Arif Barış

Assoc. Prof.

Absolute rights that grant limited control over properties by allowing the rights to use or to benefit (or both of these rights) to the right holder are called easement rights. A parcel of land may be encumbered in favour of another property such that the servient landowner must permit the owner of the dominant property to exercise certain rights over it or refrain from exercising certain rights attached to his or her property for the benefit of the owner of the dominant property. As a rule, this relationship between the servient landowner and the beneficiary of the easement shall continue in accordance with the conditions agreed in the easement agreement until the easement ends. However, some situations that arise during this relationship may make it unbearably difficult for the servient landowner to fulfill these obligations against the beneficiary of the easement. In the event of such circumstances, the relationship between the parties may need to be rearranged in order to restore the balance deteriorated against the owner. The fact that the place used by the beneficiary of the easement gained significant meaning and significant value in terms of the servient landowner from the moment of establishment of the easement, is considered a situation which aggravates the obligations undertaken by the landowner against the beneficiary. That is why the legislator felt the need to introduce a special regulation in Article 791 of the Turkish Civil Code. According to this regulation if only part of a property is affected by the exercise of an easement, the servient owner is entitled to request that the right be transferred to another location which is no less suitable for the beneficiary, provided that he or she can show a legitimate interest and bears the cost,. He or she is entitled to do so even if the easement is recorded in the land register as being in a specific location. It should be acknowledged that this provision constitutes a special application of article 786 of Turkish Civil Code. According to this article, the beneficiary is entitled to take all measures necessary to preserve and exercise the easement. However, he or she is obliged to exercise his or her rights in as benign a way as possible. In this respect, it would not be wrong to say that article 791 of the Turkish Civil Code is an extension of the basic principle that the beneficiary of the easement should not act in contradiction to the interests of the owner while exercising his right. Indeed, especially in cases where article 791 of the Turkish Civil Code has found its application, that is, it has been decided that the easement is to be used only in a certain place, the existence of the easement does not completely eliminate the interests of the landowner in making use of the immovable property as efficiently and effectively as possible. The existence of the easement prevents him only from exercising some of his authorities provided by the right to property. Therefore, the&nbsp;legislator has accepted that if the needs of the real estate change after the establishment of the easement, the landowner may request under certain conditions to change the place where the easement is used. In this way, the landowner could be able to keep an important authority to operate his property in an efficient manner even this property is charged with an easement. This study, aims to examine the conditions of realization of change of place where the easement is used and to present general principles and legal consequences of the relocation.

İrtifak Hakkının Kullanıldığı Yerin Değiştirilmesi

Ayşe

Assist. Prof.

One of the principles that Civil Procedure Law based on is the “dispositional control of the parties principle”. Under this principle, parties’ have the right solve private law disputes according to their dispositions. Under the principle, dispute parties are free to decide choose or not to choose litigation as way of resolution. Principle also covers to end the dispute by an settlement (in principle). One of the dispute ending options under the principle is the parties settlement agreement. Settlement agreement, generally, is an agreement in which parties agree to ending the dispute with mutual compromise. In other words, it can be also defined as an agreement in which parties completely or partially ending the dispute mutually. Settlement agreement, regulated as an stand alone regulation for the first time in the Article 313/1 of the Code of Civil Procedure (CCP) numbered 6100. Under the Article, settlement agreement means that the parties agreement on to ending the dispute completely or partially in an outstanding case. This definition only covers the in-judicial settlement. Because the definition requires a settlement in front of the court. Out of judicial/court settlement is not regulated under the CCP. Because, this kind of settlement fall in the area of the Turkish Code of Obligations. Out of judicial settlement is an agreement out of the court in which the parties agreed to end the dispute completely or partially at mutual interest point they considered. There is no necessity of an outstanding ongoing case process at this point. Additionally, an ongoing trial process would not affect the out of judicial settlement. It is needed a transformation of the out of judicial settlement to an in-judicial settlement to affect an ongoing trial at the same dispute. Out of judicial settlement is an substantive law agreement. This agreement is fall in the provisions (General Provisions) of the Turkish Code of Obligations. Out of judicial settlement agreement is not be need to be made in written because of the “freedom as to form” principle of the Turkish Code of Obligations. If the out of judicial settlement transformed to an in-judicial settlement it could affect an ongoing trial at the same dispute. Parties convey the out of judicial settlement to the court and then court get in record the agreement. After that moment, out of judicial settlement is evaluated as an in-judicial settlement. It is not needed that the whole provisions of the out of judicial settlement to get in recorded in the trial documents. Article 315/1 of the CCP regulates the provisions on effects and solutions of settlement agreements. Under this provisions when the out of judicial settlement transformed to an in-judicial settlement it would has the same legal power and&nbsp;solutions of it. The first solution of this transformation is the ending of existing dispute, in other words ending of the existing court trial. The second important outcome of the in-judicial settlement agreement is that it would have the same legal effect of final court decision. In-judicial settlement has an important another legal effect that it would has the power of the final court decisions under the Enforcement and Bankruptcy Code Article 38. If the out of judicial settlement transformed to an in-judicial settlement it would has the same affect as well.

Mahkeme Dışında Yapılan Sulh ve Yargılamaya Etkisi

Res. Assist.

Involvement of persons with disabilities in business life is extremely important – just as much as in their access to education and health services - and in their enjoyment of social protection because unemployment makes individuals becoming unemployed feel like they are useless. Involvement of persons with disabilities in business life, and pursuing the same eliminates the social effects caused by the risk of unemployment. In addition, working persons with disabilities benefit from social insurance protection based on their work, and thus a decrease occurs in the expenses made for persons with disabilities from the social security budget. While the policies relevant to persons with disabilities started with passive policies such as protecting persons with disabilities, today they have transformed into active policies such as ensuring the complete participation of persons with disabilities in employment. In Turkey, the number of persons with disabilities recorded on the National Database on Persons with Disabilities is 2.461.828 for the first half of the year 2019. And the rate of participation of persons with disabilities in employment is 22.1 percent. When compared with the data for the EU and OECD, this number is very low. Thus, increasing the participation in employment of persons with disabilities is also among the objectives relevant to business life. When the legal regulations in Turkey are examined, it can be observed that rules relevant to the protection of persons with disabilities have taken place in Constitutional Law for the first time. According to Article 17 of Constitutional Law, everyone has the right to live, and to preserve and improve their material and moral presence. And, according to Article 49 of Constitutional Law, working is everyone’s right and obligation. The government takes the required measures to increase the standard of living of employees, protect the unemployed, and support working. The government’s actualization of this obligation is especially important in terms of persons with disabilities who are experiencing many difficulties in involvement in business life. For this reason, it is required that the government should take special measures for persons with disabilities, and to provide the work environment for them. Hence, in Article 50 of Constitutional Law, it has been emphasized that no one could be employed in works not conforming to their strength, and the rule of “the ones having physical and psychological insufficiency are distinctively protected in terms of working conditions” has been established. And the most basic law regarding persons with disabilities is the Law on Persons with Disabilities no 5378. This law intends that persons with disabilities should benefit from fundamental rights and freedoms, and to ensure their participation in social life under equal conditions with other individuals. Article 30 of Labour Law no 4857 regulates the details relevant to the liability of employers to employ persons&nbsp;with disabilities. Article 30 was regulated again in 2008, and new principles were established regarding the employment of persons with disabilities. In accordance with this, employers employing fifty or more employees in the workplace have to employ a specific number of persons with disabilities. When Article 30 of Labour Law is examined, it is observed that the straightforward quota method has been adopted regarding the employment of persons with disabilities. The quota determined within this scope is three percent for workplaces in the private sector, and four percent for workplaces in the public sector. It is required that the following conditions are present for liability of the employer to employ persons with disabilities to arise : i) The workplace’s inclusion in the scope of Labour Law, or Maritime Labour Law, ii) Employment of fifty or more employees in the workplace. In case of the presence of these conditions, the employers are required to employ persons with disabilities whose rate of disability is at least 40 percent. Persons with disabilities should be employed through the Turkish Employment Agency. But the employer may also employ a person with disabilities through his own means. In this case, it is required to inform the Turkish Employment Agency, and to have the person with disabilities recorded at the Agency. An administrative fine is imposed on the employer acting against the liability of employing persons with disabilities. Another method regarding the employment of persons with disabilities is the concept of sheltered employment. Briefly, this method is ensuring the employment of persons with disabilities – for whom it is difficult to bring them in business life - within the frame of special conditions. In this system, there are sheltered workplaces where the working environment is specifically arranged in order to ensure the employment of persons with disabilities. In Turkish Law, the principles of this subject have been regulated in the Law on Persons with Disabilities, and in a certain regulation issued on this subject. That Regulation first came into force in 2006, and it was renewed in 2013. Persons with disabilities who will be employed at sheltered workplaces, are not only persons with physical disabilities but persons with mental and psychological disabilities. In terms of acquiring the status of a sheltered workplace, some conditions have been sought by the Regulation. Above all, it is required that the workplace is one which holds the qualifications determined by the Regulation, and where at least eight persons with disabilities are employed. In addition, the ratio of the number of persons with disabilities who will be employed at a sheltered workplace to the number of total employees shouldn’t be less than seventy five percent. In the Regulation, the physical conditions and equipment that the sheltered workplace has to have (safety, traffic safety, fire protection etc.) were also specified. A specific part of the remunerations&nbsp;of the persons with disabilities being employed at sheltered workplaces is paid by the government. In Turkish law, amendments made in time in Article 30 of Labour Law being the basis of the liability of employing persons with disabilities, and especially the increase in incentives for the employers in private sector are deemed as proper regulations. Again, allowing the employers to find workers who will be employed by their own means is also among those steps which would facilitate employment. Certainly, considering the measures ensuring employment as incentives rather than a quota and fine method would be a more constructive approach.

İşverenin Engelli İşçi Çalıştırma Yükümlülüğü

Night work has been the subject of many discussions due to its contradictory nature to the biological structure of the human body. This attribute of night work requires that night work and day work should not be handled in the same way in the legal order. The developments in the field of Occupational Health and Safety Law, and the researches regarding the effects of night work on the human health, constantly demand the review and improvement of the regulations regarding night work. In this regard, the most important protective provision regarding the workers working at night could be the limit on the night working time. In accordance with the Article 69 (I) of the Labour Law No. 4857, “night” is defined as the period starting at the latest at 20.00 in the evening, and lasting at the earliest until 06.00 in the morning, which in any case lasts maximum eleven hours. Furthermore, in accordance with Article 69 (III), night work shall not exceed seven and a half hours. However, significant exceptions have been recently adopted to this rule. The amendment, enacted in 2015, allows employers in some sectors (private security, tourism and jobs related to healthcare) to demand night work in excess of seven and a half hours by obtaining written approval from the worker. It should be noted that the regulations concerning night work are particularly important regarding the work carried out by shift work. Taking into consideration the need for governing special procedures and principles on this subject, a regulation specifically on shift work has been issued, and exceptions to the rule on the limit of the night working time are also included in this regulation. In my opinion, the propriety of this change amendment is highly debatable. It can be argued that the service should continue uninterruptedly in the sectors mentioned in the Article (private security, tourism and jobs related to healthcare). However, the employment of the workers for longer periods is not the only way to ensure the continuity of the service. Although written approval of the worker enabling the night work in excess of seven and a half hours is stipulated, the worker-protective approach of the Labour Law which protects the workers even from themselves, especially on the issues regarding occupational health and safety should not be disregarded. It should also be noted that the Regulation on shift work also includes a statement which is not included in the text of the Labour Law. In the Regulation; it is prescribed that the workers employed by the subcontractor in the workplaces, where private security, tourism and health services are carried out, also fall under this scope. If the letter of the statement is followed; it could be concluded that all workers employed by the subcontractor in the health, tourism and private security sectors may be employed at night for more than seven and a half hours. However, it is clear that such an interpretation would be incompatible with the exception regulated in the Labour&nbsp;Law. The provision of the regulation should be interpreted in a manner to cover subcontractor workers who are employed in the sectors referred to in the Labour Law, specifically in cases where subcontracted work is carried out with respect to these sectors. It has been concluded that the recent changes in the field of night work constitute a reversal in terms of workers’ rights. It is clear that the continuity of the services without disruption can be also maintained by increasing the number of shifts. Furthermore, I would like to draw attention to the fact that the regulations regarding night work are quite disorganized. In this regard, it may be suggested that all the rules regarding night work should fall into a single regulation. As a result, it may be stated that there is a need for the review of the regulations on night work in our legislation.

Gece Çalışması ve Gece Çalışma Süresinin Sınırı ile İlgili Değişikliklerin Değerlendirilmesi

Cemile

This article deals with multi-tier dispute resolution clauses incorporating both mediation and arbitration together under Turkish Law. I use the terminology of “med-arb” not only for the situation where the mediator acts as an arbitrator, but rather in a general meaning covering all instances where the arbitration is commenced following an unsuccessful mediation. The purpose of this article is to discuss the validity of the med-arb agreements, the consequences of starting arbitration before the mediation fails, the effects of the mediation proceedings and of the mediator acting as an arbitrator on the arbitration that follows the mediation as well as the admissibility of the documents and factual evidence exchanged at the mediation. For the purpose of this article, the comparative laws, international ethics rules, international guidelines on the conflict of interest and admissibility of evidence are reviewed along with Turkish law. Turkish Code on Mediation in Civil Law Disputes stipulates some provisions related to the med-arb. These provisions shall apply equally to both domestic and international arbitrations where the place of arbitration is Turkey. Following the jurisprudence of the Turkish Supreme Court, a med-arb agreement is valid only if it reflects, without doubt, both parties’ consents to the arbitration following the failure of the mediation proceedings. Therefore, a multi-tier dispute resolution clause subject to Turkish law needs to be drawn carefully. In this respect IBA Guidelines for Drafting International Arbitration Clauses are of assistance. In cases where one of the parties commences arbitration without a recourse to mediation first, the arbitral tribunal should make a decision on the admissibility of the claim. There is no direct provision related to the question of admissibility under Turkish law. Under Turkish law, in parallel with the practice of international arbitration, the tribunal has to interpret the med-arb agreement to make a decision on the question of whether the recourse to mediation is a pre-condition of the arbitration. If the mediation is a pre-condition, then the tribunal should suspend the arbitral&nbsp;proceedings and direct the parties to the mediation. However, in the case that the mediation fails, the tribunal may resume the arbitral proceedings. There is nothing under Turkish law suggesting that a precondition of arbitration is a jurisdictional issue rather than an admissibility issue. The advantages of the med-arb are subject to heated debates among people holding different perspectives. Such advantages are controversial since when a dispute arises and the arbitration starts without a recourse to mediation, the respondent may object to the jurisdiction of the tribunal or to the admissibility of the claim relying on the fact that the pre-condition to try mediation first is not met. Such an objection may cause arbitration to be delayed and/or the costs of arbitration to increase. Therefore, before opting for a med-arb agreement the parties should evaluate the possibility of settling their dispute at the Med-arb. The parties who are able to consider their commercial interests do not need a med-arb agreement as they are able to settle the disputes without the assistance of a mediator. They first try to settle the dispute, in some cases for years, and to avoid adjudication by an arbitral tribunal. They only start arbitration when there is no possibility of settlement of their dispute and of saving their commercial alliance. In such cases, med-arb agreements become a tool to delay the proceedings and increase the costs for the claimant to force him or her to give up his or her claim. Having said that, for the parties who are unable to consider their commercial interest and unable to avoid adjudication, med-arb agreement may be the right dispute resolution clause. In a med-arb agreement, the parties may wish the mediator to act as their arbitrator if the mediation fails. Neither the Turkish Code of Mediation in Civil Disputes nor the Turkish International Arbitration Code prevents a mediator to act as an arbitrator. Turkish Ethics Rules for Mediators stipulate that a mediator may act as an arbitrator only if the parties have agreement in writing. Therefore, any mediator to act as arbitrator needs to have the parties’ written consent. In international mediation and arbitration practices, the scholars and practitioners widely accept that having an arbitrator who previously acted as a mediator generates a number of serious risks and concerns. First of all, the mediator-arbitrator may not protect his or her impartiality in the arbitration because of the facts that she or he became aware of during the mediation. Secondly, the mediator-arbitrator may rely on the confidential information exchanged in caucus while making the award. Thirdly, the mediator may be too willing to act as an arbitrator and as a result the mediation may prematurely fail. Finally, the mediator may abuse his or her powers and force the parties to settle their disputes as the mediator suggests. The parties may feel that if they are not able to settle their dispute and proceed to the arbitration, the mediator-arbitrator would make an arbitral award in parallel of the recommendations at the mediation phase. Considering the severity of the consequences, if the parties agree to have an arbitrator&nbsp;who previously acted as their mediator, they need to be aware of such consequences and they need to make an informed decision accordingly . The Turkish Code of Mediation in Civil Law Disputes restrains the ability of the mediator-arbitrator to rely on the documents produced during the mediation for the purpose of settlement and defines which documents are in this category. In the case where the mediator-arbitrator relies on these documents while making the award, depending on the extent the document or information has a bearing on the award, the arbitral award may be cancelled, or its enforcement may be refused. In November 2019, Istanbul Arbitration Center (ISTAC) introduced its Medarb Rules. ISTAC Med-arb Rules are the first published institutional Med-arb rules. ISTAC Med-arb Rules reflect the best practices in international mediation – arbitration. I believe that ISTAC Med-arb Rules will be welcomed in the field of international dispute resolution.

Arabuluculuk ve Tahkimi Bir Arada İçeren Uyuşmazlık Çözüm Yolu

Davut

All debtors are liable for all of the obligations in joint indebtedness. Also, the creditor has the right to claim this from one, some or all of the debtors. Joint indebtedness can arise from the regulations or wills of the parties. The coming together of joint debtors in a contractual framework also can arise from both the regulations and wills of the parties. In all these cases, if joint debtors do not perform on time, then default of joint debtors is mentioned. Obligations of joint debtors are relatively independent from each other. As a result of this, principally action of a joint debtor has effect only on that joint debtor. Accordingly, default of a joint debtor has only effect only on this debtor who is in default. But exceptionally, it is possible that the parties can agree that responsibility of all joint debtors from the results of default of a particular joint debtor. Obligations of joint debtors can fall due on different dates, and accordingly, default dates can differ when performance times of joint debtors are different from each other. If one of the joint debtors has a right to avoid performance, this prevents this debtor from debtor’s default. Notice principally causes the default of the debtor who has received notice. But a contra agreement regarding this is also possible. If there is a situation which makes notice unnecessary for a joint debtor, this debtor falls into default without a notice. The performance of the obligation must be possible for the occurrence of the default. If the object of the performance is impossible in terms of all debtors, all debtors get out of their debts. If the object of performance becomes impossible with a fault of a joint debtor, all joint debtors must be responsible de lege ferenda. If one of the joint debtors puts a creditor to creditor’s default, other joint debtors also benefit from this situation. Compensation of delay, which is a general result of debtor’s default, can only be demanded from the joint debtor who is in default. If more than one joint debtor falls in default because of their fault, these are jointly responsible for the compensation of delay. Even if one joint debtor who does not fall in default, distinguishes obligation with performance, compensation of delay can still be demanded from the joint debtor who falls in default. If a force majeure or fortuitous events occur during the period of default of one joint debtor, this joint debtor is responsible for this situation. If the same situation occurs during the period of default of more than one joint debtor, these are jointly responsible. If one of the joint debtors of a pecuniary obligation falls into default, this debtor is obliged to pay interest for the default. If more than one joint debtor falls into default, these are jointly responsible. But at this point, default dates, interest rates and the capital debt have importance. Because according to these elements, the amount of interest for default can differ. Therefore, a distinction must be made during the&nbsp;consideration of the jointly responsible parts of the debt. If the creditor still has a damage which does not compensate with the interest for default, it can be claimed from the joint debtor who falls into default with fault. In bilateral contracts the creditor, who wants extra rights to benefit, should give an extra period of time to the joint debtor who falls into default. This time periods must be reasonable for each joint debtor. It can be situations in which the creditor should give an extra period of time to some joint debtors while it is not necessary to give to the others, according to TCO Art. 123. When the creditor makes choice, this has only effect for the joint debtor which this right turns to. Compensation for damage for non-performance can only be demanded from the joint debtor who falls into default with fault. If other join debtors who do not fall into default, distinguish the obligation, this compensation cannot be demanded from the debtor who is in default. If more than one joint debtor falls into default with fault, these joint debtors are responsible for the compensation for damage for nonperformance of obligation. Withdrawal from the contract is possible when all joint debtors incur in default. The creditor must declare his withdrawal will to all joint debtors.&nbsp;

Sözleşmesel Çerçevede Meydana Gelen Müteselsil Borçlulukta Borçlu Temerrüdü

Derya

Preliminary provisions of Turkish Civil Code provide both general principles of law, which are the basis for judicial system and guidance to the judges that are rule of law practitioners. Article 5 of the Civil Code, which does not stand out at first, is in fact a versatile and crucial rule of law that often fills specific legal gaps and general legislative regulation gaps, and that offers a pathway to the judge to resolve the issue without having to enforce the Civil Code’s second clause of Article 1. Turkish Civil Code Article 5 which reads as follows: “This Code and the general provisions of the Code of Obligations shall apply as applicable to all private law transactions”, shows on one hand that the divergence between two Laws are only in form, and on the other hand that it is a critical rule of law applicable in all private law relations. As will be discussed below in detail, when the historical development of the Code is examined, it is understood that the lawmaker formed the unity between these two Laws consciously and voluntarily. In relation to the Article 1 of Turkish Civil Code specifying the applicability of the law according to its wording or interpretation to all legal questions for which it contains a provision, and guiding the judge in case of legal gaps which may arise, it is vital to clarify the importance and function of Article 5 of the Code. As a matter of fact, this is a starting point in terms of discussions on whether this clause is necessary, and of determining the scope, function, area of implementation and methodology. In this context, within the scope of the study, the article’s history was reviewed with regard to Turkish and Swiss Laws, particularly in a systematic way. Subsequently, the interpretation of the article in correlation with Article 1 of Civil Code was approached along with the main debates. Lastly, the article was evaluated according to some examples limited to Family Law by objectifying the clause in a narrower scope, since its area of implementation is considerably wide and comprehensive. As it is understood from the examples given on Family Law, debates on “whether this clause is necessary” are in fact about whether the judge performs a direct or a comparative implementation, or whether he/she performs a practice to cover both while implementing the general clauses of Civil Code and Code of Obligations. Likewise, Article 1 of Civil Code draws a roadmap for the potential legal gaps while empowering the judge to apply the law according to its wording or interpretation. At this point, without a doubt, it is the judge who is to decide whether the application should be direct or comparative. Considering the increasing amount of needs in the developing and self-renewing social life and the new legal regulations, the article fairly transforms the general provisions in Code of Obligations and Civil Code into the general provisions of&nbsp;Private Law. The article is also a general reference that strengthens the bond between the two Codes, the relationship between them being emphasized by the legislator. Since reference provisions come in sight when the judge is led by the legislator during a legal regulation to be implemented in a legal issue, Article 5 of Civil Code stands as a general reference provision giving instructions to the judge on comparative implementation. Without doubt, if this provision did not exist the judge would fill out the existing gaps and would find a solution by comparison. However, the fact that the legislator has placed the article in Preliminary Provisions of Civil Code section with general statements, allow a systematic consistency in rulings, in addition to guiding the judge. For this reason, the provision carries importance for the whole Private Law area, rather than being a simple general legal law. Because it permits the judge to control and implement before its execution (if necessary) a rule of law which is not directly connected to the issue at hand. In this case, the judge will take into consideration the general provisions foreseen by Civil Code and Law of Obligations and by pursuing the guidance of Civil Code Article 5 where necessary, will be able to implement the rule of law on a concrete case. For that matter, it will not be wrong to state that as a general reference provision, Article 5 of Civil Code imposes an obligation for comparative implementation before proceeding with second paragraph of the article number 1 of Law.

Özel Hukukun Bütünlüğü İlkesi ve Medeni Kanunun 5 inci Maddesinin Aile Hukukundaki Uygulaması

Direnç

To ensure a stable or firm composition of a shareholder group in a joint stock company, the Turkish Commercial Code includes rules on restricted transferability. The restriction possibility of transferability of shares in a joint stock company is limited. Because of this, shareholders of these companies make contracts, which are so called “shareholders’ agreements”. In these agreements the right of preemption of parties is a dominant feature. With a contractual right of preemption of parties, it is possible to protect the composition of a shareholder group. The contractual right of preemption is basically a problem of the law of obligations, but it has effects on the side of law of companies. It can be used as an alternative to statutory restriction of transferability of shares. The study focused especially on the issue of which rules are applicable for the cases that include the right of preemption. Thus, the rules of the Turkish Code of Obligations on preemptive rights, which are provided for immovables are investigated. Another area dealt with in this article is the extent to which these articles are applicable for the rules of shareholders’ agreements, which include the right of preemption. Contractual right of preemption, which occurs in a shareholders’ agreement, is generally not subject to any form. But there could be exemptions. The agreement must be considered as a whole, if a right of preemption is created depending on the death of one of the parties. In order to solve the problem about the form of this agreement, the legal quality of the shareholders’ agreement must be established. Some shareholders’ agreements are qualified as a partnership under the Turkish Code of Obligations. If the right of preemption is described as a qualified successorship clause (in the partnership under the Turkish Code of Obligations), this agreement must be in the form of a disposition mortis causa. If the right of preemption is described as a simple successorship clause (in the partnership under the Turkish Code of Obligations) or if the legal quality of the shareholders’ agreement isn’t a partnership under the Turkish Code of Obligations, there is no need to make this contract in the form of a disposition mortis causa. The right of preemption can be divided into two categories. One type is called the real right of preemption and basically this type of right is the theme of this article. Real right of preemption cannot be an article or a rule of a joint stock company’s statute. If&nbsp;a statute of a joint stock company contains the right of preemption for shareholders, who remain in the company and against the shareholder, who wants to sell his/her shares to a third party, it must be accepted as void from the beginning. This study shares the idea that rules of statutes which include the right of preemption cannot at the same time be handled as a contractual agreement under the law of obligations between shareholders. This can be accepted under very exemptional circumstances. The essential contents of the shareholders’ agreements which contain the right of preemption are the parties of the agreement and the subject of the contract. The price of the subject is not one of them because Art 241/III in the Turkish Code of Obligations is applicable for contracts which do not include a price rule. This means that if there is a lack of rule about the price of the share in a shareholders’ agreement, the price is determined according to the sales contract between the shareholder, who wants to sell his/her share and the third party, who wants to buy this share. If there is a price rule in the agreement, that creates the right of preemption, and this right of preemption is called a limited right of preemption; otherwise it is called an unlimited right of preemption. The condition which makes the use of the right of preemption possible is called a preemptional event. The preemptional event is generally a share sales contract between one party of the shareholders’ agreement and a third party. Art 240/I in the Turkish Code of Obligations about preemptional events is also applicable to the shareholders’ agreements, which create contractual right of preemption between shareholders. The seller party of the share sales agreement is also obliged to give this information to the parties of the shareholders’ agreements. In this study we maintain that Art 241 in the Turkish Code of Obligations is not fully applicable to the shareholders’ agreements that include the right of preemption. That is why we suggest that only the seller has the obligation to give information to the parties of the shareholders’ agreement, but not the buyer. Preventing the occurrence of preemptional event is also evaluated in the study, and in addition to the other legal probabilities, we suggest that the Art 175 in the Turkish Code of Obligations is also applicable for these situations. By making use of the right of preemption, the subject of the right cannot be divided, if the shareholders’ agreement has no other rules. Usually the subject of the right and the subject of the share sales agreement are the same. In the light of our study Art 242 in the Turkish Code of Obligations is partly applicable for the contractual right of preemption on shares. That means the owner of the right must make use of his/her right within three months at most. We think that a maximum duration of two years, which is also regulated in Art 242, is not applicable to the contractual right of preemption on shares. In our opinion it is a special duration for the right of preemption on immovables. Making use of the right of preemption typically has an effect between the parties of the shareholders’ agreements and it does not come up with such a result as a takeover of company shares. Because of this, an act of a party, which violates the shareholders agreement (also their right of preemption), may give a compensation right to the other parties for their damages. The right of preemption principally has no effect on the third parties, like the party of the share sales agreement. Some exemptional situations are also evaluated in the study.

Anonim Ortaklık Pay Sahipleri Arasında Yapılan Önalım Hakkı İçeren Sözleşmeler

Feyza

The protection of minors is very significant from a social and legal perspective and concerns everyone in society. However, the protection of minors is relatively a new topic since the professional training of coaches in this regard started during the mid 90’s. On the other hand, the increase in cross-border movements due to economic, political, social and environmental reasons has revealed the vulnerability of children who are affected by this fact more than anyone else. The children and their families who have not been able to find sufficient education, care, health services and social opportunities in their own or host countries consider sport, and especially football, as a means of breaking away. As the commercial value of football and competition among the clubs has increased in Europe, scouting and transferring young talents from the countries in Africa, Latin America and Asia with low cost and less effort has become more profitable for the European clubs. There has been a growing concern linked to the transfer of minors that larger football clubs are attracting young overseas talents to their academies and this is undermining the efforts of many smaller clubs to invest in the education and training of such talents. Realising the graveness of the situation, the European Union (EU) took the initiative to raise awareness for more effective protection of minors in sport. The 2000 Nice Declaration on Sport expressed “concern about commercial transactions targeting minors in sport, including those from third countries, inasmuch as they do not comply with existing labour legislation or endanger the health, and welfare of young sportsmen and women.” By the same token, in 2007, the European Commission issued a White Paper on Sport which states that “whilst the movement of minors in sport across frontiers may fall short of the legal definition of trafficking,&nbsp;the exploitation of young players continues to be a problem in the EU.” In this White Paper, the Commission refers to the reports that an international network managed by agents takes very young players to Europe especially from Africa and Latin America and the children who are not selected by the clubs are then abandoned in those foreign countries all alone, subject to further exploitation. The European Parliament also shared similar concerns through the Belet and Mavrommatis Reports. The EU institutions’ approach was supported by the political commitment of the EU Member States, which culminated in the drafting of Article 165 of the Treaty on the Functioning of the European Union, which grants a supporting competence in the field of sport. The wording of Article 165 (2) is as follows: “The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.” In 2010, the European Sports Forum held in Madrid discussed a number of issues related to the use of young people in sport including overtraining and exploitation, missed education opportunities, the use of doping substances, and sexual abuse and harassment. Although the UN Convention on Rights of the Child does not have any provisions directly related to sport, many provisions of this Convention may still be considered as the legal basis of the protection of minors in sport. The Convention’s ultimate objective is to guarantee the sound development and progressive empowerment of children and adolescents, and it provides a wide range of safeguards to ensure their protection from all forms of abuse, neglect, violence and exploitation. These safeguards are directly relevant to minors in sport. Under the Convention, the States are responsible for taking all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. Having realised the intense movement of minors across borders to play football in foreign counties endangering their health and welfare, the Fédération Internationale de Football Association (FIFA) started to establish basic principles to protect them in 1990. In 2001, FIFA developed a regulatory framework composed of a set of provisions within its Regulations on the Status and Transfer of Players (RSTP) which govern the international transfer of minors. This framework went through modifications in 2005, 2009, and 2015 to expand its scope and to improve the protection provided to minor players. The Court of Arbitration for Sport (CAS) is an integral part of this regulatory regime as a supreme arbitral authority, which clarifies its practical operation through its jurisprudence by examining and interpreting its specific provisions. In this respect, the Midjylland Case, the Elmir Muhic Case, the Vada I and Vada II Cases, Barcelona,&nbsp;Real Madrid and Atletico Madrid Cases are main cornerstones in the implementation of the substantive and procedural rules of the RSTP. Article 19 of the FIFA RSTP provides that international transfers of players are only permitted if the player is over the age of 18. Three exceptions to this rule apply. First, if the player’s parents move to the country in which the new club is located for reasons not linked to football. Second, the transfer takes place within the territory of the EU or EEA and the player is aged between 16 and 18, subject to the new club fulfilling a number of minimum obligations including the provision of education, training and accommodation. Third, the player lives no further than 50 km from a national border and the club which the player wishes to be registered in the neighbouring association is also within 50 km of that border. The rule takes effect only if there is a maximum distance between the player’s domicile and the club’s headquarters and the minor must continue to live at home. FIFA has accepted two further exceptions with regard to unaccompanied refugee players, and exchange students. The prohibition on the transfer of minors also extends to first registrations of non-national minors. Besides the substantive provisions laid out in Article 19 and 19bis, a key procedural requirement for any international transfer is the issuance of the International Transfer Certificate (ITC) by the player’s former association within whose territory his/her new club is based. The FIFA Players’ Status Committee (PSC) is authorised to inspect and approve every international transfer and every first registration of minors in football. National associations are required to submit an application to the Sub-Committee appointed by the PSC to seek an approval before registering any minor. In addition, FIFA has also developed a Transfer Matching System (TMS), the web-based information processing system for international transfers. The system has been proven very successful so far and the CAS decisions in Barcelona, Real Madrid and Atletico Madrid Cases, with the Chealsea decision on its way, shed further light on the effective implementation of the system despite certain contradictions.

FIFA Transfer Sisteminde Çocuk Haklarının Korunması

Mehmet Emin

Prof.

Rauf

Abdullah

Hakan

The registration procedure of trade names shall have the necessary features to protect the interests of the merchant, other relevant persons and the public. The registration procedure should have the characteristic of being not only quick and economic but also protective against any violation to the interest of right owners. In this regard, we recommend the following issues be taken into consideration in order to make the registration process and protection of trade names more qualified in Turkish law: 1. Once the principles and exemptions regarding signs and words that are prohibited or available with authorization should be legislated in TCC number of 6102. Thereafter, Administrative regulation should specify this issue by taking into consideration the principles and exemptions in TCC because there are a number of trade names in practise which use signs and words having natural, cultural or religious values. The commercialization of these words or their use in trade names may cause floccinaucinihilipilification of their worth. Therefore, the words and signs that express national, cultural or religious value need to be determined by regulation and their use in trade names should be prohibited. 2. The usable words only with authorization in trade names should be more detailed. Otherwise, the uncertainties in the current regulations should be clarified. To illustrate, it is unclear whether the translated versions of the words specified in TCC art. 46/3 are exempted from authorization or not. Another example is that the Trade Name Regulation (Official Gazette 14.02.2014, S. 28913.) art. 4/4 exempts some merchants from taking authorization, who should use the words subject to authorization because his/his shareholder name is supposed to be used. However, associations of ship owners are not stated in this exemption while the shareholder’s name is required in the trade name of association of ship owners. 3. Art. 4/6 of the Trade Name Regulation states that country names could be used in trade names on condition of the related country’s permission. Likewise, the names of geographical places are freely usable. We supposed that these statements be legislated in TCC or TCC state that this issue is regulated by secondary administrative acts. Besides, when country names are also used as a product name, a phrase or a&nbsp;geographical place name, it is needed to clarify under such circumstance that the permission of that country is required. 4. The practice as to registrar’s making changes on registered trade names should be regulated. Similarly, if court decisions regarding changing a trade name may not be applicable because of the character of MERSIS (Central Registration System), the application process of the court decision should be regulated. 5. The qualification for identity and similarity assessment between registered names and trade name application are far from providing adequate protection for trade names. Hence, art. 5 of the Trade Names Regulation which differentiates the evaluation for identity and similarity should be revised by taking into consideration the principles of TCC. The trade name query system in MERSİS and TTSG (Turkey Commercial Registry Gazette) should have a qualification to show registered trade names which are too similar. By the time a system automatically assesses similarity and identity rate is arranged, it is necessary to envisage a detailed regulation regarding similarity assessment in order to ensure uniformity and legal certainty. In this regard, considering the regulation in England may be useful. In addition, to provide qualified protection for registered trade names, two issues shall be regulated. Firstly, the right owners of registered trade names should have a right to object to an application of registration. Secondly, the registrar should have an authorization to make a change to trade names. In this regard, registrars should have a “too similarity assessment” authority and any similarity objection should be evaluated by a conflict resolution centre. 6. The provision in art. 6/6 of SMK (Industrial Property Act) number of 6769 should be accepted for trade names by considering the registration procedure of trade names. In this regard, right owners on other commercial names may object to the registration of trade names to the same conflict resolution centre that the registered trade name owners object as well. 7. Competent authorities for trade names and TÜRKPATENT do not cooperate in the evaluation of registry application as to whether the application violates registered trademarks, trade names and business names or vice versa. Additionally, there is no registry for business names. It could be useful to improve cooperation among competent registration authorities of trade names and intellectual property rights.

Ticaret Unvanlarının Tescili Aşamasında Ortaya Çıkan Sorunlar ve Çözüm Önerileri -Karşılaştırmalı Bir İnceleme-

Nejat

Wardship is regulated under the title of “wardship” in the Third Part of the Second Book of Turkish Civil Code titled Family Law. In articles 396-494 of the Civil Code, regulations on restricting the persons in need of protection, which are called narrow tutelage, are included. The purpose of our study is to examine some of the current problems related to the temporary protection measures given by the court during the restriction and wardship process within the scope of these regulations and the custody measure comment which is often applied by the courts to express all such measures. However, these measures are sometimes applied to even after the appointment of a guardian, and similar problems are encountered in the measures taken with or after the restriction decision. Therefore, other measures related to wardship law are mentioned in our study as appropriate. Essentially, the interim measures provided for in TCC Art. 420, which are examined in detail below, are intended to provide temporary legal protection within the period until the relevant decision is taken and a guardian is appointed. For this reason, in cases of necessity in the interim period, judges and temporary legal protections are decided upon for the works and transactions that the guardian will perform at the time or in the future. The law does not define a custody/wardship measure between temporary legal protections. TCC art. 420/1 sets out in general terms that the guardianship authority may take interim measures required by guardianship duties before the appointment of a guardian. An example of temporary measures in the regulation is the temporary abolition of the capacity of the restricted candidate and the appointment of a representative. Accordingly, the wardship authority shall take the necessary measures ex officio before the appointment of the guardian, if wardship affairs are required; in particular, he may temporarily remove the person’s capacity to act and appoint a representative to him/her. It is understood from the phrase especially in the provision that the measures that can be taken by the court are not limited to these, and other measures may be taken due to the nature of the issue. Besides, according to the TCC art. 420, the person who has avoided wardship or who has objected to the appointment of guardian is obliged to carry out the duties of the guardian until another person is appointed. As discussed in detail below, the intention is to ensure as far as possible the well-being of people who are in a limited sense of custody in certain situations of weakness, and to protect them from the effects of these situations. The law is based on the assumption that necessary protection will be provided by the appointment of a guardian to the person who is in such situations of weakness and the custody provisions become effective from this moment on. This is because the final protection of the court will be ensured. Indeed, TCC m 419/1 regulates that wardship authority is obliged to appoint a guardian without delay. The purpose of the provision is to ensure&nbsp;the protection of the person concerned as soon as possible. However, in any case, there will be a short or long trial process until the guardian is appointed. In cases where a restriction decision is required to appoint a guardian, due to the nature of the work, the restriction decision will have to wait. Naturally, it will take time to find a suitable guardian. During this period, it may be necessary to decide on certain tasks such as having the limited candidate undergo emergency surgery, placement in an institution or following up a case or collecting the receivable for health reasons and monitoring the works required by the decision. The temporary legal protections provided for by this article (TCC art. 420) allow the necessary actions to be taken to protect the person concerned during this interim period. Because of this, in the period before the abolition of the wardship institution in Switzerland, the abolition of the capacity to act as a temporary legal protection measure and the appointment of a representative was called a temporary restriction in practice. This legal protection measure, which aims to ensure the protection of the restricted by the restriction decision and the use of the restricted candidate within the period from the appointment of a guardian, should not be called a temporary restriction.

Vesayet Hukukunda Geçici Hukuki Korumalar ve Vesayet Tedbir Şerhi Uygulaması

Rıfat

Işık

State of necessity is a legal concept, which is of importance for both criminal and civil liability. It relieves the perpetrator of an act from criminal liability and deems the act lawful in the context of civil liability. Nonetheless the scope of the concept is not uniform for criminal and civil law: An act may be considered one of necessity within the context of criminal law, whereas not within the context of civil law. This discrepancy is acceptable, albeit not ideal, in light of the principle of unity of the legal order, as it is not uncommon for the same term to mean different things in different branches of law. The interaction between civil and criminal law within the context of necessity’s legal nature is however more problematic. Due to the principle of unity of the legal order, an act is either lawful or wrongful in the eyes of the whole legal order. This means that deeming an act lawful in one branch of law would lead to consequences for another. An inquiry on the legal nature of state of necessity therefore requires a holistic approach. This article deals with the problem of necessity’s legal nature with that in focus and explores the interaction between civil law and criminal law within this context. State of necessity constitutes a ground for justification under civil law (Turkish Code of Obligations Art. 63, para. 2). A state of necessity in civil law exists if a person deliberately inflicts damage on another person’s assets in order to avert an imminent danger directed to a considerably higher interest, which could not have been avoided otherwise. Such a lawful act may nevertheless trigger an obligation to compensate the damage (Turkish Code of Obligations Art. 64, para. 2) for the person who has benefited from the intervention by evading the danger. In cases of dispute, it is up to the court to decide whether and to what extent the damage must be compensated. Under § 4, the regulation and legal nature of necessity under Turkish Penal Code (TPC) is discussed. At the time of the previous Penal Code, necessity was very widely regarded as a justification. The entry into force of the new Penal Code (Law no. 5237) caused great debate around the nature of the new provision embodied in TPC Art. 25 (2). The wording of the provision and a systematic method of interpretation do not lead to a definitive result. As a consequence, two main views emerged. The seemingly&nbsp;(narrowly) prevailing view argues that necessity does not constitute a justification, but either an excuse or a ground precluding culpability. In both cases, Art. 223 (3) (b) of the Code of Criminal Procedure (CCP) would apply since this provision does not distinguish between excuses and grounds precluding culpability. On the other hand, numerous writers still argue that necessity constitutes a justification. We are of the opinion that Art. 25 (2) TPC lays down a ground precluding culpability. This is confirmed by the official reasoning of the provision, and the caselaw of the Court of Cassation. Whereas neither the reasoning nor the case-law is binding, we base our view on the clear wording of Art 223 (3) (b) which provides that in case of necessity no punishment shall be imposed on the defendant due to a lack of culpability. In cases where a justification enters into play, Art. 223 (2) (d) shall apply, and the defendant shall be acquitted. Surely, it can be (and has been) argued that a provision of the PPC is not the place where the legal qualification of a provision of the TPC shall be made. Yet, that is what the lawmaker has done. Therefore, even when a perpetrator acts under a state of necessity, his or her act is still criminal, but - in the words of CPP Art. 223 (3) (b) - ‘there is no need to inflict punishment’. The reason for a lack of punishment is the abnormality in the formation of the perpetator’s motive in the face of a grave and imminent danger, which creates a difference in the value judgment to be passed over culpability, and leads to the conclusion that he or is she does not deserve punishment. On the other hand, it cannot be argued that it is impossible to qualify TPC Art. 25 (2) as a justification by virtue of Turkish Code of Obligations Art. 64 (2): whereas it is argued that by reserving the right to demand damages Art. 64 (2) implicitly accepts the unlawful nature of the act, this is not true! That provision is based on equity, and not on the unlawful nature of the act. We conclude that the state of necessity does not constitute a justification in criminal law, and therefore, where Art. 25 (2) TPC applies, the judgment to be rendered is not an acquittal, but a decision that infliction of punishment is not required. Nonetheless in cases where the act qualifies as one performed in a state of necessity from a civil law perspective, the act shall also be deemed lawful in terms of criminal law and the court shall decide for acquittal.

Hukuk Düzeninin Birliği İlkesi Çerçevesinde Zorunluluk Hâlinin Hukukî Niteliği

Sıtkı Anlam

Markanın Kullanılmaması Nedeniyle Hükümsüzlüğü Davasında Markayı Kullanma Yükümlülüğünün Başlangıç Anına İlişkin Sorunlar ve Çözüm Önerileri

Zeynep

In the aftermath of the June 26th 2016 referendum, the United Kingdom (UK) has invoked article 50 of the Treaty on the European Union’s (EU) withdrawal process relying on the act of parliament of March 16th 2017. This act has triggered a unique process as no other EU has member state has officially invoked article 50 before. EU member states, starting from their candidacy period must harmonise and align their national legislation with EU law. The UK, as a member state, has accepted, transposed and implemented EU law for more than forty-five years. Hence the process that started with the invocation of article 50 is one that may lead to significant changes and loopholes in the British legal order as the UK has been subject to EU acquis during its membership. Competition law is one the most complete and harmonised areas of EU law. According to article 3 of the Treaty on the Functioning of the European Union (TFEU), competition falls under the exclusive competence of the Union. Furthermore, until the adoption of Regulation 1/2003, only EU institutions could implement EU competition law, leaving only national competition law to the competence of national authorities and courts. This framework, combined with the principle of harmonious interpretation, accorded EU institutions and courts a central role in the enforcement and development of competition policy. This article examines the consequences of the UK’s withdrawal from the EU with regard to competition law and enforcement. The first part of the article discusses the possible consequences of UK’s withdrawal with an economic or trade deal with the EU for competition law. The EU has developed several levels of economic integration with neighbouring and nonneighbouring countries such as customs union agreements, free trade agreements or cooperation agreements. The first part of the article examines these different bilateral and mixed agreements and displays their implications for competition law and policy. Furthermore, the article discusses whether these agreements, in general or in terms of their specific aspects, could be a model for future economic relations between the UK and the EU. The latest Withdrawal Agreement which was rejected in October 2019 and its implications for economic cooperation are also briefly analysed in this first part. This analysis leads to the conclusion that the economic cooperation foreseen in this Agreement presents a combination of several different elements found in various bilateral agreements entered into by the EU and aims to apply differentiated levels of integration in different geographies, especially in Northern Ireland which may have interesting implications for enforcement of competition law. The second part of the article stresses the necessity of transitional arrangements for an orderly and healthy withdrawal in terms of competition law. This part focuses mostly on ongoing proceedings and the possibility of applying EU competition law in the UK throughout the transition period. This discussion also underlines the importance of determining the conditions under which EU competition law may be applied, most importantly as part of the competence of the EU Commission and Courts, to behaviours of&nbsp;undertakings that have taken place within the membership period or the transition period but have been discovered after the membership has ended. Finally, the article examines the problems and predicaments of a no deal exit with regard to substantive competition law, the exemption system, private enforcement of competition law, the control of mergers and acquisitions, state aids and the administrative structure. A no deal exit will lead to significant uncertainties with regard to enforcement and interpretation of competition law which will mostly be observed in the internal UK legal order. The article discusses the measures that may be taken by the UK legislator and authorities in order avert legal uncertainty. Some of the suggestions put forward in this part rely on the examples of economic cooperation discussed in the first part of the article. The article also refers to and discusses elements contained in those withdrawal agreements that have been rejected by the UK Parliament that may be relevant to the effect of EU law generally and EU competition law specifically in the UK after Brexit.

Birleşik Krallık’ın Avrupa Birliği Üyeliğinden Çıkmasının Rekabet Hukuku ve Uygulaması Bakımından Sonuçları ve Açmazları

Berk Hasan

Türkiye ve Güney Kıbrıs Rum Yönetimi’nin Kıbrıs Adası’nın Batısındaki Deniz Alanları Üzerindeki Çakışan Taleplerinin İncelenmesi

Levent Emre

In this paper, the crime of “Failure by Medical Professionals to Report an Offence” in Article 280 of the Turkish Criminal Code numbered 5237, is evaluated through the examination of its protected legal value, its objective and subjective elements, the legal justifications and excuses applicable to the crime, the issues of attempt, aggregation, participation and the adjudication procedure of the crime. The crime aims to protect the effectiveness of judicial functions, with the purposes of providing an effective investigation of crimes, realizing the purposes of criminal law, and protecting public order. Pursuant to Art. 280, only a person who is a medical professional may commit the crime. The definition of the term “medical professional” is to be solved in light of the relevant legislation, especially the Codes numbered 657 and 1219. This paper argues that medical professionals in both public and private sectors may be perpetrators, even though the prevailing opinion is that only medical professionals who are not public officials may commit Art. 280. There are no limitations as to which types of offences the medical professionals must encounter for the obligation to report to be born, except the case of effective remorse in the crime found in Article 191. The patient of the medical professional may be the perpetrator, the victim or a mere witness. However, the encountered offence must constitute a crime, therefore misdemeanors or torts do not create the obligation to report. The medical professional must encounter an indication pointing towards the commission of an offence. The term “indication” used in the original letter of the law points towards material evidence, which caused the Turkish literature on the crime to argue that only encountering material and circumstantial evidence would cause the obligation to report, but statements or documents pointing to the offence do not. However, this paper is in the view that such a distinction was not the aim of the legislator and would lead to erroneous consequences. After encountering an indication in the course of duty as a medical professional, the failure to notify or delay in doing so constitutes the crime in Article 280. The meaning of authorities shall be interpreted in accordance with Art. 158 of the Criminal Procedure Code. There is a delay when significant obstacles in the investigation occur because of the failure to report. The crime may be committed with direct or probable intent. In any case, the intent must extend to all objective elements of the crime. The right to be silent may be exercised with regards to crimes committed by individuals covered by the right. However, in light of Art. 23 of the Regulation on&nbsp;Patient Rights, the patient-doctor privilege may not be asserted when a legal obligation in conflict exists. While medical doctors are required to report the indication they have encountered, they may be excused from testifying pursuant to Art. 46 of the Criminal Procedure Code. Lastly, the will of the individual from whom the crime is learnt is insignificant, even when that individual is the victim and the investigation of the crime is bound to legal complaint. Rules of attempt may not be applied to Art. 280 because of the crime’s nature. Additionally, the crime may only be perpetrated by medical professionals, but other individuals who do not hold this title may participate in the commission of the crime by aiding to or instigating the commission. A discussion exists whether Arts. 278, 279 and 280 have the relationship of general and specific norms. The view presented in this paper is that Art. 278 is a general norm to both 279 and 280, but such a relationship may not be established between the latter two. The issue of aggregation of these two types of crimes is to be solved through the application of the rules of conceptual aggregation. Other possible crimes to be aggregated with Art. 280 are Art. 257 (misconduct of duty by a public official), Art. 252 (bribery) and Art. 210 (falsification of an official document). The punishment prescribed in Art. 280 is imprisonment to one year. As this is a short-term prison sentence, it may be converted to alternative sanctions pursuant to Art. 50 of the TCC. Additionally, the announcement of the sentence may be deferred in line with the rules provided in Art. 231 of the Criminal Procedure Code, or the execution of the sentence may be deferred pursuant to Art. 51 of the TCC.

Sağlık Mesleği Mensuplarının Suçu Bildirmemesi Suçu (TCK m 280)

Harun

Administrative law, a branch of law that regulates the decision-making and rulemaking activities of administrative authorities, typically deals with the structures, duties and powers of administrative units on a large scale, as well as the methods and procedures that these units follow in the course of their activities, and their supervision. As for the function of administrative law, two main approaches are emphasized in the doctrine, namely, protecting the rights and interests of individuals and contributing to the effective provision of public services. In the doctrine, British public lawyers Carol Harlow and Richard Rawlings developed “the traffic-light metaphor” as an approach to the function of administrative law. In their traffic- light metaphor, while Harlow and Rawlings acknowledge the existence of “amber-light theory”, in terms of the function of administrative law, they basically put forth two theories, which are “red-light theory” and “green-light theory”. Red light theory, developed for the function of administrative law, defends the strong role of judicial supervision in investigating the activities of administrative authorities. The main goal of the red light theory is to control the activities of the administration in order to protect the rights and freedoms of individuals. At the heart of the said control is judicial control, which is conducted through the courts. In contrast to the red light theory, the green light theory argues that the function of administrative law is to facilitate the functioning of the administration, with the belief that administrative authorities will operate most efficiently when outside interventions are minimized. According to the green light theory, which provides a social and democratic perspective for the activities of the state –more specifically for the administration– administrative law should play a facilitating and auxiliary role for the administration in order to meet the needs of individuals and increase their satisfaction. The main purpose of the amber light theory as a third theory is to enable the effective implementation of democratic and political control mechanisms as well as judicial control. In amber light theory, the importance of judicial supervision, which forms the basis of red light theory, is not denied, but it is argued that the role of this supervision should be limited. This is because the strict approach of the judiciary in the face of the increasing needs of society may harm the administration›s duty to meet the needs of individuals by operating effectively. From this point of view, the amber light theory points on the one hand to the importance of judicial control as in the red light theory, while on the other hand, it emphasizes the need to balance the supervision to be conducted for the purpose of meeting the needs of individuals as required, which is the target of green light theory It should be noted that administrative law should have a function to ensure that the rights and freedoms of individuals are secured by keeping the administration within the boundaries of the law through the control mechanisms of the administration, while facilitating the proper fulfillment of the needs of individuals. Based on this, it can be said that the two inseparable functions of administrative law are to contribute to the proper provision of services as well as keeping the administration under control. Therefore, the ideal situation, “as accepted in the amber light theory”, is that administrative law has a structure capable of performing both functions.

İdare Hukukunun İşlevine Yönelik Bir Yaklaşım: “Trafik Işığı Metaforu”

Abuzer

Prof. Dr.

Dilek

Assoc. Prof. Dr.

The banks have always been a focus of interest regarding the misuse of their sources for the sake of personal benefits. The main actors of the said misuse, however, are the auditors, who do not fulfil the auditing activity or duty as it should be and as a consequence, impair the affectivity of the audit, and the managers, who try to satisfy their personal benefits and ambitions by way of the use of the sources of the banks via intentional or careless behaviours through the acts and procedures contrary to the applicable laws. Thus, when the mismanagement and lack of audit come together, it will then be inevitable for the banks pertaining thereto to incur substantial scales of losses.On the other hand, the financial markets have been globalised due to the developments in the communication technology our era. In this case, the scope of the losses of banks arisingfrom the activities being designed for the satisfaction of the personal benefits or interests of the bank managers and audits is extended. According to this, a crisis commencing with a bank may spread over other banks in a country through a triggering effect of the social panic environment and throw them into a crisis and through a kind of domino effect and cause the said banks to collapse. Thus, a crisis commenced with a bank can cause a systemic banking crisis nationwide (Article 72 of the Banking Law). Consequently, it becomes possible for crisis of this kind to put the country into a general economic crisis. Even further, a crisis of this kind commencing with a bank is able to create a regional crisis exceeding the boundaries of countries geographically by affecting the countries, taken place within the close proximity of it, having experienced similar economic problems in the world. The concrete examples of this circumstance have been experienced in the banking crises, commenced in Mexico in the year of 1994 and spread over Argentina and Brazil consequently and then, turned into a Latin America financial crisis and subsequently, commenced in Thailand in 1997 and spread over Indonesia, Malaysia and South Korea and finally, turned into the financial crisis of the South-Eastern Asia. This circumstance, explained with ‘’the theory of the contagion effect of the banking crises’’ put forth the dimension and importance of the bank’s loss.&nbsp;In the face of this circumstance, the Governments have been required to necessary measures for preventing banks’ losses or crises. There have been various legal&nbsp;arrangements, expected heavy responsibility in deterrent nature bearing the objective of preventing the activities making the bank incur loss.&nbsp;It was adjudged by the lawmaker at the Turkish law having referred to Article 100 of the Banking Law that it might be possible to remove or invalidate the operating permit of a bank as a result of the decisions and procedures of the managers and auditors of a bank contrary to the applicable law or in case of the determination of the fact that they caused the related bank to be transferred into the Fund, then, it would be possible for the competent court to decide upon their personal bankruptcy directly upon decision of the board of the Fund and following the request of the same.&nbsp;It is necessary to determine on a clear and net basis the scope of this arrangement that adjudges upon a substantially serious responsibility such as personal bankruptcy with relation to the responsibilities of the managers and auditors of a bank as a result of their act(s) having caused their bank to incur loss at a degree that may bring the bank into crisis. This determination appears to be important for the stability of the application.However, the arrangement of Article 110 contains an important gap that makes this determination difficult. Namely:&nbsp;There is not any direct or indirect explanation at all, taken place in the expression and reasoning of the arrangement of the Banking Law, with relation to the nature of the responsibility in the event that the bank’s loss is jointly caused by more than one person. This uncertainty renders the determination of the scope of this arrangement difficult bearing the topic of ‘’Personal Responsibility’’. For this, it is necessary to make a comment, based on the realities of banking and sound legal bases, and present a solution proposal.&nbsp;In the face of this necessity, various evaluations have been made at the doctrine and Turkish Banking Law and different solution proposals have come forth.Within the scope of these evaluations, in case the creation of the bank’s loss by more than one person on a joint basis within the framework of the arrangement of Article 110, of the principle of the differentiated responsibility, accepted in the arrangement of Article 759 of the Swiss Law of Obligations through the reform in the Swiss Law on the Joint Stock Companies in 1991 and transmitted from this arrangement into the arrangement of Article 557 pertaining to the responsibilities of the members of the board of directors of the Joint Stock Companies of the Turkish Commercial Law no. 6102, the question of applicability of the said principle as a general provision through the instrumentality of Article 2/3 of the Banking Law. According to this, in comparison of the principle of the full succession responsibility with its results contrary to the equity that rules out opportunity for the debtors to&nbsp;put forth the causes of personal reduction such as degree of negligence and so on, in an external relationship, is the principle of the differentiated full succession that allows to bring forth the aforementioned causes of personal reductions and therefore, thought to be in conformity with the equity in general, in conformance to the objective for the arrangement of Article 110 and also the willpower of the lawmaker? Even further, in the face of the conviction, indicated by us; and when the principle of the differentiated full succession responsibility is applied within the framework of the arrangement of Article 110 in case the bank’s lost in question is caused by more than one person, will the results in conformance to the equity come forth from the point of view of the responsibilities of the managers and/or auditors and of also the provision of the balance of benefits or interests?The subject of this article is related to the willpower of the lawmaker of the applicability of the principle of the differentiated succession responsibility, and objective of the arrangement in the event that the bank’s loss within the framework of Article 110 and even beyond all these, the evaluation of whether it is in conformance to the establishment of a balance of benefits, required by the equity within the framework of the arrangement of Article 110.&nbsp;In order to make this evaluation, the mentioned legal problem or question will be determined within the content of the article before all else, and the evaluations for the solution of this question at the doctrine of the Turkish banking law and different proposals for solutions thereunder. Subsequently,In this context, our own evaluation and the proposal for solution that we have concluded as necessary to be available hereunder within this direction will be explained within the light of all these evaluations and proposals for solutions.

Türk Hukukunda Banka Yöneticilerinin ve Denetçilerin Şahsi İflas Sorumluluğu Düzenlemesi Çerçevesinde Farklılaştırılmış Teselsül Sorumluluğu İlkesinin Uygulanabilirliği Sorunu

Duygu

Assist. Prof. Dr.

After the economic crisis that accelerated in our country following 2018, due to rising inflation and exchange rate shocks, Article 344 of the Turkish Code of Obligations (TCO) regarding the determination of rent for residential and roofed workplaces underwent changes aimed at protecting tenants. Following these changes, starting rental prices have reached exorbitant amounts, comprehensive guarantees have started to be demanded from tenants and renting residential properties without an eviction commitment letter has become nearly impossible. Multiple limitations on the maximum rent increase rate for renewed rental periods has led to excessive differences between the residental rents renewed after the change took effect on June 11, 2022, and rental agreements renewed or established before that date. While the parties determined the starting rental prices and the increase rates for renewed periods based on the ongoing economic data, the rental prices for renewed periods affected by the legal changes, which entered into force due to the economic crisis, have remained below inflation. Due to the strict termination regime for residential rents, lessors unable to terminate the contracts have started filing lawsuits for the determination of rental prices for rents longer than five years that have significantly decreased in real value against inflation, based on Article 344/III of the TCO. In cases where the conditions for these lawsuits are not met, they have begun to file rent adjustment lawsuits based on Article 138 of the same code. It is a well-known fact that this situation reflects a heavy workload on the judiciary and disputes regarding the rental prices increase day by day.The core of our study is the lawsuits filed by lessors regarding adaptation of rental prices. Since adaptation, has the nature of intervention in the contract, is considered as a last resort (ultima ratio) and closely related to the rent amount; it has been preferred to examine the provisions related to the determination of the rental price. During the period governed by the Turkish Code of Obligations No. 6098, the enactment of Article 344, which has special provisions for determining renewed rental amounts in roofed workplaces rents, diminished the significance of lawsuits regarding the adaptation of rental prices in such leases. However, changes made to this provision later have made adaptation of rental prices as a necessary institution again.&nbsp;&nbsp;It is considered that the German law, which is dominated by the theory of the transaction basis, has been used as a reference in the structuring of Article 138 of the TCO regarding adaptation. It is also accepted that when examining the conditions for adaptation under Turkish law, interpretation should be based on this theory. Therefore, in our study, while the conditions for the lessor’s request for adaptation of the rental price under Article 138 of the TCO have been examined, article § 313 of the German Civil Code (GCC) is taken into consideration. Unlike § 313/I of the GCC, the adaptation of contracts to changing circumstances under Article 138 of the TCO is specifically limited to hardship among the groups of events related to the collapse of the basis of the transaction. This distinction is particularly significant regarding the lessor’s claim for adaptation of the rental price. The fact that rental price remains too low in the face of inflation does not indicate hardship for the lessor; rather, it creates an imbalance between the parties’ obligations. The fact that Article 138 of the TCO regulates only hardship has been rightly criticized and caused dissidence regarding its field of application. According to another view that we support, considering that the legal basis for hardship is the theory of the collapse of the transaction basis, the scope of Article 138 of the TCO should be interpreted broadly to include the disruption of the balance between obligations.The purpose of this study is to establish the conditions under which a lessor can request an adaptation of the rental price, using § 313 of the GCC as a reference. The first condition for adaptation is that an unforeseen and unforeseeable event at the time of the conclusion of the contract, must cause a fundamental change in the objective conditions of the transaction. The event that causes the change in circumstances must be objective in nature and capable of leading to the collapse of the transaction basis concerning the contract in question. In this context, the fundamental change refers to the imbalance between the parties’ obligations. Finally, the lessor must not have fulfilled their continuing primary obligation; in other words, the contract must not have ended.

Konut Kiralarında Kira Bedelinin Belirlenmesine İlişkin Düzenlemeler İle Kiraya Verenin Uyarlama Talebinin Değerlendirilmesi

Gül

In trademark law, the average consumer&nbsp;is a measure that represents the target audience of a product or service and is used as a reference in cases of trademark registration or trademark infringement, and has a decisive role in evaluating consumer behaviour and perceptions and deciding on the registrability or infringement of a particular trademark or product. Indeed, one of the most important tools in the registration of a trademark and determination of the scope of protection is the likelihood of confusion between signs, and the registration request of a sign that is likely to be confused, including the likelihood of&nbsp;being associated by the publicise to its sameness or similarity with a registered or previously applied trademark and the sameness or similarity of the goods or services covered by it, is rejected upon objection [Industrial Property Law No 6769 (IPL) Art 6/1]. Again, the registration or unregistered use of such a sign constitutes an infringement of the trademark right with the previous registration date and may be prevented by the trademark right holder [Art 7/2(b) of the IPL, Art 29/1 of the IPL].The IPL has preferred to use the term “by the public” in relation to the similarity assessment of trademarks within the scope of the likelihood of confusion. However, it is accepted in both doctrine and judicial decisions that the expression “likelihood of confusion, including the likelihood of association by the public” used by the legislator does not mean all segments of the society, but the specific environment that faces the danger of association or confusion. In other words, in all these cases, the person whose perception is taken as the basis in determining the likelihood of confusion is the “average consumer”.Although most of the disputes regarding trademark law arise on the axis of likelihood of confusion, the “average consumer”, which is taken as a criterion in the evaluation, is not defined in the IPL or the Regulation on the Implementation of the Industrial Property Law, nor is there any regulation on its scope and limits in the trademark legislation. On the other hand, it is determined that the average consumer is defined in secondary regulations in two different areas. These are the Regulation on Commercial Advertising and Unfair Commercial Practises (Art 4/1-j) and the Turkish Food Codex Regulation on Nutrition Declarations (Art 4/1-f).In the judicial decisions on the subject, the average consumer is formulated as reasonably well-informed and reasonably observant and circumspect, but the level of information, attention and caution required may be evaluated differently within the framework of various criteria such as the nature of the goods/services or the nature of the buyer group[1].Indeed, while the presumptive level is higher in certain groups of goods/services, it may be at an average level in others. As a matter of fact, it is&nbsp;accepted that consumers will generally not act carefully in terms of products that are used by all segments of society in daily life.The average consumer group criterion used in trademark registration and infringement proceedings is the product of a norm-based practise that follows the legal or policy objectives underlying trademark law. Although the average consumer criterion as “a reasonably informed and reasonably cautious and prudent person” provides convenience to the decision-makers, it is insufficient because it does not take into account the scientific data on how consumer perceptions are actually directed. The replacement of traditional commerce by electronic commerce affects the purchasing behaviour of consumers and shapes consumer perception. The criteria determined within this framework make it impossible to make decisions on the subject on an objective and equitable basis.This&nbsp;paper&nbsp;does&nbsp;not&nbsp;aim&nbsp;to&nbsp;eliminate&nbsp;the&nbsp;criterion&nbsp;of&nbsp;the&nbsp;average&nbsp;consumer,&nbsp;but&nbsp;it&nbsp;may&nbsp;be&nbsp;time&nbsp;to&nbsp;adopt&nbsp;a&nbsp;more&nbsp;empirically&nbsp;grounded&nbsp;approach&nbsp;to&nbsp;the&nbsp;average&nbsp;consumer.&nbsp;First&nbsp;of&nbsp;all,&nbsp;the&nbsp;norm-infused&nbsp;structure&nbsp;of&nbsp;the&nbsp;average&nbsp;consumer&nbsp;is&nbsp;fictional&nbsp;in&nbsp;three&nbsp;senses:&nbsp;attention,&nbsp;knowledge&nbsp;and&nbsp;vigilance.&nbsp;This&nbsp;triple&nbsp;artificiality&nbsp;leads&nbsp;to&nbsp;a&nbsp;non negligible&nbsp;disconnect&nbsp;between&nbsp;what&nbsp;trademark&nbsp;law&nbsp;recognises&nbsp;and&nbsp;what&nbsp;reality&nbsp;is.&nbsp;Adding&nbsp;more&nbsp;reality&nbsp;to&nbsp;this&nbsp;remodelling&nbsp;process&nbsp;and&nbsp;interpreting&nbsp;the&nbsp;average&nbsp;consumer&nbsp;as&nbsp;objectively&nbsp;as&nbsp;possible&nbsp;requires&nbsp;an&nbsp;interdisciplinary&nbsp;work&nbsp;between&nbsp;behavioural&nbsp;sciences&nbsp;and&nbsp;legal&nbsp;science.&nbsp;On&nbsp;the&nbsp;other&nbsp;hand,&nbsp;it&nbsp;is&nbsp;considered&nbsp;that&nbsp;the&nbsp;actual&nbsp;use&nbsp;of&nbsp;the&nbsp;trademark&nbsp;should&nbsp;also&nbsp;be&nbsp;taken&nbsp;into&nbsp;account&nbsp;as&nbsp;part&nbsp;of&nbsp;the&nbsp;global&nbsp;assessment&nbsp;in&nbsp;the&nbsp;likelihood&nbsp;of&nbsp;confusion&nbsp;assessment,&nbsp;and&nbsp;a&nbsp;more&nbsp;empirically&nbsp;based&nbsp;structure&nbsp;should&nbsp;be&nbsp;established&nbsp;by&nbsp;applying&nbsp;survey&nbsp;evidence&nbsp;in&nbsp;proving&nbsp;the&nbsp;likelihood&nbsp;of&nbsp;confusion.

Güncel Gelişmeler Işığında Ortalama Tüketici Ölçütünün Yeniden Yorumlanması

Selim

The past decade has witnessed a marked proliferation of autonomous vessels in the commercial context. At the moment, there are at least ten different projects under which autonomous vessels of varying types and sizes are currently in the testing phase and undertaking routine cargo operations. Owing to the obvious differences between these new and conventional vessels, it makes good sense to adopt the novel regulations specifically designed for autonomous vessels. Whilst there is ongoing work on drafting rules applicable to these new types of vessels at both national and supranational levels, slow progress indicates that these vessels will probably be subject to existing regulations for quite some time. Consequently, studies evaluating the applicability of the existing legal rules to autonomous vessels have been on the rise for the past decade. Arguably, the most noteworthy of such large-scale studies is the IMO’s scoping exercise, which was concluded in 2021. The IMO’s work has been rather influential in subsequent studies on the subject. However, perhaps, the most pronounced impact of the IMO’s scoping exercise can be seen in the four degrees of autonomy, devised specifically for the IMO’s inquiry, as virtually all studies conducted on the subject refer to these categories with many adopting them as the yardstick for analysing various rules in the context of autonomous vessels. However, the degrees of autonomy devised by the IMO have not been immune to criticism. Indeed, many commentators have, rightly, pointed out the ambiguity of these categories and their inconsistency with the widely used technical concepts encompassing autonomous vessel designs. The latter is especially problematic in view of the fact that the prevailing technical designs for realising autonomous vessels expect the ship rotating freely between different degrees of autonomy during the same voyage. Accordingly, a vessel, despite not being fully autonomous, might operate at times without any human intervention in higher degrees of autonomy. Equally, the same vessel can also be operated manually by the crew or the remote control centre personnel when the need arises. However, the IMO’s degrees of autonomy are unable to reflect the dynamic autonomy levels crucial to the operation of autonomous vessels. In fact, it is submitted that no static category is without problems as any kind of categorisation&nbsp;involves selecting static combinations between autonomy level, manning and technical capabilities. Since pragmatism dictates including a number of categories and eliminating others, some combinations end up being superfluous because they are not different from conventional vessels and others might prove unrealistic. Moreover, the flexible nature of prospective vessel designs, which may freely mix onboard manning and remote control capability as well as dynamic autonomy levels, means that static categories are generally a poor fit for evaluating the applicability of existing regulations to autonomous vessels and lead to misleading outcomes. Accordingly, focusing on the key differences between conventional vessels and autonomous vessel prototypes that are currently being tested for operation, three questions stand out in evaluating whether an existing rule could also apply to an autonomous vessel: The first is whether the vessel is, ultimately, controlled by a human or a machine. This is significant, as the existing rules are drafted with humans in mind, who are solely making decisions related to navigation and actively participating in or supervising the control of the vessel. However, in higher degrees of autonomy, the decisionmaking and controlling processes are essentially done by the machine and humans are not involved in the process. This vital difference poses certain difficulties, especially with rules relating to fault or other legal concepts based on humans. The second question is whether the vessel has a crew on board, as traditionally the vessel is manned by the crew onboard and this is evident in certain basic rules such as requirements for seaworthiness. Finally, the third question is whether the vessel is controlled onboard the ship or somewhere else. This is also partly connected to the second question because certain rules require the physical presence of humans on board. Therefore, even if it is conceded that the crew could be transferred to land and control the vessel from the remote control centre to ensure functional equivalency, certain rules still remain incompatible with autonomous vessels. In conclusion, it is argued in this article that, instead of centring the analysis on prescribed categories, regard must be had for these three parameters in analysing the applicability of the existing regulations, which ultimately supports more reliable results.&nbsp;

Yeni Tip Gemilerin İşleyiş Esasları Bakımından Otonomi Kavramı ve IMO’nun Otonom Gemi Kategorileri Üzerine Düşünceler

Alican

Mehmet

Climate refugees can be defined as people who are compelled to leave their homes due to climate change-related reasons. As can be understood from the description, the problems that climate refugees (would) face stem from two different but intermingled crises. Namely, the climate crisis and the refugee crisis. Although these two crises have set different obstacles for climate refugees, they are nevertheless related; since the climate crisis constitutes the substructure for the climate refugees. Thus, taking climate action is crucial for reducing the number of possible climate refugees. This structural approach to addressing climate refugees would protect them, even before they become climate refugees, by eliminating the substructure, which would give rise to the superstructure of climate refugees.Nevertheless, an increase in average global temperatures is foreseen even in the most optimistic scientific scenarios that assume the possibility of a relatively successful fight against climate change. Therefore, it is only reasonable to assume that climate refugees will become a part of the future. As a result, these people would need protection in the context of refugee rights. Thus, it is necessary to focus on both the climate crisis and refugee rights to offer a comprehensive solution.&nbsp;In order to deal with the substructure of the climate refugee issue, namely, the climate crisis, two main sets of solutions are suggested in this paper. The first set consists of international agreements aimed at combating the climate crisis. The Paris Agreement (2015) and the Kyoto Protocol (1997) are the two most prominent of those agreements. Although the agreements have been accepted quite widely; they both suffer from issues such as lack of an effective enforcement mechanism, lack of a supranational authority that would monitor the parties and implement the agreement directly, the principle of voluntariness in becoming a party to the agreements, freedom to withdraw from the agreements without any sanctions, and, finally, lack of&nbsp;any real sanction regarding failure to comply with the agreements. The flaws in both agreements stem from the paradigm of national sovereignty that enshrines states’ will and consent. Since it is quite unlikely that 193 member states of the United Nations will agree to take the same climate action, humanity’s fight against climate change is in constant jeopardy. Although public opinion favours climate action, people’s opinions do not seem to affect state policies either. The second set of solutions can be described as the “technological solutions” which refers to technologies, such as carbon capture technology, that are aimed at combating climate change. Unfortunately, these technologies are incapable of replacing the legal and political set of solutions before reaching a tipping point, resulting in an irreversible climate catastrophe.To deal with the superstructure of climate refugees, international refugee law must be examined, despite the fact that there is no legal definition of climate refugees in international law. The Refugee Convention Relating to the Status of Refugees (hereinafter, Refugee Convention), the most prominent document on the subject, not only lacks a definition for climate refugees but also does not provide climate refugees with the status of refugee; since the term “refugee” in the agreement can only be applied to those who are persecuted on a political basis. Nevertheless, climate refugees tend to suffer from natural causes rather than political causes. Therefore, it is necessary to draft a new refugee convention or an annexe to the Refugee Convention to transcend the convention’s narrow scope and protect climate refugees. Unfortunately, even if there were more comprehensive legal terms for climate refugees; considering the lack of enforcement in international law, they could not provide real protection. Thus, issues surrounding climate refugees, both in the context of refugee rights and the climate crisis, constitute a conundrum because of the current international legal and political status quo.

Uluslararası Hukuk Bakış Açısından İklim Mültecilerinin Hukuki Konumu ve Korunmasına İlişkin Bir İnceleme

Berk

As is known, the securitisation of the law came to the fore after 9/11. In this article, the balance and the subsequent dilemma of security and freedom were examined on the basis of a verdict of the German Federal Constitutional Court, which was dated in 2006. In the decision of the Court, from time to time, the possibilities of the weighing lives one another were dwelled on by examining “Aerial Security Law” which at one point permitted a hijacked plane to be shot down, in order to save more lives. The court, however, did not open the door of weighing life by invoking the core element of the Bundesgesetz, the German Constitution, namely the human dignity. The verdict, which was translated into Turkish from German, did not solely touch upon the substantive part of the law. In other words, the German Federal Constitution Court has also delved into the procedural part of the law. As is known, in Germany, landers, the States, have a lot saying during the procedure of enacting a law. Therefore, the States have also argued against the Law before the Court not only on the grounds of the substantive part but also on the grounds of the procedural part. It was contested that the Federal government did have the consent of the other part of the legislature.&nbsp;Regarding the substantial part, the issue that the German Federal Constitutional Court focuses on in its decision is the incomparability of human lives. If there is even a 1% chance, human life cannot be put at risk and cannot be compared quantitatively. Similar discussions have arisen in the railway switchman dilemma for years. Accordingly, when a waggon with no brakes is coming quickly and five railway workers are working on the road where the waggon in question travels, they do not have time to escape. However, if the railway switchman notices the situation and turns the switch, he turns it to the side where only one worker is working. With very simple mathematics, the railway switchman would prefer that one person die rather than five. When the criminal liability of the railway switchman is left aside, the issue to be discussed is “ethics”. Because are the lives of five people greater than the life of one? The answer to this question is generally “yes”. The question then asked will be; What if that person is a Nobel Prise-winning doctor who will find the cancer vaccine? Then the answer changes and the scientist’s life becomes more important than the other five people and the railway switchman does not turn the switch. The dilemma begins exactly here. When answering the first question, the background, education, and role of these people on the world stage were not taken into consideration. Directly, these people were reduced to the status of objects, they were forgotten that they were humans, and they turned into “numbers”. An attempt has been made to explain this situation around the concepts of human rights and the fight against terrorism. It was emphasised that the concepts in question are not alternatives to each other and that the fight against terrorism will be carried out more accurately by respecting human rights. This is the issue emphasised in the Court decision in this study. The issues that states should take into consideration when legitimately fighting terrorism within the boundaries of law were also evaluated within the framework of “ethical” principles, both in the decision of the German Federal Court and in the subsequent analysis.Furthermore, while the Court examined the case, many aspects were considered and many actors were given the right to defend their arguments before the Court. In the process, professionals in the topic such as the Association of German Federal Defence, the Association of Pilots and the Independent Flight Attendant Organisation had right to put forward their ideas and arguments. Not only were the non-governmental bodies able to present their arguments, but also the groups at the parliaments could argue the case. In this process, one of the interesting things to observe was the delving into the arguments of the parliament groups/alliances who backed the law during the voting procedure of the law, but argued against it before the Court. Also, the possibilities of these “amicus curiae”, the friends of the court, term in Turkish aspect was dwelled on. In this regard, as it is seen that the working rules of the Turkish Constitutional Court and the German Constitutional Court are different from one another, many aspects of them were discussed. Most importantly, the term “amicus curiae” was used when the first of its kind was made possible by the Turkish Constitutional Court, as the Court accepted the amicus curiae report, which was prepared by the Constitutional Law Research Association (Anayasa-Der) and the Turkish Criminal Law Association (TCHD) and submitted together to the Court.&nbsp;

Alman Federal Anayasa Mahkemesi Kararının Tercümesi ve Bu Karar Üzerinden İnsan Hakları ve Terörizm İlişkisinin Analizi

Ercan

The existence of the principle of irrevocability of phases is almost uniformly accepted by the doctrine and the law practise, but it is not directly mentioned in the Turkish Criminal Procedure Code or in other relevant laws. Although the principle is not directly included in the legislation, there are various regulations that indirectly indicate its existence. At the beginning of these regulations, comes Article 174 of TCPC. According to this article, an indictment that has not been returned within 15 days of its delivery will be considered accepted. According to Article 175 of TCPC, as soon as the indictment has been accepted, the investigation phase ends and the main trial phase (phase of prosecution) starts. Once the main trial phase starts, there is no return to the phase of investigation. The doctrine and practise generally accept that after passing of these 15 days, the return of the indictment is no longer allowed. Because the passing of these 15 days removes the authority, which has been given to the court, to return the indictment. The same conclusion can be reached from article 267 and following articles of TCPC. Because these articles give the opportunity to reconsider the decision which has been made by the court. But even in those cases, there is no return to the investigation phase. This means indirectly that there is no response from the main trial phase to the investigation phase. Generally accepted, there are two phases in criminal procedure; namely, phase of investigation and the phase of the main trial. Although it is not directly mentioned in the current Turkish Criminal Procedure Code, there is an intermediate trial phase. This phase, which allows the return of the indictment with a limited period of time, is not important for our study because it is still considered as the investigation phase in terms of our current law. Because when the irrevocability of the phases is mentioned, what is meant exclusively is the irreversibility from the main trial phase to the investigation phase. Since the intermediate trial phase is also counted as a part of the investigation phase, we can indirectly say that it is not possible to return from the main trial phase&nbsp;to the intermediate trial phase. Since the legislator does not qualify a separate phase, although there is no obstacle in terms of the principle of irrevocability from phases, it is not clear whether the prosecutor can withdraw the indictment independently of the court during the intermediate trial phase; to put it more accurately, it does not seem possible since it is not foreseen in the legislation. For this reason, although it has no place in the legislation, it is rightly defended in our doctrine that the prosecutor’s office should be given such a withdrawal authority. Indeed, with the start of the main trial phase, the phase in which the prosecutor is the emperor comes to an end, and the task of executing and managing the process passes to the court. Thus, when the main trial phase is initiated, the obligation of the court to perform and terminate the process starts. However, in some cases, the lack of prosecution conditions or the emergence of obstacles to judgement may require returning to the investigation phase or making a decision to stop and correcting the relevant deficiencies by out-of-court authorities. For this reason, in some country practises, it is possible to return to the investigation phase during and/or after the main hearing period. The recent annulment decision of the Constitutional Court regarding the accelerated proceeding also necessitates a return to the investigation phase. This study aims to explain within the framework of comparative law that it should be possible to return to the investigation phase in order to eliminate the injustices (problems in the context of a fair trial) that may arise in these and similar cases.

Evrelerden Dönülmezlik İlkesi

Muhammet

The justiciability of international organizations has been a topic of debate, particularly regarding the United Nations’ role in the cholera outbreak in Haiti. The UN’s role is often compared to that of a god who bears no responsibility for actions beyond being above the law. This article discusses the concepts of immunity, autonomy, and responsibility of international organizations, including the effective use of alternative systems to repair the damage caused. The role of personnel working for the UN is compared to that of angels, who are expected to work for the good of humanity. The Haiti Cholera Outbreak serves as a contemporary example through which to understand the UN’s stance towards immunity, responsibility, and justiciability in similar situations or cases. This article analyzes the immunity of the UN and compares it with other international organizations to demonstrate the special position of the UN. Waiver of immunity is tested with extreme examples in which human rights were involved.When the UN was created, there was no legal framework to hold international organizations responsible for damage they could cause. The law developed later through several court decisions and other legal instruments when the personality of international organizations became clear. The law of international responsibility was shaped to hold states to account as the primary actors of international relations. However, this led to some discrepancies in the responsibility of international organizations. To be more specific, jurisdiction of international courts was already developed to hear the cases between states, not covering international organizations.According to section 29 of the Convention on the Privileges and Immunities of the United Nations, immunity is waivable (by the UN Secretary General). However, waiver of immunity by the UN is uncommon. What would really happen if the UN did not hide behind its veil of immunity and face liability? Would this lead to more actions against the UN all over the world and render the UN’s functions disrupted?&nbsp;Considering the fact that UN peacekeepers have been involved in sexual abuse of local people in many host states, including Haiti, one can conclude that the UN might have ended up in great trouble if it had no immunity at all.It can be argued that the UN is a vulnerable organization as evidenced by Congo peacekeeping operations. Therefore, the UN needs a shield of immunity to operate properly. In a similar vein, immunity is necessary to ensure that the troop-contributing nations send their contingents more willingly; otherwise, the UN mission might dysfunction and even end up failure. Yet, the UN has expressed its “deep regret” and “moral responsibility” over the cholera outbreak and the subsequent human loss on a number of occasions and finally recognized moral obligation in a Security Council resolution in 2016. However, this has not reached the level of waiver of immunity, acceptance of legal responsibility, and compensation of any damages caused by the UN angels. By failing to undertake legal responsibility as such, the UN will undermine its own legality and sustainabilityIt was also argued that even in extreme circumstances, the UN should preserve its immunity for the sake of ensuring the UN’s independence from the member states. This argument provokes the question of to what extent the UN is independent of the member states? Independence, or, in other words, autonomy is a natural consequence of international personality. Today, it is undisputedly agreed that the UN has international legal personality, as first evidenced by Reparation for Injuries Advisory Opinion of the International Court of Justice. As such, the UN has the right to operate at the same level as states at the international forum, with similar but not identical rights with those of the states. Thus, the UN is able to enjoy rights and bear responsibilities as a result of its personality. These rights and obligations include the capacity to bring claims before international tribunals, immunity from national jurisdictions as well as the burden to face responsibility for the wrongful acts of its agents.One can argue for the limits of immunity that the UN should have. It follows that should the UN have immunity even when its agents have violated a norm of jus cogens character? Is it necessary for the UN to stick to its immunity even in such extreme circumstances? The question seems to have been answered positively by the European Court of Human Rights (ECtHR) in Stichting Mothers, where the UN has been found to have the shield of immunity even in the face of a breach of a norm of jus cogens character. The ECtHR relied on the argument that since the UN was acting under chapter VII, it would be an interference to deny its immunity. Since its establishment the UN as an international organization, in shaping the world order, was trying to reach the goal of peace and security. However, it was hard for the UN to create a balance between peace and justice, which remained an unsolved dilemma. This decision of the ECtHR reaffirms the dichotomy between peace and justice.In conclusion, not waiving its immunity and sticking to its God role the UN, might be said to have staged a non-existent God role by not making any visible alterations to the world to hold those who might be responsible to account. To avoid this image of a non-existent God, the UN should recalculate well when and where to resort to a waiver of immunity, considering its moral obligations and values that it was established to protect.

Melekler Hata Yapınca: Birleşmiş Milletler’in Haiti’deki Kolera Salgını Sebebiyle Yargılanabilirliği

Necip

In this study, court decisions are classified in terms of procedural law and examined in the context of the effect of a court decision on other court decisions. The court decision, as a textual product given by the judge according to law, equity and conscientious conviction, is analysed in terms of containing principles. In a court decision, if the abstract norm is clear and the judge applied it to the concrete case by the deductive method, he/she did not engage in a unique mental action. Such decisions are case decisions or application decisions. In this respect, after it has been demonstrated that not all court decisions have the characteristics of jurisprudence, the court decisions that are taken into consideration in order to ensure similar decisions in precedent cases and therefore are not binding have been evaluated. In this respect, the persuasive power of precedent case law as a requirement of legal stability has been revealed. The value of precedent as a source of law, i.e., the value of a jurisprudence as a source of law, is explained by pointing out the differences between Continental European Law and Common Law. At this point, it has been determined that whether a court decision is bound by other court decisions or not stems from the relationship between the legislature and the judiciary, in other words, from the view of the law and the judge. On the other hand, in addition to the fact that a court decision contains a principle, the notion of a jurisprudence, i.e., the concept of constant jurisprudence, is discussed within the framework of jurisprudence constant (constant jurisprudence), which is a Continental European jurisdictional law theory. While the concept of constant jurisprudence is seen in the decisions of the Council of State as the precedent that courts and even administrations take care to comply with, it has been revealed that this may actually correspond to an institution from French law. In this respect, the doctrine of jurisprudence constant, which is accepted as the Continental European equivalent of the doctrine of stare decisis (precedent decision) in common law, has been analysed within the framework of both an institution and the concept of the case law seen in the decisions of the Council of State. It is analysed how a constant jurisprudence is formed and how this jurisprudence may impact the judge’s decision. There is a need for a certain time for the formation of a constant jurisprudence. Case law applied for a certain time will also prove its durability.&nbsp; The fact that the court-issuing the decision is a higher-ranking court and that the decision is unanimous is important for it to be rendered unanimous. In the decisions of the Council of State, the broad interpretation of the interest of the inhabitants of the town in filing a lawsuit regarding zoning applications, environment, historical and cultural assets, the liability of the administration for acts of terrorism should first be based on fault liability and then, if there are conditions, on strict liability, and in the absence of these cases of liability, an investigation should be conducted according to Law No. 5233. It is argued that the criticism and contributions to be made by the doctrine in the decision review journals will be useful for the follow-up of the constant jurisprudence and criticism of the jurisprudence before it becomes constant. Within the scope of the study, the deviation of the court from the constant jurisprudence in administrative jurisdiction is also discussed in the context of the prohibition of surprise decisions. In one of the decisions of the Council of State, the prohibition of a surprise decision is addressed in the context of the right to be heard, but a surprise decision is a concept that can have a broader meaning. In this respect, making a decision different from the case law without a justifiable reason may violate the prohibition of a surprise decision. The compatibility of the principle of ex officio investigation and the prohibition of surprise decisions has been discussed within the framework of administrative jurisdiction law as a branch of procedural law. It is expected that the judge, who will decide differently from the established jurisprudence, will give the parties the opportunity to present their final statements before rendering his/her decision. The study also evaluates the connection of the unification of case law, which is an institution specific to Turkish procedural law, with the case law considering judicial decisions. As seen in the decisions of the Council of State, if a case law has become a case law, it should not be subject to a unification of the case law decision. In essence, the Council of State wants to prevent the case law from being frozen. This approach of the Council of State also reveals that although the case law is not as binding as the case-law consolidation decisions, it is a case law that is taken care to be followed and has a strong power to convince other courts/judges. Consant jurisprudence is thus explained as a product of the effort to ensure the integrity of case law rather than unifying it.&nbsp;

İdari Yargıda Emsal Karar-Müstakar Karar ve İçtihat Kavramları Hakkında Bazı Mülahazalar

Recep

In criminal proceedings, the law enforcement officers may conduct an investigation to obtain information about the crime. The statement, taken by asking questions to the person who is not the suspect to determine and clarify the crime, may be expressed as information retrieval. Investigation and research activities under the name of information gathering are conducted to find evidence of crime in cases where the suspect is not known. This is lawful because of the investigation stage and the effectiveness of the law enforcement in criminal procedure law. After the suspect is identified, his official statement is taken in accordance with legal requirements. The suspect is the person who is suspected of committing a crime and against whom an investigation has been opened by the investigative bodies. According to the general opinion accepted in doctrine and judicial decisions, a person has the capacity of the suspect when investigative bodies take action to clarify the crime and take measures. In practise, it has been seen that information is obtained from the suspect without recording although the crime has been revealed and the suspect has been identified. The informal information gathering in question is called a preliminary interview because the requirements for statement taking stipulated in the legislation are not complied with. Although the suspect is identified, the law enforcement officer conducts an informal interview with him instead of taking the statement officially. This communication method becomes a rule in practise. The interview with him without complying with the requirements for statement taking can be exemplified as the significant problems seen in law practise in the investigation stage. The aim of this study is to identify the legal nature of the preliminary interview by a law enforcement officer with the suspect after a crime has been committed and to determine whether the information obtained is within the scope of forbidden evidence. In criminal procedure law, an investigation is opened when the suspicion of a crime emerges. A face to face interview with the suspect could be beneficial to&nbsp;obtain criminal evidence during the investigation. In this regard, taking the statement of the suspect is a significant investigation procedure to obtain criminal evidence and to determine the course of the investigation. Also, it is the reasoning process in which the suspect can use his right of defence for the first time. Therefore, he should be reminded of his rights before taking the statement, and the law enforcement should prevent his will from becoming defective during statement taking. In this regard, the preliminary interview by the law enforcement officer with him is called secret statement taking and considered as unlawful because it does not constitute an assurance in favour of the suspect. The statement taking, a technical and legal procedure, is conducted in the law enforcement unit by being recorded. Preliminary interviews, on the other hand, are made at the crime scene or while being taken to the law enforcement units or hospital, and the statement of the suspect is not recorded. The suspect’s will become defective can be shown as reason for the preliminary interview is forbidden evidence. The psychological or actual pressure caused by the unrecorded and informal interrogation prevents the suspect’s free will. This violates the fair trial principle. The principle prohibits investigative bodies from using any means to reach the truth and also prevents the suspect’s being suppressed and compelled to testify against himself and used as a means to obtain evidence. In a lawful statementtaking procedure, it should be stated to the suspect that he is free to make a statement about the accusations against him and that this right is protected by law before being interrogated. It is emphasised with freedom of giving a statement that the personal rights of the suspect are more important than the purpose pursued by the criminal investigation. However, the legal rights of the suspect were not reminded during the preliminary interview. Therefore, the suspect, whose free will is made defective, is compelled to accept the accusations against himself. A preliminary interview may also be made with a third party due to the fear that he will not tell the truth before the law enforcement. The third party’s being present during the preliminary interview does not prevent the suspect’s will from becoming defective. Therefore, it is unlawful to obtain some statements from him with the help of a reliable third party. This preliminary interview by the law enforcement officer with the suspect is an unlawful procedure, and a conviction cannot be obtained based on the statement. The statement taken during the preliminary interview should be considered forbidden evidence even if later confirmed in court by the accused. However, the statement taken after the preliminary interview can be considered a lawful evidence. If the suspect is explained that the statement in the preliminary interview is forbidden evidence and his rights are reminded before his statement is taken officially, the subsequent statement can be considered legitimate.

Türk ve Alman Uygulamasında Soruşturma Aşamasında Bir Usul Garabeti: Şüpheliyle Yapılan Ön Görüşme

Sinan

Legal security requires that the rules of law are certain, that the legal order continues in stability and that individuals can foresee the consequences of the rules to be applied to them. There is no doubt that this predictability must be ensured by the courts. It is clear that it is a requirement of a fair trial that similar decisions are rendered in similar disputes, that the parties can foresee the decision to be rendered in a case, and that certainty is ensured in the application of the rules of law. The European Court of Human Rights, which interprets the principle of the rule of law together with the fundamental rights and freedoms protected by the European Convention on Human Rights, has evaluated the different decisions of the courts on similar issues within the scope of the right to a fair trial and has developed two criteria. The first criterion is the deep and continuing nature of the contradiction, and the second is the existence of a mechanism in national law to resolve this contradiction, whether this mechanism was used in the applicant’s case, and if so, what result was obtained. The Court states that the States Parties are obliged to harmonise their jurisprudence and that the supreme courts in particular are the most important mechanism for resolving conflicts. The Court, which also imposes a responsibility on the high courts in this sense, characterises the issuance of deep and persistent contradictory decisions by the high courts as a practise that undermines the principle of legal security and violates the right to a fair trial. The Court, which evaluates whether a deep and persistent contradiction has occurred in each concrete case, does not consider it a violation if the issue that constitutes a contradiction of jurisprudence is resolved in one and a half years and decisions are rendered in accordance with this resolution in subsequent cases, while it considers the continuation of the contradiction for up to three or four years as a violation of the right to a fair trial. The Turkish Constitutional Court also adopted the criteria and assessments of the European Court of Human Rights regarding the impact of jurisprudential differences in the right to a fair trial. In particular, with regard to the differences of jurisprudence before the higher courts, the Court considers the possibility that a decision will be upheld if it falls within a certain&nbsp;chamber and will be overturned if it is dealt with by another chamber, resulting in conflicting and contradictory outcomes, contrary to the principles of legal certainty and predictability.&nbsp;One of the issues that constitutes a conflict of jurisprudence in Turkish law is the issue of whether the methods of protection of public receivables will be applied to the legal representatives and shareholders of limited liability companies due to the public debt of the company. Although the Council of State Unification of Jurisprudence Board has determined that there are more than one contradictory decisions by the Council of State departments, it has decided that there is no need to unify the jurisprudence by stating that the contradiction in the decisions has not reached a level that would disrupt the legal stability. This decision is open to criticism in many ways. First, the inconsistency in the judgments dates back much further than the judgments cited in the application. When these old decisions are taken into consideration, it is understood that the criterion of deep and persistent contradiction sought in the decisions of the European Court of Human Rights is met. Since Article 3 of Law No. 6183, which creates an interpretation problem between the chambers of the Council of State, has been in force for many years, it is unacceptable that the Council of State cannot develop a uniform interpretation in terms of the application of the norm. Moreover, it is observed that the relevant case chambers have reversed their own decisions on the same issue many times and changed their case law. As such, these decisions create an unpredictable legal order for the legal representatives and shareholders of limited liability companies. In the light of all these explanations, despite the existence of a deep and ongoing contradiction, the failure to eliminate the contradiction by unifying the case law leads to a violation of the right to a fair trial.

Limited Şirket Kanuni Temsilci ve Ortakları Hakkında İhtiyati Haciz Uygulanması Konusunda Oluşan İçtihat Aykırılığının Hukuki Güvenlik İlkesi Bağlamında Değerlendirilmesi: Danıştay İçtihatları Birleştirme Kurulu Karar Eleştirisi

Yahya

The article has two main purposes. First, it sheds light on a few crucial details about the normative hierarchy that are sometimes overlooked by scholars or students. This revisit of the issue also provides me with an opportunity to take a second look at issues associated with the normative hierarchy. The issues clarified in the first part will also help in answering the questions asked in the second part. The second purpose of the article is to raise what seems to be an interesting question only to reject it. The question is whether the normative superiority of morality over law could be claimed based on the explanations made in the first part and whether this could affect the truth of legal positivism. The second part of the article is dedicated to answering these two problems.&nbsp;The first section of the first part reiterates that whether a hierarchy exists between two norms or not should be determined based on the potential normative power of the norms. Therefore, for instance, the fact that at a certain point in time, a norm does not regulate the procedure of creation for another norm does not signify the absence of hierarchy as long as the first norm possesses the power to regulate it at another time.&nbsp;The next section is an answer to a possible critique of normative hierarchy that draws on H.L.A. Hart’s criticism of “validity purport”. Hart thought that the relationship of validity in Kelsen’s theory is reduced to a relationship between the contents of the norms and that this leads to problems for Kelsen’s understanding of the unity of the legal system. The reply stresses that Kelsen’s theory of validity does not merely take into account the contents of the norms but also pays attention to their normative power, i.e., what they can or cannot successfully regulate with their content.&nbsp;&nbsp;The third section reiterates that for the existence of hierarchy, it is not required that a norm need to be invalidated in case of contrariness to another. This is simply irrelevant. The crucial element is the requirement that a legal norm should be in conformity with the other. This is often established by a norm superior to both norms.&nbsp;The last section touches upon the interesting distinction between a source of law and a legal norm to indicate that the hierarchy is between the norms and not the sources. Combined with the fact that a single norm can be constituted by several&nbsp;sources of law, this section offers a way to determine the hierarchy between “multi-sourced” legal norms.&nbsp;The second part of the article opens with an inquiry into the minimum condition of legal positivism. There are differences in opinion among the legal positivists, but what makes them all legal positivists? The first section suggests that a form of the separability thesis is taken to constitute the common ground.&nbsp;The second section asks the following question: Since, as expressed in the first part, the existence of a hierarchical relationship between the norms does not require the invalidity of the inferior norm’s contrariness and finds the existence of a requirement of conformance, could it be claimed that ideal morality is superior to law? The article answers the question in the negative. The first section argues that the existence of a requirement to conform is sufficient for the existence of hierarchy in case a norm superior to both norms in question provides for the requirement of conformance. In the case of morality and law, there is no such common denominator. Just as morality claims to be superior to law, law may claim to be superior to morality. Moreover, it is argued that the legal positivism formulated around the separability thesis manages to survive even when it is granted that it is necessary for the addressees to have moral or prudential reasons to conform to legal norms.&nbsp;&nbsp;

Normlar Hiyerarşisi Teorisi Doğrultusunda Hukukun Ahlaka Uygun Olma Gerekliliğinin Hukuki Pozitivizm Açısından Değerlendirilmesi

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İstanbul Hukuk Mecmuası, İstanbul Üniversitesi Hukuk Fakültesi tarafından yayımlanmaktadır.
İstanbul Hukuk Mecmuası’nda, hukuk ve/veya hukuk ile ilişki kuran bilimsel disiplinler alanlarında, özgün akademik çalışmalara yaslanan, teorik veyahut uygulamalı; toplum içindeki davranış ve ilişkilerin değerlendirilmesi, hukuk sistemleri, makale, karar incelemeleri, mevzuat tahlili-tahkiki, hukukî matbuatın değerlendirilmesini konu edinen (müspet-menfi) eleştirel metinler, tercümeler dolayısıyla ulusal ve uluslararası ölçeğe teşmil olabilecek çalışmalar yayımlanmaktadır.
Bu çerçevede Hukuk Fakültesi Mecmuası’nda; (i) Hukuk kuramını genişleten ve hukukî uygulamaların teorik zeminini besleyen; (ii) gerek akademik gerekse de bir erk olarak yargının usûllerini (metodoloji) tahlil ve gerektiğinde teşrih edici; (iii) özel ya da kamusal bağlamda topluma geniş çaplı etki eden hukuksal tefekkürün, fiillerin, süreçlerin, simgelerin vb. mevcudiyetini irdeleyen; (iv) başta hukukî olmak üzere ele alınan konuyu sosyolojik, siyasal, psikolojik, felsefî, ahlâkî, coğrafî, tarihsel yanlarıyla da tahlil edebilecek metinlere yer verilmektedir.

Derginin tüm giderleri İstanbul Üniversitesi tarafından karşılanmaktadır. Dergide makale yayını ve makale süreçlerinin yürütülmesi ücrete tabi değildir. Dergiye gönderilen ya da yayın için kabul edilen makaleler için işlemleme ücreti ya da gönderim ücreti alınmaz.

Fethi

Emerging Sources Citation Index (ESCI)

EBSCO

ERIH PLUS

TR Dizin

DOAJ

SOBIAD

Gale Cengage

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İstanbul Hukuk Mecmuası

Istanbul Law Review is a publication of Istanbul University, Faculty of Law.  

Istanbul Law Review is a quarterly, academic, peer reviewed journal which publishes articles in Turkish and English. Istanbul Law Review publishes articles, judicial reviews, legislation analysis’, publication criticism, translations which involves in law and law related subjects, and are based on genuine theoretical and practical academic research and suitable for national and international scale.

Istanbul Law Review involves in publications which are (i) capable of expanding theory and enhancing theoretical basis, (ii) analyzing either academic or judicial methodology, (iii) scrutinizing legal theory, practice, process, symbols etc. effecting society on private or public levels, (iv) exploring the subject in legal, sociological, political, psychological, philosophical, ethical, geographical and historical manner.

All expenses of the journal are covered by the Istanbul University. Processing and publication are free of charge with the journal. There is no article processing charges or submission fees for any submitted or accepted articles.

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Istanbul Law Review is a quarterly, academic, peer reviewed journal which publishes articles in Turkish and English. Istanbul Law Review publishes articles, judicial reviews, legislation analysis’, publication criticism, translations which involves in law and law related subjects, and are based on genuine theoretical and practical academic research and suitable for national and international scale.Istanbul Law Review involves in publications which are (i) capable of expanding theory and enhancing theoretical basis, (ii) analyzing either academic or judicial methodology, (iii) scrutinizing legal theory, practice, process, symbols etc. effecting society on private or public levels, (iv) exploring the subject in legal, sociological, political, psychological, philosophical, ethical, geographical and historical manner.In this frame, primary fields of interest are listed as follows:• Human rights law,• Criminal law,• Financial and fiscal law,• Civil law,• Commercial law,• Obligations law,• Execution and bankruptcy law

Aim and Scope

Web of Science - Emerging Sources Citation Index (ESCI)TÜBİTAK-ULAKBİM TR Index EBSCO Central &amp; Eastern European Academic SourceEBSCO Legal SourceDOAJERIH PLUSSOBİADGale Cengage

Indexing and Abstracting

The journal is committed to upholding the highest standards of publication ethics and pays regard to Principles of Transparency and Best Practice in Scholarly Publishing published by the <a href="https://publicationethics.org/" target="_blank">Committee on Publication Ethics (COPE)</a>, the <a href="https://doaj.org/apply/transparency/#principles-of-transparency-and-best-practice-in-scholarly-publishing" target="_blank">Directory of Open Access Journals (DOAJ)</a>, the <a href="https://oaspa.org/" target="_blank">Open Access Scholarly Publishers Association (OASPA)</a>, and the <a href="https://www.wame.org/" target="_blank">World Association of Medical Editors (WAME)</a> on <a href="https://publicationethics.org/resources/guidelines-new/principles-transparency-and-best-practice-scholarly-publishing" target="_blank">https://publicationethics.org/resources/guidelines-new/principles-transparency-and-best-practice-scholarly-publishing</a> The subjects covered in the manuscripts submitted to the Journal for publication must be in accordance with the aim and scope of the Journal. Only those manuscripts approved by every individual author and that were not published before in or sent to another journal, are accepted for evaluation.Changing the name of an author (omission, addition or order) in papers submitted to the Journal requires written permission of all declared authors.Plagiarism, duplication, fraud authorship/denied authorship, research/data fabrication, salami slicing/salami publication, breaching of copyrights, prevailing conflict of interest are unethical behaviors. All manuscripts not in accordance with the accepted ethical standards will be removed from the publication. This also contains any possible malpractice discovered after the publication. Plagiarism Submitted manuscripts that pass preliminary control are scanned for plagiarism using iThenticate software. If plagiarism/self-plagiarism will be found authors will be informed. Editors may resubmit manuscript for similarity check at any peer-review or production stage if required. High similarity scores may lead to rejection of a manuscript before and even after acceptance. Depending on the type of article and the percentage of similarity score taken from each article, the overall similarity score is generally expected to be less than 15 or 20%. Double Blind Peer-Review After plagiarism check, the eligible ones are evaluated by the editors-in-chief for their originality, methodology, the importance of the subject covered and compliance with the journal scope. The editor provides a fair double-blind peer review of the submitted articles and hands over the papers matching the formal rules to at least two national/international referees for evaluation and gives green light for publication upon modification by the authors in accordance with the referees’ claims.

Policies

The journal is an open access journal and all content is freely available without charge to the user or his/her institution. Except for commercial purposes, users are allowed to read, download, copy, print, search, or link to the full texts of the articles in this journal without asking prior permission from the publisher or the author. This is in accordance with the <a href="https://www.budapestopenaccessinitiative.org/read" target="_blank">BOAI</a> definition of open access.The open access articles in the journal are licensed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (<a href="https://creativecommons.org/licenses/by-nc/4.0/deed.en" target="_blank">CC BY-NC 4.0</a>) license.

All expenses of the journal are covered by the Istanbul University. Processing and publication are free of charge with the journal. There is no article processing charges or submission fees for any submitted or accepted articles.

Authors publishing with the journal retain the copyright to their work licensed under the Creative Commons Attribution-NonCommercial 4.0 International license (<a href="https://creativecommons.org/licenses/by-nc/4.0/" target="_blank">CC BY-NC 4.0</a>) (<a href="https://creativecommons.org/licenses/by-nc/4.0/" target="_blank">https://creativecommons.org/licenses/by-nc/4.0/</a> ) and grant the Publisher non-exclusive commercial right to publish the work. CC BY-NC 4.0 license permits unrestricted, non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Editor should consider publishing correction if minor errors that do not effect the results, interpretations and conclusions of the published paper are detected. Editor should consider retraction if major errors and/or misconduction that invalidate results and conclusions are detected.Editor should consider issuing an expression of concern if there is evidence of research or publication misconduct by the authors; there is evidence that the findings are not reliable and institutions of the authors do not investigate the case or the possible investigation seems to be unfair or nonconclusive. The guidelines of <a href="https://publicationethics.org/resources/flowcharts/complete-set-english" target="_blank">COPE</a> and <a href="https://www.icmje.org/recommendations/" target="_blank">ICJME</a> are taken into consideration regarding correction, retractions or expression of concern.RetractionJournal follows <a href="https://publicationethics.org/sites/default/files/retraction-guidelines-cope.pdf" target="_blank">COPE’s Retraction Guidelines</a> in case of retraction. The editor has the right to retract an article if: <ul><li>There is clear evidence that the findings are unreliable; either as a result of a major error (e.g. miscalculation or experimental error), or as a result of fabrication (e.g. of data) or falsification (e.g. image manipulation).</li><li>It contains plagiarised content. </li><li>It has been published elsewhere without proper attribution. </li><li>It contains material or data without authorisation for use.</li><li>There is copyright infringement or there is some other serious legal issue.</li><li>It reports unethical research. </li><li>There is evidence that the peer-review process is compromised or manipulated.</li><li>The author(s) failed to disclose a significant competing interest (also known as a conflict of interest) that, in the opinion of the editor, would have unduly influenced the interpretation of the work or the recommendations of the editors and peer reviewers.</li></ul>In case of retraction the following steps are followed:<ul><li>Retraction notice including article title is published in a subsequent issue of the journal. The retraction notice is paginated and listed in the table of contents. </li><li>A link is provided between the retraction notice and the original article in the electronic version. </li><li>The online article is preceded by a page containing the retraction notice; the reader can then proceed to the article itself.</li><li>The original article remains unchanged, except for a watermark on the .pdf on each page stating that it has been &#34;retracted”.</li></ul>Article Removal for Legal ReasonsIn the following circumstances, except the metadata (title and authors), the text of the article is removed and a page informing that the article has been removed for legal reasons replaces the article. <ul><li>The article is found to be defamatory or to infringe the legal rights of others, and retraction is not deemed to be an adequate solution.</li><li>The article has been, or is reasonably likely to be the subject of a court order.</li><li>There is a significant risk to public health. </li></ul>

To guarantee that all papers published in the journal are maintained and permanently accessible, articles are stored in Dergipark which serves as a  national archival web site and at the same time permits LOCKSS to  collect, preserve, and serve the content.Additionally, authors are encouraged to self-archive the final PDF version of their articles in open electronic archives with  that conform to standards of Open Archives Initiative (<a href="https://www.openarchives.org/" target="_blank">https://www.openarchives.org/</a>). Authors should provide a link from the deposited version to the URL of IUPress journal website.

The Artificial Intelligence Policy, prepared in light of developments in artificial intelligence (AI) and practices in scholarly publishing, sets out the editorial and ethical principles that authors, reviewers, and editors should follow when using such technologies. The following sources have been considered in the preparation of the AI policy:Committee on Publication Ethics <a href="https://publicationethics.org/guidance/cope-position/authorship-and-ai-tools" target="_blank">(COPE) - Authorship and AI tools</a>; International Committee of Medical Journal Editors <a href="https://www.icmje.org/recommendations/browse/roles-and-responsibilities/defining-the-role-of-authors-and-contributors.html#four" target="_blank">(ICMJE) - Artificial Intelligence (AI)-Assisted Technology; World Association of Medical Editors  (WAME) Chatbots, Generative AI, and Scholarly Manuscripts</a><a href="https://www.icmje.org/recommendations/browse/roles-and-responsibilities/defining-the-role-of-authors-and-contributors.html#four"></a>AI-assisted technologies (such as large language models [LLMs], chatbots, or image generators) can develop and produce a wide variety of content, including text, images, audio, and synthetic data. When used ethically and safely, these capabilities can increase productivity and foster innovation, but when used without human guidance, they pose risks such as inaccurate and biased results, omissions and errors in citations, deficiencies in protecting privacy and intellectual property rights, and potential violations of authors' and publishers' rights. IUPress adopts the following core principles to avoid these risks in the use of AI:  <ul><li>Details of any AI used in the production of content (including but not limited to text, figures, images, and code) must be declared and clearly explained in the appropriate section of the paper (as an acknowledgement and/or in the methods section). </li><li>No AI tool may be listed as an author in any scientific paper. </li><li>Authors are responsible for the accuracy, completeness, and originality of their work, even if AI is used in any way; they are responsible for the proper referencing and attribution of others' ideas, data, words, or other materials. </li><li>Reviewers and editors must not upload submitted work, in whole or in part, to any generative AI application.</li></ul>In the editorial processes of IUPress publications, tools are available to assist editors in identifying AI-generated content. On the other hand, it is common to use AI tools that provide suggestions for improving and enhancing readability, language, and grammar, and such AI tools can be used in IUPress publications under the supervision of editors and authors.

Artificial Intelligence Policy

<ul><li>Authors are required to declare if they have used AI-assisted technologies (such as large language models [LLMs], chatbots, or image generators) in the creation of their submitted work. </li><li>Authors should explain, both in the cover letter and in the appropriate section of the submitted paper (as a footnote and/or in the methods section), which AI tool and which version of it they have used and for what purpose. </li><li>Authors should also indicate how they used the AI tool and how they assessed the validity of the results obtained using this technology, and what aspects of the paper, manuscript content, data or supporting files were influenced by the use of the AI tool or were generated by AI.</li><li>It is the authors' responsibility to ensure the accuracy, validity and appropriateness of content and citations generated by AI-assisted technologies and to eliminate potential errors, inconsistencies and biased results. </li><li>Authors should always check the original sources to eliminate possible plagiarism, recognising that there is a potential for plagiarism in texts produced with AI-assisted technologies. They should confirm that they have checked and that the sources are original.  </li><li>AI-assisted tools (such as ChatGPT) cannot be listed as authors because they cannot be responsible for the accuracy, integrity, and originality of the work, and these responsibilities are essential to authorship. Therefore, authors are responsible for all material involving the use of AI-assisted technologies. Authors should ensure that all statements in the article that state the hypotheses, interpretations, conclusions, limitations, and implications of the study represent their own opinions.  </li><li>Studies created by authors using AI tools in the following ways, which substitute for the basic researcher's and author's responsibilities, violate the principles of scientific publishing and publication ethics, and such studies are not eligible for inclusion in publications: </li></ul><ul><ul><li>Generation of text or code without rigorous review, </li><li>Generation of synthetic data to replace missing data without a robust methodology, </li><li>Creation of any inaccurate, synthetic content, including abstracts or supplementary materials, </li><li>Creation and manipulation of images and figures (pictures, graphs, data tables, medical images, image snippets, computer codes and formulae) or original research data (enhancing, hiding, moving, removing or adding a particular feature within an image or figure) using AI.</li></ul></ul>

It is essential to maintain confidentiality in the peer review process and not to share or use the reviewed work in this process. <a href="https://publicationethics.org/sites/default/files/ethical-guidelines-peer-reviewers-cope.pdf" target="_blank">(COPE – Ethical Guidelines for Peer Reviewers</a>)<ul><li>Reviewers should not upload a manuscript or part of a manuscript submitted to them for review to generative AI tools or large language models to assist in the review, evaluation or decision-making process, as uploading content to such AI tools by reviewers violates the authors' privacy and property rights.  </li><li>Reviewing a scientific paper is a responsibility that can only be undertaken by human beings. The critical thinking and original evaluation required for peer review is beyond the scope of this technology, and there is a risk that the technology will produce inaccurate, incomplete or biased conclusions about the paper. The peer review report and decision letters should reflect the personal assessment of the reviewers and editors of the submitted content. The reviewer is responsible and accountable for the content of his/her report. </li><li>AI tools may be used in a limited way to improve the quality of the language of the peer review report (for translation or language editing) in the context of peer review. If such use is made, the reviewer must declare the use when submitting the report. </li><li>Reviewers who suspect inappropriate or undisclosed use of generative AI in a submission should report their concerns to the editor.</li></ul>

Editors are obliged to ensure that the confidentiality of the manuscripts submitted to the journal is maintained during the evaluation process, and it is essential that the peer-reviewed work is not shared or used outside the parties involved in that process. (COPE - Code of Conduct and Best Practice Guidelines for Journal Editors) <a href="https://publicationethics.org/files/Code_of_conduct_for_journal_editors_Mar11.pdf" target="_blank">(COPE – Code of Conduct and Best Practice Guidelines for Journal Editors)</a>.<ul><li>Editors should not upload a submitted article, or any part of it, to generative Artificial Intelligence tools or Big Language Models to assist in the review, evaluation or decision-making process, as this may violate authors' privacy and property rights. </li><li>Managing the editorial review of a scientific article implies responsibilities that can only be attributed to humans. Generative AI or AI-assisted technologies should not be used by editors to assist in the evaluation or decision-making process of an article, as the critical thinking and original evaluation required for this task is beyond the scope of this technology and there is a risk that the technology will produce inaccurate, incomplete or biased conclusions about the article. The editor is responsible and accountable for the editorial process, the final decision and its communication to the authors.</li><li>Editors should not use generative AI tools to compose decision letters or abstracts of unpublished research. </li><li>Editors may use generative AI tools to help find appropriate reviewers.</li><li>If editors suspect the use of generative AI in a submitted manuscript or a submitted referee report, they should conduct an editorial review of the matter and consider the policy.</li></ul>

Istanbul Law Review is committed to upholding the highest standards of publication ethics and pays regard to Principles of Transparency and Best Practice in Scholarly Publishing published by the <a href="https://publicationethics.org/" target="_blank">Committee on Publication Ethics (COPE)</a>, the <a href="https://doaj.org/apply/transparency/#principles-of-transparency-and-best-practice-in-scholarly-publishing" target="_blank">Directory of Open Access Journals (DOAJ)</a>, the <a href="https://oaspa.org/" target="_blank">Open Access Scholarly Publishers Association (OASPA)</a>, and the <a href="https://www.wame.org/" target="_blank">World Association of Medical Editors (WAME)</a> on <a href="https://publicationethics.org/resources/guidelines-new/principles-transparency-and-best-practice-scholarly-publishing" target="_blank">https://publicationethics.org/resources/guidelines-new/principles-transparency-and-best-practice-scholarly-publishing</a>All parties involved in the publishing process (Editors, Reviewers, Authors and Publishers) are expected to agree on the following ethical principles.All submissions must be original, unpublished (including as full text in conference proceedings), and not under the review of any other publication synchronously. Each manuscript is reviewed by one of the editors and at least two referees under double-blind peer review process. Plagiarism, duplication, fraud authorship/denied authorship, research/data fabrication, salami slicing/salami publication, breaching of copyrights, prevailing conflict of interest are unnethical behaviors.All manuscripts not in accordance with the accepted ethical standards will be removed from the publication. This also contains any possible malpractice discovered after the publication. In accordance with the code of conduct we will report any cases of suspected plagiarism or duplicate publishing.

Ethics

<div>The journal adheres to the highest standards in research ethics and follows the principles of international research ethics as defined below. The authors are responsible for the compliance of the manuscripts with the ethical rules.- Principles of integrity, quality and transparency should be sustained in designing the research, reviewing the design and conducting the research.- The research team and participants should be fully informed about the aim, methods, possible uses and requirements of the research and risks of participation in research.- The confidentiality of the information provided by the research participants and the confidentiality of the respondents should be ensured. The research should be designed to protect the autonomy and dignity of the participants.- Research participants should participate in the research voluntarily, not under any coercion.- Any possible harm to participants must be avoided. The research should be planned in such a way that the participants are not at risk.- The independence of research must be clear; and any conflict of interest or must be disclosed.- In experimental studies with human subjects, written informed consent of the participants who decide to participate in the research must be obtained. In the case of children and those under wardship or with confirmed insanity, legal custodian’s assent must be obtained.- If the study is to be carried out in any institution or organization, approval must be obtained from this institution or organization.- In studies with human subject, it must be noted in the method’s section of the manuscript that the informed consent of the participants and ethics committee approval from the institution where the study has been conducted have been obtained.</div>

It is authors’ responsibility to ensure that the article is in accordance with scientific and ethical standards and rules. And authors must ensure that submitted work is original. They must certify that the manuscript has not previously been published elsewhere or is not currently being considered for publication elsewhere, in any language. Applicable copyright laws and conventions must be followed. Copyright material (e.g. tables, figures or extensive quotations) must be reproduced only with appropriate permission and acknowledgement. Any work or words of other authors, contributors, or sources must be appropriately credited and referenced.All the authors of a submitted manuscript must have direct scientific and academic contribution to the manuscript. The author(s) of the original research articles is defined as a person who is significantly involved in “conceptualization and design of the study”, “collecting the data”, “analyzing the data”, “writing the manuscript”, “reviewing the manuscript with a critical perspective” and “planning/conducting the study of the manuscript and/or revising it”. Fund raising, data collection or supervision of the research group are not sufficient roles to be accepted as an author. The author(s) must meet all these criteria described above. The order of names in the author list of an article must be a co-decision and it must be indicated in the <a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/BD7F3551BBE543F7A0E7628427A827AE" target="_blank">Copyright Agreement Form.</a> The individuals who do not meet the authorship criteria but contributed to the study must take place in the acknowledgement section. Individuals providing technical support, assisting writing, providing a general support, providing material or financial support are examples to be indicated in acknowledgement section.All authors must disclose all issues concerning financial relationship, conflict of interest, and competing interest that may potentially influence the results of the research or scientific judgment.When an author discovers a significant error or inaccuracy in his/her own published paper, it is the author’s obligation to promptly cooperate with the Editor to provide retractions or corrections of mistakes.

Editor-in-Chief evaluates manuscripts for their scientific content without regard to ethnic origin, gender, sexual orientation, citizenship, religious belief or political philosophy of the authors. He/She provides a fair double-blind peer review of the submitted articles for publication and ensures that all the information related to submitted manuscripts is kept as confidential before publishing.Editor-in-Chief is responsible for the contents and overall quality of the publication. He/She must publish errata pages or make corrections when needed.Editor-in-Chief does not allow any conflicts of interest between the authors, editors and reviewers. Only he has the full authority to assign a reviewer and is responsible for final decision for publication of the manuscripts in the Journal.Reviewers must have no conflict of interest with respect to the research, the authors and/or the research funders. Their judgments must be objective.Reviewers must ensure that all the information related to submitted manuscripts is kept as confidential and must report to the editor if they are aware of copyright infringement and plagiarism on the author’s side.A reviewer who feels unqualified to review the topic of a manuscript or knows that its prompt review will be impossible should notify the editor and excuse himself from the review process.The editor informs the reviewers that the manuscripts are confidential information and that this is a privileged interaction. The reviewers and editorial board cannot discuss the manuscripts with other persons. The anonymity of the referees must be ensured. In particular situations, the editor may share the review of one reviewer with other reviewers to clarify a particular point.

Only those manuscripts approved by its every individual author and that were not published before in or sent to another journal, are accepted for evaluation.Submitted manuscripts that pass preliminary control are scanned for plagiarism using iThenticate software. After plagiarism check, the eligible ones are evaluated by editor-in-chief for their originality, methodology, the importance of the subject covered and compliance with the journal scope.The editor hands over the papers matching the formal rules to at least two national/international referees for double-blind peer review evaluation and gives green light for publication upon modification by the authors in accordance with the referees’ claims.

Peer Review

Only those manuscripts approved by its every individual author and that were not published before in or sent to another journal, are accepted for evaluation.Submitted manuscripts that pass preliminary control are scanned for plagiarism using iThenticate software. After plagiarism check, the eligible ones are evaluated by Editor-in-Chief for their originality, methodology, the importance of the subject covered and compliance with the journal scope. Editor-in-Chief evaluates manuscripts for their scientific content without regard to ethnic origin, gender, sexual orientation, citizenship, religious belief or political philosophy of the authors and ensures a fair double-blind peer review of the selected manuscripts.The selected manuscripts are sent to at least two national/international external referees for evaluation and publication decision is given by Editor-in-Chief upon modification by the authors in accordance with the referees’ claims.Editor-in-Chief does not allow any conflicts of interest between the authors, editors and reviewers and is responsible for final decision for publication of the manuscripts in the Journal.Reviewers’ judgments must be objective. Reviewers’ comments on the following aspects are expected while conducting the review.- Does the manuscript contain new and significant information?- Does the abstract clearly and accurately describe the content of the manuscript?- Is the problem significant and concisely stated?- Are the methods described comprehensively?- Are the interpretations and consclusions justified by the results?- Is adequate references made to other Works in the field?- Is the language acceptable?Reviewers must ensure that all the information related to submitted manuscripts is kept as confidential and must report to the editor if they are aware of copyright infringement and plagiarism on the author’s side.A reviewer who feels unqualified to review the topic of a manuscript or knows that its prompt review will be impossible should notify the editor and excuse himself from the review process.The editor informs the reviewers that the manuscripts are confidential information and that this is a privileged interaction. The reviewers and editorial board cannot discuss the manuscripts with other persons. The anonymity of the referees is important.

1. Istanbul Law Review is a peer reviewed Journal that is published four times a year (in March, June, September and December) and indexed by ESCI and ULAKBİM.2. The articles sent to be published in our journal should not be published elsewhere, not be submitted to other journals simultaneously even with the purpose of evaluation. In this purpose, the authors shall also be reguired to sign a letter of undertaking. 3. Articles that are considered as unsuitable with the publication principles by the Editorial Board are sent back to the author without review. It is sufficient for the article to be rejected by the Editorial Board if the spelling errors are extraordinary, the domestic and foreign resources required for the subject being examined are not utilized, the scientific criteria academic ethical principles are not complied with, the article subject does not have an up-to-date significance in terms of theory and-or practice. 4. Before the article is sent to the referees, it is subjected to plagiarism examination withthe help of special computer programs. If the digital similarity rate is above 20%, it is sufficient for the rejection of the article within the scope of the editorial review of the related software report. 5. The article to be published in the journal must be written following the highest academic standards. In this context, intellectual background and effort at the level of doctoral or associate professorship thesis are expected from the authors. 6. Papers that are approved by the Editorial Board are submitted to reviewers in line with blind peer review principle. Authors are not informed about the identity of the referees. According to the assessments of the referees, the paper may be approved for publication, required to resubmission with amendments or rejected on the basis of inadequate quality. The referee phase does not have a minimum or maximum duration. The follow-up of this issue is a duty and authority exclusively belonging to the Editorial Board. 7. As a result of the referee reports, the final discretion and responsibility regarding whether the article will be finally published and if it will be published, in which issue of the Journal, the editorial board is responsible. The existence of a single rejectionnegative referee report is sufficient to prevent the article from being published. 8. The completion of the referee stage does not give authors the authority to request a private or official document indicating that the article will be published. The authors, with the awareness and responsibility of this issue, apply for their articles to be published in Istanbul Law Review and to be subjected to peer review. 9. Authors, must provide their titles, institutions, correspondence address, phone number and e-mail address. 10. The Review accepts and publishes articles written in Turkish and English. The articles must include Turkish and English abstracts consisting of at least 250 and at most 300 words and at least five and at most fifteen keywords must be added to the paper in Turkish and English languages. Following the abstracts, there must also be an extended summary of 600-800 words for all the articles both in English and Turkish. The article subject to the publication application must contain a maximum of 20,000 words, including footnotes. There is no minimum word limit. 11. The main text and footnotes must be written in Times New Roman. Font size for the main text should be 12 with 1,5 line spacing while footnotes are written in font size 10 with 1 line spacing. Footnotes are to be shown at the bottom of the page. Citations must be made based on the OSCOLA citation system. Otherwise, the article is sent back to the author to make corrections without a referee assignment. Abbreviations and other issues in Turkish articles must be made following the announced spelling rules. The mentioned citation rules can be accessed at https://dergipark.org.tr/tr/pub/ihm. 12. Author’s name must be written bottom right of the Turkish and English title of the paper and should end with a star symbol. Star footnote should consists of title and institution of the author and correspondence address, phone number and e- mail address. 13. The article must consist of a bibliography at the end and references need to be arranged in alphabetical order.14. To be limited with the copies published by the Faculty; financial rights regarding reproduction, distribution, public performance, derivative works and translation of the papers which are approved for publication are to be transferred to the faculty to be used on the print, auditory, digital etc. media, nationwide and worldwide. Authors accept not to receive any royalty payment.15. Besides articles, also translations may be published in the accepted languages. These papers might be approved or rejected by the Editorial Board. Original text of the translation and consent of the rightful owner are also should be enclosed with the translation. Translations are also subject to the assessment of reviewers.16. Papers should be sent to iuhfdergiler@istanbul.edu.tr in Microsoft Word (*.doc, *.docx) file type.17. Only one article of an applicant in the same publication year (4 issues) could be subject to peer review.18. The Editorial Board determines the articles to be included in one issue of the journal by considering criteria such as the purpose of maintaining the balance of Private LawPublic Law, the date of submission of the article to the Journal, the date of completion of the referee stage, the timeliness of the article subject, and the proportional balance on whether the authors are members of Istanbul University.19. The Editorial Board makes the utmost effort to publish all issues with the same number of articles as possible. An article that has completed all the necessary steps for publication, including the layout stage, as of the date of publication of an issue, could not be published in the relevant issue in terms of the number of articles, however, after a certain period after the relevant issue, within the framework of the system called Online-First it is published digitally before the issue is released.

Author Guidelines

Before beginning the online submission process please read the Information for Authors and make sure you have the followings available:Article submissions should be submitted directly to the e-mail address <a href="mailto:iuhfdergiler@istanbul.edu.tr" target="_blank">iuhfdergiler@istanbul.edu.tr</a>Cover letter to the editor<ul type="disc"> <ul type="circle"> <li>The category of the manuscript</li> <li>Confirming that “the paper is not under consideration for publication in another journal”.</li> <li>Including disclosure of any commercial or financial involvement.</li> <li>Confirming that the statistical design of the research article is reviewed.</li> <li>Confirming that last control for fluent English was done.</li> <li>Confirming that journal policies detailed in Information for Authors have been reviewed.</li> <li>Confirming that the references cited in the text and listed in the references section are in line with OSCOLA.</li> </ul> </ul><a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/BD7F3551BBE543F7A0E7628427A827AE" target="_blank">Copyright Agreement Form</a>Permission of previous published material if used in the present manuscript<a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/6444C75BA6B344EBB1496510B0BAF8A3" target="_blank">Title page</a><ul type="disc"> <ul type="circle"> <li>The category of the manuscript</li> <li>The title of the manuscript both in the languge of the manuscript and in English</li> <li>All authors’ names and affiliations (institution, faculty/department, city, country), e-mail addresses</li> <li>Corresponding author’s email address, full postal address, telephone and fax number</li> <li>ORCIDs of all authors.</li> </ul> </ul>Main Manuscript Document<ul type="disc"> <ul type="circle"> <li>The title of the manuscript both in the language of manuscript and in English</li> <li>Abstracts: 250-30 words</li> <li>Key words: 5-15 words </li> <li>Extended Abstract (600-1000 words) in English (for the articles which are not in English)</li> <li>Main article sections</li> <li>Grant Support (if exists)</li> <li>Conflict of Interest (if exists)</li> <li>Acknowledgement (if exits)</li> <li>References</li> <li>All tables, illustrations (figures) (including title, description, footnotes)</li> </ul> </ul>

Although references to review articles can be an efficient way to guide readers to a body of literature, review articles do not always reflect original work accurately. Readers should therefore be provided with direct references to original research sources whenever possible. On the other hand, extensive lists of references to original work on a topic can use excessive space on the printed page. Small numbers of references to key original papers often serve as well as more exhaustive lists, particularly since references can now be added to the electronic version of published papers, and since electronic literature searching allows readers to retrieve published literature efficiently. Papers accepted but not yet included in the issue are published online in the Early View section and they should be cited as “advance online publication”. Citing a “personal communication” should be avoided unless it provides essential information not available from a public source, in which case the name of the person and date of communication should be cited in parentheses in the text. For scientific articles, written permission and confirmation of accuracy from the source of a personal communication must be obtained.Reference Style and FormatIstanbul Law Review offers referencing style OSCOLA. OSCOLA (Oxford Standard for the Citation of Legal Authorities) is published by the University of Oxford and detail and examples about the style can be found at https://www.law.ox.ac.uk/research-subject-groups/publications/oscolaOSCOLA Reference ExamplesPrimary SourcesDo not use full stops in abbreviations. Separate citations with a semi-colon.CasesGive the party names, followed by the neutral citation, followed by the Law Reports citation (eg AC, Ch, QB). If there is no neutral citation, give the Law Reports citation followed by the court in brackets. If the case is not reported in the Law Reports, cite the All ER or the WLR, or failing that a specialist report.Corr v IBC Vehicles Ltd [2008] UKHL 13, [2008] 1 AC 884.R (Roberts) v Parole Board [2004] EWCA Civ 1031, [2005] QB 410.Page v Smith [1996] AC 155 (HL).When pinpointing, give paragraph numbers in square brackets at the end of the citation. If the judgment has no paragraph numbers, provide the page number pinpoint after the court.Callery v Gray [2001] EWCA Civ 1117, [2001] 1 WLR 2112 [42], [45].Bunt v Tilley [2006] EWHC 407 (QB), [2006] 3 All ER 336 [1]–[37].R v Leeds County Court, ex p Morris [1990] QB 523 (QB) 530–31.If citing a particular judge:Arscott v The Coal Authority [2004] EWCA Civ 892, [2005] Env LR 6 [27] (Laws LJ).Statutes and statutory instrumentsAct of Supremacy 1558.Human Rights Act 1998, s 15(1)(b).Penalties for Disorderly Behaviour (Amendment of Minimum Age) Order 2004, SI 2004/3166.EU legislation and casesConsolidated Version of the Treaty on European Union [2008] OJ C115/13.Council Regulation (EC) 139/2004 on the control of concentrations between undertakings(EC Merger Regulation) [2004] OJ L24/1, art 5.Case C–176/03 Commission v Council [2005] ECR I–7879, paras 47–48.European Court of Human RightsOmojudi v UK (2009) 51 EHRR 10.Osman v UK ECHR 1998–VIII 3124.Balogh v Hungary App no 47940/99 (ECHR, 20 July 2004).Simpson v UK (1989) 64 DR 188.Secondary SourcesBooksGive the author’s name in the same form as in the publication, except in bibliographies, where you should give only the surname followed by the initial(s). Give relevant information about editions, translators and so forth before the publisher, and give page numbers at the end of the citation, after the brackets.Thomas Hobbes, Leviathan (first published 1651, Penguin 1985) 268.Gareth Jones, Goff and Jones: The Law of Restitution (1st supp, 7th edn, Sweet &amp; Maxwell 2009).K Zweigert and H Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998).Contributions to edited booksFrancis Rose, ‘The Evolution of the Species’ in Andrew Burrows and Alan Rodger (eds),Mapping the Law: Essays in Memory of Peter Birks (OUP 2006).EncyclopediasHalsbury’s Laws (5th edn, 2010) vol 57, para 53.Journal articlesPaul Craig, ‘Theory, “Pure Theory” and Values in Public Law’ [2005] PL 440.When pinpointing, put a comma between the first page of the article and the page pinpoint.JAG Griffith, ‘The Common Law and the Political Constitution’(2001) 117 LQR 42, 64.Online journalsGraham Greenleaf, ‘The Global Development of Free Access to Legal Information’ (2010)1(1) EJLT &lt; http://ejlt.org//article/view/17 &gt; accessed 27 July 2010.Command papers and Law Commission reportsDepartment for International Development, Eliminating World Poverty: Building our Common Future (White Paper, Cm 7656, 2009) ch 5.Law Commission, Reforming Bribery (Law Com No 313, 2008) paras 3.12–3.17.Websites and blogsSarah Cole, ‘Virtual Friend Fires Employee’ (Naked Law, 1 May 2009)&lt;www.nakedlaw.com/2009/05/index.html&gt; accessed 19 November 2009.Newspaper articlesJane Croft, ‘Supreme Court Warns on Quality’ Financial Times (London, 1 July 2010) 3.

<div><a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/2BB9074E09174E55BE3CA4941309A672" target="_blank">Copyright Agreement Form</a><a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/F6FB8940C9B54CC08CDC740CCFC6B8F3" target="_blank">Title Page</a></div>

<div>Ensure that the following items are present:● Cover letter to the editor<ul><li>The category of the manuscript</li><li>Confirming that “the paper is not under consideration for publication in another journal”.</li><li>Including disclosure of any commercial or financial involvement.</li><li>Confirming that the statistical design of the research article is reviewed.</li><li>Confirming that last control for fluent English was done.</li><li>Confirming that journal policies detailed in Information for Authors have been reviewed.</li><li>Confirming that the references cited in the text and listed in the references section are in line with OSCOLA</li></ul>● <a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/BD7F3551BBE543F7A0E7628427A827AE" target="_blank">Copyright Agreement Form</a>● Permission of previously published copyrighted material if used in the present manuscript● <a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/D4FC914AF17F43D6A40E18412A5E6731" target="_blank">Title page</a><ul><li>The category of the manuscript</li><li>The title of the manuscript</li><li>All authors’ names and affiliations (institution, faculty/department, city, country), e-mail addresses</li><li>Corresponding author’s email address, full postal address, telephone and fax number</li><li>ORCIDs of all authors.</li></ul>● Main Manuscript Document<ul><li>The title of the manuscript</li><li>Abstract: 250-300 words</li><li>Extended Summary (600-1000 words) in English for the articles which are not in English </li><li>Key words: 5-15 words</li><li>Main article sections</li><li>Grant support (if exists)</li><li>Conflict of interest (if exists)</li><li>Acknowledgement (if exists)</li><li>References</li><li>All tables, illustrations (figures) (including title, description, footnotes)</li></ul>​</div>

Issue Type	Regular
Editor(s)	Abuzer Kendigelen, Ali Paslı
Full Text (PDF)

Istanbul Law Review

VOLUME 77, ISSUE 2, 2019