UNDER FIVE HEADINGS – SUBMISSION ISSUE OF THE CHEQUES WITHIN THE CONTEXTS OF PERIODS SUSPENDED BY LAW NO. 7226 IN TURKISH LAWadmin
Since the global epidemic of Covid-19, which is declared as a “pandemic” worldwide, poses a serious risk for public health, it is aimed to prevent Covid-19 epidemic by taking some precautions by official authorities in our country. In this context, while it is recommended that citizens do not leave the house unless it is compulsory, to ensure social isolation, which is one of the most basic measures to be taken against Covid-19 epidemic disease, and the Law Regarding Amendment of Certain Laws No. 7226 (“Law”) prepared to prevent the loss of rights that this measure may cause in the field of judiciary. It has been put into force by being published in the Official Gazette No. 31080 (repeated) dated 26 March 2020.
With the Temporary Article 1 of Law No. 7226; all legal periods related to the establishment, exercise, or abolishment of a right, including litigations, initiation of enforcement proceedings, applications, objections, notifications, and period of limitation, the lapse of time and mandatory administrative application periods; the periods determined in terms of the parties and the terms determined by the judge in this context including the Administrative Procedure Code No. 2577 dated 6 January 1982, the Code on Criminal Procedure No. 5271 dated 4 December 2004, and the Code on Civil Procedures No. 6100 dated 12 January 2011 and the periods for mediation and conciliation institutions have been suspended from 13 March 2020 (including this date) to 30 April 2020 (including this date). As is seen, under the said article, not only the periods regarding procedural laws have been regulated, but also the periods exceeding judicial practice and corresponding in material law have been also covered by the Law.
- Submission periods for cheques
According to Article 796 of the Turkish Commercial Code (“TCC”), if a cheque will be paid at a place where it is arranged, it should be submitted to the drawee bank within 10 days and if the payment is to be made elsewhere, it should be submitted within one month. According to paragraph 5 of the Temporary Article 3 of the Cheque Law No. 5941, the submission for payment to the drawee bank is not valid until 31 December 2020 before the issuance date stated on it.
As it can be clearly seen, the submission of the cheque to the drawee bank is a legal obligation until 31 December 2020, within the period to be determined in accordance with Article 796 of the TCC.
- Whether the cheques can be presented to the Bank within the periods specified in Law No. 7226
In practice, according to some opinions, as per the regulations brought by the Law No. 7226, cheques whose legal submission period fell on a date before 30 April 2020 cannot be submitted to the bank before 30 April 2020, even there is enough credit for cheque amount at the bank account, the drawee bank is prohibited to make payment to the bearer until this date, if the payment is made, the legal responsibility of the bank will arise and the drawee bank is not allowed to transact as bad cheque even the balance of the account does not cover the cheque amount.
However, the fact that bearer holding the cheque has been dismissed until 30 April 2020 may create a direct loss in terms of microeconomics; considering that the main purpose of the Law is to prevent the loss of rights that may arise during this period, it is clearly seen that the interpretation of the Law as temporarily eliminating the right to submit cheques will clearly contradict to the aim of the legislator.
Moreover, if the provisions of the Law are interpreted in this way, it is highly probable to encounter many different problems in practice. For example, when such an interpretation is adopted, it will be possible to reject a lawsuit opened between 13 March 2020 and 30 April 2020, even though it is within the lapse of time, on the grounds that it should be opened at the end of the period specified in the Law. As can be clearly seen, such a situation is incompatible with the logic of law and is not actually applicable.
In our opinion, in line with the provisions in the Law, the main purpose of suspending the lapse of time and submission periods is to ensure that even if the cheques, which are held by the competent bearer and whose submission period will end between 13 March 2020 and 30 April 2020, are not submitted between these dates, there will be no loss of rights. In other words, within the framework of the regulations in the Law, an alternative right has been vested to the competent bearer at the point of submitting the cheque to the bank or not and it is not possible to say that the cheque, which was not submitted between the dates specified in the Law, has lost its quality of being a bill of exchange.
- Transacting as bad cheque about the submitted cheque
As is seen, it is possible to submit the cheques to the bank on the dates specified in the Law, and since there is no provision in the opposite direction in the Law, if the cheques submitted to the bank doesn’t have a bounce on these dates, the bank can transact as bad cheque. Therefore, since the crime of causing a cheque to be dishonoured is likely to occur within these periods, the competent bearer makes a complaint regarding this crime. However, it is also possible for the competent bearer to exercise his right to complain at the end of the periods specified in the Law since the complaint periods are also suspended under the Law.
- Status of cheques not submitted based on Law No. 7226
Whether the check is submitted to the bank within the periods specified in the Law is the preference of the competent bearer. However, in order to prevent loss of rights, the competent bearer must submit the cheque to the bank at the end of the period, even if he does not submit the cheque by making use of the periods specified in the Law.
According to the relevant article of the Law, “These periods start working from the day following the day when the suspension period ends. As of the start of the suspension period, the periods remaining fifteen days or less are deemed to have extended for fifteen days, starting from the day following the suspension period. ”
As is seen, the deadlines that are fifteen days or less to expire as of 13.03.2020 will be considered as 15 days longer than 01.05.2020 and the submission deadline will end at the end of the shift on 15.05.2020. According to the Turkish Commercial Code, in cheques that need to be submitted within one month, a distinction must be made by taking into account how many days are left until the end of the submission period started. If, as of 13.03.2020, the end of the deadline is fifteen days or less as accepted by Law No. 7226, it is possible to submit a cheque until 15.05.2020. However, if there are more than fifteen days left for the cheque submission, the last day must be calculated for the cheque submission by adding the remaining number of days from 01.05.2020.
- Cheques that cannot be submitted due to force majeure
According to article 811 of the TCC, if submission, protest, or making a similar determination of cheque, within a period that is legally determined, could not be realized due to an impossible obstacle, such as government legislation or any force majeure, the periods specified for these proceedings are extended.
Through the Circular dated 21 March 2020 issued by the Ministry of Interior in order to prevent the Covid-19 outbreak, those who are 65 years old or older and have a low immune system, chronic lung disease, asthma, COPD, cardiovascular disease, kidney, hypertension and liver disease and those using drugs that disrupt the immune system are prohibited from going out to the streets temporarily. When the competent bearer within the scope of the Circular is subject to the curfew, they will not be able to submit the cheque they have to the bank within the legal period.
However, since this measure applied throughout the country with the Circular published by the Ministry of Internal Affairs is clearly a force majeure, it is undisputed that the competent bearer who could not submit the check to the bank within the legal period or the periods specified in the Law will not face any loss of right.
It should be noted that, even if the submission period of cheques is extended according to the Law since it has not been known yet that the measure for the bearers who are subject to curfew under the Circular will be extended up to which date, the bearers may not be able to submit the cheque at the end of the period specified in the Law. Therefore, in our opinion, according to Article 811/3 of the TCC, the competent bearers under the Circular should submit the cheques to the bank without delay after the curfew on them ends.