Republic of Turkey
Supreme
Council of Justice
Date: 02/28/2018 Reference: 2017/2648 Decision: 2018/3070
The aforementioned law was reviewed by the General Assembly and discussed on matters deemed necessary; as it was understood that an objection was filed against the decision to dismiss the case and that the documents in the file were reviewed:
The main case is based on the ground of “de facto separation” under Article 166/1 of the Turkish Civil Code No. 4721, while the consolidated case is based on a request for divorce grounded in the “breakdown of the marital union” under the same Article 166/1 of the Code.
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Th e plaintiff’s attorney (representing the defendant, the man) argued that the parties had not met since the finalization of the decision dismissing the divorce case and that three years had elapsed, requesting a decision on their divorce pursuant to Article 166 of the Turkish Code of Civil Procedure.
The plaintiff (female), joining the defendant, stated that, as the plaintiff had indicated, there was a serious moral conflict between the parties pursuant to Article 166/1 of the Turkish Civil Procedure Code, and requested that a decision be rendered regarding their divorce.
The representative of the joint defendant (the husband) and the representative of the joint defendant (the wife) each filed separate motions to dismiss the cases.
This resulted in the local court’s refusal to finalize the divorce; the parties did not reconcile; according to the plaintiff, the defendant’s final decision is flawed; in the joint case, the woman’s loss of the man’s personality violates her rights and thus does not undermine the foundation of the marriage. The plaintiff (woman) has claimed 20,000 TL in material damages, 20,000 TL in moral damages, and 600 TL in alimony in favor of the defendant.
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The decision rendered upon the appeal filed by the defendant’s male representative, who joined the plaintiff, was overturned by a majority vote of the Special Chamber based on the reasons outlined above.
Additionally, the objection decision was issued on the grounds that the plaintiff’s claim was granted in accordance with the three-year separation period, the fault determination was established and finalized in accordance with the previous court decision, and the plaintiff objected to the defendant’s (male) attorney, who also concurred with the objection decision.
“…Pursuant to Article 297 of the Civil Procedure Code No. 6100 (HMK), as stated in the article, claims regarding each right recognized under the provisions imposed without any mention of the debt and under the heading of ‘clear doubt and hesitation’ must be presented in a non-ambiguous manner as part of the reasoning in the judgment. As stated above, since there was a contradiction between the original decision that was overturned and the appeal decision, in order for the local court to issue a procedural appeal ruling, the decision had to be set aside without examining the substantive objections…” The reversal decision was adopted by a majority vote.
The defendant’s male attorney joined the plaintiff in objecting to the local court’s ruling on the objection, which was issued in accordance with the Supreme Court General Assembly’s decision to overturn the ruling.
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Considering that no objections had yet been raised against the man’s testimony in the divorce case filed by the woman due to financial hardship, the dispute regarding whether these witnesses should not have been heard—which was brought before the General Assembly of the Court of Cassation through an objection—is currently under review by the court.
During the deliberations at the General Assembly of the Court of Cassation, before the merits of the case were examined, the question of whether the appellate decision actually constituted a new ruling—and consequently, whether the appellate review should be conducted by the General Assembly of the Court of Cassation or by the Special Chamber—was discussed as a priority issue.
As is well known, in order to speak of the existence of an appeal decision, the court must render its decision within the framework of the existing evidence before collecting new evidence to overturn that decision; while it may expand its reasoning based on its previous decision, it must not alter that decision.
In other words, if the court rendered its decision by altering its reasoning based on new evidence or through distortion, or by addressing a point it had not previously considered in the manner indicated in the distortion, the existence of an appeal decision cannot be claimed.
In a concrete example, the court’s initial decision established that the defendant man, who was a party to the plaintiff’s case, was at fault; that he had disrespected the plaintiff woman; that he had violated her personal rights; and that he had thereby shaken the marital union. The parties have not met since the dismissal of the divorce case.
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In response to the decision accepting the cases filed by the parties, the findings of the other witnesses in the appeal decision dated June 2, 2016, will not be valid. Therefore, it has been stated that the decision is not valid regarding the parties’ marriage. The plaintiff and defendant have shown the necessary consideration toward the defendant. According to the Forensic Medicine Institute report, although the defendant did not engage in sexual relations and there was no organic illness, the defendant acted negligently by evading his obligations, while the woman stated that the previous decision was perfect.
Consequently, the appellate decision, which the court referred to as a “rejection,” should not be considered a genuine rejection decision in the sense of procedural law; rather, it must be accepted as a new ruling based on a new ground that was neither discussed nor evaluated in the original decision.
In this case, the duty to review this new ruling through the appellate process belongs not to the General Assembly of the Court of Cassation but to the Special Chamber.
For this reason, the case file must be referred to the Special Chamber for the evaluation of objections against the new ruling.
CONCLUSION:
For the reasons stated above, the case file, specifically Article 2, shall be referred to the LEGAL SECTION by unanimous vote on February 28, 2018, for the review of the objections raised by the plaintiff’s counsel, who joined the defendant, against the new ruling.