THE LATEST NEW LAW ON CHEQUES; FORGET ABOUT LAST 4 YEARS AND REMEMBER 2012 AND BEFORE! (AUGUST 2016)

Turkish Government has recently enacted Law on Alteration of Series of Laws with the aim of Development of Investment Milieu, which came into effect on the same date it has been published on Official Gazette, dated 9.08.2016, No. 29796.  

The alteration law has also annulled the 2012 layout which has been brought by Law No. 6272 to the Law 5941, which is usually called as Cheque Law and provided the sentence of prison for the dishonoured cheques. The aforesaid sequel has been confirmed with the change of the heading of the 5th article as “Criminal liability, restriction from cheque drafting and opening cheque accounts” due to new alteration Law.  

According to new law, any person who draws a dishonoured cheque shall be subjected to judicial fine of onethousandfivehundered days. This fine shall be ruled based on the complaint of the beneficiary and applied per each dishonoured cheque which has not been honoured in 10 days which is the common presentation period to the bank. However, the written declaration of the bank as “dishonoured” is also mandatory.        

This judicial fine shall not be less than the dishonoured part of the cheque with the addition of the commercial interest rate applied for debts under default based on the Law No. 3095 which should be calculated from the date of presentation of the cheque. The related costs of trial and the legal proceedings shall nevertheless added to this rock limit.      

Furthermore, the procedure of trial has also been altered as the new law provided the right to petition directly to the Litigation Court based on a dishonoured cheque and repealed the powers of Public Prosecutors in such a criminal case procedure. The litigation court, which shall be acting as the criminal court, has also right to rule in any instance for restriction from cheque drafting and opening cheque accounts and in case of existence of such a restriction before the trial also empowered to extend the application period. The application of interim injunction for restriction from cheque drafting and opening cheque accounts are other common consequences of a dishonoured cheque.          

The restriction of cheque drafting and opening cheque accounts shall be imposed to the real person or the legal person, who draws a dishonoured cheque or in case the cheques has been issued for the benefit of a company it shall be applied for the administrative bodies and to the ones which has been registered as the signature circular holders. Such administrative boy members shall be dismissed for this period for being a member of any other companies. The aim of this provision of preventing the criminals from establishment of a series of companies which constantly issue dishonoured cheques.       

Such crime shall not benefit from pre-payment, reconcilement or suspension of the court decision announcement options under Turkish criminal law. Furthermore, unpaid penalties based on the altered Cheque Law, shall be converted directly into prison sentence and no other remedy shall heal the disobedience.  

The recent question in mind is what shall be done for the drawers of cheques which are still in financial crisis? To reply such a question we shall dealt with two main branches;  

For the cheques which the drawer proves that these had been drawn before the publication of the altered Cheque Law, no sanction shall be applied.  

For the cheques which the drawer cannot provide any proof, there is no way out from the application of Law. Thus we once again encounter prison sentence due to financial crime under Turkish Criminal Law after 4 years which is definitely inapt with the general principles of Turkish criminal law, European Union law and surely human rights.  

Consequently forget about everything you established in last 4 years for Turkish dishonoured cheques and flash back to the 2012 and before….