A practical guide to information rights, the special audit procedure, and court enforcement under the Turkish Commercial Code

Turkish law gives shareholders of a joint stock company (anonim sirket, or “AS”) two connected but distinct tools to respond to exactly the situation described: unexplained discrepancies in board-approved financial statements, and a board that stonewalls detailed questions at the general assembly. The first tool is the statutory right to information and inspection. The second, and the one that most directly answers the question “can I force an independent audit,” is the right to request a special audit (ozel denetim) under Articles 438 through 440 of the Turkish Commercial Code (TCC, Law No. 6102). Both routes can end up in front of the Commercial Court of First Instance (Asliye Ticaret Mahkemesi) if the company refuses to cooperate.

The Two-Step Framework

Turkish company law does not let a shareholder go straight to court and ask a judge to order an audit out of the blue. The system is built in layers, and each layer has to be exhausted before the next becomes available:

Step 1 – Information and inspection right (TCC Art. 437): the shareholder asks the board, at the general assembly, for information about the matters that concern them, and may ask to inspect the company’s books and correspondence on that specific point.
Step 2 – Special audit (TCC Art. 438-440): if the information received is unsatisfactory, the shareholder asks the general assembly to appoint an independent expert (a “special auditor”) to investigate specific, identified events. If the general assembly refuses, qualifying minority shareholders can ask the court to appoint the special auditor directly.

Courts have consistently held that a shareholder who skips straight to a special audit request without first having raised the matter through the information/inspection channel, or without identifying concrete events to be clarified, will have that request dismissed. The two rights are legally independent, but in practice the special audit is understood as a more powerful extension of the same information right, reserved for situations where ordinary questioning at the general assembly was not enough.

Step 1: Information and Inspection Rights (Article 437)

Every shareholder, regardless of how small their stake is, can ask the board of directors questions about the company’s affairs at the general assembly, and ask the auditor about the conduct and results of the audit. This right is not limited to the items on the agenda, and it cannot be removed or restricted by the articles of association or by a resolution of any corporate body (Art. 437/2 and 437/6). The board must answer carefully, truthfully, and completely – a vague or evasive answer does not satisfy the obligation.

The company may refuse to disclose specific information only if disclosure would reveal a trade secret or endanger another protectable company interest, and it must give a concrete, case-specific reason for doing so – a generic claim that “this is confidential” is not sufficient. If the same information has already been given informally to another shareholder outside the general assembly, every other shareholder is entitled to the same information in the same detail, and the confidentiality defense cannot be used to block that follow-on request (Art. 437/2, fourth sentence).

A shareholder may also ask, at the general assembly or by written request to the board, to inspect the parts of the company’s commercial books and correspondence that relate to their question. This requires either the general assembly’s express consent or a board resolution, and the inspection may be carried out through an expert (Art. 437/4).

What if the board refuses or stalls?

If a request for information or inspection is left unanswered, unfairly refused, postponed without justification, or answered inadequately, the shareholder may apply to the Commercial Court of First Instance at the company’s registered seat – within ten days of an outright refusal, or within a reasonable time in other cases (Art. 437/5). The proceeding follows summary (simplified) procedure. The court can order the company to provide the information in writing and, where an inspection was requested, order the company to make its books, ledgers, correspondence, payroll records, and any other relevant documents or electronic records available to the shareholder or to an expert of the shareholder’s choosing. A judgment in the shareholder’s favor is a final, immediately enforceable decision; if the company still does not comply, the shareholder can pursue enforcement under the Enforcement and Bankruptcy Code, and company officers who defy the court order can ultimately be held in coercive detention of up to three months for non-compliance.

This route is useful, and it creates an important paper trail (the general assembly minutes and the company’s written responses), but it is not, by itself, an “audit.” It gets you documents and answers to specific questions – the deeper, independent examination the questioner is describing is the special audit, discussed next.

Step 2: The Special Audit (Articles 438-440)

The special audit is the mechanism that actually answers “can I force an independent audit.” It allows a shareholder to have specific, identified events relating to the company’s management or financial affairs examined by a court-appointed independent expert, with a formal report at the end.

Conditions for requesting a special audit

The shareholder must already have exercised the information or inspection right on the matter (Art. 438/1) – this is why Step 1 above is a precondition, not an optional extra.
The special audit must be necessary for the shareholder to exercise their shareholder rights in an informed way.
The subject matter must be specific and identifiable – a general request to “audit the company’s finances” will be rejected; the request must point to particular, concrete events (for example, a specific related-party transaction, a specific write-down, or a specific set of entries behind the disputed balance sheet figures).

The general assembly stage

Any shareholder – even a shareholder with a single share – can ask the general assembly to approve a special audit into specified events, and this request can be raised even if it was not on the published agenda. Two outcomes are possible:

If the general assembly approves the request, the company or any shareholder can apply to the Commercial Court of First Instance within thirty days to have the court formally appoint the special auditor. Because there is no real dispute at this stage (the company itself has agreed), this application is treated as a non-contentious (uncontested) proceeding – the court’s role is essentially administrative, to name the auditor.
If the general assembly rejects the request, the door does not close. Under Article 439, shareholders representing at least 10% of the share capital (5% in a publicly held company), or shareholders whose shares have an aggregate nominal value of at least TRY 1,000,000, may apply directly to the Commercial Court of First Instance at the company’s seat within three months of the rejection, asking the court to appoint a special auditor itself.

A shareholder holding a 10% stake, as described in the question, meets the capital threshold on its own (in a non-listed AS) and does not need to combine forces with other shareholders to bring this application – assuming the prior steps (information/inspection request, then a specific special-audit request to the general assembly) have already been completed.

What the court examines

Where the general assembly has rejected the request, the court does not merely rubber-stamp the shareholder’s wish. Under Article 439, the petitioner must show, in a convincing manner, that the founders or the company’s organs have violated the law or the articles of association and thereby caused loss to the company or to the shareholders. Turkish courts and legal commentary describe the standard of proof required here as closer to “credible showing” (yaklasik ispat) than full, conclusive proof – the special audit exists precisely because the minority shareholder typically lacks full access to the evidence at this stage, so an unreasonably high evidentiary bar would make the right meaningless in practice. If the court is satisfied, it defines the precise scope of the investigation and appoints one or more independent experts to carry it out.

Is the court’s decision final?

Article 440/2 states that if the court grants the request, its decision appointing the special auditor is final (no ordinary appeal). Whether a decision rejecting the request is equally final is genuinely disputed in Turkish legal practice: the Court of Cassation (Yargitay) has, in several recent rulings, treated rejections as final as well, closing off appeal; but this reading has drawn published dissenting opinions within the Court of Cassation itself, arguing that treating a rejection as final – as opposed to a decision granting the audit – restricts the constitutional right to a fair trial and denies minority shareholders any further recourse. A number of Turkish commentators share the dissenting view and have called for a legislative clarification. In practice, this means a shareholder whose special audit request is denied by the first-instance court should not assume the case is automatically over without first getting current advice on whether an appeal is realistically available given how the specific court has framed its decision.

What a special auditor can do, and what happens afterward

Once appointed, the special auditor examines the specific matters defined by the court – this can include the company’s books, minutes, contracts, correspondence, and electronic records to the extent relevant to the identified events – and reports back. The company bears the costs of the audit in principle, although the court can shift some or all of the costs to the requesting shareholder if the circumstances justify it (Art. 444). The resulting report is not, by itself, a damages award: its practical value is that it gives the shareholder concrete, admissible evidence to support (or decide against) a follow-on liability action against board members or controlling shareholders responsible for any wrongdoing it uncovers.

A Note on Corporate Groups

If the company in question is part of a corporate group (for example, if it is controlled by a parent company), a separate and in some ways easier special-audit mechanism exists under TCC Articles 207 and 406, aimed specifically at whether the controlling company has properly compensated (denklestirme) any losses it caused. That route does not require a prior general assembly stage or a minimum shareholding, but it has its own trigger conditions (broadly, a qualified auditor’s opinion or a board statement that no compensation was made) and is beyond the scope of a straightforward minority-shareholder dispute over unexplained balance sheet entries. It is worth flagging to counsel if the company sits inside a larger group structure.

Practical Path Forward

Based on the facts described – a 10% shareholder, unexplained discrepancies in board-approved balance sheets, and a board that will not engage at the general assembly – the realistic sequence is:

Formally exercise the information/inspection right: put specific, itemized questions about the discrepancies on record at the general assembly (or in writing to the board beforehand), and make sure the response – or lack of one – is captured in the minutes or in writing.
If the answer is inadequate or refused, raise a specific special-audit request at the next general assembly, identifying the exact entries, transactions, or events to be examined – not a general call for an audit.
If the general assembly rejects that request, file an application with the Commercial Court of First Instance at the company’s seat within three months, relying on the 10% shareholding threshold, supported by the general assembly minutes and any written correspondence with the board.
If successful, use the special auditor’s report as the evidentiary basis for a shareholder liability action against the directors (and, where relevant, controlling shareholders) responsible for the discrepancies.

Because each step has strict short deadlines (ten days after an outright refusal for the information-right route; thirty days after general assembly approval, or three months after rejection, for the special-audit route) and because the evidentiary showing has to be framed correctly from the outset, this is not a process to run without qualified local counsel.