A Decision Regarding Fees, Costs And Attorney’s Fees Should Be Made Together With The Decision Regarding Jurisdictional Dismissal
T.C. JUDICIARY 4TH CIVIL CHAMBER E. 2016/11329, K. 2017/1197, T. 28.2.2017
DEMAND FOR FINANCIAL INDEMNIFICATION FOR UNFAIR ACTION ( Judgment will be rendered in terms of fees, costs and attorney’s fees together with the decision to be rendered on the “Jurisdictional Dismissal”)
JURISDICTION DECISION WITH RESPECT TO JURISDICTION ( The Court Will Make a Decision Regarding Fees, Costs and Attorney Fees Together with the Decision – Request for Material Damages Due to Wrongful Action )
JUDICIAL EXPENSES IN THE CASE NOT FINALIZED IN ESSENTIAL ( Request for Material Damages Due to Wrongful Action – The Court Will Make a Decision Regarding Fees, Costs and Attorney Fees Together with the Decision Regarding “Dismissal in terms of Jurisdiction”)
JURISDICTION EXPENSES (The Court should make a judgment regarding the fees, costs and attorney fees together with the decision to be rendered regarding the “Jurisdictional Dismissal” – Request for Material Damages Due to Wrongful Action)
6100/m.331/2
Attorney Minimum Fee Tariff/m.7/1
SUMMARY : The lawsuit is related to the claim for pecuniary compensation for wrongful act. If the plaintiff has filed his/her lawsuit in a jurisdiction without jurisdiction according to the legal regulations in force, a judgment should be made in terms of fees, costs and attorney fees together with the decision to be made regarding “lack of jurisdiction in terms of jurisdiction”.
LAWSUIT : At the end of the trial held by the court upon the request for pecuniary damages due to tort by the plaintiff … General Directorate attorney, against the defendant … on 21/12/2009, at the end of the trial held by the court; the Supreme Court of Appeals examination of the decision dated 02/06/2016 regarding the dismissal of the case due to jurisdictional reasons was requested by the defendant’s attorney within the time period, and after the acceptance of the appeal petition was decided, the report prepared by the examining judge and the papers in the file were examined and discussed as required:
DECISION : The lawsuit is related to the claim for pecuniary compensation due to tortious action. The court decided to dismiss the lawsuit due to jurisdictional reasons; the judgment was appealed by the defendant’s attorney.
The plaintiff’s attorney stated that the facilities belonging to the plaintiff administration were damaged by construction machinery during the road construction works carried out by the defendant and that the 250-meter concrete pole cage enclosure of the institution, surrounded by barbed wire, became unusable and requested compensation for the damages incurred.
The defendant defended that the lawsuit should be rejected.
As a result of the trial conducted in accordance with the reversal order, the court decided to dismiss the case in terms of jurisdiction, and although the defendant was represented by an attorney, no attorney fee was awarded in favor of the defendant.
Article 331/2 of the Code of Civil Procedure No. 6100, which entered into force on 01/10/2011; “In the event that the case is continued in another court after the decision of lack of jurisdiction, lack of jurisdiction or referral, that court shall rule on the trial expenses. If the case is not continued in another court after the decision of lack of jurisdiction, lack of jurisdiction or referral, upon request, the court where the case was filed shall determine this situation through the file and condemn the plaintiff to pay the trial expenses.”
The above-mentioned legal regulation is regulated in the Law No. 6100 and should undoubtedly be applied in the cases to be heard in the judicial jurisdiction and in the decisions of non-jurisdiction between the judicial courts. In the explained article, the situation of “continuing the case in another court” is regulated. However, in decisions of lack of jurisdiction in terms of jurisdiction, it is not a question of continuing the case in another court, but a lawsuit reopened in a different jurisdiction with its own procedural rules, and this lawsuit is not a continuation of the lawsuit in the judicial jurisdiction.
For this reason, if the plaintiff has filed his/her lawsuit in a jurisdiction that has no jurisdiction according to the legal regulations in force, a judgment should be made in terms of fees, costs and attorney fees together with the decision to be made regarding “lack of jurisdiction in terms of jurisdiction”.
Although it is erroneous that this issue has not been taken into consideration in terms of the attorney fee to be awarded in favor of the defendant, since the correction of the mistake does not require a retrial; in Article 7/1 of the Attorney Minimum Fee Tariff in force on the date of the decision; “In the event that it is decided to dismiss the lawsuit petition, transfer the case or deem the lawsuit as not filed due to lack of jurisdiction or lack of jurisdiction until the preliminary examination report is signed, half of the fee written in the Tariff shall be ruled, and in the event that it is decided after the preliminary examination report is signed, the entire fee shall be ruled. However, the attorney’s fee to be awarded according to the court in which the case is heard cannot exceed the amounts written in the second part of the second part.” It has been decided to approve the decision by correcting it in accordance with Articles 438/7 of the abrogated Code of Civil Procedure No. 1086, which continues to be applied in accordance with the provisional Article 3 of the Law No. 6100.
CONCLUSION : It was unanimously decided on 28.02.2017 to add the sentence “Since the defendant was represented by an attorney, the attorney fee of 1.800,00 TL in accordance with the Attorney Minimum Fee Tariff in force on the date of the decision shall be taken from the plaintiff and given to the defendant” to be added after the 2nd paragraph of the provision paragraph of the decision subject to appeal, and the judgment shall be CONFIRMED as amended in this way and the prepaid fee shall be refunded upon request.