The Law on Establishment and Authorization of the Courts of Judicial First Instance and Regional Courts ("EARC"), was published in the Official Gazette on 7 October 2004, and came into force on 1 June 2005. Along with this enactment, following the establishment of the courts of first instance, the law governing Regional General Courts has been introduced within the framework of the same jurisdiction as the courts of first instance. Accordingly, the court of first instance will conduct the first hearing and render a verdict. The Regional Court will conduct a hearing with limited jurisdiction, as well as reviewing the verdict of the court of first instance and, finally, the Court of Appeal will review the former decisions. In order to harmonize the newly enacted law and the existing Code of Civil Procedure ("CCP"), some amendments were introduced to the CCP. Despite the EARC being effective, its provisions could not begin in practice due to the physical infrastructure of the Regional General Courts, which have not yet been established. The EARC provides that the Regional General Courts should be established within two years starting from the date the law came into force. As a result, until established, the already existing pieces of legislation concerning appeals will continue to be applied.
Currently, an appeal of the verdicts of first instance courts’ should be made to the Court of Appeals. Depending on the nature of the lawsuit, one of the twenty-one judicial offices decides to affirm or reject the judgment of the court of first instance. A challenge to the decision of the Court of Appeals can be made through a further remedy referred to as a ‘Correction of Appeal’. However, the same chamber of the Court of Appeals examines and decides on the request for a correction of appeal. Consequently, in general practice, the Court of Appeals’ verdicts rarely change.
Subsequent to establishment of the Regional General Courts, the EARC will effectively come into force. Under Article 33 of the EARC, a fundamental duty will be "…to examine and to reach a decision against the verdicts and legal decisions which have been rendered by judicial courts of first instance and which are not certain…." Upon appeal, it will be possible to make an examination limited to the extent of the reasons that have been alleged by the Regional General Court or regarding the general public conscience disturbed by the ruling of the court of first instance. Consequently, after the appeal examination, the Regional General Court may completely overrule the decision of the court of first instance in line with the demand, or render a new decision regarding the dispute. However, according to the present appeal system, the Court of Appeals is not only constrained by the demands of the parties, as it conducts legal examinations inculuding the evaluation of evidence of the court of first instance’s verdict.
According to the new law, during the appeal stage, claims and arguments that have not been raised at the court of first instance cannot be heard and evidence that has not been submitted to the court of first instance, although permissible, cannot be submitted to the Regional General Court. Nevertheless, evidence that was rejected without examination and that could not have been presented due to force majeure events can be examined at the Regional General Court. According to the new law, the Regional General Court, at this phase, can further adjudicate and make assessments of the evidence. Despite the fact that some demands such as counterclaims, requests to join a lawsuit, consolidation of actions and bills for reformation, can be raised at the court of first instance, under the new law they cannot be requested during the appeal stage.
Decisions of the Regional General Court can be challenged before the Court of Appeals. Once the decision of the Regional General Court is challenged, the Court of Appeals may affirm, reverse or overrule the decision of the Regional General Court. If the verdict is overruled, then the lawsuit file may either be sent to the court of first instance where the decision had been initially rendered or to an appropriate court where a new decision may be rendered by the Regional General Court.
The remedy of appeal introduced by the new law is likely to further slowdown the judicial system. As understood, "delay means justice denied". However, if the appellate courts organize well, then the three progressive inspections, instead of two inspections, may be beneficial both for the Turkish law and continental law. Furthermore, the Regional General Courts will have the opportunity to focus on the essence of the case, with the plausible consequences of fairer judgments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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