CMS Expert Guide to Digital Litigation in Turkiye

Throughout the years, the Turkish civil justice system has witnessed a gradual development concerning digital litigation. To provide a general overview, the following are the milestones in this process.

(i) Since 2005 the National Judiciary Informatics System (UYAP) has been in use and allows the users for various actions such as examining lawsuit, enforcement, or mediation proceeding files, making copies of the documents in the relevant files, submitting documents to the files, filing a lawsuit, initiating proceedings, paying court fees, following up on notifications, and participating in e-hearings. Also, UYAP features different portals for lawyers, citizens, courts, as well as mediators.

In that context, UYAP system allows (i) the Ministry of Justice (Ministry) organisation and judicial units to conduct their judicial activities electronically; (ii) attorneys to conduct all kinds of activities regarding the lawsuits in which they have powers of attorney, such as reviewing and following up on all the documentation and upload/copy any required documentation in a secured way through the UYAP Attorney Portal; and (iii) citizens to follow up on the lawsuits to which they are a party, object to administrative fines, send complaints to the public prosecutor offices, and file certain types of lawsuits through the UYAP Citizen Portal.

In addition, UYAP SMS Information system provides system users with the necessary warnings and announcements regarding information on lawsuits and execution proceedings. 
Furthermore, since UYAP is a system developed in accordance with the electronic signature infrastructure, the final version of information and documents in the system are stored in the database in an immutable and secure manner, and unauthorised access to the system is not allowed.

(ii) Since 2018, the National Electronic Notification System (UETS) is fully operated and enables courts, enforcement offices, and notary public to issue e-notification, which is a much faster and more sustainable method that eliminates the problems related to the receipt of a notification. Under Article 7/A of Notification Law and Electronic Notification Regulation, notifications made to certain persons, such as attorneys, registered mediators and experts, and notaries, are required to be completed electronically through the UETS system. 

(iii) Since 2020, the e-hearing system has been available, which is regulated under Article 149 of the Code of Civil Procedure and the Regulation on the Conduct of Hearings Through Audio and Video Transmission in Civil Proceedings (i.e. the E-hearing Regulation). Accordingly, (i) at the request of one of the parties to the dispute, the court may order that the requesting party or the party's attorney participate in the hearing and conduct procedural proceedings from their place of residence through simultaneous audio and video transmission; (ii) the court may, ex officio or upon the request of one of the parties, order that the witness, expert or expert be heard from the place where they are located through simultaneous audio and video transmission; and (iii) the court may, ex officio, order that the relevant persons be heard from wherever they are through simultaneous audio and video transmission in cases and affairs that the parties cannot freely dispose of. However, the court does not have an obligation to accept every e-hearing request and it may reject the request of parties.

(iv) Studies on the use of artificial intelligence (AI) applications in litigation have been currently going on. As mentioned in the Judicial Reform Strategy Action Plan, the use of such applications is among the short-term plans of the Ministry.

In parallel with technological developments, there is a considerable number of digital and technical measures available in litigation proceedings. Such measures are as follows:

(i) E-hearing and UYAP: Through the UYAP and the e-hearing system integrated into this portal, e-filing, videoconferencing, and many other digital litigation processes are actively used in Turkey. For more information, refer to paragraph (iii) of the answer to Question 1.

(ii) Sound and Video Information System (SEGBIS): SEGBIS is a system allowing the use of the videoconference method in taking testimony or defence, interrogation, listening to relevant persons such as victims, complainants, participants, witnesses, and experts, video recording of the hearing and other investigation and prosecution procedures deemed necessary. The e-hearing process is also conducted through the SEGBIS system.

(iii) E-state: E-state is a web-based system that aims to provide citizens with the accurate information through a common point in a secure, uninterrupted, and fast manner in an electronic environment by taking into account the needs of the users. E-state system allows citizens to follow up on lawsuits to which they are a party.

(iv) CELSE App (Mobile Attorney Information System): CELSE (the Turkish word for 'hearing') is an application developed for attorneys to (i) list the litigation and enforcement files in which they have a power of attorney and view the relevant information regarding such files; (ii) list the hearings on the selected date; (iii) list the hearings at a selected court and view the relevant information regarding such files; and (iv) update their contact information in the UYAP system.

(v) Tools Developed by the Union of Turkish Bar Associations in collaboration with Bars: There are also specific tools generated by the Union of Turkish Bar Associations for facilitating litigation and enforcement proceedings, such as an online enforcement tracking system, online office management system, High Judicial Decisions Information Bank System, attorney assignment systems, and the bar automation system (UHAP). 

(vi) E-signature: E-signature is one of the most significant technical measures in digital litigation. In that regard, e-signature is required for (i) identification of the attorneys prior to e-hearings, and (ii) logging into the systems mentioned above and conducting any action in such systems. Also, according to Article 445 of the Code of Civil Procedure, (i) lawsuits can be filed, fees and advance payments can be made, and lawsuit files can be examined electronically by using a secure electronic signature; (ii) minutes and documents stipulated to be prepared physically under the code may be prepared and sent electronically with a secure electronic signature; and (iii) minutes and documents created with a secure electronic signature must not be sent physically.

(vii) E-Notary Services: It is possible to conduct certain notary services, namely, (i) cease and desist notices; (ii) translations; and (iii) detection, electronically through the online application portal.

(viii) UETS: Refer to paragraph (ii) of the answer to Question 1.

Although some of the abovementioned tools, especially UYAP portals, are widely used by the courts, there is still a tendency to conduct the proceedings in person to the extent it is permitted by the legislation.

While some of the mentioned instruments are mandatory, others are optional for the parties to the litigation proceeding and their attorneys. Accordingly, while tools, such as e-hearing, e-notary services, and the CELSE app are optional, using a secure e-signature is mandatory for attorneys to conduct the necessary activities through these systems. Likewise, e-notification is mandatory in certain circumstances. (Refer to paragraph (ii) of the answer to Question 1.).

Although the litigation process has digitalised on a significant level, it cannot be considered as a full digitalisation since there are still technical problems faced in the digitalised parts of the litigation.

To clarify such elements preventing a full digitalisation, it is not possible for foreign companies to initiate their litigation and mediation processes through the UYAP system, and such applications should be made in person before the relevant courthouse upon the registration of these companies to the system.

Although the SEGBIS system has operated smoothly, system-related interruptions may occur occasionally in e-hearings. Therefore, parties and their attorneys tend to attend the hearings in person in order to prevent any potential issues.

Lastly, during mediation procedures, parties may not be willing to agree on the teleconferencing method or execution of any document by e-signature. In such cases, despite all the digitalisation tools and capabilities available, a physical meeting is inevitable.

Yes, the rules on the use of existing digital tools have been adopted into the general laws such as the Code of Civil Procedure, the Code of Criminal Procedure or Notification Law, and secondary regulations such as the Electronic Notification Regulation, E-hearing Regulation or communiqués, Ministry circulars and directives on these tools.

The legislation mentioned above is not currently up for any debate regarding the use of technology.

Adequate legal regulations and boundaries, however, have not yet been established for instruments such as AI, which is still under development.

The most electrifying pilot project of recent years was the e-hearing process, which has recently been implemented in all courts. The e-hearing system, which enables lawyers to participate in Civil Court hearings online from wherever they are located, is already set up and actively used. (Refer to paragraph (iii) of the answer to Question 1.)

Currently, a new practice has been introduced in terms of enforcement offices, which is called “Continuation Project for Increasing the Efficiency of Enforcement Offices”. The aim of the project is to ensure effective and efficient execution procedures and to strengthen the capacity of enforcement offices by increasing the use of digital tools. For the system to operate more efficiently, enforcement directorates were separated on a departmental basis. While previously each execution directorate was responsible for all sections of a file, and it was difficult to track this file load from UYAP, new regulations have facilitated file tracking.

AI would provide benefits in terms of speeding up judicial proceedings and eliminating the risk of error.

However, although Turkey has made great strides in digitalisation, steps are only recently being taken to incorporate AI into the judicial system. As mentioned above, since AI has not yet become widespread, special legal regulations that apply to the use of AI in litigation have not yet been introduced. However, there is no doubt that these regulations are on their way.

Institutions and public authorities have encouraged the use of AI in Turkey in recent years. In 2019, the Union of Turkish Bar Associations established an Artificial Intelligence and Law R&D Unit. Likewise, the importance of utilising AI within constitutional limits has been emphasised many times by the Ministry. In addition, in March 2022, within the scope of the "Strengthening the Institutional Capacity of the Court of Cassation" project, a decision was made to establish an artificial intelligence-based "Court of Cassation Case Law Centre". This project is scheduled for completion in 2023.

Although there are no specific legal regulations on AI, there is a crucial rule that will keep this train on track as it moves forward: the Constitution of the Republic of Turkey, which guarantees the principle of independence of the judiciary, the rule of law and right to a fair trial. Under Turkish law, the judiciary is independent, the court judges each case on its own merits, and it is unlawful to direct the judge in legal matters. Therefore, AI-based case-law tools are expected to operate in accordance with the Turkish Constitution.

The General Directorate of Information Processing was established within the Ministry in 2019 to improve security measures more systematically, and the experts responsible for system security are on duty 24/7.

Also, to eliminate unwanted accesses and IT security breaches, the system allows the creation of documents in "udf" (a unique format specifically developed for this system) and signed via a secure electronic or mobile signature by the creator. The system does not allow unauthorised access and ensures that the final version of information and documents is stored in the database.

In addition, each digital tool has its own IT protection measures and data security policies. For instance, regarding e-hearings, access to an e-hearing should be provided to the lawyer who has submitted a valid PoA to the court beforehand and signed up with a valid electronic or mobile signature to the UYAP portal or CELSE app on hearing time. Also, regarding the specific rules on the use of data, in line with the E-hearing Regulation, the records obtained through the e-hearing system will be stored in the Central Recording System for two weeks, upon which all the data in the system will be irreversibly deleted.

As stated above in Question 7, each court is obliged to make a case-by-case assessment. Therefore, it is a possibility that AI tools may make a general analysis, not considering the specific circumstances of the situation.

Therefore, for businesses, there is a risk that the system is automated and therefore does not sufficiently analyse the characteristics of the concrete case. It is critical for businesses to take the necessary measures to reduce this risk.

As a matter of fact, in December 2022, even the Istanbul Bar Association published a "Declaration on the Use of Artificial Intelligence in the Judiciary" and emphasised the need to ensure the independence of the judiciary by evaluating the benefits and harms together regarding the Court of Cassation Case Law Centre System, which was developed within the scope of the Project for Strengthening the Institutional Capacity of the Court of Cassation and was created to operate with artificial intelligence.

Turkey's e-government project provides two essential tools that aim to improve access to legal services and to ensure a fast, reliable, and accurate judicial system, namely UYAP Citizen Portal and e-State.

With the UYAP Citizen Portal aiming to facilitate citizens' access to justice services, it is possible for citizens to conduct many of their judicial activities electronically without visiting courthouses in person. Refer to paragraph (i) of the answer to Question 1.

The e-State provides electronic delivery of state services to citizens. In this way, it is intended to deliver state services to citizens effectively in a fast, uninterrupted, and secure manner. Refer to paragraph (iv) of the answer to Question 2.