The Amendments to the Turkish Code of Civil Procedure (“the Code”) and Certain Laws numbered 7251 (“the Amendment”) was published in the Official Gazette on 28 July 2020. The Amendment addresses several grey areas that have arisen in practice during the period of application of the Code since its entry into force in July 2012. In this article we discuss briefly those amendments to the Turkish Code of Civil Procedure and certain laws that will play an important role in practice.
Principle of Publicity
Before the Amendment, only the parties of the proceedings were entitled to request that some or all sessions of a hearing should be held in private. The Amendment stipulates that third party requests for private hearings shall also be considered by the courts pursuant to the rights of privacy of third parties.
A clause has been added to Art. 94 of the Code, stipulating that when a judge makes an order that is subject to a peremptory period, the implications of the said order must clearly be declared and at the same time the parties must be notified of the consequences of any failure to comply with the said order. The addition aims to rectify frequently encountered scenarios in which courts set a peremptory term but omit to notify the parties of the consequences of non-compliance with the said term which results in the court issuing such notice only when the party fails to comply with the order within the peremptory term granted. This obviously is a practice that hinders the desired effect of peremptory terms therefore the amendment is a welcome addition.
Claim with undeterminable quantum
The previous version of the Code stipulated that if the quantum of the claim is not determinable with precision at the time of the commencement of the proceedings, the claimant may increase the quantum when the quantum can be ascertained based on information obtained from the other party or during the investigation stage of the proceedings. The Amendment introduces a time limit for the amendment of the quantum, namely a two-week peremptory period to be granted by the judge. The purpose of this amendment is again to expedite the proceedings within clearly set boundaries but raises concern on the level of interference by the judge, to the extent that the judge may be seen to be guiding the claimant to take a procedural step.
Period for the submission of the points of defence
The Amendment clarifies that extensions granted for the submission of points of defence shall commence from the date of expiration of the original time period set forth by the law. The amendment aims to unify varying interpretations of the Code by courts.
Invitation to the preliminary investigation hearing
Art. 13 of the Amendment introduces an important change to Art. 139 of the Code which sets the deadline for submitting evidence that was listed in the list of evidence but was not submitted to the court by the relevant party annexed to the party’s submissions. As per the previous version of the Article, the court would grant the parties two weeks on the preliminary examination hearing to submit such evidence. The Amendment moves this deadline to an earlier stage by stipulating that the two-week period shall be granted not at the preliminary examination hearing but in the invitation of the parties to the preliminary examination hearing, so that parties are required to submit all evidence indicated in their submissions within two weeks from the time they are served with the invitation to the preliminary examination hearing.
Expansion and variation of claim and defence
Pursuant to the previous version of the Code, the parties may expand or vary their claim and defence freely during the written submissions stage and also with the opponent’s consent at the preliminary examination hearing. Further, if one of the parties had not attended the preliminary examination hearing without a valid excuse, the party in attendance was entitled to expand or vary their claim and defence without obtaining the absent party’s consent. The Amendment however stipulates that the parties may only expand or vary their claim and defence freely during the written submissions stage but that such expansion and variation shall not be permitted once the exchange of written submissions takes place, i.e. no expansion or variation would be allowed during the preliminary examination period even if the opposing party gives consent. This amendment ensures that all of the parties’ evidence is submitted and/or collected by the time that the first hearing begins.
Time and form of amendment of the claim or defence
Pursuant to Art. 177 of the Code, the claim or the defence may be amended for once until the end of the examination stage. For the sake of achieving clarity in practice, Art. 18 of the Amendment adds wording stipulating that the claim or defence can also be amended under certain circumstances after an overruling judgment of the Court of Appeal and the referral of the file back to the first instance court, until the end of the first instance court’s examination. However, if the first instance court decides to follow the Court of Appeal’s ruling, the legal outcome of the same cannot be altered by amending the claim or the defence.
The previous version of Art. 186 of the Code stipulated that the court shall invite the parties to an oral hearing after the conclusion of the examination stage and in this oral hearing, the court shall ask the parties to make their final submissions. The court would subsequently render a judgment. The Amendment however requires the court to commence the oral hearing stage of the proceedings at the hearing in which the court announces the conclusion of the investigation period. The purpose of the amendment is to avoid any loss of time between the end of the examination stage and the commencement of the oral hearing stage. The amendment does not shut the door entirely to the parties who may wish to prepare for the oral hearing stage and stipulates that upon request of one of the parties, the oral hearing may be postponed for a minimum duration of two weeks. The aforementioned amendment makes it clear that the court will not send another invitation for the oral hearing to the parties, whether they are present at the oral hearing or not.
Timing of waiver, acceptance and settlement
Pursuant to Art. 310 of the Code, waiver or acceptance of the claim by a party may be made at any time until the finalisation of the judgment. Art. 29 of the Amendment makes an addition to Art. 310, stipulating that in case the waiver, acceptance or settlement takes place after the first instance court renders its original judgment and the parties apply for an appeal, the case file shall not be sent to the appellate court and that the court of first instance (or the Regional Court of Appeal) shall render a supplementary judgment regarding the waiver, acceptance or settlement.
On the other hand, if the waiver, acceptance or settlement takes place after the case file has already been referred to the appellate court, the case file would be returned to the first instance court for a supplementary judgment to be issued in respect of the waiver, acceptance or settlement.
Time-extension for objections to experts’ reports
Parties have two weeks to file objections to reports issued within the course of the proceedings by court appointed experts. The Amendment stipulates that this two-week period may be extended by a maximum of two weeks by the court if sufficient ground exists.
Appeal in relation to preliminary injunction and precautionary attachment orders
Pursuant to Art. 34 of the Amendment, a clause has been added to Art. 341 of the Code stipulating that an appeal may be filed against the following decisions of the courts of first instance: (i) final judgments and (ii) dismissal of applications for preliminary injunction and precautionary attachment, (iii) preliminary injunction and precautionary attachment orders issued in the presence of the opposing party and (iv) decisions of courts rendered in respect of objections to preliminary injunction and precautionary attachment orders issued in the absence of the opponent party.
This amendment aims to reconcile conflicting precedents of the Court of Appeal about the means available to a party facing a preliminary order for challenging the said order.
Enforcement of a preliminary injunction decision
The previous version of Art. 393 of the Code required the applicant of a preliminary injunction to apply for the enforcement of the preliminary injunction order within one week starting from the date that the order was rendered. The change introduced by Art. 41 of the Amendment is that the one-week application period shall commence on the date that the decision is served on or pronounced to the applicant. This amendment is aimed to avoid circumstances where the applicant’s time to apply for the enforcement of the order was missed or shortened due to the court’s order being backdated (dated earlier than the actual date the order was issued) and to relieve the applicant from the burden of monitoring the application frequently so that the applicant becomes aware of the order as soon as it has been issued.
As set out in the examples above, the Amendment aims to bring clarity to several grey areas that surfaced following the entry of the Code into force as well as fine-tuning certain procedures in an effort to achieve a more efficient system of civil procedure. The problems of the Turkish civil procedure certainly do not arise solely from governing rules but the Amendment nevertheless is a welcome development.
Please do not hesitate to contact us if you have any questions regarding the Amendment.