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Author Topic: GENERAL REASON  (Read 4545 times)

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GENERAL REASON
« on: April 17, 2007, 02:48:40 PM »
GENERAL REASON (*)


Acting on the premise that defense is one of the fundamental constituents of jurisdiction, the Bill states in explicit terms the organizations to assist attorneys in discharging their duties and authorizes attorneys to gather information and documentation from the latter so that the profession of attorneyship may be practiced in the best manner under the circumstances of our time.
The Bill also instates the condition of examination at the end of apprenticeship and prescribes that such examination be administered by the Student Selection and Placement Center in order to ensure objectivity.
The offenses constituting an impediment to admission into the profession of attorneyship and conditions of exemption from attorney apprenticeship and examination are redefined.
The Bill introduces the practice of bar associations offering credit to apprentices throughout the period of apprenticeship. New sources of revenue are created for bar associations to be able to extend this credit.
Attorneys are authorized to invite the adverse party to conciliation before a suit has been filed or before the commencement of the trial if a suit has already been filed. With a view to resolving disputes before they are taken to court or before trial commences, the principle is introduced that the memorandum of conciliation to be drawn up and signed by the parties and their attorneys bear the nature of a court decision.
Provisions regarding the formation of partnerships are reflected in the relevant articles.
New provisions are introduced regarding attorneyship contracts and the determination of attorneyship fees. The attorney’s fee is made preferential in the event of the client’s bankruptcy. Furthermore, the joint and several liability for the fee is extended to cover cases terminated with an agreement, regardless of the nature, and settled out of court.
Another change introduced by the Bill is in ensuring the viability of judicial aid.
In a democratic and social state of law, all people should have equal opportunity to exercise the liberty of seeking justice and the right of defense without economic and financial reasons playing an impeding role. Ensuring equality in seeking justice will be made possible by implementing this concept which is adopted in the Turkish Constitution as in the universal documents on human rights. Benefiting from the legal services of a professional attorney in civil suits and in the statutory defense to commence from the preliminary investigation stage in criminal cases will become possible by rendering judicial aid functional.
The Bill calls for judicial aid services to be rendered by a judicial aid office to be established in bar associations by the boards of directors with staff drawn from among the member attorneys.
25% of certain charges and fines with the exception of fines of an administrative nature is channeled toward judicial aid offices as revenue. The new arrangement is for the purpose of ensuring greater effectiveness in judicial aid services by enhancing the financial sources of judicial aid offices.
The Bill pardons those who, before the entry into effect of this Law, were deleted from the directories of bar associations due to engagement in activities incompatible with attorneyship or attorney apprenticeship, whose request for entry in the directory of a bar association was rejected although they were in possession of an apprenticeship completion certificate, who were denied entry in the directory of a bar association because the decision of admission of the bar association was not approved by the Ministry of Justice, and those who chose not to be entered in the directory of a bar association.
The Bill also provides for the correction of certain discrepancies and voids encountered in the implementation of the Attorneyship Law.

REASONS FOR INDIVIDUAL ARTICLES

Article 1 – The range of entities obligated to assist attorneys as per the third paragraph of Article 2 of the Attorneyship Law, which consisted of “judicial authorities and other public offices,” has been broadened by obligating “state economic enterprises, public institutions and agencies, private and public banks, and other institutions and agencies... to assist attorneys in carrying out their duties. Police departments have also been included in the scope of the article and attorneys have been authorized to gather documentation.
Article 2 – “Having passed the attorneyship examination” has been inserted as Subparagraph d to Article 3 of the Attorneyship Law as an additional condition because of the reintroduction of the examination system. Former Subparagraphs d and e have consequently been renumbered as e and f.
Article 3 – The exemptions stated in the first paragraph of Article 4 of the Attorneyship Law  have been broadened by the insertion of exemption from examination in addition to exemption from apprenticeship. Furthermore, the time requirement for naturalized attorneys to have served as judge, prosecutor, or attorney in civil, administrative, and military jurisdiction has been reduced from five to four years, thus ensuring parity with the first paragraph in terms of the length of time.
Article 4 –  The “imprisonment in excess of one year” in Subparagraph a of Article 5 of the Attorneyship Law has been increased to “two years” and the punishment of heavy imprisonment with no time indicated has been specified as “in excess of one year.” The expressions of “imprisonment of five years” and “heavy imprisonment” in the paragraph following Subparagraph h of this article have been deleted and the provision that “those who have been convicted of ... infamous crimes ... shall not be admitted into attorneyship even if their sentences have been deferred, commuted to a fine, or pardoned,” has been inserted which simply refers to, rather than reiterates, the infamous crimes cited in Subparagraph a of Article 5.
Article 5 – The last sentence in the fourth paragraph of Article 8 has been changed to the effect that the decisions of the board of directors of bar associations to have a candidate entered in the directory, and the decisions of the Union of Bar Associations of Turkey as to the sustainment or overruling of objections, sent to the Ministry of Justice for approval will be considered as approved unless a decision is made by the Ministry of Justice within one month as of the date of their receipt by the Ministry.
Article 6 – The reference to Subparagraph e in Article 16 has been changed to Subparagraph f to reflect the change in Article 3 of the Attorneyship Law.
Article 7 – A provision calling for “the enclosure of a personal statement to the effect that the applicant is not engaged as employee or employer in any business or job that would interfere with the uninterrupted service of the apprenticeship” with the letter of application to be submitted to the bar association has been added to Subparagraph 2 of Article 17 of the Attorneyship Law.
Article 8 –he provision has been introduced that the decisions made by the Union of Bar Associations of Turkey on objections will become definitive upon the approval of the Ministry of Justice or will be considered as approved unless a decision is made by the Ministry of Justice within one month as of the date of their receipt by the Ministry.
Article 9 – Article 27 of the Attorneyship Law has been amended to provide for the extension of credit to apprentices by the Union of Bar Associations of Turkey.
Article 10 – Article 28 of the Attorneyship Law has been revised to provide for the examination by the Union of Bar Associations of Turkey of those who have received an apprenticeship completion certificate.
Article 11 – Article 29 of the Attorneyship Law has been revised to indicate the conditions for qualification for the examination.
Article 12 – Article 30 of the Attorneyship Law has been revised to indicate the manner of administration of the examination and the topics to be included. The Article calls for the examination to be administered three times a year by the Student Selection and Placement Center.
Article 13 – Article 31 of the Attorneyship Law has been revised to provide for the announcement of examination results.
Article 14 – Article 34 of the Attorneyship Law has been expanded to provide for “compliance with the professional rules established by the Union of Bar Associations of Turkey,” thereby amending the provisions governing the general conduct of attorneys.
Article 15 – The revision introduced aims to reduce the workload of courts. The Article introduces the provision that in actions and cases that have been entrusted to them, attorneys may invite the other party and its counsel to conciliation before a suit has been filed or before hearings have commenced for an already filed suit, provided that such conciliation pertains exclusively to matters that the parties may elicit of their own will. The memorandum of conciliation drawn up in the presence of the attorneys of both parties and their clients will be in the nature of a court decision in the sense of Article 38 of the Enforcement and Bankruptcy Law.
Article 16 – Subparagraph c of the first paragraph of Article 38 of the Attorneyship Law has been expanded to include “expert witness” and the Subparagraph has been reworded accordingly.
Article 17 – Article 40 of the Attorneyship Law on statute of limitations in claims for damages has been clarified by the wording that the claims “will be abated one year after the date of first knowledge of the acquisition of this right and in any case after five years from the event causing the damages.”
Article 18 – In consideration of the fact that the provision “The attorneyship fee may be agreed as a certain percentage of the entity or money to be litigated or adjudicated, not to exceed twenty-five percent” introduced by the amendment of Article164 of the Attorneyship Law might cause confusion in implementation, given the prohibition of appropriation of contested rights in Article 47, the indication has been made, by way of clarification, that the provision in Article 164 is reserved, thus affirming that the said provision will not be affected by the prohibition in Article 47.
Article 19 – Article 55 of the Attorneyship Law on the prohibition of publicity has been expanded by the addition of two paragraphs introducing the provisions that the prohibition of publicity will also apply to the attorneys sharing an office and to attorney partnerships; and that the provisions governing the prohibitions will be determined by means of regulations to be prepared by the Union of Bar Associations of Turkey.
Article 20 – The provision has been adopted as per Article 58 of the Attorneyship Law that attorneys may give another attorney a single certificate of authorization on behalf of their clients that will pass for a power of attorney covering all the powers of attorney authorizing the former to delegate agents; and that such powers of attorney be prepared to a standard format jointly by the Union of Bar Associations of Turkey and the Union of Notaries Public of Turkey.
Article 21 – The first paragraph of Article 58 of the Attorneyship Law has been amended to include the provision that investigation will be conducted on attorneys committing an offense in connection with their duties with the entities of the Union of Bar Associations of Turkey or bar associations, as well; that such investigation will be conducted by the public prosecutor in the district where the crime is committed, upon the permission of the Ministry of Justice; and that the offices and residences of attorneys may be searched only with a court warrant under the supervision of the public prosecutor.
Article 22 – Article 65 of the Attorneyship Law with the heading “Persistence in non-payment of bar association dues” has been amended to provide for the timeşy payment of these dues.
Article 23 – The provision has been introduced, by the addition of a paragraph to Article 66 of the Attorneyship Law, that of the attorneys who have completed twenty years in the profession, those who have closed down their office and had their tax records deleted may continue to use the title of attorney provided that they report their status and fulfill their duties and obligations to the bar association and do not exercise the powers of attorneyship, thereby honoring the few remaining attorneys who have spent long years in the service of the profession.
Article 24 – The third and fourth paragraphs of Article 71 of the Attorneyship Law have been amended to prescribe that the decisions submitted to the Ministry of Justice for approval will become definitive if no decision is made by the Ministry of Justice within one month; and to introduce new provisions on the temporary prohibition from practice of attorneys, respectively.
Article 25 – The expression “the failure, despite reminders, of the attorney to enroll with another bar association in whose district he/she practices attorneyship on a permanent basis” has been added to Subparagraph c of the first paragraph of Article 72 of the Attorneyship Law; and the expression “or in the repayment of apprenticeship credit” to Subparagraph d of the same paragraph.
Article 26 – The third paragraph of Article 74 of the Attorneyship Law has been revised to reflect the amendment to Article 71.
Article 27 – It is prescribed that attorney partnerships also be indicated in the attorney roster.
Article 28 – The expression “public prosecutor” has been changed to “chief public prosecutor.”
Article 29 – The provision that a bar association is established in every capital of province where “a minimum of fifteen attorneys are present” has been changed to “where a minimum of thirty attorneys are present.”
The provision has also been introduced that bar associations will assume legal personality upon reporting their establishment to the Union of Bar Associations of Turkey which will immediately report the fact to the Ministry of Justice.
Article 30 – The Article has been revised to reflect the amendment to the first paragraph of Article 77 and the number of attorneys entered in the directory has been doubled to forty.
Article 31 – The Article introduces new provisions governing the determination of admission dues and annual dues.
Article 32 – Article 84 of the Attorneyship Law regarding call to meeting has been amended by replacing the provision that “the letter of invitation must be mailed by return registered delivery or handed to the attorney at least ten days before the meeting” with the provision that the announcement for the meeting “will be posted where suitable in the bar association and the judicial offices in its professional circles for fifteen days starting at least fifteen days before the meeting. Such announcement will effectively serve as an official notice.”
Article 33 – The provision in Article 86 of the Attorneyship Law on the obligation to participate in the meeting that “those who do not attend these meetings or do not vote will be fined by TL 20,000 by the chairperson of the county election board” has been changed to prescribe that those who do not attend these meetings or do not vote “will be fined at the rate of one third the amount of the annual dues paid by attorneys enrolled with that bar association, that these fines will be imposed and collected by the presidency of the bar association and marked as revenue in the budget of the bar association, and that the fine will be revoked by the president of the bar association if the attorney proves by documentation the existence of a rightful excuse for not participating in the meeting and not voting.”
Article 34 – The provision has been introduced that those removed from duty pursuant to the provision in Article 77 may not be elected to membership on the board of directors for five years.
Article 35 – The duties of the board of directors have been expanded to include actions concerning attorney partnerships.
Article 36 – The second and seventh paragraphs of Article 114 of the Attorneyship Law have been amended by the introduction of the provisions “Incumbent presidents of bar associations and attorneys who have served and are currently serving as the president of the Union of Bar Associations of Turkey are natural members of the general assembly of the Union of Bar Associations of Turkey” and “If a regular delegate has an excuse, he/she will be replaced by an alternate who will attend and vote in the meeting of the general assembly of the Union of Bar Associations of Turkey in lieu of the latter” respectively. The natural members of the general assembly of the Union have the right to participate in voting, to elect and be elected.
Article 37 – Subparagraph 10 of Article 117 of the Attorneyship Law has been revised to reflect the amendment to Article 30 by the addition of a Subparagraph 11 conferring upon the general assembly of the Union of Bar Associations of Turkey the authority to certify the basic contracts of attorney partnerships.
Article 38 – The duties of the board of directors of the Union of Bar Associations of Turkey indicated in Article 121 have been expanded to include tasks assigned to the Union in connection with the attorneyship examination and actions concerning attorney partnerships.
Article 39 – With a paragraph added to Article 125 of the Attorneyship Law, the duties of the President of the Union of Bar Associations of Turkey have been expanded to include inviting the presidents of bar associations to a consultation when necessary.
Article 40 – The circumstances when disciplinary penalties will be imposed in accordance with Article 134 of the Attorneyship Law have been modified with the addition of “contradicting the professional rules of attorneyship.”
Article 41 – Article 135 of the Attorneyship Law has been amended with the addition of the penalties of dismissal from work and deletion from the roster for attorney partnerships.
Article 42 – Article 138 of the Attorneyship Law has been revised by adding to the first paragraph the expression “This provision will not be applied to the period of apprenticeship,” meaning that disciplinary prosecution may be initiated even if the acts and conduct during the apprenticeship period may not be punishable with disbarment.
Article 43 – The third paragraph of Article 141 of the Attorneyship Law on the initiation of disciplinary prosecution has been reworded to explain the general authority to prosecute since the elaborate procedural provisions regarding the initiation and conduct of the prosecution were not considered necessary.
Article 44 – The first sentence of the fourth paragraph of Article 142 of the Attorneyship Law has been revised to accommodate the amendment to Article 71.
Article 45 – The first paragraph of Article 144 of the Attorneyship Law has been amended by the addition of the expression “The file forwarded to the disciplinary board will contain also the attorney’s professional record.”
Article 46 – The second paragraph of Article 153 of the Attorneyship Law has been amended by the addition of the expression “However, separately inviting and hearing an attorney is not obligatory if notice could not be served to the attorney at the address he/she had given to the bar association,” thereby preventing the delaying of disciplinary board decisions due to the difficulty of serving notice to attorneys who do not communicate their changes of address or cannot be found at their declared address.
Article 47 – The expression “for whom an arrest warrant has been issued and” has been deleted from the first paragraph of Article 154 of the Attorneyship Law in consideration of the fact that recourse is sometimes had to a decision of detention in absence for very minor offenses and, even if the decision is eventually revoked, the attorney suffers injury due to mandatory prohibition from practice and becomes unduly disgraced in the professional community, which has been a source of complaint. As a matter of fact, the active practice of attorneyship will be impossible in the case of either detention in præsentia or the commutation of the decision of detention in absentia to detention in præsentia since the attorney will be imprisoned at any rate. The deletion of this provision is therefore considered appropriate.
Article 48 – The first paragraph of Article 156 of the Attorneyship Law has been amended by the deletion of the expression “or the payment of the fee indicated in the last paragraph of Article 42” on the consideration that this should not be one of the conditions for the automatic nullification of the decision of prohibition from practice, and that the existence of the circumstances of termination of prosecution or the imposition of a punishment not impeding the practice of attorneyship should be sufficient for the automatic nullification of the decision of prohibition from practice.
Article 49 – The first sentence of the seventh paragraph of Article 157 of the Attorneyship Law has been revised to reflect the amendment to Article 71.
Article 50 – The second paragraph of Article 158 of the Attorneyship Law has been expanded by the addition of the expression “professional rules” to the principles to be taken into consideration in deciding disciplinary penalties.
Article 51 – The heading of Part Eleven of the Attorneyship Law has been changed from “Attorneyship Fee” to “Attorneyship Contract”; and the heading of Article 163 of the Attorneyship Law has been changed from “Free negotiation of the attorneyship fee” to “Scope of the attorneyship contract.” Article 163 has also been reworded to clearly indicate the scope of the attorneyship contract.
Article 52 – Article 164 has been amended by the revision of the provisions governing the attorneyship fee.
Article 53 – Article 165 of the Attorneyship Law on “joint and several liability for payment of attorneyship fee” has been amended by the introduction of joint and several liability also to “lawsuits and cases that have been concluded with an agreement between the parties by means of peaceful settlement or any other means whatsoever and thus not settled in court.”
Article 54 – A provision that the attorneyship fee will also carry preference in the event of the client’s bankruptcy has been added to the end of the second paragraph of Article 166 of the Attorneyship Law. However, the provision of the first paragraph of Article 206 of the Enforcement and Bankruptcy Law is reserved.
Article 55 – The limit of one billion Turkish Liras in the second paragraph of the currently effective Article 169 has been reset at fifty billion Turkish Liras in view of the loss of value of the national currency, with the additional provision that this amount is to be increased by a tenth every year.
Article 56 – The first paragraph of Article 171 of the Attorneyship Law has been amended by the introduction of the provision that attorneys are to follow the jobs they are commissioned with through to their completion regardless of the absence of a written contract. Reference will no doubt be made to a written contract where one exists.
Article 57 – The articles of the Attorneyship Law on judicial aid have been thoroughly amended to render this legal institution functional. In this context, the heading of Article 176 has been changed from “Judicial aid” to “Scope of judicial aid”; and its content has been changed from the establishment of the judicial aid office to the definition of judicial aid.
Article 58 – The heading of Article 177 has also been changed in keeping with the overall revision; and greater clarity has been brought to judicial aid service being rendered by a judicial aid office established at the headquarters of bar associations, the designation of an attorney as the representative of the judicial aid office in judicial districts outside the location of the bar association where more than five attorneys are available, and the judicial aid office and the representatives operating under the supervision of the board of directors of the bar association.
Article 59 – Article 178 of the Attorneyship Law has been amended together with its heading to prescribe how a request for judicial aid is to be made.
Article 60 – The heading of Article 179 of the Attorneyship Law has been changed to “Administration of judicial aid” and provisions have been specified as to the relevant procedures.
The interests of the judicial aid requestor have been safeguarded by the introduction of the provisions that the attorney’s obligation to render judicial aid services will only cease to exist if the requestor fails to furnish the required documents and information despite a request or refrains from giving a power of attorney, and that an attorney wishing to abstain from performing the job will be under the obligation to pay to the bar association the fee indicated for that job in the tariff within fifteen days as of the date he/she received notice of the assignment.
Article 61 – Article 180 of the Attorneyship Law has been amended together with its heading. The revenues and expenditures of the judicial aid office, the sources of revenue and the reasons for spending have been itemized in subparagraphs to ensure a reliable and permanent source. Procedures have also been prescribed for the spending of the funds. The major source of revenue is conceived as twenty-five percent of the jurisdictional charges and notarization charges; and twenty-five percent of fines excluding fines of an administrative nature.
Article 62 – Article 181 of the Attorneyship Law has been amended together with its heading, obligating judicial aid offices with submitting a report to the board of directors of the bar association every year on their activities and furnishing a copy to the Union of Bar Associations of Turkey; and tasking the Union of Bar Associations of Turkey with issuing a regulation on the establishment of judicial aid offices, the appointment of their attorney staff and the determination of the fees, and the operation and inspection of the offices with a view to ensuring the operation of the judicial aid offices in accordance with their goals, their strict inspection, and the effective rendering of the service of judicial aid.
Article 63 – This Article revokes the obligation of attorneys to obtain permission from the Ministry of Justice in order to participate in international meetings and conferences for the purpose of representing the Union of Bar Associations of Turkey or their respective bar associations and prescribes that simply informing the Ministry of Justice will be adequate for the purpose.
Article 64 – The second paragraph of Provisional Article 13 of the Attorneyship Law has been revised to reflect the amendment to Article 71.
Article 65 – Provisional Article 20 has been added to the Attorneyship Law to allow the readmission into apprenticeship or attorneyship of those whose names were deleted from the apprentice roster, not entered in the directory of the bar association, or subsequently deleted from the directory of the bar association on the grounds of engagement in services incompatible with attorneyship, on condition that they disengage themselves from the services incompatible with attorneyship. Provisions have also been introduced pertaining to the time to be granted and the procedure for application of those in such status as well as the discontinuation of criminal prosecution against them and the non-imposition of punishment.
Provisional Article – The Provisional Article has been written in order to ensure that the provisions pertaining to the examination to be administered at the end of the apprenticeship period in accordance with this Law will not be applicable to those who commenced their apprenticeship before the publication of the Law.
Article 66 – Pertains to entry into effect.
Article 67 – Pertains to enforcement.

(*) Reason for Law number 4667 dated 2 May 2001, Term: 21, Legislative Year : 2, The Grand National Assembly of Turkey (Number 413).
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