🇹🇷 Turkey

16 TURKEY

16.1 LEGAL FRAMEWORK

Law of Procedure in Turkey consists of civil procedure, administrative procedure and criminal procedure, legislative sources of which are based on the European systems. For instance, the Code of Civil Procedure (“HMK”) ( [21]) was legislated as per the Civil Procedure of Neuchatel Canton (Switzerland) and has been entirely renewed in 2011. Criminal Procedure Law (“CMK”) ( [22]), entirely renewed in 2005, is based on German criminal procedure (for the criminal code was taken from Germany); whereas the Law of Administrative Procedure (“IYUK”) ([23] ) was legislated as per French administrative law and is still being subject to alterations in accordance with the day’s circumstances and in order to comply with the development in the European acquis.

National factors, such as traditions, culture, previous Supreme Court decisions and previous State Council decisions for administrative actions, shape the overall concept of the law of procedure hence the legislations sustain national characteristics, rather differently than their source codifications, especially in terms of their applications in practice.

16.2 MAIN PRINCIPLES

1) As regards to the first instance in civil law actions; a case may either be subject to “written trial procedure (serial procedure)”, which is the main rule for civil procedures; or to “simple trial procedure (proceedings in oral)” which is applied by but not limited to the labour courts (i.e. compensation claims deriving from employment relations), civil enforcement courts (i.e. opposition to the enforcement officer’s treatments, cancellation of a tender), courts of consumer rights and cases that shall be seen before civil courts of peace.

2) In general a person needs not sending a warning letter via notary public in order to obtain the right to start an action. However, in some cases, proving of plaintiff’s bad faith is mandatory, example of which is action negatoria that covers the disputes deriving from the rights in rem for real estates. In such cases it is necessary to first send the warning letter via notary public and wait for the notified party to act in accordance with the warning. If the party does not act so, an action can be started by using the warning letter as an important evidence.

3) In terms of first instance litigation; all civil courts (commercial court, court of cadastre, IP court, consumer rights court, civil enforcement court, court of peace, court of first instance) have one judge whereas in criminal actions there is a panel of three judges in high criminal courts and one judge in criminal court of first instance and court of peace. Administrative courts are differently associated when compared to civil and criminal courts. There shall be one judge if the monetary claim is above the limit determined for the relevant year (28000 Turkish Lira – appr. € 10000 – for 2014) and three judges if above the monetary limit. Same limit applies for claiming a hearing before the court.

4) When starting an action the parties usually submit their evidence. The first petition of the claimant, along with the evidence, must be duly delivered to the defendant(s) and the legal fees of the trial must be paid by the claimant; or the cause of action shall be deemed incomplete. Petitions submitted to the court must be delivered to both parties until all petitions (bill of claims, bill of replies, bill of replications and bill of duplications) are duly collected by the judge, along with the evidences.

As for administrative procedure, it is a cause of action to send

the bill of claims to the defendant(s). Legal fees must also be paid or the litigation shall not start, the number of case number shall not even be determined.

5) Following the assessment of all evidence and statements, the local court decides on the substance of the conflict in hand and both parties have the right to appeal this decision before the Supreme Court. The time limitation for appealing depends on the type of litigation. (e.g. 15 days for commercial law cases, 8 days for labour law matters, etc.)

In administrative cases, though, if the decision is given by a one-judge-court, the name of the further action shall be “opposition” before the Regional Administrative Court. If the decision is given by three judges, then the parties may appeal the decision before the State Council.

Decisions of Supreme Courts can be subject to a “revision of decision” process; however some decisions cannot be subject to revision of decision procedure. Most striking cases are mainly decisions given on employment claims, decisions given by civil court of peace, although there are certain exceptions to this rule.

Decisions of the State Council for administrative cases can also be subject to revision of decision if and only if the revision claims fall within at least one of the points mentioned expressly in “IYUK” (administrative trial procedure act).

A further instance is “Renewal of judgment” procedure, which can only be requested should there are newly obtained evidences, which was not possible to obtain during the trial, that shall strikingly change the fate and result of the trial concluded previously. This remedy is very rare but still an important remedy.

Another last instance is judgment of the finalised decision before the Constitutional Court. This does not count as a trial

instance, for the nature of bringing an action before the Constitutional Court necessitates breach of constitutional rights of the applicant party.

16.3 IMPORTANT MILESTONES OF A TRIAL

16.3.1 First instance procedure

In terms of civil law procedure; judgment starts before relevant local courts as the first instance. The case opens with the submission of the claimant’s first petition and payment of the official judgment fees. Following this the court shall start collecting the petitions and evidences and decide whether the preliminary examination shall be made with a hearing or not. After evaluating the legal courses of the action and the preliminary objections of the parties, the court starts to examine the matter of substances. If the defendant duly opposes to the action by reason of expiration of the legal time period for the claimant to start the action, the whole case can be rejected due to procedural matters, prior to the court’s examination of the matter of substance. Therefore the procedure law rules are of vital importance for lawyers.

Although every attorney must be recorded with the bar association of only one city, all attorneys can represent their clients before all Turkish civil courts, by reason of being recorded also with the Union of Bars of Turkey.

As per administrative cases; administrative trials start with submission of claimant’s petition and payment of legal fees. If a wrongful action of the administration is received or faced with, the trial must be started within 30 days before the tax court following the official receipt or occurrence of the taxation action and 60 days before the administrative courts following the official receipt or occurrence of the administrative action.

16.3.2 Judgment and further Appeals

In terms of civil law procedure; parties can appeal the decision before the Supreme Court. Although the remedy of “civil appeal” is mentioned within the “HMK”, the courts of civil appeal are not yet established and therefore, as mentioned within the law, the remedies for civil appeal shall apply for the remedy before the Supreme Courts. Principles of the Civil Procedural Law (“HMK”) mostly need to be raised and emphasised by the parties during the law practice, whereas the criminal procedure and administrative trial procedure are mostly considered by the courts ex-officio.

Once the local court gives its decision on the case, there may either be an appealing period or not ([24] ). The appealing period starts either after the pronouncement of the verdict or after official receipt thereof by the parties’.

There are different legal periods for different jurisdictions: The appealing period for civil court of first instance and commercial courts is 15 days; where as it is 10 days for civil enforcement decisions, 8 days for labour court decisions and civil court of peace decisions. ([25] )

The period to reply to appealing claims is 10 days following the receipt of the appealing petition of the appealing party. Different appealing grounds may also be stated in addition to the reply. This procedure is called “appealing via merger”.

Supreme Court of Civil Department examines the appeal claims and the decisions it may give are “approving” of the local court’s decision; “reverse” of the whole judgment by indicating the grounds thereof; or “rectifying” the decision, which means “approving of the decision by re-assessing the bits that do not affect the result, without altering its substance” e.g. by correcting the grounds without changing the result thereof. The Supreme Court cannot give a definitive and final decision on the case but merely examines the legality of the decision and indicates the necessary legal steps and grounds that the local court should follow.

If the Supreme Court reverses the decision, the file case then goes back to the court of first instance (or “local court”) in order for it to re-assesses the case within the frame of Supreme Court’s evaluation and decision. Accordingly the local court either follows the Supreme Court’s decision; or, it insists on its own decision. Both of these decisions may be appealed against, by the parties.

At this stage;

If the local court decides to insist on the first decision and if this decision is also appealed, this time the case goes to the Supreme Court Assembly of Civil Chambers. The decision given by the Assembly is definitive and binding.
If the local court accepts to comply with Supreme Court’s decision, the court shall follow Supreme Court’s ruling and this second decision of the local court can also be appealed before the Supreme Court and the procedure continues.

If, however, the Supreme Court approves the decision, there is no remedy for re-appealing this decision. However, if the conditions are met, this decision can be subject to “revision of decision” requests.

As per criminal actions (described also under sub-heading no.6); the 7 day appeal period starts either after the pronouncement of the verdict or after serving (i.e. official communication) of it to parties’ addresses. The Supreme Court of Criminal Chambers examines the appealing claims and may “approve” the decision of the local court; it may “reverse” the whole judgment by indicating the grounds for reversing it; or it may “rectify” the decision, meaning “approving the decision by rewriting the reasoning” e.g. by correcting the grounds without changing the result thereof. The rest is similar to civil law procedure. The appealing of criminal actions is examined by the “Penal Department” of the Court of Appeal.

As per the administrative law actions; the local administrative court (tax court or administration court) decisions shall either be opposed to before the District Administration Court or be appealed before the State Council. The period to oppose to a decision before the District Administration Court or the State Council is thirty days following the date of receipt of the decision.

16.4 REVISION

Following the appealing stages on civil procedure the decision given by the Supreme Court may be subject to a “revision of decision” procedure. This is counted as an “extraordinary remedy” and may only be examined by the Supreme Court Assembly of Civil Chambers if some certain conditions within procedure law legislations are met. Legal time period to apply to this remedy is 15 days following the definitive decision of the Supreme Court.

16.5 COSTS AND FEES

The losing party must bear the legal court fees and the attorney(s) fees. If both parties win and/or lose to a certain extent, the court decides on attorney fee according to the winning proportion, thus both parties bear attorney fee of the other party. The court fees and the attorney fees are calculated on the basis of the litigation type and value. The calculation of attorney fees are based on a ‘minimum fee tariff’ officially determined every year by the Union of Turkish Bar Associations and published in the official gazette of Turkey. In this respect, the parties are not awarded other attorney fees (i.e. the fees that they agreed to pay separately to their lawyers).

16.6 PRELIMINARY INJUNCTION PROCEEDINGS

In Turkey demanding preliminary injunction is a common approach especially when the claimant has some belief that the defendant may transfer the property right of the object of litigation to a third party which causes the claimant to be unable to gain the utility expected from starting the litigation. Preliminary injunction shall be requested from the authorised court which also be the court the litigation is before. The court can decide, even ex parte and before the preliminary examination, often on the date the claimant’s petition is examined, on imposing a preliminary injunction. If the decision on preliminary injunction is given ex parte, without hearing the other party/parties, then the other party /parties may oppose to this decision in one week following the date of receipt of the decision. Also, in case there are third parties whose rights are breached by reason of this decision, those third parties may also oppose to this decision (following the date of discovery/cognition).

If the court decides to perform the preliminary examination via a hearing and serves both parties the date of this hearing, then the oppositions to such an injunction shall be considered during this hearing. If the court decides to revoke such an injunction, the defendant has a claim for compensation for his loss.

16.7 CRIMINAL PROCEEDINGS

As per the criminal law procedure; commencement of trial starts with the bill of indictment of the prosecutor (if there is no decision of non-prosecution), at the relevant local courts as first instance. Once the local court gives its decision on the case, there may either be an appealing period or not, that is to say, should the prosecutor gives the “decision for non-prosecution” then the person of interest (the suspect) shall be released and he/she shall not have any criminal records because of this prosecution. If the prosecutor drafts the bill of indictment, the hearing procedure starts and the legal name of the suspect becomes “perpetrator” (alleged criminal). Depending on the type of the crime, the alleged criminal shall be tried before a criminal court of peace, criminal court of first instance or high criminal court, either with or without arrest.

Certain criminal sanctions are also available in commercial law, enforcement law, administrative law, IP law and IT law, which are legislated separately within their own acts and/or regulations.

The high criminal court consists of three judges, including a chief judge. In criminal courts of first instance and high criminal courts the hearing prosecutor takes place nearby the panel of judge(s). Following some period of collecting evidences, arraignment, witness’ sworn statements and such and prior to the judgment of the court, the prosecutor gives his/her opinion as to the accusations and the court may or may not follow this opinion.

As a general rule the decisions of criminal court are appealable. The party who believes the decision shall be overruled must appeal the decision in 7 days following the announcement (if that party attended

to the hearing in which the decision was given) or duly serving of the verdict. If the Supreme Court decides to return the judgment by indicating the legal approach to be taken by the first instance court, then the judgment shall be carried on according to this decision. If the first instance court insists on its decision and if this decision is also appealed by a party, the case shall be examined by the Supreme Court Assembly of Criminal Chambers.

The decision of this Assembly is a definitive and abiding. Unlike the civil law procedure parties cannot apply for a “revision of decision” procedure against the decision of the Assembly. However, the Chief Public Prosecutor may oppose to the decision of the Assembly, which is an extraordinary legal remedy. In practice the party who would like to trigger the chief prosecutor to apply for this remedy drafts a petition addressing the Chief Prosecutor.

[21] Law no. 6100, published in the Official Gazette of Turkey No. 27836, came into force on October 1, 2011

[22] Law no. 5271, published in the Official Gazette of Turkey No. 25673, came into force on June 1, 2005

[23] Law no. 2577, published in the Official Gazette of Turkey No. 17580, came into force on January 20, 1982

[24] There are some actions that are not appealable i.e. should the matter of dispute is below 25000 Turkish Liras, should the case is before the Civil Court of Peace, as mentioned on article 362 of “HMK”

[25] It shall be noted that, after the establishment of “court of appeals” these period shall apply for applications to court of appeals whereas appealing before the Supreme Court period shall be one month instead.

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