In other words, in order for the case to be accepted, within the framework of evidence, events or facts submitted to the case file, its presence or absence is necessary, it was observed by the judge on the date of opening the case, in case of its absence, it is necessary to decide to dismiss the case due to the absence of the case requirement, or its deficiency can be asserted by the parties at each stage of the case.
In the doctrine, the cases necessary for the examination of the merits of the case, that is, for the acceptance of the case, are called positive case conditions(for example, the presence of legal benefits); negative case conditions are called cases necessary for the acceptance of the case(for example, the fact that the same case has already been filed and is still being heard, in other words, the absence of a state of distress).
General Terms of the Case
114 of the Code of Civil Procedure No. 6100. article 1. the general conditions of litigation listed in the paragraph and which, as a rule, are valid for all cases are as follows:
The Existence of the Judicial Right of Turkish Courts (Art. of the CCP. 114/1-a):
Right of jurisdiction of Turkish courts In other words, the jurisdiction of Turkish courts is limited to the country, person and subject of dispute in connection with sovereignty. Cases related to persons who are not subject to Turkish jurisdiction and dispute issues should be dismissed due to the absence of a legal requirement.
Judicial exemption is not granted to a foreign state in cases arising from private legal relations. In such disputes, notifications may be made to the diplomatic representatives of the foreign state in Turkey(MÖHUK md. 49).
According to the Vienna Convention on Diplomatic Relations dated 18.04.1961, which Turkey joined with law No. 3402 dated 04.09.1984, diplomatic representatives have full exemptions from criminal jurisdiction (Vienna Promise. mad. 31/1). At the same time, diplomatic representatives in Turkey are also exempt from civil and administrative cases, except for the following cases (Vienna Promise. md. 31).
A rights-in-kind lawsuit related to a private real estate owned by the diplomatic representation in Turkey, provided that this real estate has not been saved by the diplomatic representative for use on behalf of the sending State and for mission purposes,
Cases related to the inheritance in which diplomatic representatives are involved in the capacity of a will enforcement officer, inheritance administrator, heir or testamentary person, not on behalf of the sending state, but as a private person,
Cases related to any professional or commercial activity that the diplomatic representative performs in Turkey outside of his official duties.
no enforcement measures may be taken against a diplomatic representative except in the cases provided for in paragraphs (a), (b) and (c). Even in such cases, the inviolability of the person or residence of the representative may not be violated(Vienna Promise. md. 31/3). However, immunity from the jurisdiction of the receiving State does not make the diplomatic representative immune from the jurisdiction of the sending State(Vienna Promise. md. 31/4).
On the other hand, there is no obligation for a diplomatic representative to testify(Vienna Promise. md. 31/2), but the diplomatic representative may testify by coming to the court at his own request. Those who benefit from judicial exemption can file a lawsuit in Turkish Courts and intervene in a lawsuit that has been filed. If a lawsuit is filed in this way (without exemption in accordance with the principle of reciprocity), a lawsuit may be filed against these persons.
The Judicial Way (HMK Md. 114/1-b)
114 entitled “Terms of the case” of the CCP numbered 6100. in subparagraph b of article, the permissibility of the judicial route is regulated before the courts are assigned. For this reason, first of all, the issue of whether the court is competent in terms of judicial means should be evaluated, because in order for the civil court to hear a case, this case must be a case that falls within the jurisdiction of the judicial judiciary. A case that falls within the scope of the administrative judiciary’s duty cannot be tried in judicial proceedings. For example, if an administrative case is filed in a civil court, the defendant may file a judicial appeal(duty) until the administrative trial is over.
The Duty of the Court (HMK Md. 114/1-c)
In order for the court to enter into the merits of the case, it should be the duty to take care of that case. The rules related to the duty can be taken into account ex officio at every stage of the case, since they are from the public order, and can also be put forward by the parties to the case (HMK art. 1-4).
Final Authority (HMK Md. 114/1-o)
The authority is not from the public order, it can be taken into account if it is put forward by the parties. However, the exact situations of authority are also a condition of the case, such as duty, they are from public order and must be taken into account ex officio, and they can be put forward by the parties at every stage of the case. Therefore, in cases of final authority, the case must necessarily be filed in the final competent court. Otherwise, a decision of incompetence should be made by the court on its own.
Organization of the Party (HMK Md. 114/1-d)
The formation of a party is the complete representation of the plaintiff and defendant parties in a case, their summons to court and their full participation in court. As a rule, there must be two parties in a case, the plaintiff and the defendant, who are in dispute with each other. Non-contentious judicial affairs (HMK md. 382) is the exception to this rule.
According to the Court of Cassation, after the decision of the court of first instance is overturned by the Court of Cassation, the decision to overturn and the day of the hearing should be notified to the parties spontaneously and ensure that they become a party.[1]
Party and Trial License (HMK Md. 114/1-d)
In order for the case to be examined on the merits, the parties must have a party and litigation license; in cases where legal representation is in question, the representative must have the necessary qualifications. These issues are taken into consideration by themselves as a condition of the case.
The Case Follow-Up Authority (HMK Md. 114/1-e)
The case tracking authority is the authority of a person to follow a case personally or to have it followed by a representative he appoints. In the cases specified in the laws, a person must have the authority to follow the case in order for a lawsuit to be filed and procedural action to be taken. The case follow-up authority is a condition of the case and should be taken into account ex officio.
The Power of Attorney’s License and Valid Power of Attorney for the Case (HMK Art. 114/1-f)
In cases pursued through a proxy, the proxy must have a power of attorney license for the case and have a duly issued power of attorney. Divorce, name change, rejection of inheritance, etc. it cannot open and pursue lawsuits related to these rights unless it is explained that the person is authorized about closely related rights (HMK art.74).
Since the absence of explicit special authority in the Power of attorney is a complete deficiency, Article 115 of the CCP. in accordance with article 74 of the CCP, giving a definite period for the completion of the deficiency within the given definite period. if a power of attorney is submitted in accordance with the article, it must be entered into the merits of the case, otherwise it must be decided to dismiss the case on the merits.[2]
Payment of an Advance Payment of Expenses by the Plaintiff (HMK Md. 114/1-g)
In order for the merits of the case to be entered, the plaintiff must have deposited the advance payment that he must deposit. HMK’s 120. according to the article, the plaintiff must deposit the amount to be determined in the trial fees and the expense advance tariff to be issued by the Ministry of Justice every year to the court teller when filing a lawsuit. If it is realized during the trial that the advance is not sufficient, the court gives the plaintiff a two-week fixed period to complete this deficiency. If the deficiency is not completed within this period, it is decided to dismiss the case out of procedure.
However, with the expense advance, HMK’s 324. according to article “(1) Each of the parties is obliged to deposit the advance determined by the court for the evidence it requests to be substituted within the specified time period. If the parties have requested the substitution of the same evidence together, they shall pay the necessary expenses in advance by half. (2) If one of the parties does not fulfill the advance obligation, the other party may deposit this advance. Otherwise, the substitution of the requested evidence shall be deemed to have been abandoned …”The arrangement should not be confused.
In a decision of the Court of Cassation, in a derdest case, the 324th of the CCP. according to the article, an advance payment of 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 payment of expenses that are a condition of litigation, if the advance payment of evidence is not deposited, the requested evidence will be considered abandoned, but if the advance payment of expenses is not deposited, it should be decided to dismiss the case due to the absence of a lawsuit requirement.[3]
Showing of Collateral (HMK Md. 114/1-d)
Paying paying expenses for a Turkish citizen who does not have a habitual residence in Turkey to file a lawsuit, to participate in the case or to follow up with the plaintiff; the plaintiff’s bankruptcy has been decided previously, restructuring operations have been initiated by concordat or settlement; if it is documented that he is in difficulty paying due to reasons such as the existence of a document incapable of paying debts, it will cover the possible trial expenses that the defendant will make and will be determined by the court (HMK art.86) an appropriate guarantee must be shown by the claimant party (Art. 84). If the guarantee is not shown within the exact period determined by the judge, the case will be rejected due to procedural reasons (lack of legal requirements) (HMKmd. 88/1).
In the event that circumstances and conditions requiring collateral arise during the hearing of the case, the court also decides to show collateral. If this deficiency is not corrected, the case will be rejected due to lack of conditions (HMK md. 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 declaratory action 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 has arisen and is 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 a 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 the pendency, the idea that the plaintiff has no legal interest in the reopening of the same lawsuit 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 has been previously filed on the same subject, between the same parties, based on the same cause of action, and the judgement has been 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.