Law 7251 on the Amendment of the Civil Procedure Code and Certain Laws (Amendment Law) recently entered into force. One of the significant amendments introduced by the Amendment Law concerns Article 281 of the Civil Procedure Code (CPC) 6100, which regulates parties' objections to expert reports. With this amendment, parties can now request an extension from the court to file their objections against expert reports under certain circumstances.
Law 7251 recently entered into force, allowing the courts to conduct remote hearings through video and audio transmission either upon the parties' request or ex officio under certain circumstances. Although remote hearings are not new to Turkish law, allowing more space for such practices is significant given the COVID-19 pandemic. However, this practice is available only in certain courts and more widespread use may create capacity problems for the existing judiciary infrastructure.
When the new Code of Civil Procedure was enacted, it enabled plaintiffs to file actions for unquantified amounts of receivables, the determination of which is left to the courts. The General Assembly of the Civil Chambers of the Court of Cassation General Assembly recently ruled that if an action for an unquantified amount of receivables is initiated despite the amount being determinable, the courts should not immediately reject the case but should instead proceed with the trial by deeming the action a partial action.
Under Decision 2480 on the Extension of the Suspension of Terms for the Prevention of Losses of Judicial Rights, the suspension of terms stipulated in Law 7226, which aimed to prevent any loss of rights in regard to trials due to the measures taken to combat the COVID-19 outbreak, has been extended. However, this date will be re-evaluated if the risk of spreading the virus is eliminated before the extension expires.
The Law on the Amendment of Certain Laws 7226 recently entered into force upon publication in the Official Gazette. Pursuant to Law 7226, the procedural terms will be suspended until 30 April 2020 in order to prevent any loss of rights in regard to trials due to the measures taken during the COVID-19 outbreak.
In a May 2019 decision, the Supreme Court General Assembly on the Unification of Judgments concluded that the plaintiff in a partial monetary action need not reiterate its claim for interest when increasing the value of the claim if it claimed interest for its principal receivables in the plaint petition and the claim of interest will automatically apply for the amount which is increased later on.
The Supreme Court recently examined the date on which an addressee had viewed an electronic notification. The court's first decision caused uncertainty as it accepted the date on which the notification had been viewed as the notification date. However, the court later revoked this decision and provided clear legal guidance that electronic notifications will be deemed to have been served by the end of the fifth day after their delivery, regardless of whether the addressee has viewed the notification.
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.