1. Presentation on Legal Privilege under Turkish Law 3 May 2012, Istanbul Attn. Murat Karkin

2. Agenda Relevant Turkish Legislation
Impact of CJEC’s (CJEU’s) Precedents
Practice of Turkish Courts/Competition Board
Conclusion

3. I. Relevant Turkish Legislation
Two provisions directly related to the legal privilege:
Regarding search warrants to be executed in lawyer’s premises
Article 130 of the Code of Criminal Procedures
Regarding confidentiality obligation for the lawyers
Article 36 of the Attorney’s Act

4. I. Relevant Turkish Legislation
Article 130 of the Code of Criminal Procedures: all documents claimed by the lawyer to be subject to the legal privilege shall under the supervision of the executing officer be placed in an envelop or container which shall then be sealed.

5. I. Relevant Turkish Legislation
Such documents should be evaluated by a criminal court of first instance within 24 hours and if considered falling under the legal privilege they should be immediatly returned to the lawyer and allminutes relating to this action should be eliminated.

6. I. Relevant Turkish Legislation
The evidences obtained in contravention of Article 130 will be considered as “illegal evidence” and cannot be used against the defendant (client).

7. I. Relevant Turkish Legislation
According to the Article 36 of the Attorneys Act, the lawyers are required to keep confidential all information obtained in scope of represenation of a client.
Though much more broader than the legal privilege, the confidentiality obligation of the lawyer is also used as a reference in practice of legal privilege in the absence of specific provision in this respect.

8. I. Relevant Turkish Legislation
Certain disciplinary sanctions are stipulated in the Attorney’s Act for the non compliance with the confidentiality obligation.
The non-compliance also entitles the client to terminate the agreement with the attorney without paying the attorney fee.
The client also is entitled to request the compensation of the damages occured due to the breach of confidentiality.

9. I. Relevant Turkish Legislation
Other provisions remotely related to the legal privilege:
Provisions with respect to the exemption from testifying both in civil (Article 249 of the Code of Civil Procedure) and criminal procedure (Article 46 of the Code of Criminal Procedure). Pursuant to these articles the lawyers are obliged to abstain from testifying in the absence of client’s consent (and entitled to abstain from testifying even though the client consent to such testimony.)

10. I. Relevant Turkish Legislation
Other provisions remotely related to the legal privilege:
Article 279 stipulates that all persons who are aware of a crime committed are obliged to report such crime. The article does not stipulate an exemption with respect to lawyers. However the most eminent scholars opines that the lawyers should be exempted from this obligation except the organized crime cases.

11. II. Impact of CJEC’s (CJEU’s) Precedents
In the absence of a specific provision, the legal privilege practice under Turkish Law is developed based on the aforesaid articles (regarding search warrants to be executed in attorneys offices and he confidentiality obligation for the attorneys).

12. II. Impact of CJEC’s (CJEU’s) Precedents
Since these articles do not explicitly stipulate the legal privilege and insufficiant on the conditions and the procedure of applying legal privilege, the principles established by AM&S and Akzo Nobel Cases are also adopted in Turkish practice .

13. III. Practice of Turkish Courts / Competition Board
Similarly to the cases subject to the precedents of CJEC, under Turkish Law the issue of legal privilege is encountered mostly in scope of searches od competition law. Thus, the case law relating to the legal privilege is formed by the Competition Board.

14. III. Practice of Turkish Courts / Competition Board
CNR Expo v. / NTSR Expo decision dated 13/10/2009:
NTSR Expo filed a complaint against CNR Expo based on abuse of dominant position by CNR Expo.
In fact, NTSR claimed that CNR abused its dominant position in the market by abstaining from providing a fair ground to NTSR.

15. III. Practice of Turkish Courts / Competition Board
CNR Expo v. / NTSR Expo decision dated 13/10/2009: In their defense relating to the procedure CNR advanced the legal privilege claim and stated that the correspondences between the Chairman/CEO of CNR and an independent law firm are covered by the legal privilege. CNR therefore requested that these evidences be considered as illegal and returned to them.

16. III. Practice of Turkish Courts / Competition Board
CNR Expo v. / NTSR Expo decision dated 13/10/2009: Competition Board made a comprehensive evaluation on the conditions of and the procedure to be followed while applying the legal privilege based on the Article 130 of the Code of Criminal Procedures, Article 36 of the Attorney’s Act and the precedents of CJEC.

17. III. Practice of Turkish Courts / Competition Board
CNR Expo v. / NTSR Expo decision dated 13/10/2009:
The Competition Board held that the procedure to be followed for the correspondences/documents pretended to be covered by legal privilege as follows:
The documents pretended to be covered by legal privilege cannot be examined without consent of the relevant person/company.
The relevant person/company should explain the reasons why such document is covered by legal privilege.

18. III. Practice of Turkish Courts / Competition Board
CNR Expo v. / NTSR Expo decision dated 13/10/2009:
If the explanations made are not deemed to be sufficient and the person/company does not accept even the browsing of the document, such documents claimed to be subject to the legal privilege shall under the supervision of the executing officer be placed in an envelop or container which shall then be sealed.

19. III. Practice of Turkish Courts / Competition Board
CNR Expo v. / NTSR Expo decision dated 13/10/2009:
These documents cannot be examined before a decision is rendered on their nature by the criminal court of first instance.
If, at the end of the examination conducted by the lower court the document is not considered to be covered by legal privilege, the relevant person/company should be served a pecuniary fine for delaying the proceedings.

20. III. Practice of Turkish Courts / Competition Board
CNR Expo v. / NTSR Expo decision dated 13/10/2009:
The Competition Court also held that the conditions for a correspondence/document to be considered as covered by legal privilege are as follows:
The correspondence should be exchanged between an independent lawyer and its client.
The document/correspondence should relate to the right of defense of the client.
The relevant person/company or its lawyer should claim that the document is covered by legal privilege.

21. III. Practice of Turkish Courts / Competition Board
CNR Expo v. / NTSR Expo decision dated 13/10/2009:
At the issue at hand, the Competition Board held that the 1st condition (of being exchanged between an independant lawyer and its client) and the 3rd condition (of being claimed to be covered by legal privilege) were satisfied.
However the Competition Board did not consider the document to be covered by legal privilege since they were aiming at issuing back-dated agreements so as to legalise the abstaining from providing a fair ground to NTSR.

22. III. Practice of Turkish Courts / Competition Board
CNR Expo v. / NTSR Expo decision dated 13/10/2009:
CNR also asserted that the legal privilege claim should has been reminded while conducting the research on the premises since this would be the first precedent of the Competition Board and CNR was not in a position to effectively benefit from legal privilege in he absence of precedent.
The Competition Board dismissed this claim since no such obligation of reminding is set forth in the Article 130 of the Code of Criminal Procedures.

23. III. Practice of Turkish Courts / Competition Board
Decision dated of the Court of Appeal:
Though not directly related to the “legal privilege” in its strict sense, this decision underlines the importance of the confidentiality obligation of the attorneys. The Court of Appeal states that “the attorney of the defendant cannot be the person who denounce such defendant.” In this decision the Court of Appeal held that the attorney of the defendant cannot be heard even though the attorney do not make an oath regarding his/her testimony.

24. IV. Conclusion
The legal privilege rules under Turkish Law can be summarised as follows:
The correspondence exchanged between an independent lawyer and its client relating to the right of defense of the client are covered by legal privilege provided that the legal privilege claim is claimed by the releant person/company or their lawyer during the search.

25. IV. Conclusion
The legal privilege rules under Turkish Law can be summarised as follows:
There is no clarification on whether or not the lawyer should be registered within the Bar in Turkey. However, in our view, the correspondences exchanged with the attorneys which practices under the Attorneys Act, whether registered within the Bar or not should be considered to be covered by the legal privilege.

26. IV. Conclusion
The legal privilege rules under Turkish Law can be summarised as follows:
Under Turkish law, working within a company is not considered as a conflicting job for lawyers (contrarily to certain other European countries). However, the Turkish practice adopted the approach of CJEC and the correspondences exchanged with a lawyer working within the company are not considered to be covered by legal privilege.

27. IV. Conclusion
The legal privilege is not sufficiently regulated under Turkish Law and there is no established practice in this respect. The issue of legal privilege should be subject to specific legislation considering its importance.