THE LEGAL LIABILITY OF NOTARIES

IN LIGHT OF THE CONSTITUTIONAL COURT’S ANNULMENT DECISION CONCERNING ARTICLE 162, PARAGRAPH 2 OF THE NOTARY LAW: A LEGAL ASSESSMENT ON THE CIVIL LIABILITY OF NOTARIES

Relevant Statutory Regulations:

Statutory Provisions Under the Notary Law No. 1512:

• ARTICLE 1 – The Notary Profession: Notarization is a public service. Notaries authenticate legal transactions and perform other duties assigned by statutes in order to guarantee legal certainty and prevent disputes.

• General Duties of Notaries: Article 60 – Functions of Notaries:

  • To draft all kinds of legal instruments, the execution of which has not been explicitly assigned to another authority, organ, or person by law.

  • To execute all legal transactions mandated by statutes to be performed officially, where the competent organ is not specified, in accordance with the provisions of this law.

  • (Amended: 23/6/2022-7413/Art. 11) To execute real property sale promise contracts and, upon the request of one of the parties and payment of the relevant fees and expenses, to record an annotation in the land registry via the land registry information system; to execute real property sale contracts...

• Determination Functions: Article 61 – Notaries determine the status, form, and value of an object or a location, as well as the identities and statements of relevant persons; when invited, they attend and document drawings of lotteries, as well as elections and meetings of private organizations.

• Real Property Sale Contracts: Article 61/A – (Annexed: 23/6/2022-7413/Art. 12) Real property sale contracts may also be executed by notaries. Upon an application for a real property sale, notaries draft an application document, take into account all encumbrances on the property, and observe the limitations, procedures, and principles set forth in other laws regarding real property sales. The General Directorate of Land Registry and Cadastre shares land registry abstracts and other documents with notaries via the land registry information system. If records and documents regarding the property are deficient, the missing points are requested from the relevant land registry directorate through this system, and the deficiencies are rectified and transferred to the system by the land registry directorate. The real property sale contract is executed after the rightful owner is identified by the notaries and it is determined that no legal impediment to the sale exists. The moment the sale contract is signed by the parties, the notary obtains a journal number from the land registry information system and records the contract into this system. Following the recording of the contract into the system, the registration of the real property into the land registry is secured by the land registry directorate. The sale contract and other documents are transferred to the system by the notary and physically archived. Notaries must perform the transactions regarding real property sale contracts personally. If the rightful owner cannot be identified from the land registry abstract and other documents, or if a legal impediment to the sale exists, the sale transaction shall not be executed by notaries. Only the land registry fee prescribed under sub-clause (a) of paragraph (20) of the section titled “I- Land Registry Transactions” of Tariff No. (4) annexed to the Fees Law No. 492 dated 2/7/1964 shall be collected from real property sale contracts executed by notaries. For these transactions, the provisions of Law No. 492 regarding land registry fees and Article 128 of the same Law concerning notaries who perform transactions without completely collecting the necessary fees shall apply. Real property sale contracts are exempt from stamp duty, and papers drafted regarding these transactions are exempt from valuable paper fees. No fee other than the notary fee shall be collected for transactions performed under this article. The notary fee cannot be less than five hundred Turkish Liras and more than four thousand Turkish Liras based on the value of the real property, and it shall be displayed in the fee tariff. These amounts shall be applied by being increased at the beginning of each calendar year by the revaluation rate determined and declared for the previous year pursuant to the provisions of repeated Article 298 of the Tax Procedure Law No. 213 dated 4/1/1961. A service fee to be recorded as revenue for the revolving fund enterprise of the General Directorate of Land Registry and Cadastre shall be collected for real property sale transactions, and no share or allowance shall be paid to notaries due to these transactions. The procedures and principles regarding the implementation of this article shall be regulated by a regulation to be issued by the Ministry of Justice, obtaining the opinion of the Ministry of Treasury and Finance and the Ministry of Environment, Urbanization, and Climate Change.

• Transactions Regarding Wills and Testamentary Dispositions: Article 69 – Notaries preserve open or closed description wills and draft minutes regarding them. They notify the population registries where the testators are registered in writing of the demise of individuals who have made wills preserved in this manner, as well as other testamentary dispositions drafted by notaries, to ensure that information is provided. Upon notification of demise by the population registry or proof via an official document, notaries deliver certified copies of the wills preserved in their offices and testamentary disposition deeds drafted by the notary to the Chief Public Prosecutor’s Office to be submitted to the competent Civil Court of Peace. For the communication to be written to the population registries pursuant to the first paragraph, the text fee displayed in the fee tariff and postal expenses shall be collected from the relevant person.

• Other Transactions That May Be Performed by Notaries: Article 71/A – (Annexed: 31/3/2011-6217/Art. 14) The following transactions may also be performed by notaries: a) Inviting a deserting spouse to the common domicile. b) Issuing a certificate of inheritance (mirasçılık belgesi).

• Legal Liability of Notaries: Article 162 – Even if executed by trainees, clerks, or clerk candidates, notaries are liable to those who suffer damages due to the non-performance, erroneous performance, or deficient performance of a transaction.

  (Additional paragraph: 23/6/2022-7413/Art. 13) Notaries are also liable for damages arising from the drafting of real property sale contracts. In the event that this damage is compensated by the State, the State shall exercise a right of recourse against the notary who drafted the contract. Lawsuits to be filed against the notary shall be heard before the court of the venue where the land registry is located. (ANNULLED by the Decision of the Constitutional Court dated 25/12/2025, Merits No: 2025/209; Decision No: 2025/276).

  The notary may exercise a right of recourse against the trainee or notary personnel who caused the non-performance, erroneous performance, or deficient performance of the transaction for the amount paid pursuant to the first and second paragraphs.

• Legal Transactions and Relevant Parties: ARTICLE 72 – Notaries authenticate legal transactions upon the request of the relevant parties. Authentication is performed in the manner displayed in the provisions of this part, other laws, and the regulation. The relevant party is the person requesting the authentication. The notary is obliged to completely ascertain the identity, address, capacity, and genuine intent of the persons requesting a transaction.

• Effects of Notarial Transactions: Article 82 – Transactions authenticated pursuant to the provisions of this law are deemed official documents. Legal transactions drafted by notaries in accordance with the provisions of the second section of this part are valid until their forgery is judicially proven (sahteliği sabit oluncaya kadar geçerlidir).

• Authority of Supervision and Inspection: Article 121 – Notary offices are under the supervision and inspection of the Ministry of Justice and the Union of Turkish Notaries.

• Inspection of Notary Offices: Article 122 – Notary offices are under the continuous inspection of Chief Public Prosecutors and are inspected at least once a year. Notary offices adjacent to an individual Civil Court of Peace are subject to the inspection of the Chief Public Prosecutor’s Office of the Civil Court of First Instance to which this court is attached. (Amended: 16/11/1989 - 3588/Art. 12) Notary offices are also inspected by justice inspectors. The inspection is performed according to the procedures and principles displayed in the Regulation on the Inspection Board of the Ministry of Justice. Justice inspectors and Chief Public Prosecutors may, if they deem it necessary, secure documents, registers, and bound volumes in the notary offices within the office premises. (Annexed: 16/11/1989 - 3588/Art. 12) The Union of Turkish Notaries fulfills its duty of supervision and inspection through the chairmen or members of the board of directors of the union and Notary Chambers it authorizes, or through an inspection board it establishes.

Statutory Provisions Under the Turkish Civil Code No. 4721:

• THE SUBJECT-MATTER, ACQUISITION, AND LOSS OF REAL PROPERTY OWNERSHIP – II. Modes of Acquisition – 1. Legal Transactions: Article 706 – The validity of contracts aimed at transferring real property ownership is dependent upon their execution in an official form. Testamentary dispositions and matrimonial property agreements are subject to their own unique formal requirements.

• Liability: Article 1007 – The State is liable for all damages arising from the keeping of the land registry. The State exercises a right of recourse against the officials who possess fault in the occurrence of the damage. Lawsuits regarding the liability of the State shall be heard before the court of the venue where the land registry is located.

Statutory Provisions Under the Turkish Obligations Code No. 6098:

• Real Property Sales and Rights Granting a Relationship of Sale – A. Form: ARTICLE 237 – For a real property sale to be valid, the contract must be executed in an official form. Promises to sell real property, buy-back contracts, and purchase contracts shall not be valid unless executed in an official form. The validity of a pre-emption (önalım) contract is dependent upon its execution in writing.

THE CONSTITUTION OF THE REPUBLIC OF TURKEY

• XV. Protection of Fundamental Rights and Freedoms: ARTICLE 40 – Everyone whose constitutionally recognized rights and freedoms are violated has the right to request prompt access to the competent authority. (Additional paragraph: 3/10/2001-4709/Art. 16) The State is obliged to display the specific legal remedies and authorities to which relevant persons can apply, along with their applicable time limits, in its administrative actions. Damages sustained by a person as a result of wrongful acts executed by official agents are compensated by the State in accordance with the law. The State’s right of recourse against the responsible agent remains reserved.

• IV. Right to Enter Public Service – A. Entry into Service: ARTICLE 70 – Every Turkish citizen has the right to enter public service. No criteria or discrimination other than the qualifications required by the post shall be observed in recruitment.

• D. Provisions Regarding Public Service Agents – Duties and Responsibilities, Safeguards in Disciplinary Prosecution: ARTICLE 129 – Civil servants and other public agents are obliged to operate in loyalty to the Constitution and the laws. No disciplinary sanction can be inflicted upon civil servants, other public agents, or members of professional organizations having the character of a public institution and their upper organizations unless a right of defense is granted. (Amended third paragraph: 7/5/2010-5982/Art. 13) Disciplinary decisions cannot be left outside judicial review. Provisions regarding members of the Armed Forces, judges, and prosecutors remain reserved.

  Lawsuits for compensation arising from faults committed by civil servants and other public agents while exercising their statutory powers can solely be filed against the administration, on the condition that the administration retains a right of recourse against them, and in accordance with the form and terms displayed by law.

  The initiation of criminal prosecution against civil servants and other public agents due to offenses they are alleged to have committed in connection with their duties is dependent upon the authorization of the administrative organ displayed by law, except for statutory exceptions.

STATUTORY PROVISIONS UNDER THE INCOME TAX LAW NO. 193:

• Self-Employed Professionals: Article 66 – Those who perform self-employed activities as a habitual profession are self-employed professionals. Continuously engaging in another business or post beside the self-employed activity does not alter this status. In the implementation of this article:

  Customs brokers, all types of stock exchange agents and acentaships, notaries, and those obligated to execute the notary post; [...] are deemed self-employed professionals due to these activities.

Criminal Liability of Notaries Regarding Offenses Connected to Their Duties:

• Offenses Connected to Duties: Article 151 – (Amended first paragraph: 23/1/2008-5728/Art. 350) Notaries, temporary authorized assistant notaries, notary proxies, notary clerks, and clerk candidates are deemed public agents (kamu görevlisi) for the implementation of the Turkish Penal Code regarding offenses they commit in connection with their duties in the notary office, and notaries who assume posts in the organs of the Union of Turkish Notaries are additionally deemed public agents for offenses connected to those posts.

• Offenses Committed Against Officials: Article 152 – (Amended: 23/1/2008-5728/Art. 351) Regarding offenses committed against the persons displayed in the article above during the execution of their written duties or due to their duties, they are deemed public agents for the implementation of the Turkish Penal Code.

• Prosecution Authorization: Article 153 – The initiation of criminal prosecution against notaries due to offenses arising from their duties or committed during their duties is dependent upon the authorization of the Ministry of Justice.

THE DECISION OF THE CONSTITUTIONAL COURT

• Merits No: 2025/209

• Decision No: 2025/276

• Decision Date: 25/12/2025

• Official Gazette Date - Issue: 1/4/2026 - 33211

PLAINTIFF REQUESTING ANNULMENT: Members of the Grand National Assembly of Turkey Engin ALTAY, Özgür ÖZEL, Engin ÖZKOÇ, alongside 132 members of parliament.

SUBJECT-MATTER OF THE ANNULMENT ACTION: Request for the annulment and stay of execution of the first and second sentences of the second paragraph annexed to Article 162 of the Notary Law No. 1512 dated 18/1/1972 via Article 13 of the Law on Amendments to the Law on Judges and Prosecutors and Certain Other Laws No. 7413 dated 23/6/2022, asserting their unconstitutionality under Articles 10, 13, 35, 40, 90, and 129 of the Constitution.

I. STATUTORY PROVISIONS SUBJECT TO THE REQUEST FOR ANNULMENT

Article 162 of Law No. 1512, to which the second paragraph was annexed via Article 13 of the Law containing the contested rules, stipulates:

“Legal Liability of Notaries – Article 162: Even if executed by trainees, clerks, or clerk candidates, notaries are liable to those who suffer damages due to the non-performance, erroneous performance, or deficient performance of a transaction.

(Contested Additional paragraph: 23/6/2022-7413/Art. 13): Notaries are also liable for damages arising from the drafting of real property sale contracts. In the event that this damage is compensated by the State, the State shall exercise a right of recourse against the notary who drafted the contract. Lawsuits to be filed against the notary shall be heard before the court of the venue where the land registry is located. The notary may exercise a right of recourse against the trainee or notary personnel who caused the non-performance, erroneous performance, or deficient performance of the transaction for the amount paid pursuant to the first and second paragraphs.”

II. INITIAL REEVIEW

Pursuant to the provisions of the Internal Regulations of the Constitutional Court, an initial review meeting was held on 8/9/2022 with the participation of Hasan Tahsin GÖKCAN, Kadir ÖZKAYA, Muammer TOPAL, M. Emin KUZ, Rıdvan GÜLEÇ, Recai AKYEL, Yusuf Şevki HAKYEMEZ, Yıldız SEFERİNOĞLU, Selahaddin MENTEŞ, İrfan FİDAN, and Kenan YAŞAR. Since no procedural deficiencies were found in the file, it was UNANIMOUSLY decided to proceed to the review of the substantive merits of the case, and to rule upon the request for a stay of execution during the substantive phase.

III. DECISION ON SEPARATION AND MERITS RECORDING

On 10/7/2025, it was UNANIMOUSLY decided to separate the action regarding the annulment and stay of execution of the first and second sentences of the second paragraph annexed to Article 162 of the Notary Law No. 1512 from the case recorded under Merits No: 2022/107, to record it under a new merits number, and to conduct the substantive review through this new merits file.

IV. REVIEW OF THE SUBSTANTIVE MERITS

Following the reading and review of the petition for lawsuit and its annexes, the substantive review report drafted by Rapporteur Onur MERCAN, the contested statutory provisions, the relied-upon constitutional rules along with their justifications, and other legislative documents, the requirement was discussed and evaluated:

A. Meaning and Scope

4. In sub-clause (3) of the first paragraph of Article 60 of Law No. 1512, executing real property sale promise contracts, recording annotations in the land registry via the land registry information system, and executing real property sale contracts are listed among the statutory duties of notaries.

5. In Article 61/A of the said Law, the procedures and principles regarding the drafting of real property sale contracts by notaries are established.

6. In the contested first and second sentences of the second paragraph of Article 162 of the Law, it is provided that notaries are also liable for damages arising from the drafting of real property sale contracts, and that in the event this damage is compensated by the State, the State shall exercise a right of recourse against the notary who drafted the contract.

7. Consequently, under these rules, the notary would be held personally liable for damages arising from a real property sale contract drafted by a notary, and a lawsuit could be directly initiated against the notary for the compensation of said damage. If the damage were compensated by the State, the amount paid would be sought from the notary via a right of recourse.

B. Justification for the Annulment Request

8. The petition for lawsuit summarizes that under the contested rules, a lawsuit can be directly filed against the notary with a demand for compensation for damages arising from a real property sale contract, and that if the damage is compensated by the State, it can be sought from the notary via recourse even if they possess no fault. It is asserted that these rules conflict with constitutional provisions mandating that compensation lawsuits for damages inflicted by public agents can solely be filed against the State, and that the State can only execute a right of recourse against public agents who possess fault. Furthermore, given that damages paid by the State arising from the keeping of the land registry cannot be sought from land registry officials who possess no fault, the rules contradict the principle of equality. It is also argued that the rules violate the property rights of notaries as well as the transacting parties of the contract, and that this situation is incompatible with constitutional rules establishing that international agreements concerning fundamental rights hold a status superior to statutes in the hierarchy of norms. Thus, the rules are asserted to violate Articles 10, 13, 35, 40, 90, and 129 of the Constitution.

C. The Issue of Unconstitutionality

1. The First Sentence

9. Article 40, paragraph 3 of the Constitution dictates: “Damages sustained by a person as a result of wrongful acts executed by official agents are compensated by the State in accordance with the law. The State’s right of recourse against the responsible agent remains reserved.”

10. In the justification of the text adopted by the Consultative Assembly regarding said article, it is stated that the fact that a violation of fundamental rights and freedoms was executed by official agents during the performance of their duties does not constitute an excuse for those agents; the damage arising from the violation shall be compensated by the State, and the State retains a right of recourse against the responsible agent due to this payment.

11. Article 129, paragraph 5 of the Constitution dictates: “Lawsuits for compensation arising from faults committed by civil servants and other public agents while exercising their statutory powers can solely be filed against the administration, on the condition that the administration retains a right of recourse against them, and in accordance with the form and terms displayed by law.”

12. In the said article, it is explicitly manifested that the administration is the sole respondent in compensation lawsuits arising from any kind of fault committed by public agents while exercising their powers. Nevertheless, the liability of the public agent who causes damage to the administration through their fault is not erased, and it is mandated that the administration must exercise a right of recourse against the responsible public agent. Indeed, the justification of the text adopted by the Consultative Assembly states that holding public agents liable for damages they inflict upon the administration through faulty actions and transactions connected to their duties is a repetition of an already executed principle (Constitutional Court [AYM], Merits No: 2014/86, Decision No: 2015/109, 25/11/2015, § 114).

13. Considering the risk that public agents may fail to pay the adjudicated compensation amount fully and on time, binding the administration with the obligation to remedy damages arising from faults committed by public agents while exercising their powers undoubtedly constitutes a safe safeguard for the compensation of plaintiffs' damages (AYM, Merits No: 2014/86, Decision No: 2015/109, 25/11/2015, § 115).

14. Accordingly, it is legally impossible to file a lawsuit directly against public agents due to damages they inflict upon relevant persons while exercising their powers. In other words, regulations that provide for the compensation of said damage by the public agent personally, and thereby permit the direct initiation of a lawsuit against the public agent, will be incompatible with the said constitutional provisions.

15. The contested rule provides that notaries are also liable for damages arising from the drafting of real property sale contracts by notaries.

16. Article 706, paragraph 1 of the Turkish Civil Code No. 4721 states that the validity of contracts aimed at transferring real property ownership is dependent upon their execution in an official form. Article 237, paragraph 1 of the Turkish Obligations Code No. 6098 similarly provides that for a real property sale to be valid, the contract must be executed in an official form.

17. On the other hand, Article 1007, paragraph 1 of Law No. 4721 states that the State is liable for all damages arising from the keeping of the land registry, and the second paragraph provides that the State shall execute a right of recourse for the amount paid against officials who possess fault in the occurrence of the damage.

18. The justification of the contested rule states that through the amendment made in Article 60, paragraph 1, sub-clause (3) of Law No. 1512 and Article 61/A annexed to the said Law, the execution of real property sale contracts by notaries was permitted. It notes that while the primary liability of the State is preserved regarding damages arising from real property sale contracts drafted by notaries under Article 1007 of Law No. 4721, notaries are also held personally liable for these damages pursuant to the principles in Article 162, paragraph 1 of Law No. 1512. Thus, it asserts that it is possible for the injured party to file a lawsuit either against the State or against the notary.

19. Accordingly, it is understood that under the contested rule, damages arising from real property sale contracts drafted by notaries are viewed within the scope of damages arising from the keeping of the land registry, notaries are held liable alongside the State for these damages, and compensation claims within this scope are permitted to be directly directed at notaries.

20. Article 1 of Law No. 1512 establishes that notarization is a public service, and that notaries authenticate transactions to secure legal certainty and prevent disputes.

21. Articles 3 and 4 of the Law grant authority to the Ministry of Justice to open or close multiple notary offices in areas exhibiting increases in work volume, and to classify notary offices.

22. The second sentence of the second paragraph of Article 4/a mandates that the promotion of a notary’s class is dependent upon a positive opinion being expressed in the latest conduct report (hal kâğıdı) drafted by a justice inspector.

23. Pursuant to Article 6, paragraph 2 and Article 17, paragraph 3, the Ministry of Justice is authorized to issue notary certificates, and notaries are appointed by the Ministry under Articles 24 and 27.

24. Article 37 provides that those appointed to a notary office for the first time must, before commencing their duties, take an oath before the Civil Court of First Instance or the individual Civil Court of Peace to which they are attached, swearing upon their conscience and honor to execute their assigned duties correctly and impartially. It mandates that one copy of the three-copy minutes drawn regarding this oath shall be sent to the Ministry, another copy preserved at the Chief Public Prosecutor’s Office, and the final copy stored in the file at the notary office. Article 39, paragraph 1 requires notaries to send specimens of their notary seals and signatures to the local governorates.

25. Article 40, paragraph 1 establishes that a notary office is deemed an official public office (resmî daire). Article 41 rules that the procurement of registers, forms, and other office materials used in notary offices, as well as the destruction of documents, are subject to provisions governing official state offices.

26. Article 50, paragraph 1 mandates that no service or post can be combined with a notary office, except for tasks assigned by judicial organs, chairmanships or memberships in scientific and charitable institutions, arbitrations, and executions of wills. Article 51, paragraph 1 dictates that daily work in a notary office shall commence concurrently with other official state offices in that locality. Article 54 establishes that notaries shall not disclose secrets learned due to their duties, except for circumstances mandated by laws.

27. Article 55 contains provisions regarding the confidentiality of notary documents and registers. Article 83, paragraph 1 mandates that notaries shall execute notary transactions within the notary office premises as a matter of principle.

28. Article 57, paragraph 1 provides that annual leaves are granted to notaries by the Ministry. Article 59, paragraph 2 dictates that the duties of notaries who fail to recover at the conclusion of the sick leave periods prescribed in the article shall be terminated by the Ministry.

29. Article 71, paragraph 3 requires notaries to send a chart showing their annual income, expenditures, and collateral amounts to the Ministry alongside the Union of Turkish Notaries (Birlik). Article 76 regulates the prohibitions imposed upon notaries.

30. Article 82 establishes that notary transactions possess an official character. It rules that transactions executed in the form of a formal drafting (düzenleme) are valid until their forgery is judicially proven, and the signatures and dates of transactions executed in the form of an authentication (onaylama) are valid until their forgery is judisely proven. Other notary transactions are valid until the contrary is proven.

31. Article 112, paragraph 1 provides that the fees of notaries—calculated over the state fees collected from transactions—as well as translation, comparison, registration, and safekeeping fees, are determined via a tariff regulated by the Ministry after obtaining the opinion of the Union.

32. Article 121 rules that notary offices are under the supervision and inspection of the Ministry and the Union. Article 122 provides that notary offices are under the continuous inspection of Chief Public Prosecutors and must be inspected at least once a year. The second paragraph notes that notary offices can also be inspected by justice inspectors.

33. Other articles (Articles 123, 124, 131, 140, 141, 145, 151-153, 196, and 200) regulate that the Ministry is authorized to suspend notaries due to an ongoing investigation or prosecution; that investigations are conducted by justice inspectors or Chief Public Prosecutors; that disciplinary sanctions and decisions of non-prosecution are reviewed by the Ministry upon objection; that disciplinary sanctions become final upon the approval of the Ministry; that notaries are deemed public agents under the Turkish Penal Code No. 5237 regarding offenses committed in connection with their duties; and that termination due to insufficiency falls within the scope of the Ministry's authority.

34. Article 66, paragraph 2, sub-clause (1) of the Income Tax Law No. 193 provides that notaries are deemed self-employed professionals. Nevertheless, considering that under the relevant provisions of Law No. 1512, notarization is a public service, a notary office is an official office, transactions executed by notaries are official acts, and the appointment, promotion, classification, inspection, and fee tariffs of notaries are executed exclusively by the Ministry, it is legally impossible to classify notaries as private commercial enterprises (AYM, Merits No: 1979/5, Decision No: 1979/29, 19/6/1979).

35. Within this framework, the core and fundamental function of notaries is to grant official character to transactions by drafting or authenticating them personally—thereby ensuring transactional security—for the purpose of securing legal certainty and preventing legal disputes. Consequently, notarization constitutes a component of the justice service, which is a classical public service (AYM, Merits No: 2022/110, Decision No: 2023/115, 22/6/2023, § 34).

36. Indeed, the Constitutional Court, taking into account the regulations in the said Law, has explicitly accepted that notarization is a public service within the scope of Article 70 of the Constitution (AYM, Merits No: 2018/89, Decision No: 2019/84, 14/11/2019, § 25). The justification of the said constitutional article states that provisions have been introduced to prevent the abuse of this right regarding the regulation of civil servants and public agents to be recruited into public service.

37. Accordingly, it is manifest that notarization is a public service and notaries are public agents. Therefore, damages arising from the drafting of real property sale contracts by notaries must be accepted as falling within the scope of damages emerging while public agents exercise their powers.

38. Consequently, permitting the direct initiation of a lawsuit against notaries personally for the compensation of damages arising from the drafting of real property sale contracts fails to comply with constitutional provisions establishing that damages arising from the wrongful acts of official agents shall be compensated by the State, and that lawsuits for the compensation of damages inflicted by public agents while exercising their powers can solely be filed against the administration.

39. For the reasons explained, the rule is unconstitutional under Articles 40 and 129 of the Constitution. It must be annulled. Since the rule is annulled due to its contradiction with Articles 40 and 129 of the Constitution, it has not been separately reviewed under Articles 10, 13, 35, and 90 of the Constitution.

2. The Second Sentence

40. Due to the annulment of the first sentence of the second paragraph of Article 162 of Law No. 1512, the second sentence of the said fıkra has lost its capacity for independent implementation.

41. For this reason, the said sentence has been evaluated within the scope of Article 43, paragraph 4 of the Law on the Establishment and Trial Procedures of the Constitutional Court No. 6216 dated 30/3/2011, and it has been decided that there is no requirement to perform a separate constitutionality review regarding this sentence.

V. EFFECT OF THE ANNULMENT UPON OTHER PROVISIONS

Article 43, paragraph 4 of Law No. 6216 provides that if the annulment of specific provisions of a statute results in the inability to implement other provisions or the entirety of the statute, the Constitutional Court may rule for the annulment of those associated provisions as well.

Due to the annulment of the first sentence of the second paragraph of Article 162 of Law No. 1512, the remaining portion of the said paragraph and the phrase “...and second...” contained in the third paragraph of the said article have lost their capacity for implementation and must be ANNULLED pursuant to Article 43, paragraph 4 of Law No. 6216.

VI. REQUEST FOR A STAY OF EXECUTION

The petition summarizes that if the contested rules are implemented, difficult-to-recover or irreparable damages may emerge, requesting a stay of execution. It was UNANIMOUSLY decided on 25/12/2025 to REJECT the requests for a stay of execution regarding the first and second sentences of the second paragraph annexed to Article 162 of the Notary Law No. 1512, as the necessary legal conditions did not materialize.

VII. JUDGMENT

Regarding Article 162 of the Notary Law No. 1512 dated 18/1/1972, annexed via Article 13 of the Law No. 7413 dated 23/6/2022:

A. Regarding the second paragraph eklendi to Article 162:

• It is ruled that its first sentence is unconstitutional, and it is ANNULLED.

• It is ruled that its remaining portion is ANNULLED pursuant to Article 43, paragraph 4 of the Law No. 6216.

B. It is ruled that the phrase “...and second...” contained within the third paragraph of Article 162 is ANNULLED pursuant to Article 43, paragraph 4 of Law No. 6216.

Decided UNANIMOUSLY on 25/12/2025.

LEGAL ASSESSMENT IN LIGHT OF NOTARY LAW, DOCTRINE, CASE LAW, AND THE CONSTITUTIONAL COURT JURISPRUDENCE

When the aforementioned statutory regulations are evaluated as a cohesive whole, it is clear that although Article 66 of the Income Tax Law classifies notaries as "self-employed professionals" for taxation logistics, the structural definition in Article 1 of the Notary Law No. 1512 and Article 70 of the Constitution firmly establish that notarization is a public service. A notary is a public agent (kamu görevlisi), and a notary office is an official public office (resmî daire).

The primary function of the notary service is to fulfill a fundamental justice function aimed at preventing legal disputes to secure public order and safety. The core statutory objective of this service is to grant official character to transactions via drafting or authentication methods, thereby securing transaction safety within the scope of the overarching justice system.

The Significance of the Constitutional Court's Annulment Decision

In light of these firm legal determinations, the Constitutional Court’s decision under Merits No: 2025/209, Decision No: 2025/276 to annul the second paragraph of Article 162 of the Notary Law is a highly accurate and legally sound judgment. This ruling successfully prevents an inequitable implementation that stripped notaries—who perform a public service—of the constitutional safeguards and immunities granted to all other public agents. By striking down this provision, the High Court effectively blocked a mechanism that exposed notaries to direct personal liability without fault, which created severe grievances and violated the principle of legal equality.

The Doctrine of Aggravated Liability for Cause (Ağırlaştırılmış Sebep Sorumluluğu)

In legal doctrine, the civil liability of notaries is classified as a strict liability regime, specifically an "aggravated liability for cause" (ağırlaştırılmış sebep sorumluluğu). In settled case law of the Court of Cassation (Yargıtay), this liability regime does not permit the defense of a mutual proof of release (kurtuluş kanıtı). Consequently, this liability stems from a violation of an aggravated objective duty of care. A notary cannot escape civil liability by merely asserting that they personally demonstrated individual care in a given transaction. To be legally released from liability, the notary must explicitly prove that even if the highest possible objective care had been demonstrated, the occurrence of the damage could not have been prevented.

When determining the boundaries of this liability, the court does not measure the notary's conduct against the standard care of an ordinary person; instead, it adopts the objective behavior expected of a specialized professional operating within the notary profession. The compensation obligation here is attached to the notary's specialized socioeconomic status and the rigorous duty of care imposed upon them by law, rather than to a subjective individual fault in a concrete case. Thus, the legal system burdens certain professions and categories with an aggravated standard of civil liability to maintain systemic institutional trust.

Pursuant to the non-annulled first paragraph of Article 162 of the Notary Law, for a notary's legal liability to arise, the following three elements must materialize simultaneously:

1. An act or omission by the notary or notary personnel connected directly to their official duties,

2. The occurrence of a measurable material or moral damage,

3. A proximate cause / causal link (uygun illiyet bağı) between the official act/omission and the resulting damage.

   If any of these three elements fails to manifest, the notary's legal liability does not arise.

Severing the Causal Link (İlliyet Bağının Kesilmesi)

A vital element in the law of obligations and tort liability is the causal link between the act and the damage. In circumstances where the causal link is severed, the strict liability actor is entirely released from liability. As recognized in both legal theory and settled jurisprudence, the causal link is severed by three factors:

• Force Majeure (Mücbir Sebep)

• Gross Fault of the Victim (Zarar Görenin Ağır Kusuru)

• Gross Fault of a Third Party (Üçüncü Kişinin Ağır Kusuru)

Where one of these three phenomena materializes, the strict liability actor is exonerated from compensation obligations. As established by the General Assembly of Civil Chambers of the Court of Cassation (May 27, 2015, Merits No: 2013/3-2329, Decision No: 2015/1444): “A notary shall be held liable only if it can be verified that the damage would not have occurred had the notary executed the transaction properly and in full compliance with their objective duty of care.”

[Diagram illustrating the elements required to establish or sever the legal liability of a notary under Turkish Law]

Deconstruction of the Core Functions of Notaries

The statutory layout of the Notary Law manifests that the tasks delegated to notaries fall squarely within the scope of non-contentious judicial matters (çekişmesiz yargı işleri), designed to alleviate the heavy caseload of the judiciary. These functions include:

• Documenting legal transactions to grant them official status as conclusive evidence (Art. 60, Art. 82),

• Executing formal "Determination Functions" (Tespit İşleri) concerning physical locations, objects, values, and identities (Art. 61),

• Preserving and processing wills and testamentary dispositions (Art. 69),

• Serving notices to invite a deserting spouse back to the common domicile (Art. 71/A-a),

• Issuing formal certificates of inheritance (Art. 71/A-b).

All of these tasks are non-contentious justice operations transferred to notaries to ensure the smooth execution of public justice. Consequently, notary offices operate as an inseparable extension of the justice service under the structural supervision of the Ministry of Justice. Therefore, it is an absolute constitutional necessity that notaries enjoy the protections and procedural immunities granted by the State to its public agents. Forcing notaries outside this protective boundary would represent a severe breach of the Principle of Equality Before the Law (Kanun Önünde Eşitlik İlkesi).

This institutional public character is further reinforced by the extensive supervision mechanisms embedded in the statute. Under Articles 121 and 122 of the Notary Law, notary offices are subject to continuous inspection by Chief Public Prosecutors at least once a year, and are routinely teftiş by justice inspectors from the Ministry of Justice Inspection Board—exactly like courts, prosecutor offices, and enforcement directorates (icra daireleri). Furthermore, the Union of Turkish Notaries and its disciplinary boards execute concurrent professional monitoring, subject to final approval by the Ministry of Justice.

Post-Annulment Legal Framework and the "Benefit-Burden" Debate

Following the Constitutional Court’s historic annulment of Article 162, paragraph 2, the strict liability regime specifically designed for real property sale contracts has become legally non-functional. Moving forward, the civil liability of notaries regarding real property transactions must be aligned with Article 1007 of the Turkish Civil Code. Under this framework, the State assumes primary and absolute liability for all damages arising from the keeping of the land registry (which now includes notary-executed sale contracts), and the State can only execute a subrogatory right of recourse against the acting notary if that notary possesses personal fault in the occurrence of the damage. This alignment perfectly restores compliance with Article 40, paragraph 3 and Article 129, paragraph 5 of the Constitution.

While this decision is structurally correct under constitutional law, it faces certain critiques from socio-economic perspectives rooted in the "Benefit-Burden Balance" (Nimet-Külfet Dengesi). Critics argue that since notaries generate substantial financial revenue through their monopoly over official transactions, they should bear an unmitigated strict liability burden, rather than having their liability threshold lowered to match that of a standard land registry clerk who earns a modest state salary.

However, constitutional equality focuses on the uniform execution of the law over public functions rather than the subjective financial standing of actors. Over the years, the literal enforcement of Article 162 has caused immense, unjust financial ruin for numerous notaries and notary personnel who were held personally liable for complex, sophisticated fraud schemes that could not have been detected through standard objective notary checks. Thus, the Constitutional Court's intervention successfully corrected a deep procedural asymmetry.

Conclusion and Legislative Necessity

The Constitutional Court's decision has successfully removed a long-standing statutory injustice affecting the notary profession. However, by striking down the second paragraph, the High Court has also rendered the first paragraph of Article 162 highly volatile and procedurally fragile, as its absolute strict liability layout faces the exact same structural friction against constitutional public agent immunities.

Therefore, there is an urgent legislative necessity to completely overhaul Article 162 of the Notary Law. The legislature must draft a new, modernized provision that seamlessly harmonizes the notary's liability with the constitutional guarantees of public service, establishing a fair, predictable, and legally sound liability framework that respects the Principle of Equality Before the Law.

REFERENCES:

• Decisions of the Constitutional Court – Official Gazette

• UYAP Portal – Legislation: The Notary Law No. 1512

• Precedents of the Court of Cassation – Court of Cassation Records

• Tanrıver, Süha; "Inquiries into Notary Law", 1993-2011, pp. 53, 61, 82, 85.