(HGK-K.2021/115)
Judgements made by the judge are divided into two categories: interim judgements and final judgements.
Interim decisions are decisions that do not put an end to the proceedings (trial), but rather serve to carry it forward. The judge makes many interim decisions in the case in order to conduct (advance) the proceedings. The common characteristic of all these decisions is that the judge does not withdraw his hand from the case with an interim decision, on the contrary, he continues the case (Kuru, B.: Civil Procedure Procedure, Istanbul 2001, Volume III, p.2998). Within this scope, the court’s decisions regarding the rejection of the objection of jurisdiction and competence, and the rejection of the defence of statute of limitations are interim decisions, as well as the decisions of the court to give the parties time to show their evidence, to pay the witness, expert examination and discovery expenses are also interim decisions.
Decisions that put an end to the proceedings and result in the judge’s withdrawal from the case are called final decisions. For example, a decision on lack of jurisdiction, a decision on lack of jurisdiction, a decision on divorce, a decision on determination of monthly rent, a decision that there is no need to make a decision on the merits because the debt (subject of the lawsuit) has been paid during the lawsuit.
With the final judgement, the judge withdraws his/her hand from the case, cannot go back on his/her decision and cannot change it. However, final judgements (unlike interim judgements) may be appealed (Art. 427). Thus, unless the final judgements are appealed and reversed by the Court of Cassation, it is not permissible for the judge to re-examine the case concluded by the final judgement (Kuru, p.3004-3005).
Final judgements can be categorised into two groups as final judgements on the merits and final judgements on the procedure. Although the judge withdraws his hand from the case with the procedural final judgement, the essence of the dispute between the parties is not resolved with this judgement. For example, the decisions rendered by the court on the grounds of lack of jurisdiction or lack of jurisdiction, the decisions rendered on the deeming of the case as not filed due to failure to pursue the case, the decisions rendered on the procedural dismissal of the case due to the lack of the conditions of the lawsuit are final decisions, but they are not the decisions that terminate and resolve the dispute between the parties.
Courts resolve the dispute before them with a final judgement on the merits, with exceptions such as the settlement of the parties, waiver of the lawsuit, acceptance or withdrawal of the lawsuit. In principle, every judgement rendered by the court expresses its conscientious opinion on the concrete dispute before it within the framework of ‘the Constitution, the laws and the law’. The conformity of this conscientious conviction with the said framework is demonstrated by the reasoning of the judgement. Therefore, according to the third paragraph of Article 141 of the Constitution, all judgements of all courts must be reasoned. In this framework, a judicial decision consists of the opinion of the court on the dispute before it. In other words, a judicial decision is the court’s opinion on a concrete legal problem. This statement of opinion, which we characterise as a judicial decision, has binding consequences for the addressees. So much so that, in the event that the judgement is not fulfilled by the addressee, it is possible to fulfil the judgement through judicial enforcement (by force) (Pekcanıtez Usûl, Civil Procedural Law, Volume III, Istanbul 2017, p.1967). Based on these explanations, the judgement can be defined as the decision that the judge renders as a result of the judicial activity regarding the dispute brought before the court, which resolves the case on the merits and ends the dispute between the parties.
As a matter of fact, in the first paragraph of Article 294 of the Code of Civil Procedure No. 6100, which entered into force on 01.10.2011 (Law No. 6100/CCL No. 6100), it is stated that ‘The court ends the case with a final decision on procedure or merits. The final judgement rendered at the end of the trial on the merits of the dispute is the judgement.’ The court’s decision on the merits, which resolves the dispute, is the judgement.
At the stage of the proceedings before the judgement, the judge firstly investigates and determines whether there is a rule of law applicable to the concrete case. Secondly, he examines whether the conditions in the abstract rule of law are present in the concrete case; he investigates whether the claims and defence are proved or not. This duty of the judge is realised through the collection and evaluation of evidence. In the final stage, the judge applies the objective rule of law to the concrete case as a result of the judgement activity and renders a decision on the merits of the dispute. The judgement does not have any consequences unless it is announced by the judge. In order for the decision (judgement) to have consequences, it must be announced to the parties, that is, it must be announced or notified. How the judgement shall be rendered is regulated in Article 382 of the Code of Civil Procedure No. 1086 (Law No. 1086/HUMK) and Article 294 of the Law No. 6100. The scope of the judgement is detailed in Article 388 of the Code No. 1086 and Article 297 of the Code No. 6100. After the judgement is written and signed by the judge and sealed with the seal of the court, the copies of the judgement are given to the parties against a receipt and also notified to the party who has not received the judgement without delay (Article 301 of the Law No. 6100; Article 392 of the Law No. 1086).
The remedy is a legal remedy granted to the parties to the case, by which wrong judgements (more precisely, allegedly wrong judgements) may be re-examined and amended. Since there is a possibility that the judgement courts may make mistakes in their decisions, legal remedies have been accepted in every legal system in order for the decisions to be checked by a higher court (Kuru: p. 4483).
Legal remedies that prevent the finalisation of final decisions are called normal legal remedies. In other words, in case of an application for normal legal remedies, the final decision against which the legal remedy is applied is not finalised until it passes through these remedies. The ordinary remedy is a remedy recognised for final decisions that have not yet become final. If the normal legal remedy is applied against a decision, the finalisation of that decision is prevented, that is, it is left to the result of the legal remedy. If this remedy is not applied within the normal legal remedy period, or if the decision is upheld and there is no other legal remedy, the final decision becomes final (Kuru: p.4484). In other words, remedies are not infinite. The judgement becomes final upon the exhaustion of the legal remedies stipulated in the law against the judgement, or upon the expiry of the time limit for applying for legal remedies. However, the legal remedy recognised against finalised judgements is called extraordinary legal remedy, and the judgement subject to extraordinary legal remedy is in fact finalised by going through the normal legal remedies or without resorting to legal remedies. However, in case of the existence of certain reasons stipulated in the law, the legislator has given the possibility to lift or change the finalised judgement.
In Turkish Civil Procedural Law, remedies are accepted for final judgements. There is no general remedy system foreseen against non-final decisions of the courts, in other words, against interim decisions.
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