Legal Practitioner Zehra Ilgın ULUS
In these days, one of the most serious outbreaks of humankind is being witnessed globally. An epidemic, namely “Coronavirus (COVID-19)” first appeared in the city of Wuhan in China and then, it had an intercontinental spread from Asia to almost all European states and to United States. Under these circumstances, it was almost impossible for states to overcome this critical process by maintaining a normal procedure in daily lives of people. Therefore, since World Health Organization has declared Coronavirus (COVID-19) as “pandemic”, a number of particular measures have taken by state authorities.
Despite the fact that these precautions were primarily and mainly medical, it is substantially important for states to integrate “legal measures” with healthcare in order to regulate everyday life of people. Day to day businesses such as enforcement and bankruptcy proceedings, title deed transactions, conciliation processes, viewings and most significantly hearings contains not only the daily routine of lawyers but also a large part of the community. Therefore, in order to ensure the “social distancing” and other medical precautions it was also prior and vital for Turkey to take legal measures to prevent the spread of Coronavirus.
PROCESS OF ENFORCEMENT AND BANKRUPTCY LAW
In first place, in 22th of March 2020; Presidential Decision (Law No.2279) published in the Official Gazette, which confirmed enforcement and bankruptcy proceedings were stopped. Decision confirmed that; except executive proceedings related with child support payments, all countrywide ongoing enforcement and bankruptcy proceedings will be stopped and within this scope, it is also decided that new enforcement and bankruptcy proceeding requests will be refused and liens will not be enforced or executed until 30th of April 2020 (this date is included).
Furthermore, the “Law No. 7226 Amendment of Certain Laws” published in Official Gazette in 26th of March 2020 also addresses this stoppage process and confirms that if sale dates coincides with stoppage, then, the enforcement and bankruptcy offices will be able to arrange a new sale date without a new date request of parties in the end of this stoppage period. It is also clarifies that the sale announcements will only be done electronically and there will not be any demand of expense for these announcements.
On the other hand, the same legal regulation (Law No.7226) confirms that during the stoppage period consent payments will be accepted and the requests which may be on behalf of the other party will also be accepted. Lastly, it states that the consequences of respites of concordatum with regard to obligee and obligor will maintain independently from stoppage period.
STOPPAGE OF JUDICIAL PROCESSES
Although we have firstly mentioned the law of enforcement and bankruptcy as it was one of the primer legal measures, it is substantially important to focus on the main point of these regulations which is the “stoppage of judicial processes”. This regulation is legitimized again by the “Law No. 7226 Amendment of Certain Laws” published in Official Gazette in 26th of March 2020.
Especially the “Provisional Article 1” is the most related part of this law which confirms that all judicial processes such as litigations, applications, complaints, objections, cautions, notifications, exhibitions, statute of limitations, foreclosures and also obligatory administrative appeals have stopped beginning with 13th of March 2020 (this date is included) to 30th of April 2020 (this date is included).
The stoppage of these implementations are very important because these are the processes closely related with originate, exercise and forfeiture of rights. Therefore, in order to prevent the loss of rights and provide a countrywide quarantine these regulations were necessary and vital.
It is also important to add that, these regulations have such an inclusive aspect that covers almost all procedural laws as Code of Civil Procedure, Administrative Jurisdiction Procedures Law, Tax Procedural Law, Criminal Court Law and also processes appointed by the judge and conciliations.
On the other hand, the law has also regulated how this stoppage will affect the maintaining durations. It basically refers that these normal procedures will resume right after the day following the expiry date of the stoppage (30th of April 2020). By the beginning day of the stoppage, the durations that have 15 days or less will be considered as extended and these ones will be assumed as it still has 15 days remaining. These 15 days will start just from the day after the final date of the stoppage.
The statute of limitations in terms of criminal law, administrative sanctions and preventive detentions, arrests mentioned in Code of Criminal Procedure, durations about cautionary judgments mentioned in Code of Civil Procedure are excluded.
Another important situation that was likely to create conflict was “leasing”. Actually, rather than the leasing processes the actual problem was “rents” that created the real conflict because under the circumstances of quarantine and other legal measures, it was impossible for huge part of the community to maintain their economic balance. While it becomes impossible to maintain the income, naturally it also became impossible for people to afford the rents of their working places.
In this sense, the “Provisional Article 2(Law No. 7226)” directly addressed to this problem and mentioned that even the rents of working places are unpaid; it does not cause cancellation of rental contract or eviction beginning from 1st of March 2020 to 30th of June 2020. Of course this regulation does not provides occupants a defense for non-payment, their obligations are still continuing, however, it claims that delayed or non-payments will not authorizes the landlord to evict the occupant or cancel his/her contract.
Tax regulations during this period are very important as it provided opportunity especially to taxpayers. The regulations in terms of taxation law mention “delays” and “extensions” of payments rather than stoppage. One of them, that is necessary to be emphasized is the “extension of period of payments of annual income tax returns.”
Delivery and payable taxes of income tax returns that belong 2019 are delayed to 30th of April 2020 (General Communique of Tax Procedure Law (TPL) Item Number 125). Delivery and payments of “value added tax returns” that belong February 2020 due 26th of March 2020 are also delayed to 24th of April 2020 (Circular of Tax Procedure Law (TPL) Item Number 126).
Most significantly, taxpayer’s (that are under “force major”) added tax returns and withholding tax returns that belong to March, April and May are also delayed. These taxpayers that are included in force major are the ones who have income tax liability in terms of commercial, agricultural and professional income (General Communique of Tax Procedure Law (TPL) Item Number 518). According to this general communique, the payments of added tax returns and withholding tax returns of tax payers whose main activity areas are directly affected from Coronavirus such as shopping malls, retails, healthcare services, industries of ıron and steel, production of culinary utensils, construction sectors, automotive industry, logistics, rent a cars, printing services, cinemas, theatres, restaurants, travel agents, accommodations etc. are also delayed.
The added tax returns and withholding tax returns that are due to April, May and June have delayed to 27th of July 2020 and other tax payments that accrued on these dates will be delayed to 27th of October, November and December 2020. The taxes for accommodation that are payable from 1st of April 2020 also delayed to 1st of January 2021.
FORCE MAJOR IN PRIVATE LAW CONTRACTS
In these conditions of pandemic, “force major” has become a widely discussed notion in almost every field of law. Especially in terms of private law contracts, force major can be applicable as long as contracting parties do not behave against each other’s “good faith”.
First of all, it is obvious that pandemic of Covid-19 has created a serious impossibility of performance (hardship) and an absolute unavoidable situation in order to implement the contract. Although Supreme Court’s decision about bird flu (h5n1 that affected Turkey a few years ago) concluded as the situation “cannot” be accepted as force major due to its limited affect and unavailability to approve in terms of the conditions of contract (Decision of Court of Appeal for the 23. Circuit, Application No: 2015/7538) instead of bird flu, Covid-19 is an obviously applicable situation when it comes to force major as this process caused global circumstances. Nevertheless, conditions of contract should specifically be evaluated through its availability whether there is a force major in terms of contractual relationship.
In Turkish Law of Obligations (TLO) as per Article 138; if the debtors has hardship to perform their obligations, then, law enables them to litigate and ask the adaptation of contract to the changing conditions. As Covid-19 is a situation of force major and therefore, it may naturally cause serious hardships, if debtor could not be able to come to an arrangement with debtee, then the court can order the adaptation of contract to changing conditions or termination of contract.
What about the contracts that are constituted “during” the Covid-19 pandemic? Actually, this question can be answered as: if debtor is aware of the seriousness of conditions and probable hardship, this means there would be no claim of force major according to “principle of honesty”. The force major can only be used in conditions of unforeseen events.
It is true to say that latest developments about the legal process of Covid-19 demonstrate that the stoppage of judicial processes has extended. The latest Presidential Decision published in Official Gazette in 30th of April 2020 which follows the same procedure of “Law No. 7226 Amendment of Certain Laws” and “Provisional Article 1”. This new regulation confirms exactly the same procedure of previous regulations and mentions that the stoppage will be maintaining from the 1st of May 2020 to 15th of June 2020. Therefore, it can be said that almost all legal interactions that are mentioned in Law No. 7226 stopped until 15th of June 2020. Also again durations that have 15 days or less to end will be extended for 15 days beginning with 16th of June 2020.
Av. Yılmaz Toygun Tecirli, Av. Azra Nagehan Atalan. LEXPERA Blog. 14 April 2020. 8 May 2020 <https://blog.lexpera.com.tr/covid-19-salgininin-ozel-hukuk-sozlesmelerine-etkisi/>.
Basın ve Halkla İlişkiler Müşavirliği. 1 May 2020. 8 May 2020 <http://www.basin.adalet.gov.tr/Etkinlik/yargida-sureler-15-hazirana-kadar-ertelendi>.
Deloitte. 7226 Sayılı Bazı Kanunlarda Değişiklik Yapılmasına Dair Kanun Yasalaştı. 26 March 2020. 8 May 2020 <https://www.verginet.net/dtt/11/Vergi-Sirkuleri-2020-64.aspx>.
Corona Virüs (Covid-19) Tedbirlerinden Etkilenen Mükelleflere Sağlanan İmkanlara İlişkin Özet Tablo. 31 March 2020. 8 May 2020 <https://www.verginet.net/dtt/11/Vergi-Sirkuleri-2020-71.aspx>.
T.C. Resmi Gazete. Cumhurbaşkanı Kararı. 22 Mart 2020. Sayı:31076.
T.C. Resmi Gazete. Bazı Kanunlarda Değişiklik Yapılmasına Dair Kanun. 26 Mart 2020. Sayı:31080(Mükerrer).