Turkey: Proposed Amendments Within The Scope Of The Forthcoming Second Judicial Reform

The first package of the Judicial Reform Strategy was entered into force with the publication of the "Law No. 7188 on the Amendment of the Code of Criminal Procedure and Certain Laws" on the Official Gazette on October 24, 2019. Subsequently, the second package of the Judicial Reform Strategy was put on the parliament's agenda with "The Legislative Proposal on the Amendment of the Code of Civil Procedure and Certain Laws" ("Proposed Law"). The Proposed Law embodies amendments that concern various laws and matters, inter alia:

- Pursuant to Article 28/1 of the Code of Civil Procedure No. 6100 ("CCP"), hearings are public. However, as per Article 28/2 of the CCP, the court may decide to exclude the public from all or part of the trial, ex officio or further to a party's request, when public morality and public security necessitates so. Article 2 of the Proposed Law amends Article 28/2 of the CCP by adding "when relevant persons' best interest that is worth preserving necessitates so" as a ground for confidentiality. Also it makes it possible for any relevant person to request confidentiality in a trial.

- Article 36 of the CCP regulates grounds for recusation. Article 3 of the Proposed Law amends Article 36 by adding "if the judge has acted as a mediator or conciliatory at the dispute" as a ground for recusation.

- The old version of Article 107 of the CCP enabled the claimant to increase their claims in unquantified debt lawsuits; however, the current version of the article does not stipulate any time limits regarding this demand. Article 7 of the Proposed Law amends the relevant article and provides that judges may grant a peremptory term of 2 weeks to claimants to increase their claims in unquantified debt lawsuits, when it becomes possible to precisely determine the amount or value of the claim.

- Article 11 of the Proposed Law amends Article 125 of the CCP by regulating that in case the lawsuit is concluded against the plaintiff, the transferor of the subject matter and the transferee will be jointly severally responsible for the court expense.

- Article 12 of the Proposed Law amends Article 127 of the CCP by providing that, in cases where it is very difficult or impossible to prepare the reply petition during the period of two weeks as of service of the lawsuit petition, the defendant who applied to the court can be given an additional period up to one month, "starting from the end of the original reply period". Currently, so without this amendment, the text of the article does not specify the starting point of the additional period; nevertheless, in practice, the courts grant this period starting from the end of the original reply period.

- Article 13 of the Proposed Law redefines the content of the invitation (summon) for the preliminary examination hearing. It adds that, the summon shall include a warning that parties should complete their evidences within two weeks of peremptory period as of the receipt, otherwise the parties shall deem as they have desisted from basing their claims on those evidences.

- As per Article 141 of the CCP, the parties may extend their claims and defenses during the preliminary examination hearing, provided that the counterparty openly consents to it. Article 15 of the Proposed Law, however, amends Article 141 of the CCP by stipulating that the parties can amend their claims or defenses only with their replication and duplication petition and that they will be subject to prohibition of extension of claims and defenses after this stage.

- Pursuant to Article 17 of the Proposed Law, courts have given the authority to decide to hold hearings elsewhere within the provincial boundaries, through sound and video information system, in case of a factual obstacle or a security reason.

- In civil proceedings, the parties may amend their pleadings, either completely or partially, "until the end of the investigation phase", in accordance with Article 177 of the CCP. Nevertheless, the exact time until when the parties may amend their pleadings, in particular, the issue of whether or not the parties may amend their pleading after a reversal decision by the High Courts is highly debated under Turkish Civil Procedural Law. Even so that, there are two judgments given by the High Court of Appeal General Assembly of Unification of Judgments, ruling that amendment is not possible after a reversal; however, the debate in the legal doctrine has never ended. With a view to end this everlasting debate, Article 19 of the Proposed Law, amends Article 177 of the CPP by adding that following the reversal of a decision by the High Court of Appeals or the Regional Court, if the Court of First of Instance carries out investigatory proceedings, amendment of the pleading shall be possible until the end of the investigation phase.

- Currently, the parties are not entitled to request time extension for submitting their objections against an expert report. Article 25 of the Proposed Law amends Article 281 of the CCP by adding that parties may request a time extension to object to expert reports; however, the extension may only be given once and cannot exceed 2 weeks.

- Article 28 of the Proposed Law amends Article 305 of the CCP by adding that parties may request from the Court of First of Instance to make a ruling on any issues that were not resolved during the trial of the Court of First Instance within 1 month from service of the decision.

- Articles 30 and 31 of the Proposed Law amend Article 310 and 314 of the CCP by providing that in case the withdrawal, acceptance or settlement of the case elicited after the service of decision, the file will not be sent for the appeal, even the parties have requested for appeal. Accordingly, the relevant court shall take an additional decision in accordance with the withdrawal, acceptance or settlement.

- Article 35 of the Proposed Law amends Article 341 of the CCP and extends the scope of the appealable decisions. Further to this amendment, preliminary injunction and preliminary attachment decisions rendered in the presence of the opposing party and decisions given as to the objection against such decisions rendered in the absence of the opposing party may be appealed before the regional court.

- As per Article 41 of the Proposed Law, in case the foreign court or arbitral tribunal is competent regarding the case, the preliminary injunction decision should be requested from the Turkish court that is competent within the boundaries of the subject of the preliminary injunction.

- Pursuant to Article 45 of the Proposed Law, in case the preliminary injunction decision is rendered prior to initiating a lawsuit before the competent foreign court or arbitral tribunal, the party requesting injunction should file the lawsuit on merits before these institutions within 1 month as of the date when execution of this decision is requested, otherwise the injunction will be removed ipso facto.

- Article 46 of the Proposed Law amends the Article 398 of the CCP by detailing the proceedings in case obligors fail to comply with orders regarding the implementation of preliminary injunction decisions or they violate the decision.

- Article 51 of the Proposed Law amends Article 258 of the Enforcement and Bankruptcy Law No. 2004. The current version of the relevant article provides that claimant may appeal the refusal decision of the preliminary injunction; however, the new version stipulates that the one the preliminary injunction decision is granted against may also appeal such decision.

- Article 53 of the Proposed Law amends the Cadastral Law No. 3402 with an additional article that provides appeal opportunity before the regional courts or the Court of Appeals with regard to the decisions rendered by the cadastral court or by general courts for cases based on pre-cadastral cause initiated following the expiration of the 30-day public display and announcement period or cases regarding the forest cadaster.

- Pursuant to Article 54 of the Proposed Law, the case value threshold for the cases that are pursued by one judge stipulated under Article 5 of the Law No. 5235 on Establishment, Duties and Jurisdiction of First Instance Courts and Regional Courts of Appeal has been increased to 500,000.00 TL.

- Article 58 of the Proposed Law amends Article 4 of the Turkish Commercial Code No. 6100 by regulating that the case value threshold for commercial cases subject to simple proceedings has been increased to 500,000.00 TL.

- Article 59 of the Proposed Law amends Article 73 of the Law No. 6502 on Consumer Protection by introducing a mandatory mediation, which is subject to exceptions, as a condition for disputes within the scope of consumer courts, not arbitral tribunals for consumers.

In conclusion, the Proposed Law, by introducing the foregoing amendments, aims at solving various issues that are faced in practice. It goes without saying, if enacted, it will resolve many controversial practice and bring a level of clarity to the practical issues.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2020. A link to the full Legal Insight Quarterly may be found here.

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.