ABSTRACT
In this study, the difference between the “prejudicial question” stipulated under Article 165 of Code of Civil Procedure numbered 6100 (“CCP”) 1 and preliminary issues, as well as the practice of making the criminal case verdicts prejudicial question in a civil law case, have been analyzed. In terms of the practice of this issue, the exercise of prejudicial question has been discussed pursuant to the discretion of court as well as the Court of Cassation practice.
I. INTRODUCTION
The concept of prejudicial question has been literally stipulated under Article 165 of CCP for the first time. Although the circumstances which arise during the course of trial and prevent the adjudication properly as “casus” in abolished Code of Civil Code numbered 1086 (“Law No. 1086”)2 were mentioned, no legislation regarding the prejudicial question has been stipulated in CCP. Although the concept of prejudicial question was not stipulated in Law No. 1086, it has been accepted by the doctrine and the Court of Cassation and exercised accordingly. During this period, various terms were used synonymously with the prejudicial question by the doctrine and the Court of Cassation. While it had caused use of various and contradicting terms, with CCP, stipulation of prejudicial question created a consensus on the terminology.The prejudicial question has been considered a legal issue which should be evaluated and resolved in terms of incident qualification. If resolution of a case depends on the result of another case, in other words, if it is required to await the decision to be rendered by another court in order to solve the case at hand, then the mentioned circumstance creates a prejudicial question. In the event that the court of first instance determines mentioned circumstance; the court might decide to suspend the trial until the end of the other court’s trial. This study primarily explains the matter of prejudicial question in detail and then focuses on the problem whether the criminal case verdicts should be made as prejudicial question for civil law cases.
II. THE CONCEPT OF PREJUDICIAL QUESTION
A. In General
Generally, prejudicial question is explained in comparison with preliminary issue. In fact, prejudicial question occurs when an issue which can be examined as a preliminary issue becomes another case’s subject. In a broad sense, term of preliminary issue covers the term of prejudicial question. 3 Even though there is a connection, prejudicial question arises when the disputes shall be resolved in separate courts and the outcome of one affects another. It is convenient to say for prejudicial question that a suspension of a dispute’s solution of a court which prevents the resolution until the connected dispute is solved by another court or authority. In the Article 165 of CCP, the prejudicial question stipulated as: “A trial may be suspended until the end of another trial or decision of administrative authority in the event of that decision of the trial depends on the other court decision or decision of administrative authority partially or wholly.” Prejudicial question may be facultative or essential in different situations. As a principle, a court is not obliged to await another court’s decision as prejudicial question except in some circumstances forced by law herein below. Therefore, it could be declared that a civil court judge is free to decide on prejudicial question except for circumstances of essential prejudicial question.
B. Circumstances of Essential Prejudicial Question
Obligation of suspension as prejudicial question arises merely in circumstances stipulated in law, otherwise the judge shall decide on suspension to make another court’s decision as prejudicial question by analyzing the case at hand. The judge shall examine whether the conditions of prejudicial question are occurred. If so, the judge may decide on the occurrence of prejudicial question. Exceptions of this principle are circumstance of essential prejudicial question is explained herein below.
1. Constitutional Court Decisions as Prejudicial Question
In a trial, in case that the applicable legislation is alleged to be unconstitutional and the competent court decides the allegation is serious, the court may take the trial to the Constitutional Court with the unconstitutionality allegations. In this case, decision of the Constitutional Court shall be regarded as a prejudicial question by the competent court as per Article 152 of Turkish Constitution. The competent court shall decide on the merits of the case at hand if the Constitutional Court does not render a decision in five months period. The mentioned circumstance arises as one of the essential prejudicial question situations legislated by law.
2. Court of Jurisdictional Dispute Decisions as Prejudicial Question
Both civil court and administrative court shall not continue to trial until the Court of Jurisdictional Dispute renders its final verdict regarding the competence which is a matter of public order as per mentioned in doctrine as, “In case that judicial remedy dispute is raised between civil court and administrative court, the civil court’s trail shall be suspended as prejudicial question until decision of the Court of Jurisdictional Dispute regarding the matter of competent; this means decision of the Court of Jurisdictional Dispute is suspended as prejudicial question. The court continues to the trail in the event of that the Court of Jurisdictional Dispute does not decide the final verdict within six months.
3. Suspension by Enforcement Court as Prejudicial Question
In the Article 68 of Bankruptcy and Enforcement Law numbered 2004, the time that should be granted by enforcement court to the debtor in order to initiate a lawsuit for the determination of heritage in debt is mentioned. In the event of that the debtor files a lawsuit in order to determine the heritage in debt, the court which is authorized for annulment of objection must suspend the lawsuit due to a prejudicial question In other words, the court grants time to one of the parties to initiate a lawsuit before a competent court and suspends the case at hand due to a prejudicial question.
4. Arbitrators Decisions as Prejudicial Question
In an arbitration case, the arbitrator grants time to one of the parties regarding some matters demanded by the party in order to file a determination case before the court. The arbitrator must suspend the case due to a prejudicial question, in the case that the party files a determination case in due time. The time can be granted by the arbitrator for; claim of forgery which should be raised before civil courts of criminal courts and the objection regarding the competence of arbitrator. If the aforementioned claims are not raised by a lawsuit, the arbitrator must grant time to file a lawsuit and await the result of the lawsuit as a prejudicial question.
C. Non-Obligatory Prejudicial Question
In principle, the power of discretion to await the outcome of another court’s trial as a prejudicial question belongs to the judge in civil court. Aforementioned circumstances constitute exceptions. In doctrine, matter of non-obligatory prejudicial question is examined in two different ways; suspension a pending lawsuit due to a prejudicial question and suspension an intended lawsuit due to a prejudicial question. It is focused herein on that suspension of a pending case as prejudicial question and especially focused on suspension of a pending case before a criminal court in civil court cases.
In regard to the pending cases, the court may await another civil court, criminal court or administrative court decision as prejudicial question if both cases are connected. “It is required to suspend a case in another case as prejudicial questions that the cases must be pending before different courts, the cases must be related and, the matter of pending case must effect the decision of suspended case. In other words the decision of pending case must be qualified to affect the suspended case’s result As mentioned in the Court of Cassation decision, it is required to suspend a case in another case as prejudicial question; the cases must be pending before different courts. In the event of that the cases pending before same court or the cases joined by request, the Court examine the case affecting to the other case as a preliminary issue and shall not suspend the trial. The second condition to decide on a prejudicial question is the existence of a relation between the cases. The relation for suspension as prejudicial question should be interpreted in a narrow perspective than relation for joinder of cases, even though determination of this relation is framework of judicial discretion (discretion of judge). In this case, the criteria to be considered; in the event that the suspended case may not be concluded before the pending case and decisions of the cases affect each other. If these conditions occur, a case shall suspend another case as prejudicial question. Judge of the competent court may decide to suspend as prejudicial question in case aforementioned conditions are met.
III. MAKING CRIMINAL COURT DECISIONS A PREJUDICIAL QUESTION IN CIVIL COURT CASES
Article 74 of Turkish Code of Obligation numbered 6098 (“TCO”)12 instructs the suspension of a case pending before criminal court as a prejudicial question in civil court cases. In Article, it is stipulated as, “The judge does not depend to legislations of criminal law to decide negligence of defacer or existing of ability to distinguish as well the judge does not depend to sentence of acquittal of criminal court. Decision of criminal judge as regards evaluation of negligence and determination of damage is not binding to civil court judge as well.”13 It may be asserted that as per this provision, the judge of a civil court is not bound with a decision of criminal court. As per this provision of TCO, independence is granted to civil court judges against criminal court. The granted independence to civil court judge cannot be unconditional. Indeed, the civil court judge is bounded with an imprisonment sentence of a criminal court. Aside from this rule, the civil court judge may suspend the trial pending before a criminal court as prejudicial. Broad judicial discretion is provided to judge of civil court and this judicial discretion is tried to be directed by the decisions of Court of Cassation According to the Court of Cassation practice; the trial of civil court should continue in the event that civil court is ahead of criminal court in examining procedure. If not, the civil court should suspend to criminal court as prejudicial questions pursuant to practice of the Court of Cassation. Aforementioned practice applies frequently especially with regard to the cases requiring to determine the forgery of deeds. In the event that the deed is subjected to a criminal case; the civil court shall suspend its trial and await the criminal case result due to a prejudicial question providing that the examining procedure of criminal court is being ahead than examining procedure of civil court. According to the Court of Cassation, civil court should suspend its trial and await criminal case regarding a deed drafted against parties’ intention. In the same manner, in the event that a person is destitute of a right end of a criminal case; civil court should suspend the criminal case as prejudicial question. For instance, in a heritage case pending before civil court should be suspended due to the criminal case themed the part of the heritage case is tried as suspected of murder of deceased since the suspected may lose the right on heritage as per Article 578 of Turkish Civil Code (“TCC”). The main reason of the Court of Cassation’s opinion is that the criminal court has broader opportunities than the civil court to find the truth. Hence, the criminal trial procedure in comparison with the civil trial procedure, the criminal trial is applicable for reaching the truth considering the option of evidence submission at every stage in criminal trial. It is stated that in the trial system based by CCP is inadequate to reach the truth because of extension of claim and defense interdiction. Otherwise, rule of proving by deed is legislated in CCP. This legislation may be considered as an obstacle to reach the truth. Civil court judge depends on the evidences submitted by the parties pursuant to principle of preparation of case by parties (Art. 25 of the Law numbered 6100) unless a special obligation of ex officio examination charged by law. It means, the verdict is rendered by examining the evidences submitted by the parties. In this case, an obligation charged to a civil court judge is noted. The judge may not consider the facts which are not submitted by parties and moreover act reminiscently As it is seen, civil court must consider the evidences only submitted by the parties. The civil court may not examine on evidences submitted by the parties. In cases which may lead to irreversible forfeiture, it is required that civil court should suspend its trial and await the criminal court decision as prejudicial question since the criminal court is in a more appropriate position to reach truth.
IV. CONCLUSION
As explained above in detail, although preliminary issue contain prejudicial question in a broad sense, significant differences occurs between them in the strict sense. Preliminary issue may be described as a casus which should be solved prior to a decision. On the other hand, prejudicial question may be described as a suspension of the trial and await another court’s decision considering the fact that another court is competent to handle the resolution of a dispute. These two different conditions must be present at the same time to apply the prejudicial question; the case to be suspended must be pending before another court and the cases must be related. But the relation between the cases should not be considered as broad as the relation required to joinder of actions. Civil court judge is not bounded by the decision of a criminal court judge according to general legislation of TCO. However, this independence does not occur in terms of imprisonment sentence of criminal court. Civil court judge may decide independently to suspend its trial due to a criminal case as prejudicial question. The Court of Cassation has established some criteria to the demarcation of the independence of civil court judge. As mentioned above, the Court of Cassation has the opinion that the imprisonment sentences are binding on civil courts. Other circumstances, especially for disputes regarding the forgery of deeds, dominant view is that the civil court should suspend its trial and await the criminal case providing that criminal trial procedure is ahead from civil court trial procedure. However, according to another opinion of the Court of Cassation is that in the case of the possibility of occurrence of a serious forfeiture, civil court should suspend its trial and await the criminal case result as prejudicial question since the criminal court has more sufficient opportunities than civil court to reach the truth.
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