Procedural prerequisite (dava şartı)

Legal meaning

The Code of Civil Procedure (HMK) lists among the procedural prerequisites conditions such as subject-matter jurisdiction, exclusive territorial jurisdiction, capacity to be a party and procedural capacity, proper representation, the advance on costs, legal interest, the absence of a pending action on the same claim, and the absence of a prior final judgment. Other laws may also provide for additional procedural prerequisites such as mediation or a special application route, depending on the type of dispute.

The absence of a procedural prerequisite does not, as a rule, mean that the claim is unfounded under substantive law. The decision is procedural. However, the nature of the deficiency, whether a new action can be brought, and its effect on time limits are assessed separately under the specific provision.

The advance on costs, which is a procedural prerequisite, is distinguished from the evidence advance relating to the collection of a particular piece of evidence. Failure to pay the evidence advance is, as a rule, connected with the consequence of being deemed to have waived reliance on the evidence concerned; not every deficiency in an advance requires dismissal of the action on procedural grounds (HMK Articles 120, 324).

Core elements and practical criteria

• It is taken into account at every stage of the proceedings.
• It is examined by the court even if the parties do not raise it.
• A firm deadline is given for the completion of a deficiency that can be remedied.
• If the deficiency is not remedied, the court does not proceed to examine the merits.

Practical importance

Filing an action in the wrong court, or without completing a mandatory preliminary process, may cause loss of time and expense and, in some cases, jeopardize rights that are subject to time limits. Before an action is filed, all procedural prerequisites specific to the dispute should be checked one by one.

Commonly confused concepts

• A preliminary objection (ilk itiraz) is a procedural defense that must be raised by the party within the time limit; a procedural prerequisite, by contrast, is as a rule examined by the court on its own motion.
• Dismissal on the merits means that the claim is not accepted under substantive law; where a procedural prerequisite is absent, a decision of dismissal on procedural grounds is given.

Application example

In a dispute subject to mediation as a condition precedent to litigation, there is a difference between the case where the process was completed but the final record of failure to reach agreement was not attached to the petition and the case where the action was filed without applying to a mediator at all. In the first case, under Article 18/A of Law No. 6325 on Mediation in Civil Disputes, a one-week firm deadline and a warning of dismissal are given for submission of the record. If it is found that the action was filed without applying to a mediator, the action is dismissed on procedural grounds under the same provision.

Frequently asked questions

Can a deficiency in a procedural prerequisite be completed later?

It depends on whether the deficiency can be remedied. The court gives a firm deadline for the completion of a remediable deficiency; if the deficiency cannot be remedied or is not remedied within the given period, the action is dismissed on procedural grounds. Provisions in special laws are reserved.

Are procedural prerequisites examined only at the beginning of the action?

No. The court examines procedural prerequisites at every stage of the proceedings; the parties may also raise a deficiency at any stage.