When we take a closer look at the history of the Turkish judiciary system, the Court of Cassation has been an institution existing under different names and with different powers since 1868, and it serves as the supreme court of our judicial justice system. The Court of Cassation has taken the current position and duties together with the establishment of regional courts of justice, and the adoption of the triple justice system.
Prior to the establishment of regional courts of appeal, even though the Court of Cassation used its judicial power as a review of expediency by carrying out an examination as to the merits of case, as required by the binary justice system, the primary duty assigned to the Court of Cassation in this new period following the year 2016, when the regional courts of appeal began to operate, is to act as a court of precedents.
Even though the regional courts of appeal started to operate in 2016, the leading motive underlying the enactment of Law No. 5235 on Establishment, Competences and Duties of the First Instance Courts and the Regional Courts of Appeal in 2004 was actually a transition from a binary to a triple justice system, and serves the purpose of ensuring that the Court of Cassation acts as a court of precedents. This purpose is worded as follows, “Decisions taken by the first instance courts shall be examined by regional courts of appeal with respect to substantiation and compliance with laws, and by the Court of Cassation solely with respect to compliance with laws. The Court of Cassation should retain its function as a court of precedents.”
However, recently, particularly in various reversing decisions rendered by the 11th Civil Chamber of the Court of Cassation in disputes related to trademark law, we have seen that the Chamber acted like inferior courts, and examined cases and passed judgments in a manner at odds with its position as a supreme court or a court of precedents.
Graphic 1 Number of Files Before the Civil Courts of Intellectual and Industrial Rights, TURKEY, 2012-2019
Source: Judicial Statistics 2019, Republic of Turkey Ministry of Justice
Within this context, we have observed in the last couple of years that the Chamber has carried out its own assessment in numerous cases by ignoring the findings in the expert reports, which are obtained from expert panels on matters related to the merits of the case, such as the similarity of trademarks, similarity of goods/services, relevant consumer group, well-known status of trademarks, unfairly taking advantage from a well-known status of an earlier trademark and damaging distinctive character and reputation of the same, registration of a trademark in bad faith, capability of trademarks for registration; as well as the initial assessments made by the first instance courts and regional courts of appeal.
However, as required by the relevant legislative regulations and intended purpose of the system, the appellate examination to be performed by the Court of Cassation shall be limited to a legality examination and, in our opinion, technical aspects, such as the assessment of whether the involving parties’ trademarks are similar, the trademark subject to a case is well-known, and whether the goods and services covered by the subject matter trademarks are similar, shall legally fall outside the scope of the authority granted to the Court of Cassation and examination of legality.
According to the current triple justice system, since the legal resources required for passing a judgment at the appeal stage are provided to regional courts of appeal, while regional courts of appeal may conduct an examination on the merits of the case and pass judgment, the appeal stage (before the Court of Cassation) is devoid of such capability. Indeed, as widely accepted in the doctrine, we agree with the general opinion that the decisions rendered by inferior courts with regard to a dispute shall be examined at the appeal stage, solely in respect of its compliance with the law, and a reversing decision may not be passed by substituting inferior courts, performing an examination on their behalf, and ruling out the discretionary power vested in specialized courts.
We consider that performance of such examination by the Court of Cassation would mean the annulment or disabling of the power and duty assigned to regional courts of appeal, which have the jurisdiction to examine first instance courts’ decisions in terms of expediency and legitimacy, and to redecide after through re-examination of material facts and evidence upon a request of appeal. However, another reason for, and result of the establishment of regional courts of appeal, and introduction of the right to appeal before the regional courts of appeal as a legal remedy, is to ensure that the Court of Cassation puts the material law examination aside to examine the legitimacy of decisions and to establish stare decisis, as worded in the preamble of the law, as follows, “It is seen that establishment of regional courts of appeal has become a necessity to perform the duty of appellate examination to preserve the Court of Cassation’s position as a court of precedents, as well as to ensure safe and quick conclusion of proceedings.”
Accordingly, it is revealed by the reasons for transition into the triple justice system, provisions of the law, and some decisions made by the Court of Cassation itself that the Court of Cassation is not supposed to perform examinations with respect to the merits of a case, and it is expected solely to perform an examination of legitimacy.
If the legitimacy examination will be interpreted also to mean examination on the merits, in other words, if the Court of Cassation will focus on the facts within the context of examination of legitimacy, and the Court of Cassation is of the opinion that an erroneous decision has been passed with respect to the merits of the case, then it is our opinion that the Court of Cassation should render a reversal decision that would reveal, to a certain extent, which rule of law has been improperly implemented, how it has been implemented by inferior courts, and how such rule of law should be implemented, without ruling out the discretionary power granted to judges. Otherwise, in cases where the Court of Cassation performs an examination as to the merits of the case, the judge shall be devoid of any discretionary power during the retrial to be conducted by the inferior court upon a reversing decision of the Court of Cassation.
On the other hand, we believe that if our justice system required the Court of Cassation to make an examination with respect to the merits of each case and to render a decision, accordingly, it would be more appropriate to establish a system where the Court of Cassation directly annuls the inferior courts’ decisions and passes judgment, where the Court of Cassation does not need to remit a case to inferior courts for trial. Nevertheless, according to our current system, a case is remitted to inferior courts after a reversing decision, and the referred to inferior court conducts a retrial within the framework of the reversing decision - if it finds the reversing decision to be justified.
In cases where the Court of Cassation makes an examination with respect to the merits of the case, in a manner exceeding the scope of a legitimacy examination, the long years of examination and assessment made by the judges of inferior courts, who have examined the involving parties’ petitions, collected evidence, heard the parties, conducted the investigations, made the necessary technical and legal evaluation, and reached a conclusion based on their area of specialization, would become vain and empty and, also, the workload on the Court of Cassation would not be reduced as intended by the transition into the triple justice system but, to the contrary, it would increase, and the duties of the Court of Cassation as a court of precedents would be impeded once again.
Graphic 2 Number of the Files Before the Civil Chambers and General Chamber of the Court of Cassation, TURKEY, 2012-2019
Source: Judicial Statistics 2019, Republic of Turkey Ministry of Justice