Holding hearings electronically has previously been suggested to help reduce both travel time and long waiting periods at courthouses for both parties and their attorneys. However, this was never realized until it was necessary to eliminate crowds from courthouses due to the Covid-19 outbreak. The first electronic hearing (“e-hearing”) was held on 15 September 2020 in Ankara and attempts to continue the practice have since continued.
In order to set the rules for e-hearings, the Regulation on Holding Trials Through Audio and Video Transmission in Civil Procedure (“the Regulation”) was published in the Official Gazette dated 30 June 2021 and came into force on that date. You can read the Regulation here (available in Turkish only).
According to the Regulation, an e-hearing enables parties and attorneys to attend hearings remotely and perform procedural actions by means of audio and video; and for witnesses, experts, specialists and concerned persons to be heard by the court. An e-hearing must enable a court to duly observe the expressions and gestures of the person concerned; to hear their voices and understand their statements.
Requesting an E-Hearing
Either party can request an e-hearing. Also, upon request, the court may hold an e-hearing to hear witnesses, experts or specialists. Article 8 and 9 of the Regulation respectively hold that a request for an e-hearing must be made at least two working days prior to the hearing; the judge must either accept or deny the request at least one working day prior to the hearing. This decision is final.
Reasons to deny a request are limited. According to Article 9 of the Regulation, a request may be denied if i) the request is not made within the prescribed period, ii) the request aims to abuse a right or prolong the proceeding, iii) there are legal, actual, or technical obstacles that prevent the e-hearing.
It is also specified that if a party, witness, specialist or an expert requests an e-hearing due to illness, old age or disability, the court will primarily rule for an e-hearing.
The Court’s Discretion on Holding an E-Hearing
According to Article 10 of the Regulation, the court may ex officio decide to hold an e-hearing to hear the witnesses, experts and specialists. In cases where the parties are not allowed to freely dispose on the subject of the case, the court may also ex officio decide to hear the concerned persons at an e-hearing.
Attending E-Hearings and Exceptions
Article 11 of the Regulation states, an attorney who requests an e-hearing may attend the hearing from their office, the divisions of bars and courthouses reserved for e-hearings, or any other place free from interventions that allows the court to observe and understand their actions and statements. In principle, a party may attend an e-hearing together with their attorney from the aforementioned places, except for cases in which they must swear before or be interrogated by the court.
A party who must swear before or be interrogated by the court and the witnesses, experts, specialists and other concerned persons may attend an e-hearing from courthouses and divisions of the penal institutions reserved for e-hearings.
The same article stipulates that if the court has enabled a party to attend a hearing and perform procedural actions through the e-hearing system due to illness, old age or disability, or has decided to hear a witness, specialist or an expert in an e-hearing, they can attend the hearing from their location, without having to go to a courthouse or a penal institution.
According to Article 12 of the Regulation, an attorney who attends an e-hearing and parties attending together with their attorney are identified through safe electronic signature or mobile signature and National Judiciary Informatics System (“NJIS”) records and similar methods. Parties, witnesses, experts, specialists and other concerned persons who are allowed to attend an e-hearing are identified by the clerk or the guardian working in the relevant courthouse or penal institution.
Article 13 of the Regulation holds that if multiple attorneys are involved in a case, only the attorney who requests the e-hearing can attend.
Cases in Which Signatures of a Relevant Persons Are Required
If a party or their attorney makes a statement at an e-hearing that would result in the dismissal of a case, such as a waiver, acknowledgement or settlement, the court will adjourn the hearing. The statement regarding the waiver, acknowledgement or settlement will be repeated before the court at the new hearing to be held physically and the minutes of the new hearing will be signed by the declarant in order that the statement in question is considered valid.
In other cases where the signatures of parties, their attorneys or concerned persons are required, they can be provided either at the place reserved for e-hearings with the help of clerks or by means of electronic signature that is integrated with the JNIS system.
Authority to Submit Documents Online
It should also be noted that Article 13 of the Regulation authorizes parties or their attorneys who attended e-hearings and the experts, specialists and other concerned persons who have been heard during an e-hearing to submit documents through the JNIS system.
What If There Are Technical Issues During the E-Hearing?
If there are technical issues in transmitting video or audio and it becomes difficult to understand statements, the e-hearing is re-launched. If the issue continues, the hearing is terminated, and this is written in the minutes.
Recording of E-Hearings
Taking photos or recording audio or images during an e-hearing is not permitted, however, if the proceedings require so, the court may, stating its reasons, decide to record the e-hearing. These records cannot be published anywhere without the express consent of the court and the concerned persons.
Now that the rules are determined and clear, it is expected that e-hearings will become more common due to their practicality.
However, it should be kept in mind that not all courthouses may have the sufficient infrastructure to establish the e-hearing system. Therefore, it could take some time before e-hearings are feasible in all courthouses, especially those in relatively smaller cities.