It is possible to list the main differences between the appeal Decency and the appeal decency as follows:
First of all, there is a difference between the two ways of Deciphering the law in terms of the desired goal to achieve. The aim of the appeal is to ensure uniformity in the Turkish judiciary through the examination and decisions of the Court of Cassation, called the legal way. In other words, the Supreme Court aims to make similar decisions for similar events all over the country with its appellate review. Because making different decisions for similar events in a state governed by the rule of law is a situation that will damage legal credibility. From this point of view, the Supreme Court conducts a compliance audit. The purpose of the legal remedy of appeal is to ensure that a fair decision is made by the courts. For this reason, the Regional Courts of Justice both determine whether the decision made by conducting a material event examination is fair or not, and ensure that the decision is made correctly by conducting a compliance audit with the law. The purpose of the Regional Courts of Justice is not to ensure uniformity in the judiciary, the main purpose is to ensure that the material truth is revealed in order to make the fairest decision in accordance with the concrete event.
The Supreme Court can only conduct a compliance audit in the files that come before it for appeal review. From this point of view, the Supreme Court does not have the authority to control how the incident occurred, whether it is true or not. The Regional Courts of Justice, on the other hand, investigate the material reality by conducting a material event examination while conducting an appeal examination.
Considering the purpose of the legal remedy of appeal, the Regional Courts of Justice, after overturning the decisions made by the court of first instance, mostly decide to re-hear the case instead of sending it back to the court of first instance. As a result of this decision, the case will be re-heard in the relevant District Court. The Court of Cassation, on the other hand, sends the file to the court of first instance for the decisions it has overturned.
The rule of being able to bring evidence prevails for the files that are examined by the Regional Courts of Justice. The parties may bring new evidence to the file. However, since only the lawfulness audit is carried out during the appeal examination, it is not possible to bring evidence other than the evidence that has been found in the file.
In the examination of the appeal made in the Court of Cassation, the judge is bound by the requests contained in the appeal petition and has no authority to examine anything other than these. In the examination of the appeal, the court may also conduct an examination ex officio, except for the matters specified in the petition of appeal.
The holding of a hearing in the Supreme Court is exceptional and depends on the request. However, holding a hearing in the appeal examination is the rule, not the exception. Besides, the court is not bound by the request.
CONDUCTING A TRIAL EXAMINATION OF THE COURT OF APPEAL
The court of appeal may conduct an examination through the file or by opening a hearing. There is no need for a request to open a hearing. He can officially open a trial himself. In particular, it should be noted that in all other cases, it is decided to reconsider the case by trial (CMK 280/1-c), changing the nature of the crime, reducing and increasing the penalty, in case of trial examination, the court of appeal may decide in two ways:
The court of appeal may issue a rejection decision on the merits as a result of the trial examination.
The court of appeal may, as a result of the judicial review, abolish the judgment of the court of first instance and re-establish the judgment itself.
If the review is held in a hearing, the decision to overturn it can no longer be made. Because, the court of appeal has the authority to make a new decision by removing the provision instead of the decision to overturn it in the event of a judicial review.
It is also worth noting that; The court of appeal may perform all the procedures performed in the court of first instance, such as witness hearing, appeal, discovery, expert witness, during the trial examination. (CMK md. 281/2). In addition, if the nature of the crime changes, it may send the file to the court of first instance for settlement proceedings to be carried out.
HOW IS THE HEARING CONDUCTED IN THE APPEAL EXAMINATION?
When it is decided to open a hearing; the general provisions of the CMK regarding the preparation of the hearing, the hearing and the decision are applied (CMK 282. substance)
At the hearing, the “examination report” prepared by the member judge is explained first (article CMK 282/1-a)
Then the reasoned judgment of the court of first instance is explained (article 282/1-b of the CMK)
Witness statement minutes, discovery minutes, expert report, etc. the minutes and reports and the evidence collected during the preparation of the hearing are described (Article CMK 282/1-c)
The evidence and documents collected during the trial preparation phase of the regional court of justice, the minutes and reports on the discovery and expert statements, if any, are read (Article CMK 282/1-d)
Witnesses and experts who are deemed necessary to be heard at the regional court of justice hearing are called (Article CMK 282/1-d)
THE IMPORTANCE OF THE LEGAL WAY OF APPEAL
The importance of the appeal is great in terms of the establishment of the law and the protection of rights. The unlawful decisions of the courts of first instance are determined by the regional courts at the appeal stage and corrected, or a new decision can be made by abolishing it. Experience shows that cases that are concluded against in the courts of first instance can be turned in favor at the appeal stage. In this respect, the appeal also assumes an important function for the protection and restitution of rights. For this reason, it is of great importance that the appeal process is carried out with great sensitivity and care, and that professional legal support is obtained from lawyers who are experts in the subject.
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