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Court Cases & Disputes

This guide was written by Başak Yıldız Orkun, Managing Partner at Orkun & Orkun (info@orkunorkun.com) in collaboration with Guides.Global (office@guides.global).

It was written on 17 July 2017. The law and practice in Turkey change all the time. Our guides are updated as frequently as possible - typically every three years - but may be out of date.

Our guides are prepared by professionals from many countries. They are, of necessity, both brief and general and can take no account of your personal circumstances. They are intended to be a good introduction to the subject BUT ARE NO SUBSTITUTE FOR PROPER PROFESSIONAL ADVICE, which our contributors will usually be happy to provide upon request.

The advice and opinions contained in the guides are those of the author and are not necessarily those of Guides.Global.

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The scope of this guide

You may also want to watch the video version of this guide or download the audio (MP3) guide.

Introduction

Disputes occur in any country.

Often, they are the result of genuine misunderstandings. Very often they are the result of poorly prepared contracts. Occasionally they are the result of bad faith. Very infrequently they are the result of fraud or other criminal activity.

The good news is that Turkey has a good legal system that can help you resolve disputes reasonably quickly and at a price that is not too exorbitant.

Despite this, it is worth bearing in mind that it is far better to avoid disputes arising in the first place than it is to solve them once the problem has been revealed. Any lawyer will tell you that avoiding disputes is better than dealing with disputes and that a bad settlement is better than a good court case.

Dealing with disputes is always time consuming and expensive. The expense is not just monetary. It includes the distraction and effort required to deal with the dispute - effort that could be much better employed getting on with your life or your business.

Preventing a dispute

There are four golden rules when it comes to avoiding disputes.

Deal with trustworthy people.

Disputes tend to fall into three categories. Disputes in relation to business (for example, when you buy a car); disputes between neighbours; and disputes with your family.

You can't choose your neighbours or your family but you can choose the people with whom you do business.

Before you enter into any business relationship it's worth finding out a little bit about the person or company you are going to be dealing with. The internet can help greatly. It's surprising how often a Google search for the name of the person or company and ‘problems’ will produce some very interesting information.

If the other person or company is engaged in an activity that requires a license or regulation, make sure that they are duly licensed and regulated. If you can’t readily find that information on the internet, it is worth consulting a lawyer to ask that very specific question. Often - if the lawyer thinks you are a client who will bring further business - there will be no charge for that advice. On other occasions, it might cost you €100 or so.

Very often, when you are discussing a project with the other person, you will feel uneasy. There may be something about either the project or the person that you do not like or which just doesn't seem right. Trust your instincts. You will often be right.

Do not be afraid to ask for references. A few words with a previous customer who received good service or a current ‘partner’ or supplier is very reassuring. Giving references is common practise in Turkey.

Clear contracts

When you are entering into any business relationship it is worth having a clear contract - almost always in writing - and then making sure that you understand and follow the contract.

The main purpose of the contract is to allow both parties to understand what they have agreed and then to remember it many months or years later.

When you read the contract make sure that it covers all aspects of your relationship and the situations which are likely to arise during the contract. Make a list of what you need to achieve and how you are going to do it and then make sure the contract covers those points. Make a list of the things that might go wrong and make sure that the contract covers them.

If your agreement relates to something particularly valuable or important it is worth taking legal advice. It will cost you a great deal less than sorting out any dispute that might later arise.

Keep in contact

During the whole period in which you are dealing with the other person, make sure that you stay in contact. A few telephone calls to check that everything is still in order, that a delivery date is still going to be met etc. gives the opportunity to deal with any lurking problems quickly and easily before people's positions have become entrenched.

During these phone calls or, better still, during face-to-face visits, be friendly, be inquisitive and be prepared to reach common sense solutions to any problems that emerge.

It is much more difficult to get involved in a serious conflict with someone if you know them and like them.

Nip disputes in the bud

If a dispute arises take immediate action to solve it.

Usually, disputes arise because of the unexpected. Perhaps a cost has arisen in a project that had not been anticipated or the person supplying a service to you has been let down by somebody supplying him. Sometimes there's a genuine disagreement as to the meaning of the words in your contract.

In either case, you will do yourself a favour by taking action as soon as a disagreement appears and before it turns into a full-blown dispute.

Once again, the secret is to discuss the problem with the other party and then to try to find a practical, cheap and common sense solution to it. This will require flexibility and compromise from both parties but any cost is likely to be way less than the cost of dealing with a fully-fledged dispute.

Whatever you do, if you reach an agreement to solve a problem, document it thoroughly. Otherwise you'll find yourself in the same position in six months' time.

Initial stages

If all this fails and it seems likely that a real dispute is going to arise, the first thing to do is to discuss the problem with the other party to see whether you can - even at this late stage - find a solution acceptable to both of you. If possible, this meeting should be face-to-face. Failing that, a Skype video call works well. If that isn't possible, at least the initial meeting might have to be by telephone.

If you really are unable to reach a compromise at that meeting you should write to the other party setting out the problem and asking how they think it should be dealt with. You could also make your own suggestions as to how you think the dispute can be solved. This should be a non-confrontational letter (these days, usually an email): an attempt to find a solution to a problem between two “partners” in a project.

 If you're writing such a letter you need to think carefully about the balance between protecting your legal position and being open enough to reach an agreement if possible.

Lawyers will tell you that you should make it clear that your discussions are non-binding and not to be used in court. There are a number of ways of doing this. Because of its historic connections with England, the phraseology “without prejudice” (meaning that what you say cannot restrict your later options in legal proceedings) and “subject to contract” (meaning that anything you propose is subject to final agreement) are recognised and widely used. However, these rather legalistic terms can get in the way of doing a deal. You may find that being more open and running the risk that later, in court, the other person says “but he agreed that...” is a better way forward.

You should, depending upon the urgency and complexity of the situation, allow the other person between seven and 14 days to respond to your letter. The latter is better.

If you do not make any progress as a result of this exchange of letters, then you really have little option but to ‘go legal’.

Settling a dispute outside of court

See our Guide to Alternate Dispute Resolutions.

Settling a dispute through the courts

Turkey has quite a complicated court system. It has Courts of First Instance, District Courts, and Supreme Courts with a subdivision between courts for civilians and courts for the military. We do not consider the military courts in this book.

Some cases may immediately proceed to the main civil courts and some might be directed to the court of settlements.

Court of Settlements

The work allocated to this court is decided by its category, not by its financial value. So, for example, disputes relating to rental agreements or disputes within a condominium will go to the Court of Settlements. So will disputes relating to the distribution of assets between partners, probate (the administration of a deceased person’s assets), and claims for the possession of buildings or other assets.

In general terms, the procedure for dealing with a court case in the Court of Settlements is as follows:

Petition

This is the statement of your case, covering all of the legal and factual points necessary. It will usually be drafted by your lawyer after consultation with you.

The reply

This is the response from the person against whom you’re claiming, usually drafted by their lawyer. It is supposed to contain all of the legal and factual matters relevant to their case.

The hearing

In the Courts of First Instance, your case will be dealt with by one judge. With luck, it will be the same judge throughout the case (which might go on for a couple of years) but it is not unusual for judges to leave and be replaced by other judges.

In Turkey, when people refer to the ‘hearing’ of a case, they mean something different from what is meant in the Anglo-American legal systems. They are not referring only to an appointment in open court where the parties argue the case, but to any appointment made by the judge to progress the case. As a result, hearings will often include meetings with the judge where the individual parties are not present, but their lawyers are. There can be many hearings in the course of a court case.

At an early hearing, the judge will usually decide whether any expert reports should be commissioned by the report and then make arrangements for this to be done.

Also at an early hearing, the judge is likely to make directions as to the documents and other evidence the parties should produce.

The judge might decide to visit any place relevant to the dispute, such as the site of an accident or a property subject to a claim. The judge tries to maintain the momentum of the case by arranging a series of hearings, typically at intervals of two or three months.

At these interim hearings, the Court will perform a number of tasks, such as:

Eventually, there will be what could be called the ‘main hearing’ of the case, or the trial, at which the parties or their lawyers present their case to the judge and make any relevant legal arguments.

The decision

This is the decision of the judge. It may be issued weeks or months after the trial of the case. It is issued in writing and sets out the reasons why the judge reached the decision he did.

Enforcement

These are the steps that may need to be taken to enforce compliance with the order that has been made.

Appeal

There is a right of appeal against the decision of this court. This must be exercised in the time specified, which is usually from seven to 15 days after the date of the decision. The appeal will be lodged by your lawyer.

The Civil Courts of First Instance

Despite this, most cases will end up in the Civil Courts of First Instance, which are to be found throughout Turkey.

The Civil Courts have rules which allocate various types of cases to various courts.

They are, in turn, subdivided according to the particular roles that they are fulfilling.

All cases start in a Court of First Instance, but may be allocated to a specific subdivision of that court, dealing with, for example:

The exact procedure varies somewhat depending upon the court to which the case is allocated.

It is similar to that employed in the Courts of Settlement. The main difference is that there are likely to be more stages. For example, after the reply to the petition, there may be a supplemental petition dealing with any point raised and then a final reply dealing, in turn, with the supplemental petition.

There is a right of appeal from the Civils Courts of First Instance. The appeal, generally, lies to the Appeal Court and then (if the parties are still not satisfied), from the Appeal Court, to the Supreme Court.

The procedure on the appeal is similar to the procedure used for dealing with the case at first instance.

Witnesses can be recalled to give further evidence.

All the judges in these courts are professional (legally qualified and paid) judges.

There is no ‘no win, no fee’ litigation in Turkey.

It is not obligatory to use a lawyer to deal with a court cases in Turkey but – especially for a foreigner – it is virtually impossible to do so without a lawyer.

How long does it take?

The length of time it takes to deal with a court case will, obviously, depend upon the complexity of the case but between one and two years would be normal in anything other than the simplest of cases. In addition, there will be a further period – typically at least a year – if there is an appeal.

How much does it cost?

Generally, when you start a court case you will have to pay a court fee. This is, typically, about 1.5% of the amount at stake.

The fees charged by your lawyers will depend upon the complexity of the case. You should always ask for an estimate of likely fees and expenses at the outset of a case but you must bear in mind that it is often impossible to give you any realistic estimate because the lawyer simply does not know how the case is going to develop. The best you can hope for is a range of costs reflecting a simple case and a more complicated one.

If you win the case, the Court will usually order the loser to make a contribution towards your court costs, but these Court-awarded fees are very low and they are treated by the lawyer as being a sum in addition to the fee that has been agreed with you. So, even if you win a case, you can expect to have to pay significant legal costs. This should influence your decision as to whether it is worth bringing a case.

Conclusion

Disputes are almost always best solved without going to court, if at all possible. Your focus should always be on prevention and nipping disputes in the bud - legal battles are always stressful, costly and time-consuming for all involved.

If you do end up taking a dispute to court, be sure that you have hired a lawyer you can trust, and who can speak to you well in your own language.

Other guides of interest

 Description Link 
Turkey Country Guide
Essential facts and figures about Turkey
Click to see this guide

Readers' Comments

 

Further information?

I hope you have found this guide useful. If you need any further help, please contact me.

Başak Yıldız Orkun

17 July 2017


 

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