The Turkish judicial system is reaching a structural milestone that has been almost 85 years in the making.
THE first draft law in Turkey establishing second-level appellate courts that would be empowered to re-examine the facts of cases goes back to the year 1932. However, successive Turkish governments were unable to pass such a law until 72 years later when in 2004 the Grand National Assembly ratified a law creating new civil and criminal appellate courts (istinaf mahkemeleri, bölge adliye mahkemeleri, or collectively “Regional Courts”) within the vertical court structure, which were intended to be organized by region and serve as courts of second instance. The envisioned Regional Courts were empowered to rule on issues of fact and law, in harmony with the requirements of accession to the European Union, laid out in the Acquis Communautaire. Yet, these courts effectively only existed on paper, and it would be another 12 years before the new Regional Courts could finally commence operations, starting in 2016.
Filling the Gap
Between 2004 and 2016 the high court or Court of Cassation had essentially been filling the gap left by the lack of a court of second instance. It would re-examine the facts and revise the decisions of certain cases on appeal, creating a heavy workload and arguably exceeding its scope. Naturally, as caseloads increased, this situation became more and more untenable over time. As a result, the legislature decided to move forward on establishing the Regional Courts as a way to free the Court of Cassation from its part-time role as a “revision” body and allow it to be a true cassation body to which lower court decisions could only be challenged on a point of law.
New Structure and Roles
On July 20, 2016, the two-tiered vertical court organization finally gave way to a three-tier structure with the courts organized at the following levels: Local Courts as courts of first instance, Regional Courts as courts of second instance, and the Court of Cassation as the final court of appeals. There are now nine new Regional Courts located in Ankara, Antalya, Erzurum, Gaziantep, Istanbul, Izmir Samsun, Bursa, and Adana. Similar to the Court of Cassation, the new Regional Courts are comprised of civil and criminal chambers which are organized by the nature of the disputes that they resolve and the types of criminal cases that they hear.
The main feature of Regional Courts which lets them expedite adjudication is that they not only have the authority to reverse decisions of the Local Courts and resolve cases by rendering partial or full and final decisions on matters of law, but also to conduct de novo review by examining new evidence or re-examining old evidence at their discretion in order to rule on matters of fact. For this purpose, they are empowered to conduct hearings, appoint expert witnesses for examination of evidence, and hear direct witnesses testimony if necessary. Their authority to hear cases on questions of both fact and law allows them to act as a buffer between the first instance courts as the first trier of fact and the Court of Cassation which hears appeals on matters of law only. In this way, Regional Courts function as appellate courts that also offer truly de novo review.
Review of Local Court Decisions by Regional Courts in Civil Matters
The scope of review in civil matters allows Regional Courts to examine both the procedural and substantive matters of cases but their review is limited to the issues set forth in appellate petitions, and they may only examine other matters beyond those raised in the petitions if they identify a situation that is contrary to the public order. With the introduction of regional courts into the civil litigation system, the very rarely successful legal remedy of correction of decision (karar düzeltme), which was essentially a request from the parties to the Court of Cassation for it to reconsider its own previously rendered appellate decision, has been eliminated for cases that were resolved by first instance courts after to July 20, 2016. Another change to the process of civil litigation is that preliminary injunction orders of courts, which have not been eligible for appeal since the year 2014, may now be appealed before regional courts.
Review of Local Court Decisions by Regional Courts in Criminal Matters
Decisions rendered by first instance criminal courts may also be appealed to the criminal chambers of Regional Courts. Contrary to civil matters however, it is not necessary for the defendant or the intervening parties to set forth their reasons for appeal in order for the Regional Court to conduct its examination into criminal matters, and they may examine matters beyond those set forth in the appellate petition. Except for certain cases, Regional Courts will conduct hearings and notify the parties.
Performance of the Regional Courts in their First Four Months
On December 3, 2016, the Turkish Ministry of Justice announced that the performance of Regional Courts in their first 4 months had been quite satisfactory based on the following data:
- The Regional Courts have resolved 7832 out of 11062 lawsuit files,
- The Regional Courts have succeeded in resolving 74% of the civil chamber lawsuit files brought before them, and 72% of the criminal chamber files, and
- In the Regional Courts, the average length of time to resolve a lawsuit in civil chambers is 4.6 days and to resolve a case in criminal chambers 5 days.
The Ministry of Justice expects the performance of Regional Courts to slow as the number of lawsuit filed before them increases. As a result, there is a future plan for the establishment of regional courts in 6 other cities, making a total of 15 Regional Courts. According to Prof. Dr. Hakan Pekcanıtez however, Turkey would need at least 21 to 25 Regional Courts for the system to function efficiently.
In any case, reviewing the data announced by the Ministry of Justice on the performance of Regional Courts in their first four months, they seem to be performing much faster than the Court of Cassation did before, although it remains to be seen if the addition of Regional Court review will encourage the Court of Cassation to stop examining the underlying facts of cases altogether, and focus exclusively on hearing questions of law, in order to promote the uniform approaches of courts to specific questions of law, as originally intended.