E-Hearing System is a system that enables participation in hearings held in civil courts remotely. In this regard, the fundamental rules on this new system, which saves time and labor both for lawyers and other relevant persons while facilitating access to justice services, were previously elaborated in one of our articles. In a relatively short time after the promulgation of the Regulation on the Conduct of Hearings by Audio and Video Transmission in Civil Procedures [“Regulation”] which sets the e-Hearing procedures and principles in the Official Gazette dated June 30, 2021 e-Hearings have become widespread rapidly.
According to the announcement made on the e-Hearing Information Platform by the Ministry of Justice, the system has been implemented in a total of 1400 courts all around Turkey as of November 9, 2021. Again, as of this date, the e-Hearing System has been used 36,567 times, and the goal is to increase the number of courts conducting e-hearings to over 2,000 by the end of the year, as per the announcement of Ministry of Justice.
The e-Hearing System is implemented for all civil courts in nearly 50 provinces particularly in the courthouses in Istanbul and Ankara, whereas it is only active in consumer, enforcement, and cadastral courts in the remaining 28 metropolitan cities for now. The courthouses where the e-Hearing System is activated can be seen through the e-Hearing Map published by the Ministry of Justice.
When and How Should an E-Hearing Request Be Made?
According to the Regulation, request to attend a hearing via audio and video transmission must be submitted to the court at least two business days before the hearing date, via the UYAP lawyer or citizen portal or the CELSE application. The judge makes a final decision on request at least one business day before the hearing. Failure to make the request on time, abuse of the right or intention of prolonging the proceedings, presence of legal, operational or technical obstacles that make it difficult to hold an e-Hearing are regulated as reasons for immediate rejection of the request.
According to the manual prepared by the Ministry of Justice [“Manual”], if the request is not rejected or approved by the court 24 hours before the hearing, the system rejects it automatically. Also, according to the Manual, e-Hearing requests can be made 24 hours before the hearing at the latest.
However, it should be noted that requests not made two business days before the hearing may be rejected for this reason alone.
Who Can Benefit From the E-Hearing System?
In addition to the parties and their attorneys, witnesses, experts and referees are allowed to be heard and participate in the hearings through e-Hearing System. In principle, participation in the hearing by means of audio and video transmission is evaluated upon request in terms of the parties and their attorneys. On the other hand, judge may decide ex officio to hear the relevant parties through e-Hearing in cases on which the parties cannot freely dispose. Further, the judge may decide ex officio to hold the e-Hearing, if the party to be interrogated or to take the oath, resides outside the borders of the province where the court is located and cannot reach to the court.
Pursuant to the Regulation, the court may also decide ex officio to hear the witness and expert through e-Hearing. In this case, plenary summons to be sent to the relevant should also include necessary indications on how to attend the e-Hearing.
Finally, it should be noted that in case the file is followed by more than one attorney, only the attorney(s) who submitted a request for e-Hearing and whose request is accepted can participate to the hearing through the System. For an attorney holding a certificate of authorization to be allowed to attend the e-Hearing, they must be enrolled in the relevant court file and submit an e-Hearing request through their own Lawyer Portal account. In this case, the attorney who has been granted a certificate of authorization will be permitted to attend the hearing through his own account. That being said, in practice, courts allow authorized attorneys to participate in e-Hearings through the account of the attorney holding the power of attorney, if the certificate of authorization is submitted to the court file beforehand.
In Which Cases the E-Hearing System Cannot Be Used?
Pursuant to the Regulation, in the event of declaration of a waiver, acceptance or settlement that leads to conclusion of the case in the e-Hearing, a new hearing date will have to be determined by the court. In this hearing to be held with physical participation, the said declarations needs to be renewed and would become valid when signed by the relevant party.
The Regulation enables remote participation even in cases where party’s or its attorney’s signature is required. In this case, the hearing report prepared and signed with a secure electronic signature by the court will be sent electronically to the courthouse where the e-Hearing is held, and the editor-in-chief or the court clerk will have the report signed by the person making the declaration and send a scanned copy of it back to the court through the system. Nevertheless, according to the Manual, the courts are currently not allowed to hold the hearings remotely in cases where the minutes needs to be signed by the parties, such as preliminary examination hearings.
The Regulation also sets rules considering occurrence of technical difficulties. Accordingly, if the statements cannot be understood due to technical issues, the e-Hearing needs to be reopened; and should the problem persist, then the e-Hearing should be closed, and this situation should be recorded into minutes. In such an event, the first paragraph of Article 150 of the Turkish Code of Civil Procedure shall not be applicable with respect to the relevant party or the attorney; this means that the case file would not be suspended based on the ground that the party did not attend the hearing.
By M. Tarik Guleryuz, Partner, and I.Selin Nacar, Associate, Guleryuz & Partners