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Decision of the Court of Cassation General Assembly on the Unification of Judgments holding that an

In civil procedural law, a ban on the expansion and alteration of a claim and defense comes with two exceptions; the other party's consent, and "the amendment". The parties may completely or partially amend their proceedings prior to the end of the investigation phase. Provided that the legal requirements are fulfilled, an amendment may be filed without the consent of the other party or the court, since it is a unilateral and express declaration of will directed at the court 1. For instance, the parties may amend the value of the claim, or claim compensation, instead of payment in kind for defective goods.

In civil procedural law, a ban on the expansion and alteration of a claim and defense comes with two exceptions; the other party's consent, and "the amendment". The parties may completely or partially amend their proceedings prior to the end of the investigation phase. Provided that the legal requirements are fulfilled, an amendment may be filed without the consent of the other party or the court, since it is a unilateral and express declaration of will directed at the court1. For instance, the parties may amend the value of the claim, or claim compensation, instead of payment in kind for defective goods.

However, the Decision on Unification of Judgments dated 04.02.1948 and numbered 1944/10 E., 1948/3 K. ("DUJ"), prohibits the amendment after reversal of the verdict, by addressing the grounds as the law's explicit provision, the acquired rights, and the functions of simplicity and promptness aimed for through the amendment.

On the other hand, an application was brought to the Court of Cassation General Assembly ("CCGA") on the Unification of Judgments claiming that the elimination of discrepancy between the opinions of several chambers of the Court of Cassation was required since Article 177/1 of the current Code of Civil Procedure ("CCP") numbered 6100 that entered into force on 01.10.2011, and which abrogated the former Code of Civil Procedure ("fCCP") numbered 1086, foresees that the amendment may be filed prior to the end of the investigation phase. For this reason, the case may be converted to the investigation phase after reversal of the verdict by the Court of Cassation, the Article 177 has been misinterpreted, and that the DUJ has lost its topicality to the CCP. This article examines the decision of the CCGA dated 06.05.2016 and numbered 2015/1 E. 2016/1 K. that was taken following the aforementioned application.

Opinions of Supporters on a Change of the DUJ

These opinions are as follows:

* It is inexplicable to allow the expansion and alteration of claim with the other party's consent, meanwhile, prohibiting an amendment.

* After reversal of the verdict, the case may be reversed to exchange of petitions, preliminary examination, investigation, oral proceedings or decision phase, according to the content of the reversal. If the case reverts to the exchange of petitions, preliminary examination or investigation phase, it is requisite to make the filing of an amendment possible. An amendment shall not be filed where the case reverses to the oral proceedings or decision phase since making an investigation is not possible at those stages. In the current situation, the plaintiff may use the amendment right in repeated proceedings where the dismissal of a claim on procedural grounds was subject to an approval from the Court of Cassation. It is then inexplicable that the plaintiff cannot use the amendment right in repeated proceedings where the dismissal of a claim on procedural grounds was subject to a reversal. Therefore, any reversal on procedural grounds shall result in the forfeiture of the plaintiff's unformed amendment right.

* To ban the right of amendment, which may only be used once during the proceedings, without any supporting legislation, is against the right to legal remedies set forth in Articles 36 and 14 of the Constitution.

* The Decision on Unification of Judgments dated 28.04.1959 and numbered 1957/13 E., 1959/5 K. rules that the examination restarts after the reversal, the reason being that "after a verdict has been reversed for any reason whatsoever by the court of appeal, the case reverts to the court process through the court of first instance's observance; therefore, the civil procedure is yet to be finished." As a result, the amendment may be filed prior to the end of the investigation phase according to Article 177/1 of the CCP.

* Thus, the philosophy in the civil procedure has changed. For instance, the ban on the expansion and alteration of claim and defense starts with the exchange of first round petitions, i.e. pleading and response, according to the fCCP, while it starts with the exchange of second round petitions, i.e. rebuttal and rejoinder, according to the CCP. In addition, the CCP grants the right of expansion and alteration of claim and defense to the party who attends the preliminary examination hearing in the absence of the other party.

* After the DUJ, fundamental legislative changes, such as the 1961 Constitution, 1982 Constitution, and CCP were made. Further, the European Convention on Human Rights, whose binding nature was accepted through Article 90 of the Turkish Constitution, has brought principles, such as the right to be tried within a reasonable time, and the right of access to a court. Legislative amendments and these recent principles should be, therefore, taken into consideration.

* The provision in the last sentence of Article 87 of the fCCP that prevents the increase on the value of the case by amendment, and which was in force when the DUJ was taken, was abolished by the decision of the Constitutional Court dated 20.07.1999 and numbered 1999/1 E., 1999/33 K. It is, indeed, within the knowledge of all Chambers of the Court of Cassation that injustices arise when accepting that an increase, on the value of the case by amendment, is not possible after a reversal. For instance, if a plaintiff appeals a court's verdict on a tort case where he is found to be 50% at fault, his appeal has been accepted and the verdict is reversed due to incorrect fault determination, the court follows the higher court's ruling, obtains an expert report, and determines a higher compensation amount with the cause of the defendant's reduced fault rate. In this case, the plaintiff cannot increase the value of the case after reversal of the verdict, even though he is the one who appealed the verdict and receives a decision in his favor.

* It is clearly impractical to acquire the right through filing an additional case after the reversal. There is a possibility that the additional case may face a plea of prescription, and since it is a new case, the civil procedure is to be applied from the very beginning. The additional case overburdens the plaintiff, and this is contrary to the CCP's principle of procedural economy.

* Even though it is alleged that completely amending a claim results in disruption of the plaintiff's case and endless litigation, such amendment would cause nothing other than prolongation, which is at the discretion of the plaintiff. In fact, no plaintiff wishes to prolong his own case. Besides, the legislator will levy fines in the case of malicious amendment.

Opinions of Supporters of the DUJ

These opinions are as follows:

* It is clear that the conditions for an amendment on the DUJ have not yet been established. After the judgments' unification date of 1948, no legislation was made to annul the DUJ. To the contrary, the CCP has brought similar provisions as did the fCCP regarding amendments.

* There is no way to ascertain whether the investigation will continue after the reversal. The Decision on Unification of Judgments dated 28.04.1959 and numbered 1957/13 E., 1959/5 K. which is the basis of this assertion, rules that the decision of non-jurisdiction may be given at every stage. Decisions as to the unification of judgments are explanatory on the grounds of the decisions, and are binding through their conclusion. The aforementioned decision solely concludes that the decision of non-jurisdiction may be rendered at each stage.

* If the defendant amends his defense after a reversal, and raises new defenses, such as the plea of prescription, the pleadings become incomprehensible. This is against the principle of procedural economy.

* The ban on amendments after reversal of the verdict has already been subject to an individual application before the Constitutional Court through the case titled "Suzan Tekin (Kavurkac─▒) and Others," and numbered 2013/1932, where the Constitutional Court has not identified any violation. In the respective application, the applicant claimed that her right to a fair trial during the loss of support and moral compensation proceedings had been violated due to the rejection of the filing for an amendment, on the grounds of the ban on amendments after reversal of the verdict, and the prolonged duration of the proceedings. The court identified a violation in terms of a reasonable period because the duration of the proceedings was 9 years and 8 months, and ruled that no violation of the right of access to the court had been made, pointing out the right to file additional cases. The Court reached the same conclusion on another application, as well. (Application Number: 2013/5934, 26.02.2015, ┬ž 61 and ┬ž 72). For this reason, there is no legal basis to raise an argument that the right to a fair trial is violated.

* Article 177/1 of the CCP explicitly foresees that the amendment may be filed prior to the end of the investigation phase, that is, until the judge declares that the investigation is over.

* There is no explicit or implicit provision in the CCP that foresees that an amendment may be valid after the reversal. An amendment after the reversal may violate acquired rights, completely amending the case may complicate the proceedings, and this would be contrary to the aims and the function of promptness expected, from the amendment. Although a new procedural code has entered into force, there is no obligation to change the existing DUJ when it is considered that the decisions of the Constitutional Court holding that the ban on amendment after reversal of a verdict was not a violation of rights, and the legislator's did not abolish or amend the DUJ, even though this was known to the legislator.

Conclusion

Due to above mentioned opinions, the Court of Cassation General Assembly on Unification of Judgments has ruled that an amendment cannot be filed after reversal of a verdict, and that the current DUJ should not be changed.

(Authored by Piraye Erdem and first published in June 2018)

1 This point is emphasized in various Court of Cassation decisions. Please see: Yarg─▒tay Hukuk Genel Kurulu E. 2017/17-1093 K. 2017/1090 (7.6.2017), Yarg─▒tay 13. Hukuk Dairesi E. 2016/6529 K. 2017/5198 ( 27.4.2017), Yarg─▒tay 3. Hukuk Dairesi E. 2015/10100 K. 2015/14303 (16.9.2015).

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