Product Liability

The most fundamental law governing product liability in Turkey is the Law on Product Safety and Technical Regulations (7223), which entered into force on 12 March 2021 and annulled the Law on the Preparation and Implementation of the Technical Regulations regarding Products in Turkey (4703). It is modelled on the EU General Product Safety Regulation. The following regulations also govern product liability:

• the General Product Safety Regulation;
• the Code of Obligations;
• the Consumer Protection Law;
• the Regulation on Surveillance and Supervision of Products in the Market;
• the Regulation on Control of Food Safety and Quality; and
• the Food Codex Regulation.

Under these regulations, various remedies are provided for the compensation of damages arising from product liability. Basically, if a product causes damage to a person or property, the manufacturer or seller is liable to compensate for the damage in accordance with the Law on Product Safety and Technical Regulations.

Pursuant to the Consumer Protection Law and the Code of Obligations, the consumer also has rights in relation to defective products. The manufacturer may be held liable for damage caused by a defect, regardless of whether it was negligent. The point here is that the injured party must prove the causal link between the damage and the product defect. Consumers taking action for product liability claims commonly file a civil lawsuit, instead of initiating criminal proceedings.

The Law on Product Safety and Technical Regulations includes regulations on product liability in general, but some products are subject to specific product liability regulations, such as:

• medical devices and pharmaceuticals;
• consumer products;
• vehicles; and
• food and beverages.

In these sectors, the special regulations take precedence; while the general regulations are taken into account in relation to matters which are not regulated by the special regulations.

The Turkish courts generally tend to favour the consumer in product liability cases. In fact, their approach is to make it easier for consumers to exercise their rights.

In principle, in order for a manufacturer or importer to be held liable under the Law on Product Safety and Technical Regulations, the injured party must prove the damage suffered and the causal link between the non-compliance and the damage. However, there are exceptional provisions in some laws which provide that the burden of proof may shift to the producer or importer, which must then prove that it was not at fault. Given the general tendency of the courts to facilitate the exercise of consumers’ rights, tort provisions or – where possible – the liability of hazard are mainly preferred before the courts.

Under the Consumer Protection Law, the Ministry of Customs and Trade, consumers and consumer organisations may appear as plaintiffs before the consumer courts. According to Article 73 of the Consumer Protection Law, consumer organisations and the ministry may only file a lawsuit to obtain a preliminary injunction to prevent or stop a situation that concerns consumers in general:

• where there is a danger of a breach of the law, except for the provisions regarding unfair commercial practices and commercial advertising; or
• for the detection, prevention or cessation of an unlawful situation, again with the exception above.

The Commercial Code provides that a claim regarding the determination and prevention of unfair competition may be brought by the Chamber of Industry and Commerce or a professional association. By following these provisions, the Code of Civil Procedure (6100), enacted in 2011, provides in Article 113 that associations and other legal entities may file a lawsuit to remedy any illegality and protect their members’ rights.

Anyone with a legal interest may bring an action against the producer, either individually or together with other plaintiffs, to recover damages arising from a defective product. According to the Code of Civil Procedure, a class action can be filed where:

• a group of people have:
• • common rights and interests that are the subject of the lawsuit;
  • a right arising from a common procedure applied; or
  • a common responsibility; and
• the facts and legal grounds underlying the lawsuit are the same or similar.

These kinds of group actions are considered beneficial to procedural economy by the courts but are not considered as class actions. The judgment will apply only to the specific parties to the lawsuit.

Consumer organisations may file a lawsuit for:

• the determination of a defect in a product;
• cessation of production; or
• a product recall.

Article 113 of the Code of Civil Procedure provides that associations and other legal entities may file a lawsuit to address any illegality and protect their members’ rights.

The Code of Civil Procedure provides that the joinder of parties is possible if:

• the rights and claims that are the subject of the litigation are common between the plaintiffs and the defendant;
• the rights arose from a common procedure applied or the parties have undertaken a common responsibility; and
• the facts that are the basis of the case and the legal reasons are the same or similar.

Under the Law on Product Safety and Technical Regulations, if a product causes damage to a person or property, the manufacturer or importer will be responsible for repairing the damage.

The ‘manufacturer’ is the natural or legal person that manufactures the product or has the product designed or manufactured, and that places the product on the market with its name or trademark. The ‘importer’ is a natural or legal person that imports the product and places it on the market. In addition, in cases where the manufacturer, authorised representative or importer of the product cannot be determined concerning the liability for compensation arising from the product, a distributor that does not notify the injured person of the name and contact information of these economic operators within 10 business days of the date of notification of this request will be held liable for compensation as the producer under the law. The purpose of holding distributors liable is to ensure that the injured party always has a party to which a claim for compensation can be directed. On the other hand, in accordance with the Consumer Protection Law, the seller, the manufacturer and the importer are jointly responsible for the fulfilment of consumers’ optional rights.

There is no specific requirement or pre-application procedure to invoke the jurisdiction of the Turkish courts for product liability claims. Product liability lawsuits can be filed against any party involved in the manufacture, distribution or sale of a defective product. However, the international jurisdiction of the Turkish courts will determine the rules of jurisdiction of the domestic law. Product liability matters which involve a foreign element must meet the jurisdiction and capacity requirements outlined in the International Private and Civil Procedure Law (5718) in order to be litigated in Turkey.

In a product liability matter arising from a consumer contract, as defined in Article 26 of the International Private and Civil Procedure Law, the Turkish courts will have jurisdiction where the consumer’s place of residence or habitual residence, or the place of business, settlement or habitual residence of the counterparty. The court chosen by the consumer from among those listed becomes authorised.

If jurisdiction is not determined based on exclusive jurisdiction, the parties may agree that a dispute arising from foreign relations between them may be tried in a foreign state court. Their agreement will be valid if it is proved by written evidence.

Product liability lawsuits are usually filed for pecuniary and non-pecuniary damages. The most common grounds are that the product was not manufactured in accordance with the general product liability and safety legislation and technical regulations. The fact that the product was not manufactured in accordance with its intended use or design also constitutes a basis for damages arising from the product and grounds for compensation claims.

A product must further contain adequate warnings or instructions to inform consumers of the potential risks associated with its use. Inadequate warnings or instructions can be also considered as a defect.

Another common cause of action is that the product does not meet the express or implied warranties given by the manufacturer, importer or seller, and has caused injury or damage to the consumer.

The Penal Code (5237), under the heading “Crimes Against Public Health”, sets out certain crimes involving the manufacture or sale of defective products as follows:

• Adding poisonous substances (Article 185): Anyone who endangers the lives or health of persons by adding poison to drinking water, any kind of food or drink or another consumable will be sentenced to imprisonment for between two years and 15 years. If the specified acts involved breach of the duty of care and attention, that person may be sentenced to imprisonment from between three months and one year.
• Trading in spoiled or modified food or medicines (Article 186): Anyone who sells, supplies or possesses all kinds of consumables or medicines that have been spoiled or modified in a way that could endanger the lives or health of persons will be sentenced to imprisonment for between one and five years, and to a judicial fine up to 1,500 days. If the crime is committed within the scope of the practice of a profession carried out on the basis of official permission, the penalty will be increased by one-third.
• Manufacturing or selling medicines that endanger people’s lives or health (Article 187): Anyone who manufactures or sells drugs in a way that endangers the lives or health of people will be sentenced to imprisonment for between one and five years and a judicial fine. If the crime is committed by a physician or pharmacist, or within the scope of a profession carried out on the basis of official permission, the penalty will be increased by one-third.
• Manufacturing and trading in poisonous substances (Article 193): A person who produces, possesses, sells or transports a substance that contains poison, and whose production, possession or sale requires permission, will be punished with imprisonment for between two months and one year.
• Supplying materials that are hazardous to health (Article 194): A person who gives or offers for consumption substances that may pose a health hazard to children, mental patients or those who use volatile substances will be punished by imprisonment for up to one year.

Under the Consumer Protection Law, a ‘defective product’ is defined as a product that is contrary to the purchase and sale agreement because it:

• does not conform to the sample or model agreed by the parties at the time of delivery to the consumer; or
• does not have the characteristics that it should have objectively.

The following products are also considered defective:

• products that do not include one or more of the requisite features in their packaging, labels, introductory and user manuals, internet portals or ads;
• products that are contrary to the quality declared by the seller or determined in its technical regulation;
• products that do not meet the purpose of use of equivalent products; and
• products that reduce or eliminate the benefits that may be reasonably expected by the consumer.

The Law on Product Safety and Technical Regulations provide as follows:

• Products must comply with the technical regulation. Products that do not comply with the technical regulations cannot be placed on the market, kept on the market or put into service without first remedying the non-conformities.
• Products must be safe. A product which complies with the technical regulations on human health and safety is considered safe until proven otherwise. However, a product that does not meet these conditions may be identified as defective.

The main rule regarding the burden of proof under Turkish law is that the plaintiff is obliged to prove the basis of his or her claim, unless otherwise provided by the law.

The manufacturer must supply only safe products to the market. Pursuant to the Law on Product Safety and Technical Regulations, a product that complies with the technical regulation on human health and safety will be deemed safe until proven otherwise. In this context, the party claiming the defectiveness of a product manufactured in accordance with technical regulations must prove it. According to Article 6 of the Law on Product Safety and Technical Regulations, in order for the manufacturer or importer to be held liable, the injured party must prove:

• the damage suffered; and
• a causal link between the nonconformity and the damage.

However, there are exceptional provisions in some laws that shift the burden of proof to the manufacturer, which may have to prove that it is not at fault. For instance, the Consumer Protection Law provides that in some circumstances, the burden of proof rests with the manufacturer to the benefit of consumers. Pursuant to this rule, defects that arise within six months of the date of delivery of the product to the consumer are deemed to have existed at the time of the delivery, in which case the manufacturer must prove that the product is not defective.

Pursuant to the Law on Product Safety and Technical Regulations, in order for a manufacturer or importer to be held liable for damage caused by a product to a person or property, the injured party must prove:

• the damage suffered; and
• the causal link between the nonconformity and the damage.

In order to hold the manufacturer liable, the damage to the injured party must have arisen due to a safety defect in the product. The occurrence of damage due to the safety defect indicates the existence of a causal link. However, the basic condition for claiming that the damage has arisen due to a safety defect is that the product in question was used in accordance with its intended use. If the product was not used in accordance with its intended use, but the damage nevertheless occurred due to a safety defect in the product, it is not possible to claim compensation for the damage because of the lack of a proper causal link, even if the use in question was foreseeable by the manufacturer.

Any evidence can be used to prove the causal link between the product defect and the damage suffered. In most cases, where a technical evaluation of the matter is required, the submission of a private expert report or official report issued by accredited authorities in the evidence file can increase the chances of success.

The most important condition to succeed in a product liability case is that the product must have been manufactured in compliance with the relevant product liability and safety legislation and technical regulations in the first place. The product must have been manufactured taking into account the intended use of the product and the various conditions under which it can be used.

Pursuant to the Consumer Protection Law, liability for defective products is subject to a limitation period of two years from the date of delivery of the product to the consumer, even if the defect occurs later, unless a longer period is specified in the law or in the contract between the parties. This period is five years from the date of delivery of immovable property for residential or holiday purposes. However, if the defect is due to gross negligence, a 10-year limitation period will apply, which is the general principle for tort matters. If the tortious act is the subject of criminal law because it is also considered a crime, a longer limitation period will apply.

Under the Law on Product Safety and Technical Regulations, the limitation period for product liability claims is:

• three years from the date on which the injured party learns about the damage and the indemnity obligor; and
• in any case, 10 years from the date of the damage.

In any case, in lawsuits based on product liability, if a defective product is in question, the tortious act will also be in question. Accordingly, a lawsuit must be filed:

• within two years of the date on which the injured party learns of the damage and the person responsible for compensation; and
• in any case, within the 10-year limitation period that begins to run from the date of the wrongful act.

According to the Law on Product Safety and Technical Regulations, a product that complies with the technical regulations on human health and safety is considered safe until proven otherwise. The administrative sanctions set out in the Law on Product Safety and Technical Regulations will not be imposed on parties which determine that a product they have placed on the market, kept on the market or put into service is non-conforming and take the necessary measures – including a product recall – to address the non-conformities and eliminate the risk without receiving a request or warning to do so from the competent authority.

Also, if contributory negligence on the part of the person who suffered the damage is proven, or if there was severe fault on the part of a third party, this may mitigate the liability of the manufacturer.

The fact that the damage was caused by the act or omission of a third party in addition to the non-conformity of the product will not mitigate the manufacturer or importer’s liability for compensation. However, the manufacturer or importer reserves the right of recourse to the third party. Also, a product liability claim handled within the framework of tort requires fault on the part of the manufacturer.

The parties may determine various aspects regarding the liability arising from a defective product in the contract between them. However, some mandatory regulations specify that certain rules determined by the parties will be null and void. The Law on Product Safety and Technical Regulations stipulates that contractual clauses that relieve the manufacturer or importer from liability for compensation arising from a defective product, or which mitigate this liability, will be null and void. In the same way, contractual clauses that contravene the Consumer Protection Law are also prohibited.

Unless the court with jurisdiction is expressly specified in a special statute relating to the subject matter of the dispute and/or the parties, the competent court will be the civil court of first instance. For instance, the competent courts for product liability disputes arising from consumer transactions and consumer practices are the consumer courts, pursuant to Article 73 of the Consumer Protection Law. On the other hand, if a product liability dispute arises in relation to a commercial transaction, the competent court will be the commercial court, regardless of the value or amount of the case.

The Consumer Arbitration Committee (CAC) was established to resolve disputes that may arise from consumer transactions and consumer-oriented practices in accordance with the Consumer Protection Law. As an initial procedure, a consumer must apply to the CAC in relation to consumer transactions that fall within certain monetary thresholds – the highest amount is TRY 104,000 for 2024.

Where a product liability dispute arises from a commercial transaction, the parties must undergo mandatory mediation before filing a lawsuit. Likewise, in disputes before the consumer courts, it is a condition of litigation to apply to a mediator before filing a lawsuit.

The notion of a jury does not exist in the Turkish court system. The judge is the sole authority who decides on a dispute, based solely on his or her knowledge and conscience.

The CAC is chaired by the provincial director of trade in the provinces and the district governor in the districts, or an officer appointed by these parties. The other members of the CAC are representatives of municipalities, bar associations, merchants/tradespeople and consumer organisations.

The mandatory mediation process is conducted by specialised mediators. Mediators are graduates of law faculties who have at least five years’ experience in the legal profession and have received specialised training in communication, negotiation and mediation techniques.

In general, forum shopping is not considered acceptable in Turkey, as the country has a strong principle of judicial integrity and impartiality. Under Turkish law, a lawsuit must be filed in the court with jurisdiction over the case, which is determined based on factors such as:

• the defendant’s domicile;
• the place where the alleged harm occurred; and
• the place where the goods were delivered or received.

Under Article 68 of the Consumer Protection Law, a consumer must apply to the Consumer Arbitration Committee (CAC) if the dispute concerns a consumer transaction that falls within certain monetary thresholds – the cap is TRY 104,000 for2024. The CAC may request all kinds of information and documents relating to the dispute from the parties, and from relevant institutions and organisations. The parties may appeal the decision of the CAC to the consumer court within 15 days of the date of notification by the CAC. The appellate decision of the consumer court is final.

If the amount of the claim that is subject to the lawsuit exceeds the monetary limit of TRY 104,000, the dispute must be filed with the consumer court. Under Article 73/A of the Consumer Protection Law, entitled “Mediation as a Condition of Litigation”, it is obligatory to undergo mediation before filing a lawsuit in consumer disputes.

Similarly, if the product liability dispute has arisen from a commercial transaction, the parties must undergo mandatory mediation before filing a lawsuit, given that mediation is obligatory before commencing litigation in relation to all commercial matters that involve the payment of a debt or compensation claims.

As outlined in question 7.1, a consumer must first apply to the CAC if the dispute falls within certain monetary thresholds. The parties may appeal the CAC’s decision to the consumer court for a final decision.

Mediation is also mandatory before filing a lawsuit with the court for monetary claims.

According to the Code of Civil Procedure, a Turkish court will have jurisdiction over a product liability case if:

• the defendant is domiciled in Turkey;
• the harmful event occurred in Turkey; or
• the parties have agreed to submit to the jurisdiction of the Turkish courts.

The competent court is the court of the defendant’s residence, unless otherwise determined under the law. In this respect, Article 73/5 of the Consumer Protection Law provides that if a product liability suit relates to a consumer transaction, the court where the consumer is domiciled will also have jurisdiction.

The international jurisdiction of the Turkish courts will determine the rules of jurisdiction in domestic law. If the product liability matter involves foreign elements, the International Private and Civil Procedure Law will apply. If jurisdiction is not determined on the basis of exclusive jurisdiction, the parties may agree that a dispute arising from a relationship of obligations and foreign relations between them may be heard in a court of a foreign state. Their agreement will be valid if it is proved by written evidence. The case can proceed before the Turkish courts only if:

• the foreign court considers itself unauthorised; or
• there is no plea against the jurisdiction of the Turkish court.

Article 26 of the International Private and Civil Procedure Law regulates consumer contracts for the provision of goods or services or credit for non-professional or non-commercial purposes. As per Article 45 of the law, the Turkish courts will have jurisdiction over disputes relating to consumer contracts based on:

• the consumer’s choice;
• the location of the consumer’s place of residence or habitual residence; or
• the location of the defendant’s place of business.

Where a lawsuit is filed against a consumer in relation to a consumer contracts, the court with jurisdiction is the court at the place of the consumer’s habitual residence in Turkey.

The applicable law will vary depending on the legal nature of the product liability issue. If the matter is considered to be a commercial matter, contractual relations are governed by the law expressly chosen by the parties. The choice of law may be made or changed by the parties at any time. A choice of law after commencement of the contract will apply retroactively, without prejudice to the rights of third parties. If the parties have not chosen the applicable law, the contractual relationship will be governed by the law that is most closely related to the contract.

Product liability issues that may arise in consumer activities and consumer contracts are evaluated differently under the International Private and Civil Procedure Law. Consumer contracts for the provision of goods or services or credit for professional or non-commercial purposes are governed by the law chosen by the parties, without prejudice to the minimum protection of the consumer pursuant to the mandatory provisions of the law of habitual residence. If the parties have not chosen the applicable law, the law of the consumer’s habitual residence will apply.

If the issue of product liability is considered a matter of tort, liability will be governed by the law of the country in which the tortious act was committed. If the place where the act was committed and the place where the damage occurred are in different countries, the law of the country in which the damage occurred will apply.

Pursuant to the Code of Civil Procedure, a security deposit must be provided by the plaintiff to cover the possible legal expenses of the defendant where:

• a Turkish citizen who does not have his or her habitual residence in Turkey:
• • files the lawsuit;
  • participates in the lawsuit as an intervener; or
  • pursues the lawsuit alongside the plaintiff; or
• it is documented that the plaintiff is in insolvency due to reasons such as:
• • the previous bankruptcy of the plaintiff;
  • the initiation of restructuring proceedings by concordat or reconciliation; or
  • the existence of a certificate of insolvency.

In addition, pursuant to the International Private and Civil Procedure Law, foreign natural persons and legal entities that file a lawsuit, participate in a lawsuit or pursue an execution proceeding before a Turkish court must submit a security deposit determined by the court in order to cover the costs of the proceedings and the damages and losses of the other party.

Finally, where an appeal has been lodged, the security may also have to be provided for costs. The court may require that party to provide security for the costs of the appeal if the losing party decides to appeal. This will ensure that if the appeal is unsuccessful, the winning party will be entitled to recovery of its costs.

The rules governing disclosure or discovery are primarily set out in the Code of Civil Procedure. In principle, instead of undertaking extensive and expensive ‘fishing trips’, the parties are obliged only to provide documents and information which have a direct bearing on the lawsuit.

The judge may order discovery in order to obtain information about the subject matter of the dispute by examining it personally at the place where it is located or in court. An expert may also be present during the discovery. If the subject of the discovery can be brought to the court, it is envisaged that discovery can also be made in court. The place, scope and time of the discovery will be determined by the court. The discovery will be conducted in the presence of the parties if they are present or otherwise in their absence.

The Code of Civil Procedure stipulates that the parties and third parties must comply with the discovery order and refrain from adopting obstructive attitudes and behaviours. The code also stipulates that where the resistance comes from one of the parties:

• if the burden of proof rests with that party, it will be deemed to have given up the evidence; and
• if the burden of proof does not rest with that party, it will be deemed to have accepted the claim.

However, the judge may choose not to apply this provision depending on the situation and the reason for the resistance.

Pursuant to the Code of Obligations, the statute of limitations arising from a tort is:

• two years starting from the date on which the victim learns of the damage and the person responsible for compensation; and
• in any case, 10 years starting from the date of the occurrence of the tortious act.

Pursuant to the Law on Product Safety and Technical Regulations, the claim for compensation is subject to a limitation period of:

• three years from the date on which the injured party learns of the damage and the identity of the manufacturer; and
• in any case, 10 years from the date on which the damage occurred.

In this context, a special situation is envisaged for damages arising from product safety.

In principle, certain types of documents cannot be submitted to the court as evidence due to the confidentiality obligations set out in law. For instance, attorney-client communications are confidential and cannot be disclosed without the prior consent of the client. Both internal and external counsel are subject to this privilege. Also, communications between a physician and a patient are generally covered by confidentiality, which makes it impossible to disclose such information without the patient’s consent. However, depending on the nature and severity of the illegal act, such communications may be disclosed in the evidence file if they were used to commit a crime or fraud.

In the event of a product liability claim, evidence must be submitted by the plaintiff demonstrating that the product in question was defective and caused injury. Thereafter, the defendant must present evidence to support its argument that the product was not defective or that the injuries suffered by the applicant were caused by other factors. At the beginning of the procedure, an expert examination of the product that is claimed to be defective should be conducted.

The most important point in relation to disclosure in product liability cases is especially evident in disputes concerning health-related products, such as medical devices or drugs. Health data and communications between a patient and his or her physician may need to be added to the evidence file. These documents should be submitted to the court only if requested with the patient’s consent or under a court order, due to personal data protection concerns.

Under the Code of Civil Procedure, civil procedure evidence is divided into two categories: formal evidence and discretionary evidence. There are four types of formal evidence:

• testimony;
• deeds;
• oaths; and
• final judgments.

Discretionary evidence includes:

• witness testimony;
• expert testimony;
• discovery; and
• other evidence not regulated by law.

It is accepted that this list is not exhaustive, in terms of what may be admitted as discretionary evidence.

In accordance with the principle of the preparation of a case by the parties, except as provided for by law, the judge cannot collect evidence by himself or herself. Under Turkish law, claims that exceed a certain monetary limit can only be proven with written evidence. However, oral evidence such as witness statements may also be possible. If a party breaches the procedural rules for the submission of evidence, the evidence submitted by that party will not be taken into consideration by the court, even though it may be lawful and appropriate to the dispute. If there is any risk of evidence being lost or damaged before the filing of a product liability lawsuit, the relevant party may file a claim for the recording of the evidence. In addition, the product itself can be collected or detected through a recording of evidence procedure filed before the court or undertaken by a notary public.

The admissibility of evidence in Turkey is subject to certain rules and limitations. For example, evidence obtained through illegal means or that is considered irrelevant or unreliable may not be admissible. Additionally, the burden of proof rests with the plaintiff, who must provide sufficient evidence to support his or her claims.

Expert evidence in Turkey has become one of the most crucial components of civil proceedings. However, if the preparation of an expert report and additional reports takes too long, this can add to the length of the proceedings, rather than being beneficial.

Under Turkish law, it is very common for the courts to request an expert report in order to understand the specifics of the dispute. Article 266 of the Code of Civil Procedure provides that where a case involves special or technical information that goes beyond the legal expertise of the judge, the court may decide to seek the opinion of an expert, either on the request of either party or spontaneously. Experts cannot be consulted on matters that can be solved by general knowledge or experience, or with the legal knowledge of the judge. Courts ex officio choose experts from a list published by the Judicial Commission. Courts may appoint one or more experts, depending on the specific circumstances and scope of the case. As a rule, the time given to experts to prepare their reports should not exceed three months, but this can be extended by the judge.

After submission of the expert’s report, a party can submit a petition to argue against the expert’s assessment. Thereafter, the court will examine the objections and send the file back to the expert to prepare an additional report. The parties also have the right to object to the additional expert report. Depending on the parties’ claims, the judge either may rule based on the expert’s report or appoint a new expert to ensure that the case has been adequately examined.

In practice, if the reports prepared by different experts are contradictory, the judge may decide to appoint a new expert to produce a third report in order to resolve the conflict. Otherwise, the decision of the first-instance court is usually rejected by the High Court.

There are no rules that apply specifically to product liability suits. However, personal health data can be submitted as part of the evidence in product liability suits relating to medical devices and drugs. In accordance with the Law on Protection of Personal Data (6698), it is possible to disclose health data – which constitutes sensitive personal data – as evidence only with the explicit consent of the patient or under a court decision. Evidence that is not presented in this way may be deemed unlawful.

Pursuant to the Code of Civil Procedure, hearings and notification of decisions take place in public, which means that anyone can attend and observe the proceedings. This is in line with the principle of transparency and openness in the legal system.

However, in certain cases the court may decide to hold closed-door proceedings, such as those involving national security, privacy or the protection of minors. Additionally, the court may restrict access to certain documents or evidence if they contain sensitive or confidential information. The court will decide on a party’s request for confidentiality in a secret hearing. The court must justify any decision to restrict access and the parties to the case have the right to challenge such decisions.

As outlined in question 7.1, disputes up to a certain monetary limit must initially be filed before the Consumer Arbitration Committee (CAC). Otherwise, a lawsuit can be filed directly before the relevant court.

In principle, the competent court is the civil court of first instance, unless another certain court is explicitly specified by the law. Depending on the basis of the conflict and the status of the party as a consumer or trader, the competent court will be the commercial court or the consumer court.

Product liability litigation typically unfolds as follows:

• Mediation: The plaintiff initiates the mandatory mediation procedure before filing a lawsuit for receivables and compensation claims.
• Filing a complaint: The plaintiff files a complaint with the relevant court, seeking compensation for damages caused by a defective product.
• Notification of the defendant: The court notifies the defendant – which may be the manufacturer, distributor or seller of the product – of the lawsuit and provides it with a copy of the complaint.
• Response to the complaint: The defendant has the opportunity to respond to the complaint and provide its own evidence to defend against the allegations.
• Exchange of evidence: The parties exchange evidence and have the opportunity to examine each other’s evidence.
• Expert examination: The court may order an expert examination to assess the product and determine whether it was defective.
• Judgment: The court issues a judgment, in favour of either the plaintiff or the defendant, based on the evidence presented and the applicable laws and regulations.
• Appeals: Either party may appeal the judgment to a higher court.

In practice, the CAC generally issues its final decision within six months. There is no specified timeframe for a trial process, but in a best-case scenario it usually takes:

• around two years before the first-instance courts; and
• two to three years in total for the appeal process.

Mediation is mandatory both for commercial lawsuits involving monetary claims and for consumer disputes. If the parties cannot resolve the dispute through mediation, the claimant can file a lawsuit before the consumer courts.

There is also voluntary mediation in Turkish law, whereby the parties apply to a mediator either before or during the litigation in a bid to resolve the dispute, even though they are not obliged to do so.

The Code of Obligations and the Consumer Protection Law stipulate alternative remedies for consumers injured by defective products, depending on the nature of the claim and the extent of the damage suffered. Pursuant to Article 227 of the Code of Obligations and Article 11 of the Consumer Protection Law, the following remedies are available:

• Compensation for damages: The injured party may claim compensation for damages suffered as a result of the defective product. This compensation may cover both economic and non-economic losses, such as:
• • medical expenses;
  • lost wages;
  • pain and suffering; and
  • other related damages.
• Furthermore, product liability compensation can be claimed under the Law on Product Safety and Technical Regulations.
• Rescission of the contract: If the defect renders the product useless for its intended purpose, the injured party may demand that the contract be rescinded and the purchase price refunded by informing the seller that he or she is ready to return the goods.
• Replacement or free repair of the product: If the product defect can be remedied by replacement or repair, the injured party may demand that the product be replaced or repaired by the manufacturer or seller. Repair should not entail excessive costs. Pursuant to the Consumer Protection Law, claims for free repair and replacement of defective goods may also be asserted against the manufacturer and importer.
• Reduction of the purchase price: If the defect does not render the product completely useless, the injured party may demand a reduction in the purchase price to reflect the diminished value of the product.

The specific remedies available in a product liability suit will depend on the facts and circumstances of each case.

Any material and moral damages of the parties arising from product liability may be indemnified. Material damages include property damage and economic loss. Moral damages include pain and suffering, which refers to physical pain and mental anguish suffered as a result of the injuries caused by the defective product.

According to the prevailing principles of Turkish law, punitive compensation is recognised, since compensation has the function of compensating the damage and should not result in the unjust enrichment of the injured person due to the act that caused the damage. However, in some cases, the courts have nonetheless awarded non-pecuniary damages with the aim of punishing the offending party.

The Law on Product Safety and Technical Regulations will apply in determining the amount of material and moral compensation to be paid due to the damage caused by the product.

In this context, pursuant to Article 50 of the Code of Obligations, the burden of proof regarding the amount of the damage and, within this scope, the amount of pecuniary compensation due rests with the injured party. However, if the exact amount of damage cannot be proved, the judge will determine the amount of the damage according to equity, taking into account the ordinary course of events and the measures taken by the injured party.

The law does not provide for a technical method of calculating moral damages. Moral damages are quantified by evaluating certain criteria, including:

• the facts of the situation;
• the financial situations of the parties;
• the gravity of the parties’ fault in the incident (fault ratios);
• the magnitude of the non-pecuniary damage suffered (eg, death, injury or distress); and
• the value of money as of the date of the incident.

In determining the amount of moral damages to be awarded, the aim is not to enrich the indemnitee.

As the circumstances affecting moral damages may vary according to the characteristics of each case, the judge should exercise his or her discretion in determining the amount of compensation in accordance with the facts of the case. In justifying his or her decision, the judge should clearly indicate the circumstances and criteria that were taken into consideration in calculating the non-pecuniary damages.

As a rule, the Turkish civil courts system is a three-tier system, consisting of the first-instance courts, the regional courts of appeal and the Supreme Court. The first-instance courts are the first judicial forum for the resolution of disputes. The decisions of these courts are reviewed by the regional courts of appeal in terms of form and substance. Accordingly, the regional courts of appeal may uphold or overturn the decisions of the first-instance courts. Unless otherwise expressly regulated, the final review authority for decisions is the Supreme Court. In this context, first-instance decisions regarding monetary claims of up to TRY 378,290(for2024) and temporary legal protection procedures are not subject to review by the Supreme Court.

In all civil lawsuits, including product liability cases, the parties may appeal to the regional courts of appeal within two weeks of notification of the first-instance court decision, provided that the conditions set forth in Article 341 of the Code of Civil Procedure are met. For example, the following are subject to appeal before the regional courts of appeal:

• final decisions of the first-instance courts;
• refusal and acceptance of requests for interim injunctions and precautionary assessments; and
• decisions pertaining to monetary claims of more than TRY 28,250 (for 2024).

The timeframe for filing an appeal with the Supreme Court is two weeks from notification of the decision of the regional court of appeal.

There are two different types of litigation expenses in Turkey:

• official fees and reimbursements; and
• official attorneys’ fees.

As per the Code of Civil Procedure, official litigation costs include the following:

• fees for the hearing, decision and award;
• notification and postal expenses;
• the costs of providing evidence;
• the costs of filing and documentation;
• the costs of interim measures and the preparation of protest, denouncement, warning and proxy;
• the costs of discovery;
• the fees payable to witnesses and experts;
• the fees for documents obtained from government agencies; and
• official contingency fees.

The plaintiff must pay an advance for the expenses in an amount that is determined annually by the Ministry of Justice in the course of filing the lawsuit. As a rule, the official litigation costs are recovered from the losing party. If each party is partially justified, the court will allocate the costs of litigation proportionately among the parties.

Under Turkish law, in principle, court fees and legal costs are generally provided by the plaintiff at the beginning of the case. Thereafter, in accordance with the ‘loser pays’ rule, the successful party can recover its court fees and expenses incurred during the legal proceeding (eg, court costs) from the unsuccessful party. Once the award has been finalised, the court will decide ex officio to return the unused portion of the advance payment.

The party that wishes to withdraw will be ordered to pay the costs of the proceedings as if the case had been judged against it. In other words, if the claimant withdraws the claim, it may be ordered to pay the defendant’s costs and expenses incurred in defending the claim. This is because the defendant may have already incurred significant expenses in preparing its defence, such as hiring lawyers and experts, collecting evidence and attending court hearings. If the withdrawal relates only to part of the result of the request, the order for litigation costs will reflect this.

If the claim is withdrawn with the agreement of the defendant, the parties may enter into a settlement agreement, which will typically include a release from any claims relating to the defective product. The terms of the settlement agreement may be confidential and not disclosed to the public.

In accordance with the Fees Law (492), if the waiver of the case occurs during the first hearing of the trial, one-third of the decision and verdict fee will be collected. If it happens later, two-thirds will be collected.

If the dispute is resolved before the preliminary examination report has been signed due to the waiver, half of the fees determined in accordance with the Attorneys’ Minimum Fee Tariff must be paid. However, if it is resolved after the preliminary examination report has been signed, the entire fee will be awarded. This provision does not apply to contractual attorneys’ fees.

During the proceedings, the court may order additional costs for circumstances that arise. For example, if the file must be sent to an expert, the court may ask the parties to pay the costs of the expert; or if a witness is to be heard, the attendant costs may be requested from the party calling that witness. On the conclusion of the case, any remaining deposited costs will be returned to the relevant party, and the majority of the costs will be recovered from the losing party and awarded to the winning party.

As a rule, the official litigation costs are recovered from the losing party. If each party is partially justified, the court will allocate the costs of litigation proportionately among the parties. In addition to the court fees, the successful party will be granted official attorneys’ fees, which are determined in accordance with the Attorneys’ Minimum Fee Tariff.

The Code of Civil Procedure provides that individuals who meet certain eligibility criteria – such as low-income earners, persons with disabilities and victims of domestic violence – and prove that they cannot afford the trial costs, either fully or partially, may obtain legal aid.

The party seeking legal aid must submit to the court:

• a summary of the claim, together with the evidence on which he or she will base the claim; and
• documents regarding his or her financial situation showing that he or she is not in a position to meet the costs of the proceedings.

The documents regarding the legal aid request are exempt from all fees and taxes. Applicants will be granted legal aid if they have sufficient conviction that they are justified both in their claims and defences and in their request for temporary legal protection under legal aid.

However, the legal aid provided may not cover all expenses relating to the legal proceedings and the individual may still be responsible for paying certain costs and expenses. Additionally, the legal aid may be subject to repayment if the individual is awarded damages or compensation in the case.

Attorneys must be paid an official contingency attorneys’ fee set by the Union of Turkish Bar Associations each year in the Attorneys’ Minimum Fee Tariff. Payments made as attorneys’ fees cannot be below the tariff and agreements made under ‘no win, no fee’ clauses are not binding. In fact, ‘no win, no fee’ agreements are prohibited in Turkey under Article 164 of the Law on Attorneys (1136), which stipulates that attorneys may not enter into pro bono agreements with their clients. In addition to formal contingency fees, lawyers may freely request payment of contractual retainer fees, which will vary according to the lawyers’ request.

Third-party funding is not regulated under Turkish law; therefore, there is no specific regulation or legal framework in this regard.

The main statute governing product safety in Turkey is the Law on Product Safety and Technical Regulations (7223), which entered into force on 12 March 2021, annulling the Law on the Preparation and the Implementation of the Technical Regulations Regarding Products in Turkey (4703). The law is modelled on the EU regulations. The following regulations govern product liability:

• the Law on Product Safety and Technical Regulations (7223);
• the General Product Safety Regulation;
• the Code of Obligations;
• the Consumer Protection Law;
• the Regulation on Surveillance and Supervision of Products in the Market;
• the Regulation on Control of Food Safety and Quality; and
• the Food Codex Regulation.

Although they are not binding under Turkish law, the Turkish authorities generally seek to take into consideration the regulations of international organisations such as the World Trade Organization, the US Food and Drug Administration, the European Organization for Quality and the Food and Agriculture Organization during the legislating process.

The Law on Product Safety and Technical Regulations includes regulations on product safety in general. Specific product safety regulations also apply in certain sectors, such as:

• medical devices and pharmaceuticals;
• consumer products;
• vehicles; and
• food and beverages.

In such sectors, the special regulations have primary application; the general regulations will apply to matters not regulated by the special regulations.

Under Turkish law, the government agencies authorised to regulate product safety in each sector include the following:

• The Ministry of Agriculture and Forestry is responsible for the regulation, surveillance and inspection of food;
• The Medicines and Medical Devices Agency of the Ministry of Health is responsible for the regulation, surveillance and inspection of pharmaceuticals and medical devices;
• The Ministry of Trade is responsible for the regulation, supervision and inspection of imported products;
• The Ministry of Industry and Technology is responsible for ensuring that products placed on the market are safe and comply with relevant safety regulations. In order to ensure that products are tested and certified to meet safety standards, the ministry must also cooperate with other relevant public bodies and organisations, such as the Turkish Standards Institute and the Turkish Accreditation Agency; and
• The Ministry of Health, the Energy Market Regulatory Authority and the Ministry of Environment and Urbanisation monitor the market from their own perspectives.

These government agencies have the authority:

• to regulate the technical specifications of products and establish safety standards specific to each sector; and
• to take necessary measures such as product recalls and public announcements.

These institutions generally adopt a consumer-friendly approach. This is not a disproportionate form of favouritism; it rather makes it easier for consumers who have fulfilled certain conditions to exercise their rights.

The penalty rules for breaching product safety obligations will vary according to the technical regulations for all kinds of products.

Article 20 of the Law on Product Safety and Technical Regulations sets out the penalties to be imposed in case of violation of various regulations under the law. For example, anyone that violates the technical regulations or the general product safety legislation will be subject to administrative fines ranging from TRY 240,566 to TRY 2,405,665.

According to Article 185 of the Penal Code, the crime of adding poisonous substances is subject to a penalty of imprisonment for between two and 15 years. If this crime is committed in violation of the duty of care and diligence, the offender will be sentenced to imprisonment for between three months and one year.

According to Article 186 of the Penal Code, the penalty for the crime of trading in spoiled or altered food or drugs is:

• imprisonment for between one and five years; and
• a judicial fine of up to 1,500 days.

If this crime is committed within the scope of a profession or art that is officially licensed, the penalty will be increased by one-third.

According to Article 187 of the Penal Code, the penalty for the crime of producing or selling drugs that endanger people’s lives and health is imprisonment for between one and five years and a judicial fine. If this crime is committed by a physician or a pharmacist, or within the scope of a profession or art that is officially licensed, the penalty will be increased by one-third.

According to Article 193 of the Penal Code, the penalty for the crime of manufacturing and trading poisonous substances without permission is imprisonment for between two months and one year.

According to Article 194 of the Penal Code, the penalty for the crime of supply of hazardous materials for health is imprisonment for up to one year.

Within the scope of the General Product Safety Regulation, a ‘recall’ is defined as any measure aimed at removing from the market a dangerous product supplied or made available to consumers by the manufacturer or distributor. According to Article 19 of the Law on Product Safety and Technical Regulations, if the measures taken regarding a risky product are insufficient to eliminate the risk, the manufacturer or distributor must recall the product voluntarily or at the request of the competent authority. Under Turkish law, a recall is applied within the scope of the principle of last resort.

Under the General Product Safety Regulation, where manufacturers and distributors, within the framework of their knowledge and professional experience, learn that a product which they have placed on the market or kept on the market carries risks for consumers in terms of general safety requirements, they must:

• take measures to protect consumers; and
• inform the competent authority of the corrective measures and their results immediately and in detail.

A commercial enterprise that decides to recall a product by taking voluntary measures should notify the Customs and Foreign Trade Regional Directorate, providing all information and documents relating to the activity, as well as the timeframe required to complete the activity. This notification obligation is only imposed on the commercial enterprise within the scope of voluntary measures.

The recall measure must be announced by the commercial enterprise. The following information should be included in the announcement:

• the brand, model or type name, or other distinctive features of the product;
• if possible, a photograph or pictorial representation of the product;
• the measures taken;
• a clear and understandable description of the problem;
• the name, address and other contact information of the commercial enterprise;
• recommended methods to avoid the risk or resolve the problem;
• the address and contact points where the product will be collected or repaired; and
• the offers and options presented to end users. The commercial enterprise must offer at least one of the following options to the product recipients:
• • resolving the problem that led to the recall;
  • repaying the retail value of the product at the time of delivery; or
  • replacing the product with a safe, technically regulated equivalent.

After the recall announcement, entities such as responsible firms, pharmaceutical warehouses and pharmacies that continue to sell the faulty product will be subject to an administrative fine ranging from TRY 109,988to TRY5,500,667, depending on the nature of the offence.

Anyone that promotes or sells products in violation of the law, or that markets such products outside their approved indication, will be subject to an administrative fine of up to five times the total sales of the product in the previous year. However, this fine will not be less than TRY 100, 000.

An administrative fine of between TRY 220,010 and TRY 3,300,389will be imposed on anyone that promotes or sells products with health claims without obtaining permission from the competent authority or in violation of the permission granted. In case of repeated offences, the administrative fine to be imposed will be double that imposed previously.

If a commercial entity fails to fulfil its responsibilities during the recall process, an administrative fine of between TRY 33,679 and TRY 336,792will be imposed. Failure to comply with a recall can result in legal penalties, including fines and even criminal charges in some cases.

All costs associated with the recall must be borne by the commercial enterprise recalling the product. The commercial enterprise must establish the necessary conditions for end users to be able to deliver the product on time and easily, without incurring additional costs.

According to Article 19 of the Law on Product Safety and Technical Regulations, if the measures taken are insufficient to eliminate the risk, the commercial enterprise must recall the product on its own initiative or on the request of the competent authority. In a voluntary recall, the commercial enterprise initiates the recall without any external pressure from the government or the regulatory authorities. In doing so, it must comply with the requirements set out in question 16.2.

Alternatively, the government or regulatory authorities may require the commercial enterprise to recall the product if it poses a serious risk to public health and safety. The Ministry of Commerce will issue a notice of the recall and may also require the commercial enterprise to take additional action, such as providing compensation to affected consumers.

Pursuant to the Law on Product Safety and Technical Regulations, corrective measures include the following:

• Full and detailed information should be provided to the competent authority about the risk of the product and the corrective measures taken and their consequences.
• All necessary measures should be taken to ensure the conformity of an unsuitable product.
• Products that may pose a risk in certain situations or for certain persons should be marked with appropriate, clear and easily understandable warnings in Turkish about the risks. The risks should also be specified in the documents accompanying the product. The assembly, usage and maintenance instructions and safety rules should specify the preconditions for ensuring the suitability of the product for placing on the market; and people at risk should be promptly and properly warned about the risks.
• Where there are indications of serious risk, a temporary suspension will prevent the product from being placed on the market, kept on the market, offered or displayed until the necessary evaluations and controls have been conducted.
• If the certain risks are determined, the competent authority will ensure (i) prohibition of placing the product on the market, (ii) collecting the products that have been available on the market. Distributors must also be made aware of the recall and how to take decisions. End users must be warned about the risks of the product. In cases where it is impossible to make the products safe, they must be destroyed partially or completely depending on the risks they pose.
• The preventive measures taken to recall by the economic operator for each product should be notified to the competent authority.

Commercial enterprises should ensure that their products comply with the relevant Turkish product safety regulations, including those relating to labelling, packaging and certification. Clear and precise information on the products should be made available to consumers, including information on:

• how to ensure that the product is used in a secure way;
• all possible dangers or risks associated with the product; and
• any precautions that consumers should take when using the product.

To detect potential hazards and establish appropriate safety measures, enterprises should carry out a detailed risk assessment of the products. To this end, the product may have to be tested under a variety of conditions in order to determine how well it works and what safety measures consumers should take. In order to ensure that the product complies with the relevant safety standards, companies should apply appropriate quality control measures. These may involve the implementation of quality control procedures throughout the entire production cycle, from initial materials to end product. Finally, enterprises should monitor the safety of their products and respond promptly to any reports on product defects or safety concerns. This may involve recalling products or making refunds or substitute products available to affected consumers.

Where any of the crimes listed in Articles 185, 186, 187, 193 and 194 of the Penal Code regarding public health are committed, the trial will be conducted within the scope of criminal law. These crimes are as follows:

• adding poisonous substances;
• trading in spoiled or modified food or medicine;
• manufacturing or selling medicines that endanger people’s life and health;
• manufacturing and trading poisonous substances; and
• supplying materials that are hazardous to health.

(a) Which parties can be held responsible?

The responsible parties are as follows:

• under Article 185 of the Penal Code, anyone that adds poisonous substances;
• under Article 186 of the Penal Code, anyone that sells, supplies or possesses spoiled or modified food or medicine;
• under Article 187 of the Penal Code, anyone that manufactures or sells medicines;
• under Article 193 of the Penal Code, anyone that produces, possesses, sells or transports poisonous substances; and
• under Article 194 of the Penal Code, anyone that supplies or offers hazardous materials.

(b) Can individual officers or employees be held responsible?

The crimes outlined in question 17.1 can be committed by anyone, so individuals from any profession may be held responsible for these offence. However, as outlined in question 3.2, the perpetration of the relevant crimes by persons in certain professions is considered an aggravating factor.

(c) What is the basis for liability?

In accordance with the Penal Code, criminal liability is based on the principle of culpability, which means that only a person that has the intention or knowledge of committing a crime or that has acted negligently can be held liable.

(d) What penalties can be imposed?

Under the Penal Code, imprisonment and fines can be imposed as penalties.

In Decision 2022/2351 of the 10th Criminal Chamber of the Supreme Court, an expert report revealed that the substance called ‘sildenafil’ in the herbal mixture traded could endanger the life and health of individuals. The court upheld the finding that the crime of trading in spoiled or modified food or drugs had been committed and the penalty imposed.

In Decision 2017/4770 of the 20th Criminal Chamber of the Supreme Court, the first-instance court had evaluated expert reports concerning samples taken from cucumbers. The reports include findings such as:

• “the drug residue called Carbendazim, which went beyond the limit, may harm human health”; and
• “the amounts of pesticide residues named carbendazim and pyrimethanil detected in the sample are contrary to the communiqué”.

The Supreme Court overturned the not-guilty verdict, as even though the act was not defined as a crime in the law, it was still considered a misdemeanour and illegal. This will apply even if the offending act does not involve adding toxic substances or otherwise disrupting food, beverages or water.

• Volkswagen’s emissions lawsuit: In 2015, Volkswagen pleaded guilty in the United States to violating emissions testing standards, resulting in a worldwide scandal. Volkswagen has been sued in Turkey by a group of Turkish consumers for allegedly misleading them about the sale of vehicles fitted with ‘defeat devices’, intended to deceive emissions tests. In 2018, a Turkish court ordered Volkswagen to compensate consumers after ruling in their favour.
• Ford Kuga recall: Following a defect which led to some vehicles catching fire, Ford issued more than 20,000 recalls for its Kuga sports utility vehicle in Turkey in 2020. The recall, which exposed Ford to substantial costs and potential liabilities due to injury or damage caused by the defect, is in line with recalls that were carried out elsewhere.

In Turkey, the concepts of ‘product liability’ and ‘product safety’ are still used interchangeably. Therefore, there may be some confusion arising from the legislation; but with the emergence of new regulations and guidelines, this issue is being resolved step by step. As the legislation progresses on this issue, inspections have become stricter and product examinations have increased.

Strengthened regulation and enforcement – in particular, with regard to consumer products, foods and beverages and medicinal products – is one key trend affecting the Turkish product liability and safety regime. Product safety and quality controls in the manufacturing industry have also been given increased emphasis, focusing on preventing defects and ensuring regulatory conformity.

Moreover, consumer awareness of both pre-purchase knowledge and post-purchase rights is also increasing. Therefore, manufacturers, sellers and importers must pay closer attention to their products and ensure that their internal audits are flawless. Otherwise, in the event of a problem, their brand reputation may be severely damaged and they may face not only pecuniary and non-pecuniary compensation, but also administrative fines.

With the development and widespread use of artificial intelligence, product responsibility may also be discussed in this area in both decisions and regulations.

In addition, the defences available under Article 21 of the Law on Product Safety and Technical Regulations are another important issue on the agenda. Under this article, commercial enterprises will not be held liable if they can prove that:

• they discovered that the product which they put on the market, kept on the market or put into service was not suitable and remedied the defect voluntarily, without a request or warning from the competent authority; and
• they have taken all necessary measures, including recall, to eliminate the risk and completely remedy the defect.

To avoid product safety and product liability lawsuits, it is vital to ensure that products are manufactured in compliance with the general product safety legislation and technical regulations. End consumers should also be clearly informed about the conditions of use of the product, taking into account its intended use. Possible risks can be minimised if quality management is prioritised, technological opportunities are availed of at a sophisticated level, and consumer satisfaction is measured.