The Problem of the Limits of Certainty in Civil Procedural Law in the Light of the Court of Cassation Decisions
Introduction
Under Turkish law, the term “limits of certainty” refers to monetary limits to the rights of appeal and cassation. While it is possible to appeal to a higher court against the decisions of the courts of the first instance and the courts of appeal where the amount of the claim or the value of the case is above these monetary limits, decisions are final for cases falling below the monetary limits.
This article covers the decisions of the Court of Cassation chambers based on different limits of certainty and analyzes the practice adopted by the majority of the chambers.
Limits of Certainty for Appeal and Remedies by Way of Cassation
Law No. 5235 on the Establishment, Duties, and Powers of the Courts of First Instance and Regional Courts of Appeal envisaged the establishment of Regional Courts of Appeal. The Regional Courts of Appeal were created long after their official authorization, following the entry into force of Code of Civil Procedure No. 6100 (“CCP”). Following the transition to the two-stage appellate system, the legislature set various monetary limits for the decisions of the court of the first instance and the court of appeal where the amount of the claim or the value of the case is below a certain amount. Article 341/2 of the CCP sets the limit of certainty for the application to the legal remedy of appeal: “Decisions regarding property cases whose amount or value does not exceed three thousand Turkish Liras are final.” In 2022, the finality limit for appeal determined by the Revaluation Rate is 8,000 TL. Article 362/1-a of the CCP sets the finality limit for cassation and states that no cassation can be filed against the decisions of the Regional Court of Appeal when the case value is below 40,000TL. As a matter of fact, the cassation finality limit determined by the Revaluation Rate is 107,090 TL for the year 2022.
Problem Encountered in Implementation
First of all, it should be noted that the CCP does not regulate the limit of certainty of cassation in the decisions of the first-instance courts after the file is sent to them by the Court of Cassation, and the disputes arising, for this reason, are resolved by the courts. On the other hand, as mentioned above, the limit of certainty to be taken as a basis when appealing to the Regional Court of Appeals against the decisions of the court of the first instance and to the Court of Cassation against the decisions of the Regional Court of Appeals are clearly stated in the CCP. However, what will be the limit of certainty to be applied against the decision of the court of the first instance if its decision is overturned by the Court of Cassation and the file is sent back to the court of the first instance? In the above scenario, major differences will arise in terms of the satisfaction of the legal remedies provided to the parties. For example, assume that in a case where the value of the case is 200.000 TL, the decision of the Court of Appeal is reversed by the Court of Cassation, and the file is sent back to the court of the first instance, and 100.000 TL is awarded in favor of one of the parties in accordance with a partial acceptance decision. Pursuant to Article 341/2 of the CCP, if the limit of certainty of appeal is applied against this decision, it will be possible to apply for a higher court against the decision and the decision can be reviewed by the Court of Cassation. However, if the limit of certainty for cassation pursuant to Article 362/1-a of the CCP is applied, the decision will be finalized and there will be no opportunity for review. In other words, as in the scenario mentioned earlier, in the event that the amount of the claim or the value of the case in the first instance court is between the limit of certainty of appeal and the limit of certainty of cassation, the choice of one of these finality limit rules will seriously affect the parties’ right to apply for legal remedies.
Differing Decisions between the Chambers of the Court of Cassation and the Opinion of the General Assembly of the Court of Cassation
The 9th Civil Chamber of the Court of Cassation clearly stated that the limit of certainty of appeal should not be sought in terms of the amount specified in Article 362/1-a of the HMK in proceedings[1] regarding labor receivables, which are frequently encountered in practice.
In a more recent decision[2] of the same chamber, this view was adopted and the same decision was rendered. Similarly, in a decision[3] rendered by the 22nd Civil Chamber of the Court of Cassation, the Court explicitly ruled that the limit of certainty specified in Article 341/2 of the CCP applied. In addition, the 4th Civil Chamber of the Court of Cassation also ruled in a dispute[4] regarding the claim for compensation that the limit of certainty stipulated in Article 341/2 of the CCP will be applied after the reversal.
However, the 3rd Civil Chamber of the Court of Cassation has rendered contrary decisions. In a recent decision,[5] the Court examined the procedural and substantive aspects of an appeal made against the first instance court decision regarding a receivable subject to the negative assessment case, upon the rejection of the appeal application by the Regional Court of Appeals. Unlike the other chambers, the 3rd Civil Chamber of the Court of Cassation decided that Article 362 of the CCP would be applied to the dispute and that the cassation request should be rejected since the value of the case was below the finality limit of 107.090 TL as of the date of the decision.
On the other hand, the current caselaw of the Civil General Assembly of the Court of Cassation is in agreement with the majority of chambers. The General Assembly has determined that the CCP does not specifically specify the limit of certainty for appeals against the decisions of the first instance court and has indicated which article should be applied: “Since there is no explicit provision in the Law regarding the determination of the limits of certainty in case of an appeal of the decisions rendered by the court of the first instance, it is necessary to take into account the regulation in Article 341/2 of the CCP, and it was unanimously decided in the first meeting that there is no preliminary question in the case at hand and the court proceeded to the examination of the merits.” In other words, the General Assembly of Civil Chambers of the Court of Cassation has clearly stated that the limit of certainty of cassation specified in Article 362/1-a of the CCP shall not be applied against the decision of the court of the first instance in terms of the disputes that were reversed or partially accepted by the Court of Cassation and sent to the court of the first instance, and that this decision shall not be finalized and the possibility of appeal against the decision shall not be eliminated, on the contrary, the limit of certainty of appeal specified in Article 341/2 of the CCP shall be applied and a legal remedy may be applied against the decision.
Evaluation and Conclusion
As explained in detail above, although the 3rd Civil Chamber of the Court of Cassation has ruled otherwise, the limit of certainty of appeal procedure pursuant to Article 341/2 of the CCP should be applied to the decisions rendered by the Court of Cassation in disputes referred to the court of the first instance. In this way, in disputes where the amount of the claim or the value of the lawsuit falls between the limit of certainty of appeal and the limit of certainty of cassation, the application will not be rejected due to being below limit of certainty of appeal. Indeed, Article 362/1 of the CCP explicitly stipulates that the limit of certainty of appeal shall apply to the decisions of the Regional Courts of Appeal. However, in disputes where there is a difference in case law, since the limit of certainty will be examined on the decision of the court of the first instance sent by the Court of Cassation, it has been extremely accurate not to take into account the limit of certainty of cassation. As a result, by opting for this route, it is possible to examine the legal remedy of cassation against the decision of the court of the first instance to which the file was sent.
- Decision of the 9th Civil Chamber of the Court of Cassation numbered 2018/8127 E., 2021/11650 K. and dated 14.09.2021
- Decision of the 9th Civil Chamber of the Court of Cassation numbered 2021/12218 E., 2021/16601 K. and dated 15.12.2021
- Decision of the 22nd Civil Chamber of the Court of Cassation numbered 2018/13895 E., 2018/21286 K. and dated 08.10.2018
- Decision of the 4th Civil Chamber of the Court of Cassation numbered 2019/2384 E., 2019/5120 K. and dated 07.11.2019
- Decision of the 3rd Civil Chamber of the Court of Cassation numbered 2021/7282 E., 2022/5900 K. and dated 16.06.2022; Decision of the 3rd Civil Chamber of the Court of Cassation numbered 2021/6870 E., 2021/11467 K. and dated 16.11.2021
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