Progressing the caseTypical procedural steps
What is the typical sequence of procedural steps in commercial litigation in this country?
A mandatory mediation process has to be completed before bringing a claim (see question 10). Thereafter, the procedural steps in commercial litigation in Turkey begin with the filing of the lawsuit petition. Within a period of two weeks from service of the lawsuit petition, the defendant must submit its response petition or request an extension to submit its written statement of defence. An additional period of up to one month can be granted by the courts. There are two types of judgment procedure: a simple judgment, and a written judgment procedure regulated by the CCP. In written judgment procedures, the parties have the right to submit their second responses within two weeks of service of the counterparty’s petition. After the completion of petition submissions, the court schedules a preliminary hearing date. At the hearing, the court will determine the disputed matter and evaluate preliminary objections, if any. In addition, the court invites the parties to make settlement and will take their statements regarding conciliation before progressing to trial. Upon the parties’ request, the court may decide to hear witness statements if this is necessary to solve the disputed matter. Therefore, the court will appoint another hearing date. After obtaining all of the evidence, including witness statements, the court may decide to send the case file to an expert in order to obtain an expert report. Parties have a right to object to determinations made by experts in their reports. Following the conclusion of the foregoing procedures, the court will issue a decision on the merits of the claim.
District court decisions can be appealed by the parties. In general, the appeal period is two weeks. The first evaluation will be made by a regional court of justice if the claim exceeds 4,400 lira. The decision of the regional court of justice could be appealed by both parties by submitting appeal petitions before the Court of Appeal if the claim exceeds 58,800 lira. For more detailed information, see question 50.Bringing in additional parties
Can additional parties be brought into a case after commencement?
See question 26.Consolidating proceedings
Can proceedings be consolidated or split?
The court may decide, ex officio or upon request of the parties, to split or consolidate cases during any phase of the proceedings. The court will consider the following situations before splitting or consolidating proceedings;
- cases that have a linked topic and that are in the same jurisdiction at the same level of court can be consolidated; and
- cases that were brought together to the court or consolidated by the court at any point can be split if this is necessary for proceedings to run efficiently.
How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?
Under the Turkish law system, all means of proof can be accepted as evidence unless provided unlawfully. Evidence shall not require absolute certainty: it only helps in proving the claims. The court will decide whether the claim is true by considering written evidence primarily as well as other evidence, and by hearing minutes and experts’ opinion regarding technical issues.
The burden of proof rests with the party who will gain a legal benefit from the court’s decision according to its allegations.
How does a court decide what judgments, remedies and orders it will issue?
The courts are prohibited from granting something different or additional to what has been asked for. For possible remedies and orders, see question 21.Evidence
How is witness, documentary and expert evidence dealt with?
The list of witnesses, as well as their addresses, shall be submitted, along with an explanation regarding how their knowledge is relevant to the case. Witnesses are questioned at a hearing by the court, and their testimonies are recorded in the minutes of the hearing. Documentary evidence is also a common form of evidence, most of which is submitted before the court while filing first claims and defences. Documentary evidence such as official company records, signed agreements and documents submitted to the administrative bodies is considered more reliable than witness testimony.
The court will appoint an expert if a disputed matter concerns technical issues to be determined by experts. In Turkey, upon a request by the parties, if a disputed matter requires evaluation regarding its technical aspects, the court may appoint an expert by choosing from an official list of experts, and send the case file to the expert in order to obtain an expert report. Experts examine disputed matters by considering all documents involved in the case file and all technical aspects before preparing an expert report. Parties have a right to object to determinations in the expert report. If the court finds the objections reasonable, it may decide to obtain an additional report.
How does the court deal with large volumes of commercial or technical evidence?
As a general principle, the court has to evaluate all of the documents submitted lawfully, with no restriction regarding the volume of evidence. Therefore, should the need arise, the court may appoint an expert as explained in question 35.
Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?
If a witness is not residing in the province where the hearings are held, then the court may issue an order to the judge in the province where the witness resides to take that witness’s testimony. In international matters, such order will be made through the relevant consulate, and the testimony of the witness will be heard at the consulate buildings in light of the court’s writ. If a witness did not attend the hearing without an excuse despite an invitation sent by the court, the court will send a court writ to the relevant police station in order to make the witness attend the hearing. If the witness resists attending the hearing to be questioned by the court, the court may decide to impose an administrative fine on the witness.
How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?
The court asks questions related to the claims primarily and gives the parties’ lawyers the right to pose questions to the witnesses. The parties’ lawyers can ask direct questions of witnesses; however, the parties cannot ask questions of witnesses directly, but can pose questions to the judge.Time frame
How long do the proceedings typically last, and in what circumstances can they be expedited?
On average, complex commercial litigation cases typically take about one to two years in the courts of first instance. Preliminary injunction requests and non-delayable claims, where delay may lead to irreparable damage, can be expedited at the court’s discretion.Gaining an advantage
What other steps can a party take during proceedings to achieve tactical advantage in a case?
Although the means of gaining a tactical advantage are limited, default and summary judgments can be seen in practice. If one of the duly invited parties attends a hearing and the other does not, the proceedings are continued or the file is cancelled at the request of the party that attended. The party who does not attend the hearing without a valid excuse cannot object to the procedural actions made in its absence. In the event that an interim injunction is required, the judge may decide to take measures without hearing the other party in cases where it is necessary to immediately protect the rights of the requesting party.Impact of third-party funding
If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?
Third-party funding is possible, and there are some asset management companies in Turkey. Third-party funding is not taken into consideration by the courts.Impact of technology
What impact is technology having on complex commercial litigation in your jurisdiction?
Technological developments mean that it is possible for parties to submit information and documents to the court on flash disks or CDs. The court may, with the consent of the parties, allow them or their representatives to participate in hearings and carry out procedural proceedings from a different location from the court through the simultaneous transmission of audio and video.
It is possible to find all information and documents in the case file through an online system named the National Judicial Network Information System (UYAP). Through UYAP, the parties’ lawyers can access all the information and documents in the case file with their personal passwords. At the same time, documents can be submitted through this system by the parties’ lawyers.Parallel proceedings
How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?
There may be administrative or criminal proceedings in connection with an ongoing civil case. If necessary, the administrative or criminal case may be held as a preliminary issue, in which case the civil case will cease until the relevant court’s proceeding is finalised.