The proposal anticipating comprehensive amendments to the Code of Civil Procedure ("CPC") entered into force on 01.10.2011 and certain other laws ("Proposal") was submitted to the Grand National Assembly of Turkey ("TBMM") Judicial Commission on 20.03.2020.1 It is currently on the agenda of the TBMM.
If these amendments are introduced, a total of 19 amendments will be made to the CPC during its 9-year period in effect. Although it is expressed by the Law Enforcer that the amendments are aimed at speeding up the trial process, just how fast the proceedings are to be accelerated is a subject of discussion. Academics who took part in the preparatory phase of the CPC also criticized that they had not been consulted about these amendments.2
With the latest Proposal, which is currently on the agenda of the Turkish Grand National Assembly, regulations have been made on some issues that are alleged to prolong the trial process, cause excessive labor and overtime, and create uncertainty and hesitation in practice.
Regulations Included in the Proposal
Firstly, in accordance with the regulation to be made in Article 20 of the CPC, pursuant to the annulment decision of the Constitutional Court dated 10.02.2016 and numbered 2015/96 E. and 2016/9 K., it has been stipulated in the law that the event that the decision of non-jurisdiction and rejection of venue is final, the start of the two-week period foreseen for the notification of the decision to the parties, and for the submission of the request to be sent to the competent court, shall start from the notification.
Among the circumstances where hearings are held in secret, as stipulated in the Article 28 of the CPC, the circumstance of "having a superior interest worthy of protection for the people concerned with the judgment" has been added, and an exception to the rule for holding the hearings publicly was introduced. The first criticism that comes to the forefront is that this arrangement is open to interpretation and abuse.
With the Proposal, among reasons for the refusal of a judge, the reason of judge having previously served as mediator or conciliator in the same dispute has been added. It is foreseen that an appeal may be filed against the decisions of the authority examining the request for the refusal of the judge.
Although there is no hesitation in this matter, in practice, with the regulation introduced to Article 94 of the CPC, how the explanation and the warnings to be made by the judge should be made in cases where a peremptory term is granted by the court is stipulated in the law.
Paragraph 3 of Article 107 (which regulates uncertain receivable lawsuits) which allows filling a partial declaratory action in cases where an action for performance may be filled is repealed. Having said that, a comprehensive amendment to paragraph 2 is made, and when it is possible to determine the amount or value of the receivable fully and precisely, it is envisaged that the request will be determined fully and precisely by the judge giving a two-week peremptory term before the inquiry ends. The preamble of this regulation, which is thought to cause contradiction due to the judge's commitment to demand, and the lack of such a regulation in the partial case, leaves the determination of when the receivable is to be determined to the judge.
With the Proposal, the objection of competency, between the civil courts of first instance and the commercial courts, in Article 116 of the CPC is removed from the first objections. Thus, the relationship between the civil courts of first instance and the commercial courts of first instance, was also included in the law.
Another arrangement in the Proposal relates to the evidence and advances, including advance on costs and experts, and discovery and witness expenses received in advance upon filing the lawsuit. In fact, in the CPC, it is clear what the advance on costs and evidence advances are, and when they should be collected. However, in practice, evidence advance costs are collected at the beginning of the case along with the advance on costs. This situation causes an advance deposit in high amounts upon the filling of a case. Therefore, with the planned change, the obligation to deposit the evidence cost advance with the court cashier when filing a lawsuit, has been eliminated.
Article 123 of the CPC is also amended with the Proposal, and if the case is withdrawn, the court decides that the case should be deemed as "non-filed." In the preamble, it is stated that different decisions have been made on the subject, and it is aimed to ensure uniformity. With the amendment made in Article 125, if the case is concluded against the plaintiff after the transfer of the case, it is regulated that both the transferor and the transferee will be jointly responsible for the court expenses.
With an addition made to Article 127 regulating response time, the provision stating that the additional time granted shall start from the end of the response time, has been included in the text of law. It was stated in the preamble that it is aimed to eliminate any confusion in this regard. With the amendment to be made in Article 281, the possibility of requesting an additional two-week period for the declaration to the expert report period has been enabled.
In the Proposal, amendments are made in Articles 139, 140 and 141 of the CPC. With the amendment, a warning is added to the invitation of the preliminary investigation hearing for the submission or subpoena of the evidence, which has been presented, but has not yet been submitted within a period of two weeks. The judge is obliged to be notified of the principles, process and legal consequences of settlement and mediation. With the amendment, it is forbidden to expand the claim and defense except for the amendment of pleading and consent of the other party after the petition phase is completed. In this way, the exemption granted to the prohibition of expanding or changing the claim or defense granted against the party who did not come to the hearing at the preliminary examination stage, is lifted.
The amendment of Article 147 regulates a call for hearing and for the oral proceedings of the trial, aside from the investigation. Pursuant to the mentioned Article, the invitation that is to be sent to the parties provides for the following: The court shall proceed with the oral proceedings of the trial at the last hearing of the investigation: No additional invitation shall be sent if the hearing for the oral proceedings of the trial is to be postponed; and the judgment may be delivered in their absence, without prejudice to Article 150. The amendment to Article 149 cancels the requirement to obtain the parties' consent for the hearings that are held through video and audio sharing, and regulates that the decision regarding holding such hearing may be decided upon request or ex officio. Another amendment is to Article 151, which regulates the order of the court during a hearing. The relevant amendment provides that attorneys who do not represent either party may be asked by the judge to leave the courtroom if order cannot be maintained.
An important amendment is regarding the "amendment of pleading." With the amendment to Article 177, an amendment of pleading would be possible even after the reversal decision of the higher court. The newly drafted provision regulates that when the case is reversed and sent to the first instance court, an amendment of pleading is possible until the proceeding reaches its conclusion, without any prejudice to procedurally acquired rights.
The Proposal provides a new Article, that being Article 183/A, titled "Proceeding with a Panel of Judges." This provision regulates how a proceeding would be conducted with a panel of judges, and the allocation of the issues between the delegated judges and the panel. As to Article 186, which regulates oral proceedings of the trial, the amendment provides for the following issues that are indeed contrary to the ratio of the CPC: Another invitation for the oral proceedings of the trial shall not be sent; The court shall proceed with the oral proceedings of the trial after declaring at the hearing that the investigation is completed; and, if requested by either of the parties, the hearing for the oral proceedings of the trial may be postponed up to two weeks.
Another newly drafted Article is Article 305/A, titled "Completion of the Ruling." Pursuant to the said Article, a party may ask the court to deliver an additional decision regarding an issue which is already claimed, or should have been decided upon ex officio.
The Proposal also provides regulations for settlement and waiver procedures. Accordingly, if parties have settled, or a party has waived its right for a claim after the decision is rendered, a ruling shall be delivered without any review of the higher court, even if a challenge has already been raised. The drafted amendment of Article 341 adds decisions on precautionary measures, or provisional attachments that are not delivered in the absence of either party, to the decisions that can be challenged. Therefore, the parties may appeal the decision without waiting for the objection procedure.
The amendment to Article 353 renders it possible for the regional appeals court to reverse the decision and send the case back to the first instance court if the "significant part of the claim is left open without any decision." The addition to the said Article enables the regional appeal courts to send the case back to the first instance courts, just as the court of cassation, although the regional appeal courts may also decide on the merits of the case.
The newly added third paragraph of Article 359 regulates that it is sufficient for the regional appeal courts to state that the decision of the first instance is in compliance with the law when the appeal is rejected, so long as the appeal court summarizes the grounds for appeal, and explains the grounds for rejecting the appeal. This amendment raises the questions as to the principle for rendering decisions along with the reasoning, and might result with appeal court rulings that are composed of a couple lines, much the same as the court of cassation rulings.
Regarding the precautionary measures, the Proposal provides that a precautionary measure may be requested before the Turkish courts, when the dispute is brought before a foreign state court or before an arbitrator. Such request should be addressed to the court where the property or the right is attached. Also, in order to prevent contradicting decisions regarding the precautionary measures, the decision shall be written with sufficient reasoning if the request is rejected, and the decision may be challenged. Also, the provisional attachment under the Bankruptcy and Enforcement Law provides for a similar regulation. Another provision in the Proposal states that the decision regarding a precautionary measure could be challenged in one week from "the declaration or the service" upon the requesting party, as opposed to the "date of the decision."
The proposal further adds proof of the service of record and the expert's report upon the other party regarding the "determination of evidence," under Article 402. Thus, determination of evidence in the absence of the other party would be precluded.
The proposal increases the threshold for simple procedures, and for the panel of judges in commercial disputes, from TL 300.000 to TL 500.000. Also, it becomes mandatory with the Proposal to exhaust the mediation procedure before bringing lawsuit concerning consumer disputes.
The Proposal that is currently before the TBMM provides for significant amendments to the CPC dated 01.10.2011 and to other relevant legislation. In the preamble of the Proposal, it is stated that the aim is to hasten the proceedings and clear certain contradictions that have arisen during the practice of the law. However, certain amendments pose a risk to bring further problems, and a significant portion of the issues covered with the Proposal were already settled with the court rulings. On the other hand, amendments on procedural issues, such as amendment of the pleading, settlement, waiver, preliminary inspection, oral proceedings of the trial, precautionary measures, and the procedure of the regional appeal court, are significant. Also, thresholds for simple procedures and the panel of judges are increased, and mediation has become mandatory in consumer disputes.
2. Prof. Dr. Hakan Pekcanitez, Prof. Dr. Oguz Atalay, Prof. Dr. Muhammet Özekes: Hukuk Muhakemeleri Kanunu ile Bazi Kanunlarda Degisiklik Yapilmasina Dair Kanun Teklifinin (2020) Degerlendirilmesi, https://blog.lexpera.com.tr/hmk-ile-bazi-kanunlarda-degisiklik-yapilmasina-dair-kanun-teklifinin-2020-degerlendirilmesi/.
Originally published on June 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.