Unit 7: Law of Civil Procedure, Compulsory Enforcement and Bankruptcy

Introduction

Legal disputes are inevitable in modern societies. When a legal dispute arises, it must be resolved swiftly and justly. If the dispute is based on a right provided by any branch of private law, such as civil law or commercial law, then the role of civil procedural law begins. Parties of the dispute may resolve the dispute with negotiation, seek help from a neutral and independent third party via conciliation or mediation, or resort to litigation in courts or through arbitration. Civil procedural law governs all aspects of civil dispute resolution, but mainly litigation. If the litigation route is chosen, the State, through courts, must resolve the dispute effectively and justly according to the Constitution.

Civil Procedure: Civil Dispute Resolution in General

In order to understand the basics of civil procedure, one must firstly understand the nature of legal disputes. All kinds of disputes may arise in a society. These disputes may arise between people, between people and the State or even between governmental organizations. These differences between the natures of such disputes give rise to different branches of the Judiciary. For instance, if the constitutionality of a statute passed by the Legislation needs to be challenged, one must refer to the Constitutional Court which operates in constitutional judiciary branch. Similarly, if the nature of the dispute is criminal or administrative, respective branches of the judiciary must be utilized. But what is a civil dispute? If a legally recognized right of a member of the society is harmed or not fulfilled by another member of the society, this constitutes a disagreement. If the said disagreement is expressed in any way, a dispute is born. However, in order for a legal dispute to be qualified as a civil dispute, the underlying right must be based on any branch of private law, e.g. law of obligations, commercial law or consumer protection law. Since a legal dispute must be resolved in order for the society to function properly, the need for dispute resolution arises.

Sources of Civil Procedure, Courts and Principles to Be Followed

The essential source of the civil procedure in Turkey is the Hukuk Muhakemeleri Kanunu (Code of Civil Procedure – CoCP-). It is a relatively recent statute, which was passed by the Parliament in early 2011 and entered into effect in late 2011. The second source of Turkish civil procedure is the Court of Cassation (CoC) opinions. Since Turkey does not have a case-law legal system, the source value of the CoC opinions is mainly ancillary to the statutes, with the exception of consolidation of opinions”, possessing the power of a statute, which is very rarely issued by the CoC. Third source of Turkish civil procedure is the legal literature. Value of the literature in civil procedure is also defined by statute: the judge must consider the legal literature while evaluating the evidence and rendering a judgment according to the very first article of the Turkish Civil Code. On top sits the Court of Cassation (Yargıtay). It is the highest court of the civil judiciary. Its chambers and other decision-making bodies carry out the appellate review of the final decisions rendered by the circuit courts of appeal. Second one is circuit courts of appeal. The most essential duty carried out by the circuit courts of appeals is the intermediate appellate review of final decisions rendered by the courts of first instance in their respective jurisdictional areas. They also possess a very limited subject-matter jurisdiction as a court of first instance regarding some civil disputes. Thirdly, civil courts of first instance, which are the courts that resolve disputes initially, are established as either general jurisdiction courts or specialized courts. General jurisdiction courts are established with the Law regarding Establishment, Jurisdiction and Powers of Civil and Criminal Courts of First Instance and Circuit Courts of Appeals (no. 5235), and they are comprised of civil courts of general jurisdiction (asliye hukuk mahkemeleri) and civil courts of peace (sulh hukuk mahkemeleri).

Judge: Judges utilize the judicial power of the State in the name of the Turkish Nation. In order to sit as a judge in a court of any branch of Turkish judiciary, one has to be a judge by profession. In order to become a judge, one must be a Turkish citizen, graduate from a faculty of law, pass the written and oral examinations and complete the necessary training. According to articles 138, 139 and 140 of the Constitution, judges are judicially independent; no one may order or compel the judges in the execution of their duties; everyone shall obey the decisions of the judiciary; the judges may not be dismissed, retired early or deprived of any employment rights.

Lawyer: According to the Law of Lawyers, lawyer is the person carrying out an institutional duty as an establishing element of the judiciary for the independent defense in the service of the organization of legal relationships, resolution of legal matters and disputes, in accordance with justice and fairness and accurate application of legal provisions (art. 1). Only lawyers may be appointed as attorneys in litigation and in other dispute resolution methods and only lawyers are permitted to provide legal advice.

Civil servants: The administrative office of the court (yazı işleri müdürlüğü) carries out the administrative procedures required in the operation of a court, such as serving documents, keeping and organizing the case file or receiving petitions. The supervisor of the administrative office is the court clerk. The court clerk has various duties and powers, such as approving copies of documents regarding actions pending in the court in which she is employed. Other important servants are stenographer are bailiff.

Principles to be followed in civil prıcedure: Since the Statutes cannot foresee every possibility that may arise in litigation, courts and other subjects of the judiciary also rely on ground principles. There are two types of principles: Firstly, there are principles that are essential and absolute, which arise mostly from the Constitution and international conventions such as the Convention for the Protection of Human Rights and Fundamental Freedoms, e.g. the right to a fair trial or the judicial economy principle. These principles must be strictly followed. Secondly, there are defining principles that guide the court in making decisions such as principles of disposition and party presentation or principle of consolidation. Most of the principles to be followed in civil procedure are categorized and explained in the CoCP.

The procedure in litigation is administered and governed by the judge,

Right to a fair trial and the right to be duly heard,

The hearings in the court are open to everyone,

Another very important principle to be followed is the judicial economy principle.

Time Requirements and Judicial Service

According to the CoCP, time requirements are either designated by the statute or determined by the judge. The judge shall not extend or shorten time requirements designated by the Statute, barring the exceptions stated in the Statute (art. 90). The judge may extend or shorten time requirements determined by her on account of justifiable reasons and she may hear the parties before deciding on the matter if she sees it necessary to do so. Time requirements designated by the statute are definitive (art. 94). The judge may also determine any time requirement allowed by her as definitive. Otherwise, the party that missed the time allowed may request another time allowance. Second time allowed in this manner is definitive and further time may not be allowed. If a party proceeding must be carried out within definitive time and the party fails to do so, the right to carry out that particular party proceeding expires (preclusive time requirement). Time requirements start from the date of service to the parties, or from the date of pronouncement in circumstances stipulated by the Statute.

Judicial service: All judicial documents related to litigation must be served to the parties by the court. Service is similar to mail or notice; however, it is stricter. There are two reasons behind service: to prove that someone is notified of something and to determine the date of the notice in question. Most time limitations as we explained above, start form the date of service. All service proceedings are regulated by a Statute (the Law on Service -LoS) and a Regulation (the Regulation of the Law on Service). According to the Law on Service, service proceedings are carried out by the Turkish Postal Services (LoS art. 1). However, under some special circumstances, which are also determined by the statutes, the authority serving the document (e.g. the court) may also opt to serve the document (or summons) with a law enforcement officer or an employee of the court (e.g. the bailiff) instead of the postal service (LoS art. 2). Judicial service may also be carried out in the administrative office of the court or in the courtroom during the hearing (direct service), without the need for actual dispatching (LoS art.36). Attorneys may also serve each other with documents regarding the action at hand directly against a receipt, without the requirement of service papers (LoS art. 38). Service must be directed to the relevant person.

Parties

As the general theory of litigation stipulates, every action must involve two parties. This number is constant; it cannot be decreased or increased. Even though the number of the parties is fixed, a party may comprise multiple persons. The party applying for legal protection or asserting the claim is called “davacı” (the plaintiff) and the party against whom a remedy is sought or asserting a defense is called “davalı” (the defendant). The role of the plaintiff and the defendant may not merge. In such case, the action cannot continue. Parties of the action are always equal and must beapproached by the court as such even if one of the parties is legally protected under substantive law (e.g. consumers). The opposing party must be indicated in the complaint pleading while filing an action; otherwise, the pleading shall not be accepted by the court; investigating and finding the identity of the defendant is neither a duty of nor a permitted action by the court.

Types and Commencement of Actions

Action (dava) is a legal remedy sought from thecourt by the person of a right that is claimed to be harmed, against the person who is claimed to have harmed the mentioned right. Actions are remedies that are final in nature as opposed to provisional remedies, which are temporary in nature. The CoCP defines various types of actions. Actions are often categorized according to two different criteria: legal remedy sought and the quantity (or features) of the demand. There are three types of actions according to the legal remedy sought:

• Actions for performance (eda davaları)
• Declaratory actions (tespit davaları)
• Constructive actions (inşai davalar) Any claim to be filed as action in the court must fall under one of these three categories.

Preliminary Examination and Trial

According to article 137, preliminary examination must be carried out upon the conclusion of the exchange of pleadings. The court, in preliminary examination, must:

• Examine procedural requirements and preliminary objections
• Determine the boundaries of the dispute
• Carry out preparatory proceedings and proceedings necessary for the parties to present evidence and for the discovery of evidence
• Encourage the parties for settlement or mediation in actions on which they may freely act.

If an examination on the merits is required in an action, this examination is carried out at the trial stage with holding hearings. Hearings are highly formal in civil procedure and must be carried out according to the Statute; otherwise, the final decision of the court may be removed or reversed in the appellate remedy if the noncompliance isfound to be effective on the final decision. These formal requirements are essential with regard to theright to a fair trial as well. Courts operate during official workdays and hours. However, under necessitating or urgent circumstances, it may be decided that proceedings such as inspection by judge, preliminary discovery of evidence and proceedings written on the Daily hearings list may (and sometimes must) be carried out during official holidays or outside of official operating hours.

The Law of Evidence

Although the right to prove is an essential aspect of the right to be duly heard, it is also set out by the CoCP in a separate provision, along with its boundaries. According to article 189, the parties have the right to prove in accordance with time limitations and procedure stipulated by the statute. Illegally obtained evidence may not be evaluated by the court regarding the proof of a fact. Matters that must be proved with certain types of evidence according to the statute may not be proved with other types of evidence. The admissibility of the evidence offered to prove a fact must be determined by the court ex officio.

Court Decisions and Judgement

Court decisions are usually categorized as interlocutory decisions (ara karar) and final decisions (nihai karar). This distinction is made mainly to determine the appealability of a decision. Interlocutory decisions, which are decisions made in order to resume the action as opposed to terminating it, are not appealable in principle as opposed to final decisions. In principle, the court may reverse its interlocutory decision at any time.

Simplified Procedure

Along with written procedure, there is a secondary procedure specified by the CoCP and other statutes, applied in matters that are mostly less important and/or more urgent.

Judicial Costs and Judicial Aid

Judicial costs are comprised of two categories:

court fees (yargılama harçları) and judicial expenditures. Court fees are charges collected from the parties as a contribution for litigation services rendered by the State. The court fees are determined by the Law of Charges numbered 492 in detail, most important of which is the fee for decision and the execution copy of the judgment. If the subject matter of the action is material, this fee is determined proportionally to the value or amount of the subject matter.

Provisional Legal Relief

Provisional legal relief is any kind of temporary relief, which may be granted by the court before or during the litigation or the proceedings, regarding the subject matter of the dispute.

Appellate Remedies

Since the court of first instance may err, a means of review must be present in order to comply with the right to a fair trial. The two most important appellate remedies in Turkish civil litigation are istinaf and temyiz.

Arbitration (Tahkim)

Arbitration is a dispute resolution method in which the parties choose the arbitrator (or the arbitrators) and the procedure to be followed.

Alternative Dispute Resolution (ADR)

Alternative dispute resolution methods are means for the parties of the dispute to resolve the dispute among them rather than resorting to litigation mostly involving a neutral and independent third party.

Compulsory Enforcement and Bankruptcy

Compulsory enforcement law in general comprises of two major parts. While first part of the discipline deals with individual debt recovery and is called individual enforcement, the latter deals with the creditors and assets of a debtor as a whole and is appropriately called collective enforcement.

Enforcement Procedure for Attachment Without a Judgment

The ordinary procedure for attachment is the principle procedure under the CCEB. The Statute provides rules regarding this procedure in detail while making referrals to said rules with regard to the other procedures. In order for the ordinary procedure for attachment to be pursued, either the credit must be monetary, or the debtor must be obliged to give a collateral security.

Attachment

Attachment is the legal seizure of the assets and rights belonging to the debtor to be liquidated in a compulsory enforcement procedure, whose proceeds are then paid to the creditor.