Turkey: Challenging Decisions Of The Regional Courts Of Appeal

Introduction

By the inauguration of the Regional Courts of Appeal ("RCA") on July 20th, 2016, a change has been made from the two-tier appellate review system to one that is three-tier. Accordingly, the Courts of First Instance ("CFI") decisions given prior to July 20th, 2016 will be subject to the appellate articles of the abrogated Civil Procedure Code1 To the contrary, the CFI decisions given as of July 20th, 2016 will be subject to the appellate articles that are in effect in the Civil Procedure Code2 ("CPC"). This article covers the substantial parts of the three-tier appellate system and its diverging parts from the former system.

The Decisions of the RCA That Can Be Subject to the Review of the CoA

The ordinary appellate review system against the decisions of the RCA is the review before the Court of Appeal ("CoA"), which is stated at articles 361 to 373 of the CPC. However, only the decisions of the RCA that are not stated in Article 362 of the CPC is subject to the review of the CoA.

The Decisions of the RCA That Are Not Subject to the Review of CoA

According to Article 362 of the CPC, the following are not subject to the review of the CoA:

  • The decisions relating to monetary amounts that include, but do not exceed, TRY 25,000,
  • The disputes within the jurisdiction of the Courts of Peace, excluding the disputes arising from the Law on Condominiums No. 634, and that relate to real rights of the property,
  • The decisions relating to the disputes before the CFI as to competence and authority, as well as the decisions on the determination of the competent Court,
  • The decisions relating to ex parte proceedings,
  • The decisions on correction of the identification registers, excluding correction of paternity,
  • The decisions on the transmission of the cases to other courts due to legal or factual obstacles in order for the CFI to be able to pronounce on the case,
  • The decisions on temporary legal protections.

The stated decisions become final once the ruling is given by the RCAs.

It shall be noted that, in line with Article 363/2 (a), the aforementioned TRY 25,000 "finalization threshold" will be compared to the total amount of the receivable. Should the total amount of the receivable be requested in the lawsuit, the party whose refused requests are below TRY 25,000 will not be able to appeal the decision.

Upon losing the right of appeal due to being under the threshold, the party under the threshold can join the appellant by filing a reply to the appeal petition of the contrary party.

The Period of the Appeal

The final decisions rendered by the RCA may be challenged before the CoA within one month as of the notification date. It shall be noted that the period of appeal may vary in certain codes.

The Scope of the Review Made by the CoA

The CoA reviews the decisions of the RCA within the context of malpractice of the substantial law, in addition to reviewing the absolute and relative reversal reasons of the procedural law.

The absolute reversal reasons3 are malpractice of the procedural rules that lead to the reversal of the decision appealed to the CoA. The breach of the causes of action, rejection of the evidence without any legal reasoning, the RCA decisions without any justification or illegal compositions of the Courts are among absolute reversal reasons.

Similarly, relative reversal reasons are the malpractice of procedural rules, but they require a casual relation between the malpractice and the decision in order to lead to a reversal decision. Accordingly, if it is claimed that the decision of the Court would be different in the event of practicing the procedural rules in the order, then the decision of the Court will be reversed. As an illustration, the omission of a required hearing and obtaining a ruling from the RCA that was affected by this procedural malpractice is a relative reversal reason.

The CoA is not bound by appellate reasons raised by the parties and can review other issues that may be infringements of the law4. Contrary to this, with the exception of ex officio review of public policy issues, the review scope of the RCA is limited to the appellate reasons raised by the parties. This issue was examined by the CoA in a November 11th, 2016 ruling5. It was stated that the decision of the CFI was appealed to the RCA without raising any appellate reasons, and the RCA only made a review within scope of the public policy. As the RCA did not find any infringement of public policy during the review, it has rejected the application. The decision of the RCA was later on appealed before the CoA, where the CoA had approved the decision of the RCA. The necessity of raising appellate reasons clearly before the RCA was emphasized in the ruling.

Approval Decision of the CoA

Should the judgment made by the RCA be found to be in lawful order, the decision of the RCA will be upheld by the CoA.

Should the judgment made by the RCA contain mistakes on the application of law, identification of the parties, calculation and statements that do not require a re-trial, then the CoA may give a corrective approval decision. Similarly, should the judgment have been made in lawful and procedural order, but contains mistakes on its reasoning, the CoA may give an amending corrective approval decision.

As the revision of a decision is annulled in the three-tier appellate review system, the decisions are finalized upon the approval of the CoA.

Reversal Decisions of the CoA

Should the judgment of the RCA be found to not be in lawful order, the decision will be reversed by the CoA. In such a case, the essence of the RCA decision affects the destination of the reverse decision.

In this manner, there are two types of RCA decisions that may be subject to the CoA's review. The first one is CFI decisions that are challenged before the RCA, where it finds the CFI decisions to be in lawful order and rejects the request of an appellate review. Should the rejection decision of the RCA that is challenged before the CoA be reversed, the file will be sent to the CFI. Hence, in such a case, the RCA that rejects the request of appellate review of a CFI decision does not evaluate the merits of the case. By doing so, it approves the legality of the CFI decision, and enables it to be subject to the review of the CoA.

The second type of the CFI decisions that could be challenged before the RCA are the acceptance of appellate review requests made before the RCA. In this case, the RCA could either rule on the correction of the CFI decision, or pronounce a new decision on the merits of the case. Following this, should the decision of the RCA that is challenged before the CoA be reversed, the file will be sent to the RCA. Hence, in this scenario the RCA, whose decision is subject to appellate review, has evaluated the merits of the CFI decision, and has ruled differently from the CFI. Accordingly, the review made by the CoA is made on the decision of the RCA that results in sending the reversal decision to the actual owner of the recent decision, which is the RCA.

In pursuit of the reversal decision given by the CoA, the Court (either the CFI or the RCA) re-examining the file will decide as to compliance or resistance. No matter which Court rules on the compliance or resistance, this decision can only be reviewed by the CoA. In case of a review made on the resistance decision at the Civil Court Assembly of the CoA, the decision of the Assembly will be binding.

The Effect of Appellate Review on the Execution of the Decision

In line with Article 367 of the CPC, the appellate review applications made against the RCA decisions do not affect the execution of the decision. It shall be noted that Article 36 of the Bankruptcy and Enforcement Law on the suspension of execution is applicable in such a case.

Conclusion

As of July 20th, 2016, a switch-over from two-tier appellate review system to a three-tier one has been made. Within this scope, from this date forward, the decisions of the CFI will be subject to appellate review by the RCA, and the decisions of the RCA that are eligible to be appealed will be reviewed by the CoA. The decisions approved by the CoA will become final, as the revision of decision review was annulled in the three-tier system. The decisions that are reversed by the CoA will either be returned to the CFI or to the RCA in accordance with the quality of the decision reviewed.

Footnotes

1 July 4th, 1927 dated; 622, 623 and 624 numbered Official Gazette.

2 February 2nd, 2011 dated, 27836 numbered Official Gazette.

3 Baki Kuru, İstinaf Sistemine Göre Yazılmış Medeni Usul Hukuku (The Procedural Law Written According to the Appellate System of Regional Court of Appeal), 2016 İstanbul, p. 709.

4 Hakan Pekcanıtez / Oğuz Atalay / Muhammet Özekes, Medeni Usul Hukuku (The Procedural Law), 2013 İstanbul, p. 898.

5 Court of Appeal's November 17th, 2016 dated, 2016/35343 E., 2016/ 20173 K. merit numbered decision.

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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