Turkey: The Draft Penal Code Is A Cold Blow On Intellectual Property Protection

Last Updated: 30 April 1998
Turkish Ministry of Justice presented the Government the draft Penal Code to replace the existing criminal code adopted from the fascist Italian Penal Code known as the Zanardelli Code dated 1889. This draft has been prepared by the leading criminal academicians after (10) years of voluntary works over the weekends.

We understand from the press that the draft has been accepted and signed as a proposal to the parliament by all the ministers. Delay by one minister was publicly criticised by the others as it was causing delay to a work prepared after many years of efforts. We also understand that the President Demirel is also keen to get this proposal voted in the parliament as part of modernisation and democratisation a number of laws in the country.

The minister of justice who was also the minister to start the draft in 1987 refused to put the draft into discussion because he said the criticism would delay the new code for another 10 years which he did not want to allow. He also stated that the criticism at times was not constructive but destructive.

The draft is in the agenda of the Parliament and will go through various preliminary discussions before it gets to be discussed by the parliament after which it may become the new law if the President Demirel did not return it to the parliament for re discussions.

In the general justification of the draft it is said that the draft aims to create the national criminal code of the country and also putting all the amendments made in different disciplines and at time in panic circumstances in an orderly way. The draft also aims to improve the reforms brought into the Turkish Criminal system by the Law 647 regarding enforcement of the sentences. The law 647 is the main cause for the complaints among the legal practitioners. It is the law that allows for commutation of imprisonment to fine for TL 10.000 per day one year corresponding to (3) Dollars etc.

I have not come across a schedule of comparative penalties for different types of crimes therefore it is not easy to see which types of crimes or offences that the draft is giving importance and priority. What is mentioned is the difference between the crimes and offences and the three different levels of imprisonment. The death penalty is being aborted and replaced by "heavy life long imprisonment".

What matters for the IP right holders are the following provisions which should be taken into consideration and necessary attempts should be made to have them amended in a manner to be or to remain deterrent.

1. Article 57 of the Draft describes the imprisonment and light imprisonment up to and including (2) years as short term imprisonment.

2. Article 61 of the Draft states that unless otherwise stated in the Law imprisonment of up to (2) years are light imprisonment.

3. Per Article 62 of the Draft: depending on the conditions of the crime, the personality of the culprit, and other relevant conditions the court may convert the short term imprisonment into :
(i) a fine calculated by TL 1Million to 2 Million per day for crimes and by TL 500.000 to 1 million per day for offences,
(ii) a compensation or return obligation,
(iii) to continue to a training or education institution for up to (2) years,
(iv) to prohibit from a profession or from entering into certain areas
(v) to withdraw of any licence for upto (2) years
(vi) subject to consent of the accused to order them to work for a public work for a period not exceeding (6) months,

It is significant that this Article also states that the penalties will be the penalties after conversion per this article.

4. Article 81 of the Draft allows for postponement of the imprisonment of upto (2) years provided the culprit has not been sentenced to imprisonment for more than (3) months. Sentence to monetary penalties does not prevent the postponement. However the culprit shall be made subject to a controlled liberty.

I do not think that any IP infringers can be put in prison because of the article 62 and 81 as the former requires the imprisonment up to (2) years commuted to fine and consider the culprit sentenced to a fined rather than imprisonment as a result of the commutation and the article 81 allows for postponement of imprisonment for less than (2) years and the previous monetary penalties do not prevent such postponement.

I do not think the Controlled Liberty can be easily enforced in the country either.

5. The Article 85/5 states that the Light imprisonment for more than one month (up to (2) years ) shall be time barred within (2) years from its occurrence. This will make the period for the copyright infringement cases subject to a (2) years statutory limitations and time bar. This period may be extended for half of the normal period in the vent certain investigative steps are taken, such as interrogation of the accused, indictment etc.

For the statutory limitations the higher limits of the penalties shall be considered. As a result the Patent, trademark and design rights violations may enjoy 5 years statutory limitation per article 85/4 because they at times require imprisonment more than (2) years whereas the copy right infringement requires only (1) year maximum imprisonment. Accordingly either an exemption for the copyright provisions or higher penalties similar to patent/trademark provisions should be sought for.

6. Article (92) of the draft maintains the same principle regarding the complaints and in addition it provides that filing a complaint versus one of the accused shall stop the time bar for the others.

7. Article 94 provides for a pre-payment as existed in the existing law whereby the accused is entitled to strike out a criminal investigation for a crime that require a light imprisonment or an imprisonment not exceeding one year.

According to this provision the copyright infringers shall be free by making a pre-payment of TL 90 million (currently $400) for the minimum imprisonment required and the monetary penalties. (i.e. TL 300 Million corresponding to $1400 currently ) Accordingly a pirate may get rid off the criminal sanctions by paying a total of TL 390 Million. However these are subject to update every year to make up for the depreciation due to the inflation.

The confiscation of the machinery used in these crimes still exist.

8. The draft modifies the Computer Crimes Provisions of the Turkish Criminal Code which provided certain deterrent protection to the Computer Programs. The existing law provides imprisonment from a minimum of (1) years to (5) years against the illegal obtaining of the computer software or breaking the locks of programs and using the computer to obtain an illegal benefit.

Articles 347, 348 and 349 are now clearly refined to unauthorised access to the computer systems, altering or destroying records and data and causing to malfunctioning of the systems. I do not think it is at all possible to enjoy any protection for the computer software under these provisions if they are accepted as they are.

The content of this article is to provide only a general information on the subject. Legal advice should be sought for any 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”

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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.