“Legislative Proposal on Amendments to the Code of Civil Procedure and Other Laws” (“Legislative Proposal”) dated 20/03/2020 and numbered 103 was submitted to the Speaker’s Office of the Grand National Assembly of Turkey (“Parliament”) by the Group Presidency of the Justice and Development Party. A number of notable amendments to the procedural provisions in the Legislative Proposal, which is currently in the Parliamentary Justice Commission and is expected to be discussed at the General Assembly of the Parliament, are as follows;
Preamble of the Legislative Proposal
With the Legislative Proposal in the Justice Commission of the Parliament, it is aimed to conduct the proceedings more efficiently and capably and to resolve the complications of the proceedings expressed in the practice and doctrine.
Notable Amendments in the Legislative Proposal
In the first phase, notable amendments arranged at the Legislative Proposal, consisting of 63 articles, together with the effective clause, are as follows;
I. Action of Indefinite Debt
An action of indefinite debt is a case where the claimant states the legal relationship and a minimum amount or value while filing an action, in which the amount or value of the claim cannot be expected to be fully and precisely determined at the date of the case, or where it is impossible to do so. In order to put an end to the controversy regarding when the claim/debt is certain/determinable in practice, it is considered to amend Article 107 of the Law no. 6100 on Civil Procedure (“CCP”).
According to the subject amendment, when it is probable to determine the amount or the value of the claim in full and precisely, the claimant shall determine the claim in full and precisely within the two-week period to be given by the judge before the end of the investigation phase, and shall complete the charge shortfall. Otherwise, the case will be considered and decided on the amount or value specified in the requests section of the lawsuit petition.
II. Transfer of the Matter in Dispute
After the filing of the case, if the matter in dispute is transferred by the claimant, the person taking over will replace the claimant in the case being seen and the case will continue from where it left off. With the regulation to be brought with the Legislative Proposal, in case where the case results against the claimant, the transferor and the transferee shall be jointly and severally liable for the litigation expenses.
III. Additional Imparlance
In accordance with the written trial procedure, the imparlance is two weeks from the notification of the petition to the defendant, but in some cases mentioned in the law, this period can be extended. In cases where it is notably tough or impossible to prepare the reply petition within a 2-week period, an additional period not exceeding one month may be given to the defendant, for once only, who applied to the court during this 2-week period. In the simple trial procedure, the additional period is 2-weeks.
With the regulation to be introduced by the Legislative Proposal, it has been clarified about the date from which the additional period given will start. According to the Proposal, the additional period will start after the end of the reply period. A similar arrangement is envisaged for the simple trial procedure.
IV. Execution of Hearings via Audio and Video Transmission and Execution of Hearings Elsewhere
A number of amendments were made to the regulation currently in Article 149 of the CCP with the intent of giving application area to the execution of hearings via audio and video transmission and execution of hearings elsewhere.
According to the arrangement in the Legislative Proposal, the judge may, at the request of one of the parties, decide to allow the requesting party or its attorney to attend the hearing from their location and perform procedural procedures by means of simultaneous transmission of audio and video. Similarly, the judge may, on its own motion or upon the request of the parties, decide that the witness, expert witness or specialist should participate in the proceedings with the same method. The judge will be able to decide that the parties involved in cases and matters over which the parties shall not dispose shall be heard via this method.
With this arrangement, it is considered that the party representatives, especially attorneys, who wish to use the audio and video transmission system will have to create adequate audio and video transmission infrastructure in their offices, create physical environments similar to Sound and Video Information System (SEGBIS) rooms if necessary, and eventually make a certain amount of investment. Similarly, considering that a significant amount of data will be transferred simultaneously, the infrastructure of the Ministry of Justice will need to undergo significant enhancement maintenance.
V. Renovation After Rescission and Reversal of Decision
When the file is sent to the court of first instance after the reversing decision of the Court of Cassation or the rescission of decision of the District Court of Appeals, with the amendment to be brought with the Legislative Proposal, renovation can be made until the end of the investigation phase if the court of first instance takes action on the investigation. The boundary in this respect is the mandatory regulation that the legal situation arising from complying with the reversing decision cannot be eliminated.
VI. Completion of the Verdict
In addition to the provisions concerning the procedures of clarification and correction of decision laid down in the CCP, the procedure for completion of the verdict will be introduced. By this way, it is aimed to correct the situations where the clarification of decision, which is the procedure of explaining the aspects of the verdict that may cause confusion in practice and the correction of the verdict, which is the procedure of correcting the errors of writing and calculation in the verdict and other similar obvious errors, are not sufficient.
In the procedure of completion of the verdict introduced in the Legislative Proposal, it is envisaged that each party may request an additional decision within one month from the notification of the final decision on matters not decided by on in whole or in part, although it is necessary to be written in the verdict or alleged in the proceedings.
With the given amendment, it is intended that appeals arising from obvious errors such as omission or erroneous calculation of matters such as litigation costs and counsel fees that must be ruled by the court ex officio will be deducted from the workload of the District Court of Appeals and the Court of Cassation.
The procedure of clarification of decision, regulated in Article 306 of the CCP shall apply to the procedure of completion of the verdict.
VII. About Interim Injunctions
Along with the Legislative Proposal, significant amendments will be made to the requests for interim injunctions and procedures for appeals for the decisions related to that.
With the Legislative Proposal, request of appeal can be filed against the decisions of courts of first instance on refusal of requests of interim injunctions and warrant of distraint, interlocutory injunctions and decisions of warrant distraint issued against the face of the other party and decisions made on appeal against interlocutory injunctions and decisions of warrant distraint issued in the absence of the opposing party.
With the amendment made to the Article 390 of the CCP on the decision of interim injunctions, it is arranged that the decisions of refusal of the interim injunction requests shall be given reasoned, legal remedies can be pursued against the these decisions, the party whom the interim injunction is decided against may also apply to legal remedies and that these applications will be examined primarily and decision given will be definite.
It has been decided that the period for the request to be made for the application of the interim injunction shall begin not from the date of the decision, but from the notification or pronouncement to the party requesting the interim injunction.
Where a foreign state court, an arbitrator or an arbitral tribunal has jurisdiction, the interim injunction shall be requested from the Turkish courts where the right or thing subject to the request is located.
VIII. Mandatory Mediation in Consumer Disputes
In the case of disputes in consumer courts, the mediation shall be considered as a procedural requirement before the lawsuit is filed, with the legislation of the requested regulations to be brought with the Legislative Proposal. Disputes within the competence of consumer arbitration committees, appeals to the decisions of the consumer arbitration committees, lawsuits mentioned in the Articles 73/6 and 74 of the Consumer Protection Law and disputes arising from the true essence of the immovables in the nature of the consumer transactions are counted as exceptions to the said amendment in Law no. 6502 on the Protection of the Consumer (“Consumer Protection Law”).
Enforcement and Procedure
The Legislative Proposal submitted to the Parliamentary Justice Commission on March 20, 2020, in general terms, is intended to eliminate the question marks arising regarding the implementation of the CCP in practice. With the Legislative Proposal, certain gaps in the law which were previously filled by the higher judicial bodies are filled; regulations that are contrariwise to certain precedents of the higher judicial bodies has also been included in the articles of the Legislative Proposal.
It is predicted that the Legislative Proposal will be adopted by the General Assembly of the Parliament and put into effect after its publication in the Official Gazette. The provisions of the Legislative Proposal shall be enforced by the President, if it will be enacted.
The full text of the Legislative Proposal can be accessed here.
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