Turkey: Some Characteristics Of Civil Litigation In Turkey

Turkish rules of civil procedure are mainly to be found in Code of Civil Procedure of 1927 ("CCP"). CCP contains rules of procedure for civil and commercial courts excluding summary procedure for debt recovery and enforcement of judgments which are subject to the Code of Civil Execution and Bankruptcy of 1932.

Civil Courts are established in every district of the country (i.e. including small towns as well as cities) and divided as Basic Civil Courts and Peace Courts. Peace Courts have general jurisdiction on small claims for an amount not more than 100.000.000 Liras (about $ 1000) and on a number of special cases prescribed in Art. 8 of CCP. Basic Civil Courts are compatent for all other civil and commercial cases. In larger cities such as Istanbul and Ankara, the Civil Court has a Commercial Chamber which is called a Commercial Court. Cases between two commercial firms as well as all the cases concerning commercial matters defined in Art. 4 of the Commercial Code are decided by Commercial Courts.

CCP belongs to continental civil law tradition. To give a few examples, as opposed to common law countries,

• personal service is not known in Turkish procedure and service of documents is made by mail;
• pre-trial discovery (whereby the parties to an action disclose to each other all dispute related documents in their disposal) does not exist in Turkish procedure;
• parties are not permitted to cross-examine witnesses;
• expert evidence is provided by experts appointed by the court instead of "expert witnesses" in the common law fashion.

Rules concerning geographical jurisdiction of civil and commercial courts are contained in Arts. 9 et seqq. of CCP. As a rule, a case should be brought in the court of the place deemed to be the domicile of the defendant. A contract case may also be tried where the contract has been executed or where it was made, and a tort case may be filed at the place where the tort occurred. A case concerning real property shall be filed in the court of the place where the property is located.

These rules of venue determines also international jurisdiction of the Turkish courts. That is, if a district court is competent to hear a case under Arts. 9 et seqq. of CCP, it is competent to hear such case regardless of the fact that there is a foreign element involved, (International Private and Procedural Law ["IPPL"] Art. 27).

A law suit commences with a detailed statement of claims of the plaintiff, which the defendant has to answer within ten days. The answer of the defendant may include a counter-claim. Plaintiff may respond to the statement of defence and the defendant may answer plaintiff's response to the statement of defence. All of the material facts concerning the plaintiff's claims and the defendant's defence must be collected during the exchange of statements of claim and defence. As a rule, parties are precluded from bringing new facts to the case after this "exchange of statements" is completed.

The most time consuming part of the law suit is the trial. According to Turkish legal practice trial is not a single episode at which all of the proofs must be presented, but a series of adjourned hearings sometimes as many as ten, twenty hearings in a single case. It is not unusual that the first hearing is used only to fix a date for a subsequent hearing or the trial judge is changed and a new judge comes to office before the trial has completed.

It is peculiar to Turkish rules of evidence that, as a rule, all transactions involving 10.000.000 Liras ($ 100) or more can only be proved by means of documentary evidence. Documentary evidence must be in the form of a written document containing the signature of the opposite party. However, in commercial cases where both of the parties are commercial firms or "merchants" as defined in the Commercial Code, each party may prove his claim or defence by submitting his own books of account.

The Turkish judicial system provides only two court instances, namely first instance district courts and the Court of Cassation in Ankara. There is no third instance between the first instance and the Court of Cassation at which an appeal on the matters of fact or law is possible. In addition, no leave is required to appeal to the Court of Cassation. In practice, an appeal is ritually lodged against most of the first instance judgments, even in the absence of a convincing ground of appeal.

In practice, Court of Cassation reviews factual determinations as well as legal questions. Grounds for reversal of a judgment, beyond the traditional legal grounds found in common law, include "erroneaus estimation of the principle matter" (incorrect fact finding), (Art. 428, No. 5 of CCP). However, as a result of its excessive workload, the work of the Court of Cassation becomes a routine process where only those cases with most principle or financial importance can be proved in detail. The Court of Cassation uses even "master decisions" either approving the judgments of the first instance courts with a general phrase or reproduces the opinion of the court in some frequently appearing legal matters, which may be entered into a computer adding the names of the parties etc. and sent back to the district court.

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.