132 / 516
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
has a regulatory duty in the process of the national economy 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 men-
tioned 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 pro-
cedure but also before the litigation arise as a preventive legal measure
because most of the litigations and legal problems arise out of omis-
sion 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
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NEWSLETTER 2012