The institution of reversal in the interest of the law (kanun yararına bozma) applications against decisions of criminal courts deemed contrary to law are governed by ‘Article 309 of the Code of Criminal Procedure’, while applications against decisions of civil courts deemed contrary to law are governed by Article 363 of the Code of Civil Procedure. In this article, we examine the relevant statutory provisions, the place of reversal in the interest of the law among legal remedies, and the application procedure.
Currency note
This article was prepared on the basis of the legislation and practice in force on the date of publication. The provisions governing reversal in the interest of the law and their application may have changed since then. You are advised to consult a lawyer for the current position.
Reversal in the interest of the law is regulated in the Code of Criminal Procedure for criminal proceedings and in the Code of Civil Procedure for civil proceedings:
“(1) Where the Ministry of Justice learns that a decision or judgment rendered by a judge or court, which has become final without undergoing appeal or appeal on points of law review, is contrary to law, it shall notify the Chief Public Prosecutor’s Office of the Court of Cassation in writing, stating the legal grounds, of its request that the decision or judgment be reversed by the Court of Cassation.
(2) The Chief Public Prosecutor of the Court of Cassation shall submit a written request, setting out these reasons verbatim and requesting the reversal of the decision or judgment, to the relevant criminal chamber of the Court of Cassation.
(3) If the criminal chamber of the Court of Cassation finds the grounds put forward to be well-founded, it shall reverse the decision or judgment in the interest of the law.”
Code of Criminal Procedure, Article 309
“(1) (Amended: 20/7/2017-7035/33 art.) An appeal on points of law in the interest of the law may be lodged by the Ministry of Justice or the Chief Public Prosecutor’s Office of the Court of Cassation, on the ground that they are contrary to the law in force, against decisions rendered with finality by first instance courts and their decisions that have become final without undergoing appeal review, and against decisions rendered with finality by the civil chambers of regional courts of appeal acting as first instance courts and decisions rendered by them in that capacity that have become final without undergoing appeal on points of law review.
(2) If the Court of Cassation finds the request for appeal on points of law to be well-founded, the decision shall be reversed in the interest of the law. This reversal does not remove the legal consequences of the decision.
(3) A copy of the reversal decision shall be sent to the Ministry of Justice and shall be published by the Ministry in the Official Gazette.”
Code of Civil Procedure, Article 363
Criminal judgments · CCP Art. 309
Where the Ministry of Justice learns that a decision or judgment that became final without undergoing appellate or cassation review is contrary to law, it notifies the request for reversal in writing to the Chief Public Prosecutor’s Office at the Court of Cassation.
Civil judgments · CCP Art. 363
The Ministry of Justice or the Chief Public Prosecutor’s Office at the Court of Cassation applies for appeal in the interest of the law; reversal does not remove the legal consequences of the decision.
First of all, it should be noted that legal remedies are divided into two: ordinary legal remedies and extraordinary legal remedies. The ordinary legal remedies are appeal (istinaf) and appeal on points of law (temyiz), while the extraordinary legal remedies are reversal in the interest of the law and retrial. A legal remedy sought against decisions and judgments that have not become final is called "ordinary", whereas a legal remedy sought against final decisions and judgments is called an "extraordinary" legal remedy.
Ordinary and extraordinary legal remedies
| Ordinary legal remedies | Extraordinary legal remedies | |
|---|---|---|
| Types | Appeal and cassation | Reversal in the interest of the law and retrial |
| Decision challenged | Non-final decisions and judgments | Final decisions and judgments |
Reversal in the interest of the law falls under the heading of extraordinary legal remedies. As its name suggests, reversal in the interest of the law, being an extraordinary legal remedy, is a route available against a decision that has become final without undergoing appeal or cassation review. The remedy of reversal in the interest of the law, which consists of a request for the reversal of unlawful decisions and judgments, is exercised by the Ministry of Justice applying to the Chief Public Prosecutor's Office of the Court of Cassation.
The unlawfulness in question may be a breach of substantive law or may consist merely of a procedural error. Reversal in the interest of the law may be sought for both kinds of unlawfulness. As we have noted, reversal in the interest of the law is an extraordinary legal remedy against final decisions.
Limitation
During the proceedings conducted after a request for reversal in the interest of the law has been granted, the provisions on the limitation period for prosecution cannot be applied. However, whether the conditions of the limitation period for enforcement of the sentence have been met may be assessed at this stage.
The power to apply for reversal in the interest of the law belongs to the Ministry of Justice. The public prosecutor, the judge, the defendant, the complainant or the intervening party, either themselves or through their lawyers, may request the Ministry of Justice to use the remedy of reversal in the interest of the law against a decision or judgment given during the proceedings.
For criminal decisions, the process under Art. 309 of the Code of Criminal Procedure consists of the following stages:
In order for such an application to be considered significant and for the Ministry of Justice to take action, the persons concerned mentioned earlier, that is, the applicants, must set out their requests together with their legal basis and, at the same time, draw attention to the unlawfulness involved. At this stage, it will be beneficial to obtain legal assistance rather than applying without sufficient knowledge, in order to avoid any loss of rights.
Related page: Serious Crimes Lawyer in Ankara (Assize Court) — investigation, pre-trial detention, assize court trials and legal remedies
Related legislation: Code of Criminal Procedure No. 5271 (mevzuat.gov.tr)
Reversal in the interest of the law is an extraordinary legal remedy used to remedy unlawfulness in decisions and judgments that have become final without undergoing appellate or cassation review. It is regulated in Art. 309 of the CMK for criminal proceedings and in Art. 363 of the HMK for civil proceedings.
Appeal (istinaf) and appeal on points of law (temyiz), which are used against decisions and judgments that are not yet final, are ordinary legal remedies. Reversal in the interest of the law and retrial, which are used against final decisions and judgments, are extraordinary legal remedies.
CMK m. 309’a göre hukuka aykırılığı öğrenen Adalet Bakanlığı, bozma istemini yasal nedenleriyle Yargıtay Cumhuriyet Başsavcılığına yazılı olarak bildirir. Başsavcı bu nedenleri aynen yazarak istemi Yargıtayın ilgili ceza dairesine verir; daire nedenleri yerinde görürse karar veya hükmü kanun yararına bozar.
According to the article, the public prosecutor, the judge, the defendant, the complainant or the intervening party in the proceedings may, personally or through their lawyers, request the Ministry of Justice to use this remedy. The request must be explained with its legal grounds and by showing the unlawfulness.
HMK m. 363’e göre Adalet Bakanlığı veya Yargıtay Cumhuriyet Başsavcılığının başvurusu Yargıtayca yerinde görülürse karar kanun yararına bozulur. Bu bozma kararın hukuki sonuçlarını ortadan kaldırmaz; bozma kararının bir örneği Bakanlıkça Resmî Gazetede yayımlanır.
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