Should the Lawyer Follow the Judge’s Misdirection?

Judges represent the state while exercising their judicial power on behalf of the nation. In this respect, it is the principle that the judge, who is expected to be independent first to the state and then to the parties, should be bound only by the rules of law. A thinker has said in this direction, “Judges are both masters and slaves of the law”. A lawyer, on the other hand, is self-employed, but also serves in the public sector as he/she participates in the distribution of justice. In this respect, the lawyer, as a party representative, protects the rights and interests of his client, while helping the law to be enforced as an organ of the judiciary. In the light of all these duties and obligations, it will be discussed whether it is acceptable for the lawyer to continue the judge's mistake after the judge's wrongful guidance in line with a recent district court decision.

In the case that is the subject of this article, the defendant, against whom a preliminary injunction was issued in his absence, filed an appeal against the preliminary injunction decision given within the scope of the patent infringement action, which was heardby the court of first instance for the removal of the preliminary injunction.

However, pursuant to article 394 of Code of Civil Procedure (“CCP”), if the party against whom a preliminary injunction is granted is not present during the issuance of the preliminary injunction, an objection can be made before the court that issued the decision regarding the conditions of the preliminary injunction, the jurisdiction of the court and the security deposit, within one week from the notification of the minutes regarding the implementation of the injunction. Therefore, in the face of this clear procedural provision, it is obvious that the defendant's request for appeal, against the preliminary injunction decision given in the absence of the defendant, is procedurally wrong. In addition, in accordance with the article 341/1 of the CCP, an appeal can be made against the decisions made upon an objection made against the preliminary injunction decisions given in the absence of the other party.

The defendant, on the other hand, based the reason for its appeal on the court’s interim decision which partially accepted the request for preliminary injunction, ruling that the interim decision granting the preliminary injunction could be appealed before the district court, despite all these clear procedural provisions. Thereupon, within the scope of the petition submitted by us to the district court, it was stated that the request for appeal was procedurally faulty, and it was not possible to apply directly to the district court against the preliminary injunction decision given in absentia.

Subsequently, with its decision, the district court rejected the appeal application without examining it, stating that it was necessary to object to the interim decision before the court of first instance in due process, and that the decisions to be made on this objection would be appealed, and then sent the appeal petition to the court of first instance to be considered as an objection petition. In our opinion, this decision was completely correct. Because at this point, it is necessary to make a distinction between following the case by the principal and following the case via the lawyer, and the lawyer's involvement in the judicial body and in this context, the duty of ensuring the rule of law becomes more of an issue.

As it is known, unlike Germany, there is no obligation to hire a lawyer in order to file a lawsuit or follow a lawsuit in Turkey and Switzerland. The function of hiring a lawyer to follow the case is to provide effective legal protection and justice. In this respect, the lawyer, as a professional who has undergone the same legal training as the judge, should be a pioneer in the proper application of the rules of law. Therefore; It should be borne in mind that both the lawyer and the judge are bound by the law and they perform public duties in terms of the implementation of the law.

Therefore, although it is acceptable for the judge's misdirection to be followed by the principal, it will not be acceptable for this misdirection to be followed by the lawyer in cases followed by a lawyer. Otherwise, it will not matter if the rule of law is superior, and with a mistake of the judge, it will be possible to deviate from the procedural law as if a new procedural provision has been made.

Finally, it should be noted that the deadlines given in the law and the means of objection/appeal indicated are determined by the legislator within the framework of a purpose so that the decisions are not lengthened out. The judge who is aware of this rule of law or the lawyer who has the necessary legal knowledge should act in accordance with this will, even if the judge makes a momentary mistake. Therefore, as in the case at hand, after the decision of preliminary injunction was issued, it would be unfair for the party, in favor of which the preliminary injunction is granted, who took the related commercial moves relying on the fact that no objection was made to the relevant authorities in due time, faces an objection months later due to the unlawful mistake of the judge and the lawyer's use of this error. Indeed, it is a requirement of the principle of trust in the law that the party in favor of which a preliminary injunction decision is made should make its commercial plans accordingly, based on the fact that the relevant authorities were not applied on time. Accepting otherwise will cause that party to endure unlawful and unfair results.

First published by IAM - International Report in Sep 22, 2021.

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