The Appeal Period Falling During The Judicial Recess, The Time For Filing The Appeal Petition Supreme Court Decision
Supreme Court of Appeals, 15th Civil Chamber
2018/2122 E.
2018/1173 K.
Appeal filed by the plaintiffs 1-… 2-… against the defendant … regarding the case heard by the court of first instance, the Civil Court of First Instance, in its decision dated 29.06.2017 and numbered 2016/486-2017/204, resulting in the Regional Court of Appeal . The case file was reviewed, and the following decision was reached:
– DECISION –
The decision issued by the court of first instance was served on the defendant on July 17, 2017, and the appeal was filed on September 8, 2017. In cases and proceedings subject to judicial recess, if the expiration of the periods specified in this Law falls during the recess period, these periods shall be deemed extended by one week from the day the judicial recess ends, without the need for a separate decision. (HMK 104/1) If the period is determined as a week, month, or year, it ends at the close of business on the corresponding day of the last week, month, or year. (HMK 92/2) Since Article 104 of the HMK stipulates that the period shall be deemed extended by one week from the day following the end of the holiday, the one-week calculation must be made from August 31, the end of the judicial year, not from September 1, the start of the new judicial year. In this case, since the last day of the judicial holiday is Thursday, the last day of the extended period is also Thursday, September 7, 2018.
In doctrine, there is a view that the one-week period should be calculated from the day the holiday ends and that the last day of the extended period is September 7. (Prof. Dr. L. Şanal Görgün/Assoc. Prof. Dr. Levent Börü/Assoc. Prof. Dr. Barış Toraman/Dr. Mehmet Kodakoğlu-Civil Procedure Law 6th edition p. 215 Yetkin 2017). There are also decisions in the Supreme Court practice that accept September 7 as the last day of the period. (Example: 2nd Civil Chamber 2016/365 E. 2017/654 K. 3rd Civil Chamber 2015/15249 E 2015/16810 K, 4th Civil Chamber 2015/14837 E. 2017/5939 K, 15th Civil Chamber 2016/6210 E. 2016/5175 K, 11th Civil Chamber 2015/11749 E 2016/8966 K, 14th Civil Chamber 2016/5439 E 2016/9213 K, 19th Civil Chamber 2015/17494 E 2016 7567 K )
The appeal period against the first instance court decision is two weeks from the date of notification, according to Article 345 of the Code of Civil Procedure, and the appeal petition was filed after this period, following the judicial recess. Without a decision by the court of first instance on whether the appeal was filed within the time limit, the regional court of appeal’s civil chamber, to which the file was sent, ruled that the appeal was not filed within the time limit and dismissed it.
If the appeal is not filed within the time limit, the court that issued the decision must decide to reject the appeal pursuant to Article 346/1 of the Code of Civil Procedure. If the file was sent to the regional court of first instance without such a decision being made, the regional court of first instance may decide to reject the appeal without returning the file to its place of origin, in accordance with the decision to consolidate case law dated 01.06.1990, case number 1989/3, 1990/4. Although this decision to consolidate case law was issued based on the provisions of the Code of Civil Procedure (HUMK), similar provisions in the Code of Civil Procedure (HMK) also require the same interpretation and outcome, and therefore, it should also be applied in terms of appeal and cassation under the provisions of the HMK.
Considering the documents in the file, the evidence on which the decision is based, and the legally required reasons, all cassation appeals that are not found to be valid are rejected, and the ruling, which is in accordance with the procedure and the law, is CONFIRMED pursuant to Article 370 of the Code of Civil Procedure. Taking into account the provisions of Articles 302/5 and 373 of the Code of Civil Procedure, the file shall be sent to the court of first instance, and a copy of the decision shall be sent to the Civil Chamber of the Regional Court of Appeal. It was unanimously decided on March 27, 2018, to be final.