The capacity of a party in a lawsuit is one of the conditions for a lawsuit (Art. 114/1-d of the CCP), and the capacity of a party is possible by having the capacity to enjoy civil rights (Art. 50 of the CCP). The capacity to enjoy civil rights, i.e. the capacity to exercise rights, starts at the moment of conception and continues until the death of the person, provided that the person is born full and alive. Therefore, the personality of natural persons and their capacity to enjoy civil rights ends with death.
(Art. 513 of the TCO). Because objective litigation capacity is the capacity of a person to conduct a lawsuit on his/her own behalf, either in person or through a representative appointed by him/her with his/her will, and to carry out the relevant procedural acts (Art. 28 of the TCC). For this reason, the heirs cannot file a lawsuit for the rights that are not included in the estate and cannot be legally transferred to the heirs after death.[1]
Article 55/1 of the Code of Civil Procedure dated 12/1/2011 and numbered 6100 Article 55/1; “In the event of the death of one of the parties, if the heirs have not accepted or rejected the inheritance, the lawsuit will be postponed until the periods determined by law in this regard have elapsed, however, the judge may decide to appoint a trustee to follow the case upon request in cases where delay is inconvenient.” In accordance with the provision, if one of the parties dies during the trial, Since the capacity of the deceased party will be terminated, it is not possible for the deceased person or, as a rule, his/her attorney to continue the lawsuit, and the lawsuit may be continued only by the heirs of this person, if the subject of the lawsuit is related to the assets of the deceased and the judgement to be rendered at the end of the lawsuit affects the rights of the heirs in a positive or negative way. In this case, the heirs of the deceased, who have not rejected the inheritance of the deceased party, must pursue the lawsuit together as compulsory litigation partners. However, it is obvious that there is no need to apply this provision in the cases that are not transferred to the heirs and that are not subject to the death of the party.[2]
However, the death of one of the parties during the lawsuit and filing a lawsuit against a dead person have different consequences, therefore, the death of one of the parties during the lawsuit and filing a lawsuit against a dead person are discussed under separate headings below.
Death of One of the Parties During the Litigation
According to the Turkish Civil Code, inheritance is opened upon death and the right of inheritance of the heirs arises from this moment and is legally secured. Except for the cases explicitly written in the law, all receivables, rights and property of the deceased pass to the heirs. In this case, since all rights, goods and debts belonging to the deceased, except for those expressly written in the law, will pass to the heirs, and since the rights that turn into property by filing a lawsuit will constitute a part of the assets of the deceased, it is possible for the heirs to pursue these cases. In other words, the right to pursue the lawsuits transferred to the plaintiffs also includes the lawsuits that may turn into a pecuniary right in the future. Because the lawsuit is within the scope of the concept of “right”. Therefore, the right to sue, like other rights, is transferred to the heirs upon the death of the deceased.
Pursuant to the provision of the first paragraph of Article 605 of the TMK, “Legal and appointed heirs may reject the inheritance.” It has been reported that legal and appointed heirs may reject the inheritance within three months in accordance with the provision of the first paragraph of Article 606 of the TMK, “The inheritance may be rejected within three months.” It has been reported that this three-month period is a forfeiture period, that this period will start on the date they learn of the death of the heir, and that the appointed heirs will start from the date when they are officially notified of the disposition of the heir.
Article 55 of the Code of Civil Procedure No. 6100 states; “In the event of the death of one of the parties, if the heirs have not accepted or rejected the inheritance, the lawsuit will be postponed until the periods determined by law in this regard have elapsed, however, the judge may decide to appoint a trustee to follow the case upon request in cases where it is inconvenient to delay.” If one of the parties dies until a decision is made in a case, In this case, the heirs of the deceased, who have not rejected the inheritance of the deceased, must pursue the lawsuits, which also concern the heirs of the deceased and affect the property rights of the heirs, together as compulsory litigation partners. [3]
Therefore, the right to continue the lawsuit will be in question if the inheritance is not rejected by the legal and appointed heirs within the 3-month period. However, pursuant to the “right to be heard legally” as per the right to a fair trial under Article 6 of the ECHR, the heirs should be heard by the court and should be given the opportunity to put forward all kinds of claims and refute the counterclaims.
Because in a decision of the Court of Cassation; “Article 27 of the Code of Civil Procedure No. 6100 regulates the “right to be heard legally”. Accordingly, the parties to the lawsuit have the right to information, explanation and proof regarding the proceedings. As explained in the justification of the article, this right is the most important element of the right to a fair trial regulated in Article 36 of the Constitution and Article 6 of the European Convention on Human Rights. This right, also known as the right to claim and defence, is the right of the parties
It is obligatory for the parties to be fully informed, to exercise their right of explanation and proof fully and equally, and for the judicial bodies to make a proper evaluation and decision by taking these explanations into consideration. The judge cannot render a judgement without hearing the parties or inviting them to exercise their right of explanation and proof in accordance with the law.”[4] In another decision, it is stated that; “It is understood that the defendant died during the trial, after the lawsuit was filed but before the decision. The court should give the plaintiff a period of time to determine the heirs and to include them in the case in accordance with Article 124 of the CCP, the evidence shown by the heirs included in the case should be collected and a judgement should be made according to the result to be obtained. “[5], it is stated that party formation is a condition of the lawsuit, party formation is important not only at the stage of filing the lawsuit, but also at other stages of the proceedings, therefore, it should be taken into consideration by the court ex officio at every stage of the lawsuit, and the court should notify the parties of the lawsuit petition and the hearing date automatically and notify the heirs of the deceased party to ensure party formation.
In the event of the death of one of the parties during the lawsuit, there may be differences in the procedures to be followed depending on whether the deceased party is the plaintiff or the defendant, the type of lawsuit and the stage reached in the lawsuit. For example, in one of its decisions, the Court of Cassation ruled that if the plaintiff dies during the lawsuit, “the court should notify the heirs of the plaintiff duly and ensure that the heirs who do not reject the inheritance take part in the lawsuit as compulsory litigation partners, and if the heirs refrain from pursuing the lawsuit together, appoint a trustee to the inheritance company and continue the proceedings after the condition of party status is met.”[6]
However, if the deceased defendant is the defendant, the lawsuit shall be continued against all of the defendant’s heirs together. In this case, the court must notify the legal heirs of the deceased plaintiff of the date and time of the hearing. In this case, the court’s job is to notify the heirs of the deceased party that they should follow the case together with the notification, or if only one heir will follow the case, the heir who will follow the case should obtain the approval of the others, or if it is an inheritance company, the case should be followed through the representative to be appointed to the inheritance company, and to finalise the case by continuing the proceedings according to whichever of these situations occurs.
In terms of the type of case and the stage reached, explanations are given below with examples. For example, in administrative proceedings, if one of the parties dies while the case is pending, the heirs may continue the case in accordance with Article 55 of the CCP; this rule is specifically regulated in Article 26 of the Administrative Procedure Law No. 2577.
Article 26 of the Administrative Procedure Law No. 2577 reads as follows: “1. If there is a change in the personality or qualifications of the parties due to death or any other reason during the proceedings, the relevant court shall decide to suspend the file until the application of the party whose right to pursue the case has passed to him/her; in case of the death of a real person party, the relevant court shall decide to remove the file from the process until the administration renews the proceedings against the heirs. If the renewal petition is not submitted within four months, the stay of execution decision, if any, shall automatically become null and void. 2. The petitions pertaining to the cases involving only the deceased shall be cancelled.” The provision stipulates that the right to pursue the cases other than the cases involving only the deceased may be transferred to the heirs; however, it is not specified which type of cases these cases are.
In a decision of the Council of State; “The lawsuit was filed with the request to decide to pay the amount to be calculated from this date together with the legal interest, claiming that the share of the plaintiff’s share of two dams given in return for the cotton delivered in 1956 has not been paid to him since 1957, and during the appeal phase, when the population registration sample taken from the UYAP Integration system was examined, it was understood that the plaintiff K1 died on 30. 4.2013, and in the dispute, it is necessary to accept that the transaction subject to the lawsuit is not a transaction that concerns only the deceased, since the alleged right of receivable will be legally transferred to the heirs.” and the cases concerning the heirs are exemplified.[7]
In another decision of the Council of State; “Cases concerning the deceased alone are cases such as naturalisation, deportation, cancellation of examinations, which are not subject to the plaintiff’s death, especially concerning rights that are not suitable for inheritance to heirs, which are directly related to the person of the plaintiff, and have been shaped by practices in practice.”[8]
In the event of the death of one of the parties during the divorce proceedings, the court will no longer render a judgement regarding the divorce, since the marriage union will end with death. However, the heirs of the plaintiff may continue the lawsuit and prove that the defendant spouse is at fault in the filing of the divorce lawsuit and ensure that the defendant spouse is excluded from the inheritance.
In this case, if the court concludes that the defendant spouse is at fault, it cannot mention that the defendant spouse will be disinherited in its judgement. The court shall only rule as follows: “Since the marriage union has ended due to death, it is not necessary to decide on divorce and it is determined that the defendant spouse is at fault in the filing of the divorce case”. With this decision, the heirs may apply to the civil court of peace and declare that the defendant spouse cannot be an heir, that it has been determined that the defendant spouse is defective in the divorce case, and obtain the certificate of inheritance from the court that the defendant spouse is not an heir. For this, the decision of the family court shall be finalised.
As a matter of fact, in a decision of the Court of Cassation; “The defendant requested a correction of the decision and his request was rejected on 20.03.2012. However, the plaintiff husband died on 12.03.2012 before the decision correction examination, and since this issue was not known by the Court of Cassation, the defendant’s request for decision correction was examined on the merits and rejected by our Chamber. The marriage ended with the death of the plaintiff before the decision correction examination, and the death event has the quality to affect and change the decision of the Court of Cassation. Since the plaintiff died on the date of the decision correction examination, the marriage has ended with death, and in this case, there is no divorce case that continues its subject matter. In this respect, the decision of our Chamber regarding the rejection of the request for correction of the judgement has no basis. For the reasons explained, our Chamber’s decision based on a material error
It is necessary to revoke the decision, to accept the defendant’s request for correction of the decision and to revoke the decision of the local court in order to decide on this issue since the divorce case is no longer subject due to death and since the plaintiff’s heir is following the case in terms of fault.”[9] By stating that the case is still ongoing even if it is at the stage of correction of the decision, and at this stage, in the event of the death of one of the parties, the marriage will be deemed to have ended by death, so there is no place to decide on divorce and it should be decided to determine whether the defendant spouse is at fault in the filing of the divorce case.
In an uncontested divorce case, if one of the parties to the case dies after the judgement on uncontested divorce but before the judgement is finalised, it is obvious that the marriage will be considered to have ended by death and a decision should be made to determine the fault of the deceased party due to the request of the heirs.[10]
On the other hand, if there is an individual application to the Constitutional Court and the applicant dies after the date of the individual application, there is no provision in the Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court and the Rules of Procedure regarding the procedure to be applied. For this reason, the provisions of the relevant procedural laws regarding the procedure to be applied in the event of the death of the applicants after the date of the application shall be applied in accordance with the nature of the individual application. In many judgements of the Constitutional Court, the Constitutional Court has stated; “The obligation of the Constitutional Court, whose primary duty is to interpret the Constitution and thus to determine the scope and limits of the fundamental rights and freedoms enshrined in the Constitution, to ensure that the heirs who do not reject the inheritance within 3 months in the event of the death of the applicants after the application date continue the application in the individual application procedure is not in accordance with the nature of the individual application, as it would constitute an obstacle to the Court’s fulfilment of its primary duty and thus distract the Court from its basic function, and for this reason, the provisions of paragraph (1) of Article 80 of the Rules of Procedure. According to subparagraph (ç) of paragraph (1) of Article 80 of the Rules of Procedure, the Court may decide to dismiss the application if it is of the opinion that there is no reason justifying the continuation of the examination of the application, however, pursuant to paragraph (2) of Article 80 of the Rules of Procedure, the examination of the application may be continued in cases where the application, interpretation of the Constitution or determination of the scope and limits of fundamental rights or respect for human rights makes it necessary.” [11]
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