I. INTRODUCTION
The focus of this blog post is on procedural vested rights, known as "müktesep hak" in Turkish. Within this scope, the position of procedural vested rights in legislation, doctrine, and case law will be analyzed.
II. PROCEDURAL ACQUIRED RIGHT
A. GENERAL OVERVIEW
First and foremost, it should be noted that the Code of Civil Procedure No. 6100 (“CCP”) does not contain any explicit provision regarding procedural vested rights. A procedural vested right refers to a right that arises in favor of one of the parties as a result of a procedural act carried out by the court or the parties in a legal dispute, and which must be adhered to【1】.
The institution of procedural vested rights has been developed through the jurisprudence of the Court of Cassation to prevent the prolongation of cases, ensure stability in the legal field, and preserve general trust in judicial decisions. It has been embraced by legal doctrine and has become one of the indispensable and fundamental principles of civil procedure law. In fact, the Court of Cassation, in one of its decisions【2】, emphasized the importance of this concept with the following statement: “The concept of procedural vested rights has been developed through the practices of the Court of Cassation to prevent the prolongation of cases, ensure stability in the legal field, and preserve general trust in judicial decisions. It has been recognized in legal doctrine and has become one of the indispensable and fundamental principles of procedural law. In essence, it refers to a right that arises in favor of one of the parties in a case as a result of a procedural act carried out by the court or the parties, and which must be adhered to.”
An example of procedural vested rights can be given as follows: when one party does not object to an expert report, a procedural vested right arises in favor of the opposing party. Another example is when the judge grants a peremptory time limit to one party under Article 94 of the Code of Civil Procedure (HMK), resulting in the establishment of a procedural vested right in favor of the other party.
B. Types of Procedural Vested Rights Arising from the Supreme Court's Reversal Decisions
Types of procedural vested rights are not explicitly regulated in the Code of Civil Procedure (HMK) but have been developed through case law. Procedural vested rights arising from the Supreme Court's reversal decisions are of two types. The first is the procedural vested right that arises when the court complies with the reversal decision. The second is the procedural vested right that arises when certain issues are excluded from the scope of the reversal decision.
1. Procedural Vested Right Arising from Compliance with the Reversal Decision
When the first-instance court complies with the Supreme Court's reversal decision, a procedural vested right arises for the party in favor of the reversal. The situation where the first-instance court, in compliance with the reversal decision, acts within the framework of the reversal and issues a ruling that results in a decision in favor of one party and against the other is referred to as a procedural vested right. In this regard, the Supreme Court clarified the issue in one of its decisions: "As is well known, with the court's compliance with the reversal decision, a procedural vested right arises in favor of the party benefiting from the reversal decision. In other words, when a court complies with a reversal decision made by the Supreme Court, it becomes obligated to conduct the review and investigation as shown in that decision and to make a decision based on the legal principles indicated in that ruling. Therefore, if the subsequent judgment contradicts the principles outlined in the reversal decision, it will not be considered procedurally correct. The situation arising from compliance with the reversal decision, where the court carries out actions and issues a ruling based on the reversal, results in a decision in favor of one party and against the other, and this is referred to as a procedural vested right. As this concept is one of the fundamental principles of procedural law and related to public order, it must be observed ex officio." This ruling clarifies the issue.
The first-instance court's compliance with the reversal decision can occur both explicitly, by issuing a decision to comply, or implicitly, by taking actions in accordance with the reversal decision without issuing a formal compliance order. It should be noted that not every reversal decision will give rise to a procedural vested right. In order for a procedural vested right to arise from compliance with the reversal, the first-instance court's final decision on the merits must be substantively reversed.
It should be noted that the first-instance court, which complies with the Court of Cassation's reversal decision, is bound by this decision and cannot later issue a decision to resist by overturning its previous decision. The first-instance court is required to conduct a review in accordance with the reversal decision and issue a new ruling.
The first-instance court, which complies with the Court of Cassation's reversal decision, is required to conduct a review and issue a ruling in accordance with that decision. Similarly, the Court of Cassation panel, which overturned the first-instance court's decision, cannot issue a second reversal decision that contradicts the principles stated in its initial reversal decision. Otherwise, the stability intended by procedural rules may be undermined, and the trust in court decisions may be shaken.
2. Procedural Acquired Right Arising from Issues Excluded from the Scope of the Appeal Decision
Even if a judgment contains multiple provisions, if the appealing party excludes one of them from their appeal request, the Court of Cassation will limit its review to only the appealed part of the judgment. As a result, the part of the judgment not appealed will be outside the scope of the appeal examination and, therefore, will remain unaffected by the cassation decision.
The parts of a judgment that fall outside the scope of the cassation decision by the Court of Cassation become final. The first-instance court, which has complied with the cassation decision, will not be able to re-examine and decide on these finalized parts. In other words, these finalized parts constitute a procedural acquired right for the party in favor of those parts. In a related decision by the Court of Cassation, it was stated: "After the court has complied with the cassation decision, in the trial conducted, the contractor’s claim for the construction cost was rejected because the plaintiff, the landowner, was given time to deposit the cost but failed to do so. First, in the aforementioned cassation ruling, the requests for retrospective termination and prevention of interference were excluded from the scope of the cassation, and procedural acquired rights were established for these claims. However, it was contrary to procedure and law to reject these claims, as well as the fact that the contractor's claim for the construction cost and the termination request could not be brought together. Therefore, the rejection of the termination request on the grounds that the construction cost had not been deposited was incorrect... For the reasons stated, with the acceptance of the appeal objections, the court decision is overturned...
It should be noted that there are two situations in which an issue can be excluded from the scope of the cassation decision. The first is when the issue is explicitly raised as a grounds for appeal but is rejected by the Court of Cassation. The second is when, despite no appeal objection being raised on the issue, during the review of the file by the Court of Cassation, it becomes apparent from the documents in the case that the issue could potentially be grounds for cassation, but the Court of Cassation does not consider it as such.
If an appeal objection regarding one of the main claim and ancillary claim requests in a judgment overturned by the Court of Cassation is rejected by the Court of Cassation, the decision regarding that claim will remain outside the scope of the cassation decision and become final. In other words, a procedural acquired right will arise for the party in favor of that decision.
In cases where there are multiple main claims, the first-instance court must decide on each claim separately. If an appeal objection regarding one of these claims is rejected by the Court of Cassation, the decision regarding that claim will remain outside the scope of the cassation decision and become final. This decision will constitute a procedural acquired right for the party in favor of that decision.
C. Exceptions to Procedural Acquired Rights
There are some exceptions to procedural acquired rights. In Turkish law, exceptions to procedural acquired rights, which have been accepted through the case law of the Court of Cassation, are as follows:
The issue of jurisdiction constitutes an exception to procedural acquired rights. If the issue of jurisdiction has not been explicitly raised as a reason for appeal and the judgment is overturned by the Court of Cassation on another basis, the court of first instance may raise an objection to jurisdiction during the retrial by following the Court of Cassation's decision. Furthermore, the court of first instance may sua sponte issue a decision of lack of jurisdiction. Additionally, the Court of Cassation may overturn the judgment during a second appeal review on the grounds of lack of jurisdiction.
If a decision for the unification of case law has been issued that contradicts procedural acquired rights, the new decision for the unification of case law will be applied despite the procedural acquired rights during the trial that begins with compliance with the overturning decision. Unification of case law decisions bind the General Assemblies of the Court of Cassation, its chambers, and the judiciary courts on similar legal issues.
3. During the trial that begins with compliance with the overturning decision, the parties may benefit from the exceptions to the prohibition of changing and expanding claims and defenses, allowing them to cause the first-instance court to deviate from the principles of the overturning decision, and to issue a judgment different from the one it intended to give based on the compliance with the overturning decision, despite the procedural acquired rights.
4. Statutes of limitations, objections to final judgments, matters related to public order, and cases where compliance with an overturning decision based on material errors occur are exceptions to procedural acquired rights.
III. CONCLUSION
The results within the framework of all the points explained above are as follows:
– Procedural acquired rights are not explicitly regulated in the Civil Procedure Code (HMK). This concept has been established in Turkish Law through case law.
– Procedural acquired rights are rights that arise in a legal dispute through a procedural act performed by the court or the parties, which are binding and must be followed by one of the parties. There are two types of procedural acquired rights arising from a Court of Cassation’s decision to overturn. The first type is the procedural acquired right that arises when the court complies with the Court of Cassation’s decision to overturn. The second type is the procedural acquired right that arises when certain issues are excluded from the scope of the decision to overturn.
– When the first-instance court complies with the Court of Cassation's decision to overturn, a procedural acquired right arises for the party benefiting from the decision to overturn.
– The parts of the judgment overturned by the Court of Cassation that are outside the scope of the overturning decision become final. These finalized parts constitute a procedural acquired right for the party benefiting from them.
– There are exceptions to procedural acquired rights. Examples include; lack of jurisdiction, decisions on unification of case law, exceptions to the prohibition of changing and expanding claims, statute of limitations, public order, objections to final judgments, and compliance with decisions of reversal based on material error.
[1] Baki KURU; Medeni Usul Hukuku, İstanbul 2015, s. 552
[2] For the decision of the 21st Civil Chamber of the Court of Cassation, dated 11.07.2017, with the case number 2016/19143 E. 2017/5941 K., see: www.kazanci.com.tr (Access Date and Time: 04.10.2017, 15:22)
[3] KURU; s. 553
[4] For the decision of the 14th Civil Chamber of the Court of Cassation, dated 05.07.2017, with the case number 2016/17061 E. 20175701 K., see: www.kazanci.com.tr (Access Date and Time: 04.10.2017, 15:11)
[5] Timuçin MUŞUL; Civil Procedure Law, 2nd Edition, Ankara 2009, p. 345
[6] KURU; s. 553
[7] KURU; s. 553
[8] MUŞUL; s. 345
[9] KURU; s. 554
[10] Court of Cassation 23rd Civil Chamber, Decision dated 06.07.2017 and numbered 2017/468 E. 2017/2026 K. For more details, visit: www.kazanci.com.tr (Accessed on 04.10.2017 at 15:29)
[11] KURU; s. 554
[12] KURU; s. 554
[13] KURU; s. 555
[14] KURU; s. 555
[15] MUŞUL; s. 347
[16] MUŞUL; s. 347
[17] KURU; s. 556
