The Consequences of Not Specifying the Reasons for Appeal in a Petition of Appeal to The Regional Courts of Appeal

December 2021 Abdullah Bozdaş
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Introduction

The possibility of appellate review of questions of fact, as well as of law, was introduced into Turkish law with an amendment made in the abrogated Civil Procedure Code No. 1086, through Law No. 5239 dated 26.09.2004. However, the Regional Courts of Appeal, which are the courts which have jurisdiction over these appeals, actually started to operate following the decision of the Ministry of Justice published in the Official Gazette dated 07.11.2015, during the period of the Civil Procedure Code No. 6100 (“CPC”) and with the Law No. 5235 on 20.07.2016. With this regulation, the two-tier appellate system, which previously consisted of only the courts of first instance and the Court of Cassation, was changed to a three-tier appellate system consisting of the courts of first instance, the Regional Courts of Appeal and the Court of Cassation.

This article covers the conditions for filing an appeal in the Regional Courts of Appeal and the results of deficiencies in this application, based on the decisions of the Court of Cassation.

A General Overview of the Appellate Jurisdiction of the Regional Courts of Appeal

In general, the appellate jurisdiction of the Regional Courts of Appeal provides parties with a right to appeal decisions on the material facts, as well as determinations of law, made by the courts of first instance.[1] In contrast, the Court of Cassation conducts legal review by examining only whether the law is applied correctly or not.

Under the CPC, the fact and evidence review is carried out only within the framework of the facts and evidence put forward in the court of first instance. In other words, material facts and evidence not brought forward in the court of first instance cannot be asserted before the Regional Courts of Appeal.

Decisions Subject to Appeal

As a rule, it is possible to appeal against the final and some interim decisions rendered by the courts of first instance. Details and regulations regarding these decisions are listed in Article 341 of the CPC. According to this article, an appeal can be made against the decisions regarding assets whose amount and value are above the monetary limit specified in Article 341/2 of CPC, against a decision regarding the rejection of a request for provisional measures and provisional attachments, and against decisions that fall under the jurisdiction of the Regional Courts of Appeal. which are stated to be subject to an appeal review or can be applied to the Court of Cassation in other laws. In addition, since there is no restriction in the CPC on whether final decisions should be procedural or substantive, appeals can be made against both procedural and substantive final decisions. Furthermore, there is no obstacle to appealing against non-contentious decisions as well as contentious decisions.

Reasons for Appeal and Petition of Appeal

There is no limitation in the CPC regarding the reasons for appeal. For this reason, matters affecting the judgment in terms of both procedural and substantive aspects may constitute reasons for the appeal.[2] However, although the reasons for appeal are not limited, it is possible to apply to the appeal procedure only with a petition of appeal. In accordance with Article 342/2 of the CPC, the conditions that should be included in the petition of appeal are clearly stated. The petition of appeal shall contain the identity and address of the applicant and the opposing party, names and addresses of their attorneys, if any, information of the decision of the court of first instance, the summary of the decision of the court of first instance and the date of notification to the applicant, reasons and justifications for appeal, the request of the relief and signature of the applicant.

It is not sufficient to indicate the unlawfulness and illegality of the decision of the court of first instance in the petition of appeal; it is necessary to demonstrate the violation of the substantive law concretely. However, it is unnecessary to demonstrate in detail which legal rule is misapplied because the judge has to apply the law ex officio.[3]

The Scope of Appellate Review and the Consequences of Not Specifying the Reasons for Appeal in the Petition of Appeal

As briefly mentioned above, mandatory factors must be included in the petition of appeal in order for the request to be accepted. In this context, pursuant to Article 342/2-e of CPC, the reasons for appeal must be clearly stated together with the justifications. As the first sentence of Article 355 of CPC states that the scope of the appeal review is limited to the reasons specified in the petition of appeal, stating the reasons for appeal in the petition will constitute the basis of review. In addition, in the second sentence of Article 355 of the CPC, it is stated that the Regional Courts of Appeal can conduct an ex officio review in case of a violation of public order. This practice has been approved by scholars.[4] It is also consistently implemented by the Court of Cassation.[5]

Therefore, although the scope of the appeal review is limited by the reasons specified in the petition of appeal, it is evident that the Regional Courts of Appeal can only conduct a review in terms of public order if no reason for appeal is specified in the petition of appeal. The violation of causes of action and the judgment of the court of first instance without justification set an example for violation of public order.

In practice, the consequences of not specifying the reasons for appeal in the petition of appeal usually arise when the application petition cannot be submitted within the time limit due to a lack of a reasoned decision from the court of first instance. In practice, it is not possible to submit a petition of appeal containing the reasons for appeal without a reasoned decision. For this reason, in a petition called an “application petition,” the party states that the reasons for appeal will be submitted after the reasoned decision of the court of first instance is served. This petition allows the appeal to be lodged within the time limit. However, if the petition of appeal containing the reasons for appeal is not submitted after the application petition is submitted, the Regional Court of Appeal will only be able to conduct a review limited to public order.

Similarly, according to Article 342/3 of the CPC, if only the applicant’s identity and signature are stated in the petition of appeal, as well as the records that will sufficiently reveal the decision subject to appeal, the request of appeal is not directly rejected, and a review is only conducted limited to public order in accordance with Article 355 of CPC.

Precedents of the Court of Cassation

In a decision on the termination of an employment contract and other employment claims, the Court of Cassation decided that if the application petition was submitted, but a petition of appeal was not submitted within the time limit, a review is conducted which is limited to violations of public order decision.[6] However, in this case, it was decided that the applicant’s right to a fair trial had been violated, and since this issue is deemed a violation of public order, the decision of the Regional Court of Appeal was reversed. As can be understood from this decision, the Court of Cassation interprets the public order by including both procedural and material facts.

In another decision of the Court of Cassation, in which various claims arising from a contract were examined, the reasons for appeal and the limited jurisdiction of the Regional Court of Appeal were reviewed.[7] In this decision, an ex officio review was made by the Regional Court of Appeal based on a reason not included in the petition of appeal, and based on this reason, the decision of the court of first instance was annulled. However, the Court of Cassation stated that the scope of appeal should have been limited to the reasons specified in the petition of appeal, in accordance with the explicit provision of Article 355 of the CPC, and evaluated this as a reason for annulment of the judgment rendered by the Regional Court of Appeal.

Can the Regional Court of Appeal Conduct a Review in Case of Explicit Illegality?

As stated above, the appellate jurisdiction of the Regional Courts of Appeal includes issues of both fact and law. In this context, it is controversial whether the reasons for appeal limit the Regional Courts of Appeal while reviewing errors of law. In two different decisions of the 22nd Civil Chamber of the Court of Cassation, the Court stated that although appellate courts are limited to the reasons for appeal when reviewing issue of fact, they are not limited by the reasons for appeal when examining errors of law.[8] In addition to these two decisions, the Court of Cassation General Assembly, in a very recent decision, reviewed whether an issue that was not put forward as a reason for appeal in the petition of appeal constituted a violation of an explicit provision of the law in a decision given by the Regional Court of Appeal.[9]

When these decisions are examined, it can be concluded that the reasons for appeal should not bind the Regional Courts of Appeal when reviewing judgments for errors of law. Considering that the judge also has to implement the law ex officio in accordance with Article 33 of CPC, it can be argued that an explicit violation of the law is also within the scope of appeal in such cases.

However, it should be emphasized that the purpose of the appellate jurisdiction of the Regional Courts of Appeal is not to ensure the unity of law. For this reason, it is accepted that the Courts should only reverse judgments in cases where an error of law is so serious that it amounts to a violation of public order. Regulations governing the Court of Cassation state that it is not bound by the reasons for appeal according to Article 369 of CPC but can also review decisions where there is an explicit violation of the law. In the absence of an explicit regulation for the Regional Courts of Appeal, it is controversial whether explicit illegality can also be reviewed under their appellate jurisdiction.

Conclusion

The appellate jurisdiction of the Regional Courts of Appeal has great importance since these courts conduct both factual and legal review. In this regard, the reasons for the appeal must be specified in the petition of appeal. However, if the reasons for appeal are not specified in the petition of appeal, only a limited review is conducted to determine if an error is so grave as to constitute a violation of public order. For this reason, considering that the appellate review can be conducted limited to the reasons specified in the petition of appeal, specifying the reasons for appeal is perhaps the most significant factor that determines the scope of the appeal review. As a result, to avoid any loss of rights, the reasons for appeal must be specified in the petition of appeal.

Source

[1] Arslan, Ramazan / Yılmaz, Ejder / Taşpınar Ayvaz, Sema / Hanağası, Emel: Medeni Usul Hukuku, Yetkin Yayınları, Ankara 2018, p.588

[2] Pekcanıtez, Hakan / Atalay, Oğuz/ Özekes, Muhammet: Medeni Usul Hukuku Ders Kitabı, On İki Levha Yayıncılık, İstanbul 2020, p. 478

[3] The decision of the Court of Cassation General Assembly dated 25.03.2021 and numbered 2020/9-6 E., 2021/342 K., para.28 (www.lexpera.com.tr)

[4] Postacıoğlu, İlhan E. / Altay, Sümer: Medeni Usul Hukuku Dersleri, Vedat Kitapçılık, İstanbul 2020, p. 821; Kuru, Baki: İstinaf Sistemine Göre Yazılmış Medeni Usul Hukuku, Yetkin Yayınları, 2018, p. 477; Arslan, Ramazan / Yılmaz, Ejder / Taşpınar Ayvaz, Sema / Hanağası, Emel: Medeni Usul Hukuku, Yetkin Yayınları, Ankara 2018, p.599

[5] The decision of the 8th Civil Chamber of the Court of Cassation dated 10.01.2019 and numbered 2018/14342 E., 2029/190 K.; The decision of the 9th Civil Chamber of the Court of Cassation dated and numbered 2017/21080 E., 2020/19904 K.; The decision of the 12th Civil Chamber of the Court of Cassation dated 19.11.2019 and numbered 2019/12665 E., 2019/16738 K. (www.lexpera.com.tr)

[6] The decision of the 22nd Civil Chamber of the Court of Cassation dated 24.04.2018 and numbered 2018/3323 E., 2018/9615 K. (www.lexpera.com.tr)

[7] The decision of the 15th Civil Chamber of the Court of Cassation dated 01.11.2019 and numbered 2019/1117 E., 2019/4269 K. (www.lexpera.com.tr)

[8] The decision of the 22nd Civil Chamber of the Court of Cassation dated 14.02.2019 and numbered 2019/1137 E., 2019/3457 K. and the decision of the 22nd Civil Chamber of the Court of Cassation dated 30.05.2017 and numbered 2017/33666 E., 2017/12649 K. (www.lexpera.com.tr)

[9] See also, the decision of the Court of Cassation General Assembly dated 25.03.2021, para. 74

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