With the “Judicial Reform Strategy” that started to be implemented on 30 May 2019, it is stated that various amendments would be made in our legal regulations. As a part of this strategy plan, the Law numbered 7251 on the Amendment of Code of Civil Procedures and Some Laws entered into force by being published in the Official Gazette dated 28 July 2020 and numbered 31199 under the name of “Second Judicial Package”.
The amendments which entered into force consist of 64 articles with execution and enforcement articles. We can say that the greatest aim of the amendments are to be able to carry out the legal proceedings more effectively and efficiently, to conclude the trial process within reasonable periods and to speed up the judicial process. The important amendments are as follows :
The Judge Can Make a Confidentiality Order in Civil Proceedings When Necessary :
Old Regulation
ARTICLE 28/2 – Only when the moral ethics or public security strictly require, the court may decide to perform a part or all of the hearings in confidentiality upon the request of one of the parties or ex officio.
New Regulation
RTICLE 28/2 – Only when the moral ethics or public security or best benefits that worth to be protected of someone who is related to the proceedings strictly require, the court may decide to perform a part or all of the hearings in confidentiality upon the request of one of the parties or ex officio.
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With the amendment made in the Article 28/2 of the Code of Civil Procedures, an exception is brought along for the principle of “the publicity of the hearings” and it is aimed to protect the various rights of the concerned persons, which are essentially included in the Constitution and the International Conventions when necessary. With this regulation, the aim is to secure the best benefits that worth protecting of the parties while protecting their right to fair trial. Consequently, with this regulation, it is made possible to hold a part or all of the hearings in confidentiality upon the request of the concerned person or by the Court’s ex-officio decision.
The Reasons For The Recusal Have Been Augmented :
Old Regulation
ARTICLE 36/1-c) Being heard as a witness or an expert within the case or acting with the title of judge or arbitrator within the case. ARTICLE 38/5 – The party who performs the recusal, makes their petition notified to the counter party. The counter party may response within a week. After this period, the petition of recusal, counter party’s response and its annexes, if any shall be given to the judge whose recusal is requested along with the file by the chief clerk. The judge examines the file in a week and gives the file to the chief clerk to be sent to the relevant authority immediately, by providing his written opinion about whether the reasons for recusal comply with the law or not. (6) Even if the reason for recusal is not constant, if the relevant authority deems it possible, the request of recusal may be accepted. (7) Oath cannot be offered about the reasons for recusal. (8) Inviting the judge to withdraw from their duty is in the nature of recusal.
(9) It is only possible to appeal against these decisions with the judgement on merits.
New Regulation
ARTICLE 36/1-c) Being heard as a witness or an expert within the case or acting with the title of judge or arbitrator within the case; previously performing mediator duties in the same conflict. ARTICLE 38/5 – The party who performs the recusal, makes their petition notified to the counter party. The counter party may response within a week. After this period, the petition of recusal, counter party’s response and its annexes, if any shall be given to the judge whose recusal is requested along with the file by the chief clerk. The judge examines the file in a week and gives the file to the chief clerk to be sent to the relevant authority immediately, by providing his written opinion about whether the reasons for recusal comply with the law or not. (6) Inviting the judge to withdraw from their duty is in the nature of recusal.
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The reasons for the recusal which were regulated under the paragraph c of the Article 36 of the Code of Civil Procedures, have been augmented and “previously performing mediator duties in the same conflict” is also added as another reason. In such case, the recusal may be requested by the parties and the judge may also withdraw from their duty ex-officio. In addition, amendments are made for the recusal procedure regulated under the Article 38 of the Code of Civil Procedures and it is made possible to appeal against the recusal decisions before the final decision on the dispute is made.
Obligation for the Judge to Warn the Parties regarding the Peremptory Term is Introduced :
Old Regulation
ARTICLE 94/2 – The judge may decide that the term they decide on is peremptory. Otherwise, the party that exceeded the specified period may request another term again. The second term to be given in this way is peremptory and cannot be given again.
New Regulation
ARTICLE 94/2 – The judge may decide that the term they decide on is peremptory. In this case, the judge clearly explains the transactions that are the subject of the peremptory term that is decided by the judge without any hesitation and warns the parties about the conclusions of not complying with this term and clearly writes these conclusions in the minutes. The party that exceeded the specified period which was not indicated as peremptory may request another term again; the second term to be given in this way is peremptory and cannot be given again.
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With the amendment made in the Article 94/2 of the Code of Civil Procedures, the obligation for the judge to explain the transactions that are the subject of the peremptory term that is decided by the judge without any hesitation and to clearly warn the parties about the conclusions of not complying with this term is brought along. The aim of this regulation is to prevent violation of the right to be heard and to prevent prolonging the trial. In addition, terms that are not specified as peremptory will continue to function as in the old regulation.
The Uncertainty of Unquantified Debt Action in Practice has been Eliminated :
Old Regulation
ARTICLE 107/2 – The claimant may increase their claim without being subjected to the prohibition of extension of the claim when it is possible to certainly know the exact amount or the value of the claim with the information given by the counter party or at the end of the proceedings.
(3) In addition, in cases which the partial action for performance may be filed, a declaratory action can also be filed and the legal benefit deems present in such cases.
New Regulation
ARTICLE 107/2 – The claimant may determine their claim without being subjected to the prohibition of extension of the claim within two-week-longs peremptory term which will be given by the judge before the proceeding ends when it is possible to certainly know the exact amount or the value of the claim with the information given by the counter party or at the end of the proceedings. Otherwise, the case shall be seen and the decision should be made in accordance with the amount or value stated in the conclusion.
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Due to the fact that Article 107/3 of the Code Civil Procedure caused uncertainty in practice, the current regulation is removed and the title of the article is changed from “Unquantified Debt and Declaratory Actions” to “Unquantified Debt Action”. In addition, with the new regulation, the moment of determination of the certain and exact amount of the receivable will be determined by the judge in the Unquantified Debt Cases. After determining this moment, the judge will give the claimant a peremptory term for 2 weeks before the end of proceeding. Thus, the exact time of determining the moment of the amount of the receivable has been legally regulated and the uncertainty in the previous law has been tried to be eliminated.
The Obligation to Deposit the Evidence Fee in Advance has been Eliminated :
Old Regulation
ARTICLE 120/2 – If it is understood during the proceeding that the advance on expenses is not enough, a two-week-long period shall be given to the claimant by the court for the completion of this deficiency.
New Regulation
ARTICLE 120/2 – If it is understood during the proceeding that the advance on expenses is not enough, a two-week-long period shall be given to the claimant by the court for the completion of this deficiency.
(3) The provisions of Article 324 regarding the advance payment determined by the court for the evidence that each party requests to be summomed are reserved.
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With the amendment made in the Article 120/1 of the Code of Civil Procedure, the advance of the evidence fee will be deposited whenever it is necessary. In other words, if there is no certainty about which way of evidence (expert, viewing, witness) to be used while filing the case, income and expense fee will not be collected in advance. With the amendment made, it is decided that it is not compulsory to deposit the evidence fee at the time of filing a lawsuit, and an attempt was made to prevent the person seeking his right to face a heavy financial burden in this process.
Expanding or Changing Claims and Defence has been made More Equal:
Old Regulation
ARTICLE 141/1 – The parties can expand or change their claims or defences freely with their rejoinder and second response petitions; or in the preliminary examination stage with the condition of obtaining the clear consent of the counter party. If one of the parties does not come to the preliminary examination hearing without an excuse, the party who is present may expand or change their claim or defence without seeking the counter party’s consent. After the completion of the preliminary examination stage, the claim or defence cannot be expanded or changed.
New Regulation
ARTICLE 141/1 – The parties can expand or change their claims or defences freely with their rejoinder and second response petitions. The claims or defences cannot be expanded or changed after mutually submitting the petitions.
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With the Article 141 of the Code of Civil Procedure, the opportunity of expanding or changing the claim and defence in absence of one of the parties who did not attend the preliminary examination hearing without any excuse has been eliminated. In this way, changing or expanding the claim and defence easily against the party who did not attend the hearing is prevented and the principle of fair trial is strengthened.
Performing the Hearings by Transmitting the Sound and Video or while at Some Other Place, in other words, E-Hearing is made Possible :
Old Regulation
ARTICLE 149/1 – With the condition that parties give their consent to, the Court may permit the parties themselves or their attorneys to attend the hearing and carry out the procedural transactions by transmitting the sound and video simultaneously from the place where they are at the moment. (2) With the condition that parties give their consent to, the Court may permit the witness, expert, specialist or any party to be somewhere else at the time of the hearing. The hearing shall be transmitted to the hearing room simultaneously in the form of sound and video.
New Regulation
ARTICLE 149/1 – Upon the request of one of the parties, the Court may permit the requesting party or their attorneys to attend the hearing and carry out the procedural transactions by transmitting the sound and video simultaneously from the place where they are at the moment. (2) The Court may decide to permit the witness, expert, specialist or any party to be somewhere else at the time of the hearing ex officio or upon the request of one of the parties by transmitting the sound and video simultaneously. (3) The court may decide ex officio to hear the concerned persons simultaneously by transmitting the sound and video from the place where they are at the moment in cases and transactions which the parties cannot dispose on freely. (4) The court may decide to perform the hearing somewhere else within the borders of the city due to a factual obstacle or security reasons by obtaining the appropriate opinion of the justice committee of the regional court of justice in which the court is located within the judicial locality of.
(5) The procedures and principles regarding the implementation of this article shall be determined with the regulation.
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The Article 149 of The Code of Civil Procedure has been amended with the title of article as well and the legislative substructure of the e-hearing application has been strengthened in this way. E-hearing which used to be implemented upon the consent of the parties previously may now be implemented upon the request of one of the parties or a Court decision. With this new regulation; the witness, the expert or the specialist may be heard from the place where they are at the moment of the hearing by transmitting the sound and video.
Exercise of the Right of Rectification is Expanded :
Old Regulation
ARTICLE 177/1 – The rectification may be performed until the end of the proceedings.
(2) The rectification may be performed orally or in written. If the counter party is not present at the hearing or the request for rectification is performed out of the hearing, this written request or the copy of the minute shall be notified to the counter party with the purpose of information.
New Regulation
ARTICLE 177/1 – The rectification may be performed until the end of the proceedings. (2) If the court of first instance carries out a transaction regarding the proceedings when the file is sent to the court of first instance after the decision of reversal of the Supreme Court or the decision of annulment of the regional court of justice, rectification may be carried out until the end of the proceeding. However, the legal position which is emerged by complying with the decision of reversal cannot be eliminated.
(3) The rectification may be performed orally or in written. If the counter party is not present at the hearing or the request for rectification is performed out of the hearing, this written request or the copy of the minute shall be notified to the counter party with the purpose of information.
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With the amendment made in Article 177/2 of the Code of Civil Procedure, in case the decision made by the court of first instance is annulled or reversed by the higher courts (annulment at the phase of appeal – reversal at the Supreme Court), if a transaction regarding the proceedings is carried out within the file that was submitted to the court of first instance after the decision of annulment or reversal, it shall be possible to carry out rectification until the end of the proceeding.
It is made a Rule to Perform the Oral Proceeding Phase at the end of the Trial :
Old Regulation
ARTICLE 186/1 – The Court shall subpoena both parties with the purpose of ensuring that they will be present before the court at the day and hour to be assigned for oral proceeding and judgment after the end of the trial. With the subpoena to be issued for the parties, it shall be notified that a judgment will be made in their absence if they are not present at the day and hour determined.
New Regulation
ARTICLE 186/1 – After the court announces that the trial is over, the oral proceeding shall be held at the same hearing. In this case, upon the request of one of the parties, the hearing shall be postponed not to be less than two weeks. No subpoenas shall be sent to the parties additionally for the oral proceedings whether they were present or not. The provisions of the Article 150 are reserved.
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With the amendment made in the Article 186/1 of Code of Civil Procedure, it is made a rule to perform the oral proceeding phase at the end of the trial. At this point, the court performs the oral proceeding at the same hearing after the court announces that the trial is over. However, the hearing may be postponed not to be less than two weeks upon the request of one of the parties.
The Opportunity for the Parties to Request Additional Time of Objection against the Expert Report in Special Cases is Introduced :
Old Regulation
ARTICLE 281- (1) The parties may request the completion of the missing points seen in the report from the expert; an explanation to be made by the expert regarding the unclear matters or a new expert to be assigned by the court within two weeks since the notification of the report.
New Regulation
ARTICLE 281- (1) The parties may request the completion of the missing points seen in the report from the expert; an explanation to be made by the expert regarding the unclear matters or a new expert to be assigned by the court within two weeks since the notification of the report. In case making such request regarding the expert report within this period is too difficult or impossible or it requires a special or technical work, additional time which will start from the end of this period may be given to the party who makes an application to the court in this regard and this additional period cannot exceed two weeks and can only be given for once.
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With the amendment made in the Article 281/1 of the Code of Civil Procedure, the opportunity for the parties to request additional time of objection against the expert report with condition of not exceeding 2 weeks is introduced in case making such request regarding the expert report within this period is too difficult or impossible or it requires a special or technical work. This additional time starts from the end of the time of objection.