Law 7251 on the Amendment of the Civil Procedure Code and Certain Laws entered into force upon publication in the Official Gazette (31199) on 28 July 2020. Article 17 of the Law 7251 amended Article 149 of the Civil Procedure Code (“CPC”) 6100 to allow courts to conduct remote hearings through video and audio transmission either upon the parties' request or ex officio under certain circumstances. The amendment further provided that the principles and procedures of remote hearings through video and audio transmission would be stipulated under a Regulation. In line with this provision, Regulation on Hearings Through Video and Audio Transmission in Civil Proceedings (“Regulation”) entered into force upon publication in the Official Gazette (31527) on 30 June 2021.
Regulation on Hearings Through Video and Audio Transmission in Civil Proceedings
The purpose of the Regulation is defined as regulating i) the principles and procedures of the attendance of parties and their attorneys to remote hearings through video and audio transmission in civil proceedings, and ii) rules on hearing witnesses, experts, specialists and other participants. In addition to the principles governing civil proceedings under Turkish law, the following principles shall be regarded when applying the Regulation:
- Ensuring information security,
- Protection of personal data,
- Ensuring service quality,
- Ensuring national and international standards.
In this regard, video and audio shall be transferred safely during remote hearings, and the video shall have sufficient quality to allow observing the relevant person’s facial expressions, body movements, behavior and attitude clearly; whereas the audio shall have sufficient quality to allow hearing the relevant person’s emotions and expressions clearly. Any information, documents and evidence shall be transferable through the National Judiciary Informatics System (UYAP) immediately.
According to the Regulation, courts can render a decision to allow parties or their attorneys to attend the hearing remotely upon request. Likewise, courts can decide to hear witnesses, experts or specialists remotely upon request.
The request should be filed by one of the parties or their attorneys on UYAP mobile applications and portals by specifying their reasoning at least 2 (two) working days prior to the date of hearing. Courts must render a final decision to accept or reject the request at least 1 (one) working day prior to the date of hearing. Courts can reject remote hearing requests by providing reasoning on following grounds:
- Failure to file the request in due course,
- Abuse of the right to file remote hearing request with an intention to prolong the trial,
- Existence of legal, practical or technical obstacles complicating holding a remote hearing.
The Regulation further provides that courts shall prioritize the remote hearing of parties, witnesses, experts, specialists, and other participants who would possibly have a difficult time in attending the trial in person due to illness, elderliness or disability upon request.
Courts can also ex-officio decide to hear witnesses, experts or specialists remotely. Furthermore, courts can ex-officio decide to hear the participants in actions and proceedings in which parties cannot dispose their rights freely by way of remote hearing.
The Regulation also sets out the features of the locations from which attendance to remote hearings is allowed. In this regard, attorneys requesting remote hearing can attend remote hearings from either i) law offices, ii) the area reserved by the Bar Association for this purpose, iii) the area assigned for this purpose inside the courthouses, iv) another place away from any and all kind of impact and influence, which would ensure i) observing the relevant person’s facial expressions, body movements, behavior and attitude, ii) understanding his/her emotions, and iii) hearing his/her statements clearly.
Before a remote hearing commences, an identification shall be carried out for the attending parties, and the Regulation sets out the methods of this identification for different scenarios. For instance, the attorneys attending a remote hearing shall be identified by way of secure electronic signature or mobile signature.
The Regulation provides that, in case the video and audio transfer cannot be transferred simultaneously or there is a connection problem which makes it difficult to understand the statements, the remote hearing shall be initiated again. If the problem continues, the remote hearing shall be cancelled.
Also, according to the Regulation, it is prohibited to take photos or record video/audio during remote hearings. Those who breach this ban shall be subject to criminal sanction. However, courts may decide to record the session in compulsory cases.
Having said that, it must be kept in mind that, in the event of making any statements during remote hearing concerning waiver, acceptance and settlement, courts shall adjourn the hearing to a new date and such statements would only become valid upon being i) repeated before the court physically, i) written down in the hearing minutes, and iii) signed by the stating party.
In addition to the above, in other cases where a party, its attorney or another attendee is required to give signature, the court shall submit the hearing minutes signed with secure electronic signature electronically to the courthouse where the remote hearing took place. The court clerks assigned at the area allocated to remote hearing shall obtain the attendee’s signature on the relevant part of the hearing minutes and send back a copy to the court electronically. The document bearing the original (wet) signature shall be submitted to the file through postal services.
The Regulation is expected to allow more space for remote hearings. Indeed, according to the most recent statistics announced by the Ministry of Justice on 29 September 2021, the number of courts at which remote hearings are applicable has already increased to 915, and a total of 20,705 hearings occurred remotely. Further, the digital transformation project conducted by the Ministry of Justice envisages to establish the remote hearing system in more than 1,800 courtrooms at 2,000 courts within 2021. The Ministry aims to establish the remote hearing system in all courts by the end of 2022.
According to our recent experience, the practice has not been fully settled yet. Therefore, attorneys do not feel entirely secure and confident when filing remote hearing requests. Due to this reason, they request the court to deem them excused from the hearing, if the court is to reject their remote hearing requests. Also, courts are observed to have a tendency to proceed with deeming the attorneys excused upon seeing the remote hearing request on the date of hearing, whereas they are supposed to review the request and grant a final decision 1 day in prior to the hearing. However, as the Regulation sets out the principles and procedures of holding remote hearings, it may now provide a guidance for courts, and remote hearings will likely gain a more wide-scale area of use.
This practice is also expected to facilitate the trial process in the long term. Also, it may serve the right to a fair trial by encouraging the attendance of all actors including the experts and witnesses to the trial more actively through facilitated means and promoting the right to access the courts.
 The National Judiciary Informatics System (UYAP) has been developed as an informatics system that ensures the integration of public institutions and external parties to the judicial system, by means of providing an internal automation including all civil and public judiciary units, related and associated institutions, and the provincial and central organizations of the Ministry of Justice. In this context, the correspondences between the judicial bodies, such as requests for consolidation of the cases or submission of the case to another court due to lack of jurisdiction, are conducted electronically via UYAP. In addition, the services made to other parties can be followed on UYAP. The system also allows the attorneys to submit lawsuit petitions, upload documents, follow their present cases, and make any kind of money transfer regarding the trial electronically.
First published by ILO - Litigation Newsletter in 16.11.2021.