acquire an immovable by stating that;

-The immovable’s title deed owner was clearly understood from the cadastral record.

-Since the term “dead” in the second paragraph of Article 713 of the Turkish Civil Code (“Civil Code”) was abrogated, acquisition of immovables by acquisitive prescription is no longer possible for immovables, whose owner is certified as dead 20 years before the date of the application for acquisition.

The applicant applied to the Constitutional Court with the following claims:

-The Article 713/2 of the Civil Code, which has been abrogated by the Constitutional Court on 17 March 2011 should not be applied in terms of time to the concrete case in accordance with the case-law of the Court of Appeal.

-The fact that the owner died 20 years ago should be considered in the initial submission.

-The decisions made without consideration of the above-mentioned facts violated his property rights.

-The judgment of the first instance court breaches the Court of Appeal’s jurisprudence.

As a response, the Constitutional Court ruled that:

-The word “dead” in the second paragraph of Article 713 of the Civil Code was abrogated by the Constitutional Court’s decision dated 17 March 2011. Effects of the decision need to be discussed in respect of persons who acquire the property on the basis of the aforementioned provision.

-The Turkish constitutional system adopts the non-retroactivity of annulment decisions to avoid confusion and to enforce the principle of “legal reliability”.

-Even though the fact that the Court of Appeal changed its jurisprudence alone cannot be regarded as a violation of the right to a fair trial, it should be considered in the case at hand that the Court of Appeal continued its outdated jurisprudence in its decisions rendered after the change in jurisprudence.

-No mechanism has been implemented to cure the effects of the difference in jurisprudence.

-A consistent and uniform application of the jurisprudence before the Court of Appeal cannot be achieved. This contradicts the principles of legal certainty and predictability as well as undermines the trust of individuals in the judicial system and court decisions.

Accordingly, the Constitutional Court ruled that the Court of Appeal derogating from its jurisprudence without providing legal grounds causes legal uncertainty and violates the property right and the right to a fair trial.

Please see this link for the full text of the Turkish Constitutional Court’s decision dated 22 January 2019 and numbered 2015/17453 which was published in the Official Gazette number 30684 on 12 February 2019 (only available in Turkish).

Read More