Amendments of Period Of Appeals of Turkish Court Decision in Civil and Criminal Justice Systems

ADMD Law Office
Nazlıcan Uca & Dilara Tamturk

A) Introduction

Regional Courts of Appeals started to operate as from July 20, 2016 and the Turkish Legal System adopted one more instance to its two (2) instance system, being transformed to a three (3) stage system.

In the new system, Regional Courts of Appeals operates as second instance and the Supreme Court of Appeals is the third instance.

• Turkish First-Instance Courts are basic judicial authorities to settle disputes both for civil and criminal cases.
• Turkish Regional Courts of Appeals is a second inspection mechanism and a way of right to appeal between the Courts of First Instance and the Court of Appeals incorporated as of June 20, 2016, Regional Courts of Appeal review and examine decisions held by first-instance local courts and then such decisions can also be appealed if the decision is subject to examination of the Supreme Court of Appeal. The difference is that in the former appeal process (now the second-instance appeal process) local court decisions may only be subjected to a legal examination, meaning that the examination is based on whether the local court decisions are “correct” from a legal aspect but the facts and evidence leading to such decision are not evaluated. However, Regional Courts of Appeal may examine the facts of the case, conduct hearings, and render a new decision. In principle, final decisions concerning material rights may be appealed, however, actions for amounts under 3,000.-Turkish Lira are not involved in this re-examination system and they are regarded as definitive/final subject to the decision of the first instance courts therefore cannot be appealed.
• Turkish Supreme Court of Appeals is the last instance court for reviewing decisions and judgment by both civil and criminal courts. Court of Appeal is the legal remedy for the decisions ruled on by Regional Courts of Appeals.

The decisions of Regional Courts of Appeals where the monetary value of the case do not exceed 40,000.- Turkish Lira are considered definitive/final and they are not subject to review of Supreme Court of Appeals.

Furthermore, it should be noted that the previous appellate regime continues to apply for the decisions that are appealed prior to July 20, 2016.

B) Reasons and Consequences of the Implementation of the Regional Courts of Appeals Into the System

The new two-tier appellate system was regarded necessary for Turkish judicial system since it was apparent to practitioners that the Supreme Court of Appeals was not able to function due to its excessive workload. Considering that 90% of first instance cases are appealed in Turkey, the Supreme Court of Appeal’s review of the same was limited, ineffective and slow.

With the introduction of Regional Courts of Appeals as first-degree appeal courts conducting a thorough review of the local court decisions including review of evidence and facts, the Supreme Court of Appeals is intended to return to its actual purpose. As such, the Supreme Court’s main function as a high court is to sets and combines precedents, and thus improving the correct application of the laws and procedure. Consequently, the workload of Supreme Court of Appeal will definitely decrease and Supreme Court of Appeal is expected to work with greater efficiency.

C) Appeal before the Turkish Supreme Court of Appeals

Supreme Court of Appeals in Civil Jurisdiction

The procedure of applying to Turkish Supreme Court is regulated under the Articles 361 to 373 of the Turkish Civil Procedure Code No. 6100.

• In accordance with Article 361 of Turkish Civil Procedure Code No. 6100, following decisions are subject to the review of Turkish Supreme Court of Appeals;

The judgments of the civil chambers of the Turkish Regional Courts of Appeal and;
The judgments with respect to the cancellation of arbitration awards.

• In accordance with Article 362 of Turkish Civil Procedure Code, following issues are not subject to the review of Turkish Supreme Court of Appeals
• The decisions of Turkish Regional Courts of Appeal, amounts of which do not exceed 40.000.- Turkish Lira (In case of a partial claims, the whole claim amount will be considered for calculation),
• The disputes within the jurisdiction of the First Instance Courts of Peace (excluding the disputes regarding real property rights),
• The decisions resolving issues of determination of location and task based jurisdictional conflicts among First Instance Courts,
• The decisions regarding ex parte proceedings,
• The decisions on the correction of the Civil Registry Records of persons (excluding the cases which bears consequences regarding paternity),
• The decisions on transfer of legal actions among First Instance Courts within the same territorial jurisdiction,
• The decisions on temporary legal protections.

Supreme Court of Appeals in Criminal Jurisdiction

The procedure of applying to Turkish Supreme Court of Appeals is regulated under the Articles 286 to 307 of the Turkish Criminal Procedure Code No. 5271.

In accordance with Article 286 of the Turkish Criminal Procedure Code No. 5271, following decisions are subject to the review of Turkish Supreme Court;

• The decisions of the Regional Court of Appeals (excluding the decisions of reversal).

However, following decisions are not subject to the review of Turkish Supreme Court of Appeals;

• The decisions of Regional Court of Appeals that are related to the rejecting merits of the application of appeals on facts against the imprisonment penalties up to five (5) years or less and decisions denying the merits of appeals on facts against any kind of judicial fines, rendered by the Courts of First Instance,
• The decisions of Regional Court of Appeals that do not increase the imprisonment penalties up to five (5) years or less rendered by the Courts of First Instance,
• The decisions of Regional Court of Appeals that are related to optional sanctions and rejecting merits of the application of appeal on facts against the optional sanctions converted from imprisonment sentences rendered by the Courts of First Instance,
• All kind of decisions of the Regional Court of Appeals that are related to crimes that require imprisonment penalties up to two (2) years or less and judicial fines connected with such crimes,
• All kind of decisions of the Regional Court of Appeals that are related to judicial fines, rendered by the Courts of First Instance,
• Judgments rendered by the Regional Court of Appeals which do not alter the decision of the Courts First Instance in relation to confiscation or forfeiture goods and revenues,
• Where the judgment of the Regional Court of Appeals was an acquittal on appeals on fact related to offenses that require imprisonment for ten years (10) or less, or decisions of denial of motions for appeals of facts in case of acquittals,
• Where the decision of the Courts of First Instance was related to striking a lawsuit, or a decision not to punish, or to a security measure, and the Regional Court of Appeals has rendered a judgment in agreement with such decisions,
• Decisions of the Regional Court of Appeals that contain more than one sentencing and decisions above mentioned, as long as they stay within the limits noted.

D) The Amendments of Periods Implemented with the Law No. 7035 on Appeals of Turkish Court Decisions

The Law on Amending Certain Laws For The Purposes of Resolving the Issues Arising From the Operation of Regional Courts of Appeals and Regional Administrative Courts No. 7035 (the “Law No.7035”) adopted by Council of Ministers on July 20, 2017,hasentered into force on August 5, 2017 through publishing in the Official Gazette No. 30145.

With the enactment of Law No. 7035, the appeal periods of Civil and Criminal Courts are changed.

Such changes are stated in the Articles 21 and 31 of the Law No. 7035 as follows;

• As per to Article 21 of the Law No. 7035; the seven (7) day appeal period set forth in the Article 291 of the Criminal Procedure Code No. 5271 is extended to fifteen (15) days for criminal justice.
• As per to Article 31 of the Law No. 7035; one (1) month appeal period set forth in the Article 361 of the Civil Procedure Code No. 6100 is reduced to two (2) weeks for civil justice.

According to provisional Article 1 of Law No. 7035, the above-mentioned amendments to the appeal periods shall apply to decisions made on and after the effective date which is August 5, 2017.

E) Period of Appeals of Turkish Court Decisions Before and After the Law No.7035