TURKEY's REPORT: L'informatique notariale
TURKEY's REPORT: L'informatique notariale
National rapporteur: Ahmet UĞURLU

 "DATA PROCESSING ASPECT OF NOTARIAL SERVICES"

Introduction

The developments having emerged in the Information technologies for the last 40 years have reached a much higher speed than expected and come to a point bringing positive changes to the ways of doing business of all professional groups.  Now, it is almost impossible for any professional group to do business in an accurate, quick and safer manner without using those technologies. The professions which try to ignore or are not harmonised with technological developments are going to be faced with more challenging working conditions in the near future. The notarial profession is also obliged to harmonise their ways of doing business with the developing technologies of the day and to use those new technologies in a most effective way by liaising with all other relevant institutions and organisations.  Otherwise, there will be very serious breakages and vulnerabilities in both the professional future and the ability to communicate and do business with the environment other than itself.

The effective and intensive use of new technologies at notary offices will accompany the ability to do business in a transparent, accurate, quick and safer manner. This manner of work will positively contribute to the daily lives of people, commercial lives of establishments and working performance of the Public agencies. From this point of view, the Notaries' Union of Turkey has aimed for long-term projects in order that the notarial profession in our country takes advantage of developing technologies at the highest level, and carried out feasibility studies and prepared and put into practice an action plan for that purpose.

The use of information technologies in notarial services should be discussed in two separate fields. Preparation stage of notary transactions is the first, and archiving and sharing stage of notary transactions with other institutions and organisations in an electronic environment is the second.

We can sort the most important points regarding the use of technology at the preparation stage of notary transactions as follows:

  • Obtaining instantaneously the identity information of the relevant person from the institution or organisation where the information is available as up-to-date information in an electronic environment,
  • Preparation of notary transactions by the system in a manner as automated, quick and accurate as possible,
  • Instant control of transactions by authorized persons at preparation stage in order for spellcheck and functional controls to be performed,
  • Effectuating the transaction fee automatically,
  • Signing and archiving the result of a transaction with wet signature by a person authorized to put wet signature,
  • Forwarding the result of a transaction required to be shared with other Institutions and Organisations in an electronic environment as signed with e-signature under delivery guarantee, (i.e. through Registered Electronic Mail Service Provider).

We can sort the most important points regarding the use of technology at the archiving and sharing stage of notary transactions with other institutions and organisations in an electronic environment as follows:

  • Extraction of data to be shared in an electronic environment and determination of sharing method(s) thereof,
  • Determination of legal limitations and preparation of software so as to be able to control those limitations,
  • Determination of addressees with whom data is to be shared, and installation of an authorization control system,
  • Careful and meticulous establishment and constant inspection of the infrastructure required for all transaction processes and information and communication security in particular.

As we all know, the professions which fail to keep pace with the times, to know how to take advantage of developing technologies and to renew themselves according to conditions of the day do not have the chance to develop. We, as the Notaries' Union of Turkey, mainly aim at increasing the current prestige of notary profession further by taking advantage of developing technologies at the highest level in a constant manner. In line with this aim, we maintain intensively our studies in both professional area and all areas where we can use technologies for the benefit of our profession.

QUESTION FORM AND ANSWERS

1. - Are there legal regulations in your country which regulate the use of new technologies in the field of preventive legal security, and in notarial services more specifically? Please specify the principles forming a basis for legal regulations.

The basic principle forming a basis for new regulations is to enable transparency and provability in legal transactions. For this purpose, the capital companies in particular and persons that are parties to a legal relationship are provided with the use of new technologies and obliged to use them in some cases (i.e. Registered E-Mail). Specifically, an amendment has not been implemented on the Notary Law yet, and there has not been a regulation enabling the new technologies to be used in notary transactions with respect to the field of preventive legal security. In this context, some drafts are available and followed by the Notaries' Union of Turkey. On the other hand, the use of new technologies in notary transactions is provided within the scope of e-State projects, and limited regulations have been made for them. The objective of these regulations, many of which have been recently put into effect is not to provide the preventive legal security, but to enable people to make their transactions fast by taking advantage of e-State opportunities.

2. - What are the practical uses or implementations in force about notary profession in your country with respect to new technologies?

Daily transactions performed at notary offices (preparation of notary transaction, recording of transactions and effectuation of fees related to transactions, etc.) have been performed in computer environment for more than 20 years.  New projects have been developed in this context in recent years, and our ability to work has been enhanced. The transactions mentioned below as samples are completely performed in an electronic environment.

  1. Second-Hand Car Sale and Registration

The project was completed and put into service in May, 2010. Queries required for car sale transaction initialized in a notary office are transferred to the Turkish National Police (TNP) through the systems of the Notaries' Union of Turkey. After checking their own records, the TNP carries out the control procedures related to the car by connecting to the systems of the Revenue Administration, Tüvtürk, Tramer and Population and Citizenship Affairs. In the case that there is no situation posing an obstacle for the sale of the car after controls, the sale transactions are completed at notary office and a registration message is sent to the TNP, and the temporary registration certificate is printed and submitted to the purchaser according to the reply. This transaction takes 5-7 minutes in total. 

  1. Procedures for Membership to Labour Unions

Initialized as a pilot activity in March, 2011, this project is carried out with the Ministry of Labour and Social Security through Türksat. In this project, the procedures for union membership and relinquishing membership are initialized in a notary office and concluded by carrying out real time controls over the data of the Ministry of Labour. The systems of the Ministry of Labour check the information regarding labourers through the systems of the Social Security Organisation in this process.

  1. Capturing the Student Scholarship/Loan Written Contracts from Internet Environment and Verification Procedures Thereof at Notary Offices

Having been maintained since 2008, this project will be re-configured and designed and prepared within the framework of inter-institutional cooperation in 2012. In this context, some studies are being maintained with the Credits and Dormitories Institution.

  1. Procedures for Issuing the Certificate of Inheritance at Notary Offices

As per a legal regulation made at the beginning of 2011, it was resolved that the Certificate of Inheritance (Determination of Heirship) would be issued by notary offices as well as courts from 1.10.2011. Thus, our Union has started some studies and prepared and put into practice the necessary software by using the services provided over KPS (Identity Sharing System) by the General Directorate of Population and Citizenship Affairs. Preparation and control of this certificate take approximately 10 minutes at notary offices. 

  1. Procedures for the Notification of Financial Books and Documents of Establishments to the Ministry of Finance in an Electronic Environment

Initialized as a pilot study in March, 2011, the main objective of this project is to send the Revenue Administration the information related to books and documents of commercial establishments which are required to be notified to the Ministry of Finance after verified at notary offices. The project was put into actual operating in June, 2011. For those procedures getting intensified at the ends of years, the necessary regulations have been made, and software has been prepared and put into practice by cooperating with Türmob for book and document information input in order that taxpayers can carry out their information input activities on the central systems of the Notaries' Union of Turkey through the Certified Public Accountants on the internet. 

  1. Improvement of the Establishment Process of Companies

Our Union participates, as a party, in the improvement studies of the Establishment Process of Companies within the framework of the studies for the improvement of the investment environment which were initialized by the former Ministry of Industry and Trade and transferred to the Prime Ministry Administration Development Department then. In this context, a pilot study regarding the transferring of articles of associations to notary offices in an electronic environment was put into practice in Mersin region in 07.06.2010 as a small example of carrying the process in an electronic environment.  The studies regarding the job steps and legal regulations required for this project are maintained by a committee including our Union (YOIKK – Coordination Committee for the Improvement of the Investment Environment) under the body of the Prime Ministry Administration Development Department. 

Our projects in progress;

  1. Establishment of Central Databank

Design studies regarding this issue were completed in 2011 and the studies regarding the establishment of infrastructures necessary for implementation are being maintained as planned. When the software infrastructure and other technical infrastructures which are planned to be completed in the first half of 2012 and being still maintained are completed, the data collection activities will be able to be centrally and automatically performed. In addition, the necessary regulations will be made within the framework of powers and responsibilities in the second half of 2012 in terms of information providing activities for the relevant parties over this data. 

  1. Establishment and Operation of the Infrastructure for Registered E-Mail Service Provider

Apart from these projects in effect, the Notaries' Union of Turkey thinks that notary offices can take an active role in the establishment and operation of the Registered E-Mail (KEP) system within the scope of the Turkish Commercial Code which is to be put into effect in July, 2012 and our Union has established a company in pursuance of the relevant legislation for this purpose and made preparations to become a KEP Service Provider.

3. - Is there a system in your country which preserves the confidentiality in professional communication and enable dealings and communication among notary professionals?

Simple electronic certificate which is produced and controlled by TNB is used with respect to security in transactions performed in notary offices (Kobil). A central website (TNBOnline) has been built with respect to information exchange among notaries and enabled information necessary for working orders and etc. to be shared in terms of profession. When the studies regarding the Central Databank are completed, the documents and information issued at notary offices will be shared among colleagues.

4. - Has the acceptance of electronic official deed been issued as the original one within the scope of legal regulations in your country?

According to the Law No. 5070 which regulates Electronic Signature in our country;

"Secure signature shall result in the same legal consequences as that of handwritten signature. Legal procedures which are subjected to an official form or a specific formality, and contracts of guaranty shall not be executed with secure electronic signature."

In the case that this regulation, the provisions of the Turkish Trade Code and the provisions of the Notary Law are considered together, it is not possible to regulate the electronic official deed in our country today. Therefore, it is impossible to find an answer for the question, which one is to be accredited with respect to resolving the contradiction between electronic official deed and hardcopy official deed.

If a regulation is present in this context, is it possible to regulate electronic official deeds as spread sheet or original form in your country? In any case, is official deed issued as spread sheet or original hardcopy in your country and are the certified copies of spread sheet or original in circulation? Who are those certified copies sent to?

Because a regulation regarding this issue is not available yet as mentioned above, the questions specified in Paragraphs 2, 3 and 4 are not answered. When making the regulation, we, as TNB, take aim at electronic official deed being original.

5. - Is it possible for notaries to exchange official deeds through official electronic copies thanks to their electronic signatures? If possible, what are the necessary conditions for proving the accuracy of electronic signature? Is it necessary to notify the competent public authority about certification or enough for the electronic signature to be recognized independently of sender identity?

As mentioned above, this issue has not been legally regulated yet, it is not possible for notaries to issue electronic official deeds possessing official deed value and produce the copies thereof thanks to their electronic signatures. Therefore, the principles and procedures regarding the circulation have not been determined.

On the other hand, e-signature verification activities are automatically carried out on the internet by the certification authority from which the signature is obtained. Because e-signature records keep the identity information of the individual, the verification of e-signature by the certification authority is an adequate action. Today, new software is prepared in order that the documents issued at notary offices can be signed and archived in an electronic environment by the notary and shared with the relevant parties, and those procedures will be put into practice by the end of 2012.

6. - What is the procedure accepted to receive the administrative documents regarding the testament in the case of death? Is there a system in your national legislation which enables notaries to determine whether the testator has prepared a testament in the case of death? Are new technologies used to manage such a system?

The testaments are issued in accordance with the procedures written at notary offices and notified to the General Directorate of Population and Citizenship Affairs. In the case that the individual is dead, this information can be seen in testament and similar procedures in an electronic environment (over KPS – Identity Sharing System). In the case of death, the testament which was prepared by the individual when alive is submitted to the relevant court by notary offices after the Directorate of Population notifies the death case.

That is, although it is not possible to use the technology during the preparation process of testament in our country, it can be enabled to share the testament prepared at notary offices with the Population system by using technology, and to inform the land offices and other relevant state offices and the Judicial Bodies in particular about the testament during inheritance activities. However, the testament is not submitted to the relevant Judicial Body through technological opportunities, but as hardcopy.

7. - Is there a system which enables notaries to check whether the testator holds a life insurance, and the type of insurance if any in the case of death?

There has not been such a system in our country yet because the procedures to be carried out in the case of death are executed by the Courts or designated testamentary executors.

8. - Is there an online communication system which enables notaries to check whether the real estate properties which are mortgaged or for sale are in deep debt or not?

There has not been such a system yet. The procedures such as purchase, sale and mortgage of the real estate properties are not carried out at notary offices in our Country.

9. - Is there an online system which a notary can use in order to see the physical description of the real estate property over the database of the cadastre?

There has not been such a system yet. The procedures such as purchase, sale and mortgage of the real estate properties are not carried out at notary offices in our Country.

10. - Is there a system which enables notaries to check the situation of the real estate properties subjected to transfer in terms of the taxes collected by the local administrations? Is there a payment system which enables the outstanding amounts to get paid if any?

There has not been such a system yet. Moreover, the procedures such as purchase, sale and mortgage of the real estate properties are not carried out at notary offices in our Country.

11. - Is the administrative method of the documents within the scope of notarial activities and the accounting documents regarding notary offices carried out in a single way or connected to the data processing agencies in the competitive environment?

The accounting documents and other financial papers are standardly prepared within the framework of the rules laid down by the Ministry of Finance. The accounting documents regarding notary offices are transferred to the Notaries' Union of Turkey in an electronic environment and stored in electronic environment there. A competitive environment is out of question.

12. - Do the Notary profession activities in your country have communication systems with public registries and cadastral registries in particular with respect to online transferring the samples of the certified official notary deeds for registration in public registries in accordance with the legislation in force?

There has not been such a system yet. Moreover, the procedures such as purchase, sale and mortgage of the real estate properties are not carried out at notary offices in our Country.

13. - Are there systems available which enable notaries to communicate with the trade registries? Does the fact that such a method is used enable to shorten the time regarding the establishment of companies or implementation of amendments on their statuses?

There is a pilot study which is still being maintained regarding the receiving and putting of the articles of associations into process in an electronic environment during establishment of companies. In this context, the relevant public institutions (the Ministry of Industry, the Ministry of Trade, TOBB (the Union of Chambers and Commodity Exchanges of Turkey) and etc. in terms of the project MERSIS - Central Registration System) maintain the activities regarding the improvement and carrying of their internal processes into electronic environment.

14. - Is there a database available which enables notary profession activities to see the contents of all official deeds in an electronic environment? Is it possible to integrate this database through the electronic environment in question by fulfilling any kind of financial, statistical or other liabilities if any?

Those systems will have been built until the end of 2012.

15. - How often are new technologies used in the notarial activities in your country in the cases of compulsory cooperation with the public administrations in particular? Please specify what those technologies are within the scope of storage of official deeds, transmission of information and receiving and recording of information and messages.

Public administrations have speed up the activities regarding the transferring of their own internal processes into an electronic environment since the beginning of 2000, and intensive studies have been conducted in terms of inter-institutional business processes in recent years. As of today, many projects such as UYAP – National Judicial Network Project in the Judicial System, VEDOP - Tax Offices Automation Project in the Financial activities, KPS - Identity Sharing System in the population activities, and ASBIS - Vehicle Information System in the Car sale and registration activities have been put into practice. Information can be online collected from and sent to those systems at our notary offices, but the official document sharing has not been carried out at the desired level yet. Studies are in progress.

16. - Within the framework of the cooperation of the notary profession with the public administrations, are new technologies used to combat against money laundering in your country? If used, could you please briefly explain what kind of a procedure is followed?

In this context, the studies regarding the storage of notary documents on a central basis and submission of them to the relevant parties in an electronic environment have been accelerated with respect to contributing the studies carried out under the body of the Ministry of Finance, and those systems will have been built until the end of 2012.

17.- How does the notary profession harmonize itself to the liability of determination of the real owners of the companies during notarial transactions in terms of the liabilities imposed by the International Financial Action Task Force?

Although the transactions performed at notary offices are in question in terms of the procedures regarding the establishment of companies and share transfer in our country, we are not obliged and given legal opportunities to make a transaction for those procedures carried out by notary offices in accordance with the applicable national regulations as inuring against the third persons and publication of those on the Trade Registry Gazette on a basis.

18. - Are there central systems which enable the storage of the official deeds pertaining to notarial activities? Are the notary offices obliged to keep and submit their computer archives in the case that the transfer of heritage assets is performed at notary offices if any?

The applicable Notary Law forms a basis for the storage of the documents at Notary offices in our country. Therefore, there is not a central system available as a rule save for the exceptions regarding the e-State implementations, the samples of which are mentioned above. In addition, the fact that the transfer of heritage assets mentioned above is performed at notary offices is out of question. The storage periods of notary offices in our country change according to transaction type.

19. - Could you please specify the sectors of Notarial services where both the current and future technologies can play an important role?

The current new technologies form a feature of facilitating, accelerating and enabling the internal transaction processes of notarial services to be carried out more accurate and reliable. This situation will appear in a way forming a more reliable structure in terms of standardization and information sharing on an inter-institutional basis and be moved to a reliable point with respect to information production, sharing and verification for all sectors doing business with notary offices in the future. Those studies will mostly facilitate the commercial life and judicial services.

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