According to the first paragraph of Article 177 of the Law on Civil Procedures (“LCP”) numbered 6100 dated 12.01.2011: “Amendment of pleading can be made until the end of the trial.” The Unification Decision numbered 10/3 dated 04.02.1948″ (“1948 1. UD“), which has been made before the LCP came into effect, has forbidden the amendment of pleading after the reversal. As a result of the fact that there was a contradiction between the decisions of the Supreme Court of Appeals about whether the amendment of pleading can be made after the reversal decision, this contradiction has been requested to be resolved by unification of the decisions. The decision of the General Assembly of Unification of Decisions of the Supreme Court of Appeals numbered 2015/1 E. ve 2016/1 K. and dated 06.05.2016 (“The Decision”) which has been concluded that “amendment of pleading cannot be made after reversal and the Unification Decision doesn’t need to be changed” as a result of the relevant application has been briefly examined in this article.
CONSIDERATION OF THE MAJORITY
The legal grounds of which the majority considerations in The Decision are based have been summarized as follows:
- The decisions against the 1948 1. UD which is binding according to the article 45 of the Supreme Court of Appeals Law, cause damage on the security of law.
- The necessary conditions for amending the unification decision do not exist.
- No regulation has been made in the LCP regarding the removal of the unification decision.
- The issue of whether the amendment of pleading can be made after the reversal are being discussed only in terms of the plaintiff, so that a discussion will lead to wrong conclusions, thus, the adjudication will become tangled and this will not be helpful according to the principle of procedural economy.
- In case of changing the case by amendment of pleading, drawing a conclusion will be difficult and this situation will be in contradiction with the goal and quickness expected from the amendment of pleading.
Thereby, it has been clearly concluded that “amendment of pleading cannot be made after reversal and the Unificcation Decision doesn’t need to be changed”.
DISSENTING VOTES
The legal grounds of which the opposing considerations in The Decision are based have been summarized as follows:
- It is not correct to limit illegally the time of amendment of pleading which allows the parties to have a just decision.
- It is necessary to put an end to contradictory decisions on whether the amendment of pleading can be made after the reversal decision and to provide a clear practice in line with the principles of “right to legal remedies” and “facilitating the acquisition of a right”.
- It is the duty of the judiciary to conclude cases with the least expense and as quickly as possible in line with the priciple of procedural economy. 1948 1. UD is contrary to the principles of “procedural economy”, “fast and economic trial”, “fair trial”and “rule of law” due to complication the acquisition of a right and damages the rights to legal remedies and access the courts.
- A regulation including amendment of pleading cannot be made after the decision of reversal has not been made either in the old law or in the new LCP by the law-maker, although it was possible to make such regulation.
- The right of amendment of pleading granted to the parties in the law is eliminated before its originate, and and thus forbidding a right before its originate constitutes a serious violation of rights.
- The beginning and completion of the trial phase are not regulated the same in the previous and subsequent procedural laws. 1948 1. UD has been made before the new law. According to the new regulation; after the decision of reversal, the trial will start after the reversal in case of procedural reversal decisions which made before consideration of merits, and the trial will start after obeying the reversal decision in case of reversal decisions which made after consideration of merits. Amendment of pleading is possible through the trial phase as it is stated in the LCP, therefore, the 1948 1. UD is against the clear provisions of LCP.
- It should be possible to make amendment of pleading if it has not been done before, in case of reversal decisions which made after consideration of merits. Otherwise, there will be no legal benefit in appealing and reversing the decision.
- The unified decisions of supreme court of appeals that set abstract and general rules can be changed due to the changes in legislation, social relations, legal interpretations in accordance with the Supreme Court of Appeals Law, and 1948 1. UD should be changed accordingly.
It has been highlighted in some of the dissenting votes that it is stated in the LCP that amendment of pleading cannot be made during this new appeal stage, the discussion about whether the amendment of pleading can be made after the reversal decision is entirely related to the whether the amendment of pleading can be made after the reversal decision of the Supreme Court of Appeals which has been made directly on the decisions of first-instance courts, therefore, the rule of not being able to make amendment of pleading during the appeal stage does not have a place of in practice in the discussion of the current conflict.