According to Article 2 of Turkish Constitution, The Republic of Turkey is a democratic, secular and social state governed by rule of law. Turkey, which is geographically a bridge between Europe and Asia, has a high potential with its commercial and logistics advantages.
Turkey is a member of the United Nations (since 1945), the Council of Europe (since 1949), NATO (since 1952), Hague Conference on Private International Law (since 1955), OECD (since 1961) and G20 (since1999) and also Turkey is official candidate for membership to the European Union since 2005.
Articles 17 to 40 of the Constitution protect fundamental human rights, such as: immunity of individual. prohibition of forced labour., freedom and safety, right to privacy, property and ownership, freedom of communication. freedom of residence and travel, freedom of religion, conscience, thought and faith, right to establish associations and right to legal remedies.
The main domestic sources of law in hierarchical order can be listed as follows: The Constitution., Codes and statutes. International treaties (international treaties have the same legal effect as codes and statutes), Presidential decrees., Regulations.
Since The Republic of Turkey is unitary state, there is only one body of laws encompassing both substantive and procedural rules to be applied throughout the country. The Republic of Turkey has adopted the principle of separation of powers. In line with this principle, judicial power is exercised by independent courts on behalf of the Turkish nation. (Article 9 of the Turkish Constitution)
Independence of courts, security of tenure of judges and public prosecutors, organization of courts, the profession of judges and prosecutors, supervision of judges and public prosecutors, military courts and their organization, powers and duties of high courts are regulated by the Constitution. (Articles 138-160 of the Constitution)
According to Article 142 of the Constitution; the organization, duties and jurisdiction of the courts, their functions and trial procedures are regulated by law. In line with the aforementioned article of the Constitution and related laws, the court system in Turkey can be classified under two main categories: Ordinary Judicial Courts( Civil and Criminal Courts) and Administrative Courts. Each category includes first instance courts and high courts.
Both for civil and criminal cases, first instance courts are basic judicial authorities to settle disputes. There are specialized courts both in civil and criminal fields and their establishment and competences are also regulated by laws.
Turkey, as part of the Continental European legal system, is one of the civil law countries. Codes related to private law are often adapted by taking the example of Continental European countries, and even in some applications, these laws are directly adopted as domestic law. While Swiss Law is taken as a precedent in the fields of Civil Law, Law of Obligations, Execution-Bankruptcy Law and Civil Procedure Law , the influence of German Law is dominant in the field of Commercial Law. This effect is not only limited to taking the codes of the relevant countries as an example in the abovementiond fields of law , but also taking into account the precedential decisions of the Supreme Courts of these countries in Turkish Private Law.
Civil Courts in Turkey
In civil judicial procedure, the Republic of Turkey has adopted a three-stage judicial system. These three stages are as follows:
- Courts of First Instance
- Regional (Circuit) Courts of Appeals
- The Court of Cassation (The Supreme Court of Appeal)
Civil Courts of First Instance are the basic trial courts with general and residual jurisdiction covering issues not specifically assigned to other tribunals. Specialized courts have been established to handle the cases requiring expertise and special knowledge. In Turkish Civil Procedure Law, the courts of first instance were separated in terms of the subjects of dispute and certain specialized courts were established. Commercial courts dealing with commercial cases, Labor Courts dealing with employee-employer disputes, Family courts dealing with divorce and family law issues, Consumer Courts dealing with consumer disputes, Enforcement Courts specialized in enforcement practices, the specialized court for intellectual and industrial property rights are established. In matters other than these, the Civil Courts of First Instance and the Civil Courts of Peace are authorized. If such specialized courts do not exist in a province or sub province, cases falling under the competence of specialized courts are handled by civil courts of first instance.
Regional Courts of Appeal will have at least three civil and two criminal divisions. Each Regional Court of Appeals will have a Chief Public Prosecutor’s Office. These courts will have the authority to examine files coming from the First Instance Courts in terms of form and substance. Regional Courts of Appeal may either uphold or quash the decision of the First Instance Courts. In the latter situation, it may either send the case file to the relevant Court of First Instance or retry the case itself (Art. 280 of the Criminal Procedure Code)
The Court of Cassation is the last instance court for reviewing decisions and judgments rendered by civil courts. The Court of Cassation has twenty civil and twenty-two criminal chambers, and each chamber has a head of chamber and sufficient members. Chambers convene with the participation of a chairman and four members; they negotiate the disputes and decide by majority.
Civil Dispute Resolution Methods In Turkey
As with all other legal systems, there are a number of distinct methods to resolve civil disputes in Turkey. Regarding Turkish Legal System, these methods may be examined under three categories as follows:
1.Alternative Dispute Resolution (ADR) Methods:
In accordance with the speed and dynamism of commercial life in Turkey, ADR mechanisms are becoming widespread and expanding with each passing day. Different ADR methods such as Mediation, Amicable Negotiation, Conciliation, Detection of Cases/Claims via Expert are applied as dispute resolution processes in Turkey. Among these methods, especially Mediation is regulated as a mandatory step in some types of disputes under Turkish law. This mediation stage is required as a prerequisite for litigation in commercial, labour and consumer lawsuits. Both mandatory and optional ADR methods are supported in terms of rapid and effective resolution of disputes in Turkey, and it is aimed to develop ADR practices as a country policy.
2.Arbitration
The Republic of Turkey is an arbitration friendly country in line with international practices. Laws governing arbitration have been adopted and implemented on the basis of the UNCITRAL Model Law. Two different codes in Turkey regulate arbitration in civil disputes.
First regulation is The Code of International Arbitration numbered 4686 which deals with international arbitration. According to the first article of the Code, the provisions of the Law are to be applied to disputes that involve a foreign element ant the seat of the arbitration is determined as Turkey in arbitration agreement or disputes for which the provision of the Code are chosen by the parties or the arbitration tribunal. In Turkey, arbitral awards made under the Code of International Arbitration are enforced in the same way as domestic court decisions and without the need for further recognition and enforcement procedure.
The second regulation is regarding arbitration deals with domestic arbitration and it is integrated into the Code of Civil Procedure numbered 6100. The latter is mostly adapted from the first. The provisions in the Code of Civil Procedure are applied to disputes lacking foreign element as defined by the Code of İnternational Arbitration, for which the seat of arbitration is determined as Turkey by the parties.
Turkey is a country with a high legal background in terms of both institutional and ad hoc arbitration practices. In particular, it has effective mechanisms and practices in terms of institutional arbitration practices in recent years. Established by law, Istanbul Arbitration Center (ISTAC) is on its way to becoming an important regional center preferred for both domestic and international arbitration proceedings.
3.Litigation
Litigation is of course the final and most common way of resolving civil disputes in Turkey. Article 36 of the Constitution stipulates as a fundamental human right for litigation that, everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures. No court shall refuse to hear a case within its jurisdiction.
The Repuclic of Turkey, like other civil law countries, has adopted a judicial procedure that puts the written proceedings at its center. Therefore, petitions and written statements are in a more decisive position than oral hearings.
In Turkey, parties to a civil law dispute are responsible for the determination of the facts and collection of evidence. It means that a party making a claim shall also provide the court with sufficient evidence to prove its claim. Under Turkish law, the parties of a civil case should list and submit all their evidence or at least information on evidence that is not in their possession during the exchange of petitions. Civil courts cannot gather evidence other than that presented by the parties. Further, civil courts cannot decide on a matter that has not been submitted by the parties or on remedies or compensation in excess of those requested by the parties.
In civil proceedings, the court is generally bound by the claimant’s request, and cannot give a decision beyond that scope. In principle, the court can accept the case, partially accept the case or reject the case. The court can order the following:
- Performance of certain acts or making a particular payment from one party to the other.
- Existence/non-existence of a right or a legal relationship.
- Constitution of a new legal relationship or amendment/disposal of an existing legal relationship.
