Supreme Court General Assembly
2018/502 E.
2018/1049 K.
Court of First Instance: Court of First Instance
Regarding the partial acceptance of the case filed between the parties for “confiscation, disposal, and compensation for damages,” the Ankara West 3rd Heavy Penal Court’s decision dated 18.09.2012 and numbered 201/246 E. was issued. Upon the request of the plaintiff and defendant’s attorneys for the decision to be reviewed, the Supreme Court’s 1st Upon the defendant’s attorney’s request for correction of the decision, the request was accepted, and the affirmation decision was overturned by the decision dated December 9, 2013, numbered 2013/13861 E., 2013/17433 K.:
“…The case concerns the confiscation of large-scale immovable property, its demolition, and the prevention of compensation claims.
The court’s decision to partially accept the case was appealed by the parties and upheld by the Chamber Presidency, and the defendant requested a correction of the decision.
According to the file contents and the evidence gathered, the case was filed with the Ankara 3rd Civil Court of First Instance with a petition dated 11.01.2011, and the decision of lack of jurisdiction issued by the said court became final on 26.05.2011 without any appeal.
As is known, Article 6100, paragraph 20 of the Code of Civil Procedure (HMK) states that a court issuing a decision of lack of jurisdiction or incompetence shall only decide to send the case file to the competent or authorized court. It cannot send the case file to the competent or authorized court on its own initiative (if any).
In order for the case file to be sent to the competent or authorized court and for the case to be continued in the competent or authorized court, one of the parties must apply to the court that issued the decision of lack of jurisdiction or lack of authority and notify the court within two weeks of the decision becoming final.
This two-week period constitutes a violation of rights and is monitored by the court itself.
In the specific case, although the decision on lack of jurisdiction became final on May 26, 2011, it is seen that the Ankara 3rd Civil Court of First Instance sent the file to the competent Sincan Civil Court of First Instance with its letter dated May 27, 2011.
Considering Article 20/1 of the Code of Civil Procedure in its current form, it was concluded that the case should be dismissed as unfounded and that it would not be appropriate to evaluate the merits of the case…”
The grounds were overturned, and it was decided to return the file to its original location. As a result of the retrial, the court upheld its previous decision.
DECISION OF THE GENERAL ASSEMBLY OF THE COURT OF CASSATION
Upon review by the General Assembly of the Court of Cassation, it was understood that an objection had been filed against the decision to uphold the previous ruling, and after reviewing the documents in the file, the following was discussed:
The case concerns the prevention of seizure of immovable property, demolition, and claims for damages.
Th plaintiff’s attorney requested that the unauthorized use of part of the immovable property belonging to his client as a service area by the defendant be prevented, that the unjust appropriation and demolition be prevented, and that the plaintiff’s damages be determined and a decision be made to collect them.
The defendant’s attorney requested jurisdiction, stating that the immovable property was located in Etimesgut and that the Sincan Courts therefore had jurisdiction.
The Ankara 3rd Civil Court of First Instance, where the case was filed, ruled that it lacked jurisdiction, stating that the competent court was the Sincan Courts, where the immovable property was located. Upon the finalization of the decision, with no avenue for appeal, the file was sent to the competent court, the Sincan 3rd Civil Court of First Instance. As a result of the trial held at the Civil Court of First Instance, it was decided to partially accept the case.
The decision was first upheld by the Special Chamber at the request of the attorneys representing the parties who filed the appeal. However, this time, the defendant’s attorney sought to have the decision corrected, and the confirmation decision was revoked and overturned based on the reasons stated in the heading section above.
The legal provisions to be applied by the local court are the provisions of Article 193 of the Code of Civil Procedure No. 1086, which was in force on the date the decision on unauthorized use became final.
According to the provision, the decision to send the file to the competent court shall, as a rule, be made by petition to the competent (or incompetent) court; however, if the petition route is not envisaged, the payment of the necessary and sufficient expenses deemed appropriate within the ten-day period of the notification to be made by the competent (or incompetent) court shall be made. If this is not done within the ten-day notification period, and if the case has not been opened, a decision to resist was made on the grounds that the plaintiff applied to the court to pay the notification expenses within the legal ten-day period and fulfilled the legal requirement, without being considered a delay surcharge.
The decision to resist was appealed by the plaintiff and defendant’s attorneys.
The dispute before the General Assembly of the Court of Appeals is whether whether the application for the file to be sent to the competent court upon the finalization of the decision on the unauthorized application must be made by petition, whether the notification fee paid is considered sufficient, whether the request for the file to be sent to the competent court was fulfilled by the plaintiff’s attorney within the time limit in the specific case, and whether the conditions required for the case to be deemed not filed have been met.
It should be noted that the case was filed on January 12, 2011, during the period when the Code of Civil Procedure No. 1086 (HUMK) was in force, and that the Code of Civil Procedure No. 6100 (HMK) came into force while the case was ongoing.
Since the provisions of both laws contain different regulations regarding the procedures to be followed in order for the trial to continue in the competent or responsible court upon a decision of incompetence or restriction, it is necessary to first determine which legal provisions apply to the case in order to resolve the dispute.
As is well known, the fundamental principle applicable in procedural law is that the provisions of the law relating to proceedings shall enter into force immediately. The reason for adopting this principle is that procedural provisions are closely related to public order.
Another issue to be considered in the temporal application of procedural rules, along with the rule of immediate applicability, is whether the procedural action related to the entry into force of the new procedural rule has been completed. This is because if a new rule enters into force after the procedural action has been completed, the completed action retains its validity. Conversely, if the procedural process has not yet been completed, the new law will enter into force immediately as a rule.
Indeed, Article 448 of the Code of Civil Procedure No. 6100, which entered into force on October 1, 2011, under the heading “Application in Time,” states:
“The provisions of this Law shall apply immediately, provided that they do not affect completed proceedings.”
Therefore, in order to determine which provisions will apply to a specific dispute, it is also necessary to specify whether the procedure in question is a “completed procedural act.”
It should be remembered that a lawsuit consists of various procedures and stages, beginning with the filing of a petition with the court and continuing until a decision (or judgment) is rendered. Each procedural step during the trial must be considered and evaluated separately. It is not possible to evaluate a case as a whole and say whether the new law will be effective in this regard. If a procedural and judicial action taken during the trial has been completed, the new law will no longer be effective on that procedural action and therefore will not be applied.
If a procedural action is initiated and completed during the trial and a new procedural rule then comes into force, this action retains its validity. In other words, completed procedural actions are not affected by the newly enacted procedural provision (or law).
Considering the specific case within the scope of all these explanations, the lawsuit was filed at the Ankara 3rd Civil Court of First Instance during the time of the Code of Civil Procedure No. 1086, and on 07.04.2011, with the decision numbered 2011/17 E., 2011/127 K., it was decided that the court was not competent, that the decision was final, and that the file should be sent to the competent court upon request. The decision in question was notified to the party’s members of parliament and became final on May 26, 2011, with no possibility of appeal. Therefore, the period for which the dispute resolution procedure should be applied expired within the time limit set by the Code of Civil Procedure No. 1086, which was in force at the time, before the Code of Civil Procedure No. 6100 came into force.
In this regard, there is no doubt that the provisions of the relevant law that should be applied in resolving the dispute are those of the Capital Markets Board (CMB).
Article 27 of the relevant Law No. 1086 states, “If the court decides to dismiss the case on the grounds of good faith, jurisdiction, or lack of jurisdiction, it shall forward the case file to the court to which it is attached on the grounds of good faith, and no further fees shall be charged.”
HUMK. m. 193;
“The plaintiff is obliged to prepare and submit a new petition in place of the petition that has been decided to be annulled.
When a decision of incompetence or restriction is made, the plaintiff is obliged to notify the other party or the competent or responsible court of the situation.
In both cases, it is mandatory to issue a re-summons or recall letter within ten days from the date the decision becomes final.
Otherwise, the case shall not be deemed to have been filed. The special provisions specified in the law are reserved.”
In accordance with the provisions of the aforementioned article, the court that issued the incompetent decision shall only decide to “send the case file to the competent court upon request” in its incompetent decision. It cannot send the case file to the competent court on its own initiative. For the case file to be sent to the competent court and for the case to be heard by the competent court, the plaintiff must apply to the competent court (or the court that issued the incompetent decision) with a petition within ten days from the date of the final decision on the incompetent decision, or the defendant must be notified by issuing a summons. Otherwise, the case shall not be deemed to have been filed.
The time limit for filing an application with the competent or designated court is ten days, and this is an unreasonable period. Therefore, the court must also comply with this time limit.
The application to the competent (or incompetent) court is made by petition. However, the Code of Civil Procedure does not prescribe a specific form for this petition. This petition is not a statement of claim but requests that the necessary procedures be taken to ensure that the case is heard by the competent court.
Within the aforementioned ten-day application period, it is necessary and sufficient to pay the notification costs and, if any, the file delivery costs to the competent (or incompetent) court by applying to that court.
The plaintiff may also apply before the decision on incompetent access becomes final, i.e., before the ten-day application period has been initiated, and this application is also valid. Likewise, there is no provision in the law that prevents this.
As stated above, if no petition is filed with the competent (or incompetent) court after the decision on unauthorized access becomes final, or if the summons is not issued within ten days, the case shall be deemed not to have been filed.
In light of these explanations, when the specific dispute is evaluated; the decision of the Ankara 3rd Civil Court of First Instance dated 07.04.2011 and numbered 2011/17 E., 2011/127 K. states that the decision regarding the unauthorized judgment became final on 26.10.2011, and that the aforementioned court, with its letter dated 27. 04.2011, the file was sent to the competent Sincan Civil Court of First Instance, the petition containing the plaintiff’s representative’s request for the file to be sent to the competent court is not included in the case file,
but it is understood from the letter attached to the file that the necessary notification fee was paid by the plaintiff so that the other party in the competent court could be notified. In this case, it is understood that the procedures and principles stipulated in Article 193 of the Code of Civil Procedure were fulfilled within the ten-day period of deprivation of rights, and that the conditions required for the case to be considered unknown were not met.
Therefore, the decision to uphold the case, which addresses the above-mentioned issues and accepts that the conditions required for the case to be deemed unsolvable in accordance with Article 193/final of the Code of Civil Procedure have not been met, is appropriate.
However, based on the grounds for the violation, since the other objections regarding the merits of the case have not been examined by the Special Chamber Presidency, the file must be sent to the Special Chamber Presidency for examination in this regard.
CONCLUSION:
For the reasons explained above, it is deemed appropriate to uphold the appeal and to examine the appellant’s and respondent’s attorneys’ appeals regarding the substance of item 8 of the file. It was unanimously decided to SEND it to the LEGAL DEPARTMENT on 09.05.2018, and the decision may be appealed within fifteen days of the date of notification.