In order to facilitate court activities during the coronavirus, a significant number of jurisdictions have made holding hearings electronically possible. Turkey has also amended its legislations in order to enable electronic hearings.
Newsletter / No:9 / Date: 19.08.2021
New Regulation on Electronic hearings:
The Law Amending the Civil Procedure Law and Certain Laws (“Law”) numbered 7251 was published in the Official Gazette numbered 31199 on 28 July 2020 which brought major amendments to Article 149 of Civil Procedural Law numbered 6100. The Law provided a basis to conduct e-Hearings at the request of one of the parties. However since the implementing regulations have not been put in place, the courts were not able to hold electronic hearings during the 2020-2021 judicial year. Such implementing regulation has recently been adopted, which aim to enable holding electronic hearings during the upcoming judicial year. This Newsletter will give an outline of the aforesaid new regulation on electronic hearings.
The Regulation on the Execution of the Trials by Transferring Audio and Video in Civil Proceedings (“Regulation”) entered into force upon its publication in the Official Gazette numbered 31527 on 30 June 2021.
According to the Regulation, the party or its attorney may attend the e-Hearing and perform procedural actions from the place specified in the Regulation by means of simultaneous transmission of audio and video. The Regulation also enables witnesses, experts and other interested parties being heard via e-Hearing System. The Regulation describes the e-Hearing System as the system established and secured by the Ministry of Justice, integrated with the National Judiciary Informatics System (“UYAP”), in order to carry out the hearing procedures by simultaneously transmitting audio and video.
The main principles and procedures of the Regulation are listed below in general terms:
1. Standards of the e-Hearing System
As per the Regulation, audio and video are being simultaneously transmitted safely during the e-Hearing. The Regulation stipulates that the image shall be of such a quality which allows to observe the facial expressions, body movements, attitudes and behaviours of the relevant person and the sound shall be of such a quality which allows to understand the feelings of the relevant person and to listen him in an understandable and clear way
During the e-hearing any information, document and evidence can be transmitted instantly via UYAP.
2. The Request for e-Hearing
One of the parties or their attorney may request from the court to attend the hearing via the e-Hearing System, to make procedural actions or to hear the witnesses or experts through the e-Hearing System by showing reasons for the request. The e-Hearing is requested from the court two business days before the hearing day via UYAP, lawyer or citizen portal. Regarding the e-Hearing request, the judge decides whether to accept or reject it at least one business day before the hearing. This decision is final.
In case of any of the following reasons, the e-Hearing request may be rejected by showing its reason:
- Failure to make the request on time,
- The request is intended to abuse the right or prolong the proceedings,
- Existence of legal, actual or technical obstacles which makes it difficult to hold an e-Hearing
As it is possible to conduct e-Hearing upon request of one of the parties, the court may also decide to conduct an e-Hearing ex officio.
3. The Execution of e-Hearing
3.1. The Execution of e-Hearing
The attorney of the party requesting the e-Hearing may attend the hearing from the following places: attorney’s office, the department designated by the bar association for this purpose, the place allocated for this purpose in the courthouse, another suitable place that meets the conditions stipulated in the related Article. That suitable place where the relevant person attends the hearing should be away from any influence and direction and it should meet the criteria explained in the section of Standards of the e-Hearing System above
3.2. Identification of e-Hearing Attendees
The identification of the attorney of the party attending the hearing is made by the court through secure e-signature or mobile signature or by using UYAP records or similar methods.
The identification of the parties, witnesses, experts or other relevant persons who are allowed to attend the hearing is made by the clerk to be assigned at the place allocated for the e-Hearing at the courthouse where they are located and a record is drawn up in this regard.
The identification of the party who attends the e-Hearing with his/her attorney at the place specified for this purpose is made by the court by examining the UYAP records or using similar methods.
3.3. The Execution of e-Hearing
The e-Hearing bears the same legal consequences as the hearing physically conducted before the court.
Verbal statements of the party, attorney or other relevant persons who made a statement through the e-Hearing System are recorded in the minutes by the clerk.
In case of a declaration related to any waiver, acceptance or settlement which is made by the party or its attorney who attended the e-Hearing via e-Hearing System, the court determines a new hearing day and on the appointed day the process as to waiver, acceptance or settlement is repeated before the court and the trial record shall be valid if signed by the person who made the declaration.
In the event that the audio and video transmission cannot be provided simultaneously during the e-Hearing or the interruption occurred makes it difficult to understand the statements, the e-Hearing is reopened. If the interruption continues, the e-Hearing is ended by stating its reason and this issue is also recorded in the minutes.
3.4. The Order of e-Hearing
The order of the e-Hearing is subject to the same principles and procedures as the hearing order which is physically held before the court.
During the e-Hearing, it is not allowed to take photographs or make video or audio recordings. In case, where the trial process makes it necessary, the recordings can be made by the court. The provisions of the Turkish Criminal Code shall apply to the persons who violate this ban.
4. The Obligations of the e-Hearing Attendees
Pursuant to the provisions of the Regulation, the obligations of the e-Hearing attendees are as below:
- To meet the technical criteria determined by the Ministry of Justice
- To ensure that the place where the attendee is located is safe and convenient to be heard through the e- Hearing System
- To be present in the e-Hearing System at the place where the attendee will attend the e-Hearing as per the Regulation at the day and time determined by the court.
According to the data shared by the Ministry of Justice, the number of the courts applying this system has been increasing throughout Turkey day by day. Considering the physical difficulties arising from the ongoing Covid-19 pandemic when holding hearings before court and also the importance of adapting to technological innovations, it can be said that e-Hearing practice would facilitate the judicial processes in Turkey over the long term.
This Newsletter aims to provide a brief and general overview of electronic hearings, but does not intended to serve as a legal advice. Before taking any action or relying on the information given, addressees of this Newsletter should seek specific advice on the matters which concern them.