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NEW NORMAL IN TURKISH JUDICIAL SYSTEM

Jun 4, 2020 Latest News by kornar

Coronavirus (COVID-19) is a respiratory tract infectious disease which is transmitted to a large number of people in the world, spreading rapidly and showing negative effects in our country. Due to the high risk of the disease, it was recorded as a “pandemic” by the World Health Organization. Upon the mentioned virus being seen in in our country, many administrative measures have been taken both to eliminate the risk of pandemic and to protect individuals from the pandemic by various institutions and organizations within the framework of their area of responsibility and jurisdiction, especially The Presidency of Republic of Turkey. In this context, in the Official Gazette dated 26.03.2020, it has been decided “To postpone the hearings, negotiations and viewings until 30.04.2020”. In the following period, the pausing time of hearings, negotiations and viewings has been extended until 15.06.2020 (including this date) upon the increase of the risk of the cases.

In addition, some measures have been taken in terms of COVID-19 in the new working principles guide published by the Ministry of Justice on 31.05.2020. Within the scope of this guide; measures of wearing mask in the courthouses, not letting people who do not have anything to do enter the courthouse, measuring fever, regular cleaning, decreasing the number of the hearings, making the payments through EFT or money order, not using the central ventilation system, common use of UYAP system have been taken. However, the very first measure that should be taken in order to decrease the crowd in the courthouses is “e-hearing” system.

Although this current situation is important for the health of individuals, postponing the hearings causes for the court’s workload which has already accumulated to increase. Yet, with the postponement, pending files’ period to reach a judgment is also delayed and this situation causes the justice to be reached late. The “e-hearing” system needs to be implemented by the Ministry of Justice in order to both eliminate the problems in the existing judicial system and to prevent the parties from being victimized. With this system, the attorneys will be able to attend hearings without coming to courthouse and the crowd in the courthouses will be visibly reduced. Examples where e-hearing system are applied in the world are given below.

Examples of E-Hearing:

1.China              : The first court which specialize in disputes over the internet has been established in China. With the statement made by the Chinese People’s High Court, it was announced that two new internet courts have been established in Beijing, the capital and Guangzhou. What is aimed with video-conference method all over the country is to finalize the pending files much faster in the courts.[1]

2. ISTAC             : “Online Hearing Procedures and Principles” have been published by the Istanbul Arbitration Centre for the convenience of both parties and arbitrators during the coronavirus process. In accordance with the procedures and principles consisting of ten articles; upon the request of one of the parties or if it is deemed appropriate by the arbitrator, the hearings or meetings can be held by video conference or teleconference method.2

3. USA, Texas    : In the USA, hearings that cannot be held due to Covid-19 are held on Zoom and YouTube applications. To ease the court activities, the Court Administration Office and judges are given the opportunity to organize and provide court proceedings through Zoom and YouTube. In addition, the rules (clothing order, camera angle, etc.) that must be followed for a successful hearing are clearly written.3

4. Rwanda, East Africa : In Rwanda, the African country, court activities started to be carried out on the internet due to the curfew decision made for new type of Covid-19 virus as one of the measures. In the statement of Rwandan Judicial Public Speaker Harisson Mutabazi, it is stated that “Some measures have been taken to prevent the spread of Covid-19 and judges continue their duties online.” He has also noted that video conference method is used in the courts and this is being carried out in some courts in Kigali, the capital and different parts of the country.4

5. England, United Kingdom   : In the UK, adaption to the new order in the process of Covid-19 has been achieved and various work have been carried out to perform the hearings electronically. The hearings, including the Criminal Court hearings, have been moved to the digital platform.5

The methods used for electronic hearings are; teleconference and video conference and the applications used are BTMeetMe, Skype for Business and Cloud Video Platform (CVP). It should also be noted that these applications are used free of charge. Again, in England, in the lawsuit filed against the retroactive application of the amendments in Ankara Convention, the appeal hearing has been held via video link due to the new type of Covid-19 outbreak and the parties have attended the hearing via live connection method from their homes.

6. Australia        : The e-hearing system is currently being implemented in Australia. The advantages of this system are stated as all participants and members of the judiciary having 24-hour real-time access to relevant documents before and during the hearing, the documents in the e-hearing environment being completely searchable, having the opportunity to search the keywords easily and quickly, ensuring real time participation for distant participants (witnesses, etc.). The process is like normal hearings and the only difference is that documents are being submitted and viewed electronically on the electronic court system and providing remote participation in real time.6

7. France            : Due to the Covid-19 virus, following suggestions are made:

  • Performing court activities as closed to the public,
  • Using larger areas and court rooms for cases that need to be held urgently,
  • Limiting the release of detainees through video hearings,7

8. Morocco         : It is made possible to perform hearings through video conference for the detainees held in prisons and questioned remotely. The main purpose of using this system is to ensure continuity in the judiciary.8

9. The Netherlands       : With the Act of “COVID-19 Justice and Security Provisional Provisions” which entered into force on 24 April 2020, legal entities have been provided with the opportunity of meeting and financial reporting electronically. Briefly, the companies may have their general assembly meetings virtually and there is no need for publication for registration of decisions.9

Within this scope, we believe that the necessary IT infrastructure should be set up in order to have virtual hearings and to prevent the victimization of the parties, in case of possible pandemics. Because, delayed justice is not justice.


[1]  https://tr.euronews.com/2018/07/28/cin-de-internet-mahkemelerinde-uzaktan-baglantiyla-durusma-donemi

2 https://istac.org.tr/uyusmazlik-cozumu/tahkim/istac-cevrimici-durusma-usul-ve-esaslari/

3 https://www.news-journal.com/news/local/video-conferencing-helps-gregg-county-courts-keep-cases-moving/article ec372c60-6f7b 11ea-8148-8b5e20a0c448.html

4 https://www.haberler.com/ruanda-da-mahkemeler-kovid-19-nedeniyle-online-13155598-haberi/

5 https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak

6 https://www.lawinorder.com.au/blog/september-2018/how-etrials-are-changing-australia-s-judicial-syst

7 https://www.rue89strasbourg.com/tribunal-vide-policiers-masques-audience-en-visio-a-strasbourg-la-justice-en-periode-de confinement-174841

8 https://www.medias24.com/proces-par-visioconference-accueil-reticent-chez-les-avocats-9940.html

9 https://wetten.overheid.nl/BWBR0043413/2020-04-24


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