For notarial procedures carried out by visually impaired persons who are able to sign:
In view of the outcome desired by the legislator and in particular by visually impaired persons working in professions such as law, psychology, teaching, top management, etc., it is stated that, in line with the objectives of the legislation, it would be more appropriate to leave the decision as to whether the procedure is carried out in the presence of two witnesses to the free will of the visually impaired persons. The letter emphasises that, especially for visually impaired people who are able to sign, the mandatory practise of conducting proceedings in the presence of two witnesses, as provided for in the regulations, should be brought into line with the statutory provisions through necessary procedures.
As is known, Article 73 entitled "Persons with Hearing, Speech or Visual Impairments" in the first section of Part Nine of the Notary Law, which was amended by Law No. 5378 on the Disabled, stipulates that if the notary becomes aware of a hearing, speech or visual impairment of the party concerned, the proceedings shall be carried out in the presence of two witnesses at the request of the disabled person. In the case of a hearing or speech impediment without the ability to communicate in writing, two witnesses and a sworn interpreter must be present. The second paragraph of Article 75 of the Notaries Act, which was amended by Act No. 5378, also states that in the case of visually impaired persons who can sign, even if a signature or equivalent hand mark has been made in a notarial transaction, if the notary deems it necessary in view of the nature of the transaction, the condition of the person who has signed or made the hand mark and the identity, the finger of the person involved, the witness, the interpreter or the expert must also be affixed. If a seal is used, the finger must also be pressed.
Article 206 of the Code of Civil Procedure, which came into force on 1 October 2011 and regulates the situation of persons unable to sign, also stipulates that legal transactions involving persons who are unable to sign but who use a seal or other device or a fingerprint must be drawn up in the form of a notarial document.
However, the third paragraph of Article 15 of the Turkish Commercial Code, which came into force on 1 July 2012, states: "At the request of visually impaired persons, witnesses are required for their signatures. Otherwise, visually impaired persons may sign by hand." The legislator has thus accepted that visually impaired persons can generally conclude binding transactions with their signature alone, but they can have witnesses present if they wish.
Article 668 entitled "Signature" of the Turkish Commercial Code, which should also be applied to bills of exchange with a cross-reference to Article 690, states: "The declarations on the bill of exchange must be signed by hand. Mechanical aids or hand-made or notarised marks or official certificates made or approved by hand cannot be used instead of the handwritten signature. The handwritten signatures of blind persons must be duly authenticated." The third paragraph of this article was repealed by Law No. 5378 on the Disabled, and a similar provision requiring the notarisation of signatures of visually impaired persons was not included in Article 756 of Law No. 6102, which regulates the same issue for bills of exchange. Thus, there is no longer a different formal requirement for visually impaired persons when issuing documents such as bills of exchange and promissory notes (Y. 12th H.D. Decision of 3 July 2008, E:2008/8941, K:2008/14229).
Article 24 of the Land Register Ordinance, which came into force on 17 August 2013, stipulates that two witnesses must be present in land transactions if one or more of the applicants cannot sign, read or write, if there are doubts about their identity or in other cases specified by law. In the case of applicants who are hearing, speech or visually impaired, transactions are optionally carried out in the presence of two witnesses. If the disabled person does not wish to have witnesses present, this will be noted on the application form or official document. In cases where the applicant is hearing or speech impaired and cannot communicate in writing, a sworn expert who is familiar with sign language will be present.
Furthermore, the fourth paragraph of Article 8 of the "Regulation on the accessibility of banking services"," which was published in the Official Journal on 18 June 2016 and entered into force on 1 January 2017, states: "Visually impaired customers may sign contracts related to banking services after having exercised their right to receive and verify information about the contracts. In this context, a different practise cannot be introduced for disabled customers without their request."
Considering all these regulations, the requests mentioned in your letter and those previously communicated by social organisations working on behalf of visually impaired people, as well as technological developments, it is now considered that the lack of the ability to read and write does not necessarily mean that every visually impaired person cannot understand the content of a transaction. Many visually impaired citizens today have access to technological means such as SMS, email, internet, CD, DVD, memory card and other data storage devices that enable them to understand the content sent to them, review it over a reasonable period of time and access the information without alteration.
Therefore, if in a notarial transaction in which a visually impaired person is the party concerned and prefers not to have two witnesses present, the notary writes down the visually impaired citizen's statement of his actual intention after signing and the visually impaired citizen familiarises himself with the content of the prepared transaction with the help of technological developments, this can be recorded in the minutes and the obligation to conduct the transaction in the presence of two witnesses can be waived. We communicated our opinion on this matter to the Turkish Notaries Association in our letter dated 6 December 2016 under reference number 14359/18420.
Source:
Ministry of Family and Social Services