A decision of the Plenary Assembly of Civil Chambers of the Turkish Court of Cassation reaches a reader abroad in one of two ways. Either it is the last link in a party’s own file, produced to show that the matter is closed, or it is produced as authority on a point of Turkish law, attached to a pleading or an opinion. Both readers need the same two things from the English version: which earlier decisions the file passed through, and on what majority the Assembly decided. The document is built around both.
Who persists, and who decides
Among the duties of the Plenary Assemblies is to decide on decisions of persistence given by courts against reversal decisions of the chambers of the Court of Cassation (Law No. 2797, Article 15(1)(1)), and the civil Assembly is composed of the presidents and members of the civil chambers (Article 7(1)). The order of the terms matters in English. A “decision of persistence (direnme kararı)” is the decision of the first-instance or regional court, not of the Assembly, and the phrase is reserved for it. In administrative justice the comparable decision of a lower court is the ısrar kararı, rendered as a “decision of insistence”, and the two Turkish institutions keep two different English names so that a citation can be traced back. The file also does not go straight to the Assembly: the examination is made first by the chamber whose decision was persisted against, which corrects its own decision if it finds the persistence justified and otherwise sends the file on (HMK Article 373(5)). Where the document records that stage, it is translated as a step of its own, because it explains why the Assembly is deciding at all.
Naming every decision in the chain
An Assembly decision refers to at least four earlier decisions: the first-instance decision, any decision of the regional court of appeal, the reversal decision of the specialised chamber and the decision of persistence. Each has its own Docket (Merits) No., Decision No. and date. In English every number is labelled with the court it belongs to; a decision referred to only as “the decision” leaves the reader guessing which one is meant. The Internal Regulation of the Court of Cassation requires the agenda to set out the facts and the grounds of reversal, persistence and appeal in summary (Article 24(1)). Where the decision carries that summary, the reasoning of the chamber and the reasoning of the lower court stay two distinct voices in translation.
A preliminary issue is voted on separately
If an issue has to be resolved before the substance, it is discussed and voted on first, and a member who disagreed on it still has to vote on the substance, which is stated in the final decision (Internal Regulation, Article 27). A section on a preliminary issue therefore keeps its own heading in English and is not presented as the outcome on the substance. The split of votes on the preliminary issue and on the substance may be different figures, and each stays where the document puts it.
Two thirds, or a second meeting
A decision is taken by two thirds of the votes of those present; if that majority is not reached at the first meeting, the majority of those present at the second meeting suffices (Law No. 2797, Article 41(1); Internal Regulation, Article 28(1)). The vote covers both the result and the reasoning, the numbers of votes for the majority and the minority are written into the decision, and the decision is written up and sent to its place of origin within a month at the latest (Internal Regulation, Article 28(3)). A member who wishes to write a dissent submits it within a week at the latest, and neither the majority nor the minority may belittle the other view (Article 30). Where a decision is taken by majority, the dissent appears in the original and in the copies (Law No. 2797, Articles 40(2) and 40(5)). The figures are carried over as figures, the words “at the first meeting” or “at the second meeting” are not abridged, and if a dissent is left untranslated, a note says so.
Binding on that file
In practice the concluding line either reverses the decision of persistence or upholds the decision because the persistence was found justified; the first is rendered as a reversal, the second as upheld, and the two never take the same verb. Compliance with the Assembly’s decision is mandatory (HMK Article 373(7)), a duty addressed to the court in that file, while general binding force belongs to decisions unifying case law; where the document says nothing about binding force, the translator adds nothing and does not call the decision binding precedent. Used as authority, it is cited in full, including whether it was published in the Official Gazette (Law No. 2797, Article 58); used in a recognition or exequatur file, it goes with the finality annotation made by the first-instance court (HMK Article 302(5)). Acte Tercüme translates decisions of the Plenary Assembly of Civil Chambers into English with their dissenting opinions.