Is It Possible to Appeal Against the Interim Injunction?

Interim Injunction have always been one of the controversial issues. However, if the interests of one of the parties are damaged, can an appeal be made through legal means? The law offices of the Supreme Court evaluated the issue differently and in the end, the issue came to the Grand General Assembly of the Supreme Court.

With the decision of the Grand General Assembly of the Supreme Court of Appeals, 2013/1 Main and 2014/1 Decision dated 21.02.2014, it is understood that what is meant by the phrase “lawful remedy” in the regulation regarding the request for interim injunction is the way of appeal, therefore, the decisions regarding the interim injunction are not final decisions, there has been a unity of jurisprudence on the issue that these decisions cannot be examined within the scope of the appeal procedure.

Abstract: In case of rejection or acceptance of the interim injunction requests given by the courts of first instance, the appeal is closed against the decisions made upon objection.

I. Introduction:

A. Applications on Consolidation of Case-law

In the applications to merge the case-laws dated 27.02.2013, signed by lawyer M. N.; dated 29.04.2013 and signed by Lawyer M. Ü.; dated 02.08.2013 and signed by Lawyer H. Ö.; dated  01.11.2013 and signed by Lawyer T. S.; dated 22.05.2013 and signed by Lawyer Ü. B. It has been requested to consolidate the differences of opinion between the Chambers on the issue of whether an appeal can be made against the decisions to be taken upon objection, in case the request for interim injunction, which is one of the temporary protection measures regulated under Articles 389 to 399 of the CPC, is rejected or this request is accepted.

Summaries of Opinions Expressed in Decisions Subject to the Request for Elimination of Disagreement

1. Chambers of the opinion that the remedy of appeal is closed

In summary, the First Law Department, Third Law Department and Seventeenth Law Department gave their opinions on the subject to the First Presidency of the Supreme Court: <Based on the provision in the third paragraph of the Provisional Article 3 added to the Law No. 6100, it would not be correct to conclude that the duties assigned to the regional courts of appeal in the Law No. 6100 are fully fulfilled by the Supreme Court. Because, as stated in the text of the aforementioned paragraph, only the parts of the duties given to the regional courts of appeal, which are specified in the Law No. 1086 and which are not in violation of this Law, are foreseen to be implemented. As stated in the first paragraph of this article, only the provisions of the Law No. 1086 on appeal have the opportunity to be applied temporarily; In addition, interpreting the legal remedy foreseen for the regional courts of appeal about the <injunctive injunctions>, which is an institution of temporary legal protection according to Law No. 6100, as an appeal remedy without a legal basis will not be a result in accordance with the purpose of the law and the reasons for the establishment of the institution. On the other hand, according to Article 427 of the CCP, appeal is the legal remedy to be applied against the final decisions given by the courts. They stated that since the interim injunction decision is a temporary measure and can be changed if the situation and conditions change, it is not possible to appeal the related court decisions according to the additional article 3 of the Law No. 6100.

1. Chambers of the opinion that the remedy of appeal is open

In summary, in the opinions of the Fourth Civil Chamber, Sixth Civil Chamber, Eighth Civil Chamber, Eleventh Civil Chamber, Thirteenth Civil Chamber, Eighteenth Civil Chamber, Nineteenth Civil Chamber and Twenty-Third Civil Chamber on the subject, submitted to the First Presidency of the Court of Cassation: They stated that it is necessary to accept the legal remedies against the decisions made by the courts of first instance, as a remedy in accordance with the 341, 391/3 and Provisional Articles of the Code of Civil Procedure No. 6100.

The Decision of the First Presidency Board of the Supreme Court of Appeals and the Subject of Combining Jurisprudence

With the decision of the First Presidency Board of the Supreme Court dated 28/11/2013 and numbered 174;

As it has been concluded that there is a conflict of opinion between the interim injunction decisions and the decisions given on the objection to the interim injunction decision by the Supreme Court, whether they can be reviewed on appeal or not, and that different practices continue; It was decided that the violation should be resolved by the General Assembly for the Unification of Legal Jurisprudence, and that a reporter member would be appointed, with the date of the meeting to be determined later by the First Presidency.

In case of refusal or acceptance of the interim injunction request, which is one of the temporary protection measures regulated between articles 389 and 399 of the CPC, the issue of combining the case law is against the decisions to be taken upon objection, has been determined as to whether the legal remedy stipulated in the second paragraph of Article 391 and the fifth paragraph of Article 394 of the CPC will be applied as an appeal remedy until the start of office of the regional courts of appeal pursuant to the Provisional Article 3 added to the HMK with Article 30 of the Law No. 6217 dated 31/3/2011.

II. Concepts, Institutions and Legal Regulations Related to Combining the Case Law

A.Legal Regulations Related to the Subject

  1. Interim Injunction in the Abrogated Code of Civil Procedure No. 1086

Interim Injunction

Article 101 – At the request of one of the two parties, the judge may decide to take precautionary measures before or after the settlement of the case, in the following cases:

1 – If movable and immovable properties are in the same dispute, their lien or deposit,

2 – To take all kinds of measures necessary for the preservation of the thing in dispute,

3 – Receiving alimony in certain cases with the Civil Code,

4 – Adoption of the temporary measures required by the Civil Code on the separation or divorce case.

ARTICLE 103 – In cases where there is a danger in the delay or when it is understood that there will be a significant damage other than the situations indicated in the articles 101 and 102, the judge may decide to execute the necessary precautionary measures in order to repel the danger or damage.

Article 104 – Before the settlement of the lawsuit, the precautionary decision for the attachment is given by the court.

Where it is possible to carry out the interim injunctions requested in addition to the precautionary measure with the least expense and in the quickest way, these measures can be decided even by the local court.

After the lawsuit has been settled, all interim injunctions are decided by the officer judge. However, if the judge finds that the interim injunction can be carried out more quickly and with less expense in another place, she may appoint the regent of that locality to decide on this issue.

Article 105 – It is requested by request from the judge to decide on an interim injunction. Thereupon, even if the two parties are not invited immediately and jointly, the ratification decision is made.

In cases where it is necessary to immediately preserve the law of the deceased or the complainant, an interim injunction may be taken even without the invitation of both parties.

Article 107 – It is permissible to appeal against the interim injunction decisions in absentia. This objection is not liable for the postponement of the execution unless it is decided to postpone the execution.

Article 108 – The appeal is made with a petition and the document is attached to the petition at the certificate.

If the case has been settled before the objection to the interim injunction decision, the objection is submitted to the investigating judge upon request. The provision of the last paragraph of Article 104 is reserved. In the event of an objection, the judge may amend or amend or revoke her decision after inviting the two parties and using each of them. If one or both parties do not come, the decision is made by conducting an examination on the document.

Article 109 – If the interim injunction decision was given before the filing of the lawsuit, a lawsuit must be filed on the merits within ten days from the date of the decision, whether it was implemented or not. During this period, the document confirming that she/he has filed her lawsuit is submitted to the officer who implemented the decision, and she/he is obliged to get the certificate in return by submitting it to the file and registering it. Otherwise, the precautionary measure will be lifted by itself without the need for a ceremony one day, and a request may be made from the department or official applying the precautionary measure to actually cancel the measure, which has been imposed according to its reckoning.

Article 113 – The documents regarding the application of the precautionary measure are combined with the case file.

  1. Legal Regulation on Precautionary Seizure in the Execution and Bankruptcy Law No. 2004

Objection and appeal against the lien decision

Article 265 – (Amended: 18/2/1965 – 538/105 art.)

(Amended first paragraph: 17/7/2003-4949/63 art.) “The debtor is against the reasons on which the provisional attachment given without being heard, the jurisdiction of the court and the security; The application of the lien in the lien made in his/her presence, otherwise he/she can object by applying to the court within seven days from the date of notification of the provisional attachment report.”

(Additional second paragraph: 17/7/2003-4949/63 art.) Third parties whose interests have been violated may also object to the grounds or security on which the provisional attachment is based, within seven days from the date of learning about the provisional attachment.

The court accepts or rejects the objection by examining the reasons given.

(Additional paragraph: 17/7/2003 – 4949/63 art.; Amendment: 2/3/2005-5311/17 art.) An appeal can be made against the decision given upon the objection. The regional court of appeal first examines this application and its decision is final. Applying to the appeal procedure does not suspend the execution of the provisional attachment decision.

The objector is obliged to bind all the documents on which she/he relied on the petition. The court, after inviting both parties on the objection and listening to those who came, may change or annul its decision if it finds that the objection is valid. So much so that if both parties do not come, a decision is made by examining the document.

  1. Interim Injunction in the Code of Civil Procedure No. 6100

The terms of the interim injunction

Article 389- (1) “In cases where there is a concern that to have the right will become significantly more difficult or completely impossible due to a change in the current situation, or that an inconvenience or serious damage will arise due to delay, an interim injunction may be given on the subject of the dispute. “

(2) To the extent that the provision of the first paragraph conforms to its nature, it is also applied in uncontested judicial matters.

Request for an Interim Injunction

ARTICLE 390- (1) Interim injunction is requested from the court in charge and authorized on the merits before the lawsuit is filed, and after the lawsuit is filed, only from the court where the main lawsuit is heard.

(2) However, in cases where it is necessary to immediately protect the rights of the requester, the judge may decide on an interim injunction without hearing the other party.

(3) The party requesting injunction must clearly state the reason and type of interim injunction on which it is based and approximately prove its justification in terms of the merits of the case.

Interim Injunction Decision

Article 391- (1) In Article 391 of the CCP, this situation is expressed as follows; “The court may decide on all kinds of cautions to annihilate the inconvenience or prevent the damage, such as keeping the property or right subject to the caution or depositing it in a trustee, or doing or not doing something.”

(2) In the decision on the interim injunction;

  1. a) The name, surname and place of residence of the person requesting the injunction, the legal representatives, if any, and the counter party; and the Turkish Republic identification number of the requester,
  2. b) The clear and concrete reasons and evidences for the caution,
  3. c) On what and what kind of caution is decided without leaving any room for hesitation,

ç) What amount and what type of guarantee the requester will provide.

In case of rejection of the request for interim injunction, legal action may be taken. This application is first examined and finalized.

6) Enforcement of the Interim Injunction

ARTICLE 393- (1) Enforcement of the interim injunction decision must be requested within one week from the date of its issuance. Otherwise, even if a lawsuit is filed within the legal period, the interim injunction is automatically lifted.

(2) Enforcement of the injunction decision is requested from the enforcement office of the court that made the decision or the place where the property or right subject to the measure is located. The court, by stating in its decision, may also assign the editor-in-chief in the implementation of the caution.

(3) For the implementation of the interim injunction, force may be used if necessary. Regarding the use of force, all law enforcement officers and village headmen are obliged to help her and obey the orders of the officer who will carry out the application, upon the written application of the same officer.

(4) The officer applying the interim injunction makes an official report. In this report, the subject of the injunction and its location are presented; All kinds of claims regarding the injunction are recorded in this report. The officer applying the measure shall notify a copy of this report to the parties who has not been present during the caution and to the third party depending on the situation.

(5) In the event of a legal action regarding the interim injunction decisions, only samples of the files and evidence regarding the injunction are sent to the relevant court.

Appeal against the decision on the interim injunction

Article 394- (1) The interim injunction decisions given without hearing the other party can be appealed. Unless otherwise decided, the appeal does not suspend the execution.

(2) If the other party is present during the implementation of the interim measure, from the implementation of the measure; If she/he is not present, he may appeal to the court that made the decision, within one week from the notification of the report regarding the implementation of the measure, regarding the terms of the interim injunction, the jurisdiction of the court and the security.

(3) Third parties whose interests are clearly violated due to the implementation of the interim injunction may also object to the terms of the interim injunction and the guarantee within one week after they have learned about the interim injunction.

(4) The appeal is made by petition. The objector has to clearly show the reasons for the appeal and attach all the proof on the basis of the objection to the petition. The Court invites the interested parties to listen; If they do not come, it rules the decision by examining the file. Upon objection, the court may amend or cancel the interim injunction.

(5) Against the decision on the objection, legal action may be taken. This application is first examined and finalized. The fact that legal action has been taken does not stop the implementation of the measure.

Provisional Article 3  (Annex: 31/3/2011-6217/30 art.)

(1) Until the date of the regional courts of appeal, to be announced in the Official Gazette, the provisions of the Law No. 1086 regarding the appeal in force shall continue to be applied, Pursuant to the provisional article 2 of the Law on the Establishment, Duties and Powers of the Courts of First Instance and Regional Courts of Justice, dated 26/9/2004 and numbered 5235.

(2) The provisions of Articles 427 to 454 of the Law No. 1086, before the amendment made with the Law No. 5236 of 26/9/2004, shall continue to be applied for the decisions that were appealed against before the start of office of the regional courts of appeal.

(3) In cases where regional courts of appeal are assigned in this Law, the provisions of Law No. 1086, which are not contrary to this Law, shall apply until the commissioning date of these courts.

  1. Concepts and Institutions Related to Combining the Case Law
  2. Interim Injunction
  3. a) Conceptually

The precautionary measure is regulated under the title of temporary legal protection, and although this concept has been used frequently in the doctrine before, it is used in a systematic and detailed manner, for the first time at the legal level, between articles 389-406 of the Code of Civil Procedure no. 6100, under the main heading of <Temporary Legal Protection> and in two parts. The first part is under the subheadings of <interim injunction>, and the second is under the subheadings of <evidence detection and other temporary legal protections>.

Litigation is a basic method of legal protection and protection, which is granted to everyone within the scope of the freedom of <seeking rights> with Article 36 of the Constitution. The litigation process has a predetermined process by law and this process requires a detailed examination. During the completion of these processes, temporary legal protections have always been needed in order not to harm the essence of the right, and the necessity in this regard is gaining importance day by day. Sometimes, meeting requests for interim measures takes precedence over the actual proceedings.

In this context, temporary legal protections, both before and during the trial, have a vital mission in terms of protecting the rights of individuals and especially in terms of the effective realization of the right to seek justice. In other words, the demand for legal protection can be defined as the most effective <element>, <instrument> or <inseparable part> of the freedom of claim today.

In a state of law, it is not enough for any right to be recognized by the constitutions, besides, some positive duties are imposed on the state in terms of the effective use of these rights and removing the obstacles to their use.

As a requirement of this positive obligation, it is not sufficient for the state to simply regulate the remedies and legal protection and keep them in force. Contemporary states should also fulfill obligations such as taking the necessary measures for the implementation of the decisions to be made in order to ensure the effectiveness of these ways, laying down the necessary rules in order to effectively meet the need for legal protection, establishing the necessary institutions and implementing all these, having them enforced and taking the necessary precautions by monitoring the implementation.

For these reasons, one of the first methods that comes to mind under the title of temporary legal protection is interim injunction. In addition, there are provisions in the CCP regarding many legal protection methods such as the provisional attachment applied to secure the outcome of the proceeding on pecuniary claim, and the detection of evidence for the protection of evidence.

Apart from this, different temporary legal protection methods are also included in many special laws. Among these, different temporary legal protections such as temporary legal protections related to family law, preventive measures, protective measures and temporary regulation of family relations can be counted.

  1. b) Remedies Against Temporary Legal Protection Decisions

Opportunity to apply to legal remedy against precautionary measure was introduced with the CCP, and it is a new institution. Accordingly, in case of rejection of the interim injunction requests and the acceptance of these requests, it is possible to appeal against the decisions made upon objection (art. 341/1).

  1. aa) Objection in Case of Acceptance of the Interim Injunction Request

If the request for interim injunction is accepted, the provision of Article 394 will be applied. While CCP art. 394/p 1 and p 4 are revised in parallel with the provisions in CCP art. 107 and art. 108, other paragraphs are new provisions that are not included in the CCP.

Upon the decision of the injunction without being heard, the other party may object to the conditions of the measure, the jurisdiction of the court or the security, and the third parties whose interests are clearly violated as a result of the implementation of the measure, with a petition. The duration of this objection is one week and if the party against whom an interim injunction decision is made is present during the implementation of the measure, from the implementation of the measure; if he/she is not ready, as of the notification of the minute regarding the implementation of the measure; Third parties, on the other hand, can object within one week after learning about the injunction (art. 394/2, 3).

Objection to the measure is made with a petition to the court that issued the injunction. The objector has to clearly show the reasons for the appeal and attach all the proof on the basis of the objection to the petition. Upon objection, the court invites the relevant parties to listen. If they do not come, it makes its decision by examining the file. Upon the objection, the court may change or remove the injunction it has given (art. 394/4). As a rule, the objection does not suspend the execution of the measure, but the court may decide to suspend the execution of the measure (art. 394/1, c. 2).

In this case, it is possible to take legal action against the decision made about the objection pursuant to CCP art. 394/p 5. This application is firstly examined and finalized. However, in this case, the application of the law does not stop the execution of the measure.

bb)Refusal of the Request for Interim Injunction

In case of rejection of the request for interim injunction, legal action may be taken against the decision to be taken (art. 391/3, c. 1). This provision is a new regulation not found in the abrogated CCP, and it is foreseen that such an application will be examined and finally decided.

With this regulation, it is aimed to give healthier decisions and to ensure uniformity, by preventing many disadvantages such as the abuse of the institution of interim injunction, the making of different decisions on the same issues by different courts, and these decisions being out of control. In case of an application to the legal remedy, due to the nature of the interim injunction, this application will be examined first and the decision made upon the examination will be final (art. 391/3, c. 2).

Before the Code of Civil Procedure, there was no general and uniform regulation on whether or not legal action could be taken against the temporary legal protection decisions given by the courts of first instance.

For this reason, this issue was examined and discussed in terms of each type of temporary legal protection (for example, precautionary attachment, interim injunction, detection of evidence) in the doctrine.

However, the provision of CCP art. 341 put an end to these discussions and opened the way for appeal against these decisions. Because, according to the article 341 (1) of the HMK titled <decisions that can be appealed>; <In the event that the final decisions given by the courts of first instance and the interim injunction and precautionary attachment requests are rejected and these requests are accepted, an appeal can be made against the decisions to be taken upon objection>. In that case, in terms of the Code of Civil Procedure, only the refusal of interim injunction, precautionary attachment requests, and not all temporary legal protection decisions, and in case of acceptance of these requests, the appeal will be open against the decisions to be taken upon objection.

On the other hand, in the provision of Article 362 (1)-f of the Code of Civil Procedure, it is clearly stipulated that no appeal can be made against the decisions of the court of appeal (regional courthouse) regarding temporary legal protections.

7)  Provisional Attachment Decisions

The point to be noted here is important in terms of determining whether the aforementioned Provisional Article 3 is within the scope of the <appeal remedy> in terms of the interim measure of the CCP to which it refers. Because <interim injunction> and <provisional attachment> are of the same nature, but considering that they are not within the scope of appeal, the legislator has revealed his/her will on this issue with the following regulations, with a special regulation made in the Enforcement and Bankruptcy Law only for provisional attachment.

Precautionary attachment is a type of temporary legal protection, and it is subject to the same procedure (appeal procedure) in terms of the legal remedy to which it is subject, according to Article 341/ (1) of the CCP. Again, in accordance with Article 406/(2), it is stated that the provisions of the special law contained in other laws regarding the decisions regarding the precautionary seizure are reserved.

As a matter of fact, in the old regulation, while there was no possibility to appeal in case of rejection of the precautionary attachment request, the 64 and 65 articles of the Law dated 17.7.2003 and numbered 4949 were amended and the 258 and 265 articles of the EBL were amended, and thus an appeal was opened against the related decision.

<ARTICLE 60. – The following paragraph has been added as the last paragraph to Article 258 of the Law No. 2004:

In case of rejection of the provisional attachment request, the creditor may apply to the legal remedy.

ARTICLE 63. – The title of Article 265 of the Law No. 2004 was changed as <Objection and appeal against the provisional attachment decision> and the first paragraph was changed as follows and the following paragraphs were added as the second and last paragraphs.

Against the decision on the objection, legal action may be taken. The Supreme Court first examines this application and its decision is final. The appeal does not suspend the enforcement of the lien decision.>

In the rationale of article 64 of this law, which amends article 265 of the Execution and Bankruptcy Law:

<Article 64- Parallel to the amendment made in Article 258 of the Law, the provision in the first paragraph that the provisional attachment cannot be appealed has been removed from the text of the article.

With the paragraph added to the article, the possibility of <appeal> to the provisional attachment has been brought to third parties whose interests have been violated. As a matter of fact, with the amendment made in the Swiss Execution and Bankruptcy Law, this opportunity has been given to third parties. Because provisional attachment is a temporary legal protection, this decision can sometimes be made without hearing the other party and without seeking proof. As a result of this, a provisional attachment decision can be made in the manner and content that will directly affect the third parties outside the debt relationship, and the third parties do not have the opportunity to protect themselves with an explicit provision in the face of this situation. It is aimed to eliminate the hesitations about the objection by stating that the reason for the objection that the third party may raise may be related to the grounds of foreclosure or security. Since the subject of duty will be determined according to the Code of Civil Procedure, it is not specified in the article separately. Since the receivable that forms the basis of the lien request is money receivable, the magistrate or the civil court of first instance will be in charge depending on the amount of the receivable.

In the article, it is stated that an appeal can be made against the decision of the court, which made a judgment and decided upon the objection made by the debtor or the third party, and it was decided that the application would be finalized firstly and definitively by the Supreme Court due to the urgency of the issue. In addition, in order to eliminate the hesitations that may arise in practice, it is stipulated that if an appeal is filed against the decision made upon objection to the provisional attachment decision, this application will not suspend the implementation of the provisional attachment decision.>

Then, in order to adapt to the establishment of Regional Courts of Justice, with Article 17 of the Law No. 5311 dated 2.3.2005:

<ARTICLE 17.- The fifth paragraph of Article 265 of the Enforcement and Bankruptcy Law has been amended as follows.

Against the decision on the objection, an appeal may be made. The regional court of appeal first examines this application and its decision is final. It was amended again as “Application to the appeal remedy does not stop the execution of the precautionary attachment decision” and changed to <appeal, which was previously foreseen as a legal remedy, as an appeal>.

Since a transitional provision is not foreseen for this regulation in the Execution and Bankruptcy Law, and the way of appeal is not actually operational according to the current and current regulation, it is not our discussion topic whether it is possible to examine the objections and the rejection of the objection to the provisional attachment decisions through appeal.

The legislator is not included in this scope of interim injunctions, which are only important in practice, and other temporary legal measures (such as evidence detection, and bookkeeping) that have opened the way for appeal against provisional attachment.

III. Whether Interim Decisions Can Be Appealed

  1. Appeal Against Interim Decisions

In general, the judge may revert spontaneously from an interim decision that did not give rise to a procedural right for one of the parties, or each of the parties may request the judge to reverse an interim decision of this nature.

Opportunities to apply against interim decisions in our law; 1) appeal 2) Appeal with the final decision. (Article 427 of the CCP before it was amended with 5236 p. K; cf. CCP article 341 and article 361 of the CCP numbered 6100).

When the concept of legal remedy is defined as the possibility of having an accidental decision checked in a higher court, although the appeal is a legal remedy, the objection cannot be qualified as a legal remedy in terms of this definition, since the appeal will be made to the same court (judge) that gave the interim decision. The abolished CCP numbered 1086 openly allowed the opportunity to appeal to the same court against some of its interim decisions. For example, an interim injunction decision, which is an interim decision, can be appealed. The decision of the investigating judge, which determines which of the evidence to be substituted is acceptable and which is not (CCP art.189/4; CCP art.218) can be objected to during the trial of the main case. An objection can also be made against the decision regarding the determination of the evidence, and this objection is settled by the judge who determined the evidence (CCP art.402/3; CCP art.373).

  1. Ability to Appeal Interim Decisions

Since our procedural law accepts that only final decisions can be appealed (CCP art. 427/1 before it was amended with 5236 s.K.; 6100 CCP art.341/ (1) and art.361/1) interim decisions cannot be appealed on their own. Interim decisions that cannot be appealed on their own, as they do not terminate the trial and require the court to withdraw from the file (because it is not a final decision), can only be appealed together with a final decision. However, as stated above, the right to appeal has been limited and exceptional with the amendment made to Article 265 of the EBL, regarding the decisions rendered upon the objection made against the precautionary attachment decisions rendered by the enforcement courts, which are in fact an interim decision. In other words, apart from this exception, there is no provision in the CCP to appeal against interim decisions.

  1. Enforcement Area of Appeal and Provisional Article 3
  2. Appeal Procedure

An appeal can be clearly defined as an ordinary remedy aimed at rectifying erroneous and unlawful decisions. In this sense, an appeal is a legal remedy based on the grounds of <no application or misapplication of the law>. Because the appeal is a complete legal remedy in terms of both enabling the decision to be audited by a higher court and delaying its finalization in terms of form.

It can be said that the purpose of the appeal legal remedy is to ensure that the laws are applied with the same understanding (uniform) in all courts within the borders of the country, to contribute to the development of the law through case-law, and to protect the interests of the party applying to the legal remedy by ensuring that wrong decisions are corrected.

However, even if the main purpose of the appeal is generally accepted as the establishment of unity in the civil procedure and the development of the law, In the event that decisions that are deemed unlawful are appealed, the appeal will now serve the interests of the public and the parties.

In the most general definition, the subject of the appeal remedy is the court decisions that the parties want to be re-examined. Appeals can only be made against court decisions that are of a final nature, but no appeal can be made against interim decisions.

The appeal is the first of the legal remedies that can be applied against the decisions of the courts of first instance until the regional courts of appeal take office. After the regional courts of appeal take office, appeal will be a legal remedy that can be appealed against the decisions of these courts.

In this process, the decisions of the courts of first instance will continue to be examined on appeal in terms of legality, by sending the first paragraph of the said provisional article 3 and A limited examination will be made by the relevant legal chamber of the Supreme Court, within the framework of the principles and procedures specified in the articles of the HUMK on appeal, with the legality and legality of the decisions about the resolution of the dispute given by the courts of first instance and only approval, reversal or approval with correction can be made.

In this context, since no investigation can be made during the appeal examination, it is not possible to put forward new facts and evidence at this stage, and the cases that occurred after the verdict is rendered cannot be heard as grounds for appeal.

As it is known, the Civil Procedure Law No. 6100 was accepted by the Grand National Assembly of Turkey on 12.01.2011, but entered into force on 01.10.2011 in accordance with the effective article. However, despite the fact that the law was built on the regional court system and the whole system was built on it, it was understood that regional courts of appeal could not be established and put into operation in the near future, at least on the date when the Code of Civil Procedure would enter into force, with a transitional article, it was aimed to prevent the gap and confusion that may arise in this regard. However, this regulation made with Article 30 of the Law No. 6217 of 31.03.2011 was very insufficient and in practice caused hesitations on many issues, especially the subject of legal remedies against interim injunctions.

Finally, with the provisional paragraph 1 of the provisional article 3 of the Law No. 6100, it is foreseen that the provisions of the Law No. 1086 regarding the appeal will continue to be applied until the Regional Courts of Justice become operational.

The subject of combining the jurisprudence is to clarify whether the provisions of the appellate remedy, which is stated to be applied in the temporary article above, will be applied as an appeal against the interim injunctions under the title of temporary legal protections.

When we examine the relevant provisions of the CCP, in the first paragraph of Article 341; with the provision stating that <in case of the rejection of the interim injunction and precautionary attachment requests with the final decisions rendered by the courts of first instance and if these requests are accepted, an appeal can be made against the decisions to be taken upon objection>, again, in subparagraph (f) of the first paragraph of Article 362 of the CCP, which regulates the decisions that cannot be appealed, there are clearly provisions that the decisions made by the regional courts of appeal on temporary legal protections are final.

As it is known, the appeal proceedings include both control and re-examination, trial and decision making instead of the court. In other words, in the appeal, the substantive audit, that is, the factual (incident) audit, and the legal audit are carried out together, as the limits of which are determined in the law. In this context, upon the objection to the appeal, the relevant officer and the authorized appellate office will be able to examine the issue within the framework of the principles and procedures determined in the CCP and decide on its own.

  1. Enforcement Area of Provisional Article 3

If it is necessary to make an evaluation in order to determine the application area of the temporary article 3; In the most general definition, we can say that the purpose of this article is to ensure that the provisions of the CCP regarding only appeal are continued until the regional courts of appeal take office. In order to achieve this aim, three situations are foreseen in the mentioned article.

First case: According to the provisional paragraph 3/1 of the Law No. 6100, it allows the implementation of the regional courts of appeal, limited only to the provisions of the appeal, until the date of office.

Second case: According to the provisional paragraph 3/2 of the Law No. 6100, the regional courts of appeal regulate the situation regarding the outcome of the decisions that have been appealed before starting their duties.

Third case: In cases where regional courts of appeal are assigned according to the provisional paragraph 3/3 of the Law No. 6100, the provisions of the Law No. 1086 are generally foreseen to be applied without being limited to the subject of <appeal>, but this application is made subject to the condition that it is not contrary to the Law No. 6100. In this case, it is useful to state that there is no regulation in the Law No. 1086 regarding the appeal of interim injunction decisions, and that there is no clear task given to the Supreme Court in this regard with the CCP.

According to the CCP, whether a decision can be appealed is determined by law. As a rule, an appeal can be made against the final decisions of the courts of first instance, which ended the trial and resulted in the judge’s withdrawal from the case. In that case, the interim decisions cannot be appealed alone, but together with the main provision (CCP. 427/I, c.1).

Final decisions are divided into three as final decisions on <substantive> and <procedural> and final decisions given in the event that the case is left without issue. Accordingly, all three types of final decisions can be appealed as a rule.

The rule that final decisions can be appealed is not absolute. That is, it has been recognized, exceptionally, that some final decisions cannot be appealed.

According to this;

1) The final decisions of all kinds of civil courts regarding movable property and receivable cases whose amount does not exceed the appeal limit in CCP (before the Law No. 5236) art. 427/II are final and cannot be appealed.

2) Some final decisions that are declared as final and cannot be appealed in accordance with the provisions of special law cannot be appealed.

3)Decisions of a temporary nature cannot be appealed.

In this case, considering the rejection of the interim injunction requests and the acceptance of these requests, considering the fact that the decisions to be taken on the objection are not final in nature and that the appeal can only be made against the final decisions, no legal action will be taken against such interim decisions by sending the mentioned temporary article.

V.Reason

It has been discussed as a preliminary question whether there is a law study in the Ministry of Justice on unifying the jurisprudence before the negotiations in the Great General Assembly, and considering this study, whether there is a need to combine the jurisprudence, it was accepted by the 2/3 majority of the participants that there was no need to wait for the result of the law study on the grounds that the study in question has existed for a long time and it is unclear whether the study will result in enactment or not and the preliminary problem was overcome and the work was started.

In paragraphs 391/3 and 394/5 of the HMK, a new way of seeking rights is envisaged, which is not included in the abrogated CCP numbered 1086 and In Article 341 of the CCP, <Decisions that can be appealed> and in Article 362 of the CCP under the heading <Decisions that cannot be appealed>, it is clearly stipulated that the purpose of the legal remedy mentioned is <appeal>.

However, due to the fact that the regional courts of appeal, which are the authorities to examine applications from the legal remedies provided in the HMK, have not yet been established, the implementation of the provisions of appeal with the Temporary Article 3 added to the CCP was postponed until the start of office of the regional courts of appeal and some general transitional provisions were envisaged for this purpose.

The essence of the differences of opinion that are discussed in practice and that cause the consolidation of the case-law is related to the issue of whether the legal remedies stipulated in Articles 391 and 394 of the CCP will be applied as an appeal in this process, with the reference of the mentioned temporary article.

At this point, the first of the issues to be clarified will be the determination of the application area of the Provisional Article 3, and then the determination of the legal nature of the decisions regarding the interim injunction.

Accordingly, when the Provisional Article 3 added to the Law No. 6100 is examined, the regulation in the first paragraph is related to the continuation of the application of the provisions of the Law No. 1086 on appeal until the start of office of the regional courts of appeal. In this context, another issue that needs to be clarified in order to determine the scope of the article is the scope of the provisions of the Law No. 1086 on appeal in terms of form and content.

When the articles 427 and the following regarding the appeal of CCP numbered 1086 are examined, it is foreseen that the final decisions given by the courts of first instance can be appealed, except for the exceptions listed in the law. In this case, it is necessary to examine whether the decisions regarding the interim injunction are of a final nature and whether there is a special regulation on which such decisions can be appealed.

In this context, when we consider the issue, in the justification of Article 341 of the HMK, It is stated that the way of appeal is opened in order to prevent the wrong decisions made by the first instance courts and to correct both material and legal contradictions, and while doing these, the audit of appeal is accepted only in terms of interim injunction and precautionary attachment, not for all temporary legal protections, and this opportunity is not provided for other temporary legal protections such as detecting evidence, keeping a book and sealing.

In addition, in the justification of Article 391 of the CCP; It has been emphasized that the legal remedy regarding the interim injunction, which is a procedural law institution, is regulated in parallel with the appeal and appeal against the provisional attachment decision, which came into our legal life with the amendment made in Articles 258 and 265 of the Enforcement and Bankruptcy Law with the Law No. 4949 dated 17.07.2003.

Although it was argued during the negotiations that the interim injunction is not technically an interim decision, it is a type of decision that does not have the characteristics of both an interim decision and a final decision, and that it has the characteristics of a temporary final decision; According to the Law No. 1086, only the final decisions and the types of decisions stipulated by special laws (as in the provisional attachment decisions) can be appealed, and this opinion was not respected by the majority of the Board.

Again, during the negotiations, some members expressed that the issue should be evaluated within the scope of the freedom to seek rights recognized by the Constitution and that an expanding interpretation should be made, but this opinion was not accepted by the majority of the Board for the reasons stated below.

As it is known, interim injunction is undoubtedly a procedural law institution that contributes to the resolution of the dispute between the parties under the title of <Temporary Legal Protections> in the CCP, ensures the execution of the judgment given in the main trial, and can also be considered within the scope of the freedom to seek justice as an inseparable part of the rule of law in the context of the protection of rights. The appeal remedy is also an ordinary legal remedy aimed at rectifying the clearly erroneous or unlawful decisions. In this sense, the appeal is based on <no application or wrongful application of the law>. Zira temyiz hem kararın daha üst seviyedeki bir mahkeme tarafından denetlenmesini sağlaması, hem de şekli bakımdan kesinleşmesini ertelemesi itibariyle tam bir kanun yoludur. Oysa istinaf yukarıda belirtildiği gibi hukuki denetim yanında yerindelik denetimi yapan bir kanun yoludur. According to Article 6 of the Constitution:> No person or body can use a State’s authority that does not derive its source from the Constitution>. Again, according to Article 142 of the Constitution: <The establishment, duties, powers and functioning of the courts are regulated by law. As a matter of fact, this issue is stated in Article 1 of the HMK No. 6100: <The duties of the courts are regulated only by law.  It is regulated as <the rules regarding the task are from public order >. The same principle has been included in the decision of the Supreme Court stating that “The duty of the courts is related to public order, and cannot be expanded by comparison or interpretation” (YİBK.1977/4-4). In this respect, it has been concluded that it is not possible to expand the duties and powers of the courts through comparison and interpretation.

In this context, the purpose of the appeal remedy is to ensure that the laws are applied with the same understanding (uniformly) in all courts located within the borders of the country and by sending the first paragraph of the said Temporary Article 3, the decisions of the courts of first instance will be examined within the framework of the principles and procedures specified in the articles of the HUMK on appeal, and as a result, a decision can be made only in the form of approval, reversal or approval by correction, In other words, as stated in the justifications for the regulations that provide for the opening of an appeal against such decisions, an effective decision cannot be made in the form of promptly correcting material and legal mistakes without causing any loss of rights. Because, within the framework of the existing provisions of the Supreme Court, it will not be able to abolish the decision of the first instance court and make a decision again, by making an appropriateness check in addition to the legality check like the regional courts of appeal.

During the negotiations, although it was stated that the provisions of the HMK regarding appeal were temporarily abolished with the sending of the temporary 3rd article, and therefore the provisions in the articles 341 and the following of the HMK that the purpose of the legal remedy is the remedy of appeal are not in force, this opinion could not be respected in terms of law-making technique and interpretation methodology. Namely; Considering the effective date of Law No. 6100 and the regulation and effective date of the Provisional Article 3, it is clear that the aforementioned article was prepared and entered into force later. Therefore, considering a historical and systematic interpretation and the integrity of the CCP, it is not possible to conclude that the above-mentioned provisions of the aforementioned Law are not in effect.

In addition, considering the subject in the context of the third paragraph of the Provisional Article 3, it is foreseen that the provisions of the Law No. 1086, which are not contrary to the Law No. 6100, are applied in cases where regional courts of appeal are assigned. For an implementation in this context, firstly, a regulation should be included in the Law No. 1086, and secondly, this regulation should not contain provisions contrary to the CCP. When the subject is evaluated in terms of interim injunctions, Considering the fact that there is no provision in the Law No. 1086 to take legal action against the interim injunction decisions and that this institution is a new institution introduced by the CPC, it is clear that no interpretation or practice can be made regarding the possibility of appealing in accordance with the provision of this paragraph of the aforementioned article.

In case of acceptance of the contrary, the scope of the cases and works subject to the appeal examination shall be determined by Law No. 6100; In determining the method of appeal and the type of decision to be made as a result of the examination, an inconsistent legal interpretation and application will be opened such as taking into account the provisions of the Law No. 1086. In other words, it will result in the determination and implementation of the elements of a legal institution and its results, taking into account the provisions of two different laws, prepared with different concepts, in a way that is incompatible with a realist approach in terms of philosophical interpretation activity.

In this respect, it has been concluded that what is meant by the phrase <legal remedy> in Articles 391 and 394 of the HMK is the remedy of appeal, that the referral of the Provisional Article 3 covers only the provisions of the CCP on appeal, and that the decisions regarding interim injunction are not of a final nature and there is no special regulation on this issue, it has been concluded that such decisions cannot be examined within the scope of appeal.

Result: For the reasons described above;

In the third meeting held on 21.02.2014, it was decided by a majority of votes that “In case of rejection of the interim injunction requests from the courts of first instance and the acceptance of these requests, no appeal can be made against the decisions to be taken upon objection”.

Vote Against

With the entry into force of the Code of Civil Procedure on 01.10.2011, it has come to the fore whether an appeal can be made against  The injunction orders given within the scope of the law (CCP. Art. 389 et al.), regardless of the final decision. During this period, some chambers of the Supreme Court accepted that an appeal against the injunction decisions could be made independently of the final decision, while some chambers accepted that the injunction decisions could not be appealed independently of the final decision. Due to the different decisions made by the chambers of the Supreme Court, it has come to the fore to solve this problem by combining the case law.

In legal systems to which Turkish law is also subject, legal application or legal remedy, which is the upper concept, and legal remedy under it are different concepts. For example, in enforcement law, a complaint is a legal remedy against an injunction given without hearing the other party. However, they are not a legal remedy in the technical sense. Because, two factors are important in order for the judicial review to be in question in court decisions. The first is the procrastinating effect, the second is the transmitting effect. In other words, the finalization of the decision should be postponed by applying to a legal remedy and the review should be transferred to a higher body and examined by a higher judicial body. Appealing to the same court against the court’s decision or being able to apply to another court at the same level: For these reasons, it is not considered a legal remedy. Therefore, <objection> is not a legal remedy; It is not counted as a legal remedy in CCP. In this context, there is no doubt that appeal is a legal remedy. Currently, both legal remedies exist in our law, both legally and legally. However, the provisions regarding the remedy of appeal did not enter into force until the regional courts of appeal were established. Therefore, the usual remedy still in force and valid is <appeal> and its successor <decision correction>. In this context, to assign different meanings to legal remedy. In some provisions of the HMK, the use of the term <legal remedy> as a control remedy is not sufficient, and seeking the use of the terms <appeal> or <appeal> will result in ignoring the principles of procedural law regarding legal remedy.

The margin title of the eighth section of the current CCP (CCP art. 341-381), which is not in force, is “Law Ways”. Among these provisions, Part One is titled <Appeal> , Part Two <Second Appeal> Part Three <Return of Trial>. As it can be understood from this; The usual remedies include appeals and appeals (<decision rectification> as a proceeding to the appeal). Likewise, since these provisions of the CCP have not yet entered into force due to the temporary article 3 of the CCP, the margin heading of the Third Chapter, which includes the 427 and the following provisions of the Law No. 1086, is <Applications Against the Provisions>. In this respect, it is neither possible nor likely to systematically attribute a different meaning to the term “recourse” as only the way of appeal law.

First of all, it should be noted that in 2003, with the Law No. 4949 in the EBL, the opportunity to take legal action against the judgments of precautionary attachment was introduced, and in terms of precautionary measures, this opportunity was recognized with the adoption of the CCP No. 6100. First of all, when we look at the provisions on this subject in the HMK, the word <appeal> is generally used, even <legal remedy> (art. 391/3, 394/5) is used. The purpose of the new legislator here is to open legal remedies against precautionary measures and not to leave these decisions unsupervised. In fact, although the parallel regulation regarding precautionary seizures is called legal remedy in EBL art. 258/3 and appeal in EBL art. 265/5, only a more general expression and concept, legal remedy in CCP art.391/3 and 394/5. .

It is clear that the legislator, together with the CCP, aims to provide a legal remedy in terms of precautionary measures, which are among the temporary protections. There is no doubt that the legal remedy currently in force is an appeal until the regional courts of appeal take office. As a matter of fact, appeals are currently being filed against final decisions that are open to legal remedies. CCP art. 362/1-P, which is the reason why no appeal can be made in terms of precautionary measures, has not even been put into practice yet. First of all, it is possible to apply these provisions due to the temporary article 3, and in order to apply Article 362 of the CCP (ie, to be able to appeal since the new legal remedy system has entered into force), there must first be a decision made by the regional court of appeal. In Article 362 of the CCP, in the system applied together with the appeal, the appeal against the decisions of the regional court of appeal (appeal), which is only a higher legal remedy, was closed. However, legal remedy is open against temporary legal protection decisions as per the provisions of both articles 391/3 and 394/4 and article 341/1. It is unhesitating that CCP articles 391 and 394 are currently in force. Because, in terms of precautionary measures, in case of rejection of the measure request, Article 391/3 of the CPC, in case of acceptance of the measure request, (If a decision is made without hearing the opposing party after the objection, if the opposing party is given by hearing – if the opposing party has been heard, they have to make their objections at that time- without the need for an objection) HMK article 394/5 clearly stipulates that they can apply to <legal remedy>. While the will of the legislator is in this direction, closing the legal remedy against the injunctions will result in the fact that in a democratic law state based on the separation of powers, the courts representing the judiciary will ignore the legal regulation of another power, the legislature.

It is not possible in the Continental European legal system, which we are also in, to resort to case law against clear law provisions. For this reason, there is no essential element for combining case law. If there is a clear provision of the law, it is not possible to comment on the jurisprudence. However, despite the fact that some chambers of the Supreme Court have closed the legal remedy against precautionary measures despite these clear legal provisions, it is not seen that there is no other option other than the IBK way, even if the legal conditions are not met. The most important basis of the justification we put forward here is the current regulation in terms of provisional attachment. In terms of precautionary attachments, which is a temporary legal protection specific to money receivables (EBL art. 257 et al.), appeal has been applied as a legal remedy since 2003, together with the LAW No. 4949. And it should not be forgotten that although it has not entered into force since then, there is also a legal remedy of appeal. In this context, the following questions should be asked: Since 2003, the legal remedy has been open for precautionary attachment decisions and in fact, it is necessary to apply for appeal; keeping the appellate review open as the current legal remedy since the regional courts of appeal have not yet been activated; In terms of precautionary measures containing a similar regulation, would it not be a contradiction to keep the appeal control closed? What changes have occurred that would require different implementation? If a different result is to be accepted in terms of precautionary measures, how can it be explained that the appeal against the interim attachment decisions since 2003 with similar provisions? In the justification for Articles 391/3 and 394/5 of the Code of Civil Procedure numbered 6100, which provides the opportunity to take legal action against interim injunction decisions, it is clearly written that <the regulations in the specified paragraphs are parallel to the provisions in the provisional attachment>. Aside from all these, although the legislator has opened up the possibility of legal remedy without hesitation, if this path is closed with a decision to combine the jurisprudence, in the face of a clear legal provision that is not actually the subject of jurisprudence, it will mean that a legal remedy granted to those seeking rights is closed with jurisprudence. In such a case, in case of an individual application to the Constitutional Court or in the case of an application to the European Court of Human Rights, due to the closure of a road recognized by the law, the restriction of the right to a fair trial by the Court of Cassation, the restriction of the right to a fair trial by the IBK, the Constitutional Court or the ECtHR, it may result in the acceptance (violation) of the application, and perhaps for the first time, the EBL’s violation of the Constitution, the law and the right to a fair trial may come to the fore.

The esteemed majority claims that the reason for not appealing against the interim injunction is based on the provision of CCP art. 341/1 and especially CCP art. 362/7-f, which is not in force at the moment, and that it is regulated in these provisions whether only an appeal can be made against the temporary legal protection decisions. However, it should not be forgotten that both of these provisions are not in force at the moment and their enforcement is suspended. If it had been in force, of course, only appeal would have been made against these decisions, in this way the legal remedy would have been fulfilled, and then no appeal would have been possible. Concluding on the basis of non-enforceable provisions that an applicable remedy (appeal) is closed; It is not an acceptable method of interpretation. Likewise, although it is poorly written, temporary article 3 of the Civil Code regulates that the provisions of Law No. 1086 regarding legal remedies will be applied until the regional courts of appeal begin their activities. Again, it should not be forgotten that in accordance with Article 1 of the TCC, the law is applied in all matters that it refers to in its word and essence. It is against the rule of law and the purpose of the legislator to go on a path that eliminates both the word and the essence of the law by acting only on certain words. As a rule, the duties of the courts are determined by law, and a court that is not competent using the analogy method cannot be regarded as an official. However, the implementation of each law article requires more or less a legal interpretation activity. Moreover, in terms of preservation methods, when all interpretation methods such as literal, teleological interpretation, historical, systematic etc. are taken into account, as explained above, considering the wording, substance, systematic arrangement, rationale and historical process of the law, it does not lead to a conclusion that the legal remedy should be closed against the interim injunction decisions. If such a conclusion is reached, it would be to draw a conclusion by excluding all methods of interpretation. As a matter of fact, there is no clear view in the doctrine that until the courts of appeal take office, it is not possible to resort to legal remedies regardless of the final judgment against the interim injunctions. On the contrary, there are writers who openly discuss and acknowledge the need to keep the remedy open and to pursue an appeal. (SeeHakanPekcanıtez-Oğuz Atalay-Muhammet Özekes: Medeni Usul Hukuku,14.Baskı, Ankara 2013,1028-1033; Abdurrahim Karslı: Medeni Muhakeme Hukuku,3.Bası, İstanbul 2012, sh.758-759).

As a result, For the period up to the date of office of the Regional Courts of Justice; We think that the term <legal remedy> in Articles 391/3 and 394/5 of the Code of Civil Procedure should be understood to include the <appeal> remedy, so that an appeal against interim injunction decisions can be made within the framework specified in the law, and we do not agree with the contrary opinion. 21.02.2014

Vote Against

Some of the Civil Chambers of the Supreme Court (with a minority) state that the petitions should be rejected, with the view that an appeal cannot be made to the Court of Cassation against the court decisions given upon the rejection or acceptance of the interim injunction requests and Other chambers (mostly) state that legal action can be taken regarding interim injunction requests, therefore, these applications should be examined on appeal.

At this point, it has been requested to combine the case law in order to eliminate the case law difference and The report, dated January-2014, which was opened to the access of the president and members working in all legal departments by the rapporteur member, Dr. Sami Sezai Ural, which is understood to be a product of serious effort, reflects the views of all departments and includes sample decisions, has been written.

At the two meetings held on 07.02.2014 and 14.02.2014, opinions were expressed, but the quorum could not be achieved and finally, in the third session dated 21.02.2014, with 76 votes against 75 votes, the majority voted that the legal remedy regarding the interim injunction was closed and the case law in this direction was combined.

At the first and the last of these meetings, I verbally presented my views. As I have stated in these speeches, the appeal should be open. I state that I oppose the majority opinion formed to the contrary, for the reasons I have stated in the paragraphs below.

  1. First of all, the concept of legal remedy should be explained. Legal remedy is under the upper concept of legal application or legal remedy, and for a remedy to be a legal remedy, it is necessary and obligatory to have 2 important features.
  2. a) Deferral Effect,
  3. b) Transference Effect,

When the defferal effect is mentioned, it comes to mind that the finalization of the decision can be postponed when the application is made.

On the other hand, transference effect means that an authority other than the authority that made the decision makes an examination.

When viewed in the light of these two concepts, there are two ordinary legal remedies in line with the regulation in Articles 341-374 of the Law No. 6100. These two usual remedies are the appeal and the appeal. Apart from these two legal remedies, there is an extraordinary legal remedy that is not related to our subject, but there is no other ordinary remedy. As of today, there is no legal remedy other than appeal and appeal. In that case, it is obligatory to accept that the phrases referred to as legal remedy in the Law No. 6100 refer to one of the 2 ways. Considering this necessity, it is clear that the 361 and the following articles of the Code of Civil Procedure No. 6100 on the appeal law remedy are not in force, in other words, they have not entered into force yet, since these courts have not been put into operation despite the fact that these courts were established 9 years ago. Since the appeal legal remedy has not yet entered into force, there is only one remedy left according to the legal regulation, which is the appeal legal remedy. It should not be possible to reach the conclusion that no appeal can be made against the decisions regarding interim injunction based on the regulation that no appeal can be made about the <decisions on temporary legal protections> in subparagraph (f) of the first paragraph of Article 362 of the CCP No. 6100. Because if it is necessary to repeat these provisions regulating the legal remedy of appeal, they have not entered into force yet. The acceptance of the contrary means the enactment of a provision of law that has not yet entered into force against the express will of the legislator, in other words, the acceptance of the establishment of courts of appeal that were not established.

  1. As is known, the regulations regarding the interim injunction are included in the Articles 389 and the following of the Code of Civil Procedure numbered 6100, and the legal remedy to be resorted to in case of refusal of the interim injunction is indicated in the article 391/3 of the same Law. The article stipulates exactly the followings ”In case of rejection of the request for interim injunction, legal action may be taken. This application is first examined and finalized.” It is clear that the justification of the Law regarding this article was in fact clearing away all discussions. In the justification, it is stated that <in the third paragraph, in parallel with the interim attachment regulated in the Enforcement and Bankruptcy Law, legal action can be taken in case of rejection of the interim injunction decision. This paragraph is new in terms of Turkish law. The inability to take legal action against the interim injunctions led to the abuse of this institution, the different decisions being made by different courts on the same issues, and the lack of control of these decisions led to many inconveniences. Kanun yolunun açılmış olması sebebiyle, ihtiyati tedbir konusunda, daha sağlıklı kararların verilmesi ve yeknesaklığın sağlanması mümkün olacaktır. In case of an application to legal remedy, due to the nature of the interim injunction, the examination will be made first and the decision will be final.>

The phrase <this paragraph is new in terms of our law> emphasized in the justification is very important. What is new for the interim injunction institution, which is very old in terms of our law, is undoubtedly the opening of a legal remedy against the decisions regarding the interim injunction. Despite such a clear will of the legislator, it would not be appropriate to comment that <legal remedy is not open against decisions regarding interim injunctions>.

In the same way, a parallel arrangement has been made in the 5th paragraph of the 394th article of the CCP numbered 6100, entitled Objection to the Injunction Decision. Article stipulates exactly the folllowing: <Against the decision on the objection, legal action may be taken. This application is first examined and finalized. The fact that legal action has been taken does not stop the implementation of the measure.> There are explanations that will give us serious clues in the justification of this paragraph. In the justification, it is stated that <The fifth paragraph is new in our law and is a regulation parallel to the provisions in the provisional attachment. Upon the objection, the way to apply to the law against the decision of the court has been opened. The above-mentioned reasons for the legal remedy applied upon the refusal of the interim injunction are valid here as well…>

In the reasoning of this article, it is very important to emphasize that the provision of a legal remedy against the decision to be taken in case of objection to the interim injunction is new. In the period of CCP numbered 1086, in case of absence of interim injunction, it was possible to appeal, but no legal remedy was foreseen after the objection. Here, the issue that the legislator describes as new is the legal remedy envisaged against the decision to be made upon objection. As of today, the legal remedy is unique and is the way of appeal. Another interpretation would be to ignore the will of the legislator and result in the inability to examine the decisions regarding the interim injunction in a higher court despite the legislator’s best wishes.

The emphasis in the reasoning of both paragraphs that parallel arrangements are made with the provisional injunction is nothing more than emphasizing once again that the legal remedy is opened against the decisions regarding the provisional injunction, albeit delayed, just like in the case of the provisional attachment.

  1. In a matter specified in the Jurisprudence Consolidation Report, It is in line with the provision that the interim injunction has the nature of an interim decision, and in the face of the provision in Article 427 of the CCP numbered 1086 that appeals can only be made against final decisions, it is not possible to appeal against these decisions, or rather, only legal action can be taken together with the main provision. First of all, it should be noted that whether it is given within a lawsuit or without filing a lawsuit, interim injunction decisions are temporary legal protection decisions with their own characteristics, not final decisions and interim decisions. It is necessary to make the interpretation in accordance with these scientific views, since it is accepted that the decisions regarding precautionary measures are not interim decisions, which is close to the consensus in scientific circles, as decisions with their own characteristics. While an appeal is being made regarding the provisional attachment, which is completely similar in terms of temporary legal protection decisions, it would not be a correct interpretation to close the legal remedy for the interim injunction, which has the same quality as a temporary legal protection decision. Otherwise, it would be inexplicable for the legislator to explicitly propose an appeal against the precautionary attachment of the same nature. As it can be understood, the legislator has paved the way for temporary legal protection decisions, regardless of interim decision, final decision or decisions of its own nature. In other words, the legislator tacitly annuls this principle, which is accepted in the HUMK numbered 1086, with Law No. 4949 dated 17.07.2003, the HUMK numbered 1086 states that it is possible to appeal only against the final decisions by opening the way of appeal against the precautionary attachment decisions.
  2. By the way, the provisions of the legal remedy regarding the precautionary attachment, which is a type of temporary legal protection, should also be evaluated, as has been accurately determined in the Case-law Consolidation Report. Before the amendment made with the Law No. 4949 dated 17.7.2003, no appeal was foreseen for the precautionary seizure, but with this amendment, an appeal was opened against these decisions. It is accepted with full consensus in scientific circles that the way of appeal is open to these decisions, as well as in the practice of the Supreme Court. The sample decisions of the General Assembly of the Court of Cassation dated 05.02.2007, dated 2007/11-977, Decision 2007/935 and dated 15.10.2008, dated 2008/19-626 and numbered 2008/629, and in many Chamber decisions, a legal remedy has been accepted against the decisions regarding the provisional attachment. The application continues in the same way without any pause. In provisional attachment, which is a type of temporary legal protection measure and is a way specific to money receivables only, it is a clear contradiction that the Supreme Court of Appeals, which accepted this will of the legislator with full unanimity, did not envisage the same legal protection in the interim injunction, which is very similar, almost soul mate. It should not be overlooked that the provisions on appeal since 2003, although they did not come into force during this practice, are legal regulations.
  3. The legislator has made a conscious choice while arranging the legal remedies regarding interim injunction. Against the rejection of the interim injunction, Article 391/3 of the CCP and Article 394/5 of the CCP provide for a legal remedy against the decision to be made upon objection to the interim injunction, while the legal remedy against the decisions related to the interim injunction other than this was blocked. While arranging the objection in the 3rd paragraph of the 395th article, which regulates the Amendment or Removal of the Measure in return for Collateral, the 3rd and 4th paragraphs of the 394th article were referred to, but the 5th paragraph was not deliberately referred to. It is clearly stated in the justification of the law that no reference is made. In the justification, it is stated that <Since the decisions made on the guarantee are not related to the essence of the interim injunction, it was not accepted to apply to legal remedy against the decisions on this issue, therefore, no reference was made to the paragraph regarding the application to legal remedy in the objection.>

Likewise, while the objection was drawn up in the second paragraph of Article 396, which regulates the Amendment or Removal of the Measure due to Changes in the Situation and Conditions, reference was made to the 3rd and 4th paragraphs of the 394th article, but no conscious reference was made to the 5th paragraph. It is clearly stated in the justification of the law that no reference is made. In the justification, it is stated that <In this article, which regulates the amendment or removal of the interim injunction, similar provisions regarding the objection have been referred, taking into account the common aspects in the two articles mentioned above. However, no reference was made to the paragraph on the application of a legal remedy against the decisions rendered upon objection…… For this reason, the possibility of legal remedy was introduced for the decisions rendered upon the rejection of the interim injunction and the objection to the interim injunction.>

As it can be understood from here, the legislator has made the regulations regarding the legal remedies regarding the interim injunction consciously, carefully, in detail and clearly. In the last part of the justification, the legislator’s repetition of the refusal of the request for interim injunction and the possibility of legal remedy for the decisions rendered upon objection to the interim injunction should be considered as the manifestation of the determination in this matter.

  1. 6. It would be useful to evaluate the historical process of the HMK. numbered 6100, which includes the provisional injunctions that are subject to combining of the case-law. As followed by all relevant lawyers, while the provisions of the CCP regarding legal action were introduced both in the scientific committee and in the TGNA, it was assumed that courts of appeal would start operating before the law enters into force. Indeed, although the HMK was enacted on 12.01.2011, its effective date was determined as 01.10.2011, after it was understood that the Courts of Appeal could not be put into operation before the Law entered into force, as stated in the justification of the law, in order to ensure that there is no gap in practice, 30 articles of the Law No. 6217 of 31.03.2011 and 3 Temporary articles have been added to the HMK, which has not yet entered into force and a reference has been made to the provisions of CCP No. 1086 on appeal until the date of the start of duty of the Courts of Appeal. Even this factual fact clearly reveals that the legislator wants to open a legal remedy against the aforementioned decisions regarding interim injunction.
  2. In the introductory part of the Ankara – 2011 book titled <From the Code of Civil Procedure to the Code of Civil Procedure> published by the Ministry of Justice, the Preparation Phase of the Code of Civil Procedure and its Innovations, one of the important innovations is stated as the provision of a legal remedy against temporary legal protection decisions. The approval of the Ministry, in which the law was prepared, is that a legal remedy has been opened against the temporary legal protection decisions in which it is included in the interim injunction.
  3. When the 391/3.394/5 and Temporary 3 Articles of the HMK numbered 6100 are evaluated and interpreted together, it is imperative to say <legal remedy is open>. As it is known, Article 1 of the Turkish Civil Code contains the provision <The Law applies to all matters that it refers to in its word and substance>. In the old saying, the law should be applied in all matters that come into contact with the letter and spirit. It is not possible to reach a different conclusion in interpretations made using all interpretation methods in law. Considering the fact that When a literal interpretation is made, the fact that it is clearly called a legal remedy and that the legal remedy is the only remedy as of today, when a purposeful interpretation is made; as it has been explained from the beginning, the purpose of the legislator is to open the way for interim injunction, when historical interpretation is made; as a new regulation, a legal remedy has been introduced for the precautionary measure, which has been in our legal system since the beginning, different from the previous law, when a systematic interpretation is made: the fact that the CCP has regulated Legal Remedies as the Eighth Section and it has regulated ordinary remedies as an appeal between articles 341-361 and appeals between articles 361-374, and when these articles are evaluated together with articles 391 and 395 of the same law, it leads to the conclusion that the legal remedy is open in terms of decisions regarding interim injunction in all interpretation methods.
  4. As accurately stated in the Jurisprudence Consolidation Report; It can be said that the purpose of the appeal legal remedy is to ensure that the laws are applied with the same understanding (uniform) in all courts within the borders of the country, to contribute to the development of the law through case-law, and to protect the interests of the party applying to the legal remedy by ensuring that erroneous decisions are corrected. Indeed, one of the most fundamental aims of our Court of Cassation is to provide legal unity and stability. From the point of view of this purpose, it will be possible to make a uniform and correct application regarding the interim injunction in the whole country, with the case law of the Court of Cassation on a well-formed interim injunction. Otherwise, each court’s own practice will be accepted as correct and there may be different practices in all parts of the country. While making these comments, it should be kept in mind that interim injunction decisions are often more important and effective than the substantive decision. Considering that an interim injunction request that is rejected despite being in accordance with the law or an interim injunction decision that is given despite being unlawful is considered to be effective by being implemented immediately, even thinking about the harm it will cause in terms of respect for the law and the addressee, , by itself, it is considered that the interpretation should be made as open to the law.
  5. As stated in the Case-Law Consolidation Report, the majority of the Civil Chambers of the Supreme Court of Appeals objected to the court decisions rendered upon the rejection or acceptance of the interim injunction requests and tates that appeals can be made to the Supreme Court, as well as that the way of appeal is open in scientific jurisprudence.

At the same time, members of the CCP Scientific Committee numbered 6100, Prof. Dr. H. P., Prof. Dr. O. A. and Prof. Dr. M. Ö. jointly wrote the ode of Civil Procedure, and according to its provisions, On page 726, it is clearly emphasized that legal action can be taken against the decisions to be taken in case of objection to the interim injunction; On page 722 it is clearly emphasized that there is an appeal remedy in case of rejection of the interim injunction request and that this legal remedy is the remedy of appeal until the legal remedy of the appeal comes into effect, according to the temporary article added to the CPC No. 6100 with the Law No. 6217.

Again in the same way; Prof. Dr. A. K.  said on page 758 of his work titled Civil Proceedings Law (Alternatif Publishing House, 3rd Edition) <The Court of Cassation should be appealed against the decisions given on objection to the decision of rejection or acceptance of the interim injunction against the interim injunction decisions until the Regional Court of Justice takes office…> and clearly stated that the remedy is an appeal and that the review of the Supreme Court is obligatory.

Scientific opinions in this direction are in the majority.

Even further, even before the CCP No. 6100 entered into force, or more precisely, before the legal remedy for interim injunction was made, some scholars expressed their opinion very accurately that the legal remedy should be open against the decisions regarding the interim injunction, similar to the interim attachment, which is one of the temporary legal protection measures. (An article on the Comparison and Evaluation of Temporary Legal Protections-Assoc. Prof.  Dr. Muhammet Özekes  Research Assistant  Evrim Erişir)

  1. When the subject is evaluated within the scope of the Rule of Law Principle regulated in Article 2 of Turkish Constitution and the Freedom of Claims Principle regulated in Article 36, we encounter the Principle of Legal Protection. Contemporary legal systems do not consider it sufficient to provide legal protection to their citizens, and they take care to ensure that this legal protection is an effective one. The Principle of Effective Legal Protection, on the other hand, is accepted as making as many inspections as possible against the decisions made and that this inspection is carried out by a higher authority independent of the authority that made the decision. In all countries of the world, the trend is to give its citizens the right to as many legal applications as possible, and it is developing in the direction that an expanding interpretation should be made instead of a restrictive interpretation of legal remedies. I think that it is not right to close the legal remedy in a way that deprives the people of our country from this legal protection.

As a result;

Since I am of the opinion that in case of rejection of the request for interim injunction, which is one of the temporary legal protection methods regulated in Articles 389 and the following of the HMK No. 6100, and if this request is accepted, the legal remedy is open against the decisions to be taken upon the objection, and that the legal remedy should be understood as an appeal and an appeal examination should be made, I do not agree with the view of the majority to the contrary

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