THE STRUCTURE OF THE COURTS
Civil courts are divided into two as i) general courts and ii) private courts. The practice of the general courts is not limited to a particular group of persons or a particular business group. They deal with all kinds of businesses and cases within the scope of the civil procedure law. Courts dealing with certain persons and particular business are private courts.
The types of general courts are:
- Court of Peace,
- Court of First Instance,
The types of private courts are:
- Commercial Court of First Instance.
- Labor Courts,
- Cadastral Courts,
- Consumer Courts,
- Family Courts,
- Enforcement Courts,
- The Specialized Courts for Intellectual and Industrial Property Rights.
Every case that does not have a legal provision to be heard in private courts is heard in general courts.
- Duties and Powers of Courts and Place of Jurisdiction
One of the essential considerations is whether the court oversees dealing with the lawsuits in question when filling a lawsuit. To determine the competent court for a particular case, it is first investigated whether the case falls under the jurisdiction of general courts or special courts. The task of the private courts takes precedence over the general courts.
As per article 1 of the Code of Civil Procedure Law no. 6100 (“CCP”), the tasks of the courts are regulated only by law.
Lawsuits that fall within the jurisdiction of Civil Courts of Peace are as follows:
1) Lawsuits arising from the rental relationship.
2) Lawsuits regarding the division of movable and immovable property or right and dissolution of the partnership.
3) Lawsuits for the protection of possession in movable and immovable properties.
4) Lawsuits in which the CCP and other laws assign Civil Courts of Peace or a magistrate.
Lawsuits Falling Under the Jurisdiction of the Civil Courts of First Instance
As general information, civil courts of the first instance are divided into i) civil courts of the first instance and ii) commercial courts of the first instance. According to the article 5 of the Turkish Commercial Code (“TCC”), commercial cases fall under the jurisdiction of the commercial court of the first instance. However, as per article 2 of the CCP, civil lawsuits fall under the jurisdiction of the civil court of first instance. In article 4 of the TCC, it has been specified which cases are commercial.
It is possible to qualify cases other than commercial cases as civil cases. Some civil cases fall under the jurisdiction of the Civil Courts of Peace, and some of them fall under the jurisdiction of the Civil Court of First Instance. Civil courts of the first instance are in charge of civil cases that do not fall under the civil court of peace jurisdiction.
Since the subject of the competent court is a condition of litigation related to public order, the courts examine ex officio whether they are in charge regarding the dispute before them. If they realize that they are without jurisdiction for the issue in question, they make a foreign plea decision. The court that resolves non-jurisdiction must notify the court in charge of the jurisdiction and send the case file to the competent court. As per articles 341/1 and 362/1-c of CCP, non-jurisdiction is a final procedural decision. This decision can be appealed against, but the decision of the Supreme Court cannot be appealed.
Jurisdiction determines in which court has the authority to hear a case. The concept of jurisdiction is divided into two as i) international jurisdiction and ii) internal jurisdiction. International jurisdiction determines which state’s courts will hear a case. However, internal jurisdiction determines in which court within the territory of a particular state a case will be heard.
The jurisdiction of the courts is regulated by law. Accordingly, the jurisdiction of the civil courts (apart from the jurisdictional provisions in other laws) is subject to the provisions of CCP.
General Jurisdiction-Special Jurisdiction Separation
As per article 6 of the CCP, a competent general court is the court of the settlement of the natural person or legal person defendant on the date of the lawsuit. However, in some types of cases, courts other than the defendant’s settlement court are competent. In such exceptional cases, special jurisdiction rules are encountered. For instance, in cases arising from contractual relations, the court where the contract will be executed is also competent. Except in certain jurisdictions, even if there is a unique jurisdiction rule for a case, the plaintiff has a preference and may file the lawsuit in a competent general court or a special competent court.
Settlement of Natural Persons
Filing a lawsuit against natural persons residing in Turkey:
Lawsuits to be filed against natural persons residing in Turkey shall be filed in settlement courts on the date of the lawsuit. By article 19/1 of the Turkish Civil Law (“TCL”), a settlement is a place of habitual residence.
Filing a lawsuit against non-residents in Turkey:
As per articles 10,14,15 and 16 of the Private International Law No. 5718 (“PIL”) against those who do not reside in Turkey, lawsuits can be filed in special competent courts. Apart from the special competent courts, there are two general competent courts for lawsuits to be held against persons who are non-resident in Turkey:
- The defendant’s habitual residence in Turkey or
- The lawsuit regarding the property rights can be filed in the court of the place where the item of property in dispute is located.
Settlement of legal persons
The settlement of the legal entities (unless there is another provision in the incorporation contract) is the place where business is managed.
The competent court in case the number of defendants is more than one
If the number of defendants is more than one, the case may be filed in the court existing in the residential area of one of them.
Jurisdiction Agreement (Parties’ Contractually Authorizing the Incompetent Court)
Within the scope of CCP, it is accepted that the parties can make a jurisdiction agreement. Making a jurisdiction agreement is desired to make a court that is not authorized in the case in terms of procedural law. In this context, since the effect of the contract arises in the field of procedural law, it would be correct to talk about a contract on procedural law. The provisions of the contract of authorization shall be subject to procedural law. However, CCP has placed some limitations on this issue.
Situations where a jurisdiction agreement cannot be made are as follows:
- In cases of the existence of definite jurisdictional authority, a jurisdiction agreement cannot be concluded.
- A jurisdiction agreement cannot be concluded on matters that the parties cannot freely dispose.
- Persons other than merchants and public legal entities cannot conclude a jurisdiction agreement.
- According to the article 17 of the CCP, merchants or public legal entities may authorize one or more courts with a contract regarding a dispute that has arisen or may arise between them.
- The jurisdiction agreement may be concluded as a separate contract or as a condition of jurisdiction to be added to the contract between them. The jurisdiction agreement must be made in writing. The written form requirement is a validity condition. For this reason, the existence of a jurisdiction agreement that has not been made in writing cannot be proved by any other evidence.
Objection to Jurisdiction
- Objection to Jurisdiction in cases of Definite Jurisdictional Authority
As it can be understood from the wording of the CCP, the rules of jurisdiction in cases that are understood not to be filed in any other place other than the place or places specified in the CCP are the definitive jurisdictional authority. In cases where the jurisdiction is certain, the court should investigate whether it is competent until the end of the case. The parties can also claim that the court is not competent at any stage of the case because definite jurisdiction is a cause of action. In some cases, CCP envisages definite jurisdictional authority. In this case, the lawsuit can only be filed in the court or courts stipulated in the CCP. To give an example of the definite jurisdictional authority in CCP, lawsuits arising from the right in rem of a property are filed in the place where the immovable property is located (Article 12).
- Objection to Jurisdiction in cases of Indefinite Jurisdictional Authority
Where there is no definite jurisdictional authority rule, the objection to jurisdiction is the preliminary objection. In cases where the jurisdiction is not final, the objection to the jurisdiction must be put forward in the reply petition. Under articles 116 and 117 of the CCP, in cases where the jurisdiction is not related to public order, the objection to the jurisdiction must be submitted together with the reply petition.
Deadline for Objection to Jurisdictional Authority
The objection to jurisdictional authority must be put forward in the reply petition. The response period is two weeks from the notification of the petition to the defendant. The defendant can make the first objection to the authority within the two-week response period. However, the court may give an additional response time not exceeding one month.
Making Objection to Jurisdictional Authority
The objection to jurisdictional authority must be put forward in the reply petition. Additionally, in cases other than the certain jurisdictional authority, the court cannot automatically issue a decision of lack of jurisdiction.
The Decision of Rejection of Venue
If the objection to jurisdictional authority is not duly (for example, it is made after the deadline or if the competent court has not been notified in the objection to jurisdictional authority), the court decides to reject the objection to jurisdictional authority even if the court is not competent (without investigating this issue). Additionally, if the court considers it competent because of the examinations made on a duly objection to jurisdictional authority, the court decides to reject the objection to jurisdictional authority. The court should determine the competent court’s decision to reject the venue and send the case to the competent court.
PLACE OF JURISDICTION
Although the rules of competence of the court and jurisdictional authority are specified in the Law, in some cases, hesitations may arise about which court will hear the case, or there may be obstacles for the court that hears the case to hear this case. In such cases, it is necessary to determine which court will hear the case. For this purpose, the competent and jurisdictional authorized court is designated by determining the place of jurisdiction. The term court in this article (Article 21) includes both first instance courts and regional courts of appeal. Under article 21 of CCP, circumstances requiring the determination of jurisdiction are as follows:
• Any obstacle to the competent court may occur to hear the case. This obstacle can be factual or legal.
• As per article 21/b, if there is any hesitation between the two courts regarding determining the boundaries of the jurisdictions, determining the place of jurisdiction is applied.
• If both courts decide non-jurisdiction and these decisions become final without appeal, the court of appeal decides on the determination of the place of jurisdiction.
• In cases of certain jurisdiction, both courts give a decision of non-jurisdiction and if these decisions are finalized without appeal, the court of appeal decides on the determination of the place of jurisdiction.
Procedure for Determining the Place of Jurisdiction
If there is an obstacle for the competent court to hear a case, or if there is hesitation about judicial locality between two courts, an application is made to the regional courts of appeal for the courts of the first instance and the Supreme Court for the regional courts of appeal for the appointment of the competent court (article 22/1).
If the decision of the two courts at the same time regarding the jurisdiction and authority of the case becomes final without resorting to a legal remedy, in this case, the regional court of appeal or the Supreme Court determines the competent or authorized court, depending on the outcome of the situation (article 22/2).
The examination on the determination of the judicial locality can be done through the case file (Article 22/3). It is not possible to appeal against the regional courts of appeal regarding the place of jurisdiction (Article 362/1-c). These decisions are final and bind the judge of the first instance court (Article 23/2). The decisions of the Supreme Court regarding the determination of judicial locality are final. This decision is binding on the court that hears the case later (Article 23/2).
Division of Labor between the General Courts and the Private Courts
While determining the relationship between general courts and private courts, a distinction should be made as to places where there are separate private court and where there is not.
If there are private courts such as labor courts, family courts, and consumer courts general and private courts is a jurisdiction relationship. If the case is filed in a non-competent court, the court gives a decision of no jurisdiction. If the case is filed in a non-competent court, the court gives a decision of no jurisdiction.
In some places, due to lack of work or judges, there are no private courts. In such places, the civil court of the first instance deals with the cases within the scope of the jurisdiction of private courts. In this case, the case should be filed in the general court as a private court.
The lawsuits concerning the receivables of the employee or employer, compensation, or reemployment which based upon the Labor Code (“LC”) or collective labor agreement the claimant must submit to the arbitrator. This is a cause of action. The plaintiff must attach a copy of the minutes stating that the parties could not agree in the mediation to the petition. If this report is not submitted to the court, the court gives a definite period of one (1) week tosubmit of the minutes. Otherwise, it is also indicated that the lawsuit will be rejected out of procedure in the written warning.
No arbitration clause or arbitration agreement can be made for disputes within the scope of the jurisdiction of labor courts.
Labor courts deal with all kinds of disputes arising from the contract or the law due to the employment relationship between the seafarers subject to the labor law, the workers subject to the service contract, and the employer or employer’s representatives.
The place of jurisdiction in cases to be filed in labor courts is the defendant’s (real or a legal person) place of residence on the date of the lawsuit, and where the work or transaction is carried out.
If there is more than one the defendant, residential address of one of them is also an authorized court.
In compensation cases arising from a work accident, the place of jurisdiction is the place of work accident or damage occurred and the residential address of the injured worker.
Cadastral Courts belong to the general courts. They deal with the cases about the application of the Cadastral Code and works.
Consumer courts handle cases related to consumer transactions and disputes arising from consumer-oriented practices. There are separate consumer courts in metropolia such as Istanbul, Adana, Ankara, İzmir, Antalya, Bursa, Samsun, Konya, Kayseri, and Mersin; however, in places where there is no separate private court, the competent court for the consumer lawsuits are the civil court of the first instance.
Consumers, Consumer Organization and Customs and Trade Ministry can lodge a consumer lawsuit in the consumer courts. The lawsuit filed by the sellers against the consumers is not a consumer lawsuit and not within the scope of the jurisdiction of the consumer courts.
Family courts deal with the works and lawsuits about the Turkish Family Code. The family court deal with the lawsuits such as annulment of marriage, action for divorce, suit of paternity, abolition of filiation, and alimony case.
Generally, family courts promote the parties to settlement by peace.
Enforcement courts check whether the transactions of the enforcement and bankruptcy offices are correct and perwith the law and do other works specified in the law. The most important duty of the enforcement court is to examine complaints against the actions of enforcement offices and examine the creditor’s request for the removal of the objection. The enforcement court also audits the enforcement office in terms of discipline. The enforcement court also hears the lawsuits to recovery property (rei vindicatio) concerning attachment and bankruptcy.
Civil Courts for Intellectual and Industrial Property Rights
It is the competent court for lawsuits and works arising from legal relations regulated by the Law on Intellectual and Artistic Works No. 5846. This court can also issue an injunction order.
JUDGMENT FEES AND EXPENSES
All the money paid for a lawsuit to be concluded is called “judgment fees and expenses”. These are divided into two as a) court fees and b) court costs.
The public service provided by the state is accessible as a rule. However, since individuals are helped to attain their rights in private law, it was deemed appropriate to pay some of the expenses incurred by the persons who applied to the court.
The fees and their rates (judicial fees) to be charged in a case are shown in the Law on Fees no. 492 (“Law on Fees”), especially in Tariff No. 1.
The application fee is a fixed fee that must be paid in advance when the filing a lawsuit. The reply petition and the second reply petition are not subject to an application fee (and any other fee).
Decision and Verdict Fee
There are two types of resolution and declaration fees:
1) Proportional Decision and Verdict Fee
If the value of the subject of the lawsuit (for example, real estate) is not shown in the petition, this value (by the court) is determined by the plaintiff. If the plaintiff refrains from determining the value, the petition will not be processed. In cases where the subject matter is related to a certain value and if a decision is made on the base, the decision and verdict fee is charged proportionally over the disputed value. Accordingly, the balanced decision and verdict fee is collected only if the case is decided to be accepted.
One-quarter of the balanced decision and verdict is paid in advance by the plaintiff when filing a suit. The remaining one-third of the balanced decision and verdict fee is paid within one month from the notification of the decision regarding the acceptance of the case.
2) Fixed Decision and Verdict Fee
In cases where the subject is not related to a certain value (something that cannot be evaluated with money), fixed decision and verdict fees are charged. For instance, divorce cases are subject to a fixed fee. The entire fixed fee is collected from the plaintiff in advance at the time of filing the lawsuit.
Consequences of non-payment or underpayment of fees
Unless the fees to be collected from the judicial procedure are not paid, the following proceedings cannot be carried out. For instance, the court cannot examine and decide on a case who advance fees have not been paid.
All the money paid by the parties for the trial and conclusion of the case is called litigation expenses. These are the expenses that must be paid to carry out the judicial protection activity and that are incurred for this reason. These expenses are the legal fees, expenses, and retainer. The scope of litigation expenses is as follows:
– Trial fees, decision, and verdict fees are litigation expenses.
– Notification and postal expenses due to the lawsuit are litigation expenses.
– File and other documental expenses are litigation expenses.
– Temporary legal protection measures and expenses related to the issuance of protest, notice and power of attorney are litigation expenses.
– Exploration expenses are litigation expenses.
– Fees and expenses paid to the witness and expert are litigation expenses.
– Fees, taxes, and other expenses paid for the documents received from official offices.
– Expenses of the days when the parties are present in cases that an attorney does not follow up are litigation expenses.
– Retainer to be appreciated following the law in cases followed by an attorney is litigation expenses.
– Other expenses incurred during the trial are litigation expenses.
Litigation expenses consist of those asmentioned above. It is possible to claim expenses other than these as litigation expenses from the party who lost the case.
According to article 326/1 of the CCP, as a rule, it is decided to collect the costs of the trial from the party against whom the verdict is given. However, there are some exceptions to this rule:
The plaintiff pays one-third of the fixed decision and verdict fee if the plaintiff has waived the case in the first hearing. If the plaintiff accepts the case later, then pays two-thirds.
If the defendant accepts the case in the first hearing, the defendant pays one- third of the balanced decision and verdict fee if accepted the case in the first hearing. If the defendant accepts the case later, then pays two-thirds.
Litigation Expenses in the case that Has Not Been Concluded on the Merits
In cases where there is no need to decide on the merits of the case since the case is without subject, the judge will appraise and adjudicate the litigation expenses according to the justification of the parties at the date of the lawsuit. If the case is continued in another court after the decision of lack of jurisdiction, the competent court shall decide on the costs of the proceedings.
Retainer between the Attorney and the Client
If a party chooses to be represented by an attorney, then pay the retainer.
The Attorney agreement is made between the client and the attorney and is subject to the articles of the Turkish Code of Obligations (“TCO”) regarding freedom of contract. The attorney follows the case and undertakes to the end of the law, even if there is no written contract. The attorney must carry out the case to the end to get the retainer. Therefore, unless otherwise stated in the attorney agreement, the retainer becomes due at the end of the case.
Retainer as Litigation Expense
Pricing for litigation and enforcement proceedings is based on the Attorney’s Minimum Fee Schedule published by the Union of Turkish Bar Associations on 24 November 2020 (“Tariff”). The Tariff shows the minimum and the maximum amounts that an attorney may request from its client for litigation and enforcement proceedings. As per article 3 of the Tariff, the retainer cannot be less than or more than three times the amount written in this Tariff. The court obliges the wrongful party to pay the retainer ex officio.
PRIVATE JUDICIAL PROCEEDINGS
The rapid procedure and oral procedure have been abolished in the Code of Civil Procedure. There are two types of judicial proceedings:
- Written Judicial Proceeding
- Basic/Ordinary Judicial Proceeding
Basic/Ordinary judicial proceeding is a private judicial proceeding that is faster and simpler than the written judicial proceeding.
Per the Code of Civil Procedure, the lawsuit based on ordinary judicial proceedings are as follows:
- Cases and affairs within the scope of the jurisdiction of the civil courts of peace,
- Labor courts,
- In cases where the court has the discretion to decide on the file/summary judgment.
- Temporary legal protection measures
- Alimony case, guardianship, and curatorship cases
- Lawsuits arising from the service relationship
- Lawsuits to be filed regarding concordat and restructuring of capital companies or cooperatives by compromise.
- Proceedings and provisions concerning arbitration
In the ordinary judicial procedure, the lawsuit is filed with a petition. The elements of the petition are:
- Name of the court
- Name, surname, and address of the claimant and the defendant
- The Turkish identity number if there is a trade registration number and legal person identity number
- Name, surname, and addresses of the proxy and the claimant
- The subject of the case
- Summary of the claims of the plaintiff
- Conclusion of the claim in a clear way
- Legal grounds
- Signature of the plaintiff and his/her proxy if there is.
Filing a lawsuit, consequences of litigation are subject to the procedure in the written judicial proceeding however, the prohibition of expanding and changing the claim in the ordinary judicial procedure begins from the moment of filing the lawsuit.
In the ordinary judicial procedure, responding to the case is done with a petition. Response time is two weeks from the notification of the petition to the defendant. Depending on the conditions, if it is very difficult or impossible to prepare the reply petition in two weeks if the defendant requests to the court in this period the court may give additional time; however it should not pass two weeks. The parties cannot submit a reply petition and a second reply petition. By submitting the reply petition to the court, the prohibition of expanding or changing the defense begins.
In the basic/ordinary judicial proceeding, preliminary examination and inquiry procedures have also been simplified. If it is possible to decide on the case file (i.e., temporary legal protection), the parties can be decided only by considering the petition and evidence without being called to the hearing (Article 320/1).
In cases where the Civil Code of Procedure and other laws do not contain provisions regarding the ordinary judicial procedure, the provisions regarding the written trial procedure are applied.
Cases in the civil courts of peace and labor courts where the ordinary judicial procedure is applied are not heard during the judicial holiday; however, and if it is stated that the case is urgent, it is also seen during the judicial holiday.
Civil jurisdiction is divided into two as i) contentious jurisdiction and ii) non-contentious jurisdiction.
Non-contentious judicial affairs are clearly stated in the Code of Civil Procedure:
- Non-contentious judicial affairs in personal law (CCP Art. 382/2-a)
- Non-contentious judicial affairs in family law (CCP Art. 382/2-b)
- Non-contentious judicial affairs in inheritance law (CCP Art. 382/2-c)
- Non-contentious judicial affairs in law of property (CCP Art. 382/2-ç)
- Non-contentious judicial affairs in law of obligations (CCP Art. 382/2-d)
- Non-contentious judicial affairs in commercial law (CCP Art. 382/2-e)
- Non-contentious judicial affairs in law of enforcement and bankruptcy law (CCP Art. 382/2-f)
- Non-contentious judicial affairs in other laws (CCP Art. 382/2-g)
- Other Non-contentious judicial affairs (CPP Art. 382/1):
Apart from those specified in CPP article 382/2, the matters within the scope of the following three criteria are also uncontested jurisdictions specified in article 382/1 of the CCP:
- Cases where there is no conflict between the parties involved,
- To not have any subjective right to claim,
- Cases where the judge acts ex officio.
Non-contentious judicial affairs are not litigation. A non-contentious judicial affair may be accepted as a contentious judicial affair during the trial. The competent the court is civil court of peace in non-contentious judicial affairs. With a special provision of law, a court other than the court of peace may also be appointed for some uncontested judicial matters:
- Under Article 5/1 of the TCC commercial court of the first instance is in charge of uncontested judicial matters of a commercial nature.
- Under Article 4/1 of Family Court Law, family courts are in charge of non-contentious judicial matters arising from family law.
- Under Article 397/II of the Code of Civil Law in guardianship matters, the court of the first instance is in charge as the supervisory authority.
- Under Articles 383 and 385/3 of the CCP, some uncontested judicial matters may be left to official bodies other than the courts.
In uncontested jurisdiction, the competent court is the court of the person’s residence address making the requestor of one of the parties concerned.
There are no parties in uncontested judicial affairs but concerned people. Ordinary judicial procedure is applied in non-contentious jurisdiction. In non-contentious jurisdiction, the principle of self-investigation applies.
Non-contentious decisions do not constitute a final judgment in material terms.
The court that made the decision can change the uncontested judgment at any time upon the occurrence of a change.
The Parties and the Terms of the Lawsuit
The subject of contentious jurisdiction is litigation. Litigation is the person’s request for legal protection from the court upon another person’s violation or endangers of the subject’s right. The right to the action is guaranteed by the Constitution. Everyone has the right to a fair trial by the judicial authorities.
The plaintiff must have a legal interest in filing a lawsuit. The court cannot examine a case and decide on its own without the request of the plaintiff.
There are always two parties in a lawsuit: the plaintiff, and the defendant. The judgment rendered in a lawsuit is final only for the parties of that lawsuit. Litigation costs can only be imposed on the parties. As a rule, the losing party is obliged to pay the legal costs.
Standing to Sue
Standing to sue is the ability to be a litigant in the lawsuit. Every natural and legal person who can be a litigant has the standing to sue. Standing to sue ends by death. It is not possible to file a lawsuit against and on behalf of a dead person. While a lawsuit continues, if one of the parties dies, standing to sue of the death party will end.
Lawsuits concerning only the deceased one, that is the rights that do not pass to the heirs (i.e,. divorce cases), become devoid of the essence with the party’s death. It is impossible to continue these lawsuits against the heirs of the death party.
Lawsuits that do not only concern the deceased party, which affect the property rights of the heirs, do not remain devoid of the essence of the party’s death. Such lawsuits continue against the heirs.
Legal entities can have rights; therefore, they also can be parties. Legal entities can only file a lawsuit to protect the general rights of themselves or their members. They cannot file a lawsuit for the personal rights of their members or partners. By the termination of the legal entity, standing to sue of the party also ends.
Public legal entities also can be parties. Since an ordinary share does not have a legal personality, it cannot be a party; for this reason, the persons forming the ordinary share must act together as a party.
Inheritance partnership does not have legal personality and party capacity; for this reason, all heirs must act together. The lawsuits related to the heritage and the subject of which is something other than pecuniary claim should be filed against all heirs. The lawsuits related to the estate and the subject of pecuniary claims should not be filed against all heirs.
Capacity to Sue
Litigation capacity is the ability of the person to follow a case and perform procedural actions or do so through an authorized attorney.
All natural persons who can also have the capacity to sue.
Minors and wards with mental competence are represented by their legal representatives in cases; however, some exceptions are specified in law. Persons who lack mental competence do not have the juridical capacity and the capacity to sue. These people are represented by their proxies in the lawsuit; they are the parties. The capacity to sue is a cause of action. Legal entities are represented in the lawsuit by their authorized bodies. The bodies of the legal entities are the legal representative in the lawsuit.
Authority to Pursue a Lawsuit
The parties who can sue can follow a lawsuit by themselves. The ability to file a lawsuit in which she/he is the party is the authority to pursue litigation. Authority to pursue litigation is a cause of action. Persons shown as plaintiff and defendant in the lawsuit petition become parties to the lawsuit. If these persons have the standing to sue and the capacity to sue, they can carry out the procedural actions that begin with filing the lawsuit. However, for these persons to carry out the case and make a judgment on the outcome of the request, they must also have the authority to pursue a lawsuit.
Becoming a Party to a Case
The title is the relation between the parties and the right of the subject matter. Those shown as plaintiff or defendant in the lawsuit petition can be a party to that lawsuit in appearance. However, this does not always mean that the parties to the case have the capacity to be parties. Because in order to be a party as a plaintiff, it is necessary to have the right to be the subject of the lawsuit.
Change of the Parties
Voluntary change of parties in a lawsuit is possible only with the express consent of the other party. The plaintiff may subsequently correct the factual error about the defendant’s name and address. Once the lawsuit is filed, a change of the parties may be possible if the subject of the lawsuit is transferred to a third party.
Cause of Action
The conditions, the presence or absence of which are necessary for the court to make a judgment, are called case conditions/cause of action.
There are types of the cause of action:
- Cause of action regarding the Court
- Turkish Courts must have jurisdiction,
- The judicial remedy must be permissible and
- The court must be in charge.
In cases where the jurisdiction is certain, the court’s jurisdiction is a condition of the lawsuit.
- Cause of action regarding the Parties
There must be two causes of action in a lawsuit: standing to sue and capacity to sue. In cases carried out with a proxy, a power of attorney must be duly prepared, and it should be stated in the power of attorney that the attorney has the authority to file a lawsuit.
- The course of Action regarding the Matter in Dispute
There must not be a definitive judgment related to the same case.
The case must not be pending.
The claimant must have a legal interest in litigation.
- Private Court of Action in Other Codes
It is obligatory to apply to a mediator in claims and compensation cases between the employee and the employer. The court can examine whether the conditions of the case are present at every stage of the case on its own. The parties can always claim the incompleteness of the condition of the lawsuit.
The plaintiff’s request to file a lawsuit is essential for the court to hear a case; the plaintiff’s request (to file a lawsuit) is vital. As per article 118 of the CCP, this request is made with a lawsuit petition.
The judges cannot examine and decide a case on their own without the request of the plaintiff.
The content of the lawsuit petition is formed in article 119 of the CCP. Accordingly, the lawsuit petition includes the following:
- Name of the Court
- Name, surname, and address of the claimant and defendant
- The Turkish identity number of the claimant
- If any, the names and addresses of the legal representatives of the parties and the claimant’s attorney
- The value of the subject of the lawsuit in lawsuits related to property rights
- Summaries of the claimant’s allegations
- Evidence to prove the alleged facts
- Legal grounds
- Request results
- Signature of the claimant, if any, the claimant’s representative or attorney
Writing a Petition
The petition must be written in Turkish, and there must be no inappropriate or irrelevant texts in the petition.
Place of Filing
The petition is delivered to the distribution office, the front office or the clerk assigned with the distribution job. All kinds of lawsuits can be filed during the judicial holiday.A file is prepared for each case. This case file is kept in the National Judiciary Information System (“UYAP”). However, a physical case file is also kept in the court office. The merits number is written in the upper left corner of this file. After the filing of the case, at the beginning of the petitions stage, a preliminary proceedings report is prepared for each file.
The lawsuit petition received physically and transferred to the electronic environment or received directly in the electronic environment is transferred to the file after being examined by the judge or the personnel the judge will assign. The lawsuit petition (with its annexes) is notified to the defendant by the court. The defendant may submit a reply petition within two (2) weeks after the petition has been notified.
Consequences of Litigation in terms of Material Law
- With the filing of a lawsuit, a statute of limitation is terminated for the receivable, which is the subject of the lawsuit.
- In cases related to the prescription period, the period of prescription is preserved by filing a lawsuit.
- The defendant becomes overdue upon filing a lawsuit.
Consequences of Litigation in terms of Procedural Law
1-The court’s obligation to examine the case
2-The terms of the case are determined according to the date of the case
3-The case is resolved according to the situation at the time it was filed
4-With the filing of a lawsuit, a state of pending arises. If the same lawsuit is filed again after this, the new lawsuit is procedurally rejected due to the absence of the lawsuit requirement.
5-The claimant cannot withdraw the case without the express consent of the defendant
REPLY TO THE CASE
The petition containing the defendant’s replies to the plaintiff’s lawsuit petition is called a reply petition. In the reply petition, the defendant can either oppose the facts in the petition or accept the case. Additionally, the defendant can bring new facts. The latest facts brought forward by the defendant are called the defendant’s arms of defense.
The arms of defense based on material law are divided into two as defenses and objections.
Defense is a right that allows the defendant to refrain from performing the act owed for a particular reason. The difference between defenses and objections is that the right was either never born or expired. However, there is a right to trial in defense, but the defendant may avoid fulfilling that right. The objections do not necessarily have to be brought by the defendant. If the judge learns of an objection from the case materials submitted to the case file, the judge will take it into account automatically.
According to article 129 of the CCP, the petition containing the defendant’s replies to the case is called a reply petition.
The content of the reply petition
- Name of the Court
- Name, surname, and address of the claimant and defendant
- The Turkish identity number of the defendant
- If any, the names and addresses of the legal representatives of the parties and the claimant’s attorney
- Facts: The defendant must provide clear summaries under the serial number of all the facts on which their defense is based
- Evidence to prove the facts
- Legal grounds
- Request results
- Signature of the defendant, if any, the defendant’s representative, or attorney.
The reply petition must be written in Turkish, must be eligible and there must be no inappropriate or irrelevant texts in the petition. The defendant submits the petition to the court where the case was filed. The response to the case is subject to a time limit. The defendant must submit a reply petition within this period. The response time in the general procedure is 2 (two) weeks. In cases where it is very difficult or impossible to prepare a reply petition within 2 (two) weeks, depending on the circumstances, one-time extension may be granted by the court.
Consequences of Not Submitting a Reply Petition in the Response Period
The defendant, who does not submit a reply petition within the response period, shall be deemed to have denied all the facts put forward by the claimant in the petition. In this case, the claimant must prove the facts reported in the petition.
The judge cannot reject the reply petition given after the deadline because it is not in time. The defendant may include matters not subject to the prohibition of expanding the defense in this reply petition which he will submit after the deadline.
Prohibition of Expanding Defense
Article 141 of the CCP, states that the prohibition against extending and changing the defense begins with submitting the second reply petition. However, if the defendant has not submitted a reply petition within the reply period, submitting a reply petition after the reply period has elapsed is an extension of the defense.
REPLICATION PETITION and SECOND REPLY PETITION
Replication Petition (Article 136 of the CCP)
A replication petition is a petition containing the claimant’s replies to the defendant’s reply petition.
The claimant may submit a replication petition within two weeks from the notification of the defendant’s reply petition. In cases where it is challenging or impossible to prepare a replication petition within two weeks, depending on the circumstances, one-time extension may be granted by the court.
The plaintiff shall include the defense reasons stated in the reply petition by the defendant with the replication petition. The plaintiff can freely expand or change their claim with a replication petition. The claimant submits the replication petition to the court where the case was filed.
Exceptions to the Prohibition on Changing or Expanding the Defense
a) Explicit consent of the defendant
b) Appeal for Amendment
c) Transfer of the case subject
Time to Change the Case
The plaintiff can only change their case with the defendant’s explicit consent until the end of the trial. On the other hand, the renovation can alter or expand its case until the end of the investigation.
Second Reply Petition
The defendant may submit the second reply petition within two weeks from the notification of the plaintiff’s reply petition to the defendant. In cases where it is very difficult or impossible to prepare a second reply petition within two weeks, depending on the circumstances, the one-time extension may be granted by the court. With the second reply petition, the defendant responds to the claims made by the plaintiff in the replication petition. The defendant can freely expand or change the claim with a second reply petition. The defendant submits the second reply petition to the court where the case was filed. With the submission of the second reply petition, the petitions phase of the case ends, and the prohibition on expanding the defense begins.
After the mutual submission of the petitions, a preliminary examination is made.
Preliminary Examination without Trial
Upon the preliminary investigation phase, the parties are not immediately invited to the preliminary examination hearing. If the judge cannot resolve the conditions of the case and the first objections during the preliminary examination, the judge can listen the parties in the preliminary examination hearing.
Preliminary Examination Hearing
After the court completes the preliminary examination without hearing, it determines a hearing date for the preliminary examination and notifies the parties. If both parties do not come to the preliminary examination hearing, they remove the file from the process.
- If one of the parties do not come to the preliminary examination hearing;
- If the party coming to the hearing declares that it will not follow the case, it is decided to remove the file from the process;
- If the party coming to the hearing requests the continuation of the case, the preliminary examination hearing is held in the absence of the absent party. In this case, the party coming to the hearing may expand its claim or defense without the consent of the absent party:
- If both parties come to the preliminary examination hearing, a party can only change its claim and defense with the explicit consent of the other party and through renovation.
Once the court identifies the issues of dispute, it encourages the parties to settle or mediate. If the court decides that the parties will be settled, it appoints a new hearing date for once only. If the parties agree, the settlement agreements are recorded in the minutes and signed by parties coming to the hearing. If the settlement agreement covers the entire dispute between the parties, there is no need to investigate. The court ends the case with the decision to be made according to the request of the parties. If the parties do not agree at the end of the preliminary examination hearing, the issues that the parties cannot agree on are determined in the minutes.
The investigation is carried out based on the preliminary examination report. As a rule, the preliminary examination is completed in a single hearing. In obligatory cases, a new hearing date is determined for once only.
Resolution about the Prescription and Statute of Limitations
For the preliminary examination phase to be completed, the judge must examine and decide on the defendant’s objection (if any) to the statute of limitation and prescriptions. If the judge finds the defendant’s objection to the statute of limitations appropriate, the judge decides to reject the case due to the statute of limitation. In this case, there is no need to proceed to the investigation stage. If the judge considers that the case is time-barred because of the defendant’s review of the statute of limitation, they decide to dismiss the case due to the statute of limitations. Before the preliminary examination is completed and the necessary decisions are taken, the investigation cannot be started, and a hearing date cannot be given for the investigation.
After the preliminary examination phase is completed, the investigation phase begins.
Circumstances that do not require an inquiry:
At the preliminary examination stage, the court first decides on the conditions of the case and the first objections. If these are of the nature to end the court case, the case ends.
If the court finds the defendant’s objection to the foreclosure appropriate, it rejects the case. Similarly, if the period of limitation defense is justified, the case will be rejected.
If the parties reach peace in the preliminary examination hearing, there is no need for an inquiry.
Circumstances need an inquiry:
Except for the above exceptions, as a rule, after the preliminary examination phase, the inquiry phase is started.
The Form of the Inquiry
The judge and the recording clerk are present at the hearing. The parties and their proxies, if any, are present at the hearing. Hearings are held in public. As a rule, a hearing must be held in every case, and the parties must be duly invited to this hearing.In some cases, it is not mandatory to hold a hearing; the court can also decide on the file: interim injunction, recording of evidence, attachment, recusal, cause of action and objections, annulment of the arbitration decree, correction of material errors, ordinary adjudicative procedure, etc.
In the invitation to be sent to the parties, it is written that if they are not present on the court at the determined day and time without a valid excuse, the hearing will continue in their absence, and they cannot object to the actions taken. There must be at least two weeks between the date of notification of the invitation to the parties and the date of the first hearing.
In works with a hearing, the name of the court, the file’s main sequence number, the names and surnames of the parties, the date and time of the hearing are presented to the relevant persons in a list before the hearing.
Attorneys of the parties attending the hearing may directly ask witnesses, experts, and other persons summoned to the hearing according to with the discipline of the hearing.
A minute shall be drawn up about the inquiry and trial proceedings at the hearing.
Elements of the Minute of the Hearing:
- Name of the court, the place, date, and time of the hearing,
- Name and surname of the judge, clerk of the court, the parties who are present, if they have their proxies, translator, and the ferry involved if any,
- The trial is made publicly or secretly,
- Cognizance, oath, waive from legal action, lawsuit withdrawal, acceptance of the lawsuit, conciliation hearing,
- Other statements of the parties,
- Statements of the witness and expert,
- Summary of proceedings outside the hearing,
- Documents submitted by the parties,
- Requests of the parties in relation to the inquiry,
- Interlocutory decision and the decision,
- Explanation form of the decision.
Copies of all or part of the minutes should be given to the parties. Proxy of the parties and the parties can follow their files from UYAP.
Principles Ruling the Trial
- Principal of Disposition (Tasarruf İlkesi):
The judge cannot examine and decide on a case by itself without the request of one of the parties. The plaintiff and the defendant can waive the case; they can settle, they have the power to dispose of the case. The judge cannot appeal the case on their own without the request of the parties. In some situations, the principle of seizure cannot apply entirely because of the public interest.
- The principle of being brought by the parties
The facts and their evidence, which are the basis of the case and the defense, must be submit to the court by the parties. The judge cannot take into account anything or any fact that the parties did not say and cannot remind them to the parties. While the judge automatically oversees the reasons for objection, she/he cannot take care of the reasons for the defense on her own. In order to clarify the dispute, the judge may have the parties make a statement, ask questions, and demand evidence. This is called the judge’s duty to clarify the case.
- Principle of Ex Officio Examination
The principle of ex officio examination is valid only in non-contentious jurisdictions unless there is a provision to the contrary. As an exception, the principle of ex officio examination is also applied in some cases in adversarial jurisdiction. The judge may also base his decision on the facts that the parties did not put forward and may base his decision on these facts. Here the judge can ipso facto apply all the necessary evidence for the proof of the case.
- Obligation to Behave Honestly and Tell the Truth
The parties are free to decide what they may or may not argue in accordance with their own interests in the proceedings. However, the points they put forward must be true and their statements and explanations must not contradict the truth.
- Legal Right to be Heard
This kind of right includes the following:
– Knowledge of judgment and
– Right of explanation and proof.
Both parties benefit equally from this right. This is also referred “Equality of Arms Principle”.
- Principle of Procedural Economy
Proceedings should be conducted regularly, and unnecessary litigation costs should not be incurred.
- Right to Fair Trial
Everyone has right to a fair trial, whether a plaintiff or defendant, before judicial authorities by using legitimate instruments.
- Enforcement of Law
The judge applies Turkish law ex officio.
- Principle of Publicity
The hearing and the notification of decisions are public.
- Immediateness Principle
The judge should personally carry out the activities of collecting and examining the evidence. The judge should decide based on the judge’s opinion directly from the trial and the collection of evidence.
At the end of the investigation hearing, two situations are encountered:
1) If the case is sufficiently enlightened for trial and judgment:
In the first investigation hearing, if the judge understands that the case has been sufficiently clarified for the trial and judgment after examining of the evidence presented by the parties, the judge informs the parties that the investigation is over.
2) If the case is not sufficiently enlightened for trial and judgment at the end of the first investigation hearing
If the case is not sufficiently enlightened for trial and judgment at the end of the first investigation hearing, the judge determines a new hearing date and time to continue the investigation and notifies the parties.
Determining whether the litigation right actually exists or not is called proof. If it is not expressly stipulated in the law or if the nature of the work does not make it necessary, the full proof is sought in a lawsuit, not presumptive proof. The issues that need to be proved with definitive evidence in the law cannot be proved with other types of evidence. The court decides whether the evidence brought to prove an issue is permissible or not. Evidence is not provided for facts that are not related to the case.
Unless there is a special regulation in the law, the burden of proof belongs to the party who has made the right in their favor. Generally, the burden of the proof belongs to the claimant, the one who claims the opposite of the normal situation. If there is a special regulation in the law, the burden of proof belongs to the party specified in the special regulation.
Counter evidence is for the party without the burden of the proof, showing that the evidence presented by the party with the burden of the proof is not true.
At the preliminary examination hearing, two weeks are given to the parties for presenting the written evidence they have shown in their petitions but not yet submit to the court.
The plaintiff must state all evidence in the petition or petition for a reply. The defendant must also state all evidence in the reply petition or the second reply petition. There are two important exceptions to this rule. The first exception is the permission of the judge. If the subsequent presentation of evidence is not intended to delay the proceedings or if it is not claimed in due time, not because of the fault of the related party, the judge can permit subsequent presentation of evidence at the request of a party. The second exception is the judge’s duty to clarify the case. In cases where it is necessary to clarify the dispute, the judge may ask the parties to show evidence about the issues that they deem ambiguous or contradictory. As a rule, the parties present the evidence. Evidence found elsewhere that cannot be brought to court can be collected by rogatory at that place. Evidence obtained illegally is not taken into account by the court.
There are two types of evidence: a) proof positive and b) discretionary evidence. Proof positive is cognizance, definite judgment, bond, and oath. These are the evidence that binds the judge. Discretionary evidence is witness, expert, viewing, other than promissory note and evidence not regulated in the code. The judge freely appraises the evidence.
The End of the Trial and Definitive Judgment
Every decision made by the court is not a decree. There are two types of decisions: interlocutory decisions and definitive judgement. Interlocutory decisions do not end the proceeding. As a rule, the judge can withdraw from the interlocutory decision. Since the interlocutory decision is not final decision, it can only be appealed together with the main decision.
Definitive judgements end the trial. Once the judgement is finalized, a new lawsuit cannot be filed between the same parties based on the same cause of action. If it is filed, the new case will be rejected due to the definitive judgements.
There are three types of decrees: a judgment of doing or not doing something, declaratory judgment, constitutive judgment.
Some litigation may be devoid of essence. In such a case, there is no need for a trial and a decree on the case. The summary of the claims and defenses of the parties, the points they agreed and disagreed with, discussion and evaluation of the evidence, legal reasons and results should be written in the decree. In the cases followed by the attorney, the decree should be notified to the attorney.
The decreet binds the judge. Even if the judge thinks that the decree is wrong, they still cannot make changes.
There are some exceptions to this rule:
- Errors in writing and calculations noticed in the decree can be corrected by the court ex officio or upon the parties’ request.
- Clarification of decision
- Upon request for retrial, the judge may re-examine the case.
It is ensured that the decisions claimed to be wrong are re-examined and changed by applying to the legal remedy. The possibility of consulting to legal remedies is not limited.
There are two types of legal remedies: ordinary legal remedies and extraordinary legal remedies. Ordinary legal remedies prevent the final decision from being finalized. Ordinary legal remedies are the right of appeal to the court of appeal and Supreme Court. Extraordinary legal remedies are remission and individual application to Supreme Court. Remission is the legal remedy against the finalized provisions. An individual application can be made in case of violation of the fundamental rights and freedoms specified in the Constitution or the European Convention on Human Rights by the public power. For this, all the legal remedies must be exhausted. Only the parties and the vice of the parties can apply to the legal remedies. There must be a legal interest in applying for a legal remedy. The application for legal remedy is made by petition.
Decrees that can be appealed are determined by law. The appeal period is two (2) weeks from the notification. Decrees of the first instance court in relation to action in persona do not exceed the appeal limit are final. Lawsuits against non-pecuniary damages can be appealed regardless of amount and value. Interlocutory decisions cannot be appealed. There is no specific rule regulating the grounds of appeal. In a general scope violation of public order, he main grounds for appeal are a misinterpretation of evidence and facts are the main grounds for appeal. The grounds of appeal should be shown in the petition. The competent court is the court of appeal, which is in the jurisdiction of the court of first instance that rendered the appealed decision. Parties must file an appeal, the court cannot file an appeal ex officio.
Elements of a Petition:
- Name, surname, identity number, and address of the applicant, the other party, and the legal representative.
- The court in which the decision was made
- The date and number of the decision
- The date of notification, the summary of the decision
- The reasons for the application
- The result of the request
- The signature of the applicant or her/his representative
The other party may reply to the appeal petition within two weeks from the notification of the appeal. The review of the appeal is conducted with or without a hearing. The rejection of the appeal can be appealed to the Supreme Court. As a result of the appeal, it may be decided to accept or reject the case partially or completely; rectification of the first instance court decision and a decision on the fundamental of the case can be made.
Appeal to Supreme Court
The Supreme Court is a legal supervisory authority; for this reason, new facts and evidence cannot be submitted on appeal. The main reason for the appeal is the wrong application of the law. An appeal court decision can be appealed to Supreme Court is determined by law. An appeal to Supreme Court may be lodged against the final decrees regarding property cases in the courts of appeal. As a rule, decisions of the court of appeal regarding immaterial rights can be appealed to Supreme Court. The cases specified in article 353/a of the Code of Civil Procedure cannot be appealed to Supreme Court. Decisions of the court of appeal regarding the assets that do not exceed the limit of appeal to Supreme Court cannot be appealed to Supreme Court.
For a rule of law to be considered a ground for appeal to Supreme Court, the decree must result from the wrong application of the law. There must be a causal relation between the decree given and the rule misinterpreted. In addition, misinterpreting a contract is also a reason to appeal to Supreme Court.
Reasons for appeal to Supreme Court regarding procedural law indicated at Civil Procedure Law article 353/a.
Procedural decisions of the appellate court are divided into two: (1) Absolute reasons for appeal to Supreme Court, (2) Relative reasons for appeal to Supreme Court.
Absolute Reasons for appeal to Supreme Court:
In cases where some important procedural rules are applied incorrectly, the causal link is deemed to exist and is accepted as an absolute ground for appeal.
According to the Civil Procedure Law specified in Article 371/b: Violation of the cause of action.
According to the Civil Procedure Law specified in Article 371/c: Refusal of evidence even though there is no legal ground.
Unjustified decision of the court of appeal.
The court of appeal without any grounds.
Relative grounds of appeal:
Incorrect application of the procedural law rule should be capable of changing the decision.
The appeal period against decisions of the court of appeal is two weeks. This period begins on the date of notification. The agreement of the parties cannot extend the appeal period. There are two exceptions that no appeal can be made after the appeal period has elapsed. The party who missed the appeal period for an unavoidable reason can have the decision of the court of appeal reviewed on appeal at the Supreme Court. The second exception is that the party who missed the appeal period may appeal the other party’s appeal to the Supreme Court within the response time. This is called an appeal to Supreme Court by participation.
The party of the lawsuit and the party who has a legal benefit from the appeal has the right to appeal to the Supreme Court. The Court of appeal, which rendered the decision cannot appeal the decision to the Supreme Court without the request of a party.
The appeal to Supreme Court request is made by the parties with a written petition addressed to the Supreme Court. The written petition will be submitted to the court of appeal, which will render the decision. The elements of the petition to the Supreme Court are:
- The title, name, surname, Turkish identification number and addresses of the appellant and the other party in the case.
- If the parties have a proxy, their names, surnames, and address
- The appellate court of a law department that the appealed decision was made
- The date and the number of the decision
- Date of the notice
- The summary of the decree/decision
- The grounds of the appeal to the Supreme Court.
- If there is a request related to the hearing this request
- The signature of the party or her/his proxy.
If the appeal is filed after the appeal period has expired, or if it concerns a final decision, the court of appeal, which has made the decision, decides to reject the appeal to Supreme Court. The appellant may appeal against this refusal decision to Supreme Court within one week from the date of notification. The other party may respond to the appeal to Supreme Court petition within two weeks from the notification of the appeal to Supreme Court.
The reply petition to appeal to Supreme Court elements are:
- The title, name, surname, Turkish identity number, and addresses of the appellant
- If there are proxies of the parties their names, surnames, Turkish identity numbers, and address
- The date of the notification
- The answers and the grounds
- The result of the claim and the signature of the answerer or his/her proxy.
As a rule, the Supreme Court reviews the appeal over the file without a hearing however in exceptional cases the parties can request a hearing in their petition. The cases in which the parties may request that the appeal examination be held with a hearing are specified in the Civil Procedure Code 369/2. The Supreme Court can decide in three ways because of the appeal review: (1) Decision of Reversal, (2) Decision of Approval, (3) Approval with Correction.
Upon the reversal decision, the Supreme Court sends the file back to the court of appeal or the court of the first instance. If the Civil Chamber of the Supreme Court does not see the resistance decision as appropriate, it sends the case file to the General Assembly of the Supreme Court. The court of the first instance must comply with the decision of the General Assembly of the Supreme Court. The decision that only one of the parties has appealed cannot be overturned to the detriment of the appellant.