A decision of a civil chamber of the Turkish Court of Cassation answers one question for a party abroad: is the judgment below still standing. The answer is in a single closing verb, and the Code of Civil Procedure (HMK) gives that verb only a few possible forms. Articles 370 and 371 set out what the chamber may do, Article 373 says where the file then goes, and Law No. 2797 on the Court of Cassation governs the bench that signs. A translation that renders the closing line loosely reports the opposite outcome.
Preliminary examination before anything else
Files arriving at a chamber are first examined, without delay, for the chamber’s own jurisdiction and division of work, for whether the decision can be appealed on points of law at all, for whether the appeal was lodged in time, for whether the condition of appeal was met and for other procedural defects (Law No. 2797, Article 40). Files found defective on any of those points are examined and decided first. A decision of a few paragraphs that rejects the appeal without discussing the dispute is therefore complete, and the English version does not present it as a ruling on the merits.
Three ways a decision is upheld
Article 370(1) obliges the chamber to state, in a decision to uphold, the grounds on which the decision below conforms to the rules of law. Two variants follow. Under Article 370(2), where the decision is lawful on the substance but the law was wrongly applied to the facts and no fresh trial is needed, the chamber may correct the decision and uphold it, a route closed for decisions that are not lawful on the substance and for performances fixed within the judge’s discretion; the same applies to mistakes in the parties’ identities and to clerical or arithmetical errors (Article 370(3)). Under Article 370(4), where the decision is lawful in procedure and substance but the stated reasoning is not found correct, it is upheld with the reasoning changed and corrected. Each of the three keeps a wording of its own in English, because a correction by the chamber changes what the party owes.
Four grounds of reversal
Article 371(1) allows the chamber to reverse the decision in whole or in part, giving reasons, on four grounds lettered (a) to (ç): wrong application of the law or of the contract between the parties; breach of the conditions of the action; refusal, without a lawful ground, of the evidence a party relied on to prove its case; and a procedural error or omission affecting the decision. The fourth letter is “ç” in the Turkish alphabet and is not renumbered as “d”, otherwise a later reference to Article 371(1)(ç) in the same file points at nothing. A partial reversal is rendered as a partial reversal, with the part that survives named.
The bench, the votes and the dissent
Chambers sit as a panel of a president and four members, deliberate in secret and decide by absolute majority (Law No. 2797, Article 40). The names of the president and members who took part in the deliberation are written on the copies sent to the place of origin, and where the decision was taken by majority the dissent appears in the original and in the copies. A dissent is therefore part of the document, and if it is left untranslated the translation says so rather than ending at the majority signature.
Where the file goes next
Article 373 traces the route. Where the reversal concerns a regional court of appeal decision rejecting the appeal on the substance, that decision is set aside and the file goes to the first-instance court that gave the judgment or to another first-instance court found suitable, with a copy of the decision to the regional court (Article 373(1)). Where a decision given afresh or corrected by a regional court is reversed, the file returns to a regional court (Article 373(2)), which invites the parties to a hearing of its own motion and then decides whether to follow the reversal (Article 373(3)). If the court below complies, the new judgment can itself be appealed on points of law (Article 373(4)); if it persists, the appeal is examined first by the chamber whose decision was persisted against (Article 373(5)). The English text names the court the file was sent to, since that is where a party writes next.
Served by the registry, cited from the file
Reversal and upholding decisions are served on the parties without delay by the registry head of the court below (Article 372(1)), and the cost of that service is collected in advance from the appellant together with the appeal petition (Article 372(2)). So the copy in a party’s hands normally comes from the first-instance file, not from the Court of Cassation, and the translation records which copy it was made from. Publication in the Official Gazette is reserved for a narrower set of texts, among them decisions unifying case law and the decisions of the Plenary Assemblies the First Presidency identifies as precedent (Law No. 2797, Article 58), so a chamber decision used as authority is cited with its chamber, its Docket (Merits) No., its Decision No. and its date. Acte Tercüme translates decisions of the civil and criminal chambers of the Court of Cassation into English together with their dissenting opinions.