Intervention in the case

In legal proceedings, the participation of a third party who has an interest other than the plaintiff and the defendant in the trial is called intervention. There are two types of intervention: primary and secondary intervention. Both types of interventions are regulated in Civil Code No. 6100.

In our previous article titled notification of the case, we included explanations regarding partial intervention. It should be noted again here that; Notification of the case only gives the person notified the opportunity for accessory intervention. Moreover, since notification of the case does not mean intervention without a request, it is necessary to distinguish these two situations.

Among the types of intervention in the case, primary and secondary intervention institutions are quite different institutions. When the way they are regulated in the law is examined, it will be seen that the two institutions differ from each other in terms of the terms of intervention and the results of the interventions. There are also differences in terms of procedure. Since these distinctions will be taken into account in our review, we will try to make explanations under separate headings.

SIDE INTERVENTION

According to Article 66 of the HMK; The third party may take part in the case as an accessory intervener until the investigation is concluded, in order to support and assist the party who has a legal interest in winning the case.

Fer intervened; The third party can only participate in the ongoing case on the grounds that it has a legal interest, alongside one of the parties and as his assistant. For this reason, accessory intervention is a remedy to be applied by a third party whose legal situation will be indirectly affected if a case is concluded against the defendants, and generally the aim is to ensure that the filed case is concluded (rejected) in favor of the defendant.

CONDITIONS AND RESULTS OF SUPPLEMENTARY INTERVENTION

To request accessory intervention, there must be a pending case. The third party who will make the request must inform the court which side he/she will participate in the case and the reasons for the intervention. Accessory intervention may occur upon the request of a third party or through notification of the case. The third party to whom the case has been notified may participate in the case by requesting intervention.

Intervention is made by submitting a petition. The petition is notified to the parties of the case. If necessary, the court invites the third party along with the parties to listen, and decides on the request for intervention even if they do not come. If the request for intervention is accepted, the accessory intervener acts together with the party in whose favor he participated and follows the case only from the point where he is present. It is not possible to request renewal of previous transactions before joining. Additional intervention does not make the intervener a party to the case. For this reason, no judgment can be made regarding the accessory intervention.

The court may also decide to reject the intervention request. The secondary intervener may appeal the decision regarding the rejection of the request for intervention by appealing against the decision given against the party in whose favor he wants to intervene after the main decision is made and request that the decision be overturned on the grounds that the request for intervention was unfairly rejected.

The court must rule against the request for intervention. In one of its decisions, the Supreme Court stated that "Although the Treasury attorney, who appealed the verdict given as a result of the trial in the case, filed a petition to intervene in the case on 28.06.2012, the court did not give a positive or negative decision regarding this request."

Hearing the intervener indicates that a positive decision has been made. The assessment of the 2nd Civil Chamber of the Supreme Court of Appeals on the issue is as follows:

"Although the court has not made a decision on the request for intervention, the fact that the bank has responded to the case, requested the dismissal of the case and has carried out all kinds of procedural procedures and has a recourse relationship with the defendant, should be considered as a "accessory intervener" on the side of the defendant in the case." 2014/15706 K.

On the other hand, the fact that the person requesting intervention is never called and notified of the proceedings indicates that no decision has been made regarding the request for participation, which is a reason for reversal.

Additional intervention requests can be made at any stage until the investigation is completed. It is not possible to request intervention when the verdict phase is reached or at the legal remedies stage.

After the request for participation is accepted, the intervener may defend himself on behalf of the party he joined. Feri is independent in his claims and defenses. However, it cannot act contrary to the transactions and claims of the main party. He may assert claims and defenses for the benefit of the principal party that were not put forward by the principal party. As we have stated, independence is limited to transactions that are for the benefit of the principal party.

The secondary intervener has no authority to dispose of the subject matter of the case. The intervener cannot waive the case and make peace. He does not have the authority to carry out transactions such as transferring the subject of the case and taking an oath. Likewise, it is not possible to offer an oath to the intervener. All of these situations arise from the capacity of the parties.

Our above explanations are also expressed in the justification of Article 68 as follows:

"In the first paragraph of the article, it is aimed to prevent the delay of the trial due to intervention or malicious behavior in this regard by stating that if the request for intervention is accepted, the intervener will follow the case only from the point of participation. Thus, a method that would prolong and complicate the trial, such as notifying the intervener again of the transactions up to the stage in which the intervener participated and the intervener making a statement against these transactions, was not accepted. Since the intervener is the assistant of the party, his/her proceedings and Taking action contrary to his/her statements will not be compatible with the position of intervention. The secondary intervener can only take actions that will assist the actions of the party in which he/she participates and can put forward the means of claim or defense that are in his/her benefit, and this will end the discussions on the subject, as stated clearly in the paragraph.

According to the second paragraph, the accessory intervenor, although not a party, will take actions both for the benefit of the party he participates in and indirectly for his own benefit. Because, if the party with whom he participated wins the case, the legal position of the accessory intervenor will also be strengthened. In this context, in order for the accessory intervener to fully fulfill his role as an assistant party, he must be aware of the proceedings from the moment he participates. This is also a requirement of the legal right to be heard. Because, the subjects of the trial have the right to be heard legally depending on their situation in the trial. Undoubtedly, the accessory intervener's legal right to be heard; In particular, the right to explanation and proof is not as broad as the parties. However, the right of the accessory intervenor to be informed about the trial activity, the parties and the court proceedings is close to the parties. Since it is not possible to take action on that issue without being informed about the trial process, it is envisaged to notify the intervener of the procedures to be taken from the moment he joins, in order to eliminate any hesitations that may arise in practice.

The accessory intervenor is not responsible for the trial fees, expenses and attorney fees.

RIGHT OF APPEAL OF THE PERSONAL INTERVENTOR

The secondary intervener does not have the right to appeal on his own due to his position as an assistant and not being a party. However, since there are some special situations, the following distinctions must be made in terms of the right to appeal:

The secondary intervener may appeal the decision regarding the rejection of the intervention request by appealing against the decision given against the party in whose favor he wants to intervene after the main decision is made.

In case the intervention request is accepted; The intervention decision can only be appealed together with the party in whose favor the party participated.

As it is known, the court cannot make a decision regarding accessory intervention. However, if it is granted, the intervener will have the right to take legal action independently of the party he assists.

"According to the procedural provisions, it is not possible to include a third party as a defendant in a lawsuit filed through notification. An accessory intervener is not a party to the case. There is no difference in terms of the consequences of a secondary intervener participating in the case on his own or as a result of notification. A third party cannot gain the title of a party by participating in the case as an accessory intervener. For this reason, a decision cannot be made regarding the accessory intervener (HMK Art. 69 / 1). The accessory intervener has no legal remedy. "The application is possible only if the party in whose favor the intervention was intervened resorts to legal action or if a judgment is made about the accessory intervener." Y4HD. 2019/2765 K.

If the principal party does not resort to legal action, the intervener will not have such a right:

"Considering that, in accordance with Article 68 of the Code of Civil Procedure, the accessory intervener must act together with the party he/she requests to participate in the case, the intervention decision can only be appealed together with the party in whose favor he/she participated. In the concrete case, since the defendant Treasury did not request an appeal and there was no provision for the Public Prosecutor in the decision subject to appeal, the Public Prosecutor does not have the right to appeal on his own, even if it is accepted that he is in the position of an accessory intervener. For this reason, the notified/accessory party who does not have the right to appeal "The appeal request of the intervening Public Prosecutor must be rejected." YHGK 2017/962 K.

EFFECT OF SUPPLEMENTARY INTERVENTION

Although the secondary intervener helped the main party, the party may have lost the case. This situation may require the main party to file a lawsuit against the secondary intervener, or the secondary intervener may file a lawsuit against the primary party. In the second case between the secondary intervener and the party, some problems that arose may have been resolved and decided in the first case. It should be clarified whether the issues decided in the first case can be re-examined in the second case, whether the decision given in the first case will constitute a final judgment in the second case, and if it does not constitute a final judgment, whether it will have an effect other than the final judgment effect. This resulting effect is called the effect of the intervention. The scope of this effect has been clarified with this article.

The effect of accessory intervention is valid only between the accessory intervener and the party with whom he participates in the case, not between the accessory intervener and the parties. The effect of the intervention applies both to and against the intervener, regardless of the verdict given in the original case. The effect of the intervention will be valid not only with the provision paragraph of the judgment given in the previous case, but also with the material and legal elements on which the judgment is based. In this respect, the effect of the intervention is wider than the final judgment. The secondary intervener cannot claim that the verdict given in the first case was wrong. This means that he cannot claim that the facts on which the judgment is based are also wrong. Only the issues that are elements of each other in the alternative relationship are binding, not the entire decision in the first case.

However, if a decision has been made on issues that do not need to be ruled on in the first case, that is, issues that the parties did not request and are not related to the case, these determinations will not be binding in the second case.

Unlike res judicata, the effect of intervention is not absolute. The accessory intervener will be subject to the effect of the intervention to the extent that it can affect the case. Therefore, the time when the intervener joins the case is very important. Because from the moment the accessory intervener joins the case, he will be able to carry out the procedural procedures of the party and assist the party. He cannot object to previous transactions and cannot request their repetition. If the intervener joined the case late, he may claim that his late participation was due to the party, that the main party did not conduct the case well, made incomplete or incorrect claims and defenses, and therefore caused the case to be lost partially or completely.

Since the actions of the accessory intervener cannot be contrary to the actions of the main party, if some of his actions are prevented by the main party, the intervener can still claim that he is not subject to the effect of the intervention. For example, if the intervener cannot put forward some means of defense due to the principal party's admission or if the action he puts forward is invalid, he may request that the effect of the intervention be limited accordingly.

In addition, if the main party has not put forward claims, means of defense and evidence that the intervener does not know about, deliberately or through gross negligence, the intervener may claim in the second case that the first case was not managed well. To the extent that he can prove this, he is free from the influence of the intervention. For example, if the main party deliberately did not put forward a statute of limitations defense that the secondary intervener did not know about, even though he knew about it, and for this reason the case was concluded against the main party, this provision should not have any effect for the intervener.

The effect of the intervention must be taken into account by the court per se. Because, this effect is important in terms of procedural economy, as well as preventing contradictory decisions and thus ensuring the confidence of the parties in court decisions. For this reason, it should be taken into consideration by the court. (Article 69 justification)

PRIMARY INTERVENTION

The concept of primary intervention, which was not included in this law at the time of the HUMK, although it existed in laws such as the Cadastral Law, but was also accepted by the doctrine and the Supreme Court decisions, was clearly regulated in Article 65 of the Civil Code No. 6100. Article 65 of the Civil Code is as follows:

"A third party who claims partial or complete rights over the right or thing that is the subject of a trial may file a lawsuit against the parties to the trial in the same court, asserting this until the judgment is given. The primary intervention case and the main trial are conducted and decided together."

In order to be considered a primary intervention in accordance with the aforementioned article of law; First of all, there must be a pending lawsuit, the primary intervener must claim a right on the right or thing that is the subject of the ongoing lawsuit, the primary intervener must be a third party who is not a party to the main lawsuit, and the primary intervener must file a separate lawsuit.

The primary intervener is required to file a separate and independent lawsuit against the parties to the main lawsuit. Therefore, in case of primary intervention, all legal consequences of filing a lawsuit will arise.

65. The justification of the article includes the following statements explaining the purpose of the institution:

"Substantial intervention is an institution that serves purposes such as preventing contradictory decisions, revealing the truth, procedural economy, full realization of the right to be heard, and preventing fraudulent trials."

The evaluation of the 1st Civil Chamber of the Supreme Court of Appeals regarding the institution is as follows:

"In our procedural law, there is no such institution as being involved in a lawsuit, and a person cannot be given the status of a party through an internal lawsuit, nor is it possible to make a judgment about him. As it is known, according to Article 65 of the Code of Civil Procedure (HMK) No. 6100, the legal status of a person who claims that the thing that is the subject of a lawsuit belongs to him, by claiming rights outside the parties, and who gets involved in the case by paying the fee, is the primary one. As mentioned, in the primary intervention, the plaintiff is the basis. There is no legal possibility to claim rights on the issue that is not the subject of the lawsuit by going beyond the mentioned intervention. In other words, primary intervention is the situation of seeking independent rights outside the parties in connection with the subject of the case."

PRIMARY INTERVENTION PROCEDURE AND RESULTS

We have stated that in a case between two parties, the third party claiming rights may request primary intervention. In this respect, primary intervention differs from secondary intervention. The third party claiming rights may exercise this right by submitting a petition to the court where the main case is heard.

In this new lawsuit to be filed, the parties of the main lawsuit will be shown as defendants. The existence of compulsory litigation companionship between the parties is accepted. Since the primary intervention case is a separate case, a fee must be paid. An advance relative fee and a fixed advance application fee are collected based on the case value. Sample Supreme Court decisions on the subject are shared below:

"The dispute arises from the demand for compensation for the damage that occurred to the plaintiffs' products due to the fire that broke out from the electrical wires belonging to the defendant electricity company. When we look at the concrete incident, it is seen that after the reversal order of our Department, with the petition submitted to the file by the plaintiffs' attorney, in accordance with the reversal order, it was requested that the persons who are the title holders of the real estate in question, other than the plaintiffs, be included in the case as interveners, the power of attorney of these people was also submitted to the file by the plaintiffs' attorney, and the relevant court ruled that "It is understood that the trial was concluded with the admission of these persons, other than the plaintiffs, to the case as the primary interveners, and that the judgment subject to the appeal was established by the court. However, although the plaintiffs, who were accepted as the primary interveners by the court, could not be examined in terms of intervention requests due to the fact that the primary intervention fee had not been paid, it was against the procedure and the law and required reversal." Y3HD. K. 2020/337

"Considering that those who requested primary intervention filed a primary intervention lawsuit while the case was still ongoing, claiming that some of the shares that the plaintiffs claimed to have taken over had already been taken over by them, and that they did not pay the necessary litigation and trial fees for the primary intervention case, the court did not complete the fees for the primary intervention case and did not give a positive or negative decision regarding the primary intervention case, which is a separate and independent case from the main lawsuit, necessitating the reversal of the verdict." Y11 HD. K. 2019/8173

The primary intervention lawsuit can be filed until the verdict is given in the main case. The court conducts the intervention case together with the main case. However, the court has the authority to conduct the proceedings separately or to make one case preliminary to another.

After the primary intervention is requested, the court must make a decision on this issue. As a matter of fact, this situation is clearly stated in the following decision of the Supreme Court:

"In the concrete case, since the request was about giving the independent section to the clients, not the contractor, in accordance with Article 65 of the Code of Civil Procedure No. 6100, this request, which is a primary intervention, should be evaluated and a decision should be made regarding its acceptance or rejection, but it was not correct not to make a decision regarding the requests without even discussing the justification of the decision." Y15HD. 2019/2341 K.

Again, as stated in the decision below, it is not possible for the court to reject the primary intervention request unless it meets the legal conditions:

"The primary intervention request of the person who claimed the right to the immovable property in question by paying the fee during the trial was rejected by the court without any justification. As clearly stated in Article 65 of the Code of Civil Procedure, the primary intervention case is conducted and decided together with the main trial. As can be understood from the clear provision of the law, there is no regulation in the procedural law where the judge can reject the primary intervention request at discretion. For this reason, the court accepts the request of the primary intervener and investigates the evidence he will present. "A decision must be made based on the results." Y20. HD. 2018/7461 K.

Unlike secondary intervention, the main intervener is the party to the intervention case. For this reason, it is authorized to carry out the transactions that can be carried out as a party. Again, the primary intervener acts independently of the main party in the case.

The main case and the intervention case are independent cases. Acceptance or waiver of one case does not affect the other. However, if the waiver of the main case renders the court incompetent, the intervention case must be sent to the competent court. The following decision is in this direction:

"In the trial of the main and combined compensation case between the parties; if the court accepts the existence of a lawsuit filed by the cooperative through primary intervention and determines that the defendant cooperative has not waived the main lawsuit, this case should be conducted and decided together with the main trial, if it is determined that the defendant cooperative has waived the lawsuit, considering that the Commercial Court of First Instance is competent in this case, which has the nature of a commercial lawsuit in accordance with Article 99 of the Law on Cooperatives, 1163 S. "While it should have been decided to separate them, it was not right to decide to reject the primary intervention requests based on erroneous justification." Y23 HD. 2016/2556 K.

After accepting the primary intervention request, the court has to give a separate verdict in terms of both cases. For this reason, the primary intervener has the right to appeal and appeal against the decision.

If the primary intervention case is pursued with an attorney, attorney fees will be awarded.

The following decision includes evaluations regarding the primary intervener's failure to follow the case:

"On the other hand, in the primary intervention case filed against the parties to the main case and which is a new case, it is against the procedure and the law to decide to reject the primary intervention case in the session where the main intervener does not attend. If the duly invited parties do not come to the hearing or if they come and declare that they will not follow the case, it is decided to remove the file from the process. If one of the duly invited parties comes to the hearing and the other does not come, upon the request of the attending party, the trial continues in the absence of the party who did not come or the file is continued. In the case at hand, the main intervener did not attend the session dated 13.03.2012, and the request of the parties to the main case who attended the session to continue the trial in the absence of the main intervener was decided to be dismissed without going into the trial minutes. Since the parties to the main case, who are the defendants in the main intervention case, did not have a request for the trial to be conducted in the absence of the main intervener, the file was dismissed in terms of the main intervention request. "While it should be decided to remove the case from the process, it is wrong to go into the merits of the case and decide to reject the case of the primary intervener in a way that will constitute a final judgment." Y8HD. 2013/5033 K.

The verdict given in the primary intervention case constitutes a final verdict.