Conditions of the Lawsuit (Dava Şartları)
All of the conditions whose existence or absence is necessary for the court to examine the merits of a case and render a judgment are called conditions of the lawsuit.
A lawsuit filed without a condition of the lawsuit is still a pending (derdest), initiated lawsuit. This is because the legal effects and consequences of a lawsuit arise at the moment it is filed. Therefore, the conditions of the lawsuit are not requirements for filing the case, but rather requirements for the judge to proceed into the merits of the dispute.
Conditions of the lawsuit may manifest as positive or negative conditions. For example, the court having jurisdiction (görev) is a positive condition, while the absence of a prior final judgment (kesin hüküm) regarding the same case is a negative condition.
The general conditions of the lawsuit—meaning the conditions that must exist in every case—are regulated in Article 114 of the CCP (Code of Civil Procedure). Additionally, there are special conditions of the lawsuit which are not sought in every case but are required in some specific cases. Special conditions of the lawsuit must also be based on the law. Pursuant to Article 114 of the CCP, the conditions of the lawsuit are as follows:
ARTICLE 114- (1) The conditions of the lawsuit are as follows:
a) The Turkish courts must have judicial jurisdiction. b) The judicial path must be permissible. c) The court must have subject-matter jurisdiction (görev). ç) In cases where venue is mandatory, the court must have territorial jurisdiction (yetki). d) The parties must have the capacity to be a party and the capacity to sue; in cases where legal representation is involved, the representative must possess the necessary qualifications. e) Possession of the authority to follow the case (dava takip yetkisi). f) In lawsuits followed through an attorney, the attorney must have the capacity to represent in court and must possess a duly issued power of attorney. g) The advance on expenses (gider avansı) required to be deposited by the plaintiff must have been deposited. ğ) Fulfillment of the requirements of the decision regarding the provision of security (teminat). h) The plaintiff must have a legal interest (hukuki yarar) in filing the lawsuit. ı) The same lawsuit must not have been filed previously and must not currently be pending (lis pendens). i) The same lawsuit must not have been previously resolved by a final judgment (res judicata).