Remote justice and the future of litigation in Turkey
Wednesday 4 August 2021
Necdet Can Artüz
Bozoğlu İzgi, Istanbul
can.artuz@bi.legal
Berzah Miray Güneşli
Bozoğlu İzgi, Istanbul
miray.gunesli@bi.legal
Even before the World Health Organization declared the Covid-19 virus a pandemic, there had been an increasing need for more efficient use of information systems and digitalisation in the Turkish judicial system.
Some steps had already been taken in this regard: many regulations and action plans on this issue are included in the Judicial Reform Strategy Plan dated 2019, which was published by the Ministry of Justice.[1] The plan included hearings being held electronically, carrying out and reviewing the punishments of those convicted of certain crimes via electronic means, and enabling prisoners to communicate with the outside world through information systems.
On the other hand, following the declaration of Covid-19 virus as a pandemic, digitalisation efforts increased significantly in the judiciary system, and extensive new steps were taken. In this article we discuss these changes in civil and criminal law procedures, the amendments of related laws and practices, problems that arise in this regard and evaluate whether these changes will last in the post-pandemic era.
A new era: remote justice in civil law procedures
Undoubtedly, one of the most remarkable developments in Turkey is the amendment to the Code of Civil Procedure (CCP), which entered into force on 28 July 2020. Article 149 of the CCP, ‘Conducting hearings by means of audio and video transmission’, allowed the parties, their attorneys, witnesses, or experts to attend hearings remotely by simultaneously transmitting audio and video even before further changes were implemented due to the pandemic. However, this was subject to the consent of both parties. This has subsequently been amended so that the attendance of parties or their attorneys, witnesses, or experts to hearings through audio and video transmissions are now permitted at the request of one party and the acceptance of the court. Thus, the goal of ‘expanding the application of SEGBIS (audio and video communication systems) in the civil court hearings’, which was included in the Judicial Reform Strategy Plan has been achieved as of July 2020.
In order to achieve one of the biggest goals set within the scope of judicial reform, the technical infrastructures of the National Judiciary Informatics System(UYAP) ‘Lawyer Portal’ application and ‘CELSE (Eng. HEARING)’ application, which can be accessed by mobile phone, were improved. Sending an ‘e-Hearing Request’ 24 hours before the relevant hearing at the latest became possible and holding hearings remotely via computers or phones became widespread, provided that the court accepted the request to hold the hearing remotely.
According to the e-Hearing Map data[2] published by the Ministry of Justice, the e-Hearing system is implemented in 535 courts in 33 different cities in Turkey. Although the courts where this system is implemented are generally enforcement courts, consumer courts, civil courts of first instance and labour courts, the use of this system is also becoming widespread in other courts of justice.
UYAP is the fundamental online system used in Turkish law practice, which was established well before the pandemic and enables lawyers to carry out all transactions such as reviewing the case files, submitting petitions, and depositing court fees. As a result of the combination of UYAP with the e-Hearing application, digital systems have become a more effective tool that enable lawyers to carry out their profession without going to court in person, most of the time. While going to courthouses was restricted due to Covid-19 measures, the use of UYAP contributed to the continuation of legal procedures despite the pandemic. In addition, the use of the ‘electronic notification application’, which was also in place before the pandemic, has become much more widespread after the pandemic. The electronic notification application is used via the National Electronic Notification System (UETS) and operated by the Post and Telegraph Organization Inc. (PTT A.Ş.). The notification procedure, which sometimes takes weeks in a physical environment, is carried out in seconds with this e-notification system.[3] All private entities who have legal personality, attorneys, notaries, and others stated in the Notification Law can be notified electronically. E-notification is deemed to have been made at the end of the fifth day following the date when it reaches the addressee’s e-notification address.
We should also mention the changes that took place in procedures for mediation meetings due to the pandemic. As a rule, it is mandatory in Turkey to apply for a mediation prior to filing a lawsuit before labour, commercial or consumer courts. Before the pandemic, it was quite common that mediation meetings were held face-to-face and by physical gathering of the parties or their attorneys with the presence of the mediator.
However, due to the pandemic, the method of conducting mediation meetings through teleconferencing has become widespread. Although the Mediation Department has recently made announcements to mediators that the meetings should be held face to face and that the teleconferencing method should be abandoned as much as possible, parties continue to actively request mediations by teleconference due to the current number of cases and the course of the pandemic,
Remote justice in criminal law procedures
Compared with civil law procedures, digital systems have been used in criminal law procedures for a much longer time. As a matter of fact, regulations regarding the use of audio and video communication systems (SEGBIS) are included in various articles of the Code of Criminal Procedure. For example, a defendant who is in Turkey can be interrogated or can attend to hearings by using audio and video transmission systems when deemed necessary by the court. Again, in accordance with another article of the Code of Criminal Procedure, if there is an opportunity for the witness or the expert to attend the hearing concurrently by using audio and video communication systems, their statements are taken by using this method.
The Code of Criminal Procedure has left regulation of the details of SEGBIS system to secondary legislation. The Regulation on the Use of Audio and Video Systems in Criminal Procedures, which entered into force in 2011, and Circular No.150 of the Ministry of Justice include detailed regulations on the subject.
After the pandemic, there have been some changes affecting criminal law procedures and the execution of sentences as well. For instance, it was stated in the decision on ‘Extension of the Measures Taken under COVID-19’, published by the Council of Judges and Prosecutors, that:
‘During the investigation and prosecution processes regarding the cases of which the defendants are jailed pending trial, if the parties are needed to be present at the court due to the mandatory regulations stipulated in the Code of Criminal Procedure and due to the nature of the case, they will be present at the court by the use of the digitalization systems after the necessary measures are taken in line with the recommendations of the Scientific Committee.’
Also, before April 2020, it was not possible for lawyers to examine the criminal investigation files of prosecution offices through UYAP. However, as of 5 April 2020, lawyers with power of attorney can submit a ‘request to examine the investigation file’ via UYAP and, if accepted, it is possible to access all investigation documents remotely.
The post-pandemic digitalisation regulations are included in the Regulation on the Management of the Penal Execution Institutions and the Execution of Sentences and Security Measures, which was published on 29 March 2020. Pursuant to Article 74 of the aforementioned regulation, video phone calls were allowed, and it was stated that weekly 30-minute interview periods (in institutions determined by the Ministry of Justice where the technical infrastructure that enables video phone calls is established) would start to be applied.
It has been stated in the Project of Integration of Smart Technologies to Penitentiary Institutions, also called ‘e-Visiting’ by the Ministry of Justice, that the aim is to carry out various services with the help of multimedia devices. These will be installed in cells in sound-insulated cabins so that these services can be carried out quickly and without the need for personnel, and to implement practices such as video calls and e-doctor applications[4]. These practices have been started in pilot penal institutions as of 1 October 2020 and it is aimed to make them widespread.
Problems, benefits and the future of litigation
It is clear that the digitalisation of the judiciary system, which was determined as a target before the pandemic, has become essential. It cannot be denied that those new applications have significant benefits, especially in speeding up hearings and preventing delays due to procedural rules.
On the other hand, the potential negative effects of these applications, especially in criminal law procedures, should not be ignored. The right to a fair trial, which is one of the most fundamental principles of criminal law and protected by Article 6 of the European Convention on Human Rights, also requires the right to defence and the principle of equality of arms.
Likewise, the principles of directness and being face-to-face in criminal law procedures are also elements of the right to a fair trial. Remote participations which may be constantly interrupted due to technical problems and insufficient connection quality may prevent the parties, their attorneys, or other persons of importance to the trial to participate effectively in the hearings. Therefore, taking into account the case law of the European Court of Human Rights, a more limited implementation of remote justice systems will be beneficial, especially in criminal law procedures.[5]
Remote justice practices which became widespread during the pandemic will continue to exist in the post-pandemic era. Considering the changes in the Code of Civil Procedure, the amendments are permanent. These practices are expected to extend to other courts, especially in courts where private law disputes are being resolved such as commercial courts and intellectual and industrial rights courts.
On the other hand, taking into account the problems arising due to the implementation of the new systems, developing new information systems and improving infrastructure for video and audio communication techniques would be a useful step in ensuring that parties may attend the hearings effectively.