Business Crimes and Anti-Corruption
Administrative, Tax and Regulatory
Bar Admission: Istanbul Bar Association
Beril Yayla Sapan joined the firm in 2008 and is now a managing associate. Her practice focuses on dispute resolution, employment, business crime and anti-corruption.
Beril has been involved in several high profile commercial conflicts and debt collection procedures and successfully represents clients before the various courts in this field.
She is experienced in areas where commercial and criminal laws overlap and has advised several multinational companies on white collar crime, compliance and legal audits.
Her practice also includes labour law and she has advised on employment contracts and policies, restrictive covenants, collective bargaining agreements, employee related data protection, business immigration, terminations, collective redundancies and settlement. She also represents clients in litigation relating to termination, employment related debts, mobbing and discrimination claims.
Languages: English, Turkish
The Law on the Amendment of Some Laws to Improve the Investment Environment introduces new provisions regarding the issuance of cheques and bounced cheques. The omnibus act amends the Commercial Code and introduces a serial number issued by the bank and a two-dimensional barcode to the mandatory elements on cheques. Further, banks now have extended obligations regarding the opening of cheque accounts.
In April 2020 the termination ban and unilateral unpaid leave came into force, prohibiting employers from terminating any employment contract – regardless of whether it fell within the scope of the Labour Act – for three months as of the effective date of the law. The termination ban and unilateral unpaid leave have since been extended several times, most recently until 30 June 2021.
The Constitution protects private life and in 2016 the Data Protection Law was enacted, furthering the protection of personal data. In disputes relating to the monitoring of employees' personal data in the workplace, the courts and the Data Protection Authority (DPA) have mostly based their decisions on the constitutional provisions. This article outlines the legal grounds for data processing in the employment context and highlights recent court and DPA decisions in this respect.
The Constitutional Court has once again considered the rights of personal data protection and the freedom of communication in an employment context following an employer's inspection of an employee's corporate email account and the termination of the employee based on the outcome of such inspection. The decision draws attention to the importance of the explicit information requirement in inspections conducted by employers and sheds light on the application of the principle of proportionality.
Pursuant to three presidential decrees recently published in the Official Gazette, the termination ban and unilateral unpaid leave, which were due to expire by 17 January 2021, have been extended until 17 March 2021. Further, the short-time working allowance granted to workplaces which had applied until 31 December 2020 has been extended until 28 February 2021. Similarly, the application deadline for the short-time working allowance has been extended until 31 January 2021.
At the beginning of each year, the minimum wage, severance payments and administrative fines prescribed by the Labour Act are revised. On 1 January 2021 the changes for 2021 came into effect. Among other changes, the monthly minimum wage rate has increased from TL2,943 (gross) to TL3,577.50 (gross).
Government bodies have introduced progressive measures and restrictions to minimise the COVID-19 pandemic's negative impact on employment and sustain employment relationships. One of the most significant arrangements in this respect is the termination prohibition. However, mutual termination agreements have become a point of contention in light of this prohibition as they are unregulated under Turkish law.
Whether employers can review employees' corporate email accounts and rely on any findings collected during such an inspection in a potential termination is a controversial issue in terms of personal data protection and privacy. The Constitutional Court has rendered two recent decisions on the right to privacy and privacy of communication with regard to corporate email accounts. Both decisions elaborate in particular on employees' information rights.
Pursuant to two presidential decrees recently published in the Official Gazette, the termination prohibition and unilateral unpaid leave, which were to expire by 17 November 2020, have been extended until 17 January 2021. Further, the short-time working allowance granted due to COVID-19 has been extended until 31 December 2020.
Shortly after the publication of Law 7252 in the Official Gazette, several presidential decrees were published, extending the termination prohibition, unilateral unpaid leave and the short-time working allowance. Following these developments, employers are prohibited from terminating employment contracts until 17 November 2020 and can impose unpaid leave without employee consent until 17 November 2020.
Pursuant to two presidential decrees recently published in the Official Gazette, the termination prohibition and unilateral unpaid leave, which were to expire by 17 July 2020, have been extended until 17 August 2020. Further, the short-time working allowance granted due to COVID-19 has been extended for one month.
Turkey is currently going through the so-called 'normalisation phase' of the COVID-19 pandemic, with the regular weekend curfew being lifted, the interprovincial travel restrictions being removed and the age limit of people subject to continuous curfew being lowered as of 1 June 2020. This article examines what this means for employers and how they can prepare for a return to the workplace.
The COVID-19 outbreak, which was declared a pandemic by the World Health Organisation on 11 March 2020, the date on which the first case in Turkey was discovered, has inevitably had a significant impact on economic life. The measures taken to minimise this impact eventually resulted in labour law having to be restructured according to the pandemic's circumstances. In this respect, the duration of compensatory working, which is stipulated under the Labour Act, has been increased.
The Law on Minimising the Impacts of the New Coronavirus (COVID-19) Outbreak on Economic and Social Life and the Amendment of Certain Laws recently entered into force. The most significant amendments include the prohibition on employers terminating employment contracts for three months as of 17 April 2020 and the provision that employers can impose unpaid leave without an employee's consent during the three-month prohibition period.
The coronavirus pandemic will inevitably affect Turkish labour law; as part of employers' duty to protect employees, they must take occupational health and safety measures and protect employees' health and physical and mental integrity. This article outlines employers' duties in this respect.
At the beginning of each year, the minimum wage, severance payments and administrative fines prescribed by the Labour Act are revised. On 1 January 2020 the changes for 2020 came into effect. Among other changes, the monthly minimum wage rate has increased from TL2,558.40 (gross) to TL2,943.00 (gross).
The Constitutional Court recently found that the requirement for employers to pay interest at a rate of 5% for each day that a journalist's overtime payments remain outstanding conflicts with the Constitution. The court ruled that this requirement places an excessive burden on employers and may result in journalists' unjustified enrichment. Therefore, the court repealed the provision on the grounds that it breached the principles of proportionality and equality.
The Supreme Court General Assembly on the Unification of Judgments recently concluded that penalty clauses agreed for the unjust termination of a fixed-term employment contract before its end date are valid and enforceable even if the contract is deemed to be of an indefinite nature due to a lack of objective conditions required by law to conclude fixed-term contracts.
Applying for mediation was recently made a prerequisite when filing a lawsuit concerning monetary claims by employees or employers arising out of employment contracts, collective labour agreements or reinstatement claims. Mandatory mediation was introduced to accelerate legal proceedings and lower the costs in employment disputes.
The Supreme Court recently found that the failure of employees to use appropriate language in their written workplace correspondence with superiors or colleagues constitutes a valid reason for termination. The court held that although the actions of the employee in question had not been serious enough to constitute just cause for termination and deprive him of his termination benefits, the employer could not be expected to continue the employment relationship.
Minimum wage, severance payments and administrative fines prescribed by the Labour Act are revised at the beginning of each calendar year. The minimum wage rate was recently increased to TL2,558.40 (gross) and the maximum severance payment was increased to TL6,017.60 (gross). In addition, the rate of administrative fines was increased by 23.73% compared with 2018.
The recently published Presidential Executive Decree 85 amended Decree 32 on the Protection of the Turkish Currency. In the field of employment law, it is unclear whether foreign nationals fall within the scope of the decree and how their salaries will be paid going forward. Since the decree uses the term 'Turkish residents', the general understanding is that it also applies to foreign employees, as they must have a residential address in Turkey in order to have a work permit.
The Supreme Court recently issued a number of decisions setting out how to calculate overtime pay and how employees can prove any overtime owed when required. Among other things, the decisions state that signed payslips can be used as material evidence. Further, where an employee has not signed a payslip and overtime payments have been made via bank transfer, the employee must prove that they worked the disputed overtime with documentary evidence.
The Supreme Court recently issued a decision concerning an employee's dismissal for borrowing money from their employer's customer. The Supreme Court reversed the first-instance labour court decision and ruled that the termination was lawful based on the fact that the employee had acted against the rule of integrity and honesty and damaged the employer's reputation.
The Labour Courts Act has introduced a number of changes and amended the appeal procedure for labour disputes. The legislature hopes to shorten the duration of actions which, by their nature, should be resolved as quickly as possible. Although it is still questionable whether these amendments will produce the anticipated returns in terms of reaching the desired duration for trial processes, they mark an important attempt to limit the two-phase appeal stage for certain cases.
The Amendment Act of August 25 2016 introduced the automatic enrolment of employees in private pension plans. As a result, employees under the age of 45 must be enrolled in a private pension plan as part of a pension agreement between their employer and a pension company. As the majority of employees have withdrawn from the system, the Ministry of Finance recently prepared a draft omnibus law which introduced new provisions regarding automatic enrolment in the private pension plan system.
Overtime in Turkey is regulated by the Labour Act and the Regulation on Overtime. Following criticism from legal scholars, the Regulation on Overtime was recently amended. The amendment has clarified that an employee's written consent for overtime can be obtained through an employment contract or during the employment relationship if needed. Therefore, obtaining employee consent at the beginning of each year is no longer required.
The Labour Courts Act, which was recently published in the Official Gazette, aims to ease the judiciary's workload and accelerate the judicial process in employment cases. The act has introduced a number of changes, the most important of which include mandatory mediation for employers and employees before initiating lawsuits, an amended procedure for reinstatement cases and a reduced statute of limitations of five years for several types of compensation.
The Supreme Court recently rendered an important decision concerning the protection of employees' privacy rights. The court reversed a first-instance labour court decision and ruled that the dismissal of an employee was unlawful on the grounds that the employer had used the employee's WhatsApp conversations (obtained in an impermissible way) as evidence, thus violating the employee's right to privacy.
The right of employees to annual paid leave is regulated by Articles 53 to 60 of the Labour Act and the Regulation on Annual Paid Leave. In principle, employees are expected to take their annual leave en bloc. Recent amendments to the act and the regulation maintain the right of employees to continuous rest, but provide flexibility to those who wish to divide their holidays into several parts in a given year.
The Supreme Court recently issued a decision concerning an employee's dismissal on the grounds of (among other things) recording a conversation with his supervisor without his consent. The court reversed a first-instance decision and ruled that the termination was lawful based on the fact that the employee had been handling personal business during working hours without authorisation and secretly recorded a conversation.
A long-awaited legal arrangement on employees' automatic enrolment in private pension plans by their employers was introduced into Turkish law by way of an amendment law published in 2016. The amendment law adds new provisions to the Private Pension Savings and Investment System Act 2001. Accordingly, employees under the age of 45 will be enrolled in a private pension plan with a pension agreement between the employer and a pension company.
The Ministry of Justice recently prepared a new draft Law on Labour Courts and shared it with the relevant public institutions and organisations for review. The draft law aims to ease the judiciary's workload and accelerate the judicial process in employment cases. The most important amendment stipulated in the draft law is the introduction of a mandatory mediation phase. If the draft law is adopted, it will be mandatory for employees to apply for mediation before initiating certain lawsuits.
The Law amending the Enforcement and Bankruptcy Law and Other Laws recently came into force. The most significant amendments introduced to the Enforcement and Bankruptcy Law are the abrogation of the postponement of bankruptcy procedure and the adoption of a more efficient and functional structure for the composition with creditors procedure, which is a court-approved agreement between debtors and creditors.
Parliament recently enacted an omnibus bill which – among other things – introduced new provisions regarding the postponement of bankruptcy. As a legal mechanism open to the misuse of debtors, the limitation of applications for the postponement of bankruptcy has been on Parliament's agenda for some time. The changes aim to establish stricter norms for such applications and make filing for bankruptcy a more attractive option than postponement.
Law 7251 on the Amendment of the Civil Procedure Code and Certain Laws introduced, among other things, significant amendments to the preliminary examination mechanism. Now, in the event that a party fails to appear at a preliminary hearing, the present party will not be entitled to expand or change its claims without the absent party's consent. Further, new requirements apply with regard to invitations to preliminary hearings.
Law 7251 on the Amendment of the Civil Procedure Code and Certain Laws (Amendment Law) recently entered into force. One of the significant amendments introduced by the Amendment Law concerns Article 281 of the Civil Procedure Code (CPC) 6100, which regulates parties' objections to expert reports. With this amendment, parties can now request an extension from the court to file their objections against expert reports under certain circumstances.
Law 7251 recently entered into force, allowing the courts to conduct remote hearings through video and audio transmission either upon the parties' request or ex officio under certain circumstances. Although remote hearings are not new to Turkish law, allowing more space for such practices is significant given the COVID-19 pandemic. However, this practice is available only in certain courts and more widespread use may create capacity problems for the existing judiciary infrastructure.
When the new Code of Civil Procedure was enacted, it enabled plaintiffs to file actions for unquantified amounts of receivables, the determination of which is left to the courts. The General Assembly of the Civil Chambers of the Court of Cassation General Assembly recently ruled that if an action for an unquantified amount of receivables is initiated despite the amount being determinable, the courts should not immediately reject the case but should instead proceed with the trial by deeming the action a partial action.
Under Decision 2480 on the Extension of the Suspension of Terms for the Prevention of Losses of Judicial Rights, the suspension of terms stipulated in Law 7226, which aimed to prevent any loss of rights in regard to trials due to the measures taken to combat the COVID-19 outbreak, has been extended. However, this date will be re-evaluated if the risk of spreading the virus is eliminated before the extension expires.
The Law on the Amendment of Certain Laws 7226 recently entered into force upon publication in the Official Gazette. Pursuant to Law 7226, the procedural terms will be suspended until 30 April 2020 in order to prevent any loss of rights in regard to trials due to the measures taken during the COVID-19 outbreak.
In a May 2019 decision, the Supreme Court General Assembly on the Unification of Judgments concluded that the plaintiff in a partial monetary action need not reiterate its claim for interest when increasing the value of the claim if it claimed interest for its principal receivables in the plaint petition and the claim of interest will automatically apply for the amount which is increased later on.
The Supreme Court recently examined the date on which an addressee had viewed an electronic notification. The court's first decision caused uncertainty as it accepted the date on which the notification had been viewed as the notification date. However, the court later revoked this decision and provided clear legal guidance that electronic notifications will be deemed to have been served by the end of the fifth day after their delivery, regardless of whether the addressee has viewed the notification.
The justification of court decisions is regarded as a key element of the right to a fair trial. In Turkey, this right is protected by the European Convention on Human Rights, as well as the Turkish Constitution, the Code of Civil Procedure and Supreme Court precedents. However, in practice, judgments are sometimes made without providing any justification as to why the parties' claims and evidence were not taken into account.
Parties that failed to comply with an interim injunction or that violated an injunction previously faced one to six months' imprisonment. However, the Constitutional Court recently annulled this provision due to its lack of clear regulation and legal remedies. The changes will enter into force nine months after their publication in the Official Gazette and are final and binding on legislative, executive and judicial bodies, administrative authorities and real and legal entities.
Turkey has recently faced higher currency exchange rates, which has raised the question of whether this increase constitutes a change in circumstances that affects the fulfilment of contractual obligations. As there is no settled Supreme Court precedent regarding whether a fluctuation in currency exchange rates requires the adaptation of contracts, first-instance courts will need to examine the circumstances of each case.
Since 2012, individuals in Turkey have been able to make individual complaint applications to the Constitutional Court claiming that the state has violated their fundamental constitutional rights (or rights under the European Human Rights Convention) through its acts or omissions. One of the most common claims is that the state has violated an individual's right to a fair trial by failing to meet the reasonable time requirement and concluding criminal cases over long periods, in some cases more than 10 years.
Under Turkish law, there are two types of procedure in civil proceedings. Written procedure is the main and most common type, whereas the simple procedure, as the name suggests, is a simplified and expedited process. Following recent amendments, commercial cases worth less than TL100,000 are now subject to the simplified procedure in order to shorten the length of proceedings.
Preliminary injunctions in Turkey are regulated under the Code of Civil Procedure. A preliminary injunction can be requested from the competent court that has jurisdiction over a case prior to filing or the court before which a case is filed. Applicants must determine the grounds for making such a request in addition to the nature of the preliminary injunction being sought. They must also prove their claim to convince the court that the merits of the case are legitimate.
Article 5 of the Cheque Law imposes a judicial fine on cheque account owners for a bounced cheque. These fines cannot be less than the amount of the bounced cheque plus the accrued interest on the cheque's submission date and the total fees for execution and legal proceedings. Several courts recently applied to the Constitutional Court to request the annulment of Article 5 based on, among other things, the uncertain criteria used to calculate such fines.
Due to the need for the existing court procedural rules and organisational structure to be harmonised with the newly established three-tier court system, amendments have been made to the Code of Civil Procedure with the purpose of eliminating emergent problems in the functioning of regional appellate and administrative courts. The most remarkable amendment regards the period for appeal before the Court of Cassation.
The court of peace recently appointed the former partner of a liquidated company as a gratuitous bailee to preserve the company's books. The decision created an alternative approach to the preservation of the books of liquidated companies, which must be preserved by a court of peace. The new approach should help to address concerns regarding the court's limited amount of storage space for company books.
A recent Court of Appeals case concerned a resolution taken at a general assembly meeting where the signature of the shareholder plaintiff's representative had been forged. As it was established without doubt that the signature on the general assembly meeting minutes did not belong to the plaintiff's representative, the court declared that the decisions taken at the general assembly were null and void.
The recognition and enforcement of foreign judgments and arbitral awards in Turkey is subject to the International Private and Civil Procedure Law, under which enforcement actions must be filed before the civil courts of first instance, including certain specialised courts. The Court of Appeals has generally adopted a single approach regarding the jurisdiction of specialised courts in enforcement actions, but a recent decision has created uncertainty in that regard.
Internal corporate investigations are key to combating white collar crime and the monitoring of personal and corporate communications is an indispensable tool in this regard. While Turkey has no specific or well-developed legislation on monitoring employee emails in internal investigations, a recent Constitutional Court decision has clarified a number of relevant points.
As part of the New Judicial Reform Package, Article 12 of the Criminal Code was amended by Law 6545, which was recently published in the Official Gazette. Further to the amendment of Article 277 of the Criminal Code, which regulates the crime of intervening in a judicial process, any intervention during an investigation will no longer be a crime.