Note to the Reader
This interview was conducted prior to the publication of the Draft Enforcement and Bankruptcy Law, which was submitted for public review on August 14, 2025, on the official website of the Ministry of Justice of the Republic of Türkiye. In this context, the term “New Enforcement and Bankruptcy Law Draft” used throughout the interview text refers to the aforementioned draft, and the assessments made are based on projections from the period prior to the publication of the Draft, when the Draft text had not yet been shared with the public. Although the general and fundamental observations made in the interview are independent of the draft and should always be taken into consideration, it would be appropriate for the reader to bear in mind that the interview and the assessments made therein were made prior to the draft being shared with the public. This note has been added to avoid any confusion that may arise from terminological differences.
The views and assessments in the interview reflect the perspective of the person conducting the interview. Our aim is to convey these views to the reader without any additions or omissions.
This post features only a part of the interview. The full version will be published in the GSI Articletter Winter 2026 Issue.
I. INTRODUCTION
Prof. Dr. Muhammet Özekes, known for his works in the field of Civil Procedure and Enforcement and Bankruptcy Law and his role in the preparatory commissions of fundamental texts like the Code of Civil Procedure, is one of both the architects and the most competent critics of legal reforms in Türkiye. Prof. Dr. Özekes has been serving at Dokuz Eylül University Faculty of Law since 1989, where he has completed all stages of his academic career and undertaken important administrative duties such as Head of Department. In this special interview conducted for the GSI Articletter Winter issue, we explored Prof. Dr. Özekes’s in-depth analyses along three main axes: the constitutional and methodological foundations of the new Enforcement and Bankruptcy Law draft, eagerly awaited by the public; the judiciary’s encounter with technology, centered around his work “Civil Justice in the Digital Age”; and finally, the future of the appellate system, whose performance has been debated since 2016.
This interview examines a wide range of topics, from constitutional and methodological criticisms of the preparation process for the new Enforcement and Bankruptcy Law Draft, which has not yet been shared with the public [Draft Law on Compulsory Enforcement had not yet been announced at the time of the interview], to the deep-rooted structural problems of the current enforcement system, from a holistic perspective. Prof. Dr. Özekes’s assessments are not only limited to legislative changes but also address current and critical topics such as the digitalization of the judiciary, the functioning of the appellate system, and the role of artificial intelligence in the justice mechanism with a comprehensive approach. By not only diagnosing problems but also offering concrete proposals, this interview aims to serve as a valuable resource for all legal professionals. It also stands as one of the first comprehensive public evaluations of the new Enforcement and Bankruptcy Law, offering a solution-oriented perspective.
II. THE NEW ENFORCEMENT AND BANKRUPTCY LAW DRAFT
RUMEYSA SAMSA:
Starting with the issue of “advantage”, which you primarily emphasize in your work; enforcement law walks a fine line between the drama of a family whose home is being seized and the desperation of a shopkeeper unable to collect their dues. How does the work, publicly known as the new draft, aim to balance these two sides of the scale?
MUHAMMET ÖZEKES:
Before getting to your questions about the new draft, it’s useful to provide some preliminary information. A post was made on social media about the work currently referred to as the “new draft,” stating that the scientific commission submitted this draft to the Ministry. However, no one, including myself, has any information about the content of this draft. If one asks, “Why not?” it’s because an approach has been adopted where such draft studies are conducted in secrecy and are only made public and shared after being submitted to the Ministry. The source of this approach is said to be certain regulations in the legislation.
But let me say this: there are fundamental flaws in this method, that is, the current method of preparing laws. This applies not only to the Enforcement and Bankruptcy Law but to all legislative processes claimed to be “prepared by the Ministry.” As you know, after the 2017 referendum, Türkiye transitioned to the presidential system. Previously, in the separation of legislative, executive, and judicial powers, the primary function of the executive lay with the Prime Minister and the Council of Ministers. Now, this structure has been abolished, and the President alone represents the executive. When this system, also called the “Turkish-style presidential model”, was adopted, it was said, “The legislature and the executive will be strictly separated.”
In the old constitutional arrangement, legislative drafts and proposals could come to the Parliament through two channels: one as a “draft” from the Council of Ministers, and the other as a “proposal” from Members of Parliament. After the transition to the presidential system, the executive’s—that is, the former Prime Ministry’s, now the Presidency’s—authority to submit law proposals was removed from the Constitution, on the grounds that the legislature and executive were sharply separated. According to our current Constitution, preparing and proposing laws is solely within the authority of Members of Parliament.
While this constitutional provision exists, we are confronted with an approach such as, “The Ministry is working on this law change, this draft law is being prepared.” Therefore, this method of preparation has no constitutional basis. Since the Constitution is at the top of the hierarchy of norms, it is meaningless to defend a law study conducted with an authority not based on the Constitution with justifications like “we are doing it secretly in accordance with the legislation.” Because the law study is being conducted with an authority not based on the Constitution. Even if you place a law or a regulation under it, it would not be appropriate.
If you ask, “Professor, do you find this change appropriate?” in my opinion, it is wrong. I believe that ministries should once again be granted the authority to prepare laws, but this must be achieved through a constitutional amendment. Imagine, the new Enforcement and Bankruptcy Law draft is said to be around 500 articles. Suppose we want to amend the Turkish Commercial Code — that’s 1,500 articles. Consider revising the Civil Code. Would a few Members of Parliament have the energy, capacity, resources, and expertise to prepare such comprehensive laws? They would not. In countries like the United States or certain European nations, we see senators or representatives capable of such work — but they have budgets, advisors, and vast resources at their disposal. In our country, members of the Turkish Grand National Assembly lack such means. Therefore, the previous system should be reconsidered.
In other words, it is not possible for the Draft Enforcement and Bankruptcy Law, which is said to be prepared by the Ministry, to be submitted to the Parliament by the Ministry or to be presented as the “Ministry’s opinion.” The work done in the Ministry can only be considered the product of a working group, and it should be presented to the public as, “The Enforcement and Bankruptcy Law needs to be amended, and we have conducted some preliminary work on this matter.”
Even if these conditions were met, should the process have been conducted this way? No, in my opinion, since the Ministry undertook this work, it should have first held consultation meetings. The opinions of the stakeholders of this issue—the grocer who cannot collect his debt, Aunt Ayşe whose home is being seized, unions, workers, merchants, financial institutions, chambers of commerce, bar associations, and academics working in this field—should have been sought. For instance, many academics like me hold differing views on this issue. I believe that the enforcement system in Türkiye needs to be rethought from the ground up. Revisions made over the existing system may be sufficient in areas like the Civil Code or the Code of Obligations; however, in the Enforcement and Bankruptcy Law, we needed to address the system from scratch. A commission was formed and carried out its work without this preliminary study and evaluation.
It is also important to note that when the commission was first formed - let’s call it the first commission - and the scientific commission was established, Professor Hakan Pekcanıtez was the commission chairman. I was also a member of the commission. I made the same suggestion back then. I had written to the Ministry. I said, “This won’t work. First, you should conduct a survey, get everyone’s opinion on this matter. After this survey, you should proceed with those who have similar views, depending on your intended direction.”
The only thing I have gathered from information that has leaked out is this: there is no major revision in the existing enforcement and bankruptcy law system; it is still based on the Swiss model—as our law is based on Switzerland’s—despite many changes, it is a study based on the Swiss model. Of course, alongside this, there have been reviews in some follow-up procedures and methods, some current developments have been reflected, and some follow-up procedures have been revised. This is the only information that has been leaked out, but as I said, there is nothing concrete I can convey to you at this point.
Now, if you ask me, “Professor, do you think it is right to proceed based on the current law, on the Swiss system?” No, I do not. Because the outcome of something is, at some point, an indicator of its success. Let’s go out and ask, are the banks happy with this? For example, as a large creditor group, are merchants happy with the execution of this Enforcement and Bankruptcy Law? Are ordinary citizens happy with the execution of this Enforcement and Bankruptcy Law? Are we, as academics, satisfied with current Enforcement and Bankruptcy Law system and its being implemented? We are not; a large majority is not happy. So, what is the meaning and purpose of repeating the same thing in a similar revised manner? There is a saying attributed to Albert Einstein: “Insanity is doing the same thing over and over and expecting different results.” When you look at it this way, we can conclude that a successful method has not been applied.
Furthermore, Switzerland is a country with unique circumstances, even compared to other European nations. Now you might say, “Professor, we also took the Civil Code and the Code of Obligations from there.” Yes, that’s true, but the Civil Code and the Code of Obligations are substantive law rules, and some regulations and institutions in these laws show similarities at a universal level. When you say divorce, it’s more or less the same in Germany; marriage, custody, guardianship—these are matters that also come from our old law. So, you can proceed based on certain choices in those areas. But when you talk about an enforcement and bankruptcy law system, like criminal law, it requires direct intervention in a person’s private and economic life. Societal understanding, tradition, payment ethics, economic power—all these things play a role here. Now, consider Switzerland: a special country, isolated even within Europe, with its own unique rules and approach. It is not subject to any other authority and possesses high economic power. I do not believe that continuing to base our system on Switzerland’s enforcement and bankruptcy law is appropriate, feasible or sustainable in Türkiye. If a regulation based on the same system is to be made, I am among those who believe that it will likely not be very successful. It was a rather long general framework but let me draw such a general framework for you.
RUMEYSA SAMSA:
In that case, let’s continue by structuring our questions within this framework. You state that there are many points in the law that need to be changed. It is certain that there will be regulations affecting not only debt relationships but also areas like banking, insurance, and family law. In your opinion, what could be the most significant “domino effect” of these changes?
MUHAMMET ÖZEKES:
In my opinion, compulsory enforcement law should first be addressed under two main categories: individual enforcement and collective enforcement. Individual enforcement refers to legal action taken against a single debtor, targeting a specific asset to recover a specific debt. Collective enforcement, on the other hand, is a method designed to protect the interests of all creditors and to keep the debtor and the business afloat when they become unable to pay all their debts, and all creditors turn to this debtor. In our system today, collective enforcement is divided into three categories: bankruptcy, concordat, and the restructuring of companies. The question “What should an enforcement and bankruptcy law be like?” needs to be answered by considering these two headings separately.
Let’s begin by examining individual enforcement. Our individual enforcement system is based on three main pillars: enforcement without a judgment (with its sub-branches), enforcement with a judgment (with its sub-branches), and foreclosure of a pledge. The fundamental principle of enforcement without a judgment is as follows the law states, “For these categories of receivables, you can initiate enforcement proceedings without applying to a court and obtaining a judgment.” This procedure can be referred to as non-litigious enforcement. Normally, what is the way to seek justice? It is to apply to a court, to file a lawsuit. But the lawmaker has said, “For these types of receivables, to make collection easier and simpler, you can initiate enforcement without filing a lawsuit. If it reaches a certain point, you will need to file a lawsuit and go to court.” We call this enforcement without judgment.
The second category, it is said, “If you have very strong documents in your hand that prove your claim definitively, like a court judgment, or even if you don’t have these but you go and get your right, your claim—don’t just think of this as money—determined by filing a lawsuit in court, and if you need to, then you can use enforcement with a judgment.” A third one is about how to proceed if you have a pledge. As you know, a pledge is an absolute, real security that can be asserted against everyone. Substantive law has also assigned it a distinct legal strength. What is the feature of a pledge? After I place a pledge, you cannot come and collect your debt from that asset first. I must be satisfied first, then you can take your debt. Therefore, I create a protected area for my claim over that property, and others cannot enter. So, the lawmaker tells me, “If you have a claim, don’t go after the debtor’s other assets; first, liquidate this.” In this direction, there is foreclosure of a pledge. In other words, the law tells you to first satisfy your claim from the secured asset before pursuing the debtor’s other properties. First, turn this into cash, because other creditors cannot collect from here. It is not acceptable to place a lien on a pledged asset and simultaneously initiate seizure proceedings against it. Therefore, the method called foreclosure of a pledge works this way.
There are three main types, but as you’ll see when we count them, with their sub-branches, we currently have close to 15 types of enforcement proceedings. You know, there’s a folk song that goes, “See what befalls a brave man if he goes abroad.” Well, see what befalls a creditor trying to collect their debt or a debtor facing an enforcement action. You will lay these out before you and think, “What am I going to do?” You will navigate the labyrinthine paths of Enforcement and Bankruptcy Law with a guide. Remember, in our system, representation by a lawyer is not mandatory in principle. For example, in subscription contracts, you tell the citizen, “Here is the debt, here is the law, do whatever you need to do.” Such an irrational and chaotic system does not exist anywhere else in the world. I say this everywhere; it’s not new. This complexity is my first fundamental criticism of enforcement without judgment.
My second fundamental criticism concerns our system of enforcement with a judgment. Let me give an example, one I often use. Imagine a Turkish citizen living in Germany. They have no assets in Türkiye. To maintain their connection to their homeland, they purchased a summer house in Çeşme or Bodrum. That is their only connection, the only address registered under their name. They come in the summers, take their vacation, stay for 3-4 months with their family, and then leave. Then they close up the summer house. Now, let’s say this Mr. Ahmet closed up the summer house in September and left. And I am a fraudulent creditor. I forged Mr. Ahmet’s signature and created a promissory note. In fact, I don’t even need to create a note; as you know, enforcement without a judgment can be initiated without relying on any document. Suppose I issued a note for 5 or 10 million in Mr. Ahmet’s name. Then I went and initiated enforcement without a judgment. Would the enforcement officer ask me, “Is this Mr. Ahmet’s signature?” No, they wouldn’t. They would take my enforcement request and turn it into a payment order. They would attach this document if available, but even without a document, they would send you a payment order stating that you owe 10 million, right? They would. What is Mr. Ahmet’s only address in Türkiye? When you check Central Civil Registration System, it’s the summer house address. In October, it’s likely that no one is at property except for security guard. You went there as a mail carrier, knocked on the door, and no one was there. What will you do? You will leave it with the local headman and post a notice on the door. Did you do that? You will write this on the proof of service. Did you write it? Yes. You will bring the proof of service back to the enforcement office. Did you give it? Yes. Seven days have passed; does Mr. Ahmet know about this? No. What happens if he doesn’t object within 7 days? The enforcement becomes final, right? Final. Can you request a seizure on the eighth day? You can. Did you write to the land registry to place a lien? You did. Did you put it up for sale within a month? You did. If the neighbors don’t find out and inform him, will Mr. Ahmet’s house be sold a month later? It will.
When Mr. Ahmet arrives in June with his keys and bags, thinking, “I’m going to my summer house in Çeşme,” with his car full, he finds towels and shorts hanging in front of his house. He tries to enter and suddenly finds himself facing people in shorts and flip-flops who ask, “Who are you?” He says, “Brother, this is my house.” “How is it yours?” “I swear it’s mine.” The man says, “No way, I bought this from an enforcement auction.” They won’t even let you in the door. Can there be such a ridiculous enforcement system? No. Of course, this may sound like an exaggeration, but it reflects real life situations. Our system of enforcement without a judgment is based on no document, no information, no supervision. It is a system wide open to fraud. That’s one aspect of enforcement without a judgment.
Let me tell you about another contradiction. When you file a lawsuit, if the defendant does not respond within the two-week period, what is the consequence?
MEHMET HAN YILDIRIM:
They are deemed to have denied the claim.
MUHAMMET ÖZEKES:
They are deemed to have denied it. This process takes place before an independent and impartial judge. Now, in the example I just gave, where is the enforcement proceeding conducted? Before an enforcement officer. Does the enforcement officer have judicial tenure? No. In the proceeding conducted before the enforcement officer, if the debtor does not object to the payment order in time—that is, does not respond—what is the consequence?
MEHMET HAN YILDIRIM:
They are deemed to have accepted the claim.
MUHAMMET ÖZEKES:
Deemed to have admitted... Where is the lawsuit adjudicated, and under whose authority? It proceeds under the supervision of an independent, impartial judge with judicial tenure. If you don’t respond within two weeks, you are deemed to have denied it. But in the example of Mr. Ahmet, I just gave, where are we conducting the enforcement? Before an enforcement officer. Does the enforcement officer have judicial independence? Yes, they have certain powers, influence, and impartiality, but do they have judicial tenure? No. In the enforcement you conduct before an enforcement officer, if the debtor does not object in time to the payment order sent to them—which you can think of as the statement of claim—what is the consequence? It’s deemed an admission. Can there be such a nonsensical system? It lacks consistency. Either say it’s an admission in all cases or a denial in all cases. But if you must say admission for one and denial for the other, you should say admission for the one in court. Because it’s under the supervision of a judge, the judge is telling you, “Look, there is such a claim, I have taken it seriously, accepted the petition, and issued a preliminary order, respond to this.” You ignore the court and don’t respond, and that’s considered a denial, but you are deemed to have accepted something that originating from an enforcement office without judicial review, documentation or proper oversight. Isn’t this irrational, immoral, unlawful, and inhumane? Has anyone ever thought about this until today? Not many people write or say much about these issues in our country. Since we are constantly preoccupied with less important topics, wondering “Did this get repealed, did the annulment of objection happen, what happened to that,” we haven’t pondered this fundamental issue.
This is another one of our problems, the issue of denial and admission. Let’s look at another matter contrary to fundamental rights. Look, we took the law from Switzerland. Switzerland is a banking paradise, one of the world’s financial centers. There are great privileges we have granted to our credit institutions that do not exist in Switzerland. Article 68/b, Article 150/ı... It’s truly an ‘ı’-like article. The kind that makes you go “ugh”. Open the article and read it; you won’t understand it anyway. Now, Article 150/ı essentially says this: “As a bank, you may not have a court judgment, you may not have a document equivalent to a judgment. “But”, it says, “if you have established a credit limit mortgage—and you know you can’t conduct enforcement with a judgment for a credit limit mortgage—but if you rely on the documents and information here and send a notice to the debtor, and complete certain processes, at the end of this, you can apply foreclosure of a mortgage with a judgment, not without a judgment. The debtor can only oppose this after paying their debt.” The method of opposition is also strange. In our system, the way to oppose an enforcement action is either through an objection or a stay of execution, with or without a judgment. Here it says, “file a complaint”. What fault does the enforcement officer have? We have practices like this, enacted in favor of credit institutions, that violate the principle of equality and have no precedent even in Switzerland. Bankers, financiers... When I say bankers, don’t just think of banks; think of all credit institutions. Private finance institutions, etc., think of them all. They have brought and put here every regulation they couldn’t get into the Banking Law or elsewhere.
There are also inequalities regarding non-seizability. Think of it this way: you are saving money to buy a house. You have exactly 3 million in the bank, saved with great difficulty buying a house. But by chance, something went wrong, you couldn’t pay, and the enforcement became final. Can this money you saved in the bank to buy a house be seized? It can. However, if I, as a debtor who also owes 3 million, am living in a house worth 3 million, and this house is suitable for my social conditions, can it be seized? No. “A person’s house suitable to their condition cannot be seized.” Can there be such a situation contrary to equality? What should happen here? What should happen is equality for everyone. It could be said: “For everyone, the rent for a house suitable to their condition for 6 months cannot be seized.” For example, if I live in a place with a rent of 20,000, on average, my 120,000 and your 120,000 in rent cannot be seized. But in one case, we seize the 3 million in the bank of a person who could buy a house, while in the other, even if they live in a 3 or 4 million house, you cannot seize it. This is another issue contrary to equality.
Another issue is the imbalance between the state and individuals. Let me give another example. I am the state, a public institution. I came and seized something, or a tort occurred, my officials caused a problem, and you filed a full remedy action and are owed 1 million from the state. Meanwhile, I also have a tax debt of 1 million to you. Look, it’s the same. I say, “I owe you, and you owe me. Let’s offset the one million.” Can we? We cannot. So, what will happen? After a year, neither I nor the state has paid. We initiated mutual enforcement proceedings. I advanced my proceeding. Of course, under which law will I pursue enforcement against the state? Under the Enforcement and Bankruptcy Law, this strange law. What interest rate will I apply? The ordinary interest rate, right? But the state will say “the revaluation rate is this and that,” apply a higher interest rate to its tax, and that will accrue 1.5 million in interest. Even if we started at par, with a 1 million debt each, the state would end up being owed 250,000 TL more from me. If my enforcement against the state becomes final, can I go and seize state property? No. But how will the state collect its debt from me? According to Law No. 6183, right? It will unhesitatingly block your bank account, even above the limits, not just for 1 million but your 5 million accounts. It will. I say, “If you had paid me the one million, I would have paid you,” and they say, “No.” “Let’s offset.” “That’s not possible either, the law doesn’t allow it.” How many times has the ECHR convicted Türkiye for this “state property cannot be seized, it is contrary to equality”? And that law is still there. As Ziya Paşa said, “If the plaintiff is the judge and the bailiff is the witness, can the verdict of that court be called justice?” Now, the state is the creditor, the collection office, the enforcement office, the one issuing the document, and the one carrying out the seizure. So, when I try to collect my debt, it’s forbidden, but for the state, it’s permissible. This is another one of our problems, the unnecessary privileges granted to the state.
Another problem is not getting to the root of the issues. Look at the examples I gave earlier. Everyone is discussing “action for recovery of property,” “action for restitution,” “action for negative declaratory judgment,” this and that, but frankly, no one is getting to the bottom of the problems I mentioned earlier and taking on this system. And another problem in our enforcement system is that we forget that law is a superstructure. Law is a superstructure. If your economy, your trade, your business ethics, your sense of social responsibility are not good, you cannot expect a remedy from the Enforcement and Bankruptcy Law. Look at the major revisions in our Enforcement and Bankruptcy Law; they all happen during crises. However, enforcement and bankruptcy law is the hospital. What does this mean? It means the patient is in the treatment phase; you have already fallen ill. You have gone to the enforcement office. Especially if you have reached the point of bankruptcy, it means you are in intensive care. If you are in the liquidation phase, we are burying the dead, holding the funeral. Now you go to the deceased’s side and tell the corpse, “Give me money.” Or you grab the person in intensive care by the throat and say, “Is it possible to secure my interest?” It’s not. Therefore, before reaching the enforcement law stage, we must consider all remedies, and then we should go to rehabilitation.
What I have said so far relates to individual enforcement and the enforcement system in general. There is also collective enforcement. In collective enforcement, we are dealing with an outdated system like bankruptcy today. Almost the entire world has abandoned it. Regarding concordat, I believe only Switzerland and Italy have systems similar to ours. Other than that, this institution of collective enforcement aimed at saving businesses, known as concordat, does not exist in other parts of the world. The Germans abandoned bankruptcy with an expression like this, in German bankruptcy is “Konkurs,” they said, “Der Konkurs des Konkurses” (The bankruptcy of bankruptcy). “Bankruptcy has gone bankrupt; we need to switch to a new system.” In the form of insolvency law, called “Insolvenz.” That is, what should happen if a debtor, a business, becomes insolvent? The basic understanding here is this: Let’s say you pursued a factory, a business, a company, subjected it to liquidation, and sold it. Can all creditors get their money? They cannot. Banks will get their mortgage claims, workers will get their priority claims, secured creditors will get theirs, the state will get its share... Nothing will be left, right? However, what is important here is to keep the business afloat. As the owner, I may have other sources of income; I can still stretch my feet out to the sea and live, but the 300-500 workers there will become unemployed. The supply chain will be disrupted. Because its payments cannot be made, others will not be able to make their other payments.
Now, the generally accepted system in the world is this: Yes, if a business has been mismanaged by its partners and managers, let’s remove them. Let’s restructure the business if possible and keep it afloat. If necessary, let’s involve the creditors in this process. If the business stays afloat, these debts can be paid; let’s pay them. If not, let’s liquidate it as a last resort. We are not in this system either. Look, we are proceeding by trial and error. Previously, there was “postponement of bankruptcy,” supposedly to save businesses. As you know, what happened? The system collapsed, right? Because we lost hope in it and it became degenerate. Then where did we turn? Now we have reorganized the concordat, but currently, there are many problems with the concordat as well, and very serious changes continue to be made. When it was first adopted, we said, “It is wrong in this form,” and it was changed a year later. As I said, this is not because I am a great scholar. This is the product of experience. It was obvious that it would not work this way, and now the concordat is also at a standstill.
Now, if you ask, “Professor, if you were to make this law, would it be 100% fixed?” No, it wouldn’t. Why not? Because unless you regulate your economic infrastructure and this understanding, the Enforcement and Bankruptcy Law will not be a solution. But there are also measures that can be taken, that should be taken, and they have not been taken, have not been done. I’ll be frank; I don’t believe they will be done. Let me leave it at that, having drawn a general framework.
Finally, “Professor, what would you do?” Well, I wouldn’t do these things. When you don’t do these things, you have already corrected many things, or it is quite possible to do many things to compensate for them. And for this, you don’t need very deep, major studies. You take the opinions of those in the sector, those working in this field, the stakeholders. You identify where the problems are, and you fix them. This has not been done.
ÖZNUR ÖZHAN EKİNCİ:
Professor, I want to intervene here. Although the law requires the rule of good faith, concordat is being used in bad faith by companies. Even if the commissioners report this, the courts turn a blind eye to it in practice. While the law mandates the termination of the process in case of conduct contrary to good faith, and there are precedents to this effect, how does this conflict arise? A company submits a revised project to continue the process, victimizing the creditors. Does the rule of good faith remain abstract in practice?
MUHAMMET ÖZEKES:
Let me tell you this: financial institutions do not have major problems collecting their debts. Why not? What does a bank do when it gives you a loan? It takes a mortgage, right? It’s not satisfied with that; it also takes a negotiable instrument. Not satisfied with that either, it says, “It’s uncertain what will happen to the company, brother, I want to see a real person.” It takes a guarantee from the company’s major partner. Now, a situation where this bank cannot collect its debt is out of the question.
The issues where banks say “we couldn’t collect” are mainly two. One, those that are obvious losses from the start, which we often see in public banks. These are loans given without taking these securities, where it is clear from the beginning that they will be lost. This is a loss you have accepted from the outset. Second, what is it that the bank says, “we couldn’t collect”? The bank gives you a 10 million loan, but with interest, that loan eventually becomes 20 million, and every time it collects, where does it collect from first? From the interest. That debt never ends. Now, when you look at the bill, you’d say, “The bank couldn’t collect, it has a receivable of 15 million,” but in the meantime, it has already collected 10 million from interest. Your debt never ends. It’s a kind of, well, a ruthless abuse of the capitalist system. The system allows this, has allowed it, and continues to allow it. Therefore, the inability of banks and credit institutions to collect their receivables is either due to these loans being deliberately pushed for political, economic, or other reasons, or in most cases where they say, “we couldn’t collect,” it means they have actually collected the principal of the receivable but not the interest. And if banks can do nothing else, they add the asset to their portfolio in lieu of the debt. They might not be able to do anything else. They also transfer them to asset management companies, so they somehow collect the debt, or rather, they bear it.
So, who is it that cannot collect their debt? The average, ordinary merchant. I work with you, I constantly supply you. I have no chance to bargain with you. You tell the retailer, “I will pay in a month.” A month later, two months later... You give a promissory note for three months later, and I have to accept it to survive. I can’t get security from you either, but when you go and request a concordat, I get nothing.
Now, in such a situation, what should be done first? Look, there is Article 286 regarding the conditions for applying for a concordat. Let me just say this much, in parenthesis: If I were to sue you, Ms. Öznur, and narrate the claim beautifully, could a court rule against you based solely on my allegations? Even if they were very ornate and detailed, is it possible? No. What do I need to do? I need to prove it, right? But according to our Enforcement and Bankruptcy Law, Article 286, the moment you place these five documents before the court, the court is obliged to grant you a temporary respite. So, what is our most important guarantee in Article 286? The others say, “list of creditors, list of debtors, that it will be better than bankruptcy, list of assets,” and so on; that’s all stories. You prepare it yourself. The only guarantee here, for the debtor to convince the creditors and especially the court, is this: “An audit report prepared within the scope of an audit to be conducted according to Turkish Auditing Standards by independent audit firms authorized by the Public Oversight, Accounting and Auditing Standards Authority, which provides reasonable assurance that the proposal in the concordat preliminary project will be realized.”
Do you think audit firms examine this seriously, sincerely, and correctly and issue the report? They don’t. And does the supposedly supervising Public Oversight, Auditing Authority audit them? It doesn’t. If these reports were serious, sincere, and would lead to liability when they fail, would such concordats proceed? They wouldn’t. So, what are our concordats like? They are about creating a shield, a protected area for eighty percent of businesses that are already bound to fail—I’m setting aside twenty percent.
Now, “Professor, they gave this, what should be done next?” You go to court and say, “Brother, the proposed project is similar to the well-known anecdote of Nasreddin Hoca’s wool- gathering plan.” One day, the Hoca said, “I will get rich quickly.” “How will you get rich?” He said, “I planted bushes here. The sheep will pass by.” “Are the sheep yours?” “No, they are the neighbors’ sheep. They will pass by. Their wool will get caught on those bushes. I will collect that wool, spin it, sell it, and make money.” Our concordat affairs are like this. One of the major bankruptcy and concordat cases currently on Türkiye’s agenda, what is its concordat project based on, do you know? It came before me. It says, “I will sublet 50 branches,” which are not even his. He plans to be saved by this. Look, the court accepts this and appoints a concordat commissioner. Can there be such a ridiculous thing?
Or think of it this way: real estate in Türkiye, as you know, appreciates very quickly, right? I have a property worth 10 million today, in Çeşme, Bodrum, or one of Istanbul’s exclusive neighborhoods. You hear that a new zoning plan will be approved. The company or business also has a debt of 15 million. If I can hold on for one and a half years, with a temporary respite followed by a definitive respite, will this 10 million-property increase to 20 million? It will. In the meantime, since you are not paying anyone, you will sell the property that has exceeded the debt and even make a profit. But in the meantime, because I, as a creditor, cannot collect my debt, I will not be able to pay my debts to others. If I am an honest debtor, I will go bankrupt. Is that so? It is.
Now, undoubtedly, the courts should consider this. You take it to court, you present an expert opinion, you present its economic situation, you say, “This project is impossible to implement.” “Look, such a project has been submitted, but its counterparty does not even exist,” you say, but the court, forgive me, listens to this as if it were listening to a folk song. Yes, maybe you granted the temporary respite at the beginning, but why did you do this later? This is one point. Second, why are these audit firms not audited? For example, why don’t they test this: “How many concordats has this audit firm reported on, and how many have been successful?” Let’s say eighty percent have been unsuccessful; why don’t you audit this properly, why don’t you test its reliability? You can’t get out of this.
Another point is that our courts are, of course, not experts in this field. If you take a judge who has worked in a labor court for years and make them a member of a commercial court, or if you appoint them to a commercial court because you didn’t like a verdict they gave in a criminal court, this will not be possible. So, there are reasons like this. As you can see, I seem to be giving long answers to every question, but these are actually shortened answers, let me tell you. As they say, “There’s a saying that sorrow brings words, while love bring tears-that’s how deeply rooted this issue is” this is truly a big problem and a chronic case.
MEHMET HAN YILDIRIM:
You have mostly touched upon the differences in enforcement methods between the Enforcement and Bankruptcy Law No. 2004 and the Law on the Procedure for the Collection of Public Receivables No. 6183 from the perspective of ‘inequality.’ However, there is also the issue of the lack of procedural unity between these two laws. For instance, there are significant differences between the payment order issued under Law No. 2004 and the payment order issued under Law No. 6183. Indeed, in an article of yours from 2009, you criticized the lack of technical ‘procedural unity’ between the two laws, stating that these differences lead to complexity. In this context, considering the time that has passed, I would like to ask: does your view on this matter still hold? If so, what concrete solution proposals would you offer in a new draft law to address this problem and ensure procedural unity?
MUHAMMET ÖZEKES:
Yes, it holds true more than ever. What is the main reason for the state’s privileges, such as the non-seizability of state property? It was said, “The state is reliable; it pays its debts. Since it will pay, do not go and seize property that is in public service.” But it doesn’t pay. The factual situation is it doesn’t pay. And the public official there says, “What can I do? The state hasn’t allocated a budget for this, how can I pay?” And you can’t seize the property either. You know the saying “an unsolvable dilemma”? This is it, an unsolvable dilemma...
Secondly, the ECHR says, not me, the ECHR says, “Brother, this is not acceptable; it is contrary to human rights. You don’t pay your debt, and your property cannot be seized.” That’s one aspect. The second aspect is this: the state’s privileges should be abolished. In my opinion, the state should pay its debts first. Because I am an individual, I should be able to get my rights, then it can go and perform its services. I have sold goods to it, provided services, or it has harmed me. First, it should compensate for my damage. Can’t privileges be granted to the state? They can. They already exist. For example, you cannot directly initiate enforcement without a judgment against the state. What do you need to do? You need to file a lawsuit first, right? Fine, say that, say, “Don’t do this hastily against the state.” Or say, “Warn the state before proceeding to seizure.” Look, I can accept that. The enforcement becomes final, but if you can proceed directly to seizure for others, then for the state, say, “I will come to seize your property in a month.” At least let it put money in its budget, set aside an emergency fund, do something, pay this money. But the rule “state property cannot be seized” is not a correct rule.
Secondly, why does the state have priority? For example, why does tax have priority? The state should collect its taxes on time and properly. It shouldn’t grant amnesties, it shouldn’t do other things, this and that shouldn’t happen. Another point, of course, the state will and should have privileges because it protects the public interest. But this should be the case: in my opinion, we should not have separate laws. For example, the state does not collect from a bankrupt person according to Law No. 6183; it still collects according to bankruptcy provisions, right? So, it’s a partner in collective enforcement. In individual enforcement, we can do this: we can conduct the enforcement within a single law system. If necessary, a separate enforcement office can handle these matters. For example, in Izmir, Istanbul, Ankara, you can establish a separate enforcement office to collect state receivables. One. Second, you can include some special features there. However, a system like Law No. 6183, where the tax office carries out the assessment procedures upstairs and the collection downstairs under the same director, and then places a lien on my assets electronically without my knowledge, is, in my opinion, not in line with the state’s principles of justice, mercy, and equality. It should be regulated in a single law, some special regulations concerning the state should be made, but this measure should not be overstepped. In short, that’s what I would say. As I said, if you ask me, “What should we do, professor?” there are many technical details I could tell you.
RUMEYSA SAMSA:
Specifically, to attract foreign investors to Türkiye and to improve our country’s position in the international investment environment, especially our ranking in headings like “Enforcing Contracts” and “Resolving Insolvency” in the World Bank’s “Doing Business” index, what kind of changes should be made to the Enforcement and Bankruptcy Law?
MUHAMMET ÖZEKES:
Now, this has both a general and a specific aspect. First is this: Türkiye is among the world’s top 20 economies. Türkiye should be among the top 10 economies today. So why are we not there? This has a more general problem before the Enforcement and Bankruptcy Law. If you rank 17th in terms of economic size but are in the hundreds in international rule of law indexes, you have a general legal problem. You need to give foreign investors serious confidence not just with the Enforcement and Bankruptcy Law, but with your legal system and the functioning of your legal system as a whole.
Türkiye does not have a serious problem with its technical legal regulations today. That is, the Turkish Penal Code, the Turkish Civil Code, the Turkish Commercial Code... The procedural laws, our regulations regarding international arbitration, have no deficiencies. In fact, I can claim that in terms of some substantive law rules and procedural rules, we are ahead of many countries. So, what is our problem? Half of the problems we are talking about are related to implementation. It’s written in the law, all the books write it, you don’t need to bring something down from space. “It will, it should supervise the good faith rule.” The Public Oversight and Auditing Board needs to look at these reports. It doesn’t. You know in those cartoons where a fist comes out of the book and punches someone, sometimes, the lawmaker is not going to do that. Therefore, first, Türkiye needs to elevate its own legal system and legal practice to the standards of a state of law and raise its reliability indexes in law. We don’t have a law problem; we have a lawyer problem and a problem related to law.
Second, there are these investment indexes in the world, and we are lagging behind in those too. For this to happen, we need to give foreign investors this assurance—we cannot do this with special regulations for investors in the Enforcement and Bankruptcy Law: “When I invest in Türkiye, if I am wronged, I can collect my debt, sometimes even if it’s a bit late. There will be no privileges, no discrimination, the law will function fully and correctly.” What is the way to do this? The way is a functioning, proper, well-defined, simple—not getting into these 15-20 intricate enforcement paths—a straightforward, simple Enforcement and Bankruptcy Law, or rather, let me say a law of enforcement in a broader sense. Second is its proper implementation. Third is its supervision at the appellate and cassation stages. Fourth is that the executive, meaning the Ministry of Justice, should continuously supervise and monitor this as an executive function and provide its guarantee, and not make unnecessary interventions.
Otherwise, there are already special regulations protecting foreign investors, but let’s say you put special protective provisions in the Capital Markets Law, our Competition Law, our Company Law. But if they can’t collect their debt, won’t this person come and initiate enforcement proceedings in Türkiye? They will. And won’t they face the same fate as you and I? They will. You also deal with foreign clients. If you postpone a hearing for 6 months, if you don’t apply for a precautionary attachment when the person has assets, if you do and you block their bank account without notice, if you seize assets worth 10,000 for a 1,000 debt, will anyone come and invest here? They won’t in this environment of distrust. It is a specific reflection of a general problem.
RUMEYSA SAMSA:
How can the complex processes in non-judgmental enforcement, such as objection to debt, annulment of objection, removal of objection, and action for negative declaratory judgment, be simplified? Has a clearer roadmap been drawn to resolve the problems arising from the division of duties between enforcement courts and general courts?
MUHAMMET ÖZEKES:
A very good question. In fact, in Professor Baki’s past books, there is a title: “On the Unnecessity of the Institution of Removal of Objection.” Now, let me tell you another simple story. I initiated an enforcement action against you based on an ordinary promissory note. You took the note, the photocopy of the note, and saw that the signature was not yours, so you objected to the signature. What can the creditor do? They may apply to the enforcement court to request a provisional lifting of the debtor’s objection. Let’s say they did so, and the court determined that the signature was indeed theirs. And let’s say they succeeded, the signature was found to be yours in the examination at the enforcement court. Great. What will happen? You will have to pay your debt, and on top of that, you will pay a 20-percent-compensation and a 10-percent-fine, right? So, it’s up to fifty percent, besides the interest. But is it immediate? No. A lien will be placed on you; what do we call that? A provisional attachment. What is the feature of a provisional attachment? It does not allow for a sale. So, when will this provisional attachment become final? We turn to the debtor and say, “Look, you lost the provisional objection in the enforcement court, but we are giving you a chance to file an action for release from debt.” We have given it a special name, look, even the names are confusing, “action for release from debt.” What is the feature of an action to contest the debt? The debtor says, “Yes, although enforcement was initiated against me and a provisional removal decision was given, this signature is not actually mine, I will prove in the general court that I am not the debtor.” What kind of lawsuit is this actually? A negative declaratory judgment, right? Look, the name of the negative declaratory judgment has also changed. In what period do I have to file this? I have to file it within 7 days. If I don’t, what does the provisional attachment turn into? A final attachment. If I do file it, I wait until the end of that lawsuit.
There is already a court here, the enforcement court; why did it examine it? If you don’t trust it, then tell the debtor, “Brother, give me a proper document.” Is there any point in making it so difficult? And who do you expect to do this? An ordinary citizen, without a lawyer. In such a system, a citizen would get lost in this enforcement system, in the enforcement office, and in the court. Remember, representation by a lawyer is not mandatory. You are doing this within this system.
What should happen? What should happen is this: we need to abandon this system of enforcement without a judgment. “But professor, you say we should abandon the system of enforcement without a judgment, but one person might have a debt of 10 million, another 20 million, and another 1 million. Okay, we said go file a lawsuit for a 1 million debt, but should this also be the case for 10,000 TL, 20,000 TL?” It shouldn’t. Enforcement courts should conduct a sort of preliminary judicial review to allow for enforcement. I have a claim of 10,000 TL; I should go to the enforcement court. It should review it, and within a month, in a single hearing, it should review and make a decision, saying, “You can initiate enforcement for this.” In German law, there is something similar, “Mahnverfahren.” It’s not exactly what I’m proposing, but the logic is similar. After that, you shouldn’t have to deal with this anymore. You should set claim limits. For example, what could it be? Twice the minimum wage.
Let me tell you something else we don’t have, opening another parenthesis: if you were to file a lawsuit for a 10,000 TL claim today, where would you normally file it? At the Court of First Instance, right? What trial procedure is applied at the Court of First Instance? The written procedure. For 10,000 TL, there’s a statement of claim, a statement of defense, a reply, a rejoinder, a preliminary examination... The preliminary examination alone takes at least 4-5 months to happen. Look, it should normally happen, but is it worth going through all this for 10,000 TL? But there’s another interesting side to it: in Commercial Courts of First Instance, there is a limit for applying the simple trial procedure. What is it now? It should be 550,000 TL. I was a member of the Code of Civil Procedure Commission, and I insisted a lot back then, I wrote it, and I still write it. I also told Professor Dr. Selçuk Öztek, the Chairman of the current Enforcement and Bankruptcy Law Commission, “If a good deed is to be done, we need to adopt a separate, simple method for the collection of small claims in our Enforcement and Bankruptcy Law.”
“So, what should be done, professor?” It should be like this: a distinction should be made regarding claims. The measure could be 50,000 TL, you could say 2 minimum wages, you could say something. In such cases, one should go to the enforcement court. My suggestion is that the enforcement court should summon both the creditor and the debtor and say, “Bring your documents and information within a month. If I am going to hold a hearing, it will be on this date, I will listen to both of you, if you have witnesses, bring them with you.” It will listen at that hearing and make a decision. It will not prolong the matter. After the decision is made, you will take the decision, go, and put it into enforcement. After that, there will be no objections or anything else. “But professor...” There is no “but professor.” It shouldn’t be without documents, without information. Otherwise, would it be right to say, “If you have these documents, go for the removal of objection; if not, request the annulment of objection. Especially if you are a bank, a credit institution, and if you do these things, you have an advantage over others”?
In the Turkish legal system, is it possible for someone to be a creditor based on a document they prepared themselves? In principle, no. But banks, according to Articles 68/b and 150/ı, become creditors if the documents and notices they issue themselves become final within a certain period. Why? The bank has a larger organization, a Legal Counsel’s Office, right, a law firm, money, resources. If you are going to do this, do it for the citizen. Why does the bank do it? The bank should go and collect its debt properly, take security, do whatever. Why are we dealing with these things?
Therefore, there is a solution for this too. We will separate small claims. For large claims, we will conduct a proper trial. We will follow a method for enforcement with a judgment. As I said just now, there is a problem with our Commercial Code. Look, when the Turkish Commercial Code was first enacted, the new one, it was desired that businesses’ accounting be kept with an accounting system compliant with world standards, and it was difficult for that accounting system to have leaks. The receivables and debts had to be real, subject to certain limitations. But with political and economic pressure, those provisions in the Commercial Code were removed. When that happened, you sometimes cannot determine whether the receivables and debts of businesses are real. There is a difficulty brought by that as well, let me just say that much.
RUMEYSA SAMSA:
How can technology be utilized to speed up the enforcement process? Do you have suggestions like blockchain-based seizure records or AI-supported asset investigation? Also, how should the cost of these systems and the issue of legal fees be balanced?
MUHAMMET ÖZEKES:
Let’s start with the legal fees. If you ask me, one of the first laws that need to be changed in Türkiye is the Law on Legal Fees. But since legal fees concern the Ministry of Finance, nobody really touches it. There’s a famous quote from a former minister, he was either the Minister of Finance or a Minister of State, I don’t remember, Kürşat Tüzmen. He used to say, “At home, you get along with your mother-in-law, and in the Council of Ministers, with the Minister of Finance.” Now, nobody touches the Law on Legal Fees, but we have an outdated Law on Legal Fees. Let me tell you this: for instance, if I file a lawsuit in a first-instance court, you have to sit and think, is it proportional fee or fixed fee, on what rate will I pay... Okay, fine. The case is partially dismissed, partially accepted. How this fee will be completed, who will be charged by it, is a separate problem. How much will the fee be refunded... For example, I went to the appellate court; will I pay a fee again, or who will be responsible for this? That’s another problem. If the appeal is dismissed on the merits or on procedural grounds, or if the appeal is accepted and a judgment is passed, which fee will you pay? You already paid a fee at the beginning. Now you will pay a fee here too. A problem. You went to the Court of Cassation, a new fee... May there be such a confusing system? At every stage, every stage, every stage... You pay a fee at the beginning, and you proceed. When the judgment becomes final, you charge it to whoever was ultimately found to be in the wrong.
I pay a fee at first instance, a fee at the appellate level, a fee at the Supreme Court. A lot of fees while claiming rights... And the amounts are not little; those 0.68 percent figures are serious in some cases. Therefore, this fee system and its rates need to be reviewed. Look, what will be collected in which situations need to be reviewed, and the Law on Legal Fees must be reviewed, its system must be reconsidered. In my opinion, the first law to be revised in Türkiye is the Law on Legal Fees. Notice, many of our problems related to litigation arise from this. For example, we initiate an enforcement action, we reach an agreement, and we leave the action abandoned. Why? To avoid paying fees, right? We make a payment, but not through the enforcement office; we pay it externally. Why? To avoid paying fees. Doesn’t it? You agree in a lawsuit, you reach conciliation, but you prepare some documents and information externally, and then that leads to other problems. Why? To avoid paying fees. In fact, this fee issue also paves the way for people to make agreements through different methods outside the law. I’m not saying this in a positive sense, of course. Parties conciliate, so there is no problem. However, it also leads to a loss of fee revenue for the state. This needs to change. In cases like this, the problem should be sorted for a much lower fee. For instance, sometimes there are bigger discounts on attorney fees, but the state isn’t willing to make many concessions. However, justice is the state’s main responsibility, so insisting on collecting money isn’t very reasonable.
Let’s move on to the second point: How should the fee calculation be? Of course, it can be automated, or for example, judges don’t need to deal with fee calculations. It’s like that in some countries. There is a Latin saying: “The judge does not take account of trifling matters” We make the judge deal with trifling matters. “But professor, how would that work?” It would work like this: The judge rules on who is right, who is wrong, who is owed how much, and who owes how much. Then, after giving this ruling, the clerk’s office, and now there is judge assistance system also, sits down and calculates this separately under the sentence. This exists in other systems. Now, if you have an objection to that calculation, you take it to the judge and say, “Your clerk’s office made a fee calculation based on your decision, but there is a flaw here,” then you take it to the judge on appeal. But we shouldn’t bother the court with fees and such. Of course, here too, you can use artificial intelligence and the electronic infrastructure within the framework of today’s current developments. However, perhaps you will ask later, let me tell you again, I am of the opinion that we should approach this artificial intelligence issue gradually, with caution, and continue to operate it under human control for a while longer. As you know, there is this recent convention of the European Union, which says, “The judicial system will not leave the decision-making mechanism to artificial intelligence.” It can be part of it, but in any case, it should be done this way. Our UYAP system in this regard — although it has had some problems recently — is a system I have supported from the beginning. It needs to be corrected, it needs to be improved, criticisms must be considered, but the UYAP system is at least one of the systems that can be a reference in the world.
But UYAP has a problem: we are faced with a “His Holiness UYAP.” UYAP makes the decision that the judge should make. I submit a petition, UYAP says, “This subject has case condition as mediation.” I say, “Look, I am a good lawyer, I am a professor of Civil Procedure Law, this subject doesn’t have case condition as mediation.” It says, “You cannot proceed unless you explain.” Can there be such a ridiculous thing? In this situation, there should be a judge on duty or someone I can explain my problem to. The judge has delegated judicial authority to UYAP. This is not acceptable. It’s not possible for this to happen. There should be a system where the enforcement office can immediately intervene when there is a problem with the fee penalty there. We have closed these off. We cannot supervise, we cannot correct. Or for example, in some countries, yes, there is electronic sale, but it is a supervised electronic sale. In some cases, some discretion is left to the enforcement office. It has been said, “In this case, a manual, normal sale is a safer, more bargaining-enhancing, more secure method.” But let me say this, these technological developments must be utilized within the system. In fact, it might even be necessary to say it is mandatory under these conditions.
ÖZNUR ÖZHAN EKİNCİ:
We use AI-based systems in our law firm. We can quickly calculate data such as the financial risk that may arise from a lawsuit’s outcome. This speeds up our work and reduces the margin of error.
MUHAMMET ÖZEKES:
Yes, it is essential to benefit from such technologies. But let me always say this, since artificial intelligence is still not at the desired level, for example, AI can generate decisions on its own. Recently, a friend brought a draft article he had created; it had cited a view of mine that I do not hold; and this was one of the advanced AI forms. You turn to the AI and say, “Brother, there is no such decision.” It says, “I apologize,” and “Thank you for your help.” Now, it’s beneficial to keep this under supervision for a while longer, but we must also benefit from these forms. We shouldn’t exclude them. I mean, saying “let’s not do it, let’s do everything manually” in this day and age is irrational and unscientific, but I believe in the necessity of doing it in a controlled and supervised manner. And in any case, you need to make a way for it. If this is not available, how will I explain my problem to the judge? I won’t say it now, but recently there was a very interesting provision in the Enforcement and Bankruptcy Law Regulation, we made a request based on it, but there is no system for it in UYAP. We couldn’t explain our problem. It takes plenty of effort in these situations. This is not acceptable. Therefore, it should be approached with caution, but it must be utilized.
RUMEYSA SAMSA:
What solutions do you propose to concretize subjective elements in fraudulent conveyance actions, such as the gross disparity between considerations and the debtor’s state of insolvency?
MUHAMMET ÖZEKES:
First, the question is: should there even be an action for the annulment of a disposition (fraudulent conveyance)? We need to start with that question. Because the action for annulment of a disposition is a lawsuit that protects the creditor against an imprudent or malicious debtor. An imprudent debtor, for example, has debts but is giving away gifts left and right. I’m giving an example; this is imprudence. Or they have debts and are transferring assets; this is malicious intent. Well, if that’s the case, it’s collusion. Is it necessary to annul a disposition? Of course, one might think that this is impossible given years of habit; however, the case for fraudulent conveyance has already degenerated, with allegations of collusion, false names, lifting the veil, etc. being raised within the same case. The Constitutional Court has, as you know, annulled many provisions. There, for example, “if I transfer property to my spouse...” well, my spouse can be a merchant, I can be a merchant, we can both have companies. I’m going to sell the property; who should I sell it to? Instead of selling it to a stranger, it’s a real transfer of resources from one company to another, but you can’t prove the contrary. The Constitutional Court annulled these.
Therefore, first, an answer should be sought to the question, “Should there be an action for annulment of a disposition?” Second, an answer should be sought to the question, “If so, how should it be?” And third, the real problem here is more about implementation than regulations. Look, we are facing such an absurd situation, and the Court of Cassation allows it. I file a lawsuit, I haven’t been able to collect my debt, the debtor has entered into a relationship with a third party, but it could also be a real relationship. They really bought goods, sold goods. I explain and explain, and in the end, I say, “I request a verdict based on collusion, annulment of disposition, pseudonym, fiducia, piercing the corporate veil.” All of these are in the same form. And the Court of Cassation says, “That’s fine.” Now look, the action for annulment of a disposition has statutes of limitation, right? A maximum of 5 years. But collusion has no time limit; it’s not subject to a statute of limitations. Is it the same lawsuit? In the annulment of a disposition, are there some evidentiary advantages? Yes. In collusion, proof is established differently. For piercing the corporate veil, there must first be another judicial decision. For pseudonyms and fiducia, there is a long-standing precedent from the Court of Cassation, from the past, that they “can be proven with a written document.” Now I am the debtor; how am I supposed to defend myself? If it’s an action for annulment of a disposition, I might say, “5 years have passed.” But if it’s collusion, I will prepare my defense accordingly. But the Court of Cassation says, “This is acceptable.” Could there be such a complex case that pushes the boundaries? No. In addition, as you have also encountered, there is a fantasy of an “organic link” in practice. Now, a lawyer enters a business, and let’s say the debtor had issued an invoice 5 years ago to the person they are trying to connect with, they happen to find a business card, and from this, they try to invent an organic link. Asset management companies are particularly aggressive in this regard. A procedure completely contrary to the law was carried out, and based on this, precautionary attachment orders were issued. These need to be reviewed. So, some of our problems are actually solved by precedent. Look, the problem I just mentioned can be solved by the Court of Cassation’s precedents. The issue of recovery of property, the issue of organic link, and others. However, the Court of Cassation does not choose to do so.
Or think of it this way: while our law still has the logic that “the ox of someone who has a pair of oxen cannot be seized,” when it is debatable whether a tractor can be seized... Can there be such an irrational thing? It’s like fighting with a sword against an army that fights with artificial intelligence. Are there any oxen left? All of these need to change. Therefore, the first question: “Should there be an action for annulment of a disposition?” Second: “Should it be like this?” Third: “How should the link between the institutions that can be mentioned together with the annulment of a disposition and the link related to stability be established?” It needs to be reviewed in terms of both regulation and implementation.
RUMEYSA SAMSA:
In the sale of seized property, what can be done to prevent delays caused by the objection to appraisal processes and to speed up the sale process?
MUHAMMET ÖZEKES:
If you structure the enforcement correctly from the beginning, finalize the credit, and properly record the debtor’s assets, you won’t encounter these problems. Many of these problems are connected to other underlying issues. We are an unregistered society, we don’t like to get registered, and we think there will be issues when we’ve got registered. People’s addresses are sometimes unknown, their assets are unknown, this and that are unknown. It is possible to apply repeatedly through complaints and objections to the same thing. For example, the Court of Cassations has decisions that are quite established but also have many exceptions. It says, “You cannot later make something a reason for the annulment of the auction if you could have made it the subject of a complaint before,” but there are many exceptions to this. Now, when you look, an objection was made to the appraisal in time, it was rejected, but if you turn around and accept this as a reason for the annulment of the auction, of course, it will be delayed. Or there are factors affecting the value, the parties did not raise them in time, and if they raise them later, there is a situation of bad faith. First, we need to get rid of these. Also, we have made the sale electronically, but I mentioned my reservations earlier, and those reservations are also valid here. Or, for example, the debtor also has the authority to sell their own property, if the creditor requests it. But we are faced with such an inequality or irrationality: I say, “I will sell my own property.” The law says, “Then you have to bring me 9 million if the estimated value is, say, 10 million.” It must cover ninety percent. But if my property is sold at public auction, it’s fine even if you collect 5 million. The property is the same property, the logic is the same logic. If this property is really to be sold anyway, why do you say ninety percent when I sell it, but fifty percent for the other? No sane person, unless they are in a major crisis, would sell their property at 50% of its value. They wouldn’t. In fact, if you sell your property at 50% of its value, it becomes a cause for the annulment of the disposition; there’s that side of it too. There is no rational explanation for this. “What can we do, brother? The debtor hasn’t paid their debt, it couldn’t be sold.” Is the way to sell it off at a fire sale price? We need to think of another solution.
Remember this too: the creditor-debtor relationship is matter of trust. If I am lending you money, selling you goods, I am doing it based on trust. If I don’t trust you, I wouldn’t do it with you; I’d do it with Mr. Mehmet Han. So, if I trusted you, I did trust you. The law, the lawmaker, says, “If you want, you can also take collateral, if you want, you can take a promissory note, if you want, a guarantee...” I haven’t taken any. Then to say, “I can’t collect my debt, so let’s sell the debtor’s property for fifty percent of its value” is not a very righteous thing to do. And don’t forget, debtors don’t always fail to pay their debts in malicious intent—yes, in our current practice, there is indeed malicious intent, a violation of the good faith rule—but debtors don’t always fail to pay their debts maliciously. They are unable to pay. Especially in times of economic crisis like now, when there are bottlenecks, if payments are delayed in one place, this chain reaction continues. Sometimes they have assets but cannot sell them. At that moment, they say, “I have a lot of assets, I’m trying to liquidate them, there’s an economic crisis, I can’t sell.” And for this, for example, in foreign legal systems, there are types of bankruptcy we would call “consumer bankruptcy.” These need to be considered within the system. Now, not to digress too much, but at least in this electronic sale, despite its certain positive aspects, the aspects I criticized should also be kept in mind. The issue regarding appraisal should, in my opinion, definitely be reviewed in this framework in the new regulation to be made. This matter needs to be finalized at some point; it shouldn’t be dragged on like a never-ending story. But for that, we need to become a registered and recorded society. In addition to these, your judgment must be sound, and your expert witness must do a good job. When you cannot rely on these, the process drags on and on.
RUMEYSA SAMSA:
In the coming period, what kind of developments do you foresee aimed at keeping the debtor afloat, and where does Türkiye stand in these developments?
MUHAMMET ÖZEKES:
My expectation is that there will not be a major change in our collective enforcement system and that we will continue with this outdated Swiss system. This is not a fact, it is a prediction. I hope I will be mistaken. However, unless you improve the economy, social ethics, and respect for the law in Türkiye, no Enforcement and Bankruptcy Law will be a solution on its own. We tried postponement of bankruptcy; we couldn’t solve it. We changed the concordat; we couldn’t solve it. Because the system itself is wrong. As long as you don’t set the strategy correctly, tactics will not work. We have a structure that does not conform to systems like the German Insolvenz or the American Chapter 11, a structure unique to us that ignores global developments. It will not be possible for us to achieve results this way. Here, we should examine all these systems, identify the problems we have, and, if necessary, work on a system specific to us. However, this requires collective wisdom, bringing together those who are knowledgeable, thinking things through, moving away from the “let’s just do it” mentality, and not saying that we should not touch existing interests.
RUMEYSA SAMSA:
If the law comes into effect soon, what would be a healthy transition process for pending enforcement files?
MUHAMMET ÖZEKES:
What will happen? This is also a very good question. First, let me tell you this: I am of the opinion that this law cannot come into effect very quickly. For one, there is no draft law yet. Second, we are approaching the budget law period, as you know. Until the New Year, nothing other than the budget law is discussed in Parliament. And I suppose when this law comes to the agenda, it should be discussed for at least 6 months, which they didn’t do at the beginning, so they should do it now. If they are going to do a serious study, they need to create a discussion platform for at least 4-6 months. For example, if none of what I said happens, I, from my perspective, couldn’t open the law and say, “Well, this won’t work.” Banks couldn’t say it, chambers of commerce couldn’t say it, unions couldn’t say it, bar associations couldn’t say it, law faculties couldn’t say it, nobody could say it. Okay, people like me have a certain accumulation of knowledge because we work specifically on this subject, and we can react quickly. I mean, if I set my mind to it, I could write an opinion on this law in two weeks. But not everyone has the same knowledge as me because I am an expert in this field and I work specifically on it. Therefore, if a serious law is to be made, there should be a discussion period of no less than 6 months.
Now let’s come to the transition provisions. The transitional provisions of this law must be prepared properly. Look, recently, as you know, there was a law change regarding the limit for applying to the primary appellate court and the secondary appellate court, upon a Constitutional Court decision. As soon as the change took effect, I posted on social media: “What will happen to the existing files?” Because there is a very fundamental rule in procedure: “Without affecting completed transactions...” Now, there are decisions made before June 4th but whose reasoning has not yet been written; what will happen to them? Will we take the date the lawsuit was filed as the basis or the date of the judgment? It started to be debated. Now some courts decide on one way, some decide on another. The General Assembly of Civil Chambers of the Court of Cassation made a decision. The theoretical and procedural law aspect and the scope of the current regulation, and also the individual application decisions of the Constitutional Court, conflict with each other. The Constitutional Court’s decision on this matter is wrong. Let me state that I find it wrong both in terms of the right to seek justice and in terms of procedure... It’s wrong, but you have to comply with it. If you make a decision in accordance with procedure, you will be acting contrary to the Constitutional Court’s decision. If you say you will comply with the Constitutional Court’s decision, you will turn the procedural rules upside down. So, what should have been done? A transitional provision should have been included. Because the law was passed hastily and without consulting anyone... If they had told us, if they had asked, not me, but at least if they had shared this with the public, we would have expressed our opinion in this way, and it could have been said, “Oh, there is such a risk.” Since it wasn’t said, look, we will be dealing with this for a while. It will take a certain amount of time to resolve this. However, a simple transitional provision, right or wrong, would solve it.
That’s why in the Enforcement and Bankruptcy Law, if an enforcement path has changed, a transitional provision must be included according to the stages of that enforcement path. For example, I started with enforcement without a judgment, but they said, “From now on, there will be no enforcement without a judgment; there will be a document-based enforcement without a judgment.” What will happen to my enforcement action? I have started the sale; what will happen to the ongoing sale? Or let’s say they abolished an enforcement path. It is said that “enforcement by seizure specific to negotiable instruments will be abolished.” I don’t know; I’m not saying this based on information. Let’s say it was abolished, and I have negotiable instruments that I acquired relying on this; what will happen? Otherwise, I would have gotten something else, right? Banks currently have a lot of negotiable instruments; what will happen to them now? If I have acquired a note when the law was enacted, or you made a change regarding a pledge, the enforcement path... What will happen to the existing pledges? Will it apply to future pledges? The transitional provisions need to be prepared with care, with seriousness, considering all possibilities. If you don’t, so many people will be hurt, you can’t even imagine. Let me share this with you: after the Republic, in 1929, we abandoned our Ottoman-era enforcement system and adopted a new law. 1929. That law’s life only lasted 3 years; in 1932, we had to adopt a new law again. If you don’t do this one properly, its life won’t even last that long. Let me put it that way.
Let me tell you one last thing about enforcement law. Habscheid has a very beautiful saying. He says: “A field of law whose technical part is neglected and not taken seriously, which fails to produce results -and Enforcement and Bankruptcy Law is at the forefront of these- resembles a weapon that does not fire, does not function properly, and is useless when needed. A field of law whose ethical and values part is neglected resembles a dangerous weapon that fires unjustly, unfairly, and unconscionably in all directions.” When you cannot establish a balance in enforcement law, it turns into a weapon you carry in your pocket but is useless when it should save a life, or a weapon that fires in all directions and kills innocents. In our Enforcement and Bankruptcy Law, both currently exist.
III. CIVIL JURISDICTION IN THE DIGITAL AGE
RUMEYSA SAMSA:
Thank you. Now we would like to talk about your book “Civil Jurisdiction in the Digital Age” and digitalization.
MEHMET HAN YILDIRIM:
Before getting into the content of the book, I would like to touch on a detail on its cover: at the bottom of the cover, the phrase “A View from 2022” appears. This conveys a sense of caution. Of course, considering the speed and sometimes unpredictability of digitalization, perhaps one of the areas where this cautious approach is most necessary is work containing predictions about digitalization. In this respect, could we call it an appropriate state of caution? What do you think?
MUHAMMET ÖZEKES:
Well, of course. To be frank, I added that to the title at the last moment. The reason was this: we make some determinations, some of which are generally valid, that is universal and will always be valid, timeless things. You know, some legal opinions are like classic works of art. But some of what we say today is from today’s perspective... For example, we make a criticism about artificial intelligence, related to today’s perspective. Maybe we will be wrong in the future. We might say, “We went too far on this subject; we shouldn’t have attributed so much meaning to artificial intelligence.” Or we might say, “No, we need to speed up even more.” That’s why “A View from 2022” might change a bit from a 2025 perspective. In 2030, 2050, maybe there won’t even be a need for that book, or someone might say, “They wrote such a book, those people told the truth. I wish what was written here had been done.” That could also happen; everything is possible.
RUMEYSA SAMSA:
So, if you were looking from 2025, what changes would you want to make in this book?
MUHAMMET ÖZEKES:
Not much has changed from 2022 to 2025. In fact, on some issues, if I had spoken then, it might have needed to be a bit more cautious. For example, I had made a three-part distinction there. I believe a distinction needs to be made on this subject: First, for daily, ordinary, more manual and mechanical tasks, we must use artificial intelligence and the electronic environment. Things like filing a lawsuit from your seat, paying the fee, performing a transaction, sending a document, etc. Second, for transactions that do not directly make the decision but influence it, we should still use electronic means but be a bit cautious. Things that constitute a decision-making mechanism must be under human control, and indeed, in this recent convention related to the European Union, a similar approach was displayed. Let me put it that way.
RUMEYSA SAMSA:
In your book, you mention that there should be a “human scent” in decisions. Walter Benjamin says that a work of art loses its “aura” with mechanical reproduction. A physical courtroom has its own unique gravity, seriousness, and “aura.” In your opinion, do e-hearings and the digitalizing judiciary destroy this symbolic “aura,” turning the administration of justice into an ordinary administrative/judicial process?
MUHAMMET ÖZEKES:
This question is righteous. For example, we need to abandon the old habit of publicity. We need to reconsider some things. We need to ask the question, “Does it need to be public?” For example, in a divorce case between two people, if both parties are divorcing by agreement without any pressure, would they want their dirty laundry, issues related to their child, and their property issues to be discussed in front of everyone? Why should a divorce case be public? Yes, publicity provides a guarantee. Against pressure... both from the judge and on the judge. But if the judge understands: “Both spouses are mature, educated, no one is pressuring anyone, there is no external pressure, both say ‘let it be held in private’,” or if one of the parties says, “From my perspective, there is this drawback, let it be held in private,” or in a commercial case where trade secrets are discussed, we haven’t been able to resolve our issue, we couldn’t resolve it in mediation, we say “let the court decide,” but I don’t want my trade secrets to be discussed in front of everyone. Therefore, we need to reconsider this publicity.
New advances in this area save us from the burden of unnecessary hearings. For example, is it meaningful to wait for two hours outside a courtroom door just to hear the words, “The plaintiff’s counsel is present, the defendant’s counsel is present. The public hearing has commenced. As the expert report has not yet arrived...”? That decision shouldn’t even exist. The judge shouldn’t set a hearing date before the expert report arrives; they should conduct the preliminary examination properly. If those things are done, these irregular hearings will not happen; I’m not even getting into that. But it saves us from the burden of such technical, unnecessary hearings intended for an objection.
However, in my opinion, the most crucial part of the trial, for example, where important witnesses are heard, a party is examined, or the oral argument phase after the judgment, especially if one of the parties insists for some reason, must be live. Otherwise, that aura is lost. During a recent trip, my wife said the following about something we saw and filmed: “No matter what video it is, it is impossible for it to reflect what I am feeling right now and the atmosphere here.” That’s what we call the aura. Appearing in court is a judicial tradition. It makes the lawyer feel like a lawyer, the judge feels like a judge, and the citizens feel that justice is being served somewhere, that someone understands and listens to them. Plus, when considered within the context of the forgeries that are emerging these days, we are talking about a society in a country like Türkiye that has not yet fully matured its socioeconomic and educational conditions. Look, let me give you another simple example: when we adopted the law from Switzerland, when the enforcement became final, the enforcement officer had to write to the debtor and say, “We will come to seize your property on this day, at this time, be informed.” That provision still exists in Switzerland. But we removed this provision after a while. Why? Because after the enforcement became final, when I wrote to you, “We are coming to seize, be informed,” our debtor understood it as: “I am coming to seize, run!” But it still exists in Switzerland. Because a Swiss person would understand it as: “Yes, I cannot pay, at least let me tidy up the house. So that nothing unpleasant is encountered, I should even prepare the assets to be seized if necessary, put any cash in the safe out in the open, separate the goods to be taken from the others, be at home, so at least there is no fait accompli, and things aren’t turned upside down.” There are also provisions regarding objections in Switzerland, but not as many as in our country; for example, there is no objection to a signature. Because a Swiss person thinks: “Well, if the signature is mine, why would I object?” But in our country, objections are made just to gain time. I’m not saying everyone does it, but this is a reality.
E-hearings will perhaps save us from the burden of unnecessary hearings, and ease our unnecessary procedures, but I still think it is important for hearings to be held, for the judge to sit there, for the judge to look into the eyes of the parties, for the judge in a family case to act justly in a way that consoles the child, to be able to say to the spouses, “Yes, you are divorcing, but...”, to draw a line within the framework of the law for a debtor or creditor in a painful situation, and to be able to explain your problem. Otherwise, justice is not a mechanical thing. Look, law is a mechanical thing; justice is not a mechanical thing. We can define right, we can define law, but we cannot define justice. For justice, some say it is “like a pole star,” others “a state of balance,” etc., but there are definitions for right and law. But not for justice. Why? Because our Constitution says, “Judges shall render their decisions in accordance with the Constitution, the law, and jurisprudence, based on their conscientious conviction,” right? It is that conscience, and if you ask, “what is conscience?” someone might say, “There is no such thing as conscience, brother, where did you invent it from?” but it has entered the Constitution. It is in that conscience that justice is manifested.
RUMEYSA SAMSA:
While centralized digital infrastructures like UYAP increase efficiency, do they also carry the risk of the executive body establishing indirect control and surveillance over the judiciary body?
MUHAMMET ÖZEKES:
It carries a very big risk. UYAP is under the control of the Ministry of Justice. I have long argued this: yes, the Ministry of Justice should provide the technical infrastructure, but this should be carried out under an independent judicial authority, that is, a kind of Council of Judges and Prosecutors, or like the Presidency of the Court of Cassation, the Presidency of the Council of State, an independent, judicial authority... Why? For two reasons: there is no guarantee that there will be no external interference. When there is interference, am I going to explain my problem to the executive body? Let me tell you this much: under whose supervision is a court’s clerk’s office? The judge’s, right? But UYAP, which can be considered its extension, is under whose supervision? The Ministry’s. When they say UYAP is down, the entire judicial system stops, even the judge is helpless. UYAP is such that it even dictates to the judge. Whereas at that moment, I have an urgent matter, I need to take a precautionary measure, I need to object to a measure, an urgent, critical situation. I go to the court, the clerk says, “UYAP is not working.” I go to the judge, he says, “I’m sorry, we can’t access UYAP right now.” Whereas at that moment, even without UYAP, you should be able to find a solution to my problem with manual methods. Or in the examples I gave earlier, if there is no option in UYAP, I cannot perform the transaction. There is a concept called the right to seek justice. They will tell me, “There’s no click in UYAP.” This is not... This is not Facebook, this is not Instagram. If you say, “Brother, here you can only place a picture according to Instagram’s format,” what is the difference between social media and UYAP then? Social media dictates to me that way, and UYAP dictates to me that way. So, what is its value? It’s not acceptable.
In my opinion, UYAP must be seriously backed up -which is being done- and seriously protected -which, as far as I know, is also being done. Despite all my criticisms, I think UYAP is important for Türkiye, it should be protected, and we should all support it because I know where we have come from. If we didn’t have UYAP today, we would perhaps be paying millions of dollars to use the infrastructures of other countries. It is one of the most successful judicial systems in the world, perhaps the most successful, let me also say that, so general, so widespread. But in recent years, for some reason I don’t know, it has started to have too many defects. This needs to be rethought. But it must be run under an independent judicial authority, with the infrastructure and technical support of UYAP being provided by the Ministry, but run under an independent judicial authority, and I believe some aspects should also be generalized. A good question, let me also say that. It was a topic that I perhaps haven’t had the chance to mention in many places, very rarely, sometimes asked and brought up in a meeting. So, it’s a good question, that should be mentioned too.
ÖZNUR ÖZHAN EKİNCİ:
Professor, one of the most common problems we face in practice is UYAP crashing. It could be a last-day petition or a lawsuit to be filed; UYAP works without a problem until 5 p.m., but when we are left until after 5 p.m., say at 7 p.m., boom, UYAP is gone. This situation creates great stress for both the client and the lawyer.
MUHAMMET ÖZEKES:
First, am I, as someone seeking justice, supposed to experience that anxiety? You tell me, “By this evening...” You will keep your system open. But everything man-made will inevitably have defects. The power might go out, it might rain, or there might be an earthquake. There must be a solution to this. For example, in the past, without UYAP, with UYAP-like systems, without artificial intelligence, could you file a lawsuit in some countries until midnight? Yes, how was it done? In some places, they set up this system: Are you going manually? There is a stamp and date lever, it’s outside, and the stamp is inside. You insert the petition just enough for a piece of paper to fit, you pull that lever, a stamp is placed on it, and you drop it in. You also take a copy for yourself. The official who comes in the morning processes it. The people who did that back then had thought and set it up this way. Now, when we say “UYAP” if I can’t do anything, I should at least be able to run to the courthouse. Plus, I agree with what you said. Maybe not in small towns, because there you can even reach the judge by phone if necessary, but justice is not a mechanism that works on a schedule. Justice has to work 24 hours a day.
I have long advocated that there must be a civil judge on duty in every courthouse to make decisions for emergencies. I need a precautionary measure at ten o’clock at night; what will happen? Who will I explain this problem to? Am I supposed to wake the judge up in the middle of the night? They wouldn’t get up anyway, and I wouldn’t be able to go. But in other countries, you see this in American movies sometimes, they get a judge to sign a decision in their pajamas. It should be like that. I need it at that moment. So, what will happen? The tenant has loaded up the goods and is running away. Am I going to use my right of retention? Is he going to notify me in advance, like, “Look, I’m running away with the goods at ten tonight, just so you know”? If I try to exercise my right of retention, a fight might break out, and they’ll say “Go to the police station,” causing a whole lot of trouble. Even notaries have someone on duty now. In civil courts, if you assign one duty to each judge in a place with 50 courts, a duty will come up once every 50 days. In Istanbul, in Ankara, there are many courts. You could even say there will be a duty judge at the peace court level and one at the first instance level. You don’t even need an expert court. But of course, it shouldn’t turn into this: “Judge, I’m on duty, I can’t get involved in this.” As you know, we have things that turn into “I’m not the judge of this file.” You go, and they say, “I’m not the judge of this file.” But you are a judge. Then they tell the lawyers, “Submit an excuse.” Why am I submitting an excuse? I came all the way from Izmir to here. The judge’s absence is not my problem. The judge’s absence is the state’s, the court’s problem. I have come from Izmir to Istanbul for the hearing that day or to hear a witness. They say, “I’m not the judge of this file, I’m sorry, submit an excuse.” Can an excuse be submitted like this? The excuse is your excuse, not mine.
RUMEYSA SAMSA:
How can the principle of publicity be ensured in an e-hearing? What would be an ideal ‘digital publicity’ model that fully meets the constitutional right to publicity? For example, is it possible to live-stream an e-hearing?
MUHAMMET ÖZEKES:
It cannot be ensured. Our colleagues, academics, have written quite a bit on this, both books and articles, which can be consulted. There are also different application examples on this topic. Now, in an e-hearing, measures can be taken like in some exams, where the environment you are in is also filmed with a camera, it is done in a special place, where equipment is provided... Such measures can be taken. But for a lawyer, as I see on social media, to attend a hearing on the subway is unprofessional. To attend a hearing with your collar and lapels open is unprofessional. That place is also a court at that moment. Yes, maybe I shouldn’t have to come from Izmir to Istanbul, but there should be specific places, rooms, in Izmir where e-hearings can be held. I should go there. I should leave my office and go there and do it there. Only under certain conditions, like being sick, an emergency, or not being able to make it due to a traffic accident, could be counted. It should be possible to participate from where you are, provided you notify the court of this. And important hearings, as I mentioned earlier, should be held face-to-face. I am not saying “there should be no e-hearings.” This is a great convenience, but it is beneficial to distinguish between daily, very technical matters and matters related to the substance of the case and to conduct them accordingly. But if you are conducting a hearing in an electronic environment, you have to accept in advance that you are somewhat abandoning the classic understanding of publicity.
RUMEYSA SAMSA:
For example, is it possible to live-stream an e-hearing?
MUHAMMET ÖZEKES:
This is a choice. As you know, there is a big debate in politics today: “Trials should be broadcast live.” Many countries have experienced this. In our country in the past, as you know, until the new versions of the Code of Civil Procedure and Code of Criminal Procedure were adopted, the press could enter hearings, take photos, and even make audio recordings. But the regulations that were made showed that this is not very appropriate for the, in old terms, the majesty, the dignity of a court. Imagine you are conducting a trial, and a member of the press comes and takes flash photos from above your head. This disrupts the seriousness. Second, it is a situation that can influence those participating in the hearing. Third, it can turn into a show. You can see that the American lawyers’ system is not like our attorneyship system, it is an activity aimed entirely at show and money. Pay attention to the American attorneyship system; they don’t wear tog because you identify with the party. In our system, however, you act independently of the party no matter what. Now, there are risks like this, but I think that depending on the situation, under certain conditions, if necessary, these hearings could also be broadcast at the request of the parties and the court’s decision on the matter. In fact, it could be beneficial for landmark cases to be in front of everyone, but its framework needs to be well thought out and well-drawn.
RUMEYSA SAMSA:
In your article, you exhibit a stance that focuses on the risks of digitalization on trial principles, which can at times be interpreted as ‘technological skepticism.’ However, humanly, judges’ own personal biases, fatigue, and inconsistencies are also a fact. What is the most fundamental reason for your skeptical approach to digitalization?
-MUHAMMET ÖZEKES:
To be frank, I have neither an antipathy nor a skeptical approach towards technology. I try to use it effectively as long as it helps me get my work done and provides some benefit. But technology has an uncontrollable aspect. For instance, these days there is a diploma forgery issue. You know, forging a written diploma... because my signature is my signature, there is only one person with my signature, you take it to an expert, you present it, they can verify it. But in a digital environment, it’s possible to replicate a document and distribute it widely. Second, it is said that “a secure electronic signature cannot be imitated.” According to what? According to the technology we have today, right? But if someone has a technology superior to yours that you don’t know about, and if they can control it today, how will you claim this? It’s not possible. Third, when manual, classic documents are tampered with, it is possible to detect it as quickly as possible because it is visible to the naked eye. The other is done in a virtual environment, so its detection is not easy either.
One of our friends has a very nice example. Let me tell you about that example. Imagine you entered a population or land registry office and stole the files. Think of the classic files, those blue files in those places. When you back up the truck in the evening, someone will see you backing up that truck, right? Two, even if it’s not seen at that moment, the cameras will detect it. Third, you took the files and loaded them. In the morning, at least 12 hours later, when the officers arrive, they will see that these files are not in their place. They have been stolen. Is it possible to detect it this way? It is. But if I were to enter the electronic records of the population and land registry office, download copies of everything for myself, and do this with high technology, and also bypass your cybersecurity system, is it possible for you to detect this at that moment? If I am using high technology, it is not possible. Or in the morning, when the official enters, the land registry record is still there; it hasn’t gone anywhere. Is it possible for them to detect it? No. That’s why we need to be cautious and not too ambitious. Also, we are not yet a country that produces these technologies at a high level, but rather a country that uses them.
If you are going to give the decision-making mechanism to artificial intelligence forms today, our law does not allow it. It says, “the judge,” “shall render their decisions in accordance with the Constitution, the law, and jurisprudence, based on their conscientious conviction.” You cannot regulate this without amending the Constitution. Moreover, the European Union convention and some international conventions say -rightly so, and I agree- that the decision-making mechanism should still be shaped by a human. Look, there are examples of this in America. Some of these applications called “virtual courts” have been tried and abandoned. Such problems arose that they found, for example, that in some standard decisions, verdicts were being given against black people. In borderline cases, they found that artificial intelligence forms were ruling against women. The reason is this: it is based on the decision forms of that day. Inevitably, discrimination against women, discrimination against black people... So, if there are two people, one white and one black, it is said “this one is guilty, he is black, potentially because he comes from this neighborhood,” and since the artificial intelligence learns and progresses with that formula, it makes decisions with that formula. This has been abandoned.
Now, it is said that there are artificial intelligence courts in China and so on; it’s all advertising. They are not artificial intelligence courts in the real sense, let me tell you, but China markets this very well. It is not an artificial intelligence court in the sense you understand it, a judge is not making the decision. In certain situations, it already passes through the supervision of a real judge. Frankly, I also found this because of my research while preparing the book “Jurisdiction in the Digital Age,” but China markets this very well to the world. It uses artificial intelligence in commercial matters. And connect this to the market, electronic marketing... There’s also Amazon and so on, they already have their own dispute resolution methods, perhaps you have seen them. For example, it resolves consumer disputes with its own artificial intelligence form. Therefore, for decision-making mechanisms, a constitutional amendment is definitely needed. For example, we only accepted secure electronic signatures by law. We didn’t accept it on a whim, right? A law change is required. Now, for some daily practices, for example, how a hearing will be conducted, what will be done, etc., for instance, if you are going to waive publicity, this must be done by law. Otherwise, as I said, I think it must be utilized, it should not be resisted, and that would be a completely wrong thing to do. Now think of it this way, if you didn’t use artificial intelligence forms, you might have to employ four or five more lawyers in your office. What’s the need? Humans should spend their energy on higher quality and more knowledge-based work. I mean, go and research case law. Looking at 50 precedents one by one is one thing, pressing a button and saying “bring me the precedents in this direction” is another. Now, you can test whether they are correct or not among them, it takes 10 minutes, but otherwise, researching precedents will perhaps take half your day.
IV. THE PRIMARY APPELLATE SYSTEM AFTER 2016
RUMEYSA SAMSA:
The repositioning of the Court of Cassation as a “court of precedent” focused on case law was one of the most fundamental goals of the new primary appellate system reform. In the time that has passed, do you observe a measurable increase in the quality, consistency, and function of unifying the law in the Court of Cassation’s precedents?
MUHAMMET ÖZEKES:
The primary appellate system is a necessary system, and our primary appellate system was actually a correct system when it was initially designed. It was one of the simplest, easiest primary appellate systems in the world. For example, the Germans have a system of legal remedies that is so complex that even an expert lawyer can have trouble figuring it out, with horizontal, vertical, and lateral objection control mechanisms. If you know a little German law, we had a professor who had hung the German system of legal remedies on his wall as a chart to understand it. So, ours is not like that; it is a simple, plain, and actually easy system. Some interventions might be necessary; it was accepted that way at the beginning. But if you ask whether it is like that today, no. Especially the intervention made with Law No. 7251 has taken the primary appellate system out of being a primary appellate system. We said it would. I insisted on it. I said this in meetings, I wrote it.
The primary appellate system had a few misfortunes. One, we had originally adopted the appellate system during the era of the Code of Civil Procedure No. 1086. But then it was said “insufficient number of judges, insufficient infrastructure,” and so on, and it came all the way to the new Code of Civil Procedure. The system in the Code of Civil Procedure was built on the primary appellate system, but the Ministry of Justice at that time, despite the Code of Civil Procedure being built on the primary appellate system, postponed it. That is, the adoption and entry into force of the Code of Civil Procedure was in 2011, but it was postponed until 2016. But we adopted the primary appellate courts at the most inopportune time. Unfortunately, we transitioned to the primary appellate system right after the July 15th coup attempt, five days later. At a stage where the number of judges in Türkiye had decreased, where there were problems in the law, where there was a trust issue, we established the primary appellate courts with a small number of judges and in few places. In a country like Türkiye, there should be at least 25 primary appellate courts right now, at least. Türkiye started with 8-9 courts back then. Moreover, for the appellate system to work well, the first-instance judges also need to be good. We appointed our experienced judges to the appellate courts. And at that time, we hired judges with six months or one year of internship. When the quality and experience of the judges were lacking, the appellate courts were overwhelmed.
Then what did we do? With Law No. 7251, we made the primary appellate courts, so to speak, able to quash decisions like the Court of Cassation... The law doesn’t say that, it says “the authority to send the file back,” we don’t call it “quashing,” but it is essentially the power to quash. A regulation was made to send cases back to the first instance on matters that the appellate court could have examined and decided on its own. I vehemently opposed that at the time, when the law was being made at that stage. I opposed it later as well, and I said that this would turn the appellate courts in the Turkish judicial system into small courts of cassation. We said we would have local Courts of Cassation, and we said that all the problems we experienced in the past with the Court of Cassation -which, no matter what, was a place where judges with 20 years of experience served with great expertise- would manifest in the primary appellate courts.
Currently, the primary appellate courts are clogged. In big cities, files don’t arrive for two years. Even if they do, after waiting there for two years, a case that could be decided by looking at a simple document and information is sent back to the first instance. The first instance makes another decision, then it goes back to the primary appellate court. Maybe this time it overturns the decision for another reason. It has now turned into a never-ending story, but I say again, in essence, the primary appellate system is correct. It needs to be done with the right people, with good and high-quality judges, in the right places, with the right number, and by abandoning this system. In my opinion, first-instance and primary appellate judges need to undergo very serious training. If you try to appoint judges to the appellate court from here to there as you please, you won’t get out of this mess. The system itself is correct in its essence, but it was later degenerated and made even worse by its implementation. Let me summarize it that way.
RUMEYSA SAMSA:
The primary appellate system was expected to function as a “self-control mechanism” to increase the quality of decisions of first-instance courts. What is your observation? Are first-instance courts rendering more reasoned and careful decisions, knowing that their decisions will undergo a more comprehensive review, or are they falling into a kind of complacency with the thought that “it will be corrected on appeal anyway”?
MUHAMMET ÖZEKES:
This risk is not unique to us; it is one of the biggest debates between primary appellate courts and first-instance courts all over the world. An average person, if they think “if I make a mistake, there is no remedy for it,” will both suffer from remorse and be more careful. But if they think “well, there is a remedy for this,” they may become complacent in a matter where they would normally be more meticulous. For example, as a lawyer, if you think someone else will read your petition, you might deliver the work a bit faster. But if you think there is no remedy for it, if you know that all responsibility belongs to you, you will read it once more, let a night pass over it, read it once more, and so on. Because in the other case, you are sharing the responsibility. The same situation applies to appellate courts, and this has been a subject of debate all over the world.
What is the way out? First, you will train the first-instance judges very well. Second, you will not have judges who are 22-23 years old. There is no such judicial system anywhere in the world. A judge who is under 30 is not a judge. Let me tell you that. Why, you might ask? Because being a judge is not just a matter of knowledge; it is also a matter of maturity. In no civilized country in the world does one become a judge, prosecutor, or lawyer as early and as ill-equipped as in our country. The Entrance Exam for Legal Professions has arrived; I have many criticisms of the Entrance Exam for Legal Professions, but even in its current state, it is a very, very correct system. Look, if we do nothing with its current state, just maintain this, it is still very good. Therefore, we need to abandon this system of first-instance judges. The issue of judicial internship... they called it “assistant judge,” but it is not assistant judgeship, know that. It is a diluted judicial internship. Assistantship is not like this, it is not done this way, and not in this framework. “Professor, do you have a suggestion?” I have a very serious suggestion on that matter; I have written articles on how assistant judgeship should be under Türkiye’s conditions. We, so to speak, abolished the internship, turned it into assistant judgeship, and extended it a bit. Now we are moving in this direction.
Once reforms are made regarding first-instance judges, the next step should be to make judicial promotions and career advancement more objective. Currently, judges in Türkiye lack meaningful job security or a structured tenure system. A judge, when they first start their career, should know where they can advance to, how they can become a member of the Court of Cassation, the Council of State, etc., by doing which jobs and how. We take a judge from one court and put them in another. We take a person who has been a criminal judge for years and put them in an enforcement court. It’s torture for the judge, torture for the lawyer, and torture for the system, right? Plus, you see a judge who works very hard still at the court of first instance, while another judge on the other side advances rapidly, at the speed of light, to the commercial court... And yet, it is commonly known among lawyers that the former judge is more competent than the latter. Now, doesn’t the Council of Judges and Prosecutors know what we know, what everyone knows? It does. We must review the grading and evaluation system. Plus, the in-service training, equipment, foreign languages, studies of judges, their success in the profession, and their previous achievements should contribute to their advancement with a score. Now, there is a judge who knows two foreign languages. There is a judge who has done a very serious master’s degree and so on. I’m not saying they should get ahead of everyone, but this should have a meaning. Or there is a judge whose decision accuracy rate is very high. Okay, that judge is also advancing, but you see that, let’s say there are two judges in the same place, the decision accuracy rate is very high, but it’s not him, the other judge is elected as a member of the Court of Cassation. Now, this should not happen. If you develop this self-control system, if the judge knows, “when I do a bad job as a judge, when my first-instance decision is overturned, I cannot become a primary appellate judge; if I become a primary appellate judge, I cannot become a member of the Court of Cassation; if I do, I cannot become a judge in a better place; if I am in a district in Anatolia, I cannot become a judge in Istanbul, I will stay here,” the system needs to be established. Is it possible? It is. There is only one reason: Do you have the intention? If you don’t have the intention, you won’t do it. In my opinion, this intention does not exist right now. It is not possible for us to get out of this with the current situation. Is there a way out? Yes, there is, very easy, very simple. In fact, the way out for some issues can be found within a year; we can get out of this. I can tell you that with that confidence, but these things need to be done. On some issues, however, we have no alternative. For example, on some issues, I have an opinion, someone else has an opinion, so be it. But on some issues, we have only one alternative to get out. If we are not doing that, it means we don’t want to get out or we won’t be able to.
RUMEYSA SAMSA:
Holding a hearing at the primary appellate stage has become an exception rather than the rule. What kind of problems does the wide discretion of the courts in this matter create in terms of the principles of equality of arms and orality? Should the conditions for holding a hearing be tied to more objective criteria?
MUHAMMET ÖZEKES:
At first instance, the principle is judgement with hearing. Its exceptions are limited and listed in the law. There are decisions of the European Court of Human Rights, our Constitutional Court, and the Court of Cassation, which state that the principle is for it to be with a hearing. But on appeal, the law has already regulated where hearings will not be held. It has excluded cases that are very formal, procedural, and can be decided on the file from hearings. Other than that, if there is a request, a hearing must be held.
But this is also important: we need to review our attorneyship system. Look, a lawyer who gets their license today can appear in a hearing at the Court of Cassation, the Constitutional Court, the appellate court, the High Criminal Court. Is this the right thing to do? We say that to be a High Criminal Court judge, you need 10 years of experience; to be an appellate judge, you need at least 10 years of experience; to be a Court of Cassation judge, you need 20 years of experience. We put a lawyer who got their license today in front of a judge with 20 years of experience, knowledge, and equipment. Then we say, “the claim and the decision are equal.” How are we going to make the judiciary equal? It’s not equal. Can you stand before someone who is 40 years old, who has gone through that many years of experience, that many files? Our system needs to change. In judgeship, for better or worse, its application is wrong, but we are moving towards specialized courts. But in attorneyship, we practice law with the mentality of “I’ll do whatever job comes my way, man.” This is not acceptable.
In many countries, to be able to appear in a hearing in high courts, you need to have special competence, sufficiency, and special accreditation. For example, again in Germany, you can only appear in a hearing in a high court if you have a certain competence, sufficiency, and accreditation. That is, even if you, as a lawyer, follow the file, there needs to be another lawyer for that job. As you know, in the UK, there are “solicitors” and “barristers.” Trial lawyers... On one hand, there are lawyers who work with the client, and on the other, there are trial lawyers. Because a trial is something that requires special competence and sufficiency. It’s not a trial to just “get up, sir, and repeat our file.” Especially now, with sub-authorization, and now we have lawyers to whom we give a certificate of authority, it has become a business sector. You go, and they say, “Sir, I took this on with authorization, I am not very familiar with the file.” For a lawyer to say, “I am not familiar with the file” is to say, “I am not doing my job with due care, I am not fulfilling my duty of care.” That’s why, while we find fault with the court and the system, lawyers and the legal profession also need to get their act together in any case.
But ultimately, to answer your question, yes, care should be taken to hold hearings in appellate courts except for those listed in the law. But this hearing is only beneficial if both the appellate judges and the lawyers come to hearing prepared. Otherwise, it will be nothing more than an unnecessary waste of time.
RUMEYSA SAMSA:
Thank you very much, professor. That was all our questions.
MEHMET HAN YILDIRIM:
At the beginning of the professor’s article titled “A Proposal for a New Enforcement System,” published in the Dokuz Eylül University Faculty of Law Journal, there is the saying, “The one who strives to produce a solution is one step ahead of the one who complains.” This saying, in fact, clearly summarizes the main purpose of the interview. Personally, I believe in the transformative power and importance of dialogue. Just as Socrates sought to unveil the truth through dialogues centuries ago, I believe such high-quality exchanges of ideas are one of the cornerstones of the advancement of civilization and intellectual accumulation today. This is also a novelty for GSI Articletter. On this occasion, I hope that more space will be given to such in-depth dialogues and that the development of legal thought will be contributed to through this dynamic path as well. Thank you for your participation.
MUHAMMET ÖZEKES:
I thank you too. Your questions were of very high quality, and it was clear that there was preliminary preparation behind them. This interview was my first comprehensive evaluation to the public regarding the new Enforcement and Bankruptcy Law draft. It will probably be one of the first expressions of opinion on this subject in Türkiye as well. In this respect, it will also contribute to the formation of an opinion. Perhaps I spoke a bit openly and directly, but treatment is not possible without clearly diagnosing the illness. We have heard enough words that beat around the bush; we now need clear stances.
Medeni Usûl ve İcra-İflâs Hukuku alanında uzman olan Av. Prof. Dr. Muhammet Özekes, akademik çalışmalarının yanı sıra avukatlık mesleğini de aktif olarak sürdürmektedir.
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