Ercüment Erdem Att. Alper Uzun

An Important Decision of the Assembly of Civil Chambers of the Court of Cassation Regarding the Principle of Legal Security

April 2019

Summary of the Pre-Decision Process

In a lawsuit regarding receivables by an employee from his employer, the court of first instance accepted the case by ruling that the employment agreement was not terminated with just cause. The respondent employer appealed the decision, and stated that the receivables related to termination of the agreement cannot be demanded due to transfer of the workplace, and asserted that the responsibility of the transferor employer should be limited to two years. The 22nd Civil Chamber of Court of Cassation refused the request of appeal, and upheld the decision. Since then, however, revision of decision of the Court of Cassation is not possible in disputes related to labor law, and the court of first instance has written a finalization statement and has closed the case. Afterwards, the employer applied to the 22nd Civil Chamber of Court of Cassation for “correction of material mistake” and approximately 1.5 years after this application, the Chamber removed the previous decision of approval, and reversed the decision of the court of first instance. Following the reversal decision, the court of first instance upheld its primary decision and, as the respondent employer appealed the decision, the file was then assessed by the Assembly of Civil Chambers of Court of Cassation.

The important aspect of this decision is that through the appellate review, the concepts of “verdict”, “legal remedy”, “appeal”, “revision of decision”, “retrial”, “appeal in regional court”, “clarification of decision”, “revision”, “definite verdict”, “procedural acquired right in appeal”, “material mistake”, “legal mistake” and “legal security” were referred to.

Assembly of Civil Chambers of Court of Cassation Has Underlined the Principle of Legal Security

The Assembly of Civil Chambers of Court of Cassation stated in its decision that firstly, the issue of “whether it is possible to remove the decision of approval and reverse the court decision upon the request of correction of material mistake” and then the issues of transfer of the workplace, liability of the employer, after that existence of receivable claims of the employee should be discussed, and that prior to discussing these important procedural matters, rules that we have referred to, above, should be addressed.

The verdict is defined as the decision that is given as a result of the judgment regarding the case that was brought before the court by way of a lawsuit, and which concludes the dispute between the parties. Legal remedies are considered for final decisions under the Turkish Civil Procedure Law.

During the period of Civil Procedure Law numbered 1086 (“CPL numbered 1086”), there used to be three legal remedies available, including appeal, revision of decision, and restoration of judgment. The first two of these remedies were accepted to be the “normal (ordinary)” legal remedy, and the last one was accepted to be the “extraordinary” legal remedy. Revision of judgment is a unique legal remedy that enables the Court of Cassation to correct any mistakes made during the appellate review (that qualifies as the follow up to the appeal), and the relevant chamber of the Court of Cassation reviews its own decisions.

Renovation (restoration) of judgment is an extraordinary legal remedy that enables the materially definite decision to be averted due to certain serious jurisdiction mistakes and deficiencies, and renders it possible to hear and review a case that has already been finalized through a definite judgment.

Under CPL numbered 6100 (“CPL”), legal remedies are regulated as two stages, those being appeal in the regional court, and appeal in the Court of Cassation. Revision of decision continues to exist as the extraordinary legal remedy. Despite the appeal in the regional court that was later included in our legislation being available as a legal remedy, unlike an appeal in the Court of Cassation, not only is the decision of court of first instance reviewed but, also, a new trial is conducted, and a verdict is given like a verdict that is given in court in this process, if necessary. As there is a two-staged legal remedy available under the system of CPL, and there are differences to the system under CPL numbered 1086. At this point, an appeal in the Court of Cassation is a legal remedy that is available to decisions rendered by the regional court.

In the case at hand, as the decision was given prior to the date of commencement of the activity of the regional courts, which date is 20 July 2016, a dual evaluation regarding the options of legal remedy should be made, taking into account the entry into force of Law numbered 1086, Law numbered 6100, and the date of commencement of the activities of the regional courts, as provisions of Articles 427 to 454 of Law numbered 1086, amended through Law numbered 1086, and dated 26 September 2004, shall apply to the case under the second paragraph of Temporary Article 3 of the CPL.

Under Temporary Article 3 of the CPL, until finalization of the decisions rendered prior to the date of commencement of the activity of the regional courts, which date is 20 July 2016, the provisions of Articles 427 to 454 regarding appeals filed prior to the amendment, and made through Law numbered 5236, and dated 26 September 2004, shall apply. Although the Regional Courts have commenced their activities, and the CPL is in force, a decision rendered prior to the date of 20 July 2016 shall constitute a formally definite verdict by way of exhausting all legal remedies in the event an appeal is filed in the Court of Cassation, or revision of judgment is possible under CPL numbered 1086.

On the other hand, decisions that are subject to the provisions of the CPL regarding legal remedies shall become formally definite after the stages of appeal in the regional court and the Court of Cassation.

Nonetheless, although revision of a decision is not possible, and one can only request correction of material mistake in a lawsuit filed during the period of CPL numbered 1086 regarding collection of labor receivables, as also explained in various decisions of the Assembly of Civil Chambers, it is not possible to make a public order and conscience defense to continue a clear mistake related completely to material facts, beyond the scope of legal evaluation and supervision that was, somehow, overlooked during the appellate review, and which seriously affects and usually reverses the outcome of the result of the judgment, which clearly must be corrected.

The concept of “procedural acquired right” that is accepted by the precedents of the Court of Cassation has exceptions that are formed, again, by the Court of Cassation, as it is the case in various rules of law.

In the event another decision of unification of the verdicts is given after the decision of compliance with the reversal decision of the court, the procedurally acquired right gained by the reversal decision of the Court of Cassation shall not carry any weight. After the court of first instance complies with the reversal decision, the procedurally acquired right gained through complying with the reversing decision shall also carry no weight in light of the new law regarding the issue that has entered into force. In the event that the Constitutional Court annuls a provision of law prior to the finalization of a judgment, the verdict shall be given according to the new situation created by the annulment decision, not according to the procedurally acquired right. The issue of competence is also an exemption to a procedurally acquired right. Apart from these, acquired procedurally rights shall not be in question in issues relating to public order, such as lapse of time, objection of definite verdict and fees. Also, a procedurally acquired right shall not originate by having complied with reversal decisions with respect to factual errors.

A material mistake (legal mistake) is a mistake in whether an event has occurred, or in the conditions or qualities of the event. Here, the concept of material mistake means that clear errors regarding the facts, and which fall outside the scope of legal evaluation and supervision, which appear as an apparent mistake at first instance, and somehow was overlooked and that seriously affects the outcome of the judgment, and usually reverses the judgment, must be corrected as it is not possible to continue to defend such a mistake in the scope of public order and conscience. The Court of Cassation has intervened in the issue in cases where a material mistake is identified, and agreed to correct the material mistake that was made at the beginning.

Under Article 8 of Labor Courts Law numbered 5521 that applies to the case at hand, a revision of a decision is not possible by the Court of Cassation with respect to decisions rendered by the labor courts. However, decisions based upon a material mistake are beyond the scope of this principle. In the event there is a clear material mistake in reversing and upholding decisions, the case may be revised. If a right has been gained through a faulty decision, through reversing and upholding decisions that are based on a material mistake, this violates the basic principles of universal law, and these decisions cannot create a right on behalf of the opposing party. Nevertheless, in the event a result is obtained by manner of evaluating the evidence on a legal basis in a reversal decision, even though it is later understood that the verdict is wrong, or the evidence was evaluated erroneously, the presence of an acquired right should be accepted.

Regarding the principle of “legal security,” the Assembly of Civil Chambers expresses in summary that the rules of law are predictable, and individuals can have confidence in the state in all of their transactions and acts, and legal regulations of the state are clear, transparent, understandable and applicable both for the individuals and the administration.

Conclusion

In the decision of the Assembly of Civil Chambers of Court of Cassation numbered 2016/22-388 E. 2018/1607 K. and dated 06.11.2018, the verdict and following stages were evaluated in detail, and as a result of the extensive investigation made, by also referring to the changes with the entry of the regional courts in our legislation, and it upheld the decision of insistence which was reviewed.

In the decision, the court of first instance findings that have been upheld by rejecting the request of appeal of the respondent employer, and which had a finalization statement written underneath, was upheld by the 22nd Civil Chamber of the Court of Cassation through evaluation of evidence and legal qualification. This was made with the reasoning that there was a material mistake in the evaluation and legal qualification and, thus, the upholding decision was removed, and it was decided that the decision shall be reversed. In other words, the upholding decision of the Court of Cassation was given without necessary examination and investigation and, as there was a material mistake that would harm the principle of “legal security” to remove the decision, thus, it is not possible to reverse the decision.