HUK113U-INTRODUCTION TO LAW

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

judgment according to the very first article of the Turkish

Introduction Civil Code. On top sits the Court of Cassation (Yargıtay).
Legal disputes are inevitable in modern societies. When a It is the highest court of the civil judiciary. Its chambers
legal dispute arises, it must be resolved swiftly and justly. and other decision-making bodies carry out the appellate
If the dispute is based on a right provided by any branch review of the final decisions rendered by the circuit courts
of private law, such as civil law or commercial law, then of appeal. Second one is circuit courts of appeal. The most
the role of civil procedural law begins. Parties of the essential duty carried out by the circuit courts of appeals is
dispute may resolve the dispute with negotiation, seek the intermediate appellate review of final decisions
help from a neutral and independent third party via rendered by the courts of first instance in their respective
conciliation or mediation, or resort to litigation in courts jurisdictional areas. They also possess a very limited
or through arbitration. Civil procedural law governs all subject-matter jurisdiction as a court of first instance
aspects of civil dispute resolution, but mainly litigation. If regarding some civil disputes. Thirdly, civil courts of first
the litigation route is chosen, the State, through courts, instance, which are the courts that resolve disputes
must resolve the dispute effectively and justly according initially, are established as either general jurisdiction
to the Constitution. courts or specialized courts. General jurisdiction courts are
established with the Law regarding Establishment,
Civil Procedure: Civil Dispute Resolution in
Jurisdiction and Powers of Civil and Criminal Courts of
General First Instance and Circuit Courts of Appeals (no. 5235),
In order to understand the basics of civil procedure, one and they are comprised of civil courts of general
must firstly understand the nature of legal disputes. All jurisdiction (asliye hukuk mahkemeleri) and civil courts of
kinds of disputes may arise in a society. These disputes peace (sulh hukuk mahkemeleri).
may arise between people, between people and the State
or even between governmental organizations. These Judge: Judges utilize the judicial power of the State in the
differences between the natures of such disputes give rise name of the Turkish Nation. In order to sit as a judge in a
to different branches of the Judiciary. For instance, if the court of any branch of Turkish judiciary, one has to be a
constitutionality of a statute passed by the Legislation judge by profession. In order to become a judge, one must
needs to be challenged, one must refer to the be a Turkish citizen, graduate from a faculty of law, pass
Constitutional Court which operates in constitutional the written and oral examinations and complete the
judiciary branch. Similarly, if the nature of the dispute is necessary training. According to articles 138, 139 and 140
criminal or administrative, respective branches of the of the Constitution, judges are judicially independent; no
judiciary must be utilized. But what is a civil dispute? If a one may order or compel the judges in the execution of
legally recognized right of a member of the society is their duties; everyone shall obey the decisions of the
harmed or not fulfilled by another member of the society, judiciary; the judges may not be dismissed, retired early or
this constitutes a disagreement. If the said disagreement is deprived of any employment rights.
expressed in any way, a dispute is born. However, in order Lawyer: According to the Law of Lawyers, lawyer is the
for a legal dispute to be qualified as a civil dispute, the person carrying out an institutional duty as an establishing
underlying right must be based on any branch of private element of the judiciary for the independent defense in the
law, e.g. law of obligations, commercial law or consumer service of the organization of legal relationships,
protection law. Since a legal dispute must be resolved in resolution of legal matters and disputes, in accordance
order for the society to function properly, the need for with justice and fairness and accurate application of legal
dispute resolution arises. provisions (art. 1). Only lawyers may be appointed as
attorneys in litigation and in other dispute resolution
Sources of Civil Procedure, Courts and Principles
methods and only lawyers are permitted to provide legal
to Be Followed
advice.
The essential source of the civil procedure in Turkey is the
Hukuk Muhakemeleri Kanunu (Code of Civil Procedure – Civil servants: The administrative office of the court (yazı
CoCP-). It is a relatively recent statute, which was passed işleri müdürlüğü) carries out the administrative procedures
by the Parliament in early 2011 and entered into effect in required in the operation of a court, such as serving
late 2011. The second source of Turkish civil procedure is documents, keeping and organizing the case file or
the Court of Cassation (CoC) opinions. Since Turkey does receiving petitions. The supervisor of the administrative
not have a case-law legal system, the source value of the office is the court clerk. The court clerk has various duties
CoC opinions is mainly ancillary to the statutes, with the and powers, such as approving copies of documents
exception of consolidation of opinions”, possessing the regarding actions pending in the court in which she is
power of a statute, which is very rarely issued by the CoC. employed. Other important servants are stenographer are
Third source of Turkish civil procedure is the legal bailiff.
literature. Value of the literature in civil procedure is also Principles to be followed in civil prıcedure: Since the
defined by statute: the judge must consider the legal Statutes cannot foresee every possibility that may arise in
literature while evaluating the evidence and rendering a litigation, courts and other subjects of the judiciary also

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 HUK113U-INTRODUCTION TO LAW
Unit 7: Law of Civil Procedure, Compulsory Enforcement and Bankruptcy

rely on ground principles. There are two types of officer or an employee of the court (e.g. the bailiff) instead
principles: Firstly, there are principles that are essential of the postal service (LoS art. 2). Judicial service may also
and absolute, which arise mostly from the Constitution be carried out in the administrative office of the court or in
and international conventions such as the Convention for the courtroom during the hearing (direct service), without
the Protection of Human Rights and Fundamental the need for actual dispatching (LoS art.36). Attorneys
Freedoms, e.g. the right to a fair trial or the judicial may also serve each other with documents regarding the
economy principle. These principles must be strictly action at hand directly against a receipt, without the
followed. Secondly, there are defining principles that requirement of service papers (LoS art. 38). Service must
guide the court in making decisions such as principles of be directed to the relevant person.
disposition and party presentation or principle of
consolidation. Most of the principles to be followed in Parties
civil procedure are categorized and explained in the CoCP. As the general theory of litigation stipulates, every action
must involve two parties. This number is constant; it
The procedure in litigation is administered and governed cannot be decreased or increased. Even though the number
by the judge, of the parties is fixed, a party may comprise multiple
Right to a fair trial and the right to be duly heard, persons. The party applying for legal protection or
asserting the claim is called “davacı” (the plaintiff) and
The hearings in the court are open to everyone, the party against whom a remedy is sought or asserting a
Another very important principle to be followed is the defense is called “davalı” (the defendant). The role of the
judicial economy principle. plaintiff and the defendant may not merge. In such case,
the action cannot continue. Parties of the action are always
Time Requirements and Judicial Service equal and must beapproached by the court as such even if
According to the CoCP, time requirements are either one of the parties is legally protected under substantive
designated by the statute or determined by the judge. The law (e.g. consumers). The opposing party must be
judge shall not extend or shorten time requirements indicated in the complaint pleading while filing an action;
designated by the Statute, barring the exceptions stated in otherwise, the pleading shall not be accepted by the court;
the Statute (art. 90). The judge may extend or shorten time investigating and finding the identity of the defendant is
requirements determined by her on account of justifiable neither a duty of nor a permitted action by the court.
reasons and she may hear the parties before deciding on
Types and Commencement of Actions
the matter if she sees it necessary to do so. Time
requirements designated by the statute are definitive (art. Action (dava) is a legal remedy sought from thecourt by
94). The judge may also determine any time requirement the person of a right that is claimed to be harmed, against
allowed by her as definitive. Otherwise, the party that the person who is claimed to have harmed the mentioned
missed the time allowed may request another time right. Actions are remedies that are final in nature as
allowance. Second time allowed in this manner is opposed to provisional remedies, which are temporary in
definitive and further time may not be allowed. If a party nature. The CoCP defines various types of actions.
proceeding must be carried out within definitive time and Actions are often categorized according to two different
the party fails to do so, the right to carry out that particular criteria: legal remedy sought and the quantity (or features)
party proceeding expires (preclusive time requirement). of the demand. There are three types of actions according
Time requirements start from the date of service to the to the legal remedy sought:
parties, or from the date of pronouncement in (1) Actions for performance (eda davaları)
circumstances stipulated by the Statute.
(2) Declaratory actions (tespit davaları)
Judicial service: All judicial documents related to
litigation must be served to the parties by the court. (3) Constructive actions (inşai davalar) Any claim to be
Service is similar to mail or notice; however, it is stricter. filed as action in the court must fall under one of these
There are two reasons behind service: to prove that three categories.
someone is notified of something and to determine the
Preliminary Examination and Trial
date of the notice in question. Most time limitations as we
explained above, start form the date of service. All service According to article 137, preliminary examination must be
proceedings are regulated by a Statute (the Law on Service carried out upon the conclusion of the exchange of
-LoS) and a Regulation (the Regulation of the Law on pleadings. The court, in preliminary examination, must:
Service). According to the Law on Service, service (1) Examine procedural requirements and
proceedings are carried out by the Turkish Postal Services
(LoS art. 1). However, under some special circumstances, preliminary objections
which are also determined by the statutes, the authority (2) Determine the boundaries of the dispute
serving the document (e.g. the court) may also opt to serve
the document (or summons) with a law enforcement (3) Carry out preparatory proceedings and

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

proceedings necessary for the parties to present evidence numbered 492 in detail, most important of which is the fee
and for the discovery of evidence for decision and the execution copy of the judgment. If the
subject matter of the action is material, this fee is
(4) Encourage the parties for settlement or mediation in
determined proportionally to the value or amount of the
actions on which they may freely act.
subject matter.
If an examination on the merits is required in an action,
this examination is carried out at the trial stage with
Provisional Legal Relief
holding hearings. Hearings are highly formal in civil Provisional legal relief is any kind of temporary relief,
procedure and must be carried out according to the which may be granted by the court before or during the
Statute; otherwise, the final decision of the court may be litigation or the proceedings, regarding the subject matter
removed or reversed in the appellate remedy if the non- of the dispute.
compliance isfound to be effective on the final decision.
Appellate Remedies
These formal requirements are essential with regard to
theright to a fair trial as well. Courts operate during Since the court of first instance may err, a means of
official workdays and hours. However, under necessitating review must be present in order to comply with the right to
or urgent circumstances, it may be decided that a fair trial. The two most important appellate remedies in
proceedings such as inspection by judge, preliminary Turkish civil litigation are istinaf and temyiz.
discovery of evidence and proceedings written on the Arbitration (Tahkim)
Daily hearings list may (and sometimes must) be carried
out during official holidays or outside of official operating Arbitration is a dispute resolution method in which the
hours. parties choose the arbitrator (or the arbitrators) and the
procedure to be followed.
The Law of Evidence
Alternative Dispute Resolution (ADR)
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 Alternative dispute resolution methods are means for the
separate provision, along with its boundaries. According parties of the dispute to resolve the dispute among them
to article 189, the parties have the right to prove in rather than resorting to litigation mostly involving a
accordance with time limitations and procedure stipulated neutral and independent third party.
by the statute. Illegally obtained evidence may not be Compulsory Enforcement and Bankruptcy
evaluated by the court regarding the proof of a fact.
Compulsory enforcement law in general comprises of two
Matters that must be proved with certain types of evidence
major parts. While first part of the discipline deals with
according to the statute may not be proved with other
individual debt recovery and is called individual
types of evidence. The admissibility of the evidence
enforcement, the latter deals with the creditors and assets
offered to prove a fact must be determined by the court ex
of a debtor as a whole and is appropriately called
officio.
collective enforcement.
Court Decisions and Judgement
Enforcement Procedure for Attachment Without
Court decisions are usually categorized as interlocutory a Judgment
decisions (ara karar) and final decisions (nihai karar).
This distinction is made mainly to determine the The ordinary procedure for attachment is the principle
appealability of a decision. Interlocutory decisions, which procedure under the CCEB. The Statute provides rules
are decisions made in order to resume the action as regarding this procedure in detail while making referrals
opposed to terminating it, are not appealable in principle to said rules with regard to the other procedures. In order
as opposed to final decisions. In principle, the court may for the ordinary procedure for attachment to be pursued,
reverse its interlocutory decision at any time. either the credit must be monetary, or the debtor must be
obliged to give a collateral security.
Simplified Procedure
Attachment
Along with written procedure, there is a secondary
procedure specified by the CoCP and other statutes, Attachment is the legal seizure of the assets and rights
applied in matters that are mostly less important and/or belonging to the debtor to be liquidated in a compulsory
more urgent. enforcement procedure, whose proceeds are then paid to
the creditor.
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