Recent Development
The Supreme Court has refused to reconsider its historic precedent of 1948, prohibiting amendments to court claims following the reversal of first instance decisions, in its session dated 6 May 2016. The decision was announced in the Official Gazette on 23 March 2017.
The much-criticized precedent
There has been a lengthy controversy surrounding the question of whether parties to a lawsuit are entitled to amend their claims even after a first instance decision is delivered, but reversed and remanded back to the first instance court by the appellate courts.
Under the Turkish Code of Civil Procedure No. 6100, parties can amend their claims during a court case, irrespective of the counterparty’s approval, until the end of the factual investigation phase. It is often the case that first instance courts are instructed by the appellate courts during appeal to repeat the factual investigation phase, returning the first instance proceedings to the initial stages. The debated question was whether parties should be allowed to amend their claims after the proceedings have returned to the factual investigation phase after reversal and remand.
Following the emergence of different decisions among the civil chambers, the Supreme Court ruled in its Decision on the Unification of Jurisprudence dated 4 February 1948 and No. 1944/10-1948/3 that parties may not amend their claims following reversal and remand of a first instance decision, mainly on the grounds of procedural economy and procedural vested rights of counterparties acquired on appeal.
Consideration of the old precedent and criticism
The precedent of 1948 was opened to discussion by the General Assembly of the Supreme Court at the motion of a lawyer who claimed that the old precedent was contrary to the provision of the Code of Civil Procedure, which allowed parties to amend their claims until the end of the factual investigation phase and this provision also extended to the phases following an appeal. The lawyer also claimed that the old precedent had become obsolete due to the enactment of the new Code of Civil Procedure No. 6100 and because the civil chambers of the Supreme Court had delivered contradictory decisions on the subject. The precedent of 1948 was heavily criticized by legal scholars and practitioners, mainly for forcing parties to file separate proceedings for the desired amendment and thereby depriving them of a swift remedy that could otherwise be obtained in the same proceedings. In addition to being impractical and making it onerous for parties to file their additional claims through separate proceedings, the ban on amendment also rendered them vulnerable to limitation periods. The reasoning behind the old precedent was also said to be flawed, as seen in the dissenting opinions, due to the fact that it is contradictory to ban parties from amending their claims in post-remand stages despite the same being permitted upon the counterparty’s acceptance.
Grounds for affirming the old precedent
With so many dissenting opinions, the Supreme Court General Assembly for the Unification of Jurisprudence upheld the old precedent of 1948 and refused to revise it by majority on the grounds that:
- under Article 45 of the Supreme Court Law, Supreme Court decisions for jurisprudential unification are binding, and any contradicting decisions rendered afterwards do not constitute grounds for reconsideration as they, in themselves, impair reliance on judicial decisions
- the new Code of Civil Procedure No. 6100 contains a similar provision on amendments to the former Code of Civil Procedure No. 1086 that had been in force at the time the old precedent was delivered, and any change to the old precedent should be justified by a change in the law
- the Turkish Constitutional Court ruled in one individual application that the ban on post-reversal amendments does not violate the right to a fair trial
- allowing post-reversal amendments would unduly delay proceedings and parties should file a separate claim if they would like to pursue a different claim
- there is no provision in the new Code of Civil Procedure No. 6100 explicitly or impliedly permitting post-reversal amendments.
Conclusion
The latest Decision on the Unification of Jurisprudence dated 6 May 2016 and No. 2015/1-2016/1 upheld that parties may not amend their claims when the lawsuit is on remand following reversal of the first instance decision, bringing the discussion on the subject to an end. Claimants should especially note that amendments to a claim during the appellate stages must be pursued through separate proceedings and limitation periods must be closely tracked to avoid being time-barred.
