Insiders Guide to New Appeal Legal Process

Dear clients and foreign investors,

Just as politicians and their political and economic policies are defined and shaped by the by the culture of its citizens andtheir world perspective so the Legal System of a country shapes the parametres within which the political economic and culture evolves. In this respect any changes at root level in the law may have repercussions which affect not only its own citizens but also tourists foreign investors and those with international business relations with that country.

As a consequence it is of eminent importance for all our foreign clients to be aware of the current change in the Turkish Legal Appeal system to a three tier legislation process. (Regional Justice Courts).

In order to inform our clients of this new process which will come into being as of the 20.07.2016 we have here compiled a brief outline of the principals of the new system…

 

JUSTICE COURTS IZMIR REGION  Izmir city, Aydın , Balıkesir , Çanakkale , Kütahya, Manisa , Muğla , Uşak (total : 8 regions )

These Appeal Courts Opening Dates (HMK temporary Clause 3 ) as notifyed in the offical journal of the Court ofAppealwill be opening on the 20 July 2016.

 Any Legal Applications preceeding this date will be arbitrated according to HUMK md. 427-454 ( temporary Clause 3,2) and any applications made after the date of notification will be arbitrated within the HMK legal process.

 

CASES APPLICABLE TO COURT OF APPEAL HMK Clause 341.

1-Court ofFirst Instance final decisions

2-Provisional Seizures ( IIC cl.258,3 )  refusal of demand and decisions of appeal of these applications.

3-Decisions relating to the contestation of a Judge.

4- Cases of 1,500tland over.

5- If the appeal has been made for one part of theassets compensation the total sum will be taken into consideration.

6- If the appeal has been made for the total sum but not granted by the court the differencemust be over 1,500Tl.

7- In cases where there is a conflict in the judicial verdict.

8- In Debt and Bankrupcy Law article 363, the cases which are not applicable to the cassation appeal are written. Any cases outside this remit need to have a value of at least 2,190 TL .

9- Any appeals against the decsision of the Consumer Arbitration Tribunal will decided by the Consumer Court.

10-Other branches of Law that are within the remit of the regional justice courtsof whose Court of First Instance decision may be appealed against are found under the article  HMK cl. 341  

 

DOCUMENTARY REQUIREMENTS FOR PETITION OF APPEAL

·      First Court of Instance court decision date and number.

·      Where appropriate the names and adresses of legal represenatives or Powers of Attorney.

·      Date if this decisions notification.

·      Date of application notification.

·      Summary of decision

·      Reasons for appeal and legal background.

·      Final decision of case

·      Signature of applicant or legal represenative or power of attorney

·      If the Applicants identity documentation and signature and the decision of the court is present these will be sufficient without recourse to any other requirements as in HMK cl.118.

·      The application for cassation may be made to the court of first instance or to any other court in the region. (HMK. Cl. 343)

·      Date for appeal is implemented according to the HMK m.118 l

 

APPEAL PETITION DURATION

The date for cassation application must be made within 2 weeks of notification of the decision of the First Court of Instance.

In cases of Bankrupcy and Debt the application must be made within 10 days of notifaction of the decision of the First Court of Instance. (ILKm363)

In cases of the Labour Court the application must be made within 8 days of the final decision pronouncement regarding the litigant and opponent of the First Court of Instance. HMK m.355

In most cases examination will be done within the restrictions of the cassation application as defined. However wherever this is contrary to theregional courts prosecution public order the court may act on its own motion, ipso facto.

 

LITIGATION OUTSIDE THE REGIONAL JUSTICE COURT’S AUTHORITY

1. Opposing case may not be opened.

2. May not file to intevene (primary and secondary intervention) if this is made the case will be denounced.

3. The case may not be ammended.

4. Save for the exceptions provided for in HMK 166cl. first subclause, cases may not be joinded.

5. Any defences or claims by the first court of instance are not effective, except where the regional court has the power to act on its own motion, ex officio.

6. New evidence may not be relied upon. However any evidence which has been submitted but denied or for extremereasons (acts of God) could not be submitted in the Firt Court of Instance may be examined.

7. Ultra vires contracts may not be made.

 

DECISIONS TO BE MADE BEFORE APPEAL HEARING

(1) Providing all the requirements are present in the case documents after the primary examination:

a) In the conditions below the regional justice court may give the following decisions before the main hearing or sending to another appropriate court within its jurisdiction or court within the regionofficial in revoking the decision and reopening the case :

1. Declaring that the judge was not legally authorized to decide on the case.

2. Despite the application for the  rejection of the judges rights to hear the case, the decision to proceed with the rejected judge to hear it.

3. In cases where the court official or legal offical has breached their official remi tor given an unauthorized decision or are themselves unauthorized or where the the regional local court is outside the jurisdiction.

4. Finding of any other aspects of legal anomolies within the case

5. The non procedural recording of no defense case opened, the joinding of cases or their separation and the decision of the indication of the appropriate court.

6. That the decision was made without, the primary evidence brought by either party in the case was not delivered or presented or where the evidence was not examined.

 b) With regard to the following primary aspects of the case

1.Where the court has within the law, procedurally or primarily found the  case application to be rejectable.

2. Where the trial was found deficient, where there is a fault in the interpration of the law bringing grounds for a re-trial, where there was a mistake in the making of  the decsionrequires essential renewal

3. Where there deficiencies found in the trial which are not fulfilled within the hearing,

The decision may be made without a hearing.

We hope that this change by clearing the previous congestion will lead to a faster more effective legal system for our future…


Kaska Law