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March 18, 2024

Amendments in The 8TH Judicial Package

INTRODUCTION

The Proposal for the Amendment of the Criminal Procedure Law and Certain Laws and the Decree Law No. 659 (“Proposal“) was approved by the General Assembly of the Grand National Assembly of Turkey (“GNAT“) on 02.03.2024. 

Accordingly, 41 articles of the 42-article Proposal became law and the Law on Amendments to the Code of Criminal Procedure and Certain Laws (“Law“) was published in the Official Gazette dated 12.03.2024 and numbered 32487.

We present our explanations regarding the amendments made by the Law to your attention below.

A. Amendments to the Enforcement and Bankruptcy Law No. 2004

Law No. 2004 on Execution and Bankruptcy (“EBL“) has been amended to harmonize the time periods stipulated in the EBL with the time periods in civil procedure law and thus to prevent possible loss of rights in the exercise of remedies. Within this scope;

  • The legal remedy application periods, which were previously determined as days in the EBL, have been determined as weeks and it has been regulated that the period determined as a week will end on the day corresponding to the day in the last week.
  • It has been regulated that legal action can be taken within 2 weeks of notification of decisions against which appeals and proposals can be made.

B. Amendments to the Turkish Civil Code No. 4271

Turkish Civil Code No. 4271 (“TCC“) has been amended in accordance with the decisions of the Constitutional Court. Since the main purpose of these amendments is in violation of the articles of the Constitution, the following amendments have been made in accordance with the grounds for annulment by the Constitutional Court:

  • With the new addition, the process of limiting the freedom of individuals on criminal grounds has been amended and being in prison conditions is no longer accepted as a direct reason for restriction. Considering the decision-making, i.e. voluntary capacity of minors, the restriction of liberty during the execution of finalized prison sentences is left to the individual’s own choice. However, in the case of finalized imprisonment sentences of five years or more in total, the restriction of the convict is based on the principle of protection of the person or his/her assets, and a discretionary authority is granted to a guardianship body in this regard. The regulation envisages a system in which adult individuals serving a finalized prison sentence can request that their status in penal institutions be restricted or that a trustee be appointed for them. Even if the appointment of a guardian is not requested, the situation of an adult serving a prison sentence of five years or more will be immediately notified to the guardianship body by the institution responsible for the execution of the sentence, and the guardianship body will be able to impose restrictions on the individual if it deems it necessary for the protection of his/her person or property.
  • With the amendment, it has been decided to apply the procedures and principles in Article 436 of the Civil Code in the issuance of the medical board report sought due to mental illness or weakness. In this context, the article has been amended. With the amendment, an objection mechanism has been regulated since the regulation, which stipulates that the person must be admitted to a health institution with a physician’s preliminary report, imposes an excessive burden on the individual regarding the freedom and security of the individual. Accordingly, in order to ensure that an official medical board report can be obtained, the person may be placed in a health institution for a maximum period of twenty days upon the preliminary report of a physician, the placement decision will be immediately notified to the person concerned and his/her relatives, the person concerned and his/her relatives may appeal against this decision to the supervisory authority within ten days from the notification, and finally, the appeal will be decided immediately by the supervisory authority.
  • Amendments have been made to the provisions on the abolition of the guardianship system. According to these amendments, it has been determined that the guardianship will be automatically lifted if the imprisonment sentence ends in accordance with the law. Furthermore, it will be possible to terminate guardianship even while imprisonment continues. Those sentenced to imprisonment for less than five years are required to request the lifting of restrictions on the execution of this sentence; for those sentenced to imprisonment for five years or more, the termination of guardianship can be requested when the grounds for the protection of personal rights or property cease to exist.

C. Amendments to the Criminal Procedure Code No. 5271 (“CPC”) and the Turkish Criminal Code No. 5237 (“TCC”)

Recent amendments to the Turkish Penal Code and the Criminal Procedure Code have led to significant changes in trial processes and sentencing practices. In particular, the reorganization of the statute of limitations and prepayment mechanisms for crimes subject to complaint has brought about a significant evolution in the functioning of the criminal justice system. These changes clarified the complaint periods valid from the date of the crime and expanded the amounts and scope of prepayment penalties. In addition, new regulations regarding the decision to postpone the announcement of the verdict aim to ensure that judicial processes are carried out more effectively and fairly. These comprehensive reforms aim to create a fair and consistent framework in criminal law, contributing to increased public confidence. In this context, the amendments made to criminal laws by the Law are as follows: 

  • With the planned amendment to Article 52 of the TPC, which regulates judicial fines, the lower limit of one day’s equivalent of judicial fines to be imposed under the law has been changed to 100 Turkish Liras and the upper limit to 500 Turkish Liras.
  • As a result of the annulment of the sixth paragraph of Article 220 of the TPC by the Constitutional Court dated 26.10.2023 and numbered 2023/132, decisioned 2023/183, the act of committing a crime on behalf of the organization without being a member of the organization is regulated as a separate crime in the sixth paragraph of Article 220 of the TPC and Article 314 of the TPC titled “Armed Organization” and it is envisaged that the person who commits a crime on behalf of the organization will be punished both for committing a crime on behalf of the organization without being a member of the organization and for the crime constituted by the act committed.
  • The persons who can claim compensation under Article 141 of the Code of Criminal Procedure have been added to those who cannot benefit from the possibility to apply against the judicial control procedure. Furthermore, the period for declaration and objection against the outcome of the compensation claim has been changed to 2 weeks.
  • It is envisaged to make some amendments to Article 231 of the Criminal Procedure Code, which regulates the deferral of the announcement of the verdict (“HAGB“). According to this; Provisions regarding confiscation have been excluded from the HAGB by regulating that the legal consequences of the confiscation decision made together with the HAGB decision will be applied.
  • The third paragraph of Article 247 of the Code of Criminal Procedure, which was annulled by the Constitutional Court, has been rearranged and it has been regulated that the fugitive defendant can be prosecuted, but if he/she has not been interrogated before, conviction and non-prosecution cannot be decided. 
  • In addition, it has been decided that upon objection, the court that rendered the verdict will send the file to the criminal court of first instance by determining according to the distribution criteria if there is more than one criminal court of first instance in that place, and that this court will hold a hearing and continue the trial according to the general provisions. In places where there is only one criminal court of first instance, if there is another judge authorized in the same court, by this judge; otherwise, it is determined that the trial will be opened by the judge assigned by the president of the justice commission of the court of first instance and the trial will continue according to the general provisions.
  • Within the scope of the amendments regarding the criminal procedure, the period for filing an appeal has been amended and the 7-day period for filing an appeal has been updated to 2 weeks from the date of notification of the verdict with the grounds and the provision regarding the commencement of the period in the absence of the person has been abolished.  
  • The period for the appeal request, which was envisaged as 15 days from the announcement of the verdict, has been increased to 2 weeks from the date of notification of the verdict together with its grounds.

D. Amendments to the Anti-Terror Law No. 3713

In accordance with the amendments made to the sixth paragraph of Article 220 of the TPC and Article 314 of the TPC titled “Armed Organization“, a regulation was made in the fifth paragraph of Article 7 of the Anti-Terror Law No. 3713. Thus, a harmonization regulation was made in terms of the reference to the sixth paragraph of Article 220 of the Turkish Penal Code.

E. Amendments to Law No. 6384 on the Settlement of Certain Applications to the European Court of Human Rights by Payment of Compensation (“Law No. 6384”)

Law No. 6384 has been renamed and its scope has been expanded. In this context, Law no. 6384 was renamed as “Law on the Duties and Working Procedures and Principles of the Compensation Commission” and the procedures and principles of the relevant commission were determined. In Turkey, to file an individual application to the Constitutional Court, all judicial and administrative remedies must have been exhausted. However, in cases where judicial proceedings are not concluded within a reasonable period, it is possible to apply directly to the Constitutional Court. As of 31.07.2018, in cases such as violations of the right to a trial within a reasonable time and late or incomplete execution of court decisions, applications have been evaluated not by the Constitutional Court, but by a special commission. However, the Constitutional Court emphasized that this arrangement was not sufficient and that an effective remedy should be established. After 09.03.2023, the Commission’s evaluation of such applications was expanded, but the Constitutional Court stated that this amendment was not sufficient and decided to dismiss the relevant applications. These regulations aim to create a more accessible and faster remedy for violations arising from lengthy trial processes, and allow for the speedy finalization of some compensation claims. These are the regulations regarding the purpose and scope.

  • With the amendments, it is envisaged that the expenses incurred will be covered from the budget of the Ministry of Justice and the commission will be authorized to commission expert examinations.
  • According to the new regulations, the procedures for applications to the Compensation Commission have been updated. In this context, the details of how and when applicants to the European Court of Human Rights can apply to the Commission have been restructured under Article 5. Now, applications can also be made electronically, and the rules and details of how applications can be made through this method will be determined by the Ministry. With this amendment, the application process has been made more flexible and ease of access has been increased.
  • A provisional article has been added to Law no. 6384, allowing the Commission to examine individual applications to the Constitutional Court on the grounds of failure to conclude proceedings under criminal law, private law, and administrative law within a reasonable time, under certain conditions. This regulation covers applications where the Constitutional Court has ruled inadmissibility or dismissed on the grounds that remedies have not been exhausted or there is no reason to continue the examination. The Constitutional Court stated that an effective remedy has been established and that it will examine the claims of violation of the right to be tried within a reasonable time after this new regulation. In addition, this decision also provides the possibility of direct application to the European Court of Human Rights. The other paragraphs of the Article provide procedural provisions regarding the examination of these applications and the possibility of forming additional committees to balance the Commission’s workload.

F. Amendments to the Personal Data Protection Law No. 6698 (“PDPL”)

With the aim of harmonizing the PDPL with the General Data Protection Regulation (“GDPR“), the provisions regarding the processing conditions and transfer of sensitive personal data abroad have been amended. In this context; 

  • The provision that the processing of special categories of personal data is prohibited is preserved, the explicit consent of the person concerned, it is clearly stipulated in the laws, it is mandatory for the protection of the life, physical integrity of the person who is unable to disclose his consent or whose consent is not legally valid, it is mandatory for the protection of his or someone else’s life or physical integrity, it is related to the personal data made public by the person concerned and is in accordance with the will of the publicization, it is mandatory for the establishment, use or protection of a right, personal data may be processed by persons under the obligation of confidentiality or authorized institutions in cases where it is necessary for the protection of public health, preventive medicine, medical diagnosis, treatment and care services, planning, management and financing of health services, employment, occupational health and safety, social security, social services and social assistance are mandatory for the fulfillment of legal obligations.
  • It has been regulated that personal data can be transferred abroad by data controllers and data processors if one of the conditions for processing personal data and special categories of personal data is met and if the country to which the transfer will be made has an adequacy decision to be given by the Personal Data Protection Board about the international organization or the sectors within the country.
  • Procedures and principles regarding the adequacy decision have been determined.
  • It has been regulated that personal data may be transferred abroad in the absence of an adequacy decision, in the presence of one of the conditions for the processing of personal data and one of the conditions for the processing of special categories of personal data, the person concerned has the opportunity to exercise his rights and to apply for effective legal remedies in the country where the transfer will be made, and one of the guarantees specified in the regulation is provided by the parties.
  • The amount of the administrative fine sanction to be imposed in case of violation of the obligation to register and notify the Data Controllers Registry has been increased.

G. Amendments to the Social Insurance and General Health Insurance Law No. 5510 (“Law No. 5510”)

With the amendment made in the additional article 18 of the Law no. 5510, it has been decided to increase the holiday bonus of 2000 TL given by the Social Security Institution to the persons who receive salary or income in accordance with the Law no. 5510 and other relevant regulations, if they are entitled to receive salary or income during the feast month, to 3000 TL on Ramadan and Sacrifice Feasts.  

The article in the text of the proposal, which envisages an amendment to the Decree Law No. 659 on the Execution of Legal Services in Public Administrations within the Scope of General Budget and Special Budget Administrations, and introducing a novelty in the distribution method of attorney fees, was rejected by the decision of the Justice Commission of the Turkish Grand National Assembly dated 21.02.2024 and the said amendment did not become law

Respectfully yours,

Kilinc Law & Consultancy

Authors

Alptekin Dayı

Alptekin Dayı

Associate

Deniz Dede

Deniz Dede

Legal Intern

Elif Berfin Tatlı

Elif Berfin Tatlı

Legal Intern

Şimal Taşkın

Şimal Taşkın

Legal Intern