NEW TURKISH APPEAL SYSTEM INTRODUCED
On July 20, 2016, a new appeal procedure has entered into force in Turkey with respect to the relevant articles laid down by the Turkish Civil Procedure Code, named as "İstinaf Mahkemeleri" in Turkish. In this regard, 7 regional courts in major cities (İstanbul, Ankara, İzmir, Antalya, Erzurum, Gaziantep, Samsun) have been established initially and the previous appeal system has been changed. Decisions given by the Turkish Courts of First Instance prior to July 20, 2016 will however be subject to the former appeal system
Process of Lodging with Turkish Regional Court of Appeal:
Given the Turkish Regional Courts of Appeal have been formed, final decisions of Turkish Courts of First Instance may now be appealed before these as a first step.
The decisions of Turkish Courts of First Instance, which are subject to the examination of the Turkish Regional Court of Appeal are as follows:
- In principle, final decisions concerning material rights may be appealed, however, actions for amounts under TRY 3,000 are not involved in this examination because of being definitive, in other words, they may not be appealed.
- All the final decisions concerning immaterial rights may be appealed regardless of the value of claim.
- Although, applying to Turkish Regional Courts of Appeal is possible against the final judgments of Turkish Courts of First Instance, interim decisions regarding objections to dismissal and acceptance of preliminary injunction and precautionary attachments may also be appealed.
- Decisions which may be appealed before Turkish Supreme Court hereinafter will be subject to the examination of the Turkish Regional Court of Appeal. On the other hand, some of the decisions stated in special provisions cannot be appealed. For instance, decisions to be taken by the Consumer Courts upon the objections raised against the awards of the "Arbitration Committee for Consumer Problems" shall be the final decisions.
The duration of appeal against the final decisions of Turkish Courts of First Instance is 2 weeks. This period begins with the official receipt of the respective Court's ruling or the pronouncement of the decision by the Court.
However, the duration is 10 days against the decisions regarding Bankruptcy and Concordatum, whereas it is 8 days against the decisions of the Labor Courts, and 10 days against the decisions of the Debt Enforcement Courts.
The opposing party has 2 weeks to respond thereto, after the relevant appeal petition has been served.
Condition of Demand
In order for a final decision to be examined by Turkish Regional Court of Appeal, one of the parties should use the "right to demand for appeal". This is to say that, the cases are not sent to the Turkish Regional Court of Appeal by the Courts of First Instance ex officio.
Dismissal of Appeal Petition
If the file that is desired to be appealed is related to a "definitive judgment", Turkish Courts of First Instance should give a verdict for "dismissal of appeal". Such dismissal decision can be appealed within 1 week as of the official receipt thereof.
Examination of Turkish Regional Courts of Appeal
Primarily, the file is delivered to Turkish Regional Court of Appeal to make a preliminary examination whether the decision is a definitive judgment, application is made in due of time, the petition has minimum legal requirements and charges are paid duly. If any deficiency is not determined, the examination phase of Turkish Regional Courts of Appeal commences.
If the Turkish Regional Court of Appeal finds that the decision of the Court of First Instance is based on unlawful grounds, such Regional Court is then entitled to evaluate the file once again. In any case, examination must be made under the determined reasons stated in the appeal petition. New facts and evidences that were not asserted during the trial of the Court of First Instance cannot be examined at this stage. Turkish Regional Court of Appeal can only take into consideration such facts if relating to public order.
If the Turkish Regional Court of Appeal finds that the decision of the Court of First Instance is lawful in respect to the merits and procedure, then it shall reject the appeal.
Appeal before Turkish Supreme Court
The procedure of applying to Turkish Supreme Court is regulated under the articles 361 to 373 of the Turkish Civil Procedure Code.
In accordance with Article 361 of Turkish Civil Procedure Code, following decisions are subject to the review of Turkish Supreme Court;
- The judgments of the civil chambers of the Turkish Regional Courts of Appeal and;
- The judgments with respect to the cancellation of an arbitration award.
- In accordance with Article 362 of Turkish Civil Procedure Code, following issues are not subject to the review of Turkish Supreme Court;
- The decisions of Turkish Regional Courts of Appeal, amounts of which do not exceed TRY 40.000.-, (In case of a partial claim, the whole claim amount will be considered)
- The disputes within the jurisdiction of the Courts of Peace, (excluding the disputes regarding real property rights)
- The decisions on the place of jurisdiction,
- The decisions regarding ex parte proceedings,
- The decisions on the correction of the Civil Registry Records of persons, (excluding the cases which bears consequences regarding paternity)
- The decisions on transfer of legal actions,
- The decisions on temporary legal protections.
The period to apply to the Supreme Court is 1 month as from the service of the judgment of Turkish Regional Court of Appeal.
In accordance with the Article 371 of Turkish Civil Procedure Code, Turkish Supreme Court conducts its legal review to detect whether the Regional Court's decision is in conformity with the Substantive Law and the agreement between parties; if the causes of action are sufficient, whether the evidences were rejected without any legal ground or any other mistakes were made at the first appeal stage.
Different from the appeal process before the Turkish Regional Court of Appeal, Turkish Supreme Court is not bound with the reasons of appeal asserted by the parties.
Examination of Turkish Supreme Court
In case the ruling of Turkish Regional Court of Appeal is evaluated by the Supreme Court as lawful, the decision of the Regional Court of Appeal will be approved by the Turkish Supreme Court.
Corrective Approval Decision:
In case the ruling of the Turkish Regional Court of Appeal contains any mistakes that do not require a re-trial, Turkish Supreme Court will give a "Corrective Approval Decision".
In the event that the Supreme Court finds the appeal reasons just and fair, it will grant a "decision of reversal" regarding the ruling of Turkish Regional Court of Appeal, partly or wholly.
Should the decision of the Court of First Instance is dismissed due to the merits of the case by the Turkish Regional Court of Appeal unlawfully; Turkish Supreme Court will revoke the Regional Court's decision and will send the case to the respective Court of First Instance. Turkish Court of First Instance may insist on its former decision and in case of appeal again, the new appellate review will be conduct by the Civil Chambers Assembly of the Turkish Supreme Court. The decision of such Assembly shall be binding on the relevant Court of First Instance and the Regional Court of Appeal.
Turkish Regional Court Of Appeal's corrective decision or new decision; When Turkish Regional Court of Appeal grants a corrective or new ruling and one of the parties take it to the Supreme Court, the Supreme Court will send the case file to Turkish Regional Court of Appeal again if gives a reversal decision. In the event that Turkish Regional Court of Appeal abides by the reversal decision of the Supreme Court, the Regional Court of Appeal will be bound with that decision.
On the other hand, in case the Turkish Regional Court of Appeal insists on its former decision, this will be its final decision. Such decision is also appealable, in which case the new review will be conducted by the Civil Chambers Assembly of Turkish Supreme Court. This Assembly's decision shall be binding for the Court of First Instance and the Regional Court of Appeal.
The abovementioned appellate stage before Turkish Supreme Court does not affect the execution of the decision, however Article 36 of the Bankruptcy and Enforcement Law related to the suspension of execution is reserved.
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.