Turkey: Turkish Civil Procedure At A Glance

Last Updated: 13 July 2010
Article by Hergüner Bilgen Özeke

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.1 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.
  • 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.
  • 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.
  • 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.

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.2

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.

Footnotes

1. This amount is determined every year. For 2010, the threshold has been determined as 7,230 TL

2. Cross-examination is possible in criminal proceedings in Turkey.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Hergüner Bilgen Özeke
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Law Practice Management
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.