The justification of court decisions is regarded as a key element of the right to a fair trial. In Turkey, this right is protected by the European Convention on Human Rights, as well as the Turkish Constitution, the Code of Civil Procedure and Supreme Court precedents. However, in practice, judgments are sometimes made without providing any justification as to why the parties' claims and evidence were not taken into account.
When the new Code of Civil Procedure was enacted in 2011, it introduced a new case type to Turkish litigation where plaintiffs file an action for receivables for an unquantified amount that is left to the courts to determine subject to dispute. This innovation in the litigation procedure raises questions regarding the instances in which plaintiffs should be deemed unable to calculate the size of their claims and what the courts should do when the receivables or damages are quantifiable.
Parties that failed to comply with an interim injunction or that violated an injunction previously faced one to six months' imprisonment. However, the Constitutional Court recently annulled this provision due to its lack of clear regulation and legal remedies. The changes will enter into force nine months after their publication in the Official Gazette and are final and binding on legislative, executive and judicial bodies, administrative authorities and real and legal entities.
Turkey has recently faced higher currency exchange rates, which has raised the question of whether this increase constitutes a change in circumstances that affects the fulfilment of contractual obligations. As there is no settled Supreme Court precedent regarding whether a fluctuation in currency exchange rates requires the adaptation of contracts, first-instance courts will need to examine the circumstances of each case.
Since 2012, individuals in Turkey have been able to make individual complaint applications to the Constitutional Court claiming that the state has violated their fundamental constitutional rights (or rights under the European Human Rights Convention) through its acts or omissions. One of the most common claims is that the state has violated an individual's right to a fair trial by failing to meet the reasonable time requirement and concluding criminal cases over long periods, in some cases more than 10 years.
Under Turkish law, there are two types of procedure in civil proceedings. Written procedure is the main and most common type, whereas the simple procedure, as the name suggests, is a simplified and expedited process. Following recent amendments, commercial cases worth less than TL100,000 are now subject to the simplified procedure in order to shorten the length of proceedings.
Preliminary injunctions in Turkey are regulated under the Code of Civil Procedure. A preliminary injunction can be requested from the competent court that has jurisdiction over a case prior to filing or the court before which a case is filed. Applicants must determine the grounds for making such a request in addition to the nature of the preliminary injunction being sought. They must also prove their claim to convince the court that the merits of the case are legitimate.
Article 5 of the Cheque Law imposes a judicial fine on cheque account owners for a bounced cheque. These fines cannot be less than the amount of the bounced cheque plus the accrued interest on the cheque's submission date and the total fees for execution and legal proceedings. Several courts recently applied to the Constitutional Court to request the annulment of Article 5 based on, among other things, the uncertain criteria used to calculate such fines.
Due to the need for the existing court procedural rules and organisational structure to be harmonised with the newly established three-tier court system, amendments have been made to the Code of Civil Procedure with the purpose of eliminating emergent problems in the functioning of regional appellate and administrative courts. The most remarkable amendment regards the period for appeal before the Court of Cassation.
The Regulation on the Determination and Enforcement of Target Investigation, Prosecution or Trial Periods was recently published in the Official Gazette. The regulation sets out the rules and procedures for determining the specific periods in which legal proceedings must be completed, thus ameliorating the judicial process. By establishing and adhering to time limits for legal proceedings, Turkey may be able to eliminate the delays in its judicial system.
If a foreign national who owns real estate in Turkey dies, his or her successors must have recourse to the Turkish courts and obtain a certificate of inheritance in order to complete the transfer of the real estate under their names before the land registry or be able to legally dispose of the property in any manner. A recent case illustrates that this issue can be overcome by the submission of specific documents issued by the competent authorities of foreign countries, testament or notary statements.
The court of peace recently appointed the former partner of a liquidated company as a gratuitous bailee to preserve the company's books. The decision created an alternative approach to the preservation of the books of liquidated companies, which must be preserved by a court of peace. The new approach should help to address concerns regarding the court's limited amount of storage space for company books.
A recent Court of Appeals case concerned a resolution taken at a general assembly meeting where the signature of the shareholder plaintiff's representative had been forged. As it was established without doubt that the signature on the general assembly meeting minutes did not belong to the plaintiff's representative, the court declared that the decisions taken at the general assembly were null and void.
In order for an invoice to generate a payment obligation on its recipient, Turkish law requires that there be an obligatory relationship between the drafter and recipient. A recent case confirmed that even when the recipient of an invoice does not object to it and inadvertently records it in its accounting books, this does not result in a payment obligation unless the invoice has a legal basis.
The recognition and enforcement of foreign judgments and arbitral awards in Turkey is subject to the International Private and Civil Procedure Law, under which enforcement actions must be filed before the civil courts of first instance, including certain specialised courts. The Court of Appeals has generally adopted a single approach regarding the jurisdiction of specialised courts in enforcement actions, but a recent decision has created uncertainty in that regard.