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TURKISH CIVIL PROCEDURE AT A GLANCE

June 2010 - Corporate & Commercial. Legal Developments by Hergüner Bilgen Özeke.

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Dispute resolution and settlement procedures are becoming increasingly important in this time of global financial crisis, particularly in the commercial field. Consequent to the need for specialized legal counsel to prevent further disputes by structuring investments and partnerships appropriately, post-transactional litigation advice and insight into Turkish procedural law applicable to dispute resolution have become more relevant to foreign investors in Turkey. This article provides a general overview of the Turkish judiciary's structure, as well as a summary of the fundamental principles of Turkish civil procedure.

The primary legislation governing civil disputes in Turkey is the Code of Civil Procedure ("CCP"), effective since 4 October 1927 and amended from time to time to meet contemporary civil litigation needs. The CCP was inspired by the Civil Procedural Code of the Swiss Canton of Neuchatel, along with some features of French and German procedural laws. In addition to the CCP, there are certain procedural provisions under special codes such as the Law on Labor Courts, the Law on Family Courts, the Law on Consumer Protection, and the Law on Intellectual and Artistic Works, which determine the jurisdiction of specific courts and set forth special procedures applicable in civil proceedings before these courts.

Judicial System and Courts

Turkish civil courts are established in three degrees: first, second and third. The first degree courts consist of (i) General Courts and (ii) Special Courts. First degree general courts are classified in two categories, the first being the Civil Courts of Peace (Sulh Mahkemeleri), which are established in every district and some provinces, depending on the workload volume, and over which only one judge presides. Apart from certain exceptions (e.g., disputes arising from lease contracts), this Court's competence is limited to minor claims where the disputed amount is below a threshold of 7,230 TL. All lawsuits that fall outside the jurisdiction of the Civil Courts of Peace are heard by the Civil Courts of First Instance (Asliye Mahkemeleri), which form the second category of general courts. These are found in every district and province, and are sub-categorized as (a) Civil Courts of First Instance, which hear non-commercial disputes, and (b) Commercial Courts of First Instance, which hear only commercial disputes. One important difference is that only a single judge presides over the Civil Court of First Instance, while a committee of a chairman and two members presides over the Commercial Court of First Instance. All civil disputes (i) not under the special jurisdiction of specialized courts (e.g., Consumer Courts), and (ii) over an amount greater than 7,230 TL are heard by the Courts of First Instance. Specialized Courts, by contrast, are established by and operate under the auspices of special laws, in connection with specific areas of dispute, such as labor, consumer claims and intellectual property rights.

The second degree courts are the Appellate Regional Courts (İstinaf Mahkemeleri), which have been established by law but are not operational due to inadequate judicial infrastructure. These courts will introduce new procedures in connection with appeals of decisions rendered by first instance courts, but until they are established, the existing legislation concerning the appeal process of decisions will be applied. Currently, an appeal of first instance courts' verdicts should be filed before the Court of Appeals.

The third degree court is the Court of Appeals, located in the capital, Ankara. The Court of Appeals has 21 civil law and 11 criminal chambers. The Court of Appeals' 21 civil chambers are the appellate courts for all civil litigation in Turkey.

 

Phases of Civil Litigation under Turkish Law

  • 1st Phase: This is the "Exchange of Petitions" phase. A lawsuit is initiated by submitting a petition - called a "statement of claim" - to the competent court. It must set forth the mandatory elements such as the names and addresses of the parties, the subject matter of the claim, all material facts and evidence; and the relief sought. In principle, once the statement of claim is duly served on the defendant, the defendant must submit his/her responses - a "statement of defense" - within ten days. In some cases, the defendant may request a time extension to submit his/her statement of defense. Following due service of the statement of defense to the plaintiff, the plaintiff can respond to the statement of defense within ten days (which can be extended) by submitting his/her "reply to the statement of defense." Subsequently, the defendant can submit his/her responses to the reply - the "rejoinder" - within ten days (also extendable) of due service. The defendant's submission of the rejoinder concludes the "Exchange of Petitions" phase.
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  • 2nd Phase: This is the "Investigation Phase," which is generally the lengthiest process in a civil action. In this phase, the court investigates whether the parties' submissions are consistent with the material facts. In light of the parties' submissions, the court first determines the disputed items. If the court decides that all the required evidence is in the case file and there are no outstanding issues with respect to the dispute items, it declares the investigation process finalized.
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  • 3rd Phase: In civil litigation, this is the stage involving oral hearings and rendering of the verdict. Upon conclusion of the Investigation Phase, the court does not directly render its decision. Instead, by its own initiative or upon the parties' request, the court may grant time to the parties to submit additional pleadings. Subsequently, the court holds an oral hearing (consisting of pleadings which are not very long) before rendering its decision. Upon a final hearing of the parties, if the judge opines that the disputed issues have been thoroughly discussed and sufficient evidence has been collected to allow a decision to be rendered, the judge will declare that the oral hearing is over, and the court will render its decision.
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  • 4th Phase: Finally, a first instance court's decision can be appealed. Since the second degree appellate courts are not yet in operation, as of the date of this article, decisions rendered by first degree courts are still subject to the review of the Court of Appeals. The parties may ask the Court of Appeals to hold an oral hearing. The Court of Appeals renders a decision to either: (i) overrule the decision of the Court of First Instance; (ii) uphold the same decision; or (iii) approve the decision with certain changes and corrections. The Court of Appeals does not re-review the full file to assess the dispute on its merits, but only investigates whether the Court of First Instance's decision complies with law and procedure. In most disputes (which do not include certain types of lawsuits such as labor claims and set-aside proceedings), in addition to appealing a decision, the parties can request that a decision be corrected. This can be requested in limited circumstances, such as when the Court of Appeals' decision contains a contradictory element, or a forgery or fraud affects the substance of the decision.
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General Characteristics of Turkish Civil Procedure

The primary difference between Turkish civil litigation and civil procedure in Common Law systems is that the Turkish adjudicatory system is non-adversarial. In the Turkish system, judges are more actively involved during the trial, and the parties and their counsel are expected to submit their pleadings in writing rather than through oral statements.

In practice, the parties submit all their statements in writing to the case file within the time limits prescribed by the relevant court. At the hearing, the parties' have a limited opportunity to advocate their positions orally, and in practice they simply state that they repeat their submitted written statements. However, they can briefly summarize their positions and are expected to answer any questions the judge(s) may ask. Hearings take significantly less time than in Common Law practice and - in practice - neither the parties nor their counsel are given the opportunity to make detailed oral statements. This is not because the parties are prohibited under the CCP from making oral submissions, but because of the courts' heavy workload. The parties can ask witnesses to appear before the court to testify on their knowledge of facts and personal observations. However, written statements by witnesses (e.g., affidavits) are not admissible. The general procedure is that during the hearing, the parties' counsel can ask the judge to direct questions to the witnesses. Neither the parties nor their counsel can ask the witnesses questions directly, and no cross-examination procedure is available under Turkish civil procedural law.

Under the CCP, the judge does not have the authority to summon witnesses in addition to those requested by the parties. In civil litigation, the general principle is that the court is not required to investigate beyond the submissions of the parties. It is worth noting in this context that the hearing of witnesses is a form of discretionary evidence and judges are not bound by the statements of witnesses.

Also noteworthy is that the Turkish Justice Ministry has adopted a strategy for judicial reform in line with the EU acquis, putting forth certain improvements and amendments to the rules of civil procedure. Replacing the old CCP in language but preserving the main characteristics of Turkish Civil Litigation, the new draft law on the CCP will be more fitting to the needs of our age. One of the main problems being the workload of the courts, the new CCP amendments will make procedures for other dispute settlement mechanisms more effective. A draft law on mediation will also be enacted. Finally, litigators expect that the expert witness mechanism will be reformed, and that the National Judicial Network Program (UYAP) will be used more efficiently.

 

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