INTRODUCTION
-In terms of disputes in civil courts, legal remedies are divided into ordinary legal remedies and extraordinary legal remedies.
-As a rule, parties can only apply for ordinary legal remedies (regional courts of appeals and supreme court of appeals) against unfinalized decisions. However, in exceptional cases, it is possible to apply for extraordinary legal remedies (appeal in favor of law and reinstatement of the judgement) against finalized judgements.
EXTRAORDINARY LEGAL REMEDIES
1)APPEAL IN FAVOR OF LAW
The Ministry of Justice or the office of chief public prosecutor of the supreme court of appeals can appeal in favor of law for:
-Final judgements of the courts of first instance and judgements that are finalized without being subject to regional courts of appeal review,
-Final judgements of the courts of appeal as courts of first instance and judgements made in this title and finalized without being subject to supreme court of appeals review,
by claiming that it is contrary to the applicable law.
-If the appeal is deemed appropriate by the supreme court of appeals, the judgement will be reversed in favor of law, but the legal consequences of the judgement will remain.
-A copy of the reversal judgement will be sent to the Ministry of Justice and published in the Official Gazette by the Ministry.
* Although the outcome of the appeal in favor of law does not change for the parties, since there is a judgement made contrary to the law and logic as a result of a judicial error, it is aimed to prevent the issuance of such judgements in the future by reversing the decision and publishing it in the Official Gazette, in other words, to protect confidence in the judiciary system and the law.
2)REINSTATEMENT OF THE JUDGEMENT
– Reinstatement of the judgment can only be requested against final judgments or finalized judgments.
-These disputes cannot be brought before the court again, but as a result of the rule of law and trust in the judiciary system, if the judge has rendered a judgment as a result of errors or omissions of a certain severity, the reinstatement of the judgment can be requested by the parties or by third parties (the creditors of one of the parties to the proceedings or the substitutes, debtors or substitutes of the party against whom judgment has been rendered, by agreement between them, have committed fraud against themselves).
-These individuals can apply for the reinstatement of the judgment even though they have not applied for legal remedies against the error or omission within the limited time or have not succeeded despite their application.
Causes of Application and Application Period
| Causes of Application | Application Period |
|---|---|
| a) The court was not constituted in accordance with the law. | a) Three months from the date of knowledge and in any case, ten years from the finalization of the judgment subject to the reinstatement application. |
| b) Judge who is prohibited from conducting the case or whose request for removal is deemed final by the competent authority has rendered a decision or participated in the decision. | b) Three months from the date on which the judgment is notified to the defendant, the real counsel or representative, the date on which the creditor or those who stand in the place of the defendant are duly informed of the judgment and in any case, ten years from the finalization of the judgment subject to the reinstatement application. |
| c) The case has been conducted and finalized in the presence of persons who are not legal counsels or representatives. | c) Three months from the date on which the judgment is notified to the defendant, the real counsel or representative, the date on which the creditor or those who stand in the place of the defendant are duly informed of the judgment and in any case, ten years from the finalization of the judgment subject to the reinstatement application. |
| d) A document that could not be obtained during the proceedings due to reasons beyond the control of the party against whom the judgment was rendered was obtained after the judgment was rendered. | d) Three months from the date of obtaining the new document and in any case, ten years from the finalization of the judgment subject to the reinstatement application. |
| e) The forgery of the promissory note taken as a basis for the decision has been ruled or the forgery of the promissory note has been acknowledged before a court or an official authority. | e) Three months from the date on which the judgment of criminal conviction is finalized or criminal proceedings cannot be initiated or the investigation is inconclusive and ten years from the finalization of the judgment subject to the reinstatement application. |
| f) The witness whose testimony was used as a subject for the judgment is found to have given false testimony after the judgment. | f) Three months from the date on which the judgment of criminal conviction is finalized or criminal proceedings cannot be initiated or the investigation is inconclusive and ten years from the finalization of the judgment subject to the reinstatement application. |
| g) It is established that the expert or interpreter has deliberately made a false statement about the matter taken as the subject of the judgment. | g) Three months from the date on which the judgment of criminal conviction is finalized or criminal proceedings cannot be initiated or the investigation is inconclusive and ten years from the finalization of the judgment subject to the reinstatement application. |
| h) The party in whose favor a judgment has been rendered has perjured the oath on which the judgment is based, either by confession or by written evidence. | h) Three months from the date on which the judgment of criminal conviction is finalized or criminal proceedings cannot be initiated or the investigation is inconclusive and ten years from the finalization of the judgment subject to the reinstatement application. |
| i) The removal of a judgment based on a ruling by another finalized judgment. | i) Three months from the date of being informed that the writ on which the judgment is subjected has been reversed and completely removed in the form of a final judgment and in any case, ten years from the finalization of the judgment subject to the reinstatement application. |
| j) The party in whose favor the judgment has been rendered has engaged in fraudulent conduct that influenced the judgment. | j) Three months from the date of discovery of the fraud and in any case, ten years from the finalization of the judgment subject to the reinstatement application. |
| k) After the finalization of a judgment rendered at the end of a lawsuit, in a second lawsuit with the same parties, subject matter and cause, a judgment contrary to the previous one is rendered and this judgment is also finalized. | k) Same as the statute of limitations for a writ. |
| l) That the judgement was made in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms or its annexed protocols, determined by a finalized judgment of the European Court of Human Rights or a judgment of dismissal as a result of a friendly settlement or unilateral declaration on the application made to the European Court of Human Rights against the judgement. | l) Three months from the date of notification of the final judgment of the European Court of Human Rights and in any case, ten years from the finalization of the judgment subject to the reinstatement application. |
-In the cases specified in clauses (f), (g) and (h), in order to request for reinstatement of the judgement, these reasons must be the result of a finalized criminal court judgement. If the criminal prosecution could not be initiated or a judgement could not be rendered for a reason other than the insufficiency of evidence, the judgement of the criminal court is not required. In this case, the reason relied upon must first be proven in the lawsuit filed for the reinstatement application.
Review of the Request for Reinstatement of the Judgement
– The petition requesting the reinstatement of the judgment is reviewed by the court that rendered the judgment. Depending on the type of the subject, the applicant can be required to provide an appropriate amount of guarantee to cover the damages of the counterparty.
– The court conducts a preliminary examination without requiring any application. If the court deems that one of the following conditions is deficient, then the court will dismiss the case without going into the substance of the case:
- The application must be made within the statutory period,
- Upon application, the judgment requested to be removed is final or finalized,
- The subject of the request for reinstatement of the judgment is one of the reasons in the law.
–The review will not stay the execution of the judgment. However, if there is a need for a stay of execution, in some cases, a stay of execution can be ruled upon application and with the condition of providing a guarantee from the applicant. If the reason for reinstatement of the judgment is subject on a court decision, then no guarantee will be required.
Retrial or Annulment of Judgment
– At the end of the review, if the subject for the reinstatement of the judgement is deemed appropriate, the judgement rendered by the retrial will be affirmed or partially or completely amended.
– However, if the request for reinstatement of the judgement is deemed to be accepted on the subject of the fact that the case has been heard and finalized in the presence of persons who are not legal counsels or representatives without the express or implied consent of the plaintiff, or that, after the finalization of the judgment rendered at the end of a case, a judgment contrary to the previous one has been rendered in the second case with the same parties, subject matter and cause, and this judgment has also become final, the judgment will be annulled without further review.
CONCLUSION
As a rule, legal remedies are not applicable against finalized decisions in legal disputes. However, in exceptional cases stipulated in the law, as a result of the rule of law and trust in the judiciary system, it is possible to apply for appeal in favor of law and reinstatement of the judgement.
Legal Intern, Cemre Zeynep EROĞUZ
TARLAN- BAKSI LAW FIRM
ATT. AYLİN TARLAN- ATT. DERYA BAKSI
Tarlan Avukatlık Bürosu Bloğu 