TURKISH CIVIL LAW AND TURKISH JUDICIAL SYSTEM
- General Overview
- What kind of legal system do you have in Turkey?
Turkey belongs to the Civil Law system based on codified laws. Therefore, the primary sources of law are written legislations such as codes and regulations. Case law is a secondary source of law, taken into account only in the interpretation of laws and is of less importance than in common law system.
- What are the main sources of law in Turkey?
The Constitution is hierarchically at the top of the sources of law applied in the Turkish judiciary.
Written sources that are applied after the constitution are codes. Making the codes is performed by the Grand National Assembly of Turkey.
International treaties that are duly put into effect in Turkish law are at the same level with the codes in the hierarchical order, however in disputes regarding fundamental rights and freedoms international treaties duly put into effect shall have priority over the codes. Accordingly, in case of a conflict between international treaties and codes due to differences in terms of fundamental rights and freedoms, the provisions of international agreements will prevail. On the other hand, unlike codes, compliance of international treaties with the Constitution cannot be challenged before the Constitutional Court. The codes and international agreements are followed by presidential decrees and regulations, which are the regulatory acts of the executive organ.
- What are the procedural rules governing the civil procedure in the Turkish judiciary?
Proceedings in civil procedure in the Turkish judiciary are regulated under “Code of Civil Procedural” (“CCP”). CCP also includes basic regulations regarding alternative dispute resolution methods such as domestic arbitration and mediation.
Another procedural regulation applied in civil proceeding is Code of Enforcement and Bankruptcy which provides rules determining the procedure by which the creditor-debtor transactions will be conducted and how the bankruptcy process will work.
There are also some specific procedural rules regulated by other codes such as the Turkish Commercial Code, the Code of Obligations and the Code of Labour Courts.
- What are the rules governing cross-border transactions and relations?
International jurisdiction of Turkish courts, applicable law and recognition and enforcement of foreign court decisions and of foreign arbitral awards in cross border disputes are subject to Code of Private International Law and International Procedural Law (PIL).
However such Code give priority to international treatiesHopwever h and Turkey is a party of many international treaties drafted by certain international organisations such as the Hague Conference on Private International law, The International Commission on Civil Status, the United Nations and the European Council regarding certain issues of private international law such as marriage, maintenance obligations, adoption, child abduction, protection of children, international sale of goods, family law, testamentary dispositions, and regarding certain issues of international procedural law such as jurisdiction of courts or authorities, service of documents abroad, taking of evidence abroad, legalisation of documents, recognition and enforcement of foreign decisions.
The Code of International Arbitration shall apply to cross-border disputes subjected to arbitration. Turkey is also a party to the European Convention of 1961 on International Commercial Arbitration, to the UN Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards, to the Convention of 1965 on the Settlement of Investment Disputes between States and Nationals of Other States and to many bilateral investment treaties regarding international arbitration.
- How is the organizational structure of the courts in the Turkish judicial system?
Within the civil court system, the courts are structured in a three-grade system. The civil courts of peace and the civil courts of first instance are the courts of general jurisdiction. Apart from these courts, Family Courts, Commercial Courts, Labour Courts, Consumer Courts, Intellectual and Industrial Rights Civil Courts, Enforcement Law Courts and Cadastral Courts are the specialized courts.
Courts of appeals (district courts) serve as “second instance courts” and appeal can be filed against the judgments given by the courts of first instance. In the appellate review of the district courts, both factual and legal assessments are made.
The Supreme Court, located in Ankara, is the court of last instance.
- To what extent are lower courts bound by the decisions of higher courts?
Given that the legal system is civil law (and not common law), the power of court decisions is limited, and these are not regarded as primary sources of law. Jurisprudence is a secondary source of law that the judges can use in making a decision. Accordingly, although prior higher court decisions can guide judges in the decision-making process, they are not binding and can be disregarded while reaching a conclusion in the case at hand. Nevertheless, it was accepted that there was a limited, if not absolute, obligation to comply with precedent decisions while higher courts have influence over the lower courts to ensure the consistency and unity in judicial practice. However, the decisions of the Supreme Court General Assembly on the Unification of Judgments are binding on judges. This is not a separate appellate body but an assembly of the Supreme Court which renders decisions regarding points of laws on which its different chambers disagree.
- What are the stages of judgment in the Turkish legal system? What is the timeframe for finalizing the lawsuits?
Written trial procedure is the main trial procedure under Turkish law. However, parties are invited to the court for verbal trial in certain phases of a case such as preliminary examination, examination and final hearing. The simple trial procedure, where hearings are exceptional, is applied only in the cases listed separately in the codes such as labour cases, maintenance cases or custody cases.
In order for a court to hear a case, claim of plaintiff is essential. This request is made with a petition and the case is deemed to have been filed with the registration of the petition and in this way, the first stage of the general trial, the submission of petitions, begins. After the mutual submission of the petitions, a preliminary examination is made by the court. At the hearing of preliminary examination, the court examines the mandatory due process requirements provided in article 114 of the CCP has been met, the first objections, and the lapse of time and statute of limitations. Within the framework of the claims and pleadings of the parties, the court determines the issues that they have agreed and disagreed with. After determining the matters of dispute, the judge encourages the parties to conciliation or mediation on the issues where they can freely dispose of. If the dispute may not be settled amicably during the preliminary examination phase, the examination phase is initiated.
The examination phase is the stage in which examinations such as listening to the parties and witnesses, examining the evidence and obtaining an expert report are carried out. In the simple trial, during the examination phase, the court completes the hearing of the parties if needed, the examination of the evidence and the examination in two hearings, except for the preliminary examination. The interval between hearings cannot be longer than a month.
During the examination phase, it is examined and determined whether the facts put forward by the parties are correct. The longest running phase of the case is often the examination phase.
Following the completion of the examination phase, the court proceeds to the verbal trial phase. In the verbal trial, the parties make their last words on the case and after the verbal trial, the court gives its verdict. Parties may appeal the verdict.
The average length of proceedings before first instance courts is between one and two years in commercial cases and approximately up to one year in smaller and simpler cases before specialized courts for labour law and consumer law. In complex cases, the duration of the proceedings may be longer.
- Which disputes are subject to simple trial?
Simple trial is applied in disputes arising from labour law or consumer law, in certain issues regarding arbitration, in disputes that fall under the jurisdiction of the courts of peace, for requests of temporary legal protection such as preliminary injunction or precautionary attachment or recording of evidence and for objections thereto, for requests of ship’s protest or appointment of a dispatcher and for objections thereto, in disputes arising from maintenance or custody of children or of adults, in disputes arising from reconciliation of capital companies or cooperatives through reconciliation, in all disputes which are stated in various laws to be used in judicial procedures other than the written one.
- What is the approach of Turkish law to jurisdiction (choice-of-forum) clauses?
Under Turkish law jurisdiction clauses that grant jurisdiction to foreign courts are subject to a separate legal regime from jurisdiction clauses that grant jurisdiction to Turkish courts.
Jurisdiction clauses that grant jurisdiction to foreign courts are stipulated under the Code of PIL. In cases where local jurisdiction of Turkish courts is not determined on the basis of exclusive jurisdiction, parties are free to agree on jurisdiction of a foreign court in a cross-border dispute arising from obligational legal relationships. Such jurisdiction clause shall be held valid if it may be proved by written evidence. Jurisdiction clauses also have to meet the general validity requirements provided under contract law. Turkish courts lack of jurisdiction in the presence of a valid jurisdiction clause and a dispute falling under a valid clause granting jurisdiction to a foreign court may only be heard before Turkish courts if the foreign court denies its jurisdiction or if defendant does not raise a jurisdiction objection before Turkish courts. However, in disputes arising from labour law, consumer law or insurance law, jurisdiction of Turkish courts arising directly from objective jurisdiction regulations shall survive despite a jurisdiction clause.
Jurisdiction clauses that grant jurisdiction to Turkish courts are stipulated under the CCP where only merchants or public entities may grant jurisdiction to one or more Turkish courts regarding a dispute that has arisen or may arise between them. Unless otherwise agreed by the parties, the case can only be filed in such court(s) determined by the parties. Parties may not agree upon a jurisdiction clause in disputes where they cannot freely dispose thereof or where another Turkish court has exclusive jurisdiction.
- What are the expenses and which side will bear these expenses?
The costs of civil court proceedings are composed of application, decision and judgment fees with litigation expenses such as notification expenses, postal expenses and costs or fees paid for the witnesses and experts. The amount of court fees and attorneys’ fees are regulated by the Code of Fees, Judicial Fees Tariff and Attorney’s Minimum Wage Tariff.
As a rule, unless otherwise provided under codes, the proceeding expenses are collected from the party against whom the verdict was given. If each of the parties is partially justified in the case, the court divides the proceeding expenses according to the justification rate of the parties. If there is more than one judgment against them, the court may divide the proceeding expenses among them or decide to hold them jointly responsible.
In pecuniary disputes, the court and attorneys’ fees mainly depend on the amount in dispute.
- Are there specific rules regarding the financing of cases in your jurisdiction?
The CCP enables those who cannot afford litigation expenses to request legal aid from the court. Those who are partially or completely incapable of paying the necessary trial or follow-up expenses without putting their own and their family’s livelihood in a significant position can benefit from legal aid in their claims and defences, in requests for temporary legal protection and in execution proceedings, provided that their demands are not manifestly unfounded.
Associations and public benefit foundations may benefit from legal aid if they seem justified prima facie in their claims and defences and are not able to pay the expenses partially or completely without falling into financial difficulties.
Foreigners’ ability to benefit from legal aid is also subject to reciprocity.
- Are there any restrictions in your jurisdiction in the assignment of the claim or cause of action?
Unless the law, contract or nature of the business prevents, the creditor can assign his claim to a third party without seeking the consent of the debtor.
The assignment of cause of action can only be made after the filing of the case. Filing of the case does not remove the parties’ power of disposition over the subject of the case. Unless there is a precautionary measure, despite the case, the assignment of the claim is possible since the parties’ power of disposition over the subject property or right continues.
- Are the parties under any obligation to provide security for legal expenses?
There are two different regulations providing security for legal expenses.
According to the CCP, Turkish nationals having their habitual residence abroad have to provide security in order to cover the potential legal expenses while filing a case, or participating in the lawsuit as an intervener with the plaintiff or commencing execution proceedings in Turkey or if the plaintiff has been previously gone bankrupt or, restructuring procedures have been initiated through concordat or compromise or in the event that it is documented that he/she is under insolvency. However, there are certain reasons for exemption from security such as benefitting from legal aid or protecting the interest of a child or assets of the claimant in Turkey enough to cover the expenses.
According to the PIL, foreign real or legal persons who file a case or participate in the case or commence execution proceedings in Turkey shall be required to provide security on the amount determined by the court to cover litigation and proceedings costs and the loss and damages of the opposing party. The court shall exempt the plaintiff, the intervening party or the party commencing enforcement proceedings from providing security on the basis of reciprocity.
- How are the fees of the attorneys determined in Turkey?
It is permissible for the attorneys to enter into fee arrangements with their clients. However, the agreed fees cannot be lower than the minimum amounts set out by the Official Tariff. The attorney fees can also be determined over the value of the claim set forth with the proceedings. However, it cannot exceed 25% of the total value of the matter of the dispute.
- How do the execution proceedings work for the enforcement of court decisions? Is there any other way to initiate enforcement proceedings regarding debts other than directly filing a case?
There are three types of execution proceedings; with and without a court decision and by way of foreclosure.
As a rule, if a debtor fails to meet the financial obligations, creditor requests payment of the debt by applying to the court and then asks for enforcement of the court decision if it is in favour of the creditor. An execution order is sent to the debtor in the execution proceedings with the court decision. With an execution order, the debtor is notified to pay or deliver the debt written in the court decision within a certain period of time. If the debtor claims that the debt has been paid or postponed or expired in a period after the notification of the execution order, he/she can always request the postponement of the execution from the enforcement court. If the debtor fails to postpone the execution or does not comply with the execution order, the court decision will be enforced by the enforcement office. After enforcement phase the debtor can only file a restitution case before enforcement courts claiming that he/she has paid the money under the threat of enforcement which he/she did not actually owed in terms of material law.
There are three types of execution proceedings without decision; General Execution Proceedings, Execution Proceedings Specific to Bills of Exchange and Execution Proceedings by Evacuation of Leased Immovables.
General Execution Proceedings are carried out in the Enforcement Office for all types of money debts not based on a court decision. If the debtor objects to the execution proceeding within 7 days, the proceeding is suspended. In this case, the creditor may file a case for the cancellation of the objection and request continuation of the proceeding and the debtor to pay him / her denial of execution.
The differences between the Execution Proceedings Specific to Bills of Exchange and General Execution Proceedings are the duration of the objection, the authority where the objection was made, the form, content and the result of the objection. While the objection is made to the enforcement office in the proceedings through General Execution Proceedings and automatically suspends the proceeding, the objection to the Execution Proceedings Specific to Bills of Exchange is made to the enforcement court and proceeding is suspended when the enforcement court decides for a temporary suspension of legal protection.
Execution Proceedings by Evacuation of Leased Immovables is an exception to the rule that execution proceeding without a court decision will only be for money debts and proceeds in parallel with the General Execution Proceeding. However, in the Execution Proceedings by Evacuation of Leased Immovables, the evacuation procedure is also operated together with the levy process carried out for the collection of the lease debt.
In the Execution Proceedings by way of foreclosure, there is an obligation to convert the pledge into money before starting an execution proceeding with or without court decision. If a creditor, whose receivable is secured with a pledge, wants to initiate an execution proceeding for his receivable, he/she should firstly initiate a Proceeding by way of foreclosure.
- PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS
- What remedies are stipulated for the protection of the fundamental rights and freedoms?
Both legal persons and individuals can apply to the Turkish Constitutional Court claiming violation, caused by people or institutions using public power, of any fundamental rights and freedoms enshrined in the Constitution and protected under the European Convention on Human Rights (ECHR). In order to apply, the usual legal remedies should be exhausted.
Turkey, as a state party to the ECHR, adopted individual application to the European Court of Human Rights. Individuals, non-governmental organizations and groups of persons who think that a right protected by the ECHR has been violated by another contracting state, as well as individuals, non-governmental organizations and groups of persons, have the right to apply to the European Court of Human Rights. In order to apply to the European Court of Human Rights, all ordinary domestic remedies should be used up.
- Initiating Litigation Process
- Is there a formality that must be followed before initiating the litigation process?
There is a mediation requirement for certain disputes such as commercial receivables and reemployment and labour receivables. In cases that require mediation, the plaintiff must apply for mediation before filing a case. Except for the cases for which mediation requirement is stipulated, there is no particular formality to be followed before initiating proceedings. The plaintiff can file a case by submitting her petition and depositing the application fee without any other requirement.
2.2. What statute of limitations apply in different cases of claim? Is the statute of limitations treated as a procedural law problem or a substantive law issue?
According to the Turkish Code of Obligations, the general statute of limitation is 10 years, but for some requests, a 5-year statute of limitations is stipulated such as; rental fees, principal interest, salaries, accommodation fees in places such as hotels, motels, pensions and holiday villages, and food and beverage costs in restaurants and similar places, claims arising from small works of art and small-scale retail sales, claims regarding disputes arising from the relationships between directors, representatives, auditors in a partnership, claims arising from brokerage agreements and agency agreements, claims arising out of attorney, arising from the contract of work except that the contractor fails to fulfil his obligations at all or duly. Statute of limitation starts as of the date when the debt becomes due.
A special statute of limitation is stipulated for cases arising from unjust enrichment. The right to claim arising from unjust enrichment expires after two years from the date by which the holder of the right has come to know his right to reclaim and in any case after ten years from the date by which the enrichment occurs.
The statute of limitation for claims of compensation based on tortious action is two years as of the date on which the plaintiff becomes aware of the tortious action and 10 years in any case as of the date on which the act has committed.
Under Turkish law, statute of limitations is treated as a substantive law issue. The statute of limitations is not taken into consideration ex officio by the courts. Accordingly, the expiration of the statute of limitations should be raised by the parties.
2.3. How are civil proceedings commenced in your jurisdiction? How does the service of documents process work outside of your jurisdiction?
The proceeding is deemed to be commenced on the date the plaintiff’s petition is submitted. With the service of the petition to the defendant by the court, the defendant’s response period begins.
According to Code of Service, unless there exists any applicable multilateral or bilateral treaty regarding service of documents, service of documents abroad should be made through diplomatic channels where documents are sent to the Consulate or Embassy of Turkey in the country where the service will be made, through Ministry of Foreign Affairs and such representative of Turkey in the foreign country shall request the competent authority of the country to service the documents to the addressee in accordance with its own laws. When the addressee is a Turkish citizen, representative of Turkey may send a notification (but not the documents) to the addressee to call him/her to the Consulate or Embassy of Turkey in order to take the documents voluntarily. Turkey is a party to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, to the Hague Convention of 1 March 1954 on Civil Procedure and to several bilateral treaties regarding service of documents abroad.
2.4. Are there any pre-action interim remedies in your jurisdiction? How do you apply for them?
Under Turkish law parties may seek for temporary legal protection before filing a case before Turkish courts or foreign courts or arbitration courts. The types of temporary legal protection may differ according to the nature of the protection sought.
If the creditor is seeking to attach the debtor’s assets in order to secure his monetary claims, he/she should ask for a precautionary attachment before the competent Turkish court and after obtaining such decision the principal case should be filed before the competent judicial authority within a certain period of time.
If the claimant is seeking for a temporary legal protection due to a change in the current situation, in cases where there is concern that obtaining the right will be significantly difficult or completely impossible, or that there will be an inconvenience or a serious damage due to delay, he/she should ask for a preliminary injunction and after obtaining such decision the principal case should be filed before the competent judicial authority within a certain period of time.
If the claimant is seeking for certain procedural actions such as a site visit or obtaining an expert examination or a witness statement, he/she should ask for recording of evidence before the competent Turkish court.
The party who requests for temporary legal protection is required to provide a security in order to secure the possible damages that the opposing party or third parties may suffer once the temporary legal protection is found to be unfair.
- Assertion of the Claim
- What are the essential elements of the plaintiff’s lawsuit petition?
The name of the court, the names, ID numbers and addresses of the plaintiff and of the defendant, all the facts and legal arguments that form the basis of the claim, the evidences on which the facts will be proven are submitted with the lawsuit petition to the court by the plaintiff.
The prayers for relief should also be clearly stated in the lawsuit petition. In cases related to assets, the value of the subject matter should also be stated.
- Is it possible to expand or amend the claim?
Reductions of the prayer for relief are permissible at any time. Waiver is not subject to the consent of the other party and the court.
The extension or alteration of the claim or defence is restricted under Turkish law. The parties can freely expand or change their claims or defences with their reply and second reply petitions. After the mutual submission of the petitions, the claim or defence cannot be extended or changed. In cases where there is a prohibition on extending and amending the case, extension or amendment of the case is possible by rectification of the case or if the defendant expressly consents thereto.
- Is it possible to withdraw the claim?
Pleadings can be withdrawn until the decision is finalised with the explicit consent of the counterparty.
If neither party attend a hearing or one of the parties does not attend and the other one declares that he/she will not pursue the proceedings, the proceedings will be halted and the action will be deemed not to have been filed unless it is renewed by either one of the parties within three months.
Finally, the plaintiff can withdraw the pleadings by waiving his/her rights on which the action is grounding. However, in this case it is not possible to file a case grounding on the same right in the future.
- What are the essential elements of a pleading? What is the time limit within which the pleading has to be served?
The pleading should contain the same essential elements as the lawsuit petition. Clear summaries of all the cases that are the basis of the pleading of the defendant, the evidence with which to prove each case claimed as the basis of the pleading, and the legal grounds that are based on, should be clearly stated in the pleading upon request.
Preliminary objection against jurisdiction of the court or arbitration objection must also be made with the pleading.
The deadline for submission of the pleading is two weeks from the service of the petition to the defendant. However, in cases where it is very difficult or impossible to prepare a pleading within this period, according to the circumstances and conditions, the defendant who applied to the court within this period may be granted a time extension, up to two weeks for the simple procedure and up to one month for the written procedure.
- Can the defendant dispute the court’s jurisdiction?
If subject of the case has exclusive jurisdiction stipulated by law, the court shall ex officio examine its jurisdiction and the defendant may dispute the court’s jurisdiction at any stage of the trial.
In cases where the jurisdiction is not exclusive, the jurisdiction objection must be raised with the pleading as a preliminary objection.
- Is it possible for defendant to file a counterclaim or to ask for a set-off?
The defendant may file a counterclaim in the pleading provided that the main case has been filed and is still pending and that there is a deduction or set off relationship between the principal and counterclaim or a link between these claims.
Under Turkish law set off may be asked for provided that the claimant and defendant owe mutually a certain amount of money or the same type of goods and that both debts are due and payable.
- Consolidation or Separation of Cases & Third-Party Intervention
- Does Turkish judicial system allow cases to be consolidated?
Cases filed before courts of the same level and of the same title within the same jurisdiction may be consolidated at every phase of the trial, upon request or ex officio by the court, if there is a connection between them. The connection is deemed to be existed if the cases arise from the same or similar reasons, or if the verdict on one of them affects the other.
- Does Turkish judicial system allow lawsuits to be separated?
The court may decide on the separation of cases brought together or subsequently consolidated at any phase of the case, upon request of parties or ex officio in order to ensure better conduct of the proceedings.
- Is it possible for third parties to intervene in the case in an on-going trial?
One of the parties of a case, considering that in the event of losing the case he/she will recourse to any third party or any third party will recourse to him/her, may notify the case to the third party until the examination phase ends up. The third party who has been notified of the case can join the on-going proceeding besides the party who he/she has a legal interest of that party to win the case.
Any third party who claims a partial or complete right on the subject of the case can file a case against the parties of the principal case in the same court by asserting his/or situation until the verdict is given. The principal case and the intervener’s case are conducted together.
Any third party may ask to take part in the case as a joiner until the examination phase ends up, besides the party who he/she has a legal interest of that party to win the case and in order to assist that party.
- Administration of the Trial
- What administrative powers do the courts have in the administration of the trial?
The courts administrate the trials and take all necessary precautions to keep the order of the trial. When the need of clarification of the dispute occurs, the courts have the parties to make explanations about the matters that deem unclear or contradictory.
- What powers can the parties use while the trial is pending?
The court cannot automatically examine and decide on a case without the request of either party. During the trial, the parties may request the court to take procedural steps such as making the necessary correspondence to collect evidences, hearing witnesses or conducting an expert examination.
- What are the main rules for proof in your jurisdiction?
Proof is the act of persuasion attempted to persuade the judge about the existence or absence of an event or legal situation. The subject of the proof, on the other hand, consists of controversial cases that the parties cannot agree on and can be effective in resolving the dispute, and evidence is shown to prove these cases. The facts that are known to all and the facts that have been confirmed are not considered contentious.
Unless there is a special regulation in the law, the burden of proving an alleged fact belongs to the party that derives rights in its favour from the legal outcome associated with the alleged fact. The party relying on a legal presumption is only under the burden of proof regarding the fact that forms the basis of the presumption. Except for the exceptions stipulated in the law, the other party can prove the opposite of the legal presumption.
- What are the valid evidences in Turkish law and their power of evidence regarding the case?
All means of proof, other than the evidence provided illegally, can be accepted as evidence. Under Turkish law, the court is bound by some means of proof such as final decisions and as long as they are valid, one cannot evaluate whether they reflect the truth or not.
On the other hand, the evidences such as documents, written statements, witness testimony, expert opinion and site visit are not binding and are left to the discretion of the court.
- What kinds of decisions can the Turkish civil courts make?
The Turkish civil courts can make decisions that approve the hearing of a case, interim decisions that ensure the continuation of the case and final decisions that end up the trial.
Service of petition, replying to petition within two weeks, consequences of not responding to the petition, elimination of deficiencies in petitions and holding of a preliminary examination are the decisions taken with the preliminary proceedings report.
Decisions such as taking an expert report, making a site visit and hearing witnesses are interim decisions.
Explanatory decisions determining the existence or absence of a right or relationship between the parties; executive decisions ordering something to be given or to be done or to be avoided; constitutive decisions that change or, revoke a legal status or create a new legal status are the final decisions.
Courts can also issue orders regarding temporary legal protection such as preliminary injunctions or precautionary attachments or recording of evidence.
- What kind of decision civil courts make regarding claims for compensation and receivables?
Courts may decide to accept or reject the parties’ claims for damages in whole or in part. The courts are bound by the scope of demand of the parties and cannot decide more than that or anything else. Depending on the situation, they may decide less than the demand.
The parties can claim compensation of material damages and/or non-pecuniary damages in the amount of the damage occurred. However, Turkish courts cannot award punitive damages.
- Execution of Local Court Judgments
- How can local court judgments be executed?
If you have a court decision ordering payment of money debt, the opposing party can pay this debt with its consent, or the money shall be collected by initiating enforcement proceedings before Turkish execution offices. Execution of a work or the delivery of an item may also be executed subject to such enforcement proceedings.
The court decision does not need to be finalized for initiating execution proceedings. Therefore, when the debtor appeals to a higher court, he/she shall apply for suspending execution by depositing a guarantee in order not to have to pay this debt.
Please check question 1.15 to see how the local court decisions are enforced through execution proceedings.
- RECOGNITION AND ENFORCEMENT OF FOREIGN COURT DECISIONS
- How can decisions of foreign courts be executed in Turkey?
Foreign court decisions may neither be enforced nor have effect and bear consequence directly in Turkey. In order to ensure these results, recognition or enforcement of such decision must be claimed before the Turkish courts firstly. Whether a foreign court decision may have effect and bear consequence within Turkey depends on the recognition or enforcement of the decision.
As a rule, recognition or enforcement of a foreign court decision is be carried out in a separate lawsuit. As a result of this lawsuit, the foreign court decision may gain the strength and nature of the local court decisions upon recognition or enforcement decision.
Recognition and enforcement of foreign court decisions is possible with a recognition or enforcement decision by the local courts. With the decision of recognition or enforcement, the decision of a foreign court takes effect just as local court decisions.
It is also accepted that, despite the existence of foreign court decisions, it is possible for the parties to file a case in Turkish courts on the same issue instead of requesting recognition or enforcement of the foreign court decision. However, despite the existence of a decision given by foreign courts, in the case of filing a new case in the Turkish courts, defendant who wants to ensure the rejection of this case, may request the recognition of the foreign court decision.
Whether the foreign court decision is subject to recognition or enforcement shall be determined according to the nature of the decision requested to have an effect in Turkey. Explanatory decisions and constitutive decisions are subject to recognition since such decisions have no enforceable provisions. Executive decisions ordering something to be given or to be done or to be avoided are subject to enforcement.
- What are the conditions for the recognition and enforcement of foreign court decisions?
First of all, a foreign court decision requested from Turkish courts to be recognized or enforced should be related to civil cases and is finalized in accordance with the law of the state where it was made.
The only difference between the conditions sought in recognition or enforcement is that reciprocity is not required in recognition.
The court having jurisdiction shall give the enforcement judgment provided that:
- there exists an agreement based on reciprocity between the Republic of Turkey and the state where the judgment was given or a provision of law or actual practice enabling the enforcement of judgments given in Turkish courts at that state, (only for enforcement and considered ex officio),
- the decision was given regarding an issue that does not fall under the exclusive jurisdiction of Turkish courts (considered ex officio),
- the decision is not given by the court of a state granting itself jurisdiction although it does not have a genuine relationship with the subject of the case or the parties, on the condition that the defendant raises an objection to that effect (subject to defendant’s objection),
- the decision is not expressly contrary to Turkish public order (considered ex officio),
- although the person against whom enforcement is sought has, under the laws of that place, not been summoned properly to the court giving the judgment or represented properly at that court or a default judgment or a judgment in his absence has been given contrary to these laws and that person has not raised an objection based on these grounds before the Turkish court against the seeking of enforcement (subject to defendant’s objection).
- What legal remedies can be taken against the decisions of the local court?
Appeal in district courts enables supervision of decisions made by the courts of first instance both in terms of substance and law by the courts of appeals. Appeal in the Supreme Court enables legal examination of the decisions of the district courts. The following decisions of the courts of first instance may be appealed:
- a) Final decisions.
- b) Decisions of preliminary injunction, rejection of injunction requests, preliminary injunction decisions taken without complying with the procedures.
Decisions on property or monetary claims whose amount or value does not exceed three thousand Turkish Liras are final and cannot be appealed. However, an appeal may be filed against the decisions made in non-pecuniary damages regardless of the amount or value.
An appeal to the Supreme Court may be filed against the appealed final decisions made in the district courts within two weeks from the date of service. The decisions of the district courts whose amount or value does not exceed forty thousand Turkish Liras (including this amount) cannot be appealed.