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The Turkish civil court system does not utilise a jury system. Instead, a judge or panel of judges will resolve disputes. All judges in Turkey are appointed by the High Council of Judges and Public Prosecutors.
Structurally, the civil court system in Turkey functions on three levels:
Turkish nationals who have graduated from law school can be admitted as a lawyer, but only after completing a one-year internship and registering with one of the Bar Associations in Turkey.
Only Turkish lawyers have the right to appear before Turkish courts and the authority to act as an attorney in Turkey. Foreign lawyers may not practise law in the Turkish judicial system. Nevertheless, foreign law firms may operate in Turkey, provided that there is reciprocity and the partnership is incorporated in accordance with the regulations laid out in Turkish law; however, these foreign firms may only advise on international law matters. This limitation, namely that foreign attorneys advising on international law matters may not practise law in the Turkish judicial system, also applies to Turkish lawyers working in such a foreign partnership.
Civil litigation in Turkey has its roots in Swiss law. The former Civil Code of Procedure No. 1086, which entered into force on 18 June 1927, was adopted from the civil procedure code of Swiss Canton of Neuchatel. The CCP has been amended numerous times to accelerate, simplify and make the judicial system less costly. In recent years, all fundamental laws have been reviewed and revised, including the CCP. The CCP was superseded by a new Code of Civil Procedure, which entered into force on 1 October 2011. Recent reforms in the Turkish Civil Code, legislation for a new Commercial Code and Code of Obligations, and the adoption of rules for establishing Regional Courts in the former Code of Civil Procedure have all contributed to the development of the new Code of Civil Procedure.
As the general competent court in Turkey, the court of first instance has jurisdiction over all cases related to property and personal rights, except for those cases assigned by law to other courts.
In principle, the venue is the competent court where the defendant resides. However, the law designates alternative venues in certain circumstances. For instance, the competent court for contractual disputes may be the court at the defendant’s domicile or the court at the place of the contract’s performance.
There are exclusive forums for certain disputes. For instance, cases relating to immovable property must be brought before the courts at the place where the property is located. Apart from disputes subject to exclusive jurisdiction, the parties may agree on a specific forum in Turkey, provided that both the parties are merchants or public entities.
According to the International Private and Procedural Law No. 5718 (IPPL), parties may agree on a foreign venue, as long as the dispute has a foreign element and is arising from an obligatory relation, the venue is not dictated by rules of exclusive jurisdiction, and the provisions of jurisdiction do not contravene Turkish public order. However, parties may not refer disputes relating to insurance, consumer agreements and employment to a foreign venue.
Turkish courts are not attractive for foreign disputes.
One of the conditions for trial is that the dispute in question shall not be pending before another court. The courts shall examine the conditions for trial ex officio, but the other party may also object to the non-fulfilment of this condition at any time. The claim shall be dismissed on procedural grounds if the court finds that the dispute in question is between the same parties, concerning the same subject matter, and stemming from the same cause of action (CCP articles 114 and 115).
In the event that a dispute is submitted to the courts despite the existence of an arbitration agreement, the parties may raise an objection. Provided that the arbitration agreement is valid, the dispute does not concern public order (eg, real estate ownership), and the parties’ intent to submit the dispute to arbitration is clear and without doubt, the court will dismiss the case. However, it should be noted that objections regarding the existence of an arbitration agreement are preliminary objections and must be submitted, at the latest, with the response to the statement of claim in order to be considered by the court.
Courts may review arbitral awards on jurisdiction based on the grounds set forth in the International Arbitration Law No. 4686 (IAL) and the CCP, according to which arbitral awards may be annulled if the requesting party proves that the arbitrator or arbitral tribunal erred in its ruling on jurisdiction.
There are no specific regulations concerning anti-suit injunctions in Turkey.
As a party to the Vienna Convention on Diplomatic Relations (1961), the Convention on the Privileges and Immunities of the United Nations (1946), and the Vienna Convention on Consular Relations (1963), Turkey provides jurisdictional immunity to those persons with diplomatic status.
Foreign states may be sued before Turkish courts in disputes related to civil law or commercial disputes, as long as the case does not concern state sovereignty.
Proceedings are commenced by the filing of a case before the court. The parties in principle have authority on filing, admitting or withdrawing the case, and the court is bound by the claims and defenses of the parties. A court cannot make a decision beyond what the parties have argued, but it may decide on a more narrow ground.
Facts and evidence underlying the claims and defences are brought by the parties to the court, and the court may evaluate only these facts and evidence, although it may request further explanation in case of ambiguity. Likewise, the court may also request an expert witness and question a party regarding the facts of the case. Although the facts and evidence are produced by the parties, the court has the sole authority to decide which legal rules are applied to the matter.
If the parties do not appear before the court or state that they will not follow up on the case, the court will remove the case file. However, in the event that only one of the parties appears at the hearing, the adjudication may proceed upon the request of that party. In this case, the other party that did not attend the hearing without a valid excuse may not object to proceedings undertaken in its absence.
A claim is filed through a petition and this petition must include or show evidence to substantiate the claim. As prescribed in the CCP, a petition for filing a claim must include the summary of the material facts (sequentially numbered), the value of the subject matter of the claim, explanation of evidence for each claim, the cause of action, and the explicit relief sought, as well as the name of the court, and the names and addresses of the parties and their legal representatives, if any, and the Turkish ID number of the claimant. This petition must be signed by the claimant or claimant’s legal representatives, if any. Additionally, claimants should attach copies and, if possible, originals of related documents to the petition.
A statement of defence must be submitted within two weeks after a petition has been served. Defendants may request an extension of up to one month for the pleading, before the prescribed two-week period expires. Statements of defence must include the subject matter of the brief, the answers to the facts relied on by the claimant for each allegation, and legal responses, as well as the name of the court, and the names and addresses of the parties and their legal representatives, if any, and the Turkish ID number of the defendant. The reply must be signed by the defendant or defendant’s legal representative, if any. Preliminary objections, including the statute of limitations, counterclaims and jurisdictional objections, must also be laid out in the statement of defence.
A claimant may reply to the statement of defence within two weeks upon service. The defendant may then serve a rejoinder within two weeks. Both of these time periods may also be extended up to a month upon request.
Parties are permitted under the CCP to amend their claims and defences, either wholly or partially, during their submission of reply to the respondent’s defence and rejoinder to the claimant’s reply until the court’s preliminary investigation. Afterwards, the claims and defences may be amended or broadened if the other party gives its explicit consent. If the other party does not give its consent, the claims and defences may be amended or broadened once in the same case by an act that is called ıslah (improvement of the case), until the court renders a decision. If the entire claim is amended, a new statement of claim must be filed within one week or else the amendment will be invalid.
Only parties or intervenors in a case may file submissions to the court and, accordingly, amicus briefs are prohibited.
Only parties may access civil court filings; however it is possible for non-party attorneys to examine the civil court filings so long as they do not take any copies. Non-parties may only examine the file if they can prove their interest in the case and obtain approval from the judge. Civil hearings are open to the public unless otherwise decided by the court due to requirements of public morality or security. However, photography and audio recording, outside of what the court itself may shoot and record when necessary, are strictly prohibited during the hearing. Non-party attorneys’ review of court filings may also be limited if deemed to be necessary for public security and morality.
The CCP calls for a preliminary investigative stage to take place after the initial exchange of petitions. During this mandatory stage, the court investigates the conditions for filing a suit and preliminary objections, specifies the dispute, and completes all of the preparations necessary for evidence to be presented and collected. The court will then encourage parties to settle or mediate. If the parties choose not to exercise these options, the court will then continue with the proceedings. Parties may partially or entirely settle the dispute before trial or during the litigation, up until the final judgment is rendered. Settlement is considered to be legally binding and equivalent to a final judgment.
The CCP requires the court to encourage mediation during the pre-investigation phase. If the parties refuse mediation, the court will proceed to the trial if there is no other challenge. It is not mandatory for the parties to refer their dispute to ADR. The Law on Mediation in Civil Disputes, which was published in the Official Gazette dated 22/6/2012, regulates the mediation procedure for foreign and local disputes arising out of private law matters that are subject to the parties’ will.
In commercial disputes the courts may grant either interim attachments or interim measures. An interim attachment is granted when the claim requested to be secured relates to a particular amount of money. However, if the claim is related to rights or assets other than a particular amount of money, such as property, then an interim injunction may be granted by the court.
In general, the grounds for interim measures are not limited by law, and judges may issue this form of interim relief at their discretion to prevent damage or danger to the subject matter of the case. Requests for interim measures must be in writing and demonstrate that the merits claimed are legitimate, though the party need not demonstrate that it will absolutely win at trial.
However, grounds for interim attachments are limited and may only be considered if (i) the person requesting the interim attachment is the creditor of the receivable (ii) the receivable is not secured by a pledge, or (iii) the receivable is overdue money. In case the debt is not yet due, the following conditions are required in order to grant an interim attachment: (i) the debtor does not have a known residence, or (ii) the debtor is preparing to flee or hide or transfer his assets or the debtor himself flees or for this purpose conducts fraudulent transactions that violate the rights of the creditor.
Requests for interim relief may be filed before the competent court at any time before or during a case.
Courts may render two types of final and binding decisions in civil matters: a judgment on the merits and a decision regarding the procedure. Judgment on the merits may be an injunctive judgment (eg, ordering performance of a contract, transaction or act), a declaratory judgment or a constitutive judgment.
Turkish law does not allow for common law summary judgment and analogous remedies. In certain circumstances, if conditions for trial are not met, a court may refuse to hear a case and dismiss the case on procedural grounds.
Generally, a judgment is rendered by the court once the trial has been completed. The trial takes place after the initial filings and preliminary investigation stage, when the court has determined that the evidence and pleadings are sufficient. The court will declare an end to the trial stage once the oral hearing(s) have been completed and render a decision if it believes that all issues have been discussed to the fullest extent. Otherwise, the court may order further investigation if it finds the materials provided to be inconclusive.
A default judgment may be rendered if a party has been duly summoned with a statement that the case would proceed in its absence, yet still fails to appear at the hearings. In such a case, a party with a valid reason may seek re-examination of the default judgment, regardless of applicable time limits.
In principle, after the initial filings and the preliminary investigation stage, there are two hearings for examining evidence and hearing the parties, between which is a period of one month. However, in practice there are many instances where the court on its own extends this one month period, such as when an expert examination cannot be completed in time or when the court gives rogatory commission to another court. The court may also conduct more than two hearings if the case necessitates further investigation. Consequently, due in part to these practices and the workload of the courts, it can take up to two years or more for a commercial court to render a final decision, not including appeal.
More than one party can file a suit or become defendants together. The joinder of parties is compulsory if the disputed right is one that has to be claimed by multiple parties or filed against multiple parties according to law. Such parties are bound by procedural actions taken in their absence, as there is only one suit applying to all parties. In discretionary joinder, parties may permissively join a suit together, provided that the parties have common rights and duties or the case is based on the same or similar facts or legal grounds. The claims of the parties in discretionary joinder are independent from each other, and, thus, they act separately.
Moreover, if there is a connection between the cases and if they are in the same judicial framework, level and title, these cases may be combined by the court on its own or upon request of a party. Similar to discretionary joinder, the claims of the parties and their actions are independent from each other and they may act separately.
Third Party Notice
If a party to a case believes that a third party may seek recourse from them if they were to lose said case, they may request that the court notify the third party with a written and reasoned notice explaining the stage of the adjudication. The third party can intervene in the proceedings with the party whose success would benefit him. In case the notified third party chooses not to intervene, and the party whose success would benefit the third party loses the case, the notified third party cannot hold the party to dispute responsible for losing, except in cases of fraud or gross negligence.
Intervention occurs in one of two ways, primary and accessory intervention. In primary intervention, a third party who claims a partial or full right on the dispute files a suit against the parties in the same court before the final decision is rendered. Primary intervention and the original adjudication are then carried out and concluded together.
In accessory intervention, a third party aiming to help the party whose success it would benefit from intervenes alongside that party. This form of intervention is initiated through a written and reasoned petition that is served on the parties. The intervenor can follow up the suit from the time its request for intervention is approved and can take any procedural action, as long as it does not contradict the actions or explanations of the party on whose side it intervened.
The court relies on the evidence presented by the parties, as each party is obligated to prove its case unless otherwise provided by law. Accordingly, the party must submit or point to evidence it relies on during the exchange of petitions. Also, there are certain documents that, under the CCP and Commercial Code, must be submitted to court, including: the written instruments that submitted documents relied upon, letters exchanged between the parties regarding the dispute, documents regarding mutual interests and dealings, and documents that both parties independently or jointly possess.
Parties are obliged to comply with principles of good faith, thus their explanations regarding the facts upon which the case rests should be accurate. A party must produce documents used as evidence by itself or the other party to the court. If such evidence is not in the possession of the parties, the court may order it to be brought by a third party or governmental official to the court or, if for some reason it cannot be moved, for such evidence to be examined where it is held. If the court believes that the party holds a requested document that is mandatory to prove a fact in the case, the court will request the production of this document within a fixed time. In the event that the party fails to submit the requested document and neither denies possessing it nor swears under oath that it does not hold this document, or submits the document late without an adequate excuse, the court may accept as true the arguments made by the opposing party as to the document’s contents. Parties cannot abandon the evidence they relied on without the express consent of the other party.
Witnesses of fact are generally invited to give oral testimony, although the court may also send questionnaires to witnesses as a substitute for oral evidence. When giving oral testimony, witnesses of fact are not allowed to use written notes. If a witness informs a judge that dates, figures, or issues are contained within notes that the witness must consult, the judge may permit or order the witness to appear at another session.
The court may appoint experts either on its own or on a party’s request, with the court maintaining the final authority to decide whether or not to appoint an expert. Experts are appointed in cases where particular information, such as technical information, is necessary to resolve a dispute. The court determines which questions to ask the experts after consulting the parties. Expert witnesses, who must be impartial, can only give opinions on facts established by the court; they cannot provide opinions on legal matters. These experts may be challenged within one week of the party becoming cognisant of reasons for said challenge, and their opinions may be objected to within two weeks following the notification of their report.
Besides court-selected experts, the CCP allows parties to obtain and submit party-selected expert opinions. The court may decide to invite the party-selected experts to hearing, where the court and the parties may question these experts.
Parties to proceedings cannot act as witnesses. However, where it is necessary to clarify the dispute, parties, including their directors and officers, may be invited by the court, on its own or upon a party’s request, to be questioned on the facts that form the basis of the case.
Witnesses who do not speak Turkish are assisted by a translator.
A party who introduces foreign-language documentation must also submit its translation to the court. The court, on its own or upon a party’s request, may ask for an official translation of any foreign-language documents.
Foreign law cannot be directly applied before Turkish courts. However, official documents issued by foreign authorities are assumed as official documents before Turkish courts provided that these documents are approved by the relevant foreign authority or Turkish consulate, and such reciprocity is otherwise agreed in a multinational agreement to which Turkey is a party.
There are two types of proof specified in the CCP: final evidence and discretionary proof. A confession, final judgment, signed instrument, and oath are all final evidence and, consequently, are considered to be binding. Witness statements, expert reports and opinions, and discovery are discretionary proof that the court may choose to accept at its discretion. It is important to note that a signed instrument cannot be disproved by a witness statement.
If the value of a transaction is more than 2500 TL, the minimum standard of proof is a signed instrument, save for limited exceptions as specified by the law, such as transactions between close relatives.
As new provisions relating to appeals in the CCP are not applicable until the regional courts are operational, provisions of the former CCP regarding appeals are still in force. Thus, the grounds for appeal of first degree court decisions to the Court of Appeals include:
The time limit for appellate applications is 15 days following the service of the decision on the parties. However, a final decision regarding receivables and movable property whose value is less than 2,190 lira cannot be appealed.
When the appeal provisions of the new CCP come into effect, it will be possible to appeal final decisions of the first instance court, interim injunction decisions and decisions rendered upon objections to interim attachment orders to the Regional Appeal Court. However, final decisions of cases regarding property with a value of less than 1,500 TL are final and cannot be brought to Regional Courts for appeal. Similarly, if only a part of a receivable is brought before the court, the 1,500 TL-threshold is determined pursuant to the total amount of the receivable. If the total amount of the receivable is brought before the court and the unaccepted part of the receivable is less than 1,500 TL, the decision regarding the unaccepted part also becomes final.
In certain cases, such as receivables whose value is greater than 25,000 TL, parties will have the right to appeal decisions of the Regional Appeal Court to the Court of Appeals. Under this new system, the appeals from the court of first instance must be filed within two weeks following service of the decision on the parties. Appeals from the Regional Appeal Court must be filed within one month of the decision being delivered to the parties.
Standard of review
What aspects of a lower court's decisions will an appeals court review and by what standards?
The Court of Appeals does not reinvestigate factual aspects of the case or merits. It reviews whether the lower court decision complies with procedure and law. Unlike the Court of Appeals, the Regional Appeals Court may reinvestigate the merits of the case. However, the reinvestigation is limited to the grounds stated in the appeal petition, except for violations of public order, which shall be examined ex officio.
In practice, an appellate decision is usually obtained around a few years after a final ruling has been issued by the court of first instance. However, some cases are pending before appeal for a longer time period, as there is no upper time limit to obtain an appellate decision before the Court of Appeals.
There are certain rules that may be utilised to accelerate the appellate proceedings. In principle, the appellate court decisions of the Court of Appeals are rendered without a hearing and are based on the case file alone. However, the parties may request a hearing provided that certain conditions are met (eg, the case relates to termination of legal personality or annulment of general assembly resolutions, or the value of the action, in personam or in rem, is more than 22,400 lira); the court may also on its own decide to hold a hearing regardless of the above conditions. There should be at least fifteen days between the notification of the parties regarding the decision to hold a hearing and the hearing itself. After the Regional Appeal Courts begin to operate, the Court of Appeals threshold to hear the cases will be 60,000 lira and the minimum period between the notification and the hearing will be two weeks.
Until the new system is introduced, the request for an appellate decision of the Court of Appeals to be rectified may be made to the Court of Appeals within 15 days of the decision being serviced.
Historically Turkish law has allowed only for multi-party litigation. However, litigation that is similar to a class action and called “collective action” is now available under the new CCP for legal persons. Legal associations, corporations, and other legal entities may, within the framework of their statute and on their behalf, file a collective action suit in order to determine the rights of those concerned, to remedy a breach of law, or to prevent abuse of future rights of those concerned, with the purpose of protecting members’ benefits. Unlike typical class actions, these collective suits may not be for monetary damages.
It is the right of each shareholder and the company itself to claim damages against directors of the company who do not comply with their statutory obligations and the obligations arising from the company’s articles of incorporation. If successful, these damages will be paid to the company.
If a corporation faces bankruptcy, creditors, in addition to the shareholders, may also bring an action for damages, provided that the bankruptcy administration fails to bring such an action.
Turkish law provides for a simplified procedure, which is applied to proceedings that can be concluded in a shorter time or with simpler examination (eg, those that are subject to the jurisdiction of the civil courts of peace, those related to recognition and enforcement of foreign arbitral awards, or requests for interim measures). Parties still submit petitions, but they must specify and include all evidence and any information regarding collection of such evidence in their petitions, as it is not possible to submit joinder and rejoinder in this simplified procedure.
It is not possible to conduct proceedings in a foreign language. The CCP requires non-Turkish speakers to use a translator and foreign documents to be submitted with Turkish translations.
Judgment prevents the parties from bringing an action between the same parties regarding the same subject matter and on the same ground of action. A final judgment constitutes direct and final evidence for those parties to whom it is addressed (see question 31).
Judgment is binding upon the parties and their successors. A judgment is also binding for third parties who acquire property of, restricted real rights, or derivative possession over the subject matter of the case. However, judgments that are binding on one of the joint creditors and a debtor or one of the joint debtors and a creditor are not binding on other creditors and debtors that are not party to the case.
A domestic judgment is enforced through execution offices, and disputes relating to execution proceedings are settled before execution courts, which are subject to the procedural rules provided in the Execution and Bankruptcy Law.
The party seeking enforcement first submits the judgment to the enforcement office, following which the office will notify the debtor via a writ of enforcement. This writ will require the debtor to comply within a certain time. If the debtor does not comply within this time period, other actions to ensure enforcement are legally available, such as attachment, forced compliance, or sale of attached property.
A foreign judgment may be enforced in Turkey if it is considered to be a final decision and if the Turkish courts render an enforcement decision.
The competent venue for enforcement decisions is the court of first instance. Anyone who has a legal interest in enforcement may apply to the court with (i) a petition accompanied by the original and approved foreign judgment or its certified copy with an approved translation, and (ii) a duly approved statement or instrument proving the judgment final, with its approved translation.
The conditions for enforcement are as follows (IPPL articles 50 and 54):
Turkish courts may also partially enforce decisions. Decisions on whether or not to enforce a foreign judgment are subject to appeal.
The successful party may recover costs and fees from the losing party in proportion to the amount awarded. If there is more than one losing party, the court may order proportional payment or declare them conjointly responsible. The costs to be borne by the losing party shall be the court fees and expenses, and the attorney fees calculated according to the minimum attorney fee tariff issued by the Turkish Bar Association.
If parties do not have adequate finances to pay for the costs of the court proceedings, legal aid provided by the state treasury is available.
Pure contingency fees are prohibited in Turkey. Fees that are conditioned upon an event, such as winning or winning a certain amount, are allowed up to 25 per cent of the total amount at stake, provided that the attorney’s base fee is equal to or greater than the minimum rate set by the Union of Turkish Bars.
Turkish law does not provide any specific regulations regarding third-party funding.
Fee scales are set by the Union of Turkish Bars. The minimum rates are updated regularly. The maximum legal fees permitted are 25 per cent of the amount in dispute.
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Standard of review
What aspects of a lower court's decisions will an appeals court review and by what standards?