NEW APPEALING MECHANISM IN TURKISH JUDICIAL SYSTEM
The Code on the Establishment, Jurisdiction and Competence of the Regional Courts of Justice and of the Civil Courts of First Instance (in Turkish “Adli Yargı İlk Derece Mahkemeleri ile Bölge Adliye Mahkemelerinin Kuruluş Görev ve Yetkileri Hakkında Kanun”) numbered 5235, published in the Official Gazette dated 7 October 2004 (hereinafter referred to as the “Code”) has finally came into effect on 20 July 2016 with a delay of 12 years as of its adoption.
With the new appealing system, the Regional Courts of Justice undertake certain competences that have previously been undertaken by the Supreme Court (in Turkish “Yargıtay”).
The modalities related to the functioning of this new system have been foreseen mainly in Turkish Civil Procedure Code (in Turkish “Hukuk Muhakemeleri Kanunu”) and in Turkish Criminal Procedure Code (in Turkish “Ceza Muhakemesi Kanunu”).
The important aspects related to the new appellate mechanism of the Turkish judiciary system have been briefly explained here below.
1. Appellate System
The appellate body holds an important position as a judicial body evaluating the merits and the legality of the files. With the adoption of this new system, Turkish judicial system will henceforth have three component bodies, as listed here below:
- First Instance Body : Courts of First Instance
- Second Instance Body (appellate) : Regional Courts of Justice
- Cassation Body (cassation) : Supreme Court
Once brought to the appellate body, the files shall be evaluated with hearing or without hearing and directly on file by the Regional Courts of Justice as per the provisions of the applicable legislation. Hence, the appellate body judgments shall be rendered by the said courts.
Either party to any given lawsuit may proceed to the appeal to the Regional Courts of Justice against the decisions rendered by the Courts of First Instance. For such application, the parties shall submit a petition addressing their appeal request to the related jurisdiction. Such submission may be done directly to the court having rendered the decision, as well as to another court. In case the submission is made to another court than the one having rendered the decision against which the request is being made, such court shall receive, register and then transfer it to the former.
2. Difference from the Previous System
As from the 20 July 2016, the appellate evaluation related to certain decisions rendered by the courts of first instance has been transferred to the Regional Courts of Justice and shall no longer be conducted by the Supreme Court.
As a result thereof, appellate procedure and the cassation procedure shall henceforth refer to different concepts. The most important difference thereof is that;
- the cassation mechanism contains the evaluation of legality, that is, in the event of a mistake made by the courts of first instance at the choice of the legislation in force applicable to any given case, the Supreme Court shall be competent for the evaluation of the files so as to determine the correct legislation to be applied thereto,
- while the Regional Courts of Justice evaluate the files in terms of both legality and merits. Such consideration does not only determine the applicable legislation, but also comprises the decision rendering mechanism through a correctional evaluation upon the file based upon the application of the same procedural judgment methods as the first instance body.
3. Cases Triggering the Appellate Mechanism
The court decisions that may be subject to the appeal are foreseen in the article 341 of the Turkish Code of Civil Procedure and are listed as follows:
- The final decisions rendered by the courts of first instance,
- The decisions rendered by the courts of first instance (i) with regard to the acceptance of the requests for provisional injunction (in Turkish” ihtiyati tedbir” and/or lien (in Turkish “ihtiyati haciz”), as well as (ii) those rendered upon objection to the refusal of such requests,
- The decisions with regard to the property related lawsuits the amount or the value of which are equal or superior to TRY 1,500,- : The receivables may be claimed in whole or in part; however, in both cases, the determination of whether or not the file may be appealed shall be made upon consideration of the total amount of the receivable. If the receivable is claimed in whole, the parties may appeal against the decision only if the rejected amount of their claim is superior to TRY 1,500,-,
- The final decisions rendered by the courts of first instance related to the lawsuits and actions having been listed in the legislation in force as appealable before the Supreme Court; however, comprised into the field of competence of the Regional Courts of Justice as from the implementation thereof.
4. Application Period to Appellate Mechanism
Pursuant to Article 345 of the Turkish Civil Procedure Code, the application period of appealing remedy is determined as two weeks as from the communication date of the decision of the first instance court to the parties; except foreseen otherwise in special Codes.
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