The food allowance of the officers and non-commissioned officers assigned for ships of the Turkish Armed Forces, listed below, shall be paid in addition to the monthly salary. The payments related with the 12th month shall be made at the end of this month.
Navy Commander: 300 Fleet Commanders, equivalent afloat unit commanders and navy command chief of staff : 250 Division commanders and unit commanders, fleet and division command Chief Engineers: 200 Ship commanders and ship Chief Engineers: 175 Officers: 150 Non-commissioned officers: 100
Article 2- Those assigned as deputies due to inappropriateness of the rank shall be paid the food allowances mentioned in article one.
The food allowance shall be paid in double for the period the ships stay in the harbors of the foreign countries.
Article 10- The course food allowance shall be paid during the courses.
Article 11- No food allowances from two sources shall be paid. Payment shall be made for the higher amount.
Article 12- Food allowance for those in another ship for maneuvers and any exercise, shall be paid in the amount allocated for their post, and if not available, the food allowance allocated for ship officers shall be given. (The second sentence has been repealed: 26/06/1973-1777/Art.2).
Article 13- No food allowance shall be paid to those assigned with duties in ships and in courses shall not be paid the travel or residence.
This Law shall be executed by the Ministry of Defense, Ministry of Interior and Ministry of Finance.
Provisional Article-1 Non-commissioned officers, who are still working in the warships and auxiliary ships, to be eliminated shall be paid the food allowance allocated for the sixth class and lower military civilian officers until the date they are eliminated.
Last post by admin - September 15, 2010, 04:21:08 AM
THE ENVIRONMENT CODE
LAW NO : 2872 DATE PASSED : 9.8.1983 PROMULGATION : Official Gazette no. 18132, 11.8.1983
The Pollution Prohibition
ARTICLE 8 : It is prohibited, to introduce into, store in, transport to or remove from the receptor area any discharge or waste in such a way as to inflict damage on the environment or in a way directly or indirectly in contradiction with the standards and methods specified in the pertinent regulations, or to engage in similar activities.
In situations where there is a possibility of pollution, the parties involved are required to prevent that pollution; in situations where pollution is created; the polluter is required to take the measures necessary to stop the pollution or to eliminate or reduce its effects.
Fines on Ships
ARTICLE 22 : The following fines shall be imposed on ships and marine craft which infringe the pollution prohibition contained in paragraph 1 of Article 8 of this Law along any of Turkey's coasts, or in her territorial waters including the Sea of Marmara, the Bosphorus and the Dardanelles, or in her ports and harbours or in her natural and man-made lakes:
a) (Amended on 4 June 1986 by Article 4 of Law no. 3301) On tankers that dump ballast, five million liras on those up to 1000 (inclusive) gross tons, ten million liras on those between 1000 and 5000 (inclusive) gross tons and fifty million liras on those over 5000 gross tons.
b) (Amended on 4 June 1986 by Article 4 of Law no. 3301) On other ships, tankers included, which dump any kind of discharge or waste or which discharge bilge water, five million liras on those between 18 (inclusive) and 1000 (inclusive) gross tons, and ten million liras on those over 1000 gross tons;
c) (Amended on 4 June 1986 by Article 4 of Law no. 3301) On ships up to 18 (exclusive) gross tons and on other marine craft not conforming to the definition of a ship (excluding exhaust pollution caused by motorboats with two-stroke outboard motors operating on a mixture of gasoline and oil), which pollute the sea or discharge bilge water, three hundred thousand liras.
ARTICLE 23 : If the acts specified in Articles 20, 21 and 22 of this Law are repeated, the fines shall be doubled.
Authority regarding Fines Administrative in Nature
ARTICLE 24 : (Amended on 4 June 1986 by Article 5 of Law no. 3301) The fines specified in the above Articles shall be imposed directly by the highest official of the local administration. Those fines shall be collected by the office of finance in accordance with the provisions of Law no. 6183 Concerning the Procedure for Collecting Public Debts. However, the fines specified in Article 22;
a) Shall be imposed by the Mayors of the Large Municipalities in the lakes, rivers, shores, straits, harbors and bays that lie within the boundaries of the Large Municipalities. Ships and other marine craft which are unable to provide guarantees or surety on this point, shall be prohibited from operating.
If the fine is not paid, it shall be collected in accordance with the Provisions of Law no. 6183 Concerning the Procedure for Collecting Public Debts.
The fines imposed by Large Municipalities shall be collected in return for a receipt and deposited with the highest financial office of the district. 20 % of the fine so deposited shall be transferred to the Municipality and 80 % to Environmental Pollution Prevention Fund. Up to 50% of the sum transferred to this Fund shall be used for the improvement of environmental health with the approval of the Ministry of Health and Social Welfare.
b) Outside the boundaries of the Large Municipalities, fines shall be collected directly by the commanders of Coast Guard boats. Ships and other marine craft which do not pay the fine immediately and in a lump sum shall be taken to the nearest and most convenient port and turned over to the prosecutor, and the provision specified in paragraph (a) above shall be applied in reference to them.
In the case of seagoing vessels which are not self-propelled, a report of the situation shall be made in writing and submitted to the prosecutor of the nearest coastal provincial or sub-provincial center.
c) In the case of pollution in areas outside the boundaries of the Large Municipalities, or pollution of seas, harbors, rivers, and lakes, the civil authorities shall be authorized to impose fines.
Such fines shall be collected in return for a receipt and deposited with the highest financial office of the district.
The principle to be followed in the determination of fault in the case of fines imposed in ships and marine craft, the methods of imposing such fines, and the form, distribution and control of the receipts to be used in implementing the fines shall be made explicit in special regulations.
Objections to Fines Administrative in Nature
ARTICLE 25 : Objection to administrative fines may be made to the authorized administrative court within a maximum of seven days from the date of issue of the fine.
An objection shall not block the execution of the penalty.
Unless there is a necessity to do otherwise, an objection shall be handled in document form in the shortest time possible.
Fines imposed over objections shall be final.
ARTICLE 28 : (Amended on 3 March 1988 by Article 88 of Law no. 3416) Polluters of the environment and those who cause damage to the environment are responsible, regardless of degree of fault, for the damage arising from the pollution and destruction they cause.
The polluter shall be required to pay compensation for the resulting damage according to the general provisions.
Last post by admin - September 15, 2010, 04:13:34 AM
ACT ON THE PROCEDURES FOR APPOINTMENT IN MINISTRIES AND AFFILIATED ORGANIZATIONS
Act No : 2451 Adopted on : 23/04/1981 Date of Official Gazette :25/04/1981 Official Gazette Number : 17321 Article 1 – Appointments and transfers within prime ministry and other ministries as well as the organizations affiliated thereto shall be governed by the procedures laid down in this Act, with no regard to the existence of any organizational law. As regards Turkish Armed Forces (including the Gendarme Command) and the Ministry of National Defense as well as other public institutions not subject to paragraph one, provisions on appointment and transfer set out in their private legislation shall remain applicable. Article 2 – Appointments to the duties holding the titles indicated in schedule (1) annexed to this Act shall be made upon a Council of Ministers resolution, and appointments to those indicated in the schedule (2) shall be made upon a joint resolution. Appointments and dismissal of them shall be made in accordance with the same procedure. Where delays are considered conducive to problems, the Minister of Foreign Affairs may appoint diplomats to permanent duties and transfer them from the foreign organization to the center, from the center to the foreign organization and from one country to the other in the foreign organization, provided that s/he obtains the verbal consent of the Prime Minister and the President. The decree concerning them shall be forthwith sent to the Prime Ministry. Article 3 – For appointments and transfers to offices and duties holding titles not included in the schedules annexed to this Act, provisions in the organizational legislation or private legislation of the organizations falling under the scope of this Act shall remain applicable. However, those who are foreseen to be appointed through a Council of Ministers resolution prior to the entry into force of this Act shall be appointed upon a joint resolution, and those who are foreseen to be appointed upon a joint resolution shall be appointed upon the approval of the Minister. Ministers may assign their power to appointment to lower ranks in accordance with the rules to be laid down in the regulations to be issued to this effect. Article 4 – Appointments to permanent foreign missions of ministries shall be made upon a joint resolution. Joint resolutions of other ministries shall include the signature of the Minister of Foreign Affairs together with the relevant minister. Article 5 – The provisions in the organizational laws and private laws of the organizations falling under the scope of this Act, which regard notification, election, consultation and appointment qualifications, shall remain without prejudice. Article 6 – This Act shall enter into force on the date of its publication. Article 7 – This Act shall be enforced by the Council of Ministers. Supplementary Article 1 – (Supplementary article: 25/07/1996 – 4158 / Art.1) If the Council of Ministers is composed of more than one political party, the joint resolution to be taken under this Act shall also be signed by the Deputy Prime Minister, who is a member to the other ruling party that has the greatest number of deputies in the Parliament, apart from the Prime Minister. The above paragraph shall also apply to appointments, transfers and dismissals envisaged to be made upon the signature of the Prime Ministry under other laws. Provisional Article 1 – Those who are still holding the seat of "Chief Assistant" shall continue to serve under this title. Appointments to vacant chief assistant seats shall be made under the title of "Assistant".
Schedule 1 Governors; Embassies, Permanent Representatives, Permanent Delegates; President of Religious Affairs and Members of the Higher Board of Religion; Chairman and members of the Higher Board of Supervision; Schedule 2 The Undersecretary and his/her assistants (including Secretary General for the Ministry of Foreign Affairs and his/her Assistants); Director General and his/her Assistants (including Secretary General for Foreign Trade of Ministry of Trade and his/her Assistant, Director General of the Treasury, and Secretary General of the Organization for International Economic Cooperation and his/her Assistant, President and Vice-President of Civil Defense Administration of the Ministry of Internal Affairs), Secretary General and of the State Planning Organization and Head of Departments, Planning Expert of the State Planning Organization, - The Scientific and Technical Research Council of Turkey and its Secretary General, - Chairman and Members of the Administrative Assembly of Directorate General for Foundations, - President of State Statistics Institute, - President of State Personnel Affairs - Secretary General of Nuclear Energy Commission, - Chairmen and Members of Boards in Ministries, Ministry Inspectors (including Accounting Experts of Ministry of Finance and Certified Auditors of Banks) and Labor Inspectors of the Ministry of Labor and Social Security - Ministry Consultants, - First Legal Consultant, - Heads of Departments within the Ministry, - Branch Chiefs of Provincial Administrations, - Regional Directors and Chief Directors, Deputy Governor, District Governor, Provincial Director for Legal Affairs, President of the Police Academy, Provincial Director of Security Forces, (...)
Last post by admin - September 15, 2010, 04:07:39 AM
THE CODE ON SEA LABOR
Number of the Code : 854 Passed on : 20/4/1967 Published in the Official Gazette : Date: 29.04.1967 : Number: 12586 Published in collection : Compilation: 5, Volume: 6, Page: 1849
The Scope of the Code:
Article 1 – This Code will be applied to the seamen who work under contract in the ships carrying the Turkish flag and sailing on the seas, lakes and rivers and weighing 100 gross tons and over and to the employers of the seamen. In the case that the total weight of the ships belonging to the same employer is 100 tons or in excess of this weight or if the total number of the seamen working for the same employer is 5 or more, the provision in the paragraph will be applied.
The vessels such as boats, barges, flat-bottomed boats, small lighters will also be considered as ships.
The Council of Ministers is authorized, with respect to the economical and social requirements, to apply the provisions of this Code fully or partially to the vessels that are not included in the scope of the vehicles as well as the seamen and their employers stipulated above.
The objections that could be filed as a result of the inclusion of the above mentioned vehicles in the scope of this Code will be settled subject to the examination carried out by the Ministry of Labor. These objections will not inhibit the execution of this Code.
The definition of the employer, seaman, captain and representative of the employer:
Article 2 – With respect to the execution of this Code;
A)The owner of the ship or the person operating a ship that does not belong to him/her in his/her name will be called the "employer", B)The captain, officer and the sailors as well as the other persons working in the ship under a labour contract will be called "seaman", C)The person who commands and conducts the ship or the person representing the commander when the commander cannot perform his duty due to compelling reasons will be called the "captain", D)The person authorized to act in the name of the captain or the employer will be called the "representative of the employer". The employer is directly responsible for the treatment by and the obligations of the representative of the employer vis-à-vis the seamen.
The provisions that are maintained:
Article 3 – The provisions in the fourth book of the Turkish Trade Law on the sea trade pertaining to the relationship between the captain and the employer maintain their validity.
The foreign seamen:
Article 4 – The provisions of this Code will be applied to the seamen who work on the ships that are included in the scope of this Code and are the citizens of the countries, which according to the principle of reciprocity grant the rights of the same nature to the Turkish seamen.
The contract in writing:
Article 5 – The labour contract will be executed in written form in two copies between the employer or the representative of the employer and the seaman and each of the parties receives one copy.
The form of the contract in writing:
Article 6 – The following issues must be addressed in the contracts in written form executed according to this Code:
1.The name and the surname of the employer as well as the address of the residence, 2.The name, surname, date and place of birth, the registration number and the address of the residence of the seaman 3.The name, registration number, gross weight of the ship and the registration office where the ship is registered (In the case that there is the possibility for the seaman to work on various ships of the same employer, this will be mentioned in the labour contract). 4.The date and place of the contract, 5.The task to be performed by the seaman, 6.The date and place for the seaman to start working, 7.It must be specified whether or not the labour contract covers a certain period and length of the period if the contract covers a certain period and the voyage must be specified if the contract covers a certain voyage, 8.The basis, on which the wage is founded and the amount of the wage, 9.The time and place of the payment of the wage 10.The conditions of the advance payment 11.The other conditions of work 12.The summary of the contract approved by the Code dated 25.5.1959 with the number 7292 for the labour contracts to be concluded with the tirimciler and stokers
The contracted executed for a certain period or voyage:
Article 7 – The labour contract can be executed for a certain period or voyage or for an indefinite period
I – The labour contract executed for a certain period will be terminated at the end of this period. In the case that the labour contract ends during a voyage, the contract will be maintained until the ship embarks on the first port and is secured.
II – The labour contract executed for a certain voyage will end after the ship has unloaded the cargo upon arrival at the port following the voyage indicated in the contract.
Extension of the period of the contract:
Article 8 – In the case that the seaman continues to work with the consent of the employer or the representative of the employer after the end of the labour contract executed for a certain period and the ship starts with a new voyage, the labour contract will be deemed to have been extended for the period of this voyage. In the case that the seaman continues to work with the consent of the employer or the representative of the employer after the end of the labour contract, the labour contract will be deemed to have been prolonged.
The exemption from levy and duty:
Article 9 – The labour contracts executed between the seaman and the employer or the representative of the employer is exempt from all kinds of levy and duty.
The probation period:
Article 10 – The maximum probation period for the labour contracts with an indefinite period will be 1 month. The parties to the contract can terminate the contract without notice period and indemnification or severance pay during this period. However, the right of fee for the working days of the seaman is preserved.
The work and identification card:
Article 11 – The employer or the representative of the employer has the obligation to give a work and identification card within 15 days to every seaman who has been recruited. The mentioned 15-day period for the seamen subject to a probation period starts with the end of the probation period. This card will be issued as a standard type and given against payment to the employers only by the Labor and Labourer Recruitment Institution.
The work card:
Article 12 -
A document indicating the art and period of the job will be given by the employer or the representative of the employer to the seaman who quits his job. The status and the behaviour of the seaman as well as how he has worked will be written in this document if the seaman wishes to have it that way. The signature of the employer or the representative of the employer will be certified by the harbourmaster of the port of registration upon the request of the seaman. The provision related to the certification mentioned above will not be applied to the documents given to the seamen quitting the job on the ships that are attached to the administrations giving public service or the associations serving public interest.
In the case that the employer or the representative of the employer insists on refraining from giving the document requested by the seaman or writes anything about the seaman that does not conform to the truth, a document prepared following an examination carried out by the harbourmaster of the registration port will be given to the seaman or the new employer upon the request of the seaman or the new employer. This examination must be completed within one week.
In the case that authorised persons refrain from giving such document to a seaman who has quit his job on a ship attached to administrations giving public service or anything that does not reflect the truth will be written on the document, an application for the necessary examination to be carried out will be filed with the office that is in charge with regard to the ship.
The seaman harmed by the delay in giving the document or because of untrue statements on the document or the new employer who has recruited the seaman may request indemnification.
These documents are exempt from all kinds of duty and levy.
Recruiting disabled persons or former convicts:
Article 13 – The employers or the representatives of the employers within the scope of this Code have the obligation to recruit seaman who are disabled and former convicts pursuant to the provisions, principles, measurements and conditions laid down in the Labor Code and the regulation related to this code.
Termination ad dissolution without notice:
Article 14 – The labour contract with an indefinite or without a certain period or based on voyage can be terminated:
I – by the employer or the representative of the employer if: a)the seaman returns to ship at any port but does not start to work or does not return to the ship at all, b)it will be impossible for the seaman to work on the ship due to arrest, imprisonment or prohibition of work on the ship, c)the seaman acts vis-à-vis the employer or the representative of the employer in violation of the laws, the labour contracts and other work and labour conditions, d)the seaman acts vis-à-vis the employer or the representative of the employer in violation of the maritime rules and practice or acts in contradiction to the ethical and moral rules
II – the seaman if; a)the salary is not paid according to the provisions of law or the contract b)the employer or the representative of the seaman violates vis-à-vis the seaman the laws, the labour contract or the other work conditions, c)the employer or the representative of the employer violates the maritime rules and practice or the moral and ethical rules
III – by the employer, representative of the employer or the seaman if; a)the voyage of the ship will be delayed or cancelled for a period longer than 30 days b)the seaman falls for any reason prey to a disease or is disabled which would constitute an obstruction for continuous work on the ship.
IV – The labour contract will be automatically terminated due to the loss and abandonment of the ship, if the ship is declared to be booty of war or in the case that the ship renounces the Turkish flag.
The notice period for using the right of termination:
Article 15 – The right of the employer, representative of the employer or the seaman to terminate the contract mentioned in Article 14 cannot be used following six (6) work days after one of the parties has found out that the other party has acted accordingly and at any rate one year after the act has been carried out.
The party that has terminated the contract within the period of the contract based on such acts is also entitled to file a lawsuit with the request for indemnification.
The notice for cancellation of the contract:
Article 16 – A) Except for the situations indicated in Article 14, the labour contract with indefinite period cannot be cancelled before six months have passed after the date of recruitment of the seaman unless
B) The other party must be notified of the situation before a contract with indefinite period is cancelled.
The labour contract will be deemed to have been cancelled; a)after two weeks beginning with the date of serving the notification with the other party for a seaman who has worked for six months, b)after four weeks beginning with the date of serving the notice with the other party for a seaman who has worked between six months and a year and a half, c)after six weeks beginning with the serving of the notice with the other party for a seaman who has worked between one and a half years and three years, d)after eight weeks beginning with the date of serving the notice with the other party for the seaman who has worked longer than three years.
D) The notice periods indicated above are the minimum periods, which can be prolonged with a collective labour agreement or with a labour contract.
E) The party not complying with condition of notice will have the obligation to make the payments corresponding to the periods indicated above.
In other situations where the seaman will be sacked due to reasons such as the membership of the union or the filing of a complaint and in case of the abuse of the right of the cancellation of the labour contract, an indemnification sum will be paid that is three times as much as the payments indicated in paragraph "B".
The parties have the right to request an indemnification apart from the above mentioned.
The commencement of the termination provision:
Article 17 – In case of a termination according to the articles 14 and 16, the date of the termination will be deemed to have been prolonged up to the time when the ship will be secured with the arrival at the designated port and in case of the change of the designated port, at the arrival of the first port, if the ship is on sea.
The notification of the termination:
Article 18 – In case of a termination of the labour contract by the employer or the representative of the employer, the seaman must be notified in writing of such termination together with the reasons. In the case that there is no possibility to notify the seaman, the situation will be recorded with a protocol.
The situation that does not cover the termination:
Article 19 – As long as the ship has the right to carry the Turkish flag, the transfer of the ownership of the ship in part or as a whole to another person does not constitute a reason for the termination of the labour contract.
In case of the termination of the labour contracts of the seaman subject to this Code;
1.by the employer for reasons other than the reasons indicated in paragraph of the article 14 of this Code, 2.by the seaman according to the paragraphs II and III of this Code 3.as a result of the active army service, 4.with the aim of obtaining a monthly salary of retirement of disability or with the purpose of receiving a lump sum from the social security institution they are linked to
or in case of the end of the contract due to the death of the seaman or as a result of the paragraph 4 of the article 14;
the seaman will be entitled to a severance pay, which will be paid by the employer, amounting to the fee for thirty day of work for each full year from the date of the beginning of the recruitment of the seaman. For periods in excess of one year, a payment at the same rate will be made.
The seniority of the seaman will be calculated by taking into consideration the periods of work by the seaman on one or more ships of the same employer, regardless of whether the labour contract was continued or interrupted from time to time. In case of the transfer of the property of the ship from one employer to another, independent of the art of the transfer, the seniority of the seaman will be calculated by taking into consideration the sum of the work period in the work place or work places.
In case of a transfer or change of ownership in any way of the ship as of 12.7.1975, both employers will be responsible for the severance pay that has accrued. However, the responsibility of the employer who has transferred the work place is limited with the period the seaman has worked at the work place before the transfer and the wage he has received at the time of the transfer. (1)
For the seaman to be able to benefit from the provision in the subparagraph 4 of the paragraph one, the seaman must document that he is entitled to a monthly payment or a lump sum payment and that he has filed an application with the institution he is affiliated with respect to retirement and requested the payment of a monthly amount or a lump sum. It will not be necessary to meet this requirement in case of the death of the seaman.
The severance pay will be paid by the last public institution employer by adding the service periods and taking as the basis the sum of all service periods in all public institutions to the seaman, being subject to the Code on the Retirement Fonds of the Republic of Turkey and the Code on the Social Security or being subject only to the Code on Social Security, who is entitled according to the Code on the Social Security to a monthly payment or a lump sum due to old age retirement or disability by taking into consideration the service period in just one public institution or by adding the service periods in different public institutions.
In the case that the labour contract between the seaman and the above mentioned public institutions had come to an end in such a way that the payment of severance pay was previously not necessary pursuant to this provision, these service periods will not be taken into consideration for the calculation of the severance pay.
However, the amount of this severance pay that will be paid for the period, in which the work of the seaman was subject to the Retirement Fund of the Republic of Turkey, cannot be more than the amount foreseen for the retirement bonus according to the Code on the Retirement Fund of the Republic of Turkey at the beginning date of the monthly payment for the old age or disability retirement.
The term public institutions used in this provision covers the administrations with general, added and special budget as well as the institutions stipulated in the article 4 of the Code number 468.
One than one payment for severance payment or bonus will not be paid for the same service period.
The severance pay will be calculated by taking the last wage as the basis. In the cases where the wage is not fixed as payment for voyage, piece work, in a lump sum or in percentage, the average fee that will be calculated by adding the amount earned in one year and dividing it by the days of work during that period will be taken as the basis for the severance pay.
However, in the case that a wage increase has taken place in the last year, the wage as the basis of the severance pay will be calculated by dividing the wage a seaman has earned between the date the seaman has quit the job and the date of the last wage increase by the number of days the seaman has worked during that period.
In addition to the wage indicated in the first paragraph of the article 29, the amount of money provided to the seaman and the contractual benefits and the benefits resulting from code that can be measured in terms of money will be taken into account for the calculation of the indemnification sum mentioned in the paragraph (D) of the article 16 and the wage that will be taken as the basis for the severance pay mentioned in this article.
The severance pay pertaining to the 20 day period mentioned in this article can be altered in favour of the seaman with the labour contracts and collective labour agreement (as amended: 10.12.1982-art. 2762/2). However, the annual amount determined by using the collective labour agreements and labour contracts cannot exceed the maximum retirement bonus for one service year that will be paid to the highest ranking state employee subject to the Code on the State Employees according to the provisions of the Code on the Retirement Funds of the Republic of Turkey number 5434.
In case of the death of the seaman, the indemnification amount resulting from the provisions mentioned above will be paid to the legal heirs.
The employer cannot use private persons and insurance companies to insure the responsibility resulting from the severance pay.
A funds related to the severance pay will be established by the employer at a bank or an institution established with a code, of which more 50 % of the capital belongs to the State, under the responsibility of the employer and only peculiar to the old age, retirement, disability, death and lump sum payments.
The issues relating to the establishment of the funds will be arranged with a code.
In the case that the labour contract will be terminated according to paragraphs I, II, III and IV of the article 14 by the employer, the representative of the employer or the seaman in a foreign country, the employer or the representative of the employer has the obligation to return the seaman to the registration port of the ship and pay for expenses of the seaman related to returning the seaman such as the transport and food costs, and the unavoidable expenses.
However, if the labour contract has been terminated pursuant to the paragraph 1 or the subparagraphs (a) and (b) of the paragraph II of the article 14, the employer or the representative of the may request the reimbursement of the expenses for returning the seaman to the country from the seaman after he has returned to the country.
The return of the foreign seaman:
Article 22 – The employer or the representative of the employer has the obligation to return the foreign seaman to the port at the residence of the seaman if there is no separate provision in the contract concluded with the foreign seaman.
The obligation to return the seaman within the native country:
Article 23 – In case of the termination of the labour contract in any of the Turkish ports and if there is no contradiction provision in the labour contract, the seaman must be returned to the registration port of the ship within the limits indicated in the article 21 by the employer or the representative of the employer. However, the provision of this article will not be applied if the labour contract will be terminated pursuant to the paragraph 1 one of the article 14.
Non-compliance with the obligation of returning:
Article 24 – In case of non-compliance by the employer or the representative of the employer with the articles 21 and 23, the seaman may request from the employer or the representative of the employer the expenses he has incurred to return to his country and an indemnification amounting to 15 days wage.
The loss of the right of being returned:
Article 25 – In the case that a seaman, who will be dismissed in a foreign country or of whom the labour contract will be terminated in a foreign country, concludes a labour contract with another employer, regardless of this job being related to maritime business or not, the obligation of the former employer or the representative of the employer to return the seaman to his country will be abolished.
In the cases indicated in the articles 21, 22 and 23, if the seaman does not bring forward the request to be returned to his home country within one week after date of dismissal or the date of the termination of the contract, the employer or the representative of the employer cannot be obligated to return the seaman to his home country.
In the case that the situations mentioned in the subparagraph (b) of the paragraph (1) of the article 14 of this Code have to come being as a result of reasons, for which the seaman cannot be held responsible, or there were similar reasons such as sickness for the seaman, the one week period mentioned in the paragraph two of this article will start as of the day these obstacles are eliminated.
Article 26 – The work time is generally eight hours per day and 48 hours per week. This length of time will be distributed evenly to the workdays of the week.
The work time is the period the seaman works or is in the shift. The employer or the representative of the employer must set out the shifts, the periods for meals and resting with a schedule and hang this schedule somewhere where the seamen can see it.
Article 27 – The persons carrying out the following tasks are not subject to the work time stipulated by the provision related to the work time.
1.The first captain in the ships where there are more than one captain or the person representing him as indicated in the paragraph (C) of the article 2 (including the pilots) 2.The chief engineer where there are more than one engineer, 3.The doctor and the health personnel 4.The nurse and infirmary attendants 5.The seamen working on the ship, of which the main function is to rescue life, property and ships 6.The persons working o their own behalf on the ship
Working extra hours:
Article 28 – The work carried out by exceeding the work time laid down in this code will be considered as overtime. The fee to be paid for each extra hour of work cannot be less than the amount calculated by increasing the normal fee per hour by 25 %.
The work carried in the following situations will not be considered as overtime.
1.The tasks considered to be mandatory by the captain for the safety of the persons or the cargo of the ship 2.The additional work to be done as a result of customs, quarantine and other formalities pertaining to health issues, 3.The drills (for fire, abandoning the ship, conflict on sea, rescue of a man and defence) conducted on the ship while at sea or at the port. The employer or the representative of the employer must keep a separate book certified by the notary public for the documentation of extra work hours.
The rate of wage increase applied to the seamen, the days, on which extra work has been carried out and the number of hours and the overtime payment the seamen have earned will be written in this book. The fee for the overtime must be paid in full by the employer or the representative of the employer at the time, place and in the period set out for the payment of the wages.
Article 29 – The wage is the amount paid in cash to the seaman by the employer or the representative of the employer for the work he has carried out. The wage must be paid in full at the time, place and in the period as indicated in the labour contract.
The payment period cannot exceed one month.
In case of the end of termination of the labour contract, the employer or the representative of the employer must immediately pay the wage of the seaman in full.
A seaman who refrains from carrying out his tasks without a justifiable reason will be deprived of the wage corresponding to this period by recording the incident in the log book and by preparing a protocol if there is no logbook. The employer is entitled to make a request for indemnification for the harm incurred as a result of this.
Article 30 – The employer or the representative of the employer has the obligation to make an advance payment upon request pursuant to the provisions of the labour contract.
The wage book:
Article 31 – A wage payment book certified by the notary public will be kept on each ship. However, the wage book can be kept in the office of the employer for the ships working within the ports.
All kinds of payment to be made to the seamen according to the labour contracts must be recorded in these wage books and the records must be documented with a signature and receipt.
Upon request, a certified copy of these records will be given to the seamen. These transactions are exempt from all kinds tax.
The assertion of having made a payment that is not based on documents is not valid.
The guarded part of the wage:
Article 32 – 240 TL of the wage of the seamen cannot be attached or assigned or transferred to another person. However, the amount appreciated by the judge for taking care of the family members is not included in this amount. These constraints does not eliminate the rights of the alimony creditors.
Food supply on behalf of the employer:
Article 33 – It is obligatory to set up a food service on the ships that are subject to this code. The seamen will be supplied with food free of charge from the day they start to work on the ship up to the moment of exit from the service. In cases where the food supply cannot be implemented because of unavoidable reasons, the employer or the representative of the employer will provide some other way of appropriate food supply or will make payments in cash.
There is no obligation to establish a food supply system in the ships, barges, lighters that transport cargo or passengers within the ports, city lines, in the bays, on the lakes and rivers. In such cases, the employer or the representative of the employer will fulfil the requirement of food supply by making payments in cash.
Article 34 – Quarters in the ship suited to the rank, number and the size of the ship will be provided free of charge to the seamen for them and their belongings beginning with the day of recruitment up to the end of the recruitment.
Other means of accommodation will be provided by the employer or the representative of the employer if for any compelling reason quarters cannot be provided to the seamen in the ship.
About the quarters and food supply:
Article 33 – (as amended: 4.7.1988 – article KHK-336-1; passed exactly the way it was: art. 7.2.1990-53)
The quartes provided in these ships for accommodation, rest and meals as well as the medicines, medical tools and materials, and the necessary conditions of the infirmary and the amount and the nature of the food stuff to be provided to the seamen, which of these conditions and quality will be considered to be essential and first degree and which will be considered as second degree and what kind of committees will be established with regard to the food stuff and the duty and the powers of these committees will be laid down in a regulation to be drawn up jointly by the Ministry of Labour and Social Security, the Ministry of Health and Social Assistance and the Ministry of Transportation.
In the case that the food stuff to be provided by the employer or the representative of the employer is less than the quantities laid down in the mentioned regulation, the seaman is entitled to request the amount corresponding to the difference and to request the amount for the full price in the case that no food will be provided, to be reimbursed by the employer or the representative of the employer. However, the seaman must notify the employer or the representative of the employer of the captain of the assertion on the day the failure to provide the necessary food stuff and to fulfil the conditions has occurred.
Article 36 – The provisions of the regulation mentioned in the articles 36 – 35 will not be applied for;
a)ships that are smaller than 500 grosstons b)the fishing and similar ships, c)for tugboats, d)swimming cranes,
The minimum wage:
Article 37 – The minimum wage for the seamen will be determined pursuant to the related article of the Labour Code.
The wage deduction:
Article 38 – The employer or the representative of the employer cannot impose a penalty as deduction from the wages for reasons other than those indicated in the collective labour agreement and the labour contract.
The seaman must immediately notified of the deductions to be made from the wage. The deductions to be made as penalty cannot exceed three days wage per month.
The other provisions of the Labour Code pertaining to the issue will be applied to the penalties imposed in form of deduction from the wage.
The deduction for the loss:
Article 39 – The amount which the employer or the representative of the employer can detain temporarily for the indemnification in the labour contracts cannot exceed the sum of ten days wage that will be deducted in ten weeks in equal amounts. These deductions as compensation for the indemnification apply to the entire work period and when a part of this has been deducted, deduction can be made in the framework of the same principles.
The deductions for indemnification will be returned in full in cases where the seaman quits working without having caused a loss that would necessitate a deduction. In the case that it is necessary to make a deduction from the amount that has been detained temporarily for indemnification, the employer has the obligation to explain to the seaman upon request according to which principles the deduction has been made and show him the accounts and the invoices and other documents.
Deduction from the amount detained for indemnification can only be made for the loss that has been caused by that particular seaman.
The indemnification deductions will be deposited at a national bank at the latest within three months. The accrued interest together with the other revenues will be paid to the workers at the same as the deductions.
Annual paid vacation:
Article 40 – The seaman who has worked for the same employer or in the same ship within one calendar year or has worked for at least six months based on one or more labour contracts will be entitled to a paid annual vacation.
The vacation period cannot be less than 15 days for the seaman who has worked between six months and one year and less than one month for the seaman who has longer than one year.
The vacation will be at the time considered as appropriate by the employer. This right cannot be waived.
A vacation of one month can be divided into two by mutual consent of the parties, provided that the two parts will be in the same year. The seaman cannot be forced to spend his vacation time in a foreign port or at any place other than the place where he has concluded the labour contract.
The seaman can ask for 7 days of unpaid leave for travelling related to the paid leave.
In the case that the labour contract of the seaman will be terminated pursuant to the paragraphs II, III and IV of the article 14 before he has had a chance take a paid leave, the employer or the representative of the employer has the obligation to make the payment related to the period of vacation.
Day off in the week:
Article 14 – Longer than six days of work in a week in the ships giving port service and working at the city lines is prohibited. The seamen who have to work on weekend, will have one day off in shifts during the week.
The payment for the day off of the week:
Article 42 – The employer or the representative of the employer will make to the seamen who have worked without interruption during the week before the day off in the ships that are subject to this Code for the day, on which the seamen do not work, a payment in the amount of one day's wage that is not for a work that is carried out without looking at the art of payment.
Three days of leave for marriage, two days for the death of the mother, father, husband, wife, brother, sister and children that have to be given as well as the other permissions given by the employer that will not amount to more than one week and the resting and sickness leaves given with doctor's certification will be accounted for as days, on which the seamen have actually worked.
In the case that work will be ceased by the employer or the representative of the employer on one or few days of the week without a compelling and economic reason, the days, on which work has not been carried out, will be counted as the days of the six work days, on which work has been carried out in order to be entitled to a paid non-working day in the week.
In cases where the work on the ship has to be interrupted for a period longer than a week due to compelling reasons, the weekend day during this period will be accounted for as a half day with regard to payment.
The employer or the representative of the employer will pay the seamen working on the ships that undertake short, medium and long voyages one day wage for each week the ship is on voyage without having to fulfil the requirement mentioned above and having to work for it.
The general vacation payment:
Article 43 – The seamen working on the ships included in the scope of this Code will be paid one day's wage without having to work for it and without looking at the art of payment on the national holy days and on general holidays stipulated in the Code on National Holy Days and General Holidays number 2379 and the Codes number 3466 and 221 that are annexes to the mentioned Code.
The parts that are not included in the holiday payment:
Article 44 – The amounts and bonus earned for overtime and the amounts paid as social help will not be taken into consideration with regard to determining the amounts paid for the national holy days and general holidays.
Temporary unavailability for work:
Article 45 – The payments for the national holy days, the general holidays and the weekends corresponding to the times when temporary unavailability payments must be made to the seamen will be made by the funds and institutions that make payments in the same amount.
The authorised courts entrusted with the duty:
Article 46 – The provisions of the Code number 5521 will be applied to the conflicts between the seamen and the employers or the representatives of the employers arising from this code and the labour contracts.
The lawsuits will be dealt with by the courts that are authorised to handle the labour lawsuits at the registration ports of the ships.
Article 47 – The notifications must be in writing and served with the related persons against signature. In the case that the notified person does not sign the notification, the situation will be specified with a protocol. However, the notification within the scope of the Code number 7201 will be carried out pursuant to the provisions of the mentioned code.
The reserved provisions:
Article 48 – The provisions of this code will not prejudice the more beneficial rights and benefits granted by the codes, the collective labour agreement, labour contract and the rights arising from traditions and customs. The obligations assumed by the employer as a result of the implementation of this code will not constitute a justification for the wages and the rights of the seamen to be reduced.
The supervision and inspection:
Article 49 – The necessary supervisions, inspections and monitoring in order to execute the provisions of this code will be carried out by the Ministry of Labour. The provisions of the Labour Code pertaining to the supervision and inspection of the business life and the penalty provisions of the same Code will be applied with respect to these issues.
The penalty provisions:
Article 50 – The Criminal Court of Settlement will impose pecuniary penalties not under 500 TL on those persons;
a)who do not execute a written contract with the seamen pursuant to the article 5 of the code, b)who does not issue a work and identification card for the seaman pursuant to the article 11 of the code, c)who does not give the seamen quitting the job a work document pursuant to the article 12 of the code d)who does not comply with the provisions of the code and the regulation pertaining to the recruiting of disabled seamen and former convicts pursuant to the article 13 of the code
Article 51 – The employer or the representative of the employer who,
a)does not pay the severance pay of the seaman pursuant to the article 20 of the code, b)who does not pay for overtime pursuant to the article 28 of the code, c)who does not make the payments in full and due time pursuant to the article 29 of the code, d)who does not comply with the obligation of providing food and making payments in cash pursuant to the article 33 of the code, e)who pays less than the minimum payment mentioned in the article 37 of the code
will be punished with a payment not under 100 TL and twice as much as the amount he has not paid or the amount corresponding to the amount of the food stuff he should have provided for each seaman.
II – Pecuniary penalty not under 1000 TL will be imposed on the employer or the representative of the employer a)who does not comply with the obligation to return the seaman to his country pursuant to the articles 21 and 23, b)who does not comply with the work periods indicated in the article 26
In the case that the acts stipulated in paragraph 1 are carried out in a foreign country, the penalties to be imposed will not be less than twice.
(Annex: 17.10.1980-art. 2319-2) Imprisonment from 6 months to 2 years and pecuniary penalty between twenty thousand and fifty thousand TL will be imposed on the authorised responsible personnel such as members of the board of directors, general director, institution director, director of the accounting office of the private and public institutions and corporations who, by acting in violation of the provisions of the article 20, give orders and instructions to give severance pays that do not fall within the principles foreseen for the severance pay or by exceeding the amount or the ceiling that was determined related to the severance pay.
Article 52 – A pecuniary penalty not under 2000 TL will be imposed on the employer or the representative of the employer who does not observe quality and the conditions that have been indicated in the regulation mentioned in article 35 of this Code as pertaining to the merits and first degree,
A pecuniary penalty not under 250 TL will be imposed on the employer or the representative of the employer who does not observe the quality and conditions indicated in the same provision as second degree.
Article 53 – A pecuniary penalty not under 500 TL will be imposed on the employer or the representative of the employer,
a)who applies pecuniary penalties to the wages of the seamen that violate the principles indicated in the article 38 b)who makes the deductions for the losses indicated in the article 39 in violation with the mentioned provisions, c)who does not give annual leave to the seamen pursuant to the article 40 d)who does not give weekly leave to the seamen pursuant to the article 41 e)who does not pay the amount related to the weekly leave pursuant to the article 42 f)who does not pay for the general holidays pursuant to the article 43
The lawsuits related to the offences arising from this code will be dealt with by the authorised courts of settlement at the ports of registration of the ships.
These lawsuits will be considered as urgent suits.
The codes that are no longer in effect:
Article 54 – The code dated 10.3.1954 with the number 6379 and the code dated 25.5.1959 with the number 7283 are no longer in effect.
Article 55 – The provisions of the "Regulation setting out the health, food and residence Conditions of the Seamen" pertaining to the same issues and put into effect by the Decree of the Council of Ministers dated 7.2.1958 with the number 4/9968 passed as based on the article 31 of the Code number 6379 that is no longer in effect as a result of this Code will be applied until the regulation mentioned in the article 35 of this Code is put into effect.
Temporary Article 1 – (This is the unnumbered temporary article of the Code dated 4.7.1975 with the number 1926 and a number has been assigned for concatenation.)
The severance pay will be paid directly by the employer until code pertaining to the funds, which is to be established pursuant to the last paragraph of the article 20, is passed.
The additional temporary article 2 - (This is the unnumbered temporary article of the Code dated 10.12.1982 with the number 2762 and a number has been assigned for concatenation.)
The highest amount of the severance pay to be paid for each year will be determined by adding one fourth of the difference between seventyfive thousand TL (75 000) the amount to be calculated by multiplying the 2500 indicator with the state employee monthly wage coefficient that will be determined with the budget codes to seventyfive thousand TL until the annual ceiling amount of the severance pay and the maximum retirement bonus payment to be paid for one year to the highest ranking state employee pursuant to the Code on the Retirement Funds of the Republic of Turkey with the number 5434 are equalised.
Article 56 – This Code will be in effect as of the publishing date.
Article 57 – The provisions of this Code will be executed by the Council of Ministers.
Last post by admin - September 15, 2010, 04:04:34 AM
ACT ON GUIDELINES FOR RESPONSE TO EMERGENCIES AND COMPENSATION OF LOSSES IN CASE OF POLLUTION OF THE MARINE ENVIRONMENT FROM OIL AND OTHER HARMFUL SUBSTANCES
Official Gazette : 11.3.2005 - 25752 Act No. 5312 Adopted on: 3.3.2005 SECTION ONE General Provisions Purpose ARTICLE 1. — The purpose of this Act is, taking into account rights and obligations emanating from international law and the domestic law on ensuring of marine safety and prevention of marine pollution; to establish; a) the guidelines for intervention and preparedness to be applied in emergency situations in order to eliminate the risk of pollution stemming from ships and facilities on the shore or to decrease, limit and remove pollution, b) the guidelines for the determination and compensation of losses resulting from the incident, c) the guidelines for the performance of international obligations, d) the powers, duties and responsibilities of the persons covered by the Act and of the authorities defined in the Act of the institutions, organisations, ships and facilities covered by the Act. Scope ARTICLE 2. — This Act covers the powers, duties and responsibilities of the authorities of the ships in the areas of application or who wish to enter the areas of application for any reason whatsoever, which have a capacity of five hundred gross tons or more, carrying oil or other harmful substances; of the authorities of shore facilities engaged in activities with oil or other harmful substances which might cause pollution; of ministries; and of public institutions and organisations. War ships and auxiliary war ships and ships belonging to any state or operated by the state and used for non-commercial activities are not covered by the Act. Definitions ARTICLE 3. — For the purposes of this Act; a) 'Emergency response team' shall mean the unit set up, authorised and equipped within the framework of the emergency response plans, in order to implement protective measures or to cause protective measures to be implemented, to prevent pollution or to cause pollution to be prevented, eradicate pollution or cause pollution to be eradicated, to extinguish fire should a fire break out or to cause the fire to be extinguished, b) 'Emergency response plan' shall mean national, regional or local level plans within the scope of intervention activities, covering organisation, powers, duties and responsibilities, actions to be taken, preparedness, intervention possibilities and capabilities and other issues, c) 'Ministry' shall mean the Ministry of Environment and Forestry, d) 'Other harmful substances' shall mean all substances except those listed in Appendices II and III of Annex II of the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) and except for those radioactive substances not limited to the ones which create pollution when mixed with the marine environment, e) 'Guarantor' shall mean, pursuant to the provisions stipulated in this Act; the person, organisation or state that undertakes liability for the compensation of losses apart from the liable party, on behalf of the liable party and that provides the liability certificate, f) 'Preparedness' shall mean the state of mobilisation of all the tools, devices, equipment, materials and trained human power able to respond in order to take urgent and effective measures in case of an incident and to minimise the loss that might be caused by the incident, g) 'Shore facility' shall mean a facility engaged in activities that may cause marine pollution from oil and other harmful substances on the shore or in areas near the shore, including open sea facilities and pipelines, h) 'Pollution' shall mean the release of oil and other harmful substances to the marine environment in a manner creating harmful effects such as harming living resources and marine life, jeopardising human health, hindering marine activities including fishing and the use of the sea for other legal purposes, altering seawater quality and upsetting the ecological balance, as a result of an incident, ı) 'Protective measure' shall mean measures taken in order to prevent or limit possible pollution that may occur after an incident, j) 'Incident' shall mean an event giving rise to pollution or damage or to a threat of pollution or damage emanating from ships or shore facilities due to reasons such as collision, breakage, fire, explosion or other reasons which necessitate implementation of emergency response plans or emergency response, k) 'Response' shall mean activities undertaken and the implementation of protective measures to decrease, remove, limit the damage which will be caused by pollution from an incident, l) 'Undersecretariat' shall mean the Undersecretariat for Maritime Affairs, m) 'Oil' shall mean substances listed in Appendix I of Annex I of the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) and, crude oil, fuel oil, sludge, refined products and all kinds of liquid hydrocarbon compounds which naturally exist under soil, without limiting the generality of the foregoing, n) 'Liable party' shall mean the owners, operators, masters, administrators, lessees, possessors and guarantors of ships of five hundred gross tons or more carrying oil or other harmful substances and of shore facilities, to whom responsibility can be attributed regarding compensation of the damage and the financing of protective measures, o) 'Claimant' shall mean real and legal persons making a claim for compensation of a damage pursuant to the provisions of this Act, p) 'Areas of application' shall mean, for the purposes of implementation of this Act, Turkey's inland waters, territorial waters, continental shelf and marine jurisdiction areas consisting of her exclusive economic region, and the open sea areas beyond the territorial waters in emergency cases provided for in this Act, limited with the purposes of response to such cases and compensation of losses, depending on the decision to be given after the opinions of the Undersecretariat, the Ministry, the Ministry of Foreign Affairs and other relevant public institutions and organisations, r) 'Damage' shall mean those losses specified in Article 6 of this Act and the costs for determination and compensation of the loss and for the settlement of disputes, s) 'Innocent passage' shall mean navigation in Turkish territorial waters for the purposes of travelling over territorial waters without entering Turkish inland waters or without calling at an anchorage or port facility out of inland waters, or in order to reach or leave Turkish inland waters, stop at or leave an achorage or facility outside inland waters . SECTION TWO Powers, Duties and Responsibilities Powers, duties and responsibilities of organisations ARTICLE 4. — For the purposes of implementation of this Act, the Ministry has the overall coordination duty. The institutions and organisations powered with this Act are obliged to notify the Ministry of the information obtained and operations undertaken within the scope of this Act without delay. The powers, duties and responsibilities regarding drawing up of emergency response plans, implementation of emergency response plans in coastal areas, determination of the type and effects of pollution, determination of harms to the environment and rehabilitation of areas affected from pollution after the incident are vested in the Ministry; the executionary powers, duties and responsbilities regarding implementation of emergency response plans for prevention of marine pollution stemming from sea craft, preparedness, response to pollution, compensation of losses and notification of liability guarantees are vested in the Undersecretariat; and the powers, duties and responsibilities regarding public security and police duties are vested in the Coast Guard Command. Ensuring of navigational, life, property and environmental safety ARTICLE 5. — The responsible parties of all ships and shore facilities within the scope of this Act are obliged to take all measures regarding obligations stipulated by international law and required by navigational, life, property and environmental safety, including preparedness and protective measures, in order to prevent the occurence of the incident, and in cases where the incident has already occured, to mitigate, remedy and limit losses. Ships flying a foreign flag which are covered by this Act, carrying oil and/or other harmful substances, that cannot prove, with internationally recognised instruments, compliance with standards established by conventions to which Turkey is a party, regarding navigational, life, property and environmental safety or which have clear indications that the ship is not in compliance with the standards, are not permitted to Turkish territorial waters and inland waters for the purposes of calling at Turkish inland waters or an anchorage or port facilities out of inland waters, except for force majeure to arise out of life saving services; those which have already entered are forthwith expelled or given a maximum of thirty days to ensure compliance with the standards. Ships determined to be in non-compliance with the standards at the end of this period are immeadiately expelled out of territorial waters. Ships carrying Turkish flag covered by this Act which are in non-compliance, on the other hand, are fettered and are forbade to nagivate until compliance with the standards is ensured. In such cases, the load of the ship is transferred to another suitable ship which is in compliance with the standards by the ship's or load's proprietor and proper disposal of loads required to be disposed of pursuant to legislation is ensured. The ships covered by this Act must notify the Undersecretariat of the ship and load carried fortyeight hours before entry to Turkish territorial waters for the purposes of calling at Turkish inland waters or at an anchorage or port facilities out of inland waters; or in case of ships for which the navigation time between the port of departure and entry to Turkish territorial waters is less than fortyeight hours, right after setting off from the port of departure. Ships which do not meet this requirement are not permitted to Turkish territorial waters and inland waters; those which have already entered are forthwith expelled therefrom. The procedures and guidelines for notification are set out with a regulation. The measures taken to ensure navigational, life, property and environmental safety are inspected by competent organisations according to the procedures and guidelines set out in this Act, relevant legislation and international arrangements. The procedures and guidelines for notification are set out with a regulation. The procedures and guidelines for the staff, materials and equipment that the shore facilities must have in place in order to respond to possible pollution are set out with a regulation. Newly established shore facilities are not permitted to operate until the staff, materials and equipment that they must have in place are completed. SECTION THREE Compensation of Losses Liability due to loss ARTICLE 6. — The liable parties of ships and shore facilities covered by this Act are severally bound to compensate cleaning costs caused by pollution or threat of pollution due to an incident stemming from ships or shore facilities in the areas of application; costs associated with protective measures, damage done to living resources and marine life, costs for recreation of the deteriorated environment, handling and disposal of collected waste, damages to natural and living resources used for subsistence purposes, damages to private property, losses due to injury or death of persons, revenue losses, damages to revenue and income capacities and other public losses. The liability of the guarantor does not remove other liable parties' liability. Losses not compensated by the guarantor are compensated by the other liable parties. In the event of a loss in an incident to which two or more ships are a party, the liable parties of all ships are jointly and severally liable. The right of recourse of the payers of the loss caused by the incident to the ones who caused the loss is reserved. Limitation of liability ARTICLE 7. — The provisions of international conventions to which Turkey is a party are reserved regarding total liable party liability per ship and maximum compensation amount to be borne by the liable party. Liability guarantees ARTICLE 8. — Ships carrying oil and/or other harmful substances which wish to enter the areas of application must, pursuant to international conventions to which Turkey is a party, have the liability certificates required from them, notify these to relevant authorities and show them when requested. Ships flying a foreign flag which are covered by this Act, determined not to have liability guarantees provided for in the internationl conventions to which Turkey is a party, are not permitted to Turkish territorial waters and inland waters for the purposes of calling at Turkish inland waters or an anchorage or port facilities out of inland waters, except for force majeure to arise out of life saving services; those which have already entered are forthwith expelled or given a maximum of thirty days to ensure fulfilment of the requirements. Ships determined to be not fulfilling the requirements at the end of this period are immediately expelled out of territorial waters. Ships carrying Turkish flag covered by this Act which are in non-compliance, on the other hand, are fettered and are forbade to nagivate until compliance with the requirements is ensured. In such cases, the load of the ship is transferred to another suitable ship which fulfils the requirements by the ship's or load's proprietor and proper disposal of loads required to be disposed of pursuant to legislation is ensured. . Shore facilities must take out insurance against losses covered by this Act. Shore facilities which do not fulfil the insurance requirement are not permitted to operate. The compulsory liability insurance provided for in the above paragraph must be made by insurance companies designated by the Undersecretariat of Treasury or a pool to be established by these companies. The Ministry, after obtaining the approval of the Undersecretariat of Treasury, can defer the requirement for shore facilities to take out liability insurance for a maximum of one year after entry into force of the general conditions, and tariffs and instructions regarding this insurance. The insurance general conditions regarding the liability insurance to be taken out by shore facilities are approved by the Undersecretariat of Treasury. Liability insurance tariffs and instructions are determined by the Minister to whom the Maritime Undersecretariat reports. The Minister to whom the Maritime Undersecretariat reports has the power to decontrol the tariff. Notification of liability guarantees ARTICLE 9. — The copies of the documents mentioned in Article 8 of the ships wishing to enter Turkish territorial waters for the purpose of reaching any Turkish port and which, pursuant to this Act, must have in place liability guarantees, must, before entry to Turkish territorial waters, be forwarded to the arrival port authority through an agency based in Turkey. The notification obligations for ships wishing to enter Turkish territorial waters for the purpose of transit passage from Turkish straits are determined with the Turkish Straits Maritime Traffic Regulations. Ships which will use Turkish territorial waters for innocent passage, must notify all kinds of communication devices and details of the liability certificates and the name of the ship, call name, flag, port of registration, name of the proprietor of the ship and place of the headquarters, the ship's International Maritime Organisation number (IMO No), type of guarantee, validity period of the guarantee, name of the insurer and place of its headquarters, compensation limits and details about and documents of the load and amount of load of the ship, the type of the ship, and the ports of departure and arrival to the nearest port authority. Determination of losses ARTICLE 10. — Chaired by the representative of the Ministry; representatives of the Undersecretariat, Coast Guard Command, General Management of Coastal Safety and Salvage Administrations and relevant governorships and municipalities, set up a loss adjustment commission. The Commission may invite the representatives and experts of other relevant institutions and organisations if it deems necessary. The procedures and guidelines of the Commission's activities are set out with a regulation. The Commission may have part of the whole of loss adjustment made by specialised Turkish or foreign persons and organisations. The amount of loss such adjusted is valid after approval by the commission. Claims for compensation and fee and payment thereof ARTICLE 11. — The compensation claims of those who suffer loss due to the incident and claims for fee of those who respond to or who dispose of the pollution are notified to the Undersecretariat. The Undersecretariat, depending on the adjustment of losses and settlement of disputes, ensures compensation of losses and payment of fees by the liable parties. In case of agreement by the parties on the amount of loss determined by the commission, the Undersecretariat is authorised to demand and collect the losses from the liable party or guarantor and to disburse these to those who suffer loss. In case the polluter cannot be identified, the Undersecretariat responds to or causes response to the pollution. The Undersecretariat, taking the opinions of the Ministry and the Ministry of Foreign Affairs, may request help from the flag states for the compensation of losses caused in Turkey by ships flying foreign flag, which cause pollution within the scope of this Act, but the responsible parties of which could not be found. Procedures and guidelines for compensation and payments are set out with a regulation. Limitation ARTICLE 12. — The limitation period for compensation claims due to incidents within the scope of this Act is, unless a longer period is stipulated in other acts, five years as of the loss is learned or the responsible party is identified, and in all cases, 10 years as of the date of occurrence of the incident (the last incident in case of a chain of incidents). Regarding the limitation period, the provisions of international conventions to which Turkey is a party are reserved. SECTION FOUR Response Guidelines Notification ARTICLE 13. — Everyone who is a party to the incident, who sees the incident, hears the incident or who has knowledge of the incident is obliged to notify the pollution or threat of pollution to the relavant authority or emergency response teams. The authorities to which notification is to be made and the procedures and guidelines for notification are set out with a regulation. Determination of pollution ARTICLE 14. — The Ministry undertakes or causes to be undertaken the necessary activities regarding the type of pollution occurred, scope, amount, spreading direction and speed, possible consequences and disposal methods and notifies these to the relevant emergency response team. Response ARTICLE 15. — The power to respond to pollution or pollution threat caused as a result of the incident is vested in the Undersecretariat. The Undersecretariat may have this duty performed by other public institutions and organisations and companies operating in this field or established for this purpose which are based in Turkey. This does not remove the Undersecretariat's responsibility and does not give the authorised public institutions and organisations and companies to directly claim compensation from the responsible party. The rights of the General Management of Coastal Safety and Salvage Administrations regarding salvage and assistance are reserved. Powers specified in Paragraph 1 can be exercised by the Ministry when necessary. In pollution caused by ships or shore facilities, the ships which are parties to the incident, and ships nearby the incident and shore facilities nearby the incident, give the first limited response with their staff, equipment and materials they have, and comply with the instructions of the authorised emergency response team after the team's response to the incident. The Undersecretariat notifes the Ministry of response activities performed. Pursuant to the provisions of international cooperation set out in conventions to which Turkey is a party and in emergency response plans drawn up within this framework, the Undersecretariat is powered to invite foreign emergency strike elements or send Turkish emergency response teams to foreign countries and to pay or claim associated expenses, taking the opinions of the Ministry and the Ministry of Foreign Affairs. The procedures and guidelines for the response power of private organisations and public institutions and organisations which will serve as emergency response teams and foreign country emergency strike elements invited within the framework of international cooperation are set out with a regulation. For the purpose of increasing the effectiveness of the response activities, the Undersecretariat can temporarily suspend or change sea traffic at the venue of the incident or in sea areas related with the incident which it deems appropriate. Handling and disposal of wastes ARTICLE 16. — Transportation to and disposal at a suitable disposal facility of wastes collected from the venue of the incident are performed according to the guidelines set out in the emergency response plans. Determination and rehabilitation of areas affected by pollution ARTICLE 17. — After the response operations, monitoring programmes are carried out by the Ministry for determination and rehabilitation of areas affected by pollution and determination of the long term effects of pollution on human health, plant and animal existence and natural and historical assets. Emergency response plans ARTICLE 18. — The national emergency response plan incorporating activities for response and guidelines regarding international cooperation in emergencies of pollution of the marine environment from oil and other harmful substances is drawn up by the Ministry in coordination with the Undersecretariat taking the opinions of Turkey Emergency Management General Directorate and the relevant organisations. The procedures and guidelines for drawing up of the national emergency response plan and regional and local level emergency response plans are set out with a regulation. Coordination in the event of switching to emergency management ARTICLE 19. — In the event of switching to emergency management, upon the Ministry's demand, due to an incident covered by this Act, pursuant to Article 11/A of Act No 3056 dated 10.10.1984, the emergency response team to be authorised within the scope of this Act acts as an element of the centres to be set up. If, even though it does not require switching to emergency management, an incident within the scope of this Act affects the land as well, the emergency response team to be authorised within the scope of this Act acts as an element of the centres to be set up pursuant to the provisions of Paragraph 1. In cases provided for in Paragraphs 1 and 2, the representatives of Turkey Emergency Management General Directorate join the commission referred to in Article 10. SECTION FIVE Miscellaneous Provisions Designation of arbitrator for setttlement of disputes ARTICLE 20. — If the Undersecretariat and the liable party or the guarantor agree, an arbitrator or an arbitration committee may be designated for settlement of disputes to arise out of the implementation of this Act. Arbitrators designated apply Turkish law. The arbitration is, based on relevance, subject to the provisions of the Code of Civil Procedure No 1086 or International Arbitration Law No 4686. Acceptance of ships under threat to suitable and safe sea areas ARTICLE 21. — The Undersecretariat is powered to accept a ship under threat to suitable and safe sea areas, on demand by the ship. The procedures and guidelines for acceptance are set out with a regulation. Inspection of the ship and police duties ARTICLE 22. — Where there is serious doubt that a ship will cause an incident or pollution within the scope of this Act or it will pose such a risk, the Undersecretariat can subject the ship to inspection for final determination. The Undersecretariat may, in cases deemed necessary, devolve its power to relevant institutions and organisations. All public security and police duties regarding the enforcement of this Act are undertaken by the Coast Guard Command. Pollution resulting from ship fuels and loads ARTICLE 23. — The provisions of this Act are applicable except the third paragraph of Article 5 and Articles 8 and 9 in the event of an incident for response to pollution or a threat of pollution and determination and compensation of losses arising out of oil or oil derivatives carried as fuel by a ship regardless of the fact whether the ship is covered or not covered by this Act or out of other harmful substances/loads carried by a ship not covered by this Act. The provisions of international conventions to which Turkey is a party are reserved. Regulations ARTICLE 24. — Regulations regarding the enforcement of this Act are drawn up jointly by the Ministry and the Undersecretariat, taking the opinions of the relevant ministries and organisations. Amended provisions ARTICLE 25. — The following Paragraph (j) has been added to Article 3 of the Public Procurement Law No 4734 dated 4.1.2002: j) Within the scope of the provisions of the Act on Guidelines for Response to Emergencies and Compensation of Losses in Case of Pollution of the Marine Environment from oil and Other Harmful Substances, drawing up of emergency response plans and response to pollution after an incident occurs and service procurement and tool, device and material procurement which may be urgently needed for the execution of emergency response plans, ARTICLE 26. — The following paragraph has been inserted after the last paragraph of Provisional Article 4 of Act No 4734: The guidelines and procedures regarding Paragraph (j) of Article 3 of this Act are set out with a regulation to be adopted by the Ministry of Environment and Forestry, taking the opinions of the Ministry of Finance, Public Procurement Authority and Undersecretariat for Maritime Affairs. PROVISIONAL ARTICLE 1. — The regulations which are provided for in this Act are drawn up in one year at the latest as of the date of entry into force of this Act; general conditions and tariffs and instructions regarding liability insurance are drawn up in six months at the latest as of the date of entry into force hereof and promulgated in the Official Journal. PROVISIONAL ARTICLE 2. — The activities of facilities which are active at the time of the entry into force of this Act and which cannot make good within the period defined in the regulation their shortcomings regarding staff, materials and equipment that they must have in place pursuant to the last paragraph of Article 5 of this Act are interrupted by the Ministry. Entry into Force ARTICLE 27. — This Act shall enter into force three months after the date of its publication. Enforcement ARTICLE 28. — The Council of Ministers shall enforce the provisions of this Act.
Last post by admin - September 15, 2010, 03:53:23 AM
ACT ON RIGHT OF INFORMATION ACQUIREMENT
Act No : 4982 Adopted on : 9.10.2003
SECTION ONE Purpose, Scope and Definitions Purpose Article 1.- The purpose of this Act is to lay down the guidelines and procedures for individuals to exercise their right of information acquirement in accordance with the principles of equality, neutrality and openness which are the fundamentals of democratic and transparent administration. Scope Article 2.- This Act is applicable to the activities of public institutions and organisations, and professional organisations which have the capacity of a public institution. The provisions of the Act on Exercising of the Right of Petition No 3071 of 1.11.1984 are reserved. Definitions Article 3.- For the purposes of this Act; a) 'Institution and organisation' shall mean all agencies and authorities mentioned in Article 2 of this Act and to which an application to acquire information covered by this Act can be made, b) 'Applicant' shall mean real and legal persons who exercise their right of information acquirement under this Act by applying to institutions and organisations, c) 'Information' shall mean all kinds of data covered by this Act which are in the records of the institutions and organisations, d) 'Document' shall mean written, printed or reproduced dossiers, papers, books, journals, brochures, studies, letters, programmes, instructions, sketches, plans, films, photographs, tape and video cassettes, maps, all kinds of electronically recorded information, news and data carriers which are the property of the institutions and organisations and which are covered by this Act, e) 'Access to information or document' shall mean, depending on the nature of the information or document requested, the delivering of a copy of the information or document in question to the applicant by the institutions and organisations; and in cases where provision of a copy is not possible, permitting the applicant to review the original information or document, take notes or see or hear the contents thereof, f) 'Committee' shall mean the Evaluation Committee for Acquiring Information.
SECTION TWO Right of information acquirement and Obligation to Provide Information
Right to acquire information Article 4.- Everyone has the right to acquire information. Foreigners residing in Turkey and foreign legal persons operating in Turkey shall benefit from the provisions of this Act on the condition that the information to be requested relates to themselves or their line of business and within the framework of the principle of reciprocity. Their rights and obligations arising out of the international conventions to which Turkey is a party are reserved. Obligation to provide information Article 5.- The institutions and organisations are obliged to take the necessary administrative and technical measures to make available to the applicants all kinds of information or documents, save for those exceptions included in this Act, and to complete applications to acquire information in an effective, swift and accurate manner. As of the date of entry into force of this Act, the provisions of other acts contrary to the provisions of this Act are not applicable. SECTION THREE Application to Acquire Information Application procedure Article 6.- The application to acquire information shall be made to the institution or organisation where the requested information or document is kept, with a petition comprising the name of the applicant, signature, domicile or business address; and if the applicant is a legal person, comprising the title of the legal person, address, and the signature of the authorised person and the certificate of authority. This application can be made in electronic format or by other means of communication on the condition that other information to identify the person's identity and signature or from whom the letter originates can be legally identified. In the petition, the information or documents requested must be clearly indicated.
The nature of information or document to be requested Article 7.- The application to acquire information must be relevant to information or documents which the institutions and organisations applied have or must have due to their line. The institutions and organisations may decline applications for information or document which can be created by undertaking a special activity, research, review or analysis. If the requested information or document is elsewhere than the institution and organisation applied for, the petition of application shall be sent to this institution and organisation and the applicant shall be notified of that in writing.
Information or documents published or made public Article 8.- Information or documents published by the institutions and organisations or made public through publications, brochures, advertisements and similar methods may not be subject to applications to acquire information. However, the applicant shall be notified on how, when and where the information or documents published or made public are published or made public.
Providing information or documents after extracting confidential information Article 9.- If, in the information and documents requested, there is classifed information or information, disclosure of which is prohibited, together with information which can be disclosed, and if these can be extracted, the information or document in question shall be provided to the applicant after extraction of classified or disclosure-prohibited information. The reason for extraction shall be notified to the applicant in writing.
Access to information or documents Article 10.- Institutions and organisations shall provide the applicant a certified copy of the document requested. In cases where providing a copy of the information or document is not possible due to the nature of the information or document, or in cases where making a copy thereof will give harm to the original, the institutions and organisations make sure that the applicant; a) Reviews the original of the document in question and takes notes, in the event of written or printed documents, b) Listens the the information or documents in the form of audio recording, c) Watches the information or documents in the form of visual recording. If it is possible to acquire the information or documents in ways other than the above, this opportunity is provided on the condition that the document is not damaged. The institution and organisation to which the application is made may collect a fee equal to the cost of access, from the applicant for the information or documents to which access is given, to be recorded as income in its budget.
Access times to information or documents Article 11.- The institutions and organisations, upon application, provide access to the requested information or document in fifteen working days. However, in the event that the requested information or document is provided from another unit within the institution or organisation to which the application is made; the opinion of another institution and organisation needs to be taken regarding the application; or the content of the application relates to more than one institution and organisation, then access to the information or document is provided within thirty working days. In this case, the extension of the time and the reason therefor are notified to the applicant in writing and before the expiration of the period of fifteen working days. Upon notification of the cost of access to information or documents mentioned in Article 10 by the administration to the applicant, the period of fifteeen working days is terminated. If the applicant does not pay the fee in fifteen working days, he is deemed to have waived his demand.
Answering of applications Article 12.- Institutions and organisations notify their answers regarding applications to acquire information to the applicant in writing or in electronic format. In case the application is rejected, the grounds for rejection and ways of objection are indicated.
Objection procedure Article 13.- The applicant, whose request for acquiring information is rejected for reasons provided for in Articles 16 and 17, before resorting to court, may make an objection to the Committee within fifteen days as of the notification of the decision. The Committee makes a decision on this subject matter within thirty working days. The institutions and organisations are obliged to provide all kinds of information and documents requested by the Committee within fifteen working days. Objection to the Committee halts the applicant's resort period to the administrative court.
Evaluation Committee for Acquiring Information Article 14.- The Evaluation Committee for Acquiring Information has been set up to consider decisions given based on the reasons provided for in Articles 16 and 17 upon objections regarding an application to acquire information, and to make decisions regarding the exercise of the right of information acquirement for institutions and organisations. The Committee comprises nine members; one from the Supreme Court of Appeal and the Council of State each from two candidates each, from their institutions, to be designated by the general assemblies thereof; one member from each of penal law, administrative law and consitutional law professors or associate professors; one from among two candidates to be designated by the Turkish Bars Association who are qualified enough to be elected as the chairman of the bar; two members who are serving at minimum general director level; and one from among judges working with the Ministry of Justice who have administrative duties within the Ministry, to be elected by the Council of Ministers, upon recommendation of the Minister of Justice. The consent of the candidates recommended for Committee membership is sought. The Chairman of the Committee is elected by the members of the committee, from among themselves. The Committee convenes at least once a month, or upon the call of the Chairman as and when necessary. The term of office of the committee members is four years. The members whose term of office expires can be re-elected. If a member leaves office before the expiry of his term of office, a member elected in place of the former member with the same procedure completes the term of office of the former. The former Committee stays until the newly elected Committee starts office. The Committee members are paid per diem, the provisions of the Allowance Act No 6245 of 10.2.1954 being reserved, for each actual day of duty, to be calculated by multiplication with the civil servant monthly coefficient of indicator number 1000 for those who are public servants and of indicator number 2000 for non-public servants. No deduction is made in these payments, save for stamp duty. The Committee may set up commissions and work groups on subject matters to be identified; in addition, if it deems necessary, it may invite representatives of the relavant ministry and other institutions and organisations and non-governmental organisations to the meetings to acquire information. The secretariat services of the Committee are performed by the Prime Ministry. The guidelines and procedures for the duties and the activities of the Committee are regulated with a regulation to be drawn up and put into force by the Ministry.
SECTION FOUR Limits of the Right of information acquirement
Transactions which are not subject to jurisdictional audit Article 15.- Of administrative transaction which are not subject to jurisdictional audit, those in a nature to affect the working life and professional dignity of the individual are covered by this Act. Right of information acquirement thus provided does not give rise to the transaction being subject to jurisdictional audit. Information or documents on secrets of state Article 16.- Information and documents which, if disclosed, will clearly prejudice the security of the State, foreign relations, national defence and national security and which are classified and State secrets by nature are not covered by the right of information acquirement. Information or documents on the economic interests of the country Article 17.- Information or documents which, if disclosed or prematurely disclosed, will prejudice the economic interests of the country or which will lead to unfair competition and gain are not covered by this Act. Information or documents on intelligence Article 18.- Information or documents on the duties and activities of civil and military intelligence units are not covered by this Act. However, if these information and documents are in a nature to affect professional lives and professional dignity of people, information and documents on intelligence are covered by the right of information acquirement. Information or documents on administrative investigation Article 19.- Information or documents which are related to the administrative investigations carried out by the authorised units of institutions and organisations, and which, if disclosed or prematurely disclosed, will; a) give rise to explicitly unjust intervention to the private lives of people, b) jeopardise the life or safety of people or those carrying out the investigation, c) jeopardise the safety of the investigation, d) cause disclosure of a source of information which must remain confidential and make difficult the supply of similar information and sources of information related with the investigation are not covered by this Act. Information or documents on judicial inquiry and prosecution Article 20.- Information or documents which, if disclosed or prematurely disclosed, will; a) lead to committing of a crime, b) jeopardise prevention and investigation of crimes or capturing and prosecution of offenders by lawful means, c) prevent proper performance of the duty of judgement, d) breach the right of fair judgement of a person who is the defendant of a lawsuit, are not covered by this Act. The provisions of the Code of Criminal Procedure No 1412 of 4.4.1929, the Code of Civil Procedure No 1086 of 18.6.1927, the Code of Administrative Proceedings No 2577 of 6.1.1982 and other special codes are reserved. Privacy of private life Article 21.- Information or documents, save for cases where permitted by the person, within the scope of the privacy of private life, which, if disclosed, will constitute unjust intervention to health details and private and family life, honour and dignity, professional and economic values of the person are not covered by the right of information acquirement. In cases required for the public interest, personal information or documents may be disclosed by the institutions and organisations by acquiring written consent of the person with a seven-day prior notice. Privacy of communication Article 22.- Information and documents which breach the principle of privacy of communication are not covered by this Act. Trade secrets Article 23.- Information and documents which are defined as trade secrets in laws, and trade and financial information provided by institutions and organisations on the condition that the information is hold from real or legal persons, are not covered by this Act. Intellectual and artistic works Article 24.- The relevant provisions of law are applied in applications to acquire information to be made regarding intellectual and artistic works. Intra-institutional arrangements Article 25.- Information and documents on arrangements of institutions and organisations regarding intra-institutional practices which do not interest the public and which are solely relevant to their staff are not covered by the right of information acquirement. However, the right of information acquirement of the employees of the institution who are affected by the arrangement in question is reserved. Intra-institutional opinions, memoranda and recommendations Article 26.- Information or documents of institutions and organisations acquired for the carrying out of their activities, which are in nature of opinions, memoranda, proposals or recommendations, unless otherwise decided by the institution and organisation, are covered by the right of information acquirement. The opinions of persons, units or institutions which are obliged to provide opinion in scientific, cultural, statistical, technical, medical, financial, legal and similar fields of expertise by law are open to information requests on the condition that they constitute the basis for decisions to be taken by institutions and organisations. Recommendation and opinion requests Article 27.- Recommendation and opinion requests are not covered by this Act. Information or documents, confidentiality of which is lifted Article 28.- Information or documents, confidentiality of which is lifted become available for applications to acquire information, unless they are covered by other exceptions specified in this Act.
SECTION FIVE Miscellaneous and Final Provisions Penal provisions Article 29.- For the civil servants and other public officials who are found to be negligent, at fault and malicious in the implementation of this Act, the fact that the acts they committed require penal prosecution under the general provisions being reserved, the disciplinary actions stipulated in the legislation they are subject to are applied. Information and documents accessed through this Act cannot be reproduced or used for commercial purposes. Issuing of reports Article 30.- The institutions and organisations shall issue a report of the preceding year, showing; a) the number of applications to acquire information made to them, b) the number of applications, affirmatively responded and provided access to information or documents, c) the number of rejected applications and statistical information showing the breakdown of these, d) the number of applications which confidential or secret information were extracted or such information was detached and then access to information or documents was provided, e) the number of applicants who made an objection after rejection of the application and the results thereof, and send these reports until the end of February every year to the Evaluation Committee for Acquiring Information. Affiliated, relevant and associated public institutions and organisations submit their reports through the relevant Ministry they are affiliated and associated to. The Committee send the overall report to be drawn up to the Turkish Grand National Assembly until the end of April every year together with the reports of the institutions and organisations in question. These reports are made public in the following two months by the Presidency of the Turkish Grand National Assembly. Regulation Article 31.- The regulation regarding the identification of the guidelines and procedures for the implementation of this Act shall be drawn up within six months following the publication of the Act by the Prime Ministry and put into force by the Council of Ministers. Entry into Force Article 32.- This Act shall enter into force six months after the date of its publication. Enforcement Article 33.- The Council of Ministers shall enforce the provisions of this Act.
Clause 1- If a spouse or child or another member of the family living under the same roof is subject to abuse, and notification is made either by the victim or by the Public Prosecutor, in addition to the provisions of the Turkish Civil Code, taking into consideration the specific circumstances, a Justice of the Peace can pass one or more of the following rulings or take any other measures that are deemed appropriate. The accused spouse can be ordered:
a. Not to use violence or threatening behavior against the other spouse or children (or another member of the family living under the same roof); b. To leave the dwelling shared with the spouse or children if there are any and not to approach the dwelling occupied by the spouse and children or their place of work. c. Not to damage the property of the spouse or children (or of others living under the same roof); d. Not to cause distress to the spouse or children (or others living under the same roof) using means of communication; e. To surrender a weapon or other similar instruments to the police; f. Not to arrive at the shared dwelling while under the influence of alcohol or other intoxicating substances nor use such substances in the shared dwelling.
The above-mentioned measures can be applied for a period not exceeding six months and, if the accused does not abide by the rulings, s/he shall be warned that s/he is liable to arrest and confinement. The judge shall take into account the standard of living of the victim and rule on maintenance payments accordingly. Under the first paragraph of the statute, no fee is charged for applications.
Clause 2- A copy of the protection order is entrusted to the Public Prosecutor by the court. The Public Prosecutor monitors the application of the order through the police. In the event of the order being implemented, the police, without the need for the victim to submit a written application, will themselves conduct an investigation and transfer the documents to the Public Prosecutor within the shortest possible time.
The Public Prosecutor can file a suit at the Magistrates Court against the spouse who does not abide by the order. The location of the case and the avoidance of loss of time in its expedition are governed by Law No 3005 on the Criminal Courts. The spouse who has not abided by the protection order can be sentenced to a prison sentence of three to six months.
Clause 3- This law comes into effect from the date on which it is promulgated.
Clause 4- The provisions of this law are implemented by the Council of Ministers.
Corollary to the Clauses of the Law
Clause 1- The first clause of the draft provides for a member of the family who suffers abuse within the family, notification of which is either made by the victim or the Public Prosecutor, to secure one or more protective rulings, in addition to the provisions of the Turkish Civil Code. For example; if a husband arrives home under the influence of alcohol and abuses his wife and children the court can pass a ruling that he is "not to arrive home under the influence of alcohol" or, if the husband needs to be kept away from the home, it can issue more than one ruling, such as "not to approach the wife's house or workplace", "not to damage the wife's possessions", "to inform the accused spouse's superior at work or his employer" or "to forbid the accused spouse from coming to their shared home". In extraordinary circumstances the court can also pass other similar rulings in addition to those enumerated. If the Magistrate's Court considers that there is a possibility of the victim again being subject to abuse then it can pass an order immediately after the application without need for witnesses or hearing from the other side. Those who have suffered abuse are not responsible for proving to the court the possibility of being subjected to abuse. The court can issue rulings for a period of up to six months and if the accused does not abide by the court rulings s/he is warned that s/he is liable to arrest and confinement. The presiding judge can make a maintenance order so as to prevent the victim from becoming impoverished. In order to set the amount of maintenance, an expert is required to conduct an investigation and determine the standard of living of both the plaintiff and the defendant. In order for the victim not to incur any financial expense, no charge shall be made for applications to the Magistrates Court.
Clause 2- According to the second clause of the draft, a copy of the protection order shall be forwarded to the Public Prosecutor by the Magistrates Court and the responsibility for ensuring that the order is complied with shall be delegated to the police. In the event of the protection order not being complied with, the police shall conduct its own investigation, without need for the victim to submit a formal application, and forward the documents to the Public Prosecutor in the shortest possible time. The Public Prosecutor shall open a case at the Magistrates Court in the name of the state against the spouse who is not complying with the protection order. The aforementioned case shall be conducted in the manner and with the speed foreseen by the law on Criminal Courts.
At the conclusion of the trial, if the spouse who has not complied with the provisions of the protection order is guilty of another crime then s/he is liable to a prison sentence of three to six months. The passing of the prison sentence foreseen in this clause is based upon the accused being previously warned by the court of the consequences of his/her failure to abide by the protection order and the persistent endangering of the unity of the family. The aim of the setting of a six month upper limit for the prison sentence is to act as a deterrent and to ensure that the sentence does not fall within the scope of the punishments foreseen in the 119th clause of the Turkish Criminal Code.
Clause 3- The law will come into effect on its promulgation.
Clause 4- The implementation of the law is the responsibility of the competent authority.
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