Opinion: Turkey’s open question

Turkey’s civil code must insist on full disclosure and stop trying to emulate the German system

Mehmet Gun

The principle in Turkey’s civil procedure is that parties have the onus to prove their claim.

While the collection of evidence from the parties is under the judge’s control, lack of full disclosure has resulted in a wide range of abuses of access to justice as well as an immense workload for courts and judges. Most participants are dissatisfied with the procedure and press for comprehensive reform.

In 2011 Turkey renewed its civil procedural code, based on local experience and developments in Germany, Switzerland and France, while preserving the main principles. Although the new code introduced the obligation to act honestly and tell the truth, there remains no mechanism to ensure parties provide honest statements and truthful evidence. Indeed, the party preparation principle excuses the parties from bringing the truth to court if it is contrary to their interests. Accordingly, the lack of full disclosure in civil procedure remains the root cause of the Turkish judiciary’s many shortcomings.

The judiciary has also fallen into the trap of blindly following Germany, one of the most expensive judicial systems in Europe. Comparing Germany’s judicial performance with the UK, the distinction is stark.

European Commission for the Efficiency of Justice (CEPEJ) country statistics show that in 2010 Germany spent €8.5bn (£7.2bn); the UK’s budget is less than 20 per cent of that. With 24.5 judges per 100,000 people, the German judicial system performs far less well than the UK, which employs only 3.5 judges per 100,000, with English judges receiving the highest number of cases per judge. The UK judiciary settles 97 per cent of cases through the parties themselves, whereas Germany settles only 38 per cent.

The secret behind the UK’s performance is its effective disclosure system reinforced by criminal sanctions, penalising those who withhold the truth and make untrue and false statements to the courts.

Full and frank disclosure shifts the burden of evidence workload from the courts to the parties. The judge can focus on resolving the parties’ differences and the legal issues while establishing the truth. The counter-parties’ control of disclosure improves and disciplines their behaviour during dispute resolution. Thus, abuses of access to justice can be eliminated while increasing the efficiency of the courts.

According to Professor Alan Uzelac of the CEPEJ, the extensive powers of judges in Mediterranean jurisdictions are often the main generator of delays. The heavy workload in Turkey has turned into extensive reliance on a corrupt experts system, with courts struggling to adjudicate civil disputes.

It is time for Turkey to look beyond the expensive and cumbersome German system in devising further reform. Indeed, a civil initiative of international lawyers has been established advocating adoption of full and frank disclosure in Turkish civil procedure. This is set to lobby the government for reform to create a better judiciary.