Lawsuit (dava)

Scope

The Code of Civil Procedure (HMK) does not define a lawsuit; it regulates its types, the moment it is filed and its prerequisites. In an action for performance, the defendant is sought to be ordered to give, do or refrain from doing something (HMK Art. 105); in a declaratory action, a determination of whether a right or legal relationship exists (Art. 106); and in a formative action, the creation of a new legal situation or the alteration or removal of an existing one (Art. 108). A lawsuit is deemed filed on the date the statement of claim is registered (Art. 118). The judge cannot examine a case without a request and is bound by the relief requested (Arts. 24, 26). Procedural prerequisites such as the availability of the judicial route, subject-matter jurisdiction, capacity to be a party and capacity to sue, advance on costs and legal interest are examined ex officio at every stage (Arts. 114–115).

Practical significance

The date a lawsuit is filed is decisive for the interruption of the statute of limitations (Turkish Code of Obligations (TBK) Art. 154) and for preserving the preclusive period. In certain disputes listed by law, for example most employee and employer claims arising from an employment contract, some commercial lawsuits whose subject is a sum of money, many disputes heard by consumer courts (excluding those within the competence of the consumer arbitration committee (tüketici hakem heyeti)) and many disputes arising from lease relationships, prior recourse to a mediator before filing is a procedural prerequisite (mediation as a condition precedent to litigation); the scope and exceptions are determined in the relevant statutes and may change. If a procedural prerequisite is missing, the lawsuit is dismissed on procedural grounds; if the defect is curable, the court grants a firm deadline for it (HMK Art. 115). If there is a valid arbitration agreement between the parties, the other party may raise the arbitration plea (Art. 413).

Concepts often confused

A lawsuit is confused with enforcement proceedings: enforcement proceedings (icra takibi) are an application to the enforcement office for the collection of a claim through the enforcement power of the state and, in enforcement without a judgment, proceed by a payment order; if an objection is raised, the dispute is frequently carried to court. A statement of claim, on the other hand, is the document that initiates the lawsuit, not the lawsuit itself. In mediation there is no authority that decides; in arbitration, an arbitrator resolves the dispute instead of a state court. In criminal procedure a public prosecution is initiated upon acceptance of the indictment (Code of Criminal Procedure (CMK) Arts. 170, 175); in administrative justice there are separate types such as annulment actions and full remedy actions (Administrative Procedure Law No. 2577 (İYUK) Art. 2).