Regional Court of Appeal issues controversial annulment decision

The Ankara Regional Court of Appeal recently overturned three first instance decisions based on Article 353/1-a-6 of Civil Procedure Code No. 6100 (CPP), which reads as follows:

At the end of a preliminary examination, the regional court of appeal, without holding a hearing and definitively, returns the file to the court which rendered the initial decision or to another court of the same court without examining the merits of the dispute in the following circumstances:

[…]

6. If the court rendered the judgment without collecting and evaluating the evidence submitted by the parties or if the court has not rendered judgment on a significant part of the claim.

Annulment decisions based on article 353/1-a-6 of the CCP are not subject to appeal before the general civil chamber of the Court of Cassation and are binding both on the court of first instance and on the parties. Following such an annulment decision, the case is returned to the court of first instance for a new trial. As can be understood from its wording, the section addresses a fundamental procedural flaw in arbitration.

As such an annulment decision is not subject to appeal, it allows for a speedy retrial of judgments which have been rendered without collecting or assessing the evidence, or which do not cover a substantial part of the claim.

Notwithstanding this, the regional court of appeal stated in its annulment decisions that the inclusion of the visual elements of the marks / designs at issue in the reasoned decisions could be misleading as the shape, color or size may vary, and such confusion could lead to further legal action. Actions. This was therefore contrary to article 141 of the Constitution (reasons for the judgment) and article 297 of the CCP (scope of the judgment), as also adopted in a judgment of the general civil chamber of the Court of Cassation.

The regional court of appeal further stated that although it has the power to issue a decision by reviewing it, it cannot assess the decisions of the court of first instance in this case. Although the authors agree with the regional court of appeal that it did not have the power to approve the decisions of the first instance court by reviewing them, they also believe that Article 353/1-a-6 of the CPP, which was invoked to overturn the decisions, was not legally relevant.

Indeed, the inclusion of visuals of the marks / designs in question and the misleading / confusing nature of such inclusion did not fall under any of the conditions set out in Article 353/1-a-6. Furthermore, the inclusion of the visual elements at issue in the reasoned decisions could not be considered misleading / confusing, since the decisions also included the filing / registration numbers, which was sufficient to differentiate the marks / models at issue from them. from each other and to designate them with precision.

Furthermore, even though the Regional Court of Appeal relied on the decisions of the General Civil Chamber of the Court of Cassation, it is believed that the Regional Court of Appeal interpreted these decisions broadly. More specifically, the General Civil Chamber of the Court of Cassation concluded in these decisions that confusion may arise and that there may be obstacles to the execution of the decisions since extrajudicial trademarks / drawings / drawings / visuals have been included. . However, in this case, the extrajudicial marks / models were not included and the registration numbers of the marks / designs were provided; therefore, there could be no confusion as to which marks / designs were the subject of the action. In addition, the General Civil Chamber of the Court of Cassation stated that in cases where the composition of the marks is important, the incomplete inclusion of the marks (for example, the lack of details on other characteristics such as color ) in the decision can be misleading and deceptive. In light of this, it should not have been concluded that the inclusion of the marks at issue, with their filing / registration numbers, was misleading.

Overall, the parties were deprived of a trial within a reasonable time due to the lack of jurisdiction of the regional court of appeal and its broad interpretation of the decisions of the general civil chamber of the Court of Cassation; it was based on an irrelevant article and such a reversal cannot be appealed to the Court of Cassation. It can be argued that annulment decisions are useless and unnecessarily prolong the proceedings, contrary to the purpose of Article 353 of the CCP.

First published by WTR on 07/06/2021

Elna M. Lemons