(Sept. 16, 2019) On February 14, 2019, the 11th Civil Chamber of the Turkish Court of Cassation issued a judgment clarifying the extraordinary appeal procedure “appeal in the interest of law” (kanun yararina temyiz). The judgment was published in the Official Gazette on August 22, 2019.
“Appeal in the interest of law” is a procedure provided in article 363 of the Civil Procedure Code (CPC, Law No. 6100 ). According to this procedure, decisions of first instance courts and regional courts that are unappealable or were finalized without being appealed by the parties can be appealed by the Office of the Chief Prosecutor of the Court of Cassation, or the Ministry of Justice itself, on the grounds that the judgment is in violation of current law. In contrast with an ordinary appeal, however, a successful appeal in the interest of the law does not have legal effect on the dispute between the parties. (Art. 363(2).)
The judgment of the 11th Civil Chamber concerns the implications of decisions that were finalized without being appealed by the parties. In 2016, the court of first instance of Kahta in Adiyaman Province had issued a ruling in a dispute concerning a low-value commercial credit agreement based on the new Law of Obligations (2011) instead of the repealed Law of Obligations (1926), which was in force during formation of the contract in 2008. The decision of the Kahta court was unappealable due to its low value, so the decision of the court constituted a final decision. The decision was appealed in the interest of the law by the chief prosecutor on the grounds of the incorrect application of the law.
Upholding the chief prosecutor’s appeal, the 11th Civil Chamber reversed the decision of the Kahta court and returned the case file to the court to be archived. However, the Kahta court—following the process for remanding decisions under the ordinary appeals procedure—reinserted the case file into the docket, held a hearing to take the parties’ opinion regarding the reversal judgment, and issued a corrected ruling in line with the 11th Civil Chamber’s judgment. The chief prosecutor once again appealed in the interest of law, arguing that the second decision of the Kahta court was invalid given that the reversal judgment of the Court of Cassation did not invalidate the first decision of the court or its legal affects in accordance with article 363(2) of the CPC. The 11th Civil Chamber agreed, and this time vacated the second decision of the Kahta court.
The appeal in the interest of law was first introduced in Turkish civil procedure law by article 427 of the Civil Procedure Code of 1927 (Law No. 1086). That provision foresaw the process of appealing in the interest of the law only for first instance court decisions that could not be appealed due to low value, and did not apply to decisions that were finalized because the parties did not appeal while that recourse was open to them. According to the Commentaries on the Code of 1927 of Mustafa Resit Belgesay, who served as the rapporteur of the preparation commission of the Code of 1927 and later became professor ordinarius of the Istanbul University Law School, article 427 also did not allow the lower court whose decision was reversed to revise its ruling on the matter as required under the ordinary appeals procedure.
Prof. Ejder Yilmaz (ret., Ankara University Law School) wrote that a key difference between ordinary appeal and appeal in the interest of law is that while the former categorically precludes the procedural finalization (becoming chose jugée) of the appealed decision, the latter does not. Prof. Yilmaz also points out that appeal in the interest of law did not exist in the Neuchâtel Civil Procedure Code as revised in 1925, which was largely adopted by way of reception as the Turkish Civil Procedure Code of 1927.
A procedure similar to the current article 363 of the CPC exists, however, in French civil procedure law as “pourvoi dans l’intérêt de la loi,” which was introduced by article 51 of Law No. 47-1366 of July 23, 1947 and later reintroduced by article 17 of Law No. 67-523 of July 3, 1967. The rule was consolidated in the French Civil Procedure Code in 2014 as article 639-1.
Updated September 16, 2019