A. Rule Governing the Issuance of Specially Stamped Passports to Lawyers

Subject Matter Rule

The rule in question stipulates that lawyers who are investigated or prosecuted for certain crimes should not be given special stamped passports, limited to the duration of the investigation or prosecution.

Reason for Cancellation Request

In summary, in the petition; It has been argued that the rule in question limits the freedom of travel by stipulating certain conditions for lawyers in terms of holding a special stamped passport, and that the rule is unconstitutional.

Court’s Evaluation

As stipulated in the rule, it is clear that not giving a specially stamped passport to the person concerned on the grounds that he is being investigated or prosecuted for certain crimes does not result in the person being described as a criminal and penal sanction.

The fact that the legislator stipulates certain conditions while making arrangements regarding the persons who can benefit from special stamped passports is only a limitation for obtaining such passports. Accordingly, the rule in question, which can be summarized as stipulating certain conditions in order to reach the opportunities provided by being able to go abroad as a special stamped passport holder, does not have an aspect that restricts the freedom to go abroad, which is guaranteed in Article 23 of the Constitution.

Since it can be said that lawyers who are under investigation or prosecution for certain crimes and those who are not, are in a similar situation to make comparisons, it can be said that a difference is created between them by the rule.

The fact that lawyers within the scope of the rule subject to the case cannot obtain special stamped passports is not of a permanent nature and is limited to the duration of the investigation or prosecution carried out for the aforementioned crimes.

A suitable balance has been established between the aim pursued by foreseeing the aforementioned difference in the conditions regarding the acquisition of the opportunity to obtain a special stamped passport and the means envisaged by the rule. In this context, according to the purpose of foreseeing the said difference brought by the rule, an excessive burden was not imposed on the lawyers within the scope of the rule. In this respect, there is nothing contrary to the principle of equality in the rule.

For the reasons explained, the Constitutional Court decided that the rule was not unconstitutional and that the request for annulment was rejected.

B. The Rule Restricting the Freedom to Travel Abroad

Subject Matter Rules

Those whose passports have been revoked due to their membership or affiliation with or affiliation with structures, formations or groups, or terrorist organizations that are determined to pose a threat to national security in the rules subject to the case, and those whose passports have been taken administrative action against being issued a passport, shall be made by law enforcement units, provided that they meet the conditions specified in the rules. According to the results of the research, it has been regulated that a passport can be issued by the Ministry of Interior.

Reason for Cancellation Request

In summary, in the petition; It has been argued that the rules are contrary to the Constitution, stating that the Constitution gives authority to the administration in an area where the Constitution explicitly stipulates a judge’s decision, eliminates the opportunities for individuals to work abroad, and creates a disproportionate intervention in their private lives.

Court’s Evaluation

Article 23 of the Constitution states that a citizen’s freedom to go abroad can only be limited by the decision of a judge, depending on the reason for a criminal investigation or prosecution.

Since certain conditions are stipulated by the rules in question for those who are allowed to obtain a passport, the rules impose a limitation on the freedom to go abroad. Granting this opportunity to some people by the rules results in the fact that passports cannot be obtained for those who are not given the opportunity, therefore, the rules in question impose a limitation on the aforementioned freedom for these people.

A regulation regarding the freedom to go abroad, which is one of the dimensions of freedom of movement and which is under special guarantee, must not be contrary to the limitations stated in Article 13 of the Constitution and the guarantee envisaged here.

It is clear that the rules subject to the case restrict the issuance of passports to individuals regardless of the reason for the criminal investigation and prosecution and the decision of the judge.

Considering that the freedom to go abroad can only be limited due to a criminal investigation or prosecution and is subject to the guarantee of a judge’s decision pursuant to Article 23 of the Constitution, it is seen that some of the reasons for restriction stipulated by the rules in the case do not comply with the limitations stated in the aforementioned article of the Constitution and are against the guarantee of the judge’s decision attached to these reasons. . In this respect, the rules limit the freedom to go abroad in violation of the Constitution.

For the reasons explained, the Constitutional Court decided that the rules were unconstitutional and that they were annulled, and that the decision would enter into force one year after its publication in the Official Gazette.

Uninterrupted crimes are divided into two as compulsory uninterrupted crime and possible uninterrupted crime in the doctrine.
Mandatory uninterrupted crime naturally occurs for a certain period of time with the realization of the act in the legal definition.
It is called continuous crime. The crime of deprivation of personal liberty (Article 109 of the TCK), housing
The crime of violating the immunity (Article 116 of the TCK) is a compulsory uninterrupted crime. A possible uninterrupted crime is normally not a continuous crime, but
In some cases, crimes that are committed without interruption are called probable uninterrupted crimes. E.g
TCK m. Although the crime of gratuitous use in 163/1 is not a continuous crime, art. gratuitous in 163/3
The crime of exploiting is carried out as an uninterrupted crime. Electricity available on subscription basis
energy, water or natural gas without the consent of the owner and determining the amount of consumption
If it is consumed in a way that prevents it, since the gratuitous benefit continues during the usage period, m.
163/3 takes place in the form of uninterrupted crime.

Salary Seizure is regulated in Article 83 of the EBL. Here, in order to send a salary lien to the workplace of the debtor, the follow-up must be finalized. After the proceeding is finalized, the creditor from the enforcement office decides to place a lien on the debtor’s salary. However, no more than ¼ of his salary can be deducted without his consent.

With Article 90 and its continuation of Law No. 5510, it has been regulated that retirement pensions can only be seized due to alimony and SGK premium debts, and cannot be blocked or seized due to other receivables. In this case, the lien cannot exceed ¼ of the pension.

In addition, the consent of the debtor is required to be able to place a lien on the pension. After the Supreme Court follow-up is finalized, the consent given during the foreclosure is accepted as a valid consent. On the other hand, it may be possible for the bank to deduct the entire salary deposited in the bank account due to salary lien. The person under the threat of foreclosure should also notify the bank that the account in the bank is a salary account.

As a rule, employers are prohibited from employing uninsured workers. Since the insurance is the social security of the worker, the legislator has foreseen an obligation in this direction in case of abuse of this situation by the employer and stipulated a certain sanction if the employer does not comply with the rule. However, in practice, workers are unfortunately employed for various reasons without insurance or with under-reporting of insurance. It is possible for workers who cannot object to this situation while working, to file a lawsuit to ensure that their retroactive insurance is deposited after leaving the job, with a service determination case. Service determination lawsuit is a lawsuit filed by the worker who is employed without an insurance notification and without paying the premiums, in order to compensate for this period of time he worked without insurance, as if he had worked as an insured.

Worker Who Wants to File a Case for Detection of Service,

The defendant must make sure that the workplace is one of the workplaces that meet the conditions in accordance with the provisions of Social Insurance and General Health Insurance No. 5510.
The service must have been seen as uninsured by the claimant worker and in this case it must not have been detected before by SSI.
The subject of the lawsuit regarding the service determination case should be long-term insurances.
The worker must file the case within 5 years. (There are exceptional cases.)
The plaintiff worker, who has filed a service determination lawsuit, is obliged to prove the dates and work he claims to have worked. Witness statements are of great importance in the determination and proof of this issue. Proof in the service determination lawsuit may be possible with the testimony of the plaintiff worker, his colleague with whom he works, or the testimony of the worker or workers working in the neighboring workplace. In practice, the Courts select 4-5 (the number of witnesses may increase or decrease depending on the length of service) payroll witness and invite them to the hearings to be heard in the case.

The worker who filed a service determination case (if the worker has passed away, his legal heirs – mother, father, spouse, brother, etc.) opens the case against the employer, and if the employer has more than one, against each of them.

Status of the usufruct owner

Article 700 – In case a shareholder establishes usufruct right on his/her own share, if one of the other stakeholders requests to share within three months starting from the notification of the establishment of the usufruct right; The usufruct right in sharing through sale continues on the price to be deducted for the relevant share.

End Time of the Goods Regime
In order to file a lawsuit for the liquidation of the property regime; The existing property regime between the parties must come to an end. The end of the property regime is not the same as the end of the marriage union. Sometimes
The existing property regime between spouses ends before the marriage union ends.
Although the marriage union continues, the existing property regime
may end.
In which cases the current property regime between spouses will end
It is shown in Article 225 of TMK. Accordingly, the situations that terminate the goods regime;
a) In case of death of one of the spouses: On the date of death, both the marriage union and the property regime end as of the date of death.
b) The current property regime between the spouses and the property regime agreement
if they choose one of the other regimes set forth in the law, except:
On the date this new regime was elected, the old property regime among them also came to an end.
it melts. For example, if the spouses got married on 01.01.2004 and the property regime
Let’s say they don’t have a contract. According to the law, they will be subject to the regime of participation in compulsorily acquired property from the date of their marriage. Spouses shown in the law on 01.01.2012
choose one of the other property regimes, for example property separation regime
in case of; Although the marriage union continues, the date of marriage is 01.
The regime of joining the acquired goods, which started on 01.2004, began on 01.01.2012 when the property separation regime was selected with the property regime agreement.
will have ended.
c) In case of divorce and annulment of marriage:
The existing property regime between the spouses at the date of the annulment action is also
will end. If the marriage union is; It will end on the date of finalization of the decision regarding the annulment of divorce or marriage, not on the date when the divorce or annulment of marriage lawsuits are filed.
d) Decision of the judge to switch to “separation of property”
In case of: When the spouses want together, the existing property regime can be applied between them.
they can change or remove them by adhering to legal limits. For example before
Although they have chosen the property separation regime, they may choose one of the property partnership or other regimes specified in the Law later on. However, in the law
In some exceptional cases (TMK m. 206 et al.), one of the spouses
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current property regime with the decision of the family court judge
It can be converted into a “separation of property regime”. In this case, the marriage union
Although the existing property regime between the parties continues (for example, participation in acquired properties, property partnership regime or shared property)
separation regime) on the date when the case for transition to the extraordinary property regime was filed
will end.

Types of Property Regime Litigation

Cases regarding the property regime, which are still being heard in family courts and which are under appeal at the Court of Cassation; “transition case to extraordinary property regime” (TMK art. 206 vd), “value increase share receivables case”
(TMK m. 227), “litigation for participation in residual value” (TMK m. 231-236),
and the “contribution receivable lawsuit”. One of these cases, “the case of transition to the extraordinary property regime is not a debt case, but the existing one between the spouses.
changing the property regime, changing the existing property regime with the decision of the judge
It is a case that aims to transform the “separation” regime. Three other cases
if; These are lawsuits aimed at the collection of a receivable based on personal rights.
Information about these cases that will be useful in practice is briefly summarized.

Commodity Regime Start Date
In lawsuits regarding the liquidation of the property regime, such as the contribution fee claim, the value increase share lawsuit, the surplus value participation claim lawsuit.
First of all, the following issues should be determined: According to which property regime rules will these cases be resolved? Rules will be applied in the case
What date does the property regime begin and end between the parties?
has it reached?
If there is a property regime selected by contract between the parties, that property
the rules regarding the goods regime, a property determined by the goods regime contract.
property to which they are obligated by law
regime rules will apply. The request was made by the previous Civil Code (743
to an asset acquired during the period in force (TMK No.
is intended for and no other goods regime has been accepted by the parties; “Separation of goods”, which was accepted as a rule regime in our previous Law
According to the regime of the new Civil Code (TMK No. 4721), if the request
It is accepted as a legal property regime if it is for a property acquired after its entry into force and no other property regime has been chosen by the parties.
litigation in accordance with the rules of the “joining in acquired property” regime
will be resolved. .
What date did the property regime subject to liquidation start between the parties? If the parties have not made a separate contract; Those who got married before the date of 01. 01. 2002, when the Civil Law No. 4721 came into force
between the spouses from the date of their marriage with the previous Marital No. 743
They will be subject to the property separation regime, which is accepted as the legal property regime in our law, and this regime will be subject to the new Civil Code No. 4321.
entered into force on 01.02.2002 and ended on the same date with a new
acquired property stipulated by our Civil Code as a legal property regime.
regime of participation in goods will begin. Spouses at a later date
also in case they choose another regime specified in the law; on the date of the current goods regime goods regime contract between them
will end and the new regime they have chosen will begin. Property regime agreement between spouses who got married after 01. 01. 2002
if not done; regime of participation in property acquired at the time of marriage
will start.

Case for Transition to the Extraordinary Property Regime
Spouses can legally sign a property regime agreement “together” whenever they wish.
the right to change the existing property regime between them within the borders
they have. However, in some cases, the existing goods regime between them
It may be necessary to change, change without the spouses acting “together”. If the spouses have chosen one of the regimes of participation in the acquired property, shared property separation, property partnership or because they did not make a property regime contract, they are subject to the regime of participation in the acquired properties in accordance with the law.
if they have been; on changing the existing goods regime between them
even if they do not have a common demand, in some cases the existing
The transformation of the property regime into the “separation of property” regime is regulated in our law as an extraordinary property regime. For example, among
In the event of the bankruptcy of one of the spouses with the “company of property” regime, the property partnership regime will automatically turn into a property separation regime with the bankruptcy decision (TMK art. 209). From spouses who accept the property partnership
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creditor, who is in enforcement proceedings against someone, in the implementation of the lien
if he suffers a loss, he will be able to ask the judge to decide on “separation of property” (TMK Article 210). If one of the spouses is constantly deprived of the power of discrimination; legal representative is TMK
According to article 206, he will be able to file a lawsuit for the separation of property. TMC 206.
If there is a justifiable reason indicated in the article or similar, by the family court at the request of one of the spouses.
It may be decided to transform the existing property regime between spouses into “property separation”. The importance of this case is as follows: In the event that this case is accepted and the decision is finalized, although the marriage union continues between the spouses, other cases for the liquidation of the property regime will be opened,
basis may be examined.
Officer in the case of transition to the extraordinary property regime (separation of property)
The court is a family court and is subject to fixed court fees and fixed attorney’s fees. The competent court is if any of the spouses
settlement court (TMK art. 207).

Residual Value Participation Claim
The legal basis of this case is the articles of the Turkish Civil Code numbered 4721 regulating the regime of participation in acquired goods (art.
218-241), especially 231-236. articles and Supreme Court decisions. The regime of participation in the goods acquired with the goods regime contract.
in accordance with the law because they have chosen or did not make a property regime contract.
(TMK m. 202) is a case for the spouses or their legal heirs, who are considered to have chosen this regime, to receive money based on personal rights that they can demand from each other when the property regime ends.
The most important feature that distinguishes this lawsuit from the lawsuit for “contribution” receivables and “value increase share” claims; one of the parties to the other
the burden of proving that he contributed to a property or property belonging to
not below. The legislator has spouses in this property regime.
They have given the right to claim mutual money based on personal rights regarding some of the goods they own (TMK Article 219). For this concrete
a contribution does not need to be proven. When the goods regime ends; As a rule, half of the “residual value” (TMK m. 231) belonging to the defendant, one of the other spouses or his heirs, of each of the spouses or their heirs.
They may request it as “receivables to participate in residual value”. Article 231 of the TMK
The acquired goods for which the residual value will be found are explained in article 219. Social security or social assistance institutions and organizations or
chests and the like, which were established for the purpose of helping the personnel,
loss of working power through payments (such as pensions)
compensation paid for; Although it is counted among the “acquired goods” in our law (TMK Article 219), all of them are acquired property.
is not, some of it is personal property, how is this separation process?
It is explained in article 228.