Recent development
The third package of the Judicial Reform Strategy Document, the Law Amending the Civil Procedure Law and Certain Laws No. 7251 (“Law“) was published in the Turkish Official Gazette on July 28, 2020. The Law amends the Civil Procedure Law (“CPL“) in line with the purposes and aims determined within the scope of the Judicial Reform Strategy Document.
What’s New?
The Law’s most important amendments to the CPL are as follows.
- Judges can decide to hold trials closed to the public if the parties have superior interests worth preserving
The amendment to Article 28 of the CPL, “Principle of publicity”, expanded the scope of situations where judges may decide to conduct the legal proceedings confidentially. The former regulation allowed confidential proceedings only for public morality and/or public security reasons. Pursuant to this amendment, judges can also order to hold confidential proceedings if the relevant parties’ superior interests require confidentiality.
- If possible for the plaintiff to determine the amount or value of their receivables in unquantified debt lawsuits, the plaintiff will be granted two weeks to quantify the amount of their claim
With the amendment to Article 107 of the CPL, “Unquantified debt lawsuit”, in unquantified debt lawsuits where the plaintiff is able to determine the amount or value of their claim fully and precisely, the judge will grant a two-week period to the plaintiff to definitively quantify the amount of their claim before the conclusion of the investigation phase. Before the amendment, the plaintiff’s specification of their claim was not subject to a time window. Pursuant to this amendment, the plaintiff is obliged to definitively determine their claim within this two-week period granted by the judge before the conclusion of the investigation phase; otherwise, the lawsuit will continue based on the amount and value initially specified in the lawsuit petition and a decision will be rendered accordingly.
- Parties cannot expand their claims or defenses after the exchange of petitions
Before the amendment to Article 141 of the CPL, “Expanding or changing claims or defenses”, the parties could expand their claims or defenses at the preliminary examination phase by obtaining the other party’s explicit consent or without obtaining the consent of the party if they failed to attend the preliminary hearing unexcused. With this amendment, these two circumstances allowing the expansion of claims or defenses are removed from the CPL; the amendment now regulates that the parties cannot expand or change their claims or defenses after the exchange of petitions between the parties. We would like to point out that the parties’ right to amend their claims and defenses is reserved and as will be explained below, the Law expanded the scope of circumstances allowing the amendment of claims and defenses.
- Parties may request to attend the hearing virtually
Before the amendment to Article 149 of CPL, “Conducting a hearing through transmission of audio and video signals”, the court could only permit parties to attend the hearings and conduct procedural proceedings through videoconference provided that all parties gave their consents. Pursuant to this amendment, upon the request of one of the parties, the court may decide that the requesting party or their counsel attend the hearing virtually. In addition, the amendment allows witnesses, experts or expert witnesses to be heard before the court virtually, and the court may decide to hold the hearing at another place, with the Justice Commission’s approval, due to difficulties or security reasons. The procedures and principles regarding this matter will be regulated under a regulation to be issued later.
- If the first instance court takes an action on the merits after the Court of Cassation’s reversal or the regional court of appeal’s annulment, the parties may amend their claims and pleas until the investigation phase concludes
The amendment to Article 177 of the CPL, “Time and form of the amendment”, allows the parties to amend their claims and pleas until the investigation phase concludes if the first instance court takes an action regarding the judicial investigation after the case file is sent to them due to the Court of Cassation’s reversal or the regional court of appeal’s annulment decision. However, this amendment emphasizes that the legal situation that arises with the first instance court’s compliance with the Court of Cassation’s reversal decision cannot be removed by amending the claims and pleas. With this amendment, the issue discussed among the Turkish civil procedure law scholars for about 75 years has been resolved and explicitly regulated.
- If a record in a party’s commercial books is not present in the other party’s commercial books, these commercial books cannot be considered as evidence in favor of their owner
Pursuant to the amendment made to Article 222 of the CPL, “Submission of commercial books and their evidential value”, if the other party’s commercial books do not contain any records regarding the relevant matter, the commercial books cannot be considered as evidence in favor of their owner. In addition, this amendment regulates that if the other party does not submit their commercial books, the commercial books can be accepted as evidence in favor of their owner.
- Parties may request time extension to submit their objection to the expert report
As per the amendment made to Article 281 of the CPL, “Objection to the expert report”, if preparing the objection to the expert report within a two-week period is difficult or impossible, or if it requires a special/technical study, the parties may request additional time and the court may grant a maximum of two additional weeks only once.
- Parties may request an additional decision be given on the matters that the court did not consider whilst rendering the judgement
Pursuant to Article 305/A added to the CPL under the Law, “Completion of the judgement”, each party may request an additional decision be given on the matters that the court did not issue a full or partial decision, despite these matters having been asserted during the legal proceedings or that should have been considered by the court ex-officio, within one month as of the service of the final judgement, and each party may appeal the court’s decision regarding this request.
- Scope of the lawsuits that can be appealed expanded
Before the amendment made to Article 362 of the CPL, “Decisions that cannot be appealed”, regarding lease relationships, the parties could only appeal the regional courts of appeal’s decisions rendered in actions of debt that arise from the lease relationship and can be appealed in terms of the amount or value of the claim. This amendment allows the parties to appeal the decisions regarding the lawsuits arising from the lease relationship if the three-month lease amount is higher than the appeal limit. In addition, as per the amendment, the parties may appeal the regional courts of appeal’s final decisions wherein it annulled the decision and decided to send the case file to the competent court for re-trial without assessing the merits and conducting a hearing.
- One-week period to request the implementation of the interim injunction decision will start to run as of the pronouncement or service of the interim injunction decision
Pursuant to the amendment made to Article 393 of the CPL, “Implementation of the interim injunction decision”, the one-week period to request the implementation of the interim injunction decision will start to run as of the pronouncement or service of the decision to the party that requested the interim injunction. In the former regulation, this period began as of the date of the decision.
- Non-judicial imprisonment up to six months imposed on persons who do not comply with the interim injunction decision is subject to complaint; this complaint should be filed within six months as of learning the violation
Pursuant to the amendment made to Article 398 of the CPL, “Penalty of the non-compliance to the injunction,” persons who do not comply with the order regarding the implementation of the interim injunction or who violate the injunction decision may be punished with a non-judicial imprisonment up to six months if a complaint has been filed against them within six months as of learning the violation. Before the amendment, the Constitutional Court cancelled the relevant article’s provision stipulating non-judicial imprisonment on the grounds that this provision is against the Turkish Constitution and removed non-judicial imprisonment regulated for non-compliance with the injunction order.
Conclusion
The Law made significant and fundamental changes to the CPL, which includes regulations in line with the aims and objectives determined within the scope of the Judicial Reform Strategy Document. In our opinion, these amendments make great strides for legal proceedings to be carried out more effectively and efficiently, to be concluded in a reasonable period and for the judicial process to be accelerated.
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