Turkey: The Constitutional Court Have Not Annulled The Provision Pertaining To The Obligation To Recruit An Attorney At Law For Certain Joint Stock Companies

The Constitutional Court have rejected the application with regard to the annulment of the article 35/3 of the Legal Profession Act Numbered 1136 - which requires appointment of an attorney- amended by the Law Numbered 5728 for certain joint stock companies.

Grounds of annulment application

An application had been made by Trabzon 2nd Criminal Court of Peace for the annulment of the relevant article with the case numbered 2010/10 before the Constitutional Court. The grounds for these applications were the incompatibility allegations of the act with the essential constitutional principles, such as state of law, equality, freedom of contract, right to privacy and legality of the penalties. Trabzon 2nd Criminal Court of Peace asserted in its challenge that the article 35/3 of the Legal Profession Act was contrary to the above-mentioned fundamental constitutional principles, which are higher-order legal norms.

Paragraph 3 of Article 35 of the Legal Profession Act

In the article 35/3 of the Legal Profession Act of which the annulment is requested by Trabzon 2nd Criminal Court of Peace, it is initially stipulated that all person with the capacity of filing a lawsuit may file a lawsuit and pursue it on their own without hiring any legal representative - the litigant in person. However, there is an exception to this general rule of litigant in person, for the certain joint stock companies, with the provision stating; "joint stock companies of which the authorized capital is equal to the fivefold or more of the authorized start-up capital mentioned in Article 272 of the Turkish Commercial Code and building societies which have one hundred or more members should recruit an attorney at law".

The relevant article also stipulates a sanction for the persons acting contrary to this provision. Pursuant to the article 35/3, "the public prosecutor shall determine an administrative fine on a monthly basis [...] for the institutions which do not recruit an attorney at law and consequently violates this paragraph".

Constitutional Court's decision

The Constitutional Court states the grounds for the rejection of the application with its decision numbered E. 2010/10 K. 2011/10 and dated 30.06.2011 which was published in the Official Gazette dated 18.02.2012 and numbered 28208.

The Constitutional Court firstly explains the social and economic importance of the joint stock companies. According to the Constitutional Court, "shareholders, employers, creditors and society have different benefits in joint stock companies and these companies with their immense capital and with the possibility provided by the limited liability and legal entity, play an important role in the progress of states." This role requires a balance between the benefits of the parties and also requires modern business management principles. In this framework, the Constitutional Court emphasizes that the state have a regulatory duty in the process of the national economy and general well being of the society to protect public interest and the article 35/3 of the Legal Profession Act should be evaluated in this regard.

The principle of state of law is associated with the above-mentioned explanations by the Constitutional Court. The Constitutional Court states that the scope of the obligation to recruit an attorney of law for certain joint stock companies is not ambiguous, but explicit with the justification of the relevant article where it is stipulated that "the purpose of this provision is to assure that joint stock companies are benefited from legal counseling not only during the lawsuits procedure but also before the litigation arise as a preventive legal measure because most of the litigations and legal problems arise out of omission of legal formality or failure to anticipate legal risks beforehand or during the creation of legal relations between the parties."

Subsequent to these explanations concerning the principle of state of law, the Constitutional Court evaluates the principle of equality. In this framework, the Constitutional Court states the purpose of the principle of equality as "essentially same or similar rules for same legal positions, matters and prevention of discrimination before the laws. The Constitutional Court emphasizes in its decision that the principal of equality should be understood as "legal equality". Hence, same provisions should be applied for the persons with same status -according to their different circumstances. As for the joint stock companies, even if the elements are same for all joint stock companies, because the joint stock companies with a large amount of authorized capital plays distinctive and exceptional role in the social and economic life in the state, these should be evaluated separately from the joint stock companies with a small amount of authorized capital. Hence, the Constitutional Court underlines the differentiation between joint stock companies with a large amount of authorized capital and joint stock companies with a small amount of authorized capital and clarifies that they are not on the same "legal status".

Another matter that is provided as grounds by Trabzon 2nd Magistrate Court of Peace is legality of penalties. The Constitutional Court states that the sanction for the non-compliance of the recruitment of attorney at law for the obligors is explicitly regulated under the article 35/3 of the Legal Profession Act and this regulation had been enacted before the contravening act was committed. Hence the relevant provision cannot be construed as being contradictory with the principle of no punishment without law.

The Constitutional Court lastly states on the subject of amendment to the secondary legislation of Legal Profession regulation, which made amendments to the article 35/3 of the Legal Profession Act -a primary legislation. The Constitutional Court indicates that consistency evaluation of a secondary legislations -The Legal Profession Regulation- to the Constitution is not one of the statutory duties of Constitutional Court to consider thus there is no need to make any remark on this matter.


According to our opinion, the decision of the Constitutional Court concerning the rejection of the annulment application is a fair, lawful and proper decision because the joint stock companies with large amount of authorized capital have important economic and social functions for the society and national interest. As is explained in detail by the Constitutional Court, we hold the same opinion with the court and consider that the relevant provision is not in contradiction with the essential constitutional principles.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions