Establishment, Structure And Functioning Of Courts Of Appeal
Appellate jurisdiction was provided by the Civil Procedure Code[1] (“CPC”) that entered into force on 01.10.2011. Thus, the decisions rendered by the courts of first instance may be challenged before the competent court of appeal, and the courts of appeal sits between the courts of first instance and the Court of Cassation. However, establishment of the courts of appeal and entry into force of the appellate jurisdiction has been postponed several times. Finally, the Regulation on Procedures Regarding the Administrative and Clerk Services for the Courts of Appeal, Civil Courts of First Instance and Office of the Chief Public Prosecutor of the Republic entered into force through publication in the Official Gazette dated 06.08.2015 and numbered 29437, and the Resolution of the Official Start Date of the Courts of Appeal and the District Administrative Courts[2] provides that the courts of appeal comes into effect as of 20.07.2016. We will assess the establishment, functioning, and appellate procedure against the decisions of the civil courts of first instance within the scope of this Newsletter.
Establishment, Structure and Role
Art. 25-32 of the Law on the Establishment, Role and Competence of the Civil and Criminal Courts of First Instance and the Courts of Appeal[3] ( “Law on the Establishment”) sets forth the establishment and the structure of the courts of appeal. Courts of appeal are established in determined regions in accordance with the geographical position and workload in these regions. Accordingly, courts of appeal are located in İstanbul, Bursa, İzmir, Ankara, Konya, Samsun, Adana, and Erzurum, as well as Diyarbakır, and additional courts of appeal are established in Antalya, Gaziantep, Kayseri, Sakarya, Trabzon and Van in accordance with the Resolution on the Establishment of Six Additional Courts of Appeal[4].
Courts of appeal are comprised of presidency, boards of presidents, chambers, office of the chief public prosecutor of the republic, justice commission and directorship. A president is assigned to each court of appeal, and the presidency is comprised of the president and office of the clerk.
Each court of appeal is comprised of at least three civil and two criminal chambers. The Ministry of Justice may increase or decrease the number of these chambers, if necessary. A president and sufficient number of members are assigned to each chamber.
In accordance with Art.(s) 36 and 37 of the Law on the Establishment, duties of the civil and criminal chambers are to review and render a decision on the applications filed against the decisions of the civil/criminal courts of first instance that are not definitive; to resolve disputes relating to competence and authority of the civil/criminal courts of first instance within its jurisdiction; to decide upon the transmission of the case to another civil/criminal court if the competent court cannot rule on the case due to de facto or legal obstacles, and to determine the competent court if the extent of jurisdiction of two civil/criminal courts cannot be determined.
Decisions Subject to Appeal and Procedure of Appeal
Art.(s) 341-360 of the CPC sets forth the decisions that are subject to appeal and other procedures regarding the appellate jurisdiction. In accordance with Art. 341 of the CPC, (i) final decisions rendered by the courts of first instance, as well as refusal of the requests of precautionary measures or precautionary attachment or decisions rendered upon the objection of the acceptance of these requests, (ii) the decisions pertaining to monetary requests, the amounts of which are greater than TRY 1500, are subject to appeal. If a partial request is filed before the court, the threshold shall be compared to the total amount of the receivable. If the total amount of the receivable is requested, the party whose requests are refused or do not exceed the relevant threshold, shall not appeal the decision. Furthermore, the final decisions that are subject to the Court of Cassation’s review, and which fall within the jurisdiction of the court of appeal in accordance with the other relevant legislation, may also be brought before the court of appeal.
Application to the court of appeal is made through a petition. The petition shall contain the subject, name, surname, Turkish Republic identification number and address of the parties; name, surname and address of the legal representative and attorney, the court of first instance that rendered the decision to be appealed, as well as the date and number of the decision; the date upon which the appellant was notified of the decision; summary of the decision; causes and grounds of the application; request and signature of the appellant or of its legal representative or attorney, if applicable (CPC art. 342). In accordance with the same article, the relevant court will not refuse the application of appeal based on any deficiencies regarding the petition, if the petition contains the relevant information on the identity of the appellant, his/her signature, and other details that are sufficient to determine the decision subject to the application. The petition of appeal may be delivered to the court that rendered the decision in question or to any other court (CPC art. 343). The petition of appeal shall be registered in the court of appeal application book upon the court taking delivery of the petition, and a certificate of receipt shall be provided. In accordance with Art. 118 of the CPC, the application date shall be the date upon which the registration in the book was made.
By the time of the delivery of the petition of appeal, the application fee and all expenses, including the expenses related to the notification process shall be paid. If the relevant expenses or fees are not paid at the time of application, the court shall grant a one week definitive period for the payment, and informs the appellant in writing that the appellant shall be deemed to abandon its application in the event of non-payment of the relevant expenses (CPC art. 344). If the payment is not made within the one week period, the application shall be deemed as not filed. The relevant decision may be appealed.
The period for application to the court of appeal is two weeks as of the date of notification of the subject decision to the parties; special provisions regarding the period of application are reserved (CPC art. 345). If the application is filed after the expiry of the period of application, or against a definitive decision, the court that rendered the subject decision shall refuse the petition of application (CPC art. 346). The decision of refusal may be appealed within one week as of its notification. If the relevant court of appeal deems that the refusal is not warranted, it examines the subject decision on the basis of the relevant petition.
The respondent shall deliver its responses to the petition of appeal within two weeks as of its notification (CPC art. 347). The reply brief may be delivered to the court that rendered the subject decision or to any other court. Art. 328 of the CPC provides that the respondent may appeal the said decision through its reply brief, even if he/she has no standing to file an application, or the period of application has expired. The principle appellant may respond to the relevant petition within two weeks as of its notification. However, if the principle appellant waives its application, or the court of appeal refuses its application on procedural grounds, respondent’s application of appeal shall be refused, as well. The parties may waive their right to appeal after the notification of the subject decision is given (CPC art. 349).
Art. 350 of the CPC provides that the application to the appellate procedure does not suspend the enforcement of the decision in question; accordingly, a decision for the suspension of the enforcement shall be obtained pursuant to Art. 36 of the Enforcement and Bankruptcy Code.
Appellate Review
Firstly, the court of appeal reviews whether the dossier should be reviewed by another chamber, the decision is definitive, the application is filed within the due period, all the conditions for the application are fulfilled, and whether the grounds and reasons for the application are provided or not (CPC Art. 352).
If the court of appeal does not determine any deficiencies in its preliminary review, it proceeds to the reviewing phase. The review is limited to the grounds provided in the petition, with the exception of matters that relate to public policy (CPC Art. 355). Contrary to the Court of Cassation’s review, appellate review is not limited to the legal determinations. During the appellate review, the court of appeal may examine the facts of the case, conduct hearings, and render a decision[5].
Art. 353 of the CPC provides the circumstances in which the holding of a hearing is not necessary; with the exception of these circumstances, the court of appeal holds a hearing. If one of the parties does not attend the hearing without any just cause, or fails to pay expenses related to the investigation within the due period, the decision is adopted on the basis of the existing documents and circumstances in accordance with Art. 358 of the CPC, provided that the relevant party is invited to the hearing, in writing. If a decision cannot be adopted without conducting an investigation, the application of appeal shall be refused.
In addition to foregoing provisions, in accordance with Art. 360 of the CPC, the procedures of the court of first instance shall apply in the absence of specific provisions.
Review of the Court of Appeal’s Decisions before the Court of Cassation
Art.(s) 361-361 of the CPC provides for the court of appeal’s decisions subject to the review of the Court of Cassation. Accordingly, the court of appeal’s decisions relating to monetary amounts of which do not exceed TRY 25,000 (including TRY 25,000), relating to the disputes within the jurisdiction of the courts of peace, with the exception of disputes arising from the Law on Condominiums dated 23.06.1965 and numbered 634, and which are related to real rights on the property, the decisions relating to disputes before the courts of first instance that pertain to competence and authority, and the decisions on the determination of the competent court, decisions relating to ex parte proceedings, decisions on the transmission of the cases to another court due to legal or de facto obstacles for the court of first instance to pronounce on the relevant case, and decisions relating to the correction of the identification registers with the exception of the correction of paternity, are not subject to the review of the Court of Cassation. With the exception of aforementioned decisions, final decisions rendered by the courts of appeal may be challenged before the Court of Cassation within one month as of its notification.
Conclusion
The Resolution on the Official Start Date of the Courts of Appeal and the District Administrative Courts provides that the courts of appeal commences on 20.07.2016. The establishment, structure and role of the courts of appeal is provided by the Law on the Establishment; whereas the appellate procedure, the decisions subject to appellate review, as well as the appellate review are determined by the CPC.
- Published in the Official Gazette dated 04.02.2011 and numbered 27836.
- Published in the Official Gazette dated 07.11.2015 and numbered 29525.
- Published in the Official Gazette dated 07.10.2004 and numbered 25606.
- Published in the Official Gazette dated 07.11.2015 and numbered 29525.
- Hakan Pekcanıtez, Oğuz Atalay, Muhammet Özekes, Medeni Usul Hukuku, Ankara 2013, p. 880.
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