First published by Commercial Dispute Resolution Magazine (3 November 2016).

On July 20, 2016 the Turkish legal system entered into a new period as the Regional Courts of Justice have finally started to function. Orçun Çetinkaya, a partner at Istanbul-based Moroğlu Arseven, reveals the structure of the new court system which is hoped will ease the burden on the overloaded Turkish Court of Appeal.

Located in seven major cities across Turkey, Istanbul, Ankara, Izmir, Antalya, Erzurum, Gaziantep and Samsun, the new appellate courts, Regional Courts of Justice (RCJ) were introduced in 2004, under Law No. 5235, but were subject to delays while they were being established.

It is expected that more than 1300 judges and public prosecutors will be appointed to new positions in the appellate courts, which it is hoped will dramatically decrease the workload of the highest appellate body, the Court of Appeal (CoA) in Turkey.

As of summer of 2016, the number of pending cases before the CoA has soared past the 1.2 million mark and those before the Turkish Council of State already exceed 200,000. Thanks to the new system, 90% of criminal and civil cases and 80% of administrative cases are expected to lead to finalised judgments following the review of intermediate appellate courts.

The new system will replace the singular appellate review system in Turkey, based on the review of the CoA, with a two-tier appellate review system where the RCJs will work as intermediate appellate courts. In this new system, RCJs will have jurisdiction to retry the cases heard by the original trial court as a court of first instance (CFI).

Most of the appeals will be reviewed and finalised by the RCJs, whereas few cases will be subject to further review of the CoA. Regional courts will also review the judgments of the administrative courts, thus assuming a similar role as an intermediate appellate body in the administrative justice system.

This system has been much needed to increase the judicial quality in Turkey. As the caseload of CFIs was enormous, judges could not find sufficient time to address factual disputes and excessively rely on expert opinions and reports.

Additionally, inconsistency among CFI judgments in relation to similar claims was quite high, meaning the CoA, being the only appellate body, could not function effectively and failed to strengthen Turkish jurisprudence.

Consequently, the new system will address the bottleneck at the appellate stage, allowing high court judges to spend more time to increase the quality of reasoned judgments and shed a much brighter light on the interpretation and application of Turkish laws and regulations in the near future.

While two-tier appellate systems have already been adopted in several European countries including France (where a similar distinction is made between the Cour d’Appel and the country’s Supreme Court, the Cour de Cassation), they are new to Turkey.

The Turkish move is, however, not without precedent; similar moves to introduce an additional appellate level of review can be seen in Ireland, where a national Court of Appeal was introduced, with much approval, and reviews questions of law and fact, although retrials are designated to the High Court or District Court as appropriate.

There are parallels in the common law system, in the state courts of the United States, where New York state, for example, operates a division of the Supreme Court as an intermediate appellate body, deciding on questions of law and fact, leaving the New York Court of Appeals as the highest court in the state of New York to decide questions of law alone.

Having regard to the fact those jurisdictions are good examples of effective judiciaries, lawyers are optimistic that this new structural development will bring an injection of much needed pace and effectiveness to the court system in Turkey, which will be welcomed by clients.

APPEALING DECISIONS ORDERED BY THE TRIAL COURT

Applications for appeal can be made within two weeks from the date of service of the reasoned judgment of the trial court, or CFI. The petition for appeal can be submitted to the court which rendered the judgment or any other court deemed appropriate by the appealing party and the RCJ of the region in which the petition for appeal is filed will be in charge of the review of the judgment appealed.

Appeals to the RCJs will require a leave of appeal of the CFI which rendered the decision. As per Article 346, the court will have a limited power to refuse to grant leave of appeal, only on grounds of firstly, breach of the statute of limitations for appeal and secondly, that leave of appeal is requested in relation to a final order. The appellant will have the right to further appeal the decision of the CFI in relation to refusal to grant a leave of appeal before the RCJs provided that such petition is made within one week after its service.

In this new system, RCJs will be allowed to vacate the judgment of the CFI and order a new one, if the RCF determines that the cause shown for appeal is correct and the judgment of the CFI was wrong. If it reaches to the conclusion that the cause shown for appeal is not correct, then it will simply dismiss the plea for appeal.

In the event that the RCJs finds an error of fact made in the decision rendered by the first instance court, then the RCJ will be allowed to review the judgment on the point of fact basis.

As a result, RCJs, before rendering judgment, will be able to evaluate additional evidence presented, conduct discovery and summon new witnesses.

ADDITIONAL POINTS TO NOTE

Pursuant to Article 349 of the Code, the parties will not be able to contract out the jurisdiction of RCJs in any legal instruments before such right of appeal has arisen, otherwise such contractual provisions or agreements will be null and void.

Moreover, the appeal to the RCJ will not automatically stay enforcement of the judgment or orders rendered by the CFIs. However, the party against whom a judgment is rendered can still file a petition with the relevant enforcement offices and request the postponement of enforcement by depositing security for costs, or collateral.

It is important to note that the procedural rules in relation to the CoA appellate review has remained the same. Accordingly, if the appellants are not barred to appeal to the CoA, the parties are allowed to appeal the judgment of the RCJ within 30 days from the service of a reasoned judgment of the RCJ. The CoA will review the RCJ appeal on a point of law basis and will either affirm or reverse the decision of the RCJs.

EVALUATION

The existence of superior courts, including appellate courts, form part of a guarantee for a high quality judicial decision making process, where the possibility exists to correct legal or procedural errors made by judges and to protect the unity of law.

In this respect, we believe the new two-tier appellate system is much needed in Turkey because it was apparent to practitioners that the CoA was not able to function due to an excessive workload. Considering that 90% of first instance cases are appealed in Turkey, the CoA’s review of the same was limited, ineffective and slow.

With the introduction of this new system, the workload of the CoA will definitely decrease and the RCJs and the CoA will work with greater efficiency thanks to the division of jurisdiction between them. However, to what extent the quality of judicial rulings will improve thanks to this system remains to be seen.

The main issue for readers is whether the new reform in Turkish legal system would be sufficient to improve the efficiency of justice in Turkey. A report issued by the Council of Europe’s Commission for the Efficiency of Justice in its assessment of court quality argues that the overarching nature of judicial quality is not only limited to the quality of the decisions or the existence of appeal and higher courts, but also relates to the notion of independence of the judiciary.

It notes that the guarantees of independence are connected with the recruitment and nomination of judges, their terms of office, remuneration and the freedom to decide in the courtroom without direct influence from the executive or legislative powers.

Having regard to those assessments, it is difficult to argue, that the new reform is not sufficient to improve judicial quality in Turkey in its entirety, but it is a significant step on the long journey towards reaching greater legal excellence.

Compared to other international standards, such as the US Trial Court Performance Standards, published in the 1980s, where the performance of courts was tested in more subjective areas, such as access to justice, expedition and timeliness, equality, fairness and integrity, independence and accountability and public trust and confidence, it would be really hard to argue that the new system would be a panacea for the problems in the Turkish legal system.

It is unfortunate that this reform was introduced just after the failed coup attempt of July 15, 2016.

Against a background in which the number of experienced judges was already insufficient, actions taken after the failed coup attempt, saw a third of the Turkish judiciary dismissed due to ongoing investigations at a time when Turkey and the Turkish judiciary is in the highest need of its judges.

The new appeal system definitely provides a better structure for those who remain. It will shorten proceedings and will help a better carriage of justice. Even though it will take time for it to settle and function flawlessly. By improving other areas in court performance in a short while, Turkey will have a better judiciary sooner rather than later.