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Turkish Personal Data Protection Law No.6698
Enacted on 24/3/2016 Published in the Official Gazette Date: 7/4/2016 No: 29677
CHAPTER I PURPOSE, SCOPE, AND DEFINITONS Purpose ARTICLE 1 – (1) The purpose of this Law is to protect the fundamental rights and freedoms of persons, privacy of personal life in particular, while personal data are processed, and to set forth obligations of natural and legal persons who process personal data and procedures and principles to comply with for the same.
Scope ARTICLE 2 – (1) The provisions of this Law shall apply to natural persons whose personal data are processed and natural or legal persons who process such data wholly or partly by automatic means or otherwise than by automatic means which form part of a filing system.
Definitions ARTICLE 3 – (1) In practice of this Law, the terms used herein shall have the following meanings:
a) Explicit Consent: Freely given specific and informed consent;
b) Anonymization: Rendering personal data by no means identified or identifiable with a natural person even by linking with other data;
c) President: President of the Board of Protection of Personal Data;
ç) Data subject : Natural person whose personal data are processed;
d) Personal Data: Any information relating to an identified or identifiable natural person;
e) Processing of personal data: Any operation which is performed upon personal data such as collection, recording, storage, preservation, alteration, adaptation, disclosure, transfer, retrieval, making available for collection, categorization or blocking its use by wholly or partly automatic means or otherwise than by automatic means which form part of a filing system;
f) Board: The Board of Protection of Personal Data;
g) Authority: The Authority of Protection of Personal Data;
ğ) Data processor: Natural or legal person who processes personal data based on the authority granted by and on behalf of the data controller;
h) Filing system : Any recording system through which personal data are processed by structuring according to specific criteria;
ı) Data controller: Natural or legal person who determines the purposes and means of the processing of personal data, and who is responsible for establishment and management of the filing system.
CHAPTER II PROCESSING OF PERSONAL DATA General Principles ARTICLE 4 – (1) Personal data shall only be processed in accordance with the procedures and principles set forth by this Law or other laws.
(2) The below principles shall be complied with when processing personal data:
a) Being in conformity with the law and good faith;
b) Being accurate and if necessary, up to date;
c) Being processed for specified, explicit, and legitimate purposes;
ç) Being relevant, limited and proportionate to the purposes for which data are processed;
d) Being stored only for the time designated by relevant legislation or necessitated by the purpose for which data are collected.
Conditions for Processing of Personal Data ARTICLE 5 – (1) Personal data shall not be processed without obtaining the explicit consent of the data subject.
(2) Personal data may be processed without obtaining the explicit consent of the data subject if one of the below conditions exists:
a) It is expressly permitted by any law;
b) It is necessary in order to protect the life or physical integrity of the data subject or another person where the data subject is physically or legally incapable of giving consent;
c) It is necessary to process the personal data of parties of a contract, provided that the processing is directly related to the execution or performance of the contract;
ç) It is necessary for compliance with a legal obligation which the controller is subject to;
d) The relevant information is revealed to the public by the data subject herself/himself;
e) It is necessary for the institution, usage, or protection of a right;
f) It is necessary for the legitimate interests of the data controller, provided that the fundamental rights and freedoms of the data subject are not harmed.
Conditions for Processing of Special Categories of Personal Data ARTICLE 6 – (1) Data relating to race, ethnic origin, political opinions, philosophical beliefs, religion, sect or other beliefs, appearance and dressing, membership of association, foundation or trade-union, health, sexual life, criminal conviction and security measures, and biometrics and genetics are special categories of personal data.
(2) It is prohibited to process special categories of personal data without obtaining the explicit consent of the data subject.
(3) Personal data indicated in paragraph 1, other than personal data relating to health and sexual life, may be processed without obtaining the explicit consent of the data subject if processing is permitted by any law. Personal data relating to health and sexual life may only be processed without obtaining the explicit consent of the data subject for purposes of protection of public health, operation of preventive medicine, medical diagnosis, treatment, and care services, planning and management of health services and financing by persons under the obligation of secrecy or authorized institutions and organizations.
(4) It is additionally required to take the adequate measures designated by the Board when special categories of personal data are processed.
Deletion, Destruction, and Anonymization of Personal Data ARTICLE 7 – (1) Personal data that is processed in accordance with this Law or relevant other laws shall be deleted, destroyed or anonymised either ex officio or upon request by the data subject in case the reasons necessitating their processing cease to exist.
(2) Provisions of other laws relating to deletion, destruction, and anonymization of personal data are reserved.
(3) Procedures and principles relating to deletion, destruction and anonymization of personal data shall be set forth by a regulation.
Transfer of Personal Data ARTICLE 8 – (1) Personal data shall not be transferred without obtaining the explicit consent of the data subject.
(2) Personal data may be transferred without obtaining the explicit consent of the data subject if one of the conditions set forth under the following exists:
a) The second paragraph of article 5,
b) On the condition that adequate measures are taken, the third paragraph of article 6.
(3) Provisions of other laws relating to the transfer of personal data are reserved.
Transfer of Personal Data Abroad ARTICLE 9 – (1) Personal data shall not be transferred abroad without obtaining the explicit consent of the data subject.
(2) Personal data may be transferred abroad without obtaining the explicit consent of the data subject if one of the conditions set forth in the second paragraph of article 5 or third paragraph of article 6 is present and
a) If the foreign country to whom personal data will be transferred has an adequate level of protection,
b) In case there is not an adequate level of protection, if the data controllers in Turkey and abroad commit, in writing, to provide an adequate level of protection and the permission of the Board exists.
(3) The countries where an adequate level of protection exist shall be declared by the Board.
(4) The Board shall decide whether there is adequate level of protection in a foreign country and whether approval will be granted in terms of indent (b) of the second paragraph by evaluating
a) The international agreements to which Turkey is a party,
b) Reciprocality regarding transfer of personal data between the country requesting personal data and Turkey,
c) With regard to each present transfer of personal data, nature of personal data and purpose of processing and retention,
ç) Relevant legislation and practice of the country to whom personal data will be transferred,
d) Measures committed by the data controller in the country to whom personal data will be transferred
and if it requires, by obtaining the opinion of relevant public institutions and organizations.
(5) Save for the provisions of international agreements, in cases where interests of Turkey or the data subject will be seriously harmed, personal data shall only be transferred abroad upon the approval of the Board by obtaining the opinion of relevant public institutions and organizations.
(6) Provisions of other laws relating to the transfer of personal data abroad are reserved.
CHAPTER III RIGHTS AND OBLIGATIONS Data Controller's Obligation to Inform ARTICLE 10 – (1) Data controller or the person it authorized is obligated to inform the data subjects while collecting the personal data with regard to
a) The identity of the data controller and if any, its representative,
b) The purposes for which personal data will be processed,
c) The persons to whom processed personal data might be transferred and the purposes for the same,
ç) The method and legal cause of collection of personal data,
d) The rights set forth under article 11.
Rights of Data Subject ARTICLE 11 – (1) Everyone, in connection with herself/himself, has the right to;
a) Learn whether or not her/his personal data have been processed;
b) Request information as to processing if her/his data have been processed;
c) Learn the purpose of processing of the personal data and whether data are used in accordance with their purpose;
ç) Know the third parties in the country or abroad to whom personal data have been transferred;
d) Request rectification in case personal data are processed incompletely or inaccurately;
e) Request deletion or destruction of personal data within the framework of the conditions set forth under article 7;
f) Request notification of the operations made as per indents (d) and (e) to third parties to whom personal data have been transferred;
g) Object to occurrence of any result that is to her/his detriment by means of analysis of personal data exclusively through automated systems;
ğ) Request compensation for the damages in case the person incurs damages due to unlawful processing of personal data
by applying to the data controller.
Obligations Regarding Data Security ARTICLE 12 – (1) Data controller shall take all necessary technical and organizational measures for providing an appropriate level of security in order to
a) Prevent unlawful processing of personal data,
b) Prevent unlawful access to personal data,
c) Safeguard personal data.
(2) In case personal data are processed on behalf of the data controller by another natural or legal person, the data controller shall be jointly liable with such persons with regard to taking the measures set forth in the first paragraph.
(3) The data controller is obligated to carry out or have carried out necessary inspections within his institution and organization in order to ensure implementation of the provisions of this Law.
(4) Data controller and persons who process data shall not disclose and misuse personal data they learned contrary to the provisions of this Law. This obligation shall continue after leaving office.
(5) In case processed personal data are acquired by others through unlawful means, the data controller shall notify the data subject and the Board of such situation as soon as possible. The Board, if necessary, may declare such situation on its website or by other means which it deems appropriate.
CHAPTER IV APPLICATION, COMPLAINT, DATA CONTROLLERS' REGISTRY Application to Data Controller ARTICLE 13 – (1) The data subject shall convey her/his requests relating to the enforcement of this Law to the data controller in writing or by other means designated by the Board.
(2) The data controller shall conclude the requests included in the application free of charge and as soon as possible considering the nature of the request and within 30 days at the latest. However, in case the operation necessitates a separate cost, the fee in the tariff designated by the Board may be collected.
(3) The data controller shall accept the request or reject it by explaining the reason and notify the data subject of its reply in writing or electronically. In case the request included in the application is accepted, it shall be fulfilled by the data controller accordingly. In case the request is resulted from the fault of the data controller, the collected fee shall be returned to the data subject.
Complaint to the Board ARTICLE 14 – (1) In case the application is rejected, replied insufficiently, or not replied in due time; the data subject may file a complaint with the Board within 30 days following the date he/she learns the reply of the data controller and in any event, within 60 days following the date of application.
(2) Complaint remedy cannot be applied to without exhausting the application remedy set forth under article 13.
(3) Compensation rights of the ones whose personal rights are violated are reserved.
Procedures and Principles of Inspection Ex Officio or upon Complaint ARTICLE 15 – (1) The Board shall conduct necessary inspection within the scope of its remit either ex officio in case it learns the allegation of a violation or upon complaint.
(2) Notices and complaints which do not meet the conditions set forth under the 6th article of The Law on the Exercise of the Right to Petition numbered 3071 and dated 1/11/1984 shall not be inspected.
(3) Except for the information and documents that constitute state secrets; data controller shall submit the information and documents requested by the Board related to its subject of inspection in 15 days and if necessary, provide for examining on-site.
(4) Upon complaint, the Board inspects the request and replies to those concerned. If not replied within sixty days following the date of the complaint, the request shall be deemed to be rejected.
(5) As a result of the inspection conducted either ex officio or upon complaint, in case it is understood that a violation exists, the Board decides that the illegalities it identified shall be eliminated by the data controller and serves it to those concerned. This decision shall be fulfilled accordingly without delay and within 30 days at the latest as from the notice.
(6) As a result of the inspection conducted either ex officio or upon complaint, in case it is determined that the violation is prevalent, the Board shall adopt a resolution and publish it. The Board, if necessary before adopting the resolution, may obtain the opinion of relevant public institutions and organizations.
(7) In case serious or irreparable losses occur and illegality clearly exists, the Board may decide processing of data or transfer of data abroad to be ceased.
Data Controllers' Registry ARTICLE 16 – (1) Under the supervision of the Board, Data Controllers Registry shall be kept by the Presidency in a publicly available manner.
(2) Natural or legal persons who process personal data shall register with the Data Controllers Registry prior to commencing processing. However, considering objective criteria that shall be designated by the Board such as the characteristics and the number of data to be processed, whether or not data processing is based on any law, or whether data will be transferred to third parties, the Board may set forth exemptions to the obligation to register with the Data Controllers Registry.
(3) Registry application to the Data Controllers Registry shall be made with a notification including the following matters:
a) Identity and address information of the data controller and of the representative thereof, if any.
b) The purposes for which personal data will be processed.
c) The group or groups of persons subject to the data and explanations regarding data categories belonging to these persons.
ç) Recipient or groups of recipients to whom personal data may be transferred.
d) Personal data which is envisaged to be transferred abroad.
e) Measures taken for the security of personal data.
f) The maximum period of time necessitated by the purposes for which personal data are processed.
(4) Changes to the information provided as per the third paragraph shall be immediately reported to the Board.
(5) Other procedures and principles relating to the Data Controllers Registry shall be regulated by a regulation.
CHAPTER V CRIMES AND MISDEMEANOURS Crimes ARTICLE 17 – (1) With respect to crimes relating to personal data, provisions of articles 135 to 140 of Turkish Criminal Code dated 26/9/2004 and numbered 5237 shall apply.
(2) Ones who do not delete or anonymise personal data contrary to article 7 of this Law shall be punished in accordance with article 138 of the Law numbered 5237.
Misdemeanours ARTICLE 18 – (1) To the ones who do not fulfil
a) Obligation to inform stipulated in article 10 of this Law, an administrative fine of 5.000 Turkish liras to 100.000 Turkish liras;
b) Obligations regarding data security stipulated in article 12 of this Law, an administrative fine of 15.000 Turkish liras to 1.000.000 Turkish liras;
c) Decisions of the Board as per article 15 of this Law, an administrative fine of 25.000 Turkish liras to 1.000.000 Turkish liras;
ç) Obligation to register with the Data Controllers Registry and notification stipulated by article 16 of this Law, an administrative fine of 20.000 Turkish liras to 1.000.000 Turkish liras
shall be imposed.
(2) Administrative fines envisaged by this article shall apply to natural persons and private law legal persons who are data controllers.
(3) In case the acts listed in the first paragraph are conducted within public institutions and organizations or professional organisations with public institution status, upon notification of the Board, disciplinary action shall be taken with regard to the officers and other public officials who serve under the relevant public institution or organization and the ones who serve under the professional organisations with public institution status, and the result shall be reported to the Board.
CHAPTER VI1 PERSONAL DATA PROTECTION AUTHORITY AND ORGANISATION Personal Data Protection Authority ARTICLE 19 – (1) Personal Data Protection Authority which has administrative and financial autonomy and public legal personality has been established in order to perform the duties stipulated by this Law.
(2) The Authority is affiliated with the Prime Minister's Office.
(3) The headquarters of the Authority is in Ankara.
(4) The Authority is comprised of the Board and the Presidency. The Board serves as the decision-making body of the Authority.
Duties of the Authority ARTICLE 20- (1) The duties of the Authority are as follows:
a) Following the practices and the developments in the legislation, giving evaluations and recommendations, carrying out researches and inspections or having them carried out in this regard, according to its scope of authority.
b) Cooperating with public institutions and organizations, nongovernmental organizations, professional organizations or universities, when necessary, regarding the issues which fall within the scope of its authority.
c) Following and evaluating the international developments concerning personal data, cooperating with international organizations on the matters which fall within the scope of its authority, attending the meetings.
ç) Presenting the annual activity report to the Presidency, the Committee on Human Rights Inquiry of the Grand National Assembly of Turkey and to the Prime Minister's Office.
d) Performing the other duties assigned by laws.
Personal Data Protection Board ARTICLE 21 - (1) The Board shall independently perform and use its duties and powers provided in this Law and the other laws under its own responsibility. No body, authority, institution or person can give orders or instructions, recommendations or suggestions on the matters which fall within the scope of its authority.
(2) The Board shall be comprised of nine members. Five members of the Board shall be elected by the Grand National Assembly of Turkey, two members by the Presidency and two members by the Council of Ministers.
(3) The following conditions shall be required for the membership of this Board:
a) Having knowledge and experience on the matters which fall within the scope of authority of the Board,
b) Having the qualifications stipulated in the subclauses (1), (4), (5), (6) and (7) of the subparagraph (a) under the first paragraph of Article 48 in the Law No. 657 dated 14/7/1965 on Civil Servants,
c) Not being the member of any political party,
ç) Having received at least four-year higher education at the level of bachelor degree,
d) Having served for at least ten years in total in public institutions and organizations, international organizations, nongovernmental organizations or professional organizations with public institution status or in private sector.
(4) Those who will be elected as the member of the Board shall be asked to give consent. Attention shall be attached to the pluralist representation of those who have knowledge and experience on the matters which fall within the scope of authority of the Board.
(5) The Grand National Assembly of Turkey shall follow the procedure below while electing members to the Board:
a) Twice the number of members to be designated in proportion to that of the political party groups shall be nominated for the election and the members of the Board shall be elected among these candidates, by the Plenary of the Grand National Assembly of Turkey, based on the number of members per political party group. However, no deliberation can be held or no decision can be taken in the political party groups regarding who will be voted for in the elections to be held in the Grand National Assembly of Turkey.
b) The members of the Board shall be elected within ten days following the designation and announcement of candidates. A split ticket shall be prepared as separate lists for the candidates nominated by the political party groups. The special place allocated for the names of the candidates shall be marked for voting. The votes casted more than the number of members to be elected to the Board from the quota of the political party groups set under the second paragraph shall be deemed invalid.
c) Candidates who receive the most votes in the election shall be selected based on the number of vacant positions provided that a quorum exists.
ç) In case of vacancy in the membership for any reason two months before the end of office of the members, new members shall be elected under the same procedure within one month following the date on which the position falls vacant or, if the Grand National Assembly of Turkey is at recess, following the end of the recess. In these elections, the number of the members designated from the quota of the political party groups in the first election and the current proportion of the political party groups shall be taken into account in the distribution of the vacant membership to the political party groups.
(6) In cases where the office of one of the members elected by the President or the Council of Ministers ends forty-five days earlier or the office ends for any reason, it shall be notified by the Authority to the Prime Minister's Office within fifteen days, for its submittal to the President's Office or the Council of Ministers. New members shall be elected one month before the end of office of current members. In cases where the position falls vacant before the end of office within the scope of these memberships, the elections shall be held within fifteen days following the notification.
(7) The Board shall elect the President and the Second President among its members. The President of the Board is also the president of the Authority.
( The term of office of the members of the Board is four years. The member whose term ends can be re-elected. The person who replaces a member whose term of office ends for any reason without fulfilling his/her office shall complete the rest of the term.
(9) The selected members shall swear the following oath before the First Presidency of the Court of Cassation: "I swear on my honour and dignity that I will perform my duty in accordance with the Constitution and the laws and within the understanding of full impartiality, honesty, fairness and justice." The application for oath to the Court of Cassation is deemed among prompt actions.
(10) The members of the Board cannot assume any official or private duty apart from the performance of the official duties in the Board as long as it is not prescribed in a special law; nor can they manage an association, foundation, cooperative or similar entities, engage in trade, conduct independent business activities or serve as arbitrator or expert. However, the members of the Board can make scientific publications, give lectures and conferences in a way that will not hinder their fundamental duties and can be paid for the lectures and conferences within the scope of the copyrights arising from them.
(11) The investigations regarding the crimes which are allegedly committed by the members because of their duties shall be conducted in accordance with the Law No. 4483 dated 2/12/1999 on the Trial of State Employees and Other Civil Servants and the permission for these investigations shall be granted by the Prime Minister.
(12) The provisions of the Law No. 657 shall apply in the disciplinary investigation and prosecution to be conducted with respect to the members of the Board.
(13) The office of the members of the Board cannot be terminated without expiry of the mentioned term of office. The membership of the Board members shall be terminated upon the decision of the Board in cases where;
a) it is later understood that they do not fulfil the necessary requirements for election,
b) the verdict of conviction is finalized for the crimes they have committed because of their duties,
c) it is definitely confirmed through a medical board report that they cannot perform their duties,
ç) it is verified that they have not continued to serve successively for fifteen days without permission and excuse or for thirty days in total in one year,
d) it is verified that they have not attended the Board meetings three times in one month without permission or excuse or ten times in total in one year.
(14) Those who are elected as the members of the Board shall be discharged from their previous positions in the Board. Those who are elected as members while serving as state officials shall be appointed to an appropriate cadre by the competent authority within one month in cases where their term of office ends or they apply to the previous institution within thirty days provided that they do not lose the requirements to serve as state officials. The Board shall continue to make any kind of payment that these persons receive until they are appointed. For those who are elected as members while they have not served in a public institution and whose office ends as prescribed above, the Board shall continue to make any kind of payment they receive until they start to serve in any other duty or job and the payment that the Board will make to those whose membership ends as such cannot be provided for more than three months. The term of office of these persons in the Authority shall be deemed to have been served in the previous institutions or organizations in terms of the personal and other rights entitled to them.
Duties and powers of the Board ARTICLE 22- (1) The duties and powers of the Board are as follows:
a) Ensuring that personal data are processed in accordance with the fundamental rights and freedoms.
b) Taking a final decision with respect to the complaints that the rights relating to personal data are violated.
c) Reviewing whether personal data are processed in accordance with the laws upon a complaint or ex officio when it is notified of the allegation of violation, regarding the issues which fall within its remit, and taking interim measures in this regard when necessary.
ç) Determining the adequate measures required for the processing of special categories of personal data.
d) Ensuring that the Register of Controllers is kept.
e) Carrying out the necessary regulatory actions in the issues relating to the remit of the Board and the functioning of the Authority.
f) Carrying out the regulatory actions in order to set out the liabilities relating to data security.
g) Carrying out the regulatory actions relating to the duties, powers and responsibilities of the controller and his representative.
ğ) Deciding on the administrative sanctions prescribed by this Law.
h) Expressing opinions on the draft legislation which is prepared by the other institutions and organizations and includes the provisions relating to personal data.
ı) Taking a final decision on the strategic plan, determining the objectives and goals, the service quality standards and the performance criteria.
i) Holding meetings and taking a final decision on the budget proposal prepared in accordance with the strategic plan of the Authority and its objectives and goals.
j) Approving and publishing the draft reports prepared with respect to the performance, financial standing, annual activities of the institution and to necessary matters.
k) Discussing and giving a final decision on the proposals regarding the purchase, sales and renting of immovables.
l) Performing the other duties assigned by law.
Rules of procedures of the Board ARTICLE 23 - (1) The President shall set the meeting dates and agenda of the Board. The President can summon the Board for an extraordinary meeting in necessary cases.
(2) The Board shall convene with at least six members including the President and shall take decisions by absolute majority of the total number of members. The members of the Board cannot abstain from voting.
(3) The Board members cannot attend the meetings or voting regarding the matters which concern themselves, their third degree blood relatives and second degree relatives by marriage, their adopted children and their spouses even though the bonds of matrimony between them does not exist any longer.
(4) The Board members cannot impart any secret that they learn with respect to the concerning persons and third persons during their works to anyone other than lawfully competent authorities or use it in favour of themselves.
(5) Minutes shall be written regarding the issues deliberated in the Board. Decisions and, if any, justification of dissenting votes shall be written within fifteen days at the latest following the date of decision. The Board shall announce the decisions to the public if it deems necessary.
(6) The deliberations in the Board meetings shall be kept confidential unless decided otherwise.
(7) The working procedures and principles of the Board, the writing of decisions and other issues shall be regulated under a by-law.
President ARTICLE 24 - (1) The President shall be the highest official in the Authority in his/her capacity as the President of the Board and Authority and shall arrange, carry out the services of the Authority in accordance with the legislation, the objectives and policies of the Authority, its strategic plan, performance criteria and service quality standards and shall ensure coordination between the service units.
(2) The President shall be responsible for the general management and representation of the Authority. This responsibility shall cover the duties and powers of organizing, carrying out, inspecting, evaluating the works of the Authority and announcing them to the public when necessary.
(3) The duties of the President are as follows:
a) Acting as chairperson in the Board meetings.
b) Ensuring that the Board decisions are notified and some decisions are announced to the public if deemed necessary by the Board and following their implementation.
c) Appointing the Deputy President, heads of departments and the personnel of the Authority.
ç) Giving a final form to the proposals coming from the service units and presenting them to the Board.
d) Ensuring that the strategic plan is implemented, creating the human resources and operation policies.
e) Preparing the annual budget and financial statement of the Authority in accordance with the strategies, annual objectives and goals.
f) Ensuring coordination so that the Board and the service units work conformably, efficiently and in a disciplined and orderly manner.
g) Maintaining the relations of the Authority with the other organizations.
ğ) Determining the duties and scope of authority of the competent personnel who are entitled to sign on behalf of the President of the Authority.
h) Performing the other duties related to the management and functioning of the Authority.
(4) The Second President shall act for the President in the absence of the President of the Authority.
Establishment and duties of the Presidency ARTICLE 25 - (1) The Presidency shall be composed of Deputy President and service units. The Presidency shall perform the duties enumerated under the fourth paragraph through the service units organized as departments. The number of departments cannot be more than seven.
(2) A Deputy President shall be appointed to assist the President in his duties under the Authority.
(3) The Deputy President and heads of departments shall be appointed by the President, among the persons who are graduates from at least a four-year higher education institution and who have carried out public service for ten years.
(4) The duties of the Presidency are as follows:
a) Keeping the Register of Controllers.
b) Carrying out the bureau and secretariat actions of the Authority and the Board.
c) Representing the Authority by means of lawyers in the cases which the Authority is party to and in execution proceedings, following the cases or having them followed and conducting legal services.
ç) Carrying out the personnel affairs of the Board members and those who serve in the Authority.
d) Performing the duties assigned by law to the departments of financial services and strategy development.
e) Ensuring that an information system is installed and used in order to conduct the affairs and actions of the Authority.
f) Preparing and presenting the draft reports regarding the annual activities of the Board and the necessary matters.
g) Preparing the draft strategic plan of the Authority.
ğ) Setting out the personnel policy of the Authority, preparing and implementing the career and training plans of the personnel.
h) Carrying out the appointments, transfers, disciplinary actions, performances, promotions, retirements and similar actions of the personnel.
ı) Setting out the ethical rules to be followed by the personnel and providing necessary training.
i) Carrying out any kind of services such as purchase, sales, renting, maintenance, repairing, construction, archive, health as well as social services and similar services necessitated by the Authority under the Public Financial Management and Control Law No. 5018 dated 10/12/2003.
j) Keeping records of the movables and immovables of the Authority.
k) Performing the other duties assigned by the Board or the President.
(5) The service units and the working procedures and principles of these units shall be regulated by the by-law enacted by the decision of the Council of Ministers upon the proposal of the Authority, in accordance with the scope of authority, duties and powers of the service units stipulated under this Law.
Specialists and assistant specialists on Personal Data Protection ARTICLE 26 - (1) Specialists on Personal Data Protection and Assistant Specialists on Personal Data Protection can be employed in the Authority. The degrees of those who are appointed as Specialists on Personal Data Protection within the framework of the additional article 41 of the Law No. 657 shall be increased for one time only.
Provisions relating to the personnel and their personal rights ARTICLE 27 - (1) The personnel of the Authority shall be subjected to the Law No. 657, apart from the issues regulated by this Law.
(2) The payments shall be made to the president and members of the Board and the personnel of the Authority in the same procedure and principles as the payments made to the exemplified personnel within the scope of the financial and social rights, under the additional article 11 of the Decree Law No. 375 dated 27/6/1989. Those who are not subjected to taxes or another legal deduction from the payments made to the exemplified personnel shall not be subjected to any tax or deduction under this Law.
(3) The president and members of the Board and the personnel of the Authority shall be subjected to the provisions of the subparagraph (c) under the first paragraph of Article 4 of the Law No. 5510 dated 31/5/2006 on Social Security and General Health Insurance. The president and members of the Board and the personnel of the Authority shall be deemed equal to the exemplified personnel in terms of pension rights. The term of office of those whose office expires or those who
request for resignation among those who are appointed as president and members of the Board while they are covered by an insurance policy within the scope of the subparagraph (c) under the first paragraph of Article 4 of the Law No. 5510 shall be taken into account while determining the salaries, degrees and levels as their vested rights. The term of office of those who fall within the scope of the provisional article 4 of the Law No. 5510 during such office shall be evaluated as the period during which the executive compensation and representative compensation should be paid. For those who are appointed as the President and members of the Board while they are insured in the public institutions and organizations, within the scope of the subparagraph (a) of the first paragraph under Article 4 of the Law No. 5510, their discharge from the previous institutions and organizations shall not require any seniority or termination indemnity. The term of office of those who are in this situation for which seniority or termination indemnity should be paid shall be combined with their term of office in the past as the President and member of the Board and this total term shall be considered for the payment of gratuity.
(4) The civil servants and other state officials serving in public agencies under the central administration, social security institutions, local administrations, the agencies under local administrations, local administrative units, institutions with the circulating capital, funds established by law, organizations with public legal personality, organizations with over half the capital which belongs to the public, public economic enterprises and public economic organizations and the partnerships and entities affiliated with them can be temporarily assigned in the Authority provided that their institution pay the salary, allowance, any kind of salary increase and indemnity as well as other financial and social rights and assistance with the consent of the mentioned institutions. The requests of the Authority on this matter shall be finalized primarily by the relevant institutions and organizations. The personnel who are assigned as such shall be deemed to be on paid leave from their institutions. The civil service, relevance and rights of this personnel shall continue as long as they are on leave and this term shall be taken into account in their promotion and retirement process. Their promotion shall be conducted in time, without necessitating any other action. The term of service of those who are assigned under this article shall be deemed to have served in their own institutions. Those who are assigned as such cannot exceed 10% of the total cadre number of Specialists and Assistant Specialists on Personal Data Protection and the assignment cannot exceed two years. However, this term may be extended for a period of one year if necessary.
(5) The titles and numbers of the personnel to be employed in the Authority are shown on Table (I). Titles or degrees shall be changed, new titles shall be added and vacant positions shall be cancelled upon the decision of the Board, provided that it is limited to the titles listed on the tables annexed to the Decree Law No. 190 dated 13/12/1983 on General Cadre and Procedure, not exceeding the total number of personnel.
CHAPTER VII MISCELLANEOUS PROVISIONS Exceptions ARTICLE 28 – (1) Provisions of this Law shall not be applied in the following cases:
a) Processing of personal data by natural persons in the course of a purely personal or household activity, provided that obligations relating to data security are complied with and data are not transferred to third parties.
b) Processing of personal data for the purposes of official statistics and, through anonymization, research, planning, statistics and similar.
c) Processing of personal data for the purposes of art, history, and literature or science, or within the scope of freedom of expression, provided that national defence, national security, public safety, public order, economic safety, privacy of personal life or personal rights are not violated.
ç) Processing of personal data within the scope of preventive, protective and intelligence-related activities by public institutions and organizations who are assigned and authorized for providing national defence, national security, public safety, public order or economic safety.
d) Processing of personal data by judicial authorities and execution agencies with regard to investigation, prosecution, adjudication or execution procedures.
(2) On the condition of being relevant and proportionate to the purpose and general principles of this Law, article 10 which regulates the obligation of the data controller to inform; except for right to request compensation, article 11 which regulates the rights of the data subject; and article 16 which regulates the obligation to register with the Data Controllers Registry shall not apply in the following cases:
a) Processing of personal data is necessary for prevention of crime or investigation of a crime.
b) Processing of personal data revealed to the public by the data subject herself/himself.
c) Processing of personal data is necessary, deriving from the performance of supervision or regulatory duties, or disciplinary investigation or prosecution by assigned and authorized public institutions and organizations and professional organizations with public institution status.
ç) Processing of personal data is necessary for the protection of economic and financial interests of the state related to budget, tax, and financial matters.
Kurumun bütçesi ve gelirleri Madde 29 - (1) Kurumun bütçesi, 5018 sayılı Kanunda belirlenen usul ve esaslara göre hazırlanır ve kabul edilir.
(2) Kurumun gelirleri şunlardır:
a) Genel bütçeden yapılacak hazine yardımları.
b) Kuruma ait taşınır ve taşınmazlardan elde edilen gelirler.
c) Alınan bağış ve yardımlar.
ç) Gelirlerinin değerlendirilmesinden elde edilen gelirler.
d) Diğer gelirler.
Değiştirilen ve eklenen hükümler Madde 30 - (1) (10/12/2003 tarihli ve 5018 sayılı Kanun ile ilgili olup yerine işlenmiştir.)
(2) ila (5) - (26/9/2004 tarihli ve 5237 sayılı Kanun ile ilgili olup yerine işlenmiştir.)
(6) (7/5/1987 tarihli ve 3359 sayılı Sağlık Hizmetleri Temel Kanunu ile ilgili olup yerine işlenmiştir.)
(7) (11/10/2011 tarihli ve 663 sayılı Sağlık Bakanlığı ve Bağlı Kuruluşlarının Teşkilat ve Görevleri Hakkında Kanun Hükmünde Kararname ile ilgili olup yerine işlenmiştir.)
Regulation ARTICLE 31 – (1) Regulations related to the application of this Law shall be brought into force by the Authority.
Transitional Provisions TEMPORARY ARTICLE 1 – (1) Within six months following publication of this Law, the members of the Board shall be elected in accordance with the procedure set forth under article 21 and the Presidency organisation shall be constituted.
(2) Data controllers are obligated to register with the Data Controllers Registry within the term designated and announced by the Board.
(3) Personal data that is processed before the date of publication of this Law shall be rendered compliant within two years following the date of publication of this Law. Personal data that is determined to be contrary to the provisions of this Law shall be immediately deleted, destroyed, or anonymised. However, the consents that are lawfully obtained before the date of publication of this Law shall be deemed lawful in terms of this Law8 , provided that no declaration of intention to the contrary is made within one year.
(4) The regulations prescribed in this Law shall be brought into force within one year following the date of publication of this Law.
(5) A senior executive who is to provide coordination of the application of this Law in public institutions and organizations shall be determined and reported to the Presidency within one year following the date of publication of this Law.
(6) The first elected President, second President and two members who are to be determined by draw shall serve for six years, and other five members for four years.
(7) Until a budget is allocated to the Authority;
a) Expenses of the Authority shall be disbursed from the budget of Prime ministry.
b) All supplemental services necessary for the Authority to provide its services such as building, vehicle, equipment, furnishings, and hardware shall be provided by the Prime ministry.
( Until the service units of the Authority enter into service, secretariat services shall be provided by the Prime ministry.
Effectiveness ARTICLE 32 – (1) This Law's
a) 8th, 9th, 11th, 13th, 14th, 15th, 16th, 17th, 18th articles shall enter into force after six months following the date of publication,
b) Other articles shall enter into force on the date of publication.
Enforcement ARTICLE 33 – (1) Provisions of this Law shall be enforced by the Council of Ministers.
Last post by admin - December 07, 2018, 12:12:01 AM
LAW ON FOREIGNERS AND INTERNATIONAL PROTECTION Law No : 6458 Acceptance Date : 4/4/2013 Official Journal Published : Date: 11/4/2013 Issue : 28615 Principle Published : Issue : 5 Volume : 53 (GAYRİ RESMİ İNGİLİZCE ÇEVİRİSİ) PART ONE PURPOSE, SCOPE, DEFINITIONS AND NON-REFOULEMET SECTION ONE Purpose, Scope and Definitions Purpose ARTICLE 1 – (1) The purpose of this Law is to regulate the principles and procedures with regard to foreigners' entry into, stay in and exit from Turkey, and the scope and implementation of the protection to be provided for foreigners who seek protection from Turkey, and the establishment, duties, mandate and responsibilities of the Directorate General of Migration Management under the Ministry of Interior. Scope ARTICLE 2 – (1) The provisions of this Law apply to the activities and actions related to foreigners; the international protection to be extended in cases of individual protection claims of foreigners at borders, the border gates or within Turkey; the immediate temporary protection to be provided to foreigners in cases when there is a large influx into Turkey and where they cannot return back to the country they were forced to leave; and, the structure, duties, mandate and responsibilities of the Directorate General of Migration Management. (2) This Law shall be implemented without prejudice to provisions of international agreements to which Turkey is party to and specific laws. Definitions ARTICLE 3 – (1)In implementation of this Law, the following definitions shall apply: 2 a) Family members: the spouse, the minor child and the dependent adult child of the applicant or the beneficiary of international protection; b) European Countries: Member States of the Council of Europe as well as other countries to be determined by the Council of Ministers; c) Minister: the Minister of Interior; ç) Ministry: the Ministry of Interior; d) Applicant: a person who made an international protection claim and a final decision regarding whose application is pending; e) Child: a person who is under the age of 18 and has not yet attained majority; f) Sponsor: a Turkish citizen or a foreigner legally staying in Turkey who undertakes the expenses of foreigners who would come to Turkey for the purpose of family reunification and who is referenced as the supporter in the application by the residence permit applicant; g) Director General: the Director General of Migration Management; ğ) Directorate General: the Directorate General of Migration Management; h) Entry and exit controls: the controls carried out at border gates; ı) Migration: regular migration whereby foreigners' legally enter into, stay in or exit from Turkey as well as irregular migration whereby foreigners enter into, stay in or exit from Turkey through illegal channels and work in Turkey without a permit; as well as international protection; i) Residential address: the domicile recorded in Turkey in the address based registration system; j) Residence permit: the permit issued for the purpose of staying in Turkey; k) Consulate: the consulate generals, consulates or the embassy consular offices of the Republic of Turkey; l) Person with special need: out of those applicants and international protection beneficiaries, an unaccompanied minor; a disabled person; an elderly person; a pregnant woman; a single mother or a single father with an accompanying child; or a person who has been subjected to torture, rape or other serious psychological, physical or sexual violence;1 m) Unaccompanied minor: a child who arrives at Turkey without the attendance of an adult who by law or custom is responsible for him/her or, is left unaccompanied after entry into Turkey, unless he/she is not taken under the active care of a person responsible for him/her; n) Travel document: a document substituting a passport; o) Border gates: the border crossing points designated by a Council of Ministers Decree for entry into and exit from Turkey; ö) Final decision: with regard to decisions concerning the claim of an applicant or the status of an international protection beneficiary; the decision of the Directorate General, where administrative review request or an appeal before the judiciary has not been made; or in case of an appeal, judicial decision which can no longer be appealed; p) Convention: the Convention Relating to the Status of Refugees of 28 July 1951, as amended by the 1967 Protocol Relating to the Status of Refugees; r) International protection: the status granted for refugee, conditional refugee, and subsidiary
1 With the 1st Article of the Law No. 6462 dated 25/4/2013, the expression of "afflicted person" was changed to "disabled person" in this article. 3 protection; s) Country of citizenship: the country of which the foreigner holds the citizenship or, in case of more than one citizenship, each of the countries of which the foreigner is a citizen; ş) Stateless person: a person who does not hold the citizenship of any state and who is considered as foreigner; t) Visa: a permission that entitles stay up to a maximum of ninety days in Turkey or to transit through Turkey; u) Visa exemption: the regulation waiving the visa requirement; ü) Foreigner: a person who does not have citizenship bond with the Republic of Turkey; v) Foreigner identification number: the identification number issued to foreigners pursuant to Population Services Law № 5490 of 25/04/2006. y) (Annex: 28/7/2016-6735/27 article) Authorized intermediary: An institution or organization, the qualifications and mission frame of which are determined by regulation and which is authorized by the Directorate General. SECTION TWO Non-refoulement Non-refoulement ARTICLE 4 – (1) No one within the scope of this of this Law shall be returned to a place where he or she may be subjected to torture, inhuman or degrading punishment or treatment or, where his/her life or freedom would be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion. PART TWO FOREIGNERS SECTION ONE Entry into Turkey and Visas Entry into and exit from Turkey ARTICLE 5 – (1) Entry into and exit from Turkey shall be through the border gates with a valid passport or travel document. Document checks ARTICLE 6 – (1) Foreigners should submit their passport or, travel document or documents to the officials at the 4 time of entry into and exit from Turkey. (2) Document checks regarding border crossings can also be carried out on vehicles while they are on route. (3) Foreigners using transit areas at airports may be subject to [document] checks by the competent authorities. (4) At the time of entry into Turkey, checks shall be carried out to determine whether or not the foreigner falls within the scope of Article 7. (5) In the implementation of this article, persons regarding whom a comprehensive check is required may only be held for a maximum of four hours. Within this period, the foreigner may either return to his country at any time or may wait for the completion of the actions for admission into the country, not limited with the four-hour period. The principles and procedures governing comprehensive control actions shall be stipulated in a Directive. Foreigners who shall be refused to enter into Turkey ARTICLE 7 – (1) Foreigners who shall be refused to enter into Turkey are those: a) who do not hold a passport, a travel document, a visa or, a residence or a work permit or, such documents or permits has been obtained deceptively or, such documents or permits are false; b) whose passport or travel document expires sixty days prior to the expiry date of the visa, visa exemption or the residence permit; c) without prejudice to paragraph two of Article 15, foreigners listed in paragraph one of Article 15 even if they are exempted from a visa. (2) Actions in connection with this Article shall be notified to foreigners who are refused entry. This notification shall also include information on how foreigners would effectively exercise their right of appeal against the decision as well as other legal rights and obligations applicable in the process. Implementation regarding international protection claims ARTICLE 8 – (1) The conditions stipulated in Articles 5, 6 and 7 shall not be construed and implemented to prevent the international protection claim. Entry ban to Turkey ARTICLE 9 – (1) The Directorate General, when necessary and upon consultation with the relevant government departments and institutions, may impose an entry ban against foreigners whose entry into Turkey is objectionable for public order, public security or public health reasons. (2) The Directorate General or governorates shall impose an entry ban for foreigners who are deported from Turkey. (3) The entry ban to Turkey shall not exceed five years. However, in cases where there is a serious public order or public security threat, this period may be extended for a maximum of an additional ten years by the Directorate General. (4) The entry ban to Turkey for foreigners whose visa or residence permit has expired and who has 5 applied to the governorates to exit from Turkey before their situation is established by the competent authorities upon which a removal decision has been taken, shall not exceed one year. (5) Among those who have been invited to leave Turkey pursuant to Article 56, an entry ban might not be imposed for those who leave the country within the specified period of time. (6) The Directorate General may revoke an entry ban or, allow the foreigner to enter into Turkey for a given period of time, without prejudice to the entry ban. (7) For reasons of public order or public security, the Directorate General may introduce advance clearance conditions for the admission of certain foreigners' to Turkey. Notification of the entry ban to Turkey ARTICLE 10 – (1) The entry ban shall be notified to foreigners who are within the scope of paragraph one of Article 9 by the competent authority at the border gate when they arrive to enter into Turkey, whereas, foreigners who are within the scope of paragraph two of Article 9 shall be notified by the governorates. The notification shall also include information on how foreigners would effectively exercise their right of appeal against the decision as well as other legal rights and obligations applicable in the process. Visa requirement, visa applications and competent authorities ARTICLE 11 – (1) Foreigners wishing to stay in Turkey for up to ninety days shall obtain a visa that indicates the purpose of their visit from the consulates of the Republic of Turkey in their country of citizenship or legal stay. The period of stay in Turkey provided by the visa or visa exemption cannot exceed ninety days within a period of one hundred and eighty days. (2) In order for visa applications to be assessed, it is required to lodge the applications in compliance with the procedure. (3) Visas shall not confer an absolute right of entry. (4) Visas shall be issued by the consulates and, in exceptional cases by the governorates in charge of the respective border gates. [The assessment of] applications lodged with consulates shall be determined within ninety days. (5) Visas for diplomats of foreign countries may be issued ex officio to by the embassies of the Republic of Turkey. Such visas shall immediately be reported to the Ministry and the Foreign Ministry in accordance with the general visa procedures. These visas are not subject to fee. (6) When necessary in view of the national interests of Turkey, a visa may exceptionally be issued ex officio by the ambassadors' of the Republic of Turkey. Visas issued for such purposes shall immediately be reported to the Ministry and the Foreign Ministry in accordance with the general visa procedures. These visas are not subject to fee. (7) The principles and procedures governing visa types and processes shall be stipulated in a Directive. Visa exemption ARTICLE 12 – (1) Visa for entry into Turkey shall not be required from those foreigners who are: 6 a) exempt from visa obligation pursuant to agreements to which the Republic of Turkey is party to or with a Council of Ministers' decree; b) holders of a residence or a work permit valid on the date of entry into Turkey; c) holders of a valid "reserved for foreigners" passport issued pursuant to Article 18 of the Passport Law № 5682 of 15/07/1950; ç) within the scope of Article 28 of the Turkish Citizenship Law № 5901 of 29/05/2009. (2) Visa requirement for entry into Turkey may not be sought from those foreigners who: a) disembark at a port city from a carrier, which has been obliged to use Turkish air and sea ports due to force majeure; b) arrive at seaports for the purpose of touristic visits to the port city or nearby cities, provided that their visit does not exceed seventy two hours. Border visa [Visas issued at border gates] ARTICLE 13 – (1) On exceptional cases, foreigners arriving at border gates without a visa, may be issued a visa provided that they document their [intended] departure from Turkey within due time. (2) Border visa shall be issued by the governorates in charge of the respective border gates. Governorates may delegate this authority to the law enforcement unit stationed at the border. Such visas shall authorise stay in Turkey for a maximum of fifteen days, unless a different duration is determined by the Council of Ministers. (3) The medical insurance requirement may be waived for humanitarian reasons for persons issued a visa at the border. Airside transit visas ARTICLE 14 – (1) Foreigners who shall be transiting through Turkey may be required to obtain an airside transit visa. Airside transit visas shall be issued by the consulates, to be used no later than six months. (2) Foreigners who would be required to obtain an airside transit a visa shall be jointly determined by the Ministry and Ministry of Foreign Affairs. Foreigners who shall be refused to take visa ARTICLE 15 – (1) Visa shall be refused for those foreigners whose/who: a) passport or travel document is not valid at least sixty days beyond the expiry date of the visa requested; b) are banned from entering Turkey; c) are considered undesirable for reasons of public order or public security; ç) are identified to have a disease posing public health threat; d) are suspects of or, are convicted of, a crime(s) that are subject to extradition pursuant to agreements to which the Republic of Turkey is a party to; e) are not covered with a valid medical insurance for the duration of their stay; f) fail to supply proof of the reason for their purpose of entry into, transit from or stay in Turkey; 7 g) do not possess sufficient and sustainable resources [for the duration of their stay] ğ) would refuse to pay receivables, originating from overstaying the duration of visa or a previous residence permit duration or, that should be enforced and collected pursuant to the Law on the Procedure of Collection of Public Receivables № 6183 of 21/07/1953 or, debts and fines enforced pursuant to the Turkish Penal Code № 5237 of 26/09/2004. (2) Nevertheless if it is deemed to be of interest to issue a visa to such a foreigner who falls within the scope of this article, a visa may be granted subject to the Minister's approval. Cancelation of visas ARTICLE 16 – (1) Visa shall be cancelled by the issuing authorities or the governorates in cases when/where: a) it is determined that the visa is exploited for fraudulent purposes; b) there is erasure, scraping or alteration detected [on the visa sticker]; c) the visa holder is banned to entry Turkey ; ç) there is strong doubt as to the foreigner may commit a crime; d) the passport or travel document is false or has expired; e) the visa or the visa exemption is used outside its purpose; f) the circumstances or documents on the grounds of which the visa was issued are determined to be not valid. (2) In case of a removal decision issued with regards to the foreigner within the duration of the visa, the visa shall be cancelled thereof. Notification of visa processes ARTICLE 17 – (1) The processes related to the refusal of a visa application or cancelation of the visa shall be notified to the visa applicant. Authority of the Council of Ministers related to visa and passport procedures ARTICLE 18 – (1) The Council of Ministers is authorised to; a) Enter into agreements determining the passport and visa procedures; and under circumstances when considered necessary, unilaterally waive the visa requirement for citizens of certain states; facilitate visa procedures, including exemption from visa fee; and, determine the duration of visas. b) Introduce terms and conditions for [the using of] passports belonging to foreigners [with regard entry into or stay in or exit from Turkey], in case of war or other extraordinary circumstances to cover a region of or the entire country. c) Take all measures setting specific conditions or restrictions regarding entry of foreigners into Turkey. SECTION TWO Residence 8 Residence permit ARTICLE 19 – (1) Foreigners who would stay in Turkey beyond the duration of a visa or a visa exemption or, [in any case] longer than ninety days should obtain a residence permit. The residence permit shall become invalid if not used within six months. Exemption from residence permit ARTICLE 20 – (1) A residence permit shall not be required from those foreigners listed below: a) who have arrived with a valid visa or by virtue of visa exemption for a stay up to ninety days, within the period of the visa or the visa exemption; b) holders of Stateless Person Identity Card; c) members of the diplomatic and consular missions in Turkey; ç) family members of diplomatic and consular officers, provided they are notified to the Ministry of Foreign Affairs; d) members of the representations of international organisations in Turkey whose status has been determined by virtue of agreements; e) who are exempt from a residence permit by virtue of international agreements which Turkey is a party to; f) who fall within the scope of Article 28 of Law № 5901; g) holders of the documents listed in paragraph seven of article 69 as well as the first paragraphs of Articles 76 and 83. (2) Foreigners listed in subparagraphs (c), (ç), (d) and (e) of the first paragraph shall be issued a document of which the format and content shall be jointly determined by the Ministry and the Ministry of Foreign Affairs. In cases where these foreigners wish to stay in Turkey, after the end of their status that entitled them to exemption from a residence permit, shall apply with the governorates within ten days to obtain a residence permit. Application for residence permit ARTICLE 21 – (1) Applications for residence permits shall be lodged with the consulates in the foreigner's country of citizenship or legal stay. (2) Foreigners applying for a residence permit shall be required to hold a passport or a travel document valid at least sixty days beyond the duration of the requested residence permit. (3) Where the information and documents required for the application is incomplete, the assessment of the application may be postponed until such information and documents are submitted. The applicant shall be informed of the missing information and documents. (4) The consulates shall convey the residence permit applications, together with their remarks, to the Directorate General. The Directorate General shall, after finalising [the assessment of] the applications, inform the consulate to issue a residence permit or refuse the application, seeking the opinion of the relevant institutions when it deems it necessary. (5) [The assessment of] the applications shall be finalised no later than ninety days. 9 (6) The actions related to the refusal of a residence permit application shall be notified to the applicant. (7) (Annex: 28/7/2016-6735/27 article) Residence permit applications could also be made by the authorized intermediary. Applications for residence permits to be lodged in Turkey ARTICLE 22 – (1) Applications for residence permits may exceptionally be lodged with the governorates in following cases: a) pursuant to decisions of or requests from judicial or administrative authorities; b) when it is not reasonable or possible for the foreigner to leave Turkey; c) for long-term residence permits; ç) for student residence permits; d) for residence permits on humanitarian grounds; e) for residence permits for victims of human trafficking; f) while changing from a family residence permit to a short-term residence permit; g) by either parent, holding a residence permit in Turkey, for their children born in Turkey; ğ) for a residence permit which conforms to the new reason of stay, in cases where the reason for which the valid residence permit was issued no longer apply or has changed; h) for residence permit applications lodged within the scope of paragraph two of Article 20; ı) when foreign students who have completed higher education in Turkey transfer to a short-term residence permit. Issuance and format of residence permits ARTICLE 23 – (1) Residence permits shall be issued separately for every foreigner depending on the purpose of stay, [in any case] for a period sixty days shorter than the validity period of the passport or travel document. (2) The Ministry shall determine the format and content of the residence permit whereas the format and content of the work permit that would substitute as a residence permit shall be jointly determined by the Ministry and relevant institutions. Renewal of residence permits ARTICLE 24 – (1) The duration of residence permits may be extended by the governorates. (2) Applications for renewal shall be made to the governorates within sixty days prior to the expiration of the residence permit and, in any case, before the expiration of the residence permit. Those who apply for the extension of the duration of the residence permit shall be issued a document not subject to fee. Such foreigners may reside in Turkey by virtue of this document pending a decision regarding their application, even if their residence permits have expired. (3) The renewed residence permits shall take effect as from the expiry date of [applying] legal permits. 10 (4) [Assessment of] applications for renewal shall be finalised by the governorates. Refusal, cancelation or non-renewal of residence permit applications lodged in Turkey ARTICLE 25 – (1) The refusal of an application lodged in Turkey, non-renewal or cancelation of a residence permit and notification of such actions shall be done by the governorates. The decision on the residence permit may be postponed in consideration of elements such as the foreigner's family ties in Turkey, the duration of residence, situation in the country of origin and the best interest of the child during these actions. (2) Refusal, non-renewal or cancelation of the application shall be notified to the foreigner or, to his/her legal representative or lawyer. This notification shall also include information on how foreigners would effectively exercise their right of appeal against the decision as well as other legal rights and obligations applicable in the process. Other provisions concerning residence permits ARTICLE 26 – (1) Time spent as a prisoner or detainee in prison or under administrative detention in removal centres [beyond the expiry date of the residence permit] shall not be considered as a breach of the time limit of the residence permit. Residence permits, if any, held by such persons may be cancelled. Any such person, who does not have one, may be issued a foreigner identity number without the requirement of holding a residence permit. (2) Foreigners arriving Turkey with a residence [or] a work permit issued by the consulates should register with the address based registration system no later than twenty working days as of the date of arrival. Work permit as residence permit ARTICLE 27 – (1) A valid work permit as well as Work Permit Exemption Confirmation Document issued pursuant to Article 10 of the Law on Work Permits of Foreigners, № 4817 of 27/02/2003, shall be considered as a residence permit. (Abrogated second sentence: 28/7/2016-6735/27 art.) (2) The foreigner should not fall within the scope of Article 7 in order for a work permit to be issued or renewed. Interruption of residence ARTICLE 28 – (1) For the purposes of this Law, any stay outside of Turkey exceeding a total of six months within one year or a total of one year within the last five years for reasons other than compulsory public service, education or health shall be considered interruption of residence. In cases where there is an interruption of residence, the previous residence durations shall not count towards a residence permit application or changing to another residence permit. (2) In the computation of continues residence permits, half the duration of student resident permits while the full duration of all other types of residence permits shall be calculated. 11 Transfer between residence permits ARTICLE 29 – (1) In cases where the reason, on the grounds which the residence permit is issued, no longer apply or a different reason appears foreigners may lodge an application for a residence permit which conforms to the new reason for their stay. (2) The principles and procedures governing transfers between residence permits shall be stipulated in the Directive. Residence permit types ARTICLE 30 – (1) Types of residence permits are the listed below: a) short-term residence permit; b) family residence permit; c) student residence permit; ç) long-term residence permit; d) humanitarian residence permit; e) victim of human trafficking residence permit. Short-term residence permit ARTICLE 31 – (1) A short-term residence permit may be granted to those foreigners listed below who: a) arrives to conduct scientific research; b) owns immovable property in Turkey; c) establishes business or commercial connections; ç) participates in on-the-job training programmes; d) arrives to attend educational or similar programmes as part of student exchange programmes or agreements to which the Republic of Turkey is a party to; e) wishes to stay for tourism purposes; f) intends to receive medical treatment, provided that they do not have a disease posing a public health threat; g) is required to stay in Turkey pursuant to a request or a decision of judicial or administrative authorities; ğ) transfers from a family residence permit; h) attends a Turkish language course; ı) attends an education programme, research, internship or, a course by way of a public agency; i) applies within six months upon graduation from a higher education programme in Turkey. j) (Annex: 28/7/2016-6735/27 article) does not work in Turkey but will make an investment within the scope and amount that shall be determined by the Council of Ministers, and their foreign spouses, his and her minor children or foreign dependent children. k) (Annex: 28/7/2016-6735/27 article) is citizen of Turkish Republic of Northern Cyprus. (2) (Amendment: 28/7/2016-6735/27 article) Short-term residence permits shall be issued with 12 maximum two year duration at a time with the exception of (j) and (k) subparagraphs of the first paragraph. (3) Residence permits within the scope of subparagraph (h) of the first paragraph shall only be issued twice. (4) Residence permits within the scope of subparagraph (i) of the first paragraph shall only be issued once with maximum one year duration. (5) (Annex: 28/7/2016-6735/27 article) The residence permits granted within the scope of (j) and (k) subparagraphs of the first paragraph shall only be issued with maximum 5 year duration. Conditions for short-term residence permit ARTICLE 32 – (1) The following conditions shall apply when issuing short-term residence permits: a) to apply, claiming one or more of the reasons stipulated in paragraph one of Article 31 and submit supporting information and documents regarding the application; b) not to fall within the scope of Article 7; c) to live in accommodation conditions that conform to general health and safety standards; ç) upon request, to present criminal record certificate issued by the competent authorities in their country of citizenship or legal residence; d) submit information on their address of stay in Turkey. Refusal, non-renewal or cancelation of short-term residence permits ARTICLE 33 – (1) Under the following cases a short-term residence permit shall not be granted, shall be cancelled if has been issued, and shall not be renewed when: a) one or more of the conditions provided for in Article 32 are not met or no longer apply; b) it is established that the residence permit is used outside the purposes of those it is issued for; c) (Abrogated: 28/7/2016-6735/27 art.) ç) there is a current removal decision or an entry ban to Turkey in respect to the foreigner. (2) (Annex: 28/7/2016-6735/27 article) Procedures and principles regarding the cancellation of residence permit in terms of duration of stay abroad are regulated by Regulation. Family residence permit ARTICLE 34 – (1) A family residence permit for a maximum duration of three years at a time may be granted to the:2 a) foreign spouse; b) foreign children or foreign minor children of their spouse; c) dependent foreign children or dependent foreign children of their spouse; of Turkish citizens, persons within the scope of Article 28 of Law № 5901 or, foreigners holding one of the residence permits as well as refugees and subsidiary protection beneficiaries. However, the duration of the family residence permit cannot exceed the duration of the sponsor's residence
2 With the 27th Article of the Law No. 6735 dated 28/7/2016, the expression of "two years" was changed to "three years" in this article. 13 permit under any circumstances whatsoever. (2) In cases of a polygamous marriage pursuant to the regulation in the [foreigner's] country of citizenship, only one of the spouses shall be issued a family residence permit. However, a family residence permit may be granted to the foreigner's children from other spouses. (3) For family residence permits issued to children, if any, the consent of the mother or the father who lives abroad and who shares custody shall be sought. (4) Family residence permits shall entitle the holder right of education in primary and secondary educational institutions until the age of 18 the without obtaining a student residence permit. (5) Any person reaching the age of 18 who has immediately before resided in Turkey for a minimum of three years on a family residence permit may, upon application transfer to a short-term residence permit. (6) In the event of divorce, a short-term residence permit may be issued to a foreign spouse of a Turkish citizen, provided that [he or she] resided on a family residence permit for at least three years. However, in cases where it is established by the relevant court that the foreign spouse has been a victim for reasons of domestic violence, the condition for three years residence shall not be sought. (7) In the event of the death of the sponsor, a short-term residence permit may be issued without any [minimum residing] time condition attached to those who have resided on a family residence permit in connection with the sponsor. Conditions for family residence permits ARTICLE 35 – (1) With regard to family residence permit applications, the following conditions shall apply to the sponsor to: a) have a monthly income in any case not less than the minimum wage in total corresponding not less than one third of the minimum wage per each family member; b) live in accommodation conditions appropriate to general health and safety standards corresponding to the number of family members and to have medical insurance covering all family members; c) submit proof of not having been convicted of any crime against family during the five years preceding the application with a criminal record certificate; ç) have been residing in Turkey for at least one year on a residence permit; d) have been registered with the address based registration system. (2) Subparagraph (ç) of the first paragraph shall not apply to holders of residence permit or work permit for the purposes of scientific research; who are within the scope of Article 28 of Law № 5901; or foreigners who are married to Turkish citizens. (3) The following conditions shall apply to foreigners applying for a family residence permit to stay with a sponsor in Turkey: a) to submit information and documents that they are within the scope of paragraph one of Article 34; b) to assert that they live or intend to live together with those persons listed in paragraph one of Article 34; 14 c) not to have entered into the marriage for the purpose of obtaining a family residence permit; ç) to be over 18 years of age for each spouse; d) not to fall within the scope of Article 7. (4) The conditions set forth in first paragraph of this Article may not be sought for refugees and subsidiary protection beneficiaries who are in Turkey. Refusal, cancelation or non-renewal of family residence permits ARTICLE 36 – (1) Under the following cases a family residence permit shall not be granted, shall be cancelled if has been issued, and shall not be renewed when: a) conditions set out in paragraphs one and three of Article 35 are not met or no longer apply; b) short-term residence permit [application] is refused when the conditions for obtaining a family residence permit no longer apply; c) there is a valid removal decision or an entry ban to Turkey in respect to the foreigner; ç) it is determined that the family residence permit is used for purposes other than of those it is issued for; d) (Abrogated: 28/7/2016-6735/27 art.) (2) (Annex: 28/7/2016-6735/27 article) Procedures and principles regarding the cancellation of residence permit in terms of duration of stay abroad are regulated by Regulation. Applications for family residence permit through marriage of convenience ARTICLE 37 – (1) Where there is reasonable doubt prior to granting or renewing a family residence permit the governorates shall investigate whether the marriage have been entered into solely for the purpose of obtaining a family residence permit. When it is so determined upon investigation family residence permit shall not be granted or, cancelled if has been issued. (2) Following the issuance of a family residence permit the governorates may carry out inspections in order to establish whether the marriage is of convenience. (3) Residence permits obtained through a fraudulent marriage and cancelled later, shall not count towards the summing of residence durations stipulated in this Law. Student residence permit ARTICLE 38 – (1) A student residence permit shall be granted to foreigners who shall attend an associate, undergraduate, graduate or postgraduate programme in a higher education institution in Turkey. (2) To foreigners who shall receive primary and secondary education and whose care and expenses shall be covered by a natural or legal person, subject to the consent of their parents or legal guardian a one year student residence permit shall be granted and renewed throughout the course of their study. (3) The student residence permit shall not entitle the parents as well as more distant family members of the foreigner the right of obtaining residence permit. 15 (4) In cases where the period of study is less than one year, the duration of the residence permit shall not exceed the period of study. (5) (Annex: 28/7/2016-6735/27 article) To foreigners who shall receive an education in Turkey by coming via state institutions and organizations, a residence permit may be granted during their study period. Conditions for student residence permit ARTICLE 39 – (1) The following conditions shall apply to student residence permit: a) submitting the information and documents within the scope of Article 38; b) not to fall within the scope of Article 7; c) providing an address in Turkey. Refusal, cancelation or non-renewal of student residence permits ARTICLE 40 – (1) Under the following cases a student residence permit shall not be issued, cancelled if has been issued, refused renewal when: a) the requirements of Article 39 are not met or no longer apply; b) evidence exists that the studies are possibly not to be continued; c) it is determined that the student residence permit has been used for a purpose other than that it is issued for; ç) there is a current removal decision or an entry ban to Turkey with respect to the foreigner. Right of work for [foreign] students3 ARTICLE 41 – (1) [Foreign] students attending a formal associate, undergraduate, graduate or postgraduate programme in Turkey may work provided that they obtain a work permit. However the right of work for associate or undergraduate students starts after the first year [of their study] and is regulated by related law. (2) The principles and procedures governing the right of work for associate or undergraduate students shall be jointly regulated by the Ministry and the Ministry of Labour and Social Security within the framework of the principles to be determined by the Migration Policies Board. Long-term residence permit ARTICLE 42 – (1) A long-term residence permit shall be issued by the governorates, upon approval of the Ministry, to foreigners that have continuously resided in Turkey for at least eight years on a permit or, foreigners that meet the conditions set out by the Migration Policies Board. (2) Refugees, conditional refugees and subsidiary protection beneficiaries as well as persons under temporary protection or humanitarian residence permit holders are not entitled to the right of
3 With the 27th Article of the Law No. 6735 dated 28/7/2016, expression of "formal" was added before the expression of "in Turkey" in the first item of this article and the expression of "cannot be more than twenty four hours a week" was changed as "regulated by related law". 16 transfer to a long-term residence permit. Conditions for long-term residence permit ARTICLE 43 – (1) With regard to the issuing long-term residence permit the following conditions shall apply: a) having continues residence in Turkey for at least eight years; b) not having received social assistance in the past three years; c) having sufficient and stable income to maintain themselves or, if any, support their family; ç) to be covered with a valid medical insurance; d) not to be posing a public order or public security threat. (2) Subject to subparagraph (d), the conditions stipulated in the first paragraph shall not apply to foreigners who are considered appropriate for a long-term residence permit due to meeting the conditions determined by the Migration Policies Board. Rights conferred by a long-term residence permit ARTICLE 44 – (1) Without prejudice to acquired rights with respect to social security, and subject to conditions stipulated in applicable legislation governing the enjoyment of rights, foreigners holding a longterm residence permit shall benefit from the same rights as accorded to Turkish citizens with the exception of the provisions in laws regulating specific areas, and of: a) compulsory military service; b) the right of vote and be elected; c) entering public service; ç) exemption from customs duties when importing vehicles. (2) The Council of Ministers is authorised to partially or completely restrict the rights listed in the first paragraph. Cancelation of long-term residence permits ARTICLE 45 – (1) Under the following cases a long-term residence permit shall be cancelled when the foreigner: a) poses a serious public security or public order threat; b) stays out of Turkey continuously for more than one year for reasons other than health, education and compulsory public service in his/her country. (2) The principles and procedures governing the re-application for a long-term residence permit and assessment of the applications of foreigners whose long-term residence permit has been cancelled pursuant to subparagraph (b) of the first paragraph shall be stipulated in a Directive. Humanitarian residence permit ARTICLE 46 – (1) Under the following cases, upon approval of the Ministry, a humanitarian residence permit with a maximum duration of one year at a time may be granted and renewed by the governorates without seeking the conditions for other types of residence permits: 17 a) where the best interest of the child is of concern; b) where, notwithstanding a removal decision or ban on entering Turkey, foreigners cannot be removed from Turkey or their departure from Turkey is not reasonable or possible; c) in the absence of a removal decision in respect of the foreigner pursuant to Article 55; ç) where there is a judicial appeal against the actions carried out pursuant to Articles 53, 72 and 77; d) throughout the removal actions of the applicant to the first country of asylum or a safe third country; e) in cases when foreigners should be allowed to enter into and stay in Turkey, due to emergency or in view of the protection of the national interests as well as reasons of public order and security, in the absence of the possibility to obtain one of the other types of residence permits due to their situation that precludes granting a residence permit; f) in extraordinary circumstances. (2) Foreigners that are granted humanitarian residence permit should get registered with the address based registration system no later than twenty working days as of the issuance date. Cancelation or non-renewal of humanitarian residence permits ARTICLE 47 – (1) The humanitarian residence permit shall be cancelled and shall not be renewed by the governorates in cases where the compelling conditions no longer apply, subject to the approval of the Ministry. Residence permits for victims of human trafficking ARTICLE 48 – (1) A residence permit valid for thirty days shall be granted, by the governorates, to foreigners who are victims of human trafficking or where there is strong circumstantial evidence that they might be victims with a view to allow them to break from the impact of their [negative] experience and reflect on whether to cooperate with the competent authorities. (2) Conditions attached to other types of residence permits shall not be sought while issuing these residence permits. Renewal and cancelation of residence permits for victims of human trafficking ARTICLE 49 – (1) The residence permit granted to allow for recovery and reflection may be renewed for six months periods for reasons of safety, health or special circumstances of the victim. However, the total duration shall not exceed three years under any circumstances whatsoever. (2) The residence permit shall be cancelled in cases where it is determined that foreigners who are victims of trafficking or might be victims of human trafficking have re-connected with the perpetrators of the crime through their own volition. SECTION THREE Stateless Persons 18 Determination of statelessness ARTICLE 50 – (1) The statelessness status shall be determined by the Directorate General. Stateless persons shall be issued a Stateless Person Identification Document, which entitles such persons the right to legally reside in Turkey. Persons, who are in the process of being considered as stateless in another country shall not benefit from this right. (2) Stateless persons shall obtain a Stateless Person Identification Document. The governorates shall issue this document, upon approval of the Directorate General. This document shall substitute a residence permit and shall be renewed by the governorates every two years without subject to any fee. The Stateless Person Identification Document shall bear the foreigner identification number. (3) The duration of stay in Turkey with a Stateless Person Identification Document shall count towards the total duration of residence. (4) The Stateless Person Identification Document shall no more be valid upon acquisition of the nationality of another country. (5) The principles and procedures concerning the determination of statelessness and the issuance of the Stateless Person Identification Document shall be stipulated in a Directive. Rights and guarantees granted to stateless persons ARTICLE 51 – (1) Persons holding a Stateless Person Identification Document: a) may apply to obtain any of the residence permits set out in this Law; b) shall not be deported unless they pose a serious public order or public security threat; c) are not be subject to the reciprocity requirement sought in procedures concerning foreigners; ç) are subject to the provisions of the Law № 4817 in activities and actions regarding work permit; d) are entitled to the provisions of Article 18 of the Law № 5682. SECTION FOUR Removal Removal ARTICLE 52 – (1) Foreigners may be removed to their country of origin or a transit country or a third country by virtue of a removal decision. Removal decision ARTICLE 53 – (1) A removal decision shall be issued either upon instructions of the Directorate General or ex officio by the governorates. (2) The [removal] decision together with its reasons shall be notified to the foreigner, in respect of whom a removal decision has been issued or, to his/her legal representative or lawyer. If the foreigner, in respect of whom the removal decision has been issued, is not represented by a lawyer, the foreigner or his/her legal representative shall be informed about the consequence of the decision, procedures and time limits for appeal. 19 (3) Foreigner, legal representative or lawyer may appeal against the removal decision to the administrative court within fifteen days as of the date of notification. The person who has appealed against the decision to the court shall also inform the authority that has ordered the removal regarding the appeal. Such appeals shall be decided upon within fifteen days. The decision of the court on the appeal shall be final. Without prejudice to the foreigner's consent, the foreigner shall not be removed during the judicial appeal period or in case of resort to the judgement with the exception of ones within the scope of (b), (d) and (k) subparagraphs of the first paragraph and second paragraph of Article 54.4 Persons subject to a removal decision ARTICLE 54 – (1) A removal decision shall be issued in respect of those foreigners listed below who/whose: a) are deemed to be removed pursuant to Article 559 of the Turkish Penal Code № 5237; b) are leaders, members or supporters of a terrorist organisation or a benefit oriented criminal organisation; c) submit untrue information and false documents during the entry, visa and residence permit actions; ç) made their living from illegitimate means during their stay in Turkey; d) pose a public order or public security or public health threat; e) has overstayed their visa or the visa exemption period for more than ten days or, whose visas are cancelled; f) residence permits are cancelled; g) overstayed the expiry date of the duration of their residence permit for more ten days without an acceptable reason; ğ) are determined to be working without a work permit; h) breach the terms and conditions for legal entry into or exit from Turkey; ı) are determined to have entered into Turkey despite an entry ban to Turkey; i) international protection claim has been refused; are excluded from international protection; application is considered inadmissible; has withdrawn the application or the application is considered withdrawn; international protection status has ended or has been cancelled, provided that pursuant to the other provisions set out in this Law they no longer have the right of stay in Turkey after the final decision. j) fail to leave Turkey within ten days in cases where their residence permit renewal application has been refused. k) (Annex: 3/10/2016-KHK-676/36 article) are evaluated as being associated with terrorist organizations which have been defined by international institutions and organizations. (2) (Amendment: 3/10/2016-KHK-676/36 article) A removal decision may be issued at every stage of international protection proceedings in respect of international protection
4 With the Article 35 of Delegated Legislation dated 3/10/2016 and numbered 676, statement of "excluding the ones within the scope of (b), (d) and (k) subparagraphs of the first paragraph and second paragraph of Article 54" has been added to come after the statement of "in case of" taking place in this paragraph. 20 applicants or international protection beneficiaries who are evaluated as being within the scope of (b), (d) and (k) subparagraphs of the first paragraph of this Article. Exemption from removal decision ARTICLE 55 – (1) Removal decision shall not be issued in respect of those foreigners listed below regardless of whether they are within the scope of Article 54: a) when there are serious indications to believe that they shall be subjected to the death penalty, torture, inhuman or degrading treatment or punishment in the country to which they shall be returned to; b) who would face risk due to serious health condition, age or, pregnancy in case of travel; c) who would not be able to receive treatment in the country to which they shall be returned while undergoing treatment for a life threatening health condition; ç) victims of human trafficking, supported by the victim's assistance programme; d) victims of serious psychological, physical or sexual violence, until their treatment is completed. (2) Assessment within the scope of the first paragraph shall be made on case by case basis. These persons may be asked to reside at a given address and report to authorities in form and periods as requested. Summons to leave Turkey ARTICLE 56 – (1) Where a removal decision has been issued, foreigners shall be granted a period no less than fifteen days and up to thirty days to leave Turkey, provided that this period is stated in the removal decision. However, this period shall not be granted to foreigners who: bear the risk of absconding or disappearing; have breached the terms and conditions of legal entry and exit; used false documents; attempted to obtain or are determined to have obtained a residence permit with false documents; pose a public order, public security, public health threat. (2) A Leave Permit shall be issued to persons for whom a period to leave Turkey is granted. This document shall not be subject to any fees, without prejudice to the visa and residence permit fees as well as obligations related to penalties thereof. Administrative detention and duration of detention for removal purposes ARTICLE 57 – (1) Where foreigners within the scope of Article 54 are apprehended by law enforcement units, they shall immediately be reported to the governorate for a decision to be made concerning their status. With respect to those where a removal decision is considered necessary it shall be issued by the governorate. The duration of assessment and decision-making shall not exceed forty-eight hours. (2) Those for whom a removal decision have been issued, the governorate shall issue an administrative detention decision for those who; bear the risk of absconding or disappearing; breached the rules of entry into and exit from to Turkey; have used false or fabricated documents; have not left Turkey after the expiry of the period granted to them to leave, without an acceptable excuse; or, pose a threat to public order, public security or public health. Foreigners subject to 21 administrative detention shall be taken to removal centres within forty-eight hours of the decision by the [same] law enforcement unit that apprehended them. (3) The duration of administrative detention in removal centres shall not exceed six months. However, in cases where the removal cannot be completed due to the foreigner's failure of cooperation or providing correct information or documents about their country [of origin], this period may be extended for a maximum of six additional months. (4) The need to continue the administrative detention shall be regularly reviewed monthly by the governorates, and when consider it necessary. For those foreigners where administrative detention is no longer considered necessary, the administrative detention shall immediately be ended. These foreigners may be required to comply with administrative obligations such as to reside at a given address and report to the authorities in form and periods to be determined. (5) The administrative detention decision, the extension of the administrative detention period and the results of the monthly regular reviews together with its reasons shall be notified to the foreigner or, to his/her legal representative or lawyer. If the person subject to administrative detention is not represented by a lawyer, the person or his/her legal representative shall be informed about the consequence of the decision, procedure and time limits for appeal. (6) The person placed under administrative detention or his/her legal representative or lawyer may appeal against the detention decision to the Judge of the Criminal Court of Peace. Such an appeal shall not suspend the administrative detention. In cases where the petition is handed to the administration, it shall immediately be conveyed to the competent Judge of the Criminal Court of Peace. The Judge of the Criminal Court of Peace shall finalise the assessment within five days. The decision of the Judge of the Criminal Court of Peace shall be final. The person placed under administrative detention or his/her legal representative or lawyer may further appeal to the Judge of the Criminal Court of Peace for a review should that the administrative detention conditions no longer apply or have changed. (7) Those who appeal against an administrative detention action but do not have the means to pay the attorney's fee shall be provided legal counsel upon demand, pursuant to the Legal Practitioner's Law № 1136 of 19/03/1969. Removal centres ARTICLE 58 – (1) Foreigners subject to administrative detention shall be held in removal centres. (2) The removal centres shall be operated by the Ministry. The Ministry may have these centres operated by public institutions and agencies, the Turkish Red Crescent Association or non-profit associations with expertise in the field of migration by means of a protocol. (3) The principles and procedures related to the establishment, management, outsourcing, inspection of removal centres and the transfer of foreigners subject to administrative detention to removal centres for removal purposes shall be regulated with a Directive. Services provided in removal centres ARTICLE 59 – (1) In the removal centres: a) emergency and primary healthcare services of which the foreigner is unable to cover the cost shall 22 be provided free of charge; b) the foreigner shall be allowed access to and given the opportunity to meet with their relatives, the notary public, his/her legal representative and the lawyer, as well as access to telephone services; c) the foreigner shall be given the opportunity to meet with the visitors, consular official of their country of citizenship, and officials of the United Nations High Commissioner for Refugees; ç) the best interest of the child shall be considered, and families and unaccompanied minors shall be accommodated in separate areas; d) the Ministry of National Education shall take the necessary measures to ensure that children have access to education. (2) Representatives of the relevant non-governmental organisations with expertise in the field of migration may visit the removal centres upon permission of the Directorate General. Implementation of the removal decision ARTICLE 60 – (1) The foreigners at removal centres shall be taken to border gates by law enforcement unit. (2) Foreigners to be removed without being required to transfer to removal centres shall be taken to the border gates by law enforcement units through coordination of the provincial units of Directorate General. (3) Foreigners to be removed shall cover their own travel costs. In cases where foreigners are unable to cover such costs, the full or remaining cost of travel shall be met from the budget of the Directorate General. A ban on entering Turkey may be imposed on such foreigners as long as the costs are not reimbursed. (4) The Directorate General may cooperate with international organisations, the authorities in the relevant country, and non-governmental organisations to carry out the removal. (5) Passports or other documents belonging to foreigners may be retained until the foreigners are removed and their tickets may be cashed for use in the removal. (6) Natural or legal persons are responsible for covering the costs related to the removal of foreigners whose stay and return they have guaranteed. Subparagraph three of Article 21 of Law № 4817 shall apply to employers or agents of employers that employ the foreigner without a work permit with respect to their obligations in the removal of such foreigners. PART THREE INTERNATIONAL PROTECTION SECTION ONE Types of International Protection, Exclusion from International Protection 23 Refugees ARTICLE 61 – (1) A person who as a result of events occurring in European countries and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his citizenship and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his former residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it, shall be granted refugee status upon completion of the refugee status determination process. Conditional refugees ARTICLE 62 – (1) A person who as a result of events occurring outside European countries and owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it, shall be granted conditional refugee status upon completion of the refugee status determination process. Conditional refugees shall be allowed to reside in Turkey temporarily until they are resettled to a third country. Subsidiary Protection ARTICLE 63 – (1) A foreigner or a stateless person, who neither could be qualified as a refugee nor as a conditional refugee, shall nevertheless be granted subsidiary protection upon the status determination because if returned to the country of origin or country of [former] habitual residence would: a) be sentenced to death or face the execution of the death penalty; b) face torture or inhuman or degrading treatment or punishment; c) face serious threat to himself or herself by reason of indiscriminate violence in situations of international or nationwide armed conflict; and therefore is unable or for the reason of such threat is unwilling, to avail himself or herself of the protection of his country of origin or country of [former] habitual residence. Exclusion from international protection ARTICLE 64 – (1) The applicant shall be excluded from international protection if: (a) receiving protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees; (b) recognised by the authorities of the country of [former] residence as having the rights and obligations which are attached to the nationals of that country; (c) there is strong evidence to believe that they are guilty of offences specified in paragraph one of 24 Article 1 of the Convention. (2) When protection or assistance for a person who falls within the scope of sub-paragraph (a) of the first paragraph is no longer available for any reason whatsoever, such person may benefit from protection provided for by this Law, unless a final solution to is reached on their status on the basis of UN General Assembly resolutions. (3) In cases where there is evidence to believe that the applicant, prior to international protection claim, have committed inhuman acts for any reason whatsoever outside of Turkey, the assessment shall be done pursuant to subparagraph (c) of the first paragraph. (4) Applicants that i
Last post by admin - November 28, 2018, 11:34:45 PM
What is Appeal in Turkish law system? Appeal means judicial review of a decision once again by a higher court. In regular courts, higher court is the Court of Cassation and in administrative, it is the Council of State. Some decisions of the administrative courts and tax courts may be appealed before the regional administrative courts.
How is an appeal requested? A petition is submitted to the Court within the designated time limit to start the appeal process.
How is an appeal petition drafted? The reason you make an appeal against the decision must be shown in the petition. You have to explain why you want the decision to be quashed. You need to put in detail and give number to the contradictions which you think to have occurred during the trial. The petition should include one extra copy apart from the total number of parties. What is the focus of an appeal stage? Aim of the appeal is to control if there has been any contradiction with the Law during the trial.
What is the time limit for appeal? This time limit may change depending on the type of courts: It is 7 days beginning from notification or pronouncement in criminal courts, 15 days beginning from notification in civil courts of first instance (Family, Commercial and Consumer Courts), 8 days beginning from notification in civil courts of peace, 10 days beginning from notification or pronouncement in civil courts of enforcement, 8 days beginning from notification or pronouncement in labour courts, 30 days beginning from notification in administrative and tax courts. As seen above, time limit for appeal may start when the judge pronounces the decision or when the notification is made depending on the type of the court. If the decision is rendered in the absence of the party who has a right to appeal, the time limit starts when this party is notified in writing. In case no petition is submitted within the designated time limit, it means you renounce your right to appeal.
What happens as a result of the appeal? The Court of Cassation/Council of State reviews the decision rendered by the first instance court; if a contradiction is detected, the decision is quashed and sent back to the first instance court to be heard once again. In case the Court of Cassation/Council of State does not find any violation of law, the decision is upheld and becomes final.
Would my penalty get heavier if I go for an appeal? No. The opinion that the penalty would get severer if a person appeals to the Court of Cassation and his/her appeal is dismissed, has no legal grounds. The Court of Cassation does not impose heavier penalties against the party who uses his right to appeal. In case the decision has been quashed based on the appeal of the accused person only, the penalty to be rendered after re-trial cannot be heavier than the first one. However, it should be noted that also the intervener (victim and the person who intervenes to the trial) and the Public Prosecution Office have right to appeal. In case one of these parties submits an appeal, the decision may be quashed against the accused person.
Is a decision appealed automatically? No. An application is needed to appeal a case. There is an exception to this rule. The decisions which impose imprisonment of 15 years and more is automatically reviewed by the Court of Cassation. Except for this situation, in all cases, appeal must be requested by one of the parties. In case the appeal is not submitted to the Court within the designated time limit, the right to appeal is exhausted. The Public Prosecutor may also appeal the case in favour of or against the accused.
I did not appeal, but the other party did. What will be the results of his appeal for me? If the decision has been quashed in favour of the accused and if it is possible to apply it also for the other accused people, you can benefit from this reversal of decision as if you made an application for appeal. But it does not mean this reversal will be valid for you automatically. If there is no possibility to apply it also for you, the decision becomes final decision on behalf of you, but it is quashed for the others who appealed the decision.
What is the petition submitted to delay the time limit? Since the 7-day-time limit for appeal starts when the decision is pronounced in criminal cases, a petition is submitted to the Court in order to delay the termination of this time limit until the reasoned decision is written. This petition includes your request of appeal and you state you will submit your reasons for appeal in writing after the reasoned decision. Therefore, when you want to submit such a petition, you should write clearly that you request appeal. The same procedure is applied in labour cases, but it is not applicable for civil cases.
Is a hearing conducted for appeal? As a rule, appeal stage is carried out over case files without a hearing. But in some circumstances, upon the request of the parties or when required by the higher court, a hearing may be conducted. In criminal cases, only the accused (and his lawyer) is called for the appeal hearing. The detainee has no right to attend to the hearing conducted in the Court of Cassation. If you want your appeal process carried out with a hearing, you need to state it in your appeal petition.
Last post by admin - November 28, 2018, 11:30:22 PM
My trial is over, decision has been rendered, has the process ended?
All judicial activities are the result of complicated processes which need great attention. The legal system, being aware of the fact that mistakes may be done in this complicated process, has established a judicial control mechanism in order to check consistency of the decisions with the Law by means of an another court. In this regard, objections or appeals may be submitted to the First Instance Courts or Higher Courts depending on the nature of the decisions rendered by the Court. The trial process is completed when the final decision is rendered.
What is a final decision? A decision becomes final when all judicial remedies are exhausted. The law does not grant the right to judicial remedies for very simple matters. Apart from these exceptions, judicial remedies have been introduced for all decisions in order to ensure a second review. In case this right is not used within the certain time limit or dismissed after the review by the relevant court, the decision becomes final.
What is a verdict? The judgments of the Courts are sent to the parties in writing. All judgments include a stamp and signature. This letter is called "verdict". In the final part of the verdict, it is stated whether the decision is final as well as the time limit and authority you can appeal to. The decision becomes final only when the parties do not appeal in the designated time limit.
How is a decision made final? In order to make an appeal in civil courts, the decision should be notified to the parties firstly. Following the reasoned decision and payment of the fee, the decision is notified to the parties and time limit for appeal starts . On the other hand, in labour and criminal courts the time limit starts as soon as the parties learn the decision. If the decision is read aloud in the courtroom, time limit starts immediately, if not notification date is the start of the said time limit. There is no need to take an extra action in these courts.
How will you know a decision is final or not? You can ask to the registry of the court which renders the decision if the decision is final or not. If there is no application for appeal http://en.hukuki.net/index.php?topic=56489.0 or the application has been dismissed, the court registry will put an explanation on the decision. This explanation is an annotation which shows the decision is final.
Last post by admin - November 28, 2018, 11:14:41 PM
Reconciliation in Criminal Procedures (Mediation in Criminal Courts) in Turkey
What is reconciliation? Reconciliation is the termination of the criminal proceedings as a result of the agreement which the victim makes with the suspect.
The investigation file is not closed before the agreement concluded after the reconciliation is fulfilled. If the opposite party fails to fulfil his/ her promise, the reconciliation is null and void.
What happens if I accept the proposal of reconciliation?
Reconciliation process starts. During this process which continues with the help of a reconciler, the parties negotiate how to compensate the financial and non-financial losses of the person who has suffered from the crime. These negotiations are confidential and cannot be used against the suspect as evidence. Accepting reconciliation is not a confession of the crime.
Who can be a reconciler? S/he is the person who conducts the process of reconciliation. While the public prosecutor can be the reconciler himself, he can also assign a person who has received law education. The parties, in agreement, can request assignment of a lawyer or another law professional chosen by themselves.
Should I pay a fee to the reconciler? No fee will be charged from the parties for the services of the reconciler. When the parties reconcile, the fee is paid by the State. If there is no reconciliation, it is received from the accused person in case of conviction as a part of the trial cost.
On which issues can we reconcile? Since reconciliation is a process which is left to the parties, the parties are free to agree on any kind of matters either financial or non-financial. • Compensation or reparation of the financial or non-financial loss caused by the action, • Granting donation to a public institution or a person(s) who are in need, • Temporary work at a private entity serving for public interest • Participation in a programme which will help the concerned person be beneficial to the society, • Apologizing from the victim. We reconciled, what happens next? In case of reconciliation, you are obliged to fulfil what you have agreed to do. When you fulfil this obligation, • Distress of the victim will be eliminated rapidly, • No case will be filed against the suspect, • If there is an ongoing case, it will be dismissed, • There will be no possibility of conviction and having a criminal record.
Reconciliation is different from withdrawal of a complaint! Reconciliation does not mean withdrawal of a complaint. However, if the complaint is withdrawn before reconciliation, you cannot benefit from it. Therefore, instead of the statement of "I have no complaint, I want to reconcile", you should say "I have a complaint and I want to reconcile".
Can reconciliation be reached in any kind of crime? No. Reconciliation can be used only for the investigations and prosecutions of the crimes which are prescribed by law. These crimes are as follows: • Crimes of which investigation and prosecution is conditional on a complaint (excluding sexual assault and crimes having the provisions of effective repentance), • Deliberate injury (Article 86 and 88 of the Turkish Penal Code, excluding paragraph 3), • Reckless injury (Article 89 of the Turkish Penal Code), • Violation of the immunity of residence (Article 116 of the Turkish Penal Code), • Kidnapping and detention of children (Article 234 of the Turkish Penal Code), • Disclosure of information or documents which are in the nature of business, banking or customer secrets (Article 239 of the Turkish Penal Code, excluding paragraph 4).
How is reconciliation conducted? • Law enforcement agencies, the Public prosecutor or judge tell the parties details and consequences of reconciliation. • They ask the parties if they want to reconcile. • The parties inform the authorities on their decision about reconciliation within 3 days. • Provided that both parties agree to reconcile, a reconciler is assigned. • Parties negotiates with the help of the reconciler and take the decisions about themselves. • The process is finished when the suspect fulfils the act which is decided collectively and the criminal proceeding comes to an end.
Do I waste time if I accept the proposal of reconciliation? Victims may think reconciliation is loss of time and the suspect may think s/he will gain time during this process but it is wrong. Reconciliation is a fast process. The reconciler is obliged to finalise the process within 30 days. The public prosecutor may extend this time limit for another 20 days if s/he deems necessary. During reconciliation, prescription time does not work.
Is it possible that I will be deceived if I accept reconciliation? No. Reconciliation is under the control of the public prosecutor. If you do not accept the opposite party's proposal with your free will, the process will be finalised.
Last post by admin - November 28, 2018, 11:07:59 PM
Settlement means to finalise a the case by reaching a compromise among the parties.
Why should I prefer the way of "settlement" ?
The process of filing a case could be time consuming and cost a certain amount of money. The process of settlement enable you to get the result that may be available at the end of expensive and long period of filing a case.
If I prefer the "settlement", does it mean I am tortious?
No, It indicates that you want to resolve the case in a shorter time. Moreover the terms that you accepted during the "settlement" meetings is not binding at the trial. In other words, if you cannot settle the matters agreed upon are not binding for the court.
Do the cases last long?
According to the data of the DG for Criminal Records and Statistics; a civil case lasted 202- day. The avrege case length change according to the types of the courts. For example; 619-day at the Intellectual Properties court, 410-day at the Commercial Court, 441-day at the Labor Court, 157-day at the Family Court and 108-day at the Peace Court.
Is it expensive or cheap to file a case?
Although the cost of the case change according to the type of the case, it may be expensive. To give an example; if you loose the case related to the dispute 10.000 TL at the civil court of first instance, you pay aproaximately 2.000 TL on the condition that other party has a lawyer and consulted to the expertise.
It is easy to file a case but not the rest !
Remember that it is easy to bring the case before the court but as far as the rest of the process concerned it is hard to get and expensive. The court fees must be paid by the party that lost the case. But in case that party does not pay you are allowed to pay the court fees and take it back from other party through enforcement process. Even if you won the case the enforcement of the decision is entirely different process to get the decision enforced.
Would the other party vaiwe his claim if I have settled ?
Remember that when you have settled you make judicial contract with the other party before and with the formal approval of the court. Once the court states that the litigation is over by reason of settlement that written statement will have the full power of a court verdict. That statement does not only indicates that the litigation is over due to the settlement it clearly states the right and duties of the parties stemming from the settlement. Therefore in case the duties are not fulfilled this document would be enforcable.
Settle the dispute and get the result in a quiet easier way!
Worldwide statistics indicates that the rate of the fullfilment of duties settled between the parties of a dispute is higher than those obtained through trial process
Can I settle without filing a case ?
Yes, Lawyers are entitled by law to mediate in a settlement of legal disputes, When you settle a dispute through the mediation of a lawyer you would have an enforcable document having the same legal consequences with a verdict whithout paying any court fee
What are my financial advantages when I settled?
The amount of the cout fees to be reduced,
In case you settle at the firs stages of the trial ( untill the first hearing is held) you pay only 1/3 of totall and the amount of the lawyer cost you have pay to your opponent shall be reduced by half
In case you settle after the first hearing is held you pay 2/3 of total
You save from the totall trial cost such as ( posting, expertise, on spot view, travel. Etc) and the time you would waste in the courts instead of your business.
You also save from the amount of the enforcement costs since you are not going to run for enforcement process.
Does settlement apply to all kind of legal dispute? No, Settlement applies to matters t on which o make a contract is also allowed by law. To put it bluntly, If you can make contract on a legal matter you can also settle a dispute on that matter. In matter parties are not allowed to make contract such as criminal cases, cases on population records, cases about child custody settlement is not applicable but family cases courts to save from the time and the costs take into consideration the terms of an agreement reached between the parties.
Last post by admin - November 28, 2018, 11:01:58 PM
Guide to Courtrooms
Layout of courtrooms
The place where the hearings are held is called 'courtroom'. In order to conduct hearings efficiently, there is a pre-set order and all proceedings are carried out according to a certain procedure. All details are predefined: such as who stands where, who takes the floor when, who are allowed to be in the courtroom and who are not. You have to abide by these rules for proper organisation in the courtroom.
Who stands where?
The judge and Public prosecutor sits on the "bench". Normally there is one judge but if it is a panel there are three judges sitting on the bench. The prosecutor sits on the right side of the judge. The right side of the judge belongs to claimant (claiming side or complainant) and the left side belongs to the defendant (defending side or the accused). In other words, if you stand in front of the bench, the claimant is on your left and the defendant is on your right. The clerk sits in front of the bench and keeps record of the proceedings during the hearing with the instructions of the judge.
Who talks where?
Witnesses testify from the bench which is situated in front of the clerk. The accused who are not under detention and the claimant and defendant in civil cases have their own places. If they have lawyers, lawyers sit next to them. Everybody speaks standing up, but from where they were seated. Only the witness speaks in front of the bench because s/he does not sit in the courtroom.
Who talks when?
Hearings go on according to a certain procedure. The judge lets you speak when necessary. Therefore, you should not interrupt others' words or speak without permission. In case you have an urgent statement to make, you have to ask permission from the judge. Standing up when you speak shows your respect to the court.
Where do the witnesses sit? To avoid possible influence from what may be heard inside and have them tell the full truth, those who will be heard as witnesses are not allowed in until their turn comes. That is why there is no specific spot reserved for witnesses. When the witness will be heard, the court attendant calls him/her in by name. Witnesses who give testimony could leave the courtroom by judge's permission.
Is everybody allowed in courtrooms? Yes, hearings are held publicly. However, in some circumstances required by public safety or morality such as cases concerning minors, sexual offenses and so on, closed sessions may be held. This situation is to be announced in advance, no spectators are let in and those who are inside are asked to leave the courtroom.
Last post by admin - November 28, 2018, 10:55:33 PM
Bearing witness (*) is compulsory ?
Yes, it is. The witness by law required to come to court upon request , testify on what he/she knows and take the oath to tell the truth. In exceptional circumstances thos who are enumerated in the law are entitled to restrain from bearing witness. This matter shall be explained below.
What is Witness?
The term witness stands for those who are known to have information on an incident but are not party to a litigation.
What if I were summoned on a matter I have no information about.
In that case, you need to explain yourself to the court that you have no information about the case and take an oath if you required.
What if I don't appear in the court?
In such case you might be forced to appear in the court by the police and required by the court to pay the expences made due to the delay you caused and you might even be sanctioned to the disciplinary incarceration.
What if I m really not in a position to appear in the court?
You must explain yourself to the court in written immidiately. In the notification you have served there must be file and docket number of the case. You need to right a petition to the court summoned you. But, remember not all kind of excuses are acceptable. Such excuses as ' Im busy' or 'I have a rendes-vous' would not be welcomed as sensible excuses.
I'm very busy, could I go to court registry beforehand and have my statements taken?
No, Witnesses must be heard by the court, you are not allowed by law to have your statements written in the registry in a day before the date set by the court.
I will appear in the court what I need to do ?
There must be the name of the court and the time and day you are summoned in the invitation you served. I would suffice you to be there in that time. When the moment of your testimony cames the bailif would cry your name. Do not get in the court room before you have been called.
Why am I not allowed to watch the hearing?
Witness is expected to be impartial and to tell the truth, in case you watch the hearing you might possible be effected or distracted by what you have heard therefore you need to wait ourside untill your turn comes. Witnesses are heard seperately but could be bring together compare the conflicting statements where necessary.
What am I required to do in the course of the hearing?
Remember taking your ID with you. When you are called in the courtroom your identification would be asked and recorded thereafter you are to be asked whether you know the parties to the case and whether you have any involvement whatsoever to the case. Answer these questions correctly. Remember the false testimony is a crime. If you know the parties or you any involvement to the case or any benefit therefrom whatsoever please explain it to the court beforehand.
What I need to say?
Tell everything you know in a clear and concise way. Please tell before hand if tell those you believe are true but you did not witnessed. For instance if you are a witnesse in a divorse case and you are asked " Was Ahmet beating his wife" do not reply as " yes he was beating his wife" reply instead as " I was told by his neighbours that he was beating his wife"
What if I lie?
Perjury and false statement are crimes. In case the court believe that you were lying it would inform the prosecution office. You might well be sentenced to a time in prison and this would be registered you your criminal record. In case where the perjury revealed after the court adjourned and the verdict was rendered the court would retry the case. Beside the prison you might facea compansation claim.
Can I give my statement in written?
No, you need to appear in the court and reply the questions of the judge verbally. But in such technical questions or those about the digits you might ask permission to do so.
If you stayed back of your business schedule and spent money for transportation
You are entitled by law to get paid for the time you spent this to be decided by the court and you are as well have right to be paid for your travel expenses.
Can I go to notary instead of the court?
No. Testimony before the notary can not be replaced the testimony before the court.
Last post by admin - November 28, 2018, 10:49:43 PM
Who is the accused and Who is the suspect in Turkish criminal law?
The suspect is the person being investigated due to the crime suspicion by Prosecution Office or law enforcement offices (police, gendarmerie) functioning under the auspices of the Prosecution Office. If a criminal case is brought against this person, he/she is named as an accused.
I have been informed thet I am a suspect of a crime. I have been called to police station or Prosecution Office? What should I do?
First of all, stay calm. Bear in mind that you are living in a state governed by the rule of law and human rights are protected by constitutional safeguards. After you inform your family and relatives, go to the relevant police station or Prosecution Office. It is for your interest to go there with your lawyer to enjoy legal councel.
I am testifying, What will happen?
Remember that you might be at the begining of the process as a result of which you can face a serious situation and you can be deprived of your freedom if your statement is being taken as a suspect. People and even public officers around you may tell you that "it is not important", "nothing can happen" or "the prosecutor can release you now" in order to appease you. Bear in mind that these expressions are wishes of courtesy. The things you states and do in the process in which you are can lead to irreversable results. The exercise of the rights to which you are given are under constitutional guarantee. Do not hesitate to exercise your rights.
What is the meaning of taking into custody?
It means detention of the person under crime suspicion by a public prosecutor or law enforcement offices (police, gendarmerie) functioning under the auspices of the Prosecution Office upon the order of the public prosecutor for interrogation. If the person taken into detention is not released, he/she shall be brought before the judge within 24 hours from the date on which apprehension warrant is issued. Duration necessary to send the apprehended person to the closest judge or court is not included in this duration. Due to the difficulty in collecting evidence and the number of the suspects in collectively committed crimes, the prosecutor can issue written order to extend the duration of detention to 3 days.
Do I have to testify?
No. You are entitled to exercise your right to remain silent. However you are obliged to give true answers to the questions regarding your identity. Otherwise you can face criminal sanctions and measures.
What if I lie?
It is in your intrest to express the truths as they are. However nobody can force you to do so. False testimony is a crime but false testimony of the accused is not prescribed as a crime. However given that criminal justice is based on discreation of the judges and it is left to the judges to apply mitigated reasons, you should bear in mind that you can have troubles in this sense if it is understood that you have lied.
Can I change my testimony?
As you have the right to remain silent, you have the right to change what you have testified before. However you should bear in mind that repeated change of testimony can be interpreted by prosecutors or judges as a sign to lie and to manipulate the facts.
Would I get lesser punishment if I explain the facts in a different way?
Somebody can recommend you to explain the facts in a different way. Sometimes it happens that there are those sentenced to heavier punishment than it requires, since they follow these recommendations to explain the facts in a different way. For instance, an accused charged with using drugs can be sentenced to more severe punishment after being classified as a drug dealer, since he/she explains the facts in a different way to clear her/himself. For this reason, if you are not able to judge the legal process and its outcomes, this sort of attitudes can give rise to negative results rather than positive ones.
Is it a requisite to hire a lawyer?
Criminal proceedings may result in something as a result of which you may be kept in prison and deprived of your freedom. It is of your high interest to have a lawyer. If you are a suspect charged with a crime whose minimum sanction is more than 5 years in prison, it is a must for you to have an attorney. If you are not in a positon to select a lawyer, state shall assign a lawyer for you. If you are under the age of 18 or you are dump or deaf and you have no lawyer, state shall assign a lawyer for you irrespective of the crime attributabed to you.
When shall I hire a lawyer?
There is a misconception that it is not necessary to have a lawyer at law enforcement and prosecution office level. For this reason, it is observed that attorney is hired only when there is an arrest decision. The earlier the lawyer is involved in the process, the better the rights of the suspect are protected. It is not true attitude to wait until you are taken in prison in order to understand the importance of the situation.
What is arrest?
A person against whom there is strong suspicion can be deprived of his/her freedom if there is a strong crime suspicion indicating that there is an attemp to escape or to destroy, hide or change evidence, or to exert pressure on witness, victim or other in order to keep the sound functioning of criminal proceedings as a measure. Arrest is not punishmet but measure. Arrested person shall be released from the moment when conditions for arrest no longer exist. The fact that a person is on trial as an arrested accused does not necessarly mean that he will be punished at the end of the trials. Likewise, the fact that a person is arrested does not necesarrily mean that he will not be punished.
I stand trial not being remanded in custody, meaning Im not to be sentenced
This perception is completely wrong. The number of those sentenced and sent to the prisons is quite high, though they are not remanded at the beginnig. The fact that you have not been remanded does not necessarily mean that you will not be sentenced to improsenment. Even if you are not arrested, you shall appear in trials and fulfil the requriments specified by the courts as early as possible.
What does relase mean?
In principle, proceedings are held without remanding the accused in the custody. However custody is decided where the above exceptional situations exist and there is a must for this purpose. The news in the media that persons are released in progress of judicial process are presented in a way capable of giving the impression that they have been acquitted. This is a mistake. Even if a person is not remanded, he/she is still an accused and under the threat of sanction. If he/she is found guilty, he/she shall be sentenced.
Prosecutor released me, m I acquitted now?
Prosecutor does not consider every single case as a case requiring arrest. Even though some cases are serious, reasons for arrest as specified in the law do not exist. The fact that the prosecutor does not refer you to courrt for arrest does not mean closure of the case. Unless there is a non-prosecution decision given about you, your status as a suspect continues. It is possible that you can be sentenced after being tried as an accused.
What is the meaning of non-prosecution decision?
Prosecutors are not obliged to initiate a case after every investigation. He/she measure the facts with his/her legal knowledge. He/she considers whether or not there is a crime, if yes, whether or not there is sufficient evidence to identify the suspect and a case shall be opened. Non-prosecution decision shows that the prosecutor does decide not to bring a case. It is possible to appeal this decision. Victim or those suffered from the offence can apply to closest Aggravated Penal Court to abolish the decision of the prosecutor to open a case against the person concerned. The decision given by the Aggravated Penal Court upon appeal is final. It is not possible to challenge this decision.
The case is opened, What happens now?
You will be tried as an accused if a case has been opened against you. The indictment prepared by the prosecutor contain the crime attributed to you and evidence indicating that you have committed the crime. You can present every facts refuting the evedence presented. You can request to bring the documents which public authorities hold. You can identify witnesses and request for their testimony. You can present the court questions to be asked to those who testify against you. Your testimony about progress of the facts is one of the important tool before the court. Since criminal justice is based on judicial discreation, your oral defence is important. However you can present the court your arguments and evidence in written as well. Your appearance before the court is very important. If you have a lawyer and it is difficult for you to attend every trial, you can request from the court to be immune from trial in order to abstain from attending the trials.
Last post by admin - November 28, 2018, 10:40:24 PM
How to File an Administrative Case at Turkey courts ?
What is an administrative lawsuit?
An administrative lawsuit means bringing a case against State's acts and/or actions before administrative courts.
At Which court an adminstrative lawsuit can be filed?
Adminstrative lawsuits can be filed before adminstrative courts or tax courts of first instances and the Council of State.
Where can adminstrative lawsuit be filed?
The administrative court that is located in the region of the administrative authority, which made the administrative acts shall have jurisdiction over the case. (Provided that the general provisions regarding to subject-matter jurisdiction are reserved)
Where are the petitions submitted?
You should submit your petition to relevant administrative or tax court if there is any in your place. Be prepared bearing in mind the fact that court fee and cost of postage are required. It would be better if you got an estimated cost from the court before filing a case.
What should I do if there is no adminstrative/tax court in my place?
You can submit your petition to a general civil court of first instances.
I am abroad. Do I need to come back Turkey to submit a petition?
No.You can submit your petition to Turkish Consulates.
Against which decisions can be appealed before an administrative court?
An adminstrative lawsuit can be filed against Administrative acts and/or actions which are carried out by and adminstrative institution ( a public body;state, municipality etc.) The act in question must also a definite one. The act is deemed not be definite if it still continues or needs an approval by other authority or there is a compulsory objection procedure available before an administrative authority. If so,compulsory administrative objection procedures must be exhausted. If you deem that your rights have been violated by an administrative action, you must apply to the relevant administration for the rectification of the situation within a year from the notification or the date they learn the action by another way and in any case within five years from the action, before bringing a lawsuit.
What's the time limit for bringing a lawsuit?
The time limit to bring an action is sixty days for the actions brought to the Council of State and administrative courts, thirty days for the actions brought to the tax courts, unless otherwise stated in the specific Act
What can I do if a notification has not been made?
In case that you have made a request to administrative authorities for the implementation an act or taking an action that may be the subject of a lawsuit and If the request is not replied within sixty days, it shall be deemed to be dismissed. In this case, the time limit for the action runs from the date after you have made the request.
If response from the administration is not final or vague what can I do?
If the response given by the authorities within sixty-day period is not final, you may either regard this response as dismissal or you may bring an action regarding this response as dismissal or you may wait for the final response. In this case, the time limit for the action shall not run. However, the waiting period cannot exceed six months from the date of the response. However, after expiry of 6-month period if you do not bring a lawsuit within 60 day you will lose your right to bring a lawsuit.
What happens if you have not received a notification?
It is likely that the notification has been made via proclamation since you have not been found in your adress. In this case the time limit runs from fifteen days after the date following the last day of proclamation.
What happens in case that you have filed against an uncompleted indefinite administrative decision?
In case that you have filed a suit for an non-final administrative decision your petition is referred to the authorised administrative authorities. In other words your pettion is regarded as a petition adressed to the authorised administrative authority instead of one submitted to the court.
What should your case petition involve?
1-Your name, surname, ID no, open adress 2- Other party's open adress 3-Provided that they have written as clearly and summarily possible, a- Subject matter b- Reasons of the case c-Your ultimate aim to bring the lawsuit d- Legal basis e- Your evidence i- Enumerate your evidence in a form of a list attached to the petition ii- Explain clearly how to obtain other evidence that you do not have at that moment iii. The day of notification of the administrative act iv.In tax actions, type and year of the relevant tax or tax penalty, date and number of the demand note, account number of the taxpayer, if available, h- Relevant case law, if available ( examples of final court decisions which are similar to your case)
How should your petiton be prepared?
Your petition is your most important tool for your case. If it is too long or includes too many unnecessary details, it may harm your argument.If it is too short omitting the vital legal points that may also be a disadvantage for your claim. Thus, it is your responsibilty to ensure that your petition has been prepared carefully. İf would be better if you had an advice from a lawyer.
Is it compulsory to be represented by a lawyer before administrative courts?
No. Everyone is entitled to bring a case before a court on matters concerning him/her. However,you need to take into account of the fact that bring an action before a court may lead to serious consequences. Moreover, if you are not able to cover court expenses in the context of "legal aid" procedure, you are entitled to apply to Bar Association of your city for a lawyer to be appointed free of charge for your defence.
How is a lawsuit filed?
Apply to the relevant court with your petition containing above mentioned matters. Having calculated them, court clerks will inform you about court fee and postage expenses which you must pay for. Once you have submitted your pettion to court clerical office along with receipt for the fee and cost of postage, your case is considered to be commenced. The document that will be given to you, contains the name of the court in which your case will be handled (ie. Istanbul 2. Administrative Court of First Instance) and the case number. The case number consists of two parts: the first part shows which year your case has been commenced while the second part indicates which number your's is among the whole cases that has been commenced in that year within that court.( ie. 2019/123) After that, you will have to keep the case number and use them in every transaction regarding your case ( ie. Ankara 2. Administrative Court of First Instance 2019/456)
What happens if my adress has been changed?
The court communicates with your via postal service. Thus, when your adress has been changed you must inform the court of your new adress with a petititon as soon as possible. If you are not found at your adress you are not be able to communicate with the court,.Then, you are not able to fulfil likely request to be made by court. In that case it is decided that the action has not been brought since you have not pursued your case.
Do the administrative acts automatically stop once an administrative suit brought against it?
Bringing an action to the Council of State or administrative courts shall not prevent the execution of the administrative act which is the subject of the actio n. You must request the court for a stay of execution to be granted. If the Court decides that implementation of an administrative act will result in damages which are difficult or impossible to compensate for, and if this act is clearly unlawful, it decides to stay the execution of the act.
What does " the stay of execution" mean?
This notion correspons to the stop of the administrative act against which you have brought an lawsuit. For instance, your house has been decided to be demolished by the local municipality.In this case you file a lawsuit aganist the administrative act before an administrative court with the aim of annulment of the act alleging that the decision in question is unlawful. Since just filing a suit itself does not automatically stop the execution of the act. You must request the court a stay of execution be granted. Otherwise, the act may be executed by the municipality resulting the demolition of your house. In that case, if you were found to be right or you won the case the justice has still not been administrated.Therefore in order to avoid this consequence you need to request a stay of execution decision from the court. In the same way, Putting the expression of " Stay of execution has been requested"to both "subject" and "final request" parts of your petition is vital.