The conditions of the case are the conditions, the existence or absence of which is necessary for the examination of the merits of the case and the judgement on the merits, in other words, in order for the case to be accepted, within the framework of the evidence, events or facts submitted to the case file, which are ex officio observed by the judge at the time of the filing of the lawsuit, in the absence of which the case must be dismissed due to the absence of the conditions of the case, or the parties may assert its deficiency at every stage of the lawsuit.
In the doctrine, the conditions whose existence is necessary for the examination of the merits of the case, i.e. the acceptance of the case, are called positive conditions of action (for example, the existence of legal interest), and the conditions whose absence is necessary for the acceptance of the case are called negative conditions of action (for example, the same case has not been previously filed and is not currently pending, in other words, there is no pending status).
General Litigation Conditions
The general litigation conditions listed in paragraph 1 of Article 114 of the Code of Civil Procedure No. 6100, which are valid for all cases as a rule, are as follows
Jurisdiction of Turkish Courts (Art. 114/1-a of the CCP):
The jurisdiction of Turkish courts, in other words, the jurisdiction of Turkish courts is limited to the country, person and subject matter of the dispute in connection with sovereignty. Cases concerning persons and subjects of dispute that are not subject to Turkish jurisdiction must be dismissed for lack of a cause of action.
A foreign state shall not be granted judicial immunity in matters arising out of private law relations. In such disputes, notification may be made to the diplomatic representatives of the foreign state in Turkey (Art. 49 of the LPCL).
According to the Vienna Convention on Diplomatic Relations dated 18.04.1961, which Turkey acceded to by Law No. 3402 dated 04.09.1984, diplomatic representatives have full exemption from criminal jurisdiction (Vienna Convention Art. 31/1). At the same time, diplomatic representatives in Turkey are also exempt from civil and administrative proceedings, except for the following proceedings (Art. 31 of the Vienna Convention).
An action by a diplomatic representative in Turkey for a right in rem in respect of private immovable property situated in Turkey, provided that the immovable property is not at the disposal of the diplomatic representative for use on behalf of the sending State and for the purposes of the mission,
Cases concerning inheritance in which diplomatic representatives are not acting on behalf of the sending State, but as a private person in their capacity as executor, administrator of the estate, heir or devisee,
Cases relating to any professional or commercial activity carried out by the diplomatic representative in Turkey outside his official duties.
Except as provided for in subparagraphs (a), (b) and (c), no enforcement measures may be taken against a diplomatic representative. Even in such cases, the inviolability of the representative’s person or residence may not be violated (Vienna Convention Art. 31/3). However, immunity from the jurisdiction of the receiving State does not immunise the diplomatic representative from the jurisdiction of the sending State (Vienna Convention Art. 31/4).
On the other hand, the diplomatic representative is not obliged to give testimony (Article 31/2 of the Vienna Convention), but the diplomatic representative may appear before the court at his or her own request. Those who benefit from judicial immunity may file a lawsuit before Turkish courts and may intervene in a lawsuit already filed. In the event that a lawsuit is filed in this way (without exemption pursuant to the principle of reciprocity), a lawsuit may be brought against these persons.
Jurisdiction (CCP Art. 114/1-b)
In subparagraph b of Article 114 of the CCP No. 6100 titled “Conditions of the lawsuit”, the permissibility of the judicial remedy is regulated before the jurisdiction of the courts. For this reason, firstly, it should be evaluated whether the court has jurisdiction in terms of the judicial remedy, because in order for a civil court to hear a case, this case must be a case that falls within the jurisdiction of the judicial jurisdiction. A case that falls within the jurisdiction of the administrative jurisdiction cannot be heard in the judicial jurisdiction. For example, if an administrative case is filed before a civil court, the defendant administration may file a jurisdictional objection until the end of the proceedings.
Jurisdiction of the Court (CCP Art. 114/1-c)
In order for the court to enter into the merits of the case, it must have jurisdiction to hear the case. Since the rules regarding jurisdiction are of public order, they may be taken into consideration ex officio at every stage of the case, and may also be asserted by the parties to the case (Art. 1-4 of the CCP).
Absolute Jurisdiction (CCP Art. 114/1-ç)
Jurisdiction is not a matter of public order and may be taken into consideration if asserted by the parties. However, strict jurisdiction, like jurisdiction, is a condition of litigation, is a matter of public order and must be taken into consideration ex officio, and may be asserted by the parties at any stage of the case. Therefore, in cases of absolute jurisdiction, the lawsuit must be filed before the court with absolute jurisdiction. Otherwise, the court must automatically issue a decision of lack of jurisdiction.
Assignment of Parties (CCP Art. 114/1-d)
The formation of the parties is the complete representation of the plaintiff and defendant parties in a lawsuit, their summoning to the court and their full presence in the court. As a rule, there must be two parties, the plaintiff and the defendant, who are in dispute with each other in a lawsuit. Non-contentious judicial proceedings (Art. 382 CCP) are an exception to this rule.
According to the Court of Cassation, even after the decision of the court of first instance is reversed by the Court of Cassation, the judgement of reversal and the date of the hearing must be notified to the parties automatically and the parties must be constituted[1].
Party and Litigation Capacity (CCP Art. 114/1-d)
In order for the case to be examined on the merits, the parties must have the capacity to act as parties and litigants, and in cases where legal representation is in question, the representative must have the necessary qualifications. These matters shall be considered automatically as a condition of the lawsuit.
Authority to pursue a lawsuit (CCP Art. 114/1-e)
The authorisation to pursue a lawsuit is the authorisation of a person to pursue a lawsuit in person or to have it pursued by a representative to be appointed by him. In the cases specified in the laws, a person must have the authority to pursue the case in order to file a lawsuit and take procedural action. The authority to pursue a lawsuit is a condition of litigation and must be taken into consideration ex officio.
Power of Attorney and Valid Power of Attorney (CCP Art. 114/1-f)
In cases pursued by proxy, the proxy must have the capacity to act as proxy and must have a duly issued power of attorney. Unless it is explained that the power of attorney is granted for the rights that are strictly connected to the person such as divorce, name change, renunciation of inheritance, etc., the attorney cannot file and pursue the lawsuits related to these rights (Art. 74 of the CCP).
Since it is a completable deficiency that the power of attorney does not explicitly include the special authorisation, a definite period of time should be given for the completion of the deficiency in accordance with Article 115 of the CCP, and if the power of attorney in accordance with Article 74 of the CCP is submitted within the given definite period of time, the case should be entered into the merits of the case, otherwise the case should be dismissed on the merits.[2]
Deposit of Advance Expenses by the Claimant (CCP Art. 114/1-g)
In order for the case to proceed to the merits, the plaintiff must have deposited the advance on costs. According to Article 120 of the CCP, the plaintiff is obliged to deposit the amount to be determined in the trial fees and the advance on expenses tariff to be issued by the Ministry of Justice every year, to the court cashier when filing a lawsuit, if it is understood during the lawsuit that the advance is not sufficient, the court shall give the plaintiff a definite period of two weeks to complete this deficiency. If the deficiency is not completed within this period, the lawsuit shall be dismissed procedurally.
However, the advance on expenses and the Article 324 of the CCP stipulates that “(1) Each party is obliged to deposit the advance determined by the court for the evidence requested by the court within the given definite period. If the parties have jointly requested the submission of the same evidence, they shall pay the necessary expense in advance in half. (2) If one of the parties fails to fulfil the advance obligation, the other party may deposit this advance. Otherwise, the submission of the requested evidence shall be deemed to have been waived…” should not be confused.
In one of its decisions, the Court of Cassation stated that in a pending lawsuit, pursuant to Article 324 of the CCP, an advance on evidence may be requested for notification expenses, witness expenses, discovery and expert witness expenses and the like, this expense should not be considered as an advance on expenses, which is a condition of the lawsuit, and if the advance on evidence is not deposited, the evidence requested will be deemed to be waived, but if the advance on expenses is not deposited, the lawsuit should be dismissed due to the lack of a condition of the lawsuit.[3]
Providing Collateral (CCP Art. 114/1-ğ)
In cases where a Turkish citizen who does not have a habitual residence in Turkey files a lawsuit, participates in the lawsuit as an intervener or pursues the lawsuit alongside the plaintiff; the plaintiff has previously been declared bankrupt, restructuring proceedings have been initiated through concordat or reconciliation; and it is documented that the plaintiff is in insolvency due to reasons such as the existence of a certificate of insolvency, an appropriate security to be determined by the court and to cover the possible trial expenses to be incurred by the defendant party (Art. 86 of the CCP) must be shown by the plaintiff (Art. 86 of the CCP). ), an appropriate collateral must be shown by the plaintiff party (Art. 84 of the CCP). If the security is not shown within the definite period determined by the judge, the lawsuit shall be rejected procedurally (due to lack of a condition of the lawsuit) (CCP Art. 88/1).
In the event that situations and conditions requiring security arise during the trial of the lawsuit, the court decides that security must be provided. If this deficiency is not eliminated, the case shall be dismissed due to the lack of a cause of action (CCP Art. 84/2).
Legal Interest (CCP Art. 114/1-h)
The plaintiff’s legal interest in filing a lawsuit is a condition of litigation. The legal interest as a condition of litigation must be considered at every stage of the proceedings, automatically and at every stage of the proceedings, within the framework of the evidence, events or facts submitted by the parties to the case file, as a rule, according to the date of filing the lawsuit. However, this legal interest must be a legitimate and personal interest, it must have arisen and be current at the time the lawsuit is filed, and it must be legitimate and worthy of legal protection.
The existence of legal interest is essential in retaliation actions and construction actions. The plaintiff is not obliged to declare and prove that he has a legal interest in such actions. In a suit for declaratory judgement, unlike the actions for performance and construction, it is not assumed that the plaintiff has such a legal interest, and the plaintiff is obliged to declare and prove that he has a legal interest in filing a suit for declaratory judgement. Because the action for declaratory judgement can be filed before a legal situation or right has been denied or violated, that is, before any damage has occurred, it has emerged as an exception to the requirement that the interest must have arisen and be current.
Lack of Complaint (CCP Art. 114/1-o)
The pendency is an institution of procedural law which states that there is a pending lawsuit on the same subject, between the same parties, based on the same cause of action. In order to be able to enter the merits of the case in a civil court, the same case must not be filed for the second time in the same court or in another court while the first case is pending. If the same lawsuit is filed for a second time in the same court or in another court while the first lawsuit is pending, the second lawsuit shall be dismissed procedurally due to pendency.
In the objection of pendency, the idea that the plaintiff has no legal interest in the re-filing and trial of the same case is protected.
Absence of a Final Judgement (CCP Art. 114/1-i)
In order for the civil court to examine the merits of the case, the same case must not have been previously finalised. This is a negative litigation condition.
If there is a final judgement (Art. 303 of the CCP) on the subject matter of the lawsuit, i.e., if a lawsuit was previously filed on the same subject, between the same parties, based on the same cause of action, and the judgement was finalised, the new lawsuit filed must be dismissed procedurally due to the existence of a final judgement.
[1] Court of Cassation 20th HD., 02.03.2017 T., 2016/14736 E., 2017/1799 K.
[2] YHGK 05.04.2017 T., 2016/497 E., 2017/660 K.
[3] Court of Cassation 11th HD., 27.09.2016 T., 2016/5485 E., 2016/7533 K.
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