Prior to 20 July 2016, appeals from the decisions of the first instance courts were made to the Court of Appeal in Ankara. This caused a very heavy workload for the Court of Appeal. To overcome this and in the interest of easing the pressure on the Appeal Court, it was decided to create Regional Courts of Appeal (“RCA”). To that end the legislator enacted the Law No. 5235 on the Establishment and Authorities of the Civil First Instance Courts and the Regional Courts of Appeal. This Law provided for a new appeal procedure and the Civil Procedure Code was amended accordingly. On 7 November 2015, the Decree on the Establishment and Working Principles of Regional Courts of Appeal was published in the Official Gazette which provided that the Regional Courts of Appeal shall come into effect as of 20 July 2016. In this regard, 7 regional courts have been established and the previous appeal system has been abrogated. The previous appellate regime will continue to apply for the decisions that have been appealed prior to 20 July. It should be underlined that the main difference between the appeal examination before the Regional Courts of Appeal and the Court of Cassation (i.e. ex Court of Appeal in Ankara) is that the Regional Court of Appeal is entitled to examine the merits of the case whereas the examination of the Court of Cassation is limited to assessing whether the decision conforms with the laws in force and gives directions accordingly to the lower courts.
In this article, we shall examine the new procedural rules of appeal in civil adjudication.
The Appeal Procedure for the Decisions of the Civil First Instance Courts before the Regional Courts of Appeal
The procedure has been stipulated under articles 341 – 360 of the Civil Procedure Code (“CPC”).
• Pursuant to article 341, appeal to the RCA is possible against first instance court judgments as well as court rulings relating to preliminary injunction and precautionary attachment applications.
• The monetary threshold for an appeal is TRY 1,500. That is to say actions for amounts under TRY 1,500 may not be appealed. If the action is initiated for a partial claim, the whole amount of the claim would be taken into account in assessing whether the judgment is appealable or not. If a claim is rejected in part the party whose claim has been rejected may apply for appeal provided that the rejected claim exceeds TRY 1,500.
• The appellant shall have to deposit the appeal fee and an advance for costs at the time of the application.
• The parties shall have two weeks from the date of service of the reasoned judgment on them to apply for appeal and the opponent party shall submit their replies to the appeal within two weeks of service of the appeal pleading. The special provisions with respect to the period for appeal stipulated under relevant laws are reserved.
• Even though the opponent party is not entitled to appeal the decision or has already missed the period for appeal, they may file a counter-appeal by reply. Having said this, if the appellant withdraws their application or it is rejected by the RCA on procedural grounds, the counter-appeal shall similarly be rejected.
• The application for appeal shall not result in the stay of execution of the judgment per se. The provisions regarding the decisions which cannot be executed without being finalized are reserved.
• Once the file is delivered to the RCA, the Court shall perform a preliminary examination on the file in order to assess whether the procedural criteria for the appeal application are met. Thereafter the file is taken under appeal examination. The RCA shall hold hearings during its examination save for the following circumstances stipulated under article 353:
- The RCA is entitled to lift the decision of the first instance court (without examining the merits of the case) on procedural grounds foreseen under article 353 and to send the file to (i) the same first instance court or (ii) another first instance court within its jurisdiction at its discretion or (ii) to the competent court so that the case is re-adjudicated.
- As to the merits of the case, (i) if the decision of the first instance court conforms with the laws in force, the RCA shall reject the appeal application; (ii) if there is no deficiency in the adjudication process, but the law has not been duly applied to the subject matter or the decision has been based on incorrect grounds, the RCA shall render its decision on the merits of the case by correcting the decision of the first instance court provided that re-adjudication is not necessary; (iii) if the adjudication of the first instance court has deficiencies but they can be completed without holding any hearings, the RCA shall complete them and render a new decision on the merits.
• The examination of the RCA shall be limited with the grounds of appeal stated under the appeal pleading. Having said this, the RCA shall consider ex officio matters related to public order.
The Appeal Procedure of the Decisions of the Regional Courts of Appeal before the Court of Cassation
The procedure has been stipulated under articles 361 – 373 of the CPC.
• The judgments of the civil chambers of the RCA and the judgments with respect to the cancellation of the arbitration award can be appealed. On the other hand, the party in whose favour the adjudication process has been concluded may also apply for appeal if they have legal interest in doing so.
• Article 362 of the CPC stipulates that actions for claims less than TRY 25,000 cannot be subjected to an appeal examination by the Court of Cassation. If the action is initiated for a partial claim, the whole amount of the claim would be taken into account to assess whether the judgment is appealable or not. If a claim is rejected in part, then the party whose claim has been rejected may apply for appeal provided that the rejected claim exceeds TRY 25,000. However, if one of the parties has applied for appeal, the opposing party can appeal the decision by reply. Further to this monetary limit, the article also provides a list of the decisions that are not appealable on a numerus clausus basis.
• The period to apply for appeal is one month as from the service of the judgment of the RCA on the relevant party.
• The appeal examination shall be carried out on the documents in the court file, however under the circumstances stipulated by article 369, the Court of Cassation may hold a hearing. The examination shall not be limited with the grounds of appeal of the parties. That is to say the Court of Cassation is entitled to examine further issues considered to be against the clear provisions of the laws.
• The Court of Cassation may either affirm or overturn the decision of the RCA. The procedure to be followed if the decision is overturned depends on the nature of the decision of the RCA:
- If the overturned decision relates to the rejection of the appeal application against the first instance court, the decision of the RCA shall be lifted and the file shall be sent to (i) the same first instance court or (ii) another first instance court at the discretion of the Court of Cassation.
- If the overturned decision has been given on the merits of the case (either by correcting the decision of the first instance court or as a new decision), the file shall be sent to (i) the same RCA or (ii) another RCA at the discretion of the Court of Cassation.
• The civil first instance court or the RCA may either abide by the overturning decision of the Court of Cassation or insist on their previous decision. If the first instance court abides by the overturning decision of the Court of Cassation, this new decision of the first instance court may also be appealed.
• If the first instance court or the RCA insists on their previous decision, the new appeal examination shall be carried out by the Assembly of the Civil Chambers of the Court of Cassation. The decisions of the Assembly of the Civil Chambers of the Court of Cassation shall be binding for the first instance courts and the RCA.
In the abrogated appeal procedure, the completion of the appeal examination took approximately 15-18 months whereas the re-appeal procedure is completed in approximately 8 – 12 months. In light of the new legal provisions with respect to the appeal procedure, while it can be argued that the workload of the Court of Cassation would be manageable as the scope of the decisions to be examined by them would be limited, it seems that the whole appeal process is unlikely to be completed in a shorter period than before.