This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Dava Şartları: Esasa Girilmeden Reddedilen Davalar.
A case can be lost although you are in the right — because the court never looked at who was right. That is a dismissal on procedural grounds, and its cause is a missing condition of the action. The judge takes these conditions of their own motion at every stage, and where one is missing the case is dismissed without the merits being examined.
This article sets out what the conditions of the action are, which of them can be remedied later, and the mistakes most often made.
What Is a Condition of the Action?
The conditions of the action are the requirements that must be met before a case can be examined on its merits. They are listed in Article 114 of the Code of Civil Procedure.
They have two characteristics. First, the judge takes them of their own motion at every stage; neither party need raise them. Second, where one is missing the case is dismissed on procedural grounds without reaching the merits.
That does not mean the case is lost: a dismissal on procedural grounds is not res judicata, and the action may be brought again once the defect is cured. But time and money are lost, and limitation continues to run meanwhile.
The Principal Conditions
Those most often encountered in practice are:
- The correct branch of jurisdiction: whether the dispute belongs to the civil or the administrative courts
- Subject-matter jurisdiction: civil court of first instance or civil court of peace, or a specialised court
- Capacity to be a party and to litigate, and the authority of any representative
- Legal interest: a current interest worthy of protection in bringing the action
- No lis pendens: the same case not being already before a court
- No res judicata
- Payment of the expense advance
- Prior application to compulsory mediation — in the disputes the law lists
Special statutes add further conditions; application to the consumer arbitration committee in consumer disputes is one example.
Lis Pendens: Bringing the Same Case Twice
Lis pendens means that a case between the same parties, on the same subject matter and on the same ground, is already before a court. All three elements must coincide: the parties, the subject matter and the ground.
The second action is dismissed on procedural grounds. It differs from res judicata in that the first case has not yet concluded: with res judicata the file is finished, with lis pendens it is still running.
In practice this happens inadvertently: the same claim advanced again through different lawyers or at a different courthouse is the typical example. If you have more than one file about the same events, establish from the outset which claim sits in which file.
Compulsory Mediation: The Condition Most Often Overlooked
A significant proportion of procedural dismissals today arises from this condition. Mediation is a condition of the action in the disputes listed:
- employment claims and reinstatement in employer–employee disputes
- monetary claims for debt and damages in commercial cases
- disputes arising from a tenancy, the dissolution of co-ownership, and part of the disputes under the Condominium Act
There are important exceptions: claims for pecuniary and non-pecuniary damages arising from workplace accidents and occupational diseases, and recourse claims relating to them, fall outside mediation.
The final minutes of the mediation must be attached to the statement of claim; if they are not, the court sets a peremptory period of one week, and if they are still not produced the case is dismissed on procedural grounds.
Can a Defect Be Cured?
The conditions divide into two groups, and the difference is decisive in practice.
Those that can be remedied: failure to pay the expense advance, or a defect in the document of representation. The judge sets a period, and if the defect is cured within it the case continues.
Those that cannot: res judicata, lis pendens or the absence of a legal interest. Here the defect cannot be cured and the case is dismissed on procedural grounds.
Subject-matter jurisdiction has its own solution: the court gives a decision declining jurisdiction, and either party may ask, within two weeks of that decision becoming final, for the file to be sent to the court with jurisdiction. If that period is missed the action is treated as never having been brought — one of the quiet losses among procedural dismissals.
If the court declines jurisdiction the matter is not over: you must ask, within two weeks of that decision becoming final, for the file to be sent to the court with jurisdiction. If that period is missed the action is treated as never brought — and you lose the protection against limitation as well.