Simplified Procedure in Turkish Civil Cases
The enactment of Law No. 6100 on Civil Procedure (HMK) marked a significant transformation in Turkish civil procedural law, streamlining the procedural methods from four to two and establishing the "written procedure" as the primary method for civil litigation. The "simplified procedure" was introduced for cases falling outside the scope of the written procedure. Prior to this change, the 1086 Code on Civil Procedure (HUMK) included both verbal and summary procedures in addition to written and simplified ones. HMK Article 447 addresses potential conflicts by stipulating that, where other laws refer to verbal or summary procedures, the provisions of the simplified procedure will apply. For example, after the enactment of Law No. 6100, cases heard in labor courts under verbal and summary procedures continued under the simplified procedure.
The simplified procedure is detailed in Articles 316 to 322 of the HMK. It encompasses the filing of pleadings, presentation of evidence, extension or modification of claims and defences, preliminary examination and investigation phases, and the court's ruling. In contrast, the written procedure, detailed in Articles 118 to 186, is the primary method due to its more comprehensive regulations.
This article focuses solely on the simplified procedure to prevent distractions from the written procedure's principles. Initially, we will define the simplified procedure and the types of cases it applies to, compare it with the written procedure, and discuss practical issues and other relevant topics.
I. Overview of the Simplified Procedure
A. Examination in the Context of Civil Procedure Law
Turkey’s civil procedural system is based on the principle of thorough examination of facts. In cases under the written procedure, judges must scrutinize every detail of the dispute. This comprehensive approach often leads to longer trial durations. However, not all disputes require such an elaborate process. For instance, if the facts can be clarified with the initial pleadings, further pleadings may be unnecessary. Recognizing this, lawmakers introduced the simplified procedure to resolve disputes more swiftly. Consequently, the simplified procedure simplifies preliminary examination and investigation stages.
Despite its name, the simplified procedure can be critical for parties involved. Cases such as uncontested family law matters, objections to enforcement orders, and annulment of general assembly decisions in corporate law, though procedural, can be significant. Thus, the simplified procedure is not about handling "simple cases" but rather expediting the resolution process.
B. Applicable Cases for the Simplified Procedure
The application of a procedural method is determined by the nature of the dispute or the court hearing the case. Article 316 of the HMK outlines the instances where the simplified procedure is applicable, unless otherwise specified by law:
Cases and matters within the jurisdiction of the civil courts of peace (Article 316/1-a).
Cases where the court has discretion to decide based on the file (Article 316/1-b).
Requests for provisional legal protections like injunctions and evidence preservation, and objections to these (Article 316/1-c).
All maintenance cases, and cases related to custody and guardianship (Article 316/1-ç).
Cases arising from employment relationships (Article 316/1-d).
Cases related to concordat and restructuring of capital companies or cooperatives (Article 316/1-e).
Cases falling under the court's jurisdiction according to arbitration rules (Article 316/1-f).
Cases specified by other laws that apply procedures other than written procedure (Article 316/1-h).
For example, the Enforcement and Bankruptcy Law No. 2004 specifies that actions for the annulment of dispositions follow the simplified procedure. Similarly, the Labour Courts Law No. 7036 mandates the simplified procedure for labor court cases.
II. Differences Between Simplified and Written Procedures
A. Differences in Exchange of Pleadings
a. Single Pleading Principle
In the written procedure, parties may submit four different pleadings: the complaint, the response, the rejoinder, and the rebuttal. Under Article 317/3 of the HMK, in the simplified procedure, parties cannot file rejoinders or rebuttals. This rule is mandatory to ensure quicker resolutions.
b. Time for Filing a Response
Article 317 of the HMK allows two weeks for the defendant to file a response, extendable by the court if necessary. This provision was amended by Law No. 7251 to clarify the starting point of the additional time period, ensuring consistency in practice.
B. Restrictions on Expanding or Modifying Claims and Defences
The "concentration principle" in civil procedure mandates that parties must present their claims and defences within a specific stage. Article 141 of the HMK restricts expanding or modifying claims or defences after the exchange of pleadings. In the simplified procedure, Article 319 states that this restriction begins with the filing of the complaint for the claimant and the response for the defendant.
This rule is crucial to prevent loss of rights. For instance, the statute of limitations defence must be raised in the initial pleadings to avoid being barred from doing so later. The Supreme Court of Appeals has emphasized that the simplified procedure mandates strict adherence to these timelines.
C. Presentation of Evidence
Prior to the enactment of Law No. 7251, parties could request a two-week extension for submitting evidence during the preliminary hearing in written procedure cases. Now, all evidence must be submitted before the preliminary hearing. Article 318 of the HMK stipulates that in the simplified procedure, all evidence must be clearly presented in the initial pleadings, and failure to do so means forfeiture of the right to present that evidence later.
The Supreme Court of Appeals has upheld this requirement, emphasizing the necessity of adhering to these timelines.
D. Preliminary Hearing and Investigation Phase
After the exchange of pleadings, the judge determines the dispute based on submitted documents. If the case can be resolved without a hearing, the judge may decide based on the file alone (Article 320/1). This provision, however, has sparked debate about its compatibility with the right to a fair trial and the right to be heard.
In the written procedure, the preliminary and investigation phases are distinct (Article 137/1). However, in the simplified procedure, these phases are combined to expedite the process. The judge may hold a single hearing to address preliminary issues and proceed directly to investigation if necessary.
Article 320/3 sets a general rule that the investigation phase should be completed within three hearings, each no more than a month apart, unless the nature of the case requires otherwise. This is intended to ensure quick resolutions.
E. Case Dismissal for Lack of Prosecution
Article 320/4 states that if a case is dismissed for lack of prosecution and later renewed, it can only be dismissed once more before being considered abandoned. In the written procedure, cases can be renewed twice (Article 150/7). This stricter rule in the simplified procedure is to discourage unnecessary prolongation of cases.
III. Practical Issues with the Simplified Procedure
A. Issues with Service of the Response Pleading
Some courts, aiming to expedite proceedings, do not serve the response pleading to the plaintiff, assuming it unnecessary as per Article 317/3. This can compromise the plaintiff's right to a fair trial, as they might need to prepare arguments or reconsider their case based on the response. Thus, not serving the response pleading undermines the principle of fair hearing.
B. Issues with Judges Deciding Based on the File Alone
Article 320/1 allows judges to decide cases based on the file alone, without a hearing, if possible. This can also conflict with the right to a fair trial. Scholars and the Supreme Court of Appeals agree that such decisions should be limited to clear-cut cases where the facts are undisputed, like provisional legal protections. In other cases, a hearing is necessary to ensure fairness.
The transition from the 1086 Code to the 6100 Code of Civil Procedure streamlined Turkish civil litigation into two primary methods: the written and the simplified procedures. Article 447's provision extends the scope of the simplified procedure, making it a vital aspect of civil litigation. Despite being designed to expedite cases, practical challenges arise due to heavy caseloads and infrastructure issues. Addressing these challenges is crucial to realizing the full potential of the simplified procedure in achieving swift and fair resolutions.
CCS Law remains dedicated to guiding our clients through these changes, ensuring that they not only understand the legal landscape but are also well-prepared to meet their compliance obligations effectively. For more detailed guidance or specific inquiries regarding the Simplified Procedure in Turkish Civil Cases, please contact our expert legal team.