Appeal in civil procedure
Appeal in legal proceedings, which is the subject of our review, represents a relatively new institution within the Turkish Legal system. Namely; While the two-level trial system has existed in our law for many years, a three-level trial system was introduced with the establishment of Regional Courts of Justice in 2016. The appellate jurisdiction, adopted by the Law No. 5235 on the Establishment, Duties and Powers of the First Instance Courts of First Instance and Regional Courts of Justice, was included in our legal system with the Regional Courts of Justice, which started operating on July 20, 2016, and ordinary legal remedies were accepted as appeal and appeal legal remedies. Extraordinary legal remedies are regulated as retrial and appeal in the interest of law, and decision correction has been removed from our legal system. The courts of appeal, which were introduced as an intermediate institution between the courts of first instance and the courts of appeal, were originally considered as a model that would increase the reliability and fairness of the trials. Finally, the ECHR is of the opinion that the appeal institution contributes to the right to a fair trial. Indeed, the situation in the comparison countries has shown that regional courts of justice have a more reliable and fair structure. However, this system has and will continue to have some disadvantages in addition to the advantages considered specific to our country. For example, the length of trial periods has been further extended by the appeal system. It should be noted that in this review, we aim to address the appeal system in civil proceedings and examine its legal conditions. Therefore, our subject of review consists only of the appeal review regulated by the Civil Code, that is, the review made by the legal offices of the Regional Courts of Justice. In addition, no evaluation has been made regarding the appeal conditions regulated in the CMK.
According to TDK's Turkish dictionary, appeal; It means "not accepting the decision of the court and taking it to a higher court". Based on this definition, it is necessary to make the following basic explanations for non-lawyers:
Judges working in first instance courts may not make the right decision in every trial, since they are human beings. Here, in addition to some psychological effects, reasons such as inexperience, misinterpretation, and excessive workload may come to the fore. In such cases, the parties to the trial may request that the decision be evaluated by a higher court. At this point, due to the three-level judicial system, it is necessary to apply to the court of appeal in civil proceedings in case of the existence of the conditions listed below. In short, the appeal is an institution that evaluates and supervises the decisions of the first instance courts, which are considered to be erroneous, in terms of legality.
It should be noted that the courts of appeal will not conduct a new trial from scratch when evaluating the decisions. Because the narrow appeal system has been adopted in our law. The purpose of this is to check only the legality of the decisions of the first instance courts. Apart from this, it was deemed unnecessary and contrary to the principle of procedural economy to start a new trial from the beginning. Although it can be concluded here that appeal and appeal are close to each other, there are some fundamental differences. The most important of these is this; When the court of appeal does not find the decision in accordance with the law, even if there is no need for a hearing, it does not conduct a retrial and sends the file to the local court, while the courts of appeal may make a new decision after completing the deficiencies that can be completed without a hearing. It should not be forgotten that; Although a limited review is carried out with an appeal in the narrow sense, in cases where it is impossible to reach a conclusion without a retrial, the court of appeal may conduct a retrial starting from the beginning. In short, the court of appeal will be able to carry out all trial proceedings, including hearing witnesses, to the extent necessary. However, there is no such opportunity in appeal. These issues will be re-evaluated in detail under separate headings below.
Which decisions can be appealed against?
Appeal is a legal remedy and only some decisions can be appealed against. The first consequence of the appeal being a legal remedy is that it can only be used against the inconclusive decisions of the first instance courts. In addition, as regulated in Article 341 of the Civil Code, appeals can only be made against the final decisions of the first instance courts. However, with the amendment made to the law in 2020; An appeal may be filed against the decisions made upon the rejection of provisional injunction and provisional seizure requests, the provisional injunction and provisional seizure decisions given in the face of the other party, and the objections made against the provisional injunction and provisional seizure decisions given in the absence of the other party. To summarize, the necessary conditions for applying for appeal are as follows:
MONETARY LIMITS IN APPEAL
Monetary limits in appeal are 28,250 TL for 2024 in civil cases. The appeal limit in enforcement civil courts is 66,090 TL. This amount is increased every year by the revaluation rate. Monetary limits are valid for property cases.
In partial cases, the appeal limit is determined according to the entire receivable. This situation is stated in the following Supreme Court decision as follows:
"The case is related to the request for negative determination. It is understood that the plaintiff, without prejudice to his rights regarding the excess, wants the return of the extra payments he made to the enforcement file and the determination that he is not indebted for these extra payments made to the enforcement file, and requests his demands as a partial lawsuit. According to the third paragraph of Article 341 of the Civil Procedure Code, if a part of the receivable is sued, the finality limit is determined according to the entire receivable. Again, the HMK, which regulates the decisions that cannot be appealed. According to Article 362, if a part of the receivable is sued, the finality limit is determined according to the entire receivable." Y3HD 2020/9351 K.
In non-pecuniary damage cases, an appeal can be made without a monetary limit.
In case the entire receivable is sued, the party whose main claim in the decision is not accepted exceeds Turkish Lira (28.250,00 TL) cannot apply for appeal.
It is stated that the first instance courts can be appealed in other laws or an application can be made to the Supreme Court of Appeals, but an appeal can be made to the regional courts of justice against the final decisions of the regional courts of justice regarding cases and matters within their jurisdiction.
WHAT ARE THE REASONS FOR APPEAL?
There is no clear regulation in the law regarding the grounds for appeal. The law does not specify the grounds for appeal by enumerating them one by one. For this reason, it would be correct to determine the grounds of appeal by examining the relevant articles of the Civil Code. It would be correct to state that the grounds of appeal are quite broad, considering Articles 342, 352, 353 and 355 of the Code of Civil Procedure.
Based on this, it should be said that the decisions of the first instance courts that are contrary to law in terms of procedure and substance can be subject to appeal. When we look especially at Article 353 of the Code of Civil Procedure, it can be said that the reason for appeal is regulated as "the decision of the first instance court is not in accordance with the law in terms of procedure or substance". Therefore, the grounds of appeal draw a much broader framework than the grounds of appeal.
While interim decisions cannot be appealed on their own, appeal cannot be filed for material errors that can be corrected by the local court.
IS THE COURT OF APPEAL BOUND BY THE REQUEST? CAN THE COURT OF APPEAL CONDUCT AN INVESTIGATION ON ITSELF?
As a rule, the court of appeal examines only the reasons subject to appeal. Evaluation is made around these reasons. But there is an exception here. This exception is made in cases of violation of public order. As a matter of fact, Article 355 of the HMK is as follows:
"The examination is limited to the reasons stated in the petition of appeal. However, if the regional court of justice sees a violation of public order, it observes it ex officio."
When it is determined that the decision of the first instance court is erroneous as a result of the review carried out by the Regional Court of Justice limited to the grounds of appeal, a retrial is held by the regional court of justice and a decision is made on the merits. The will and disposition of the parties are decisive in the court's decision on the merits. Since the primary purpose of the appeal is to achieve justice in the concrete case, giving priority to the will and disposition of the parties is a natural consequence of this purpose. Although the court of appeal is not bound by the reasons put forward by the parties in cases where the principle of ex officio investigation is applied, it is bound by the reasons of appeal in cases where the principle of preparation by the parties is applied. In addition, the grounds of appeal cannot be changed or expanded without the consent of the other party. However, even in this way, that is, with the consent of the other party, claims and defenses that were not put forward in the first instance court cannot be put forward, and new evidence cannot be relied upon and a countersuit cannot be filed. (YHGK, 2020/9-6 Principles, 2021/342 Decision dated 25.03.2021).
"In summary, the grounds of appeal regulated by the Code of Civil Procedure must be examined in two categories: "contrary to public order" and "reasons put forward by the parties". Contrary to public order is an absolute ground of appeal and is automatically observed by the regional court of justice. Therefore, it does not matter whether a reason contrary to public order is put forward in the petition of appeal. On the other hand, grounds of appeal that are not contrary to public order are grounds for appeal. "It must be shown in the petition of appeal. If a reason for appeal that is not contrary to public order is not stated in the petition of appeal, it cannot be automatically taken into consideration by the regional court of justice, because the appeal review is limited to the reasons stated in the petition of appeal." YHGK 2023/284 K.
ACTIONS THAT CANNOT BE TAKEN DURING THE APPEAL PHASE
1- New Evidence Cannot Be Added During the Appeal Stage.
As a rule, new evidence cannot be put forward at the appeal stage. Exceptions to this rule are:
- He may put forward evidence that was not examined even though it was duly shown in the court of first instance.
- He may put forward evidence that cannot be shown due to force majeure.
- New evidence may be put forward in cases related to public order.
- New evidence may be put forward in cases related to spontaneous investigation.
2- New Facts Cannot Be Alleged During the Appeal Stage.
New facts cannot be put forward during the appeal phase, even with the consent of the other party.
3- During the Appeal Stage, Countersuit Cannot be filed.
4- During the Appeal Stage, Reclamation Cannot be done.
5-Combination of Cases Cannot Be Requested.
6- It is not possible to request intervention in the case during the appeal stage.
7-An Authority Agreement Cannot Be Made for the Court of Appeal.
APPEAL PERIOD
According to Article 345 of the Code of Civil Procedure:
"The period for applying for an appeal is two weeks. This period begins with the procedural notification of the decision to each party. Special legal provisions regarding the period for applying for an appeal are reserved."
Accordingly, the Law stipulates a two-week legal (strict) period for filing an appeal, and it is specifically stated that this period will begin with the notification of the writ. Therefore, the period for applying for appeal is a derogatory period. The beginning of this period, without exception, will begin with the procedural notification of the decision to each party. If the reasoned decision of the first instance court has not been notified to the parties in the ways specified in the laws and regulations, it is of no importance for the notification that the information and documentation functions of the notification have been fulfilled.
HOW TO APPLY FOR APPEAL? – PETITION OF APPEAL
According to Article 342 of the Code of Civil Procedure; Applying for appeal is made through a petition, and as many examples as the number of the opposing party are added to the petition.
The petition of appeal may be submitted to the court that made the decision or to another court. Whichever court the petition of appeal was submitted to, it is recorded in the application book of the regional court of justice and the applicant is given a free receipt.
The petition of appeal submitted to a court other than the court that gave the decision is sent to the court that gave the decision, together with its copies, after this court takes action in accordance with the above paragraph. This situation is immediately reported to the court.
The petition of appeal contains the following points:
a) Attributes, name, surname, Republic of Turkey identification number and addresses of the applicant and the opposing party in the case.
b) Name, surname and addresses of legal representatives and their attorneys, if any.
c) The court from which the decision was given, its date and number.
ç) Date when the decision was notified to the applicant.
d) Summary of the decision.
e) Application reasons and justification.
f) Request result.
g) Signature of the applicant or the legal representative or attorney, if any.
If the petition of appeal contains the identity and signature of the applicant and the records that will sufficiently indicate the decision applied for, it will not be rejected even if other issues are not present, and the necessary examination will be carried out within the framework of Article 355. HMK 342/2-3
HMK 342/3. An interpretation of YHGK regarding the article is as follows:
"As can be seen in Article 342 of the Code of Civil Procedure No. 6100 (§ relevant law), the last paragraph of the article includes provisions regarding the outcome of the application in case the petition of appeal does not contain the matters specified in the article. According to this regulation, if the petition of appeal contains the identity and signature of the applicant and the records that will sufficiently indicate the decision applied for, the application is not rejected outright, but Article 355. Within the framework of the decision, it is envisaged to carry out the necessary examination "ex officio, without being subject to a request, in matters concerning public order", with the aim of preventing the loss of rights due to a procedural deficiency in the petition of appeal. YHGK 2023/284 K.
PROCEDURE REJECTION OF THE PETITION OF APPEAL
According to Article 346 of the Code of Civil Procedure:
If the petition of appeal is submitted after the legal period has passed or if it relates to a final decision, the court that made the decision decides to reject the petition of appeal and automatically notifies the person concerned of the rejection decision, covered by the expenses paid in accordance with Article 344.
An appeal may be filed against this rejection decision within one week from the date of notification. If an appeal is filed and the necessary expenses are paid, the file is sent to the competent regional court of justice by the court that made the decision. If the relevant chamber of the regional court of justice does not find the decision to reject the petition of appeal appropriate, it carries out the necessary examination according to the first petition of appeal.
"The two-week appeal period, which started on this date (Tuesday) with the notification of the reasoned decision to the representative of the Defendant Institution on 19.10.2021, ended at the end of the day on Tuesday, 02.11.2021, in other words, at 00.00 on 03.11.2021 and on 03.11.2021. "It is clear that the appeal petition signed with an electronic signature and sent via UYAP at 15.58 was not within the prescribed period. Therefore, although the additional decision of the first instance court regarding the rejection of the appeal application is in accordance with the procedure and law, the appeal objections of the defendant Institution's attorney against the additional decision should be rejected." YHGK 2022/1647 E.
"The case is about the claim for compensation based on Article 46 of the Code of Civil Procedure (HMK) No. 6100. In the concrete case, the plaintiff requested the collection of 10,000.00 TL non-pecuniary damage, the Special Chamber decided that the case was not filed, and the plaintiff requested an appeal regarding the 10,000.00 TL non-pecuniary damage in question. In this case, the value of the case "As it is understood that the appeal finality limit of 58,800.00 TL is below 58,800.00 TL as of 2019, and since it is not possible to appeal against the said decision in terms of amount, it was necessary to decide to reject the plaintiff's appeal request in terms of amount." YHGK 2021/1 K.
ANSWER TO THE PETITION OF APPEAL
The petition of appeal is notified to the opposing party by the court that made the decision.
The other party may submit the response petition to the court that made the decision or to another court to be sent to this court within two weeks from the notification.
The court that makes the decision sends the file to the relevant regional court of justice, depending on the TV series list, after the petitions are submitted or certain periods of time have passed.
APPEAL BY AGREEMENT
One of the parties who was notified of the court's reasoned decision may have missed the appeal deadline. In such a case, if the conditions of Article 348 of the Code of Civil Procedure are met, an appeal can be filed by way of participation. The relevant article is as follows:
"The party to whom the petition of appeal has been notified may apply for appeal with a reply petition, even if he/she does not have the right to appeal or has passed the application period. The party who actually applied for the appeal may reply within two weeks.
If the applicant for appeal waives this request or if his request is rejected by the regional court of justice without entering into the merits, the request of the applicant through accession will also be rejected."
WAIVER OF APPEAL
It is possible to waive the right to appeal. However, here the requirement is that the period has started, that is, the reasoned decision must have been notified. Otherwise, since the right of appeal will be deemed not to have arisen, the rule that the unborn right cannot be waived will come into play.
It is also possible to waive the appeal after the application is made. Waiving the appeal request constitutes a waiver of the appeal application. In Article 349/2 of Civil Code No. 6100; "If the application is waived after being made, the file is not sent to the regional court of justice and the court that made the decision decides to reject the application. If the file has been sent to the regional court of justice and has not been decided yet, the application is rejected due to waiver." In accordance with the regulation, if the right to appeal is waived at the stage after the file is sent to the Regional Court of Justice, the Regional Court of Justice must decide to reject the appeal application due to waiver.
DOES AN APPEAL FOR APPEAL STOP THE EXECUTION OF THE DECISION?
As a rule, an appeal does not automatically suspend the execution of the decision of the first instance court. For this purpose, it is necessary to take a proper postponement of execution decision. Postponement of execution cannot be given in alimony decisions. This issue will be explained in a separate review.
There are exceptions to the main rule we mentioned above. HMK's 350/2. As stated in the article; Decisions regarding personal law, family law and real rights regarding immovable property cannot be fulfilled unless they become final.
"According to Articles 350/2 and 367/2 of the Code of Civil Procedure, judgments regarding family and personal law and decisions regarding immovable property and related real rights cannot be subject to enforcement proceedings unless they become final. The judgment is a whole and the attachments included in the judgment are subject to the same rule. It is obvious that all receivable items included in the judgment will become due on the date the judgment becomes final, and before the judgment becomes final, The attachments cannot be subject to separate follow-up. The finalization and execution of these items depends only on the finalization of the judgment as a whole. Therefore, before the judgment on the merits of the judgment is finalized, the judgment section regarding attorney fees and trial expenses cannot be subject to execution and enforcement proceedings. 2023/1351 K.
If we make a classification by summing up our explanations above, we can list the decisions that cannot be put into enforcement proceedings before they are finalized as follows:
1- Decisions regarding real rights related to immovable property (for example, title deed cancellation and registration cases, interference cases),
2- Decisions regarding family and personal law (decisions regarding divorce and separation, denial or determination of lineage, decisions regarding custody and personal relationship)
3- Court of Accounts decisions,
4- Personal rights in criminal court decisions (items such as trial expenses, attorney fees and compensation)
5- Enforcement of foreign court decisions
6- Referee decisions
7- Decisions regarding determination cases (for example, the rent determined in rent determination cases cannot be enforced before the new rent is finalized)
STAGES OF APPEAL REVIEW
A- Preliminary Examination
In the preliminary examination phase, the court investigates whether an appeal will be reviewed.
According to the article justification:
"The legal department of the regional court of justice was intended to be allowed to make the necessary decision immediately in order to conclude the case quickly, in case of the lack of some basic issues that can be easily determined by a preliminary examination of the file. Examination of the file falls within the scope of another department, the decision of the first instance court is final, the application for appeal has not been made within the time limit and the minimum application conditions are not met, for example, the application petition does not contain records that will adequately determine the decision applied for. Moreover, in some of these cases, for example, if the application is made after the legal period has passed or if it is related to a final decision of the first instance court, the first instance court may also reject the application petition by taking it into consideration in accordance with the provision of Article 350 (346th in the law). However, if this situation was overlooked in the first instance court, it will be taken into consideration in the regional court of justice. If the reasons or justification for the application are not stated at all in the application petition. In accordance with the second sentence of Article 359 (355th in the law), it will conduct an examination only in terms of public order and make the necessary decision immediately according to the results of this examination."
If one of the following situations is determined as a result of the preliminary examination to be carried out on the file by the legal department of the regional court of justice, the necessary decision is made first:
a) It is necessary for the examination to be carried out by another department or the regional court of justice
b) The decision must be final
c) Failure to submit the application within the deadline
ç) Failure to fulfill the application requirements
ç) Not showing the reasons or justification for the application at all
The preliminary examination is carried out by the committee or a member to be appointed and the decision is made by the committee at the end of the preliminary examination.
The file that is found to have no deficiencies is taken into consideration.
B- Review Phase
After the preliminary examination phase is completed, the examination phase begins. The review phase means evaluating the file on its merits. In other words, examination is used in the sense of investigation.
Since the scope of the review was mentioned above, no further explanation was made under this heading. However, we find it useful to remember the article of the law again. According to Article 355 of the HMK; The review is carried out limited to the reasons stated in the petition of appeal. However, if the regional court of justice deems a violation of public order, it shall observe it ex officio.
Examination at appeal; The review by the legal department of the regional court of justice is carried out by a committee or a member to be appointed, depending on the nature of the case.
When necessary, another regional court of justice or first instance court may be referred to during the examination.
HEARING IN APPEAL REVIEW
As a rule, the appeal review must be conducted with a hearing. However, in practice, appeal review with a hearing has become a rare situation. This practice is not only wrong but also against the law. According to the law, investigations other than the cases listed in Article 353 must be conducted with a hearing.
Failure to attend the hearing and failure to pay expenses
In the invitations issued to the parties in the cases examined at the hearing, it is clearly stated that if they are not present at the hearing, the investigation will be held in their absence and the decision will be made, and in the invitation to be issued to the applicant party, it is also clearly stated that the "expenses" determined by the regional court of justice regarding the investigation to be carried out must be paid as an advance within the certain period to be given, which is not less than two weeks.
If the applicant declares that he cannot attend the hearing based on an acceptable excuse, a new hearing date will be appointed and the parties will be notified.
Provided that the determined expense is paid within the given period of time, if the parties do not attend the hearing without an excuse, the investigation will be made and the decision will be made in their absence. If the determined expense is not paid within the deadline, the decision is made according to the current status of the file. However, in cases where it is not possible to make a decision without the envisaged investigation, the application is rejected. HMK 358
DECISIONS THAT MAY BE MADE WITHOUT A HEARING
If it is understood that there are no deficiencies in the file at the end of the preliminary examination;
a) In the following cases, the regional court of justice decides definitively, without a hearing, to annul the decision without examining the merits and to send the file to the court that gave the decision or to another local court it deems appropriate in its jurisdiction or to the competent court for retrial of the case:
1) The judge who is prohibited from hearing the case has made a decision.
2) Despite the justified rejection request, the rejected judge tried the case.
3) The court has given a decision of lack of jurisdiction or jurisdiction even though it is competent and authorized, or the court has tried the case despite not having jurisdiction or authority.
4) Violation of other case conditions.
5) The court has decided to consider the case or counterclaim as not filed, and to combine or separate the cases, contrary to the procedure.
The court has not collected or evaluated evidence that is important enough to be effective in resolving the dispute, or a decision has not been made on a significant part of the request.
b) Regarding the merits of the case in the following cases;
1) If it is understood that the court decision examined is in accordance with the law in terms of procedure or substance, the application will be rejected on the merits,
2) Although there is no deficiency in the trial, if there is a mistake in the application of the law to the case and there is no need for a retrial, or if there is an error in the justification of the decision, correcting it and re-judging the merits,
3) If the deficiencies found in the trial are such that they can be completed without a hearing, after their completion, a decision is made "to reject the application on the merits or" on the merits again, without a hearing.
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