A closer look at the Turkish Court of Cassation’s supervisory power and its boundaries

Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

A closer look at the Turkish Court of Cassation’s supervisory power and its boundaries

Sponsored by

gunpartners-400px.png
ales-krivec-zmzhcvivgbg-unsplash.jpg

Güldeniz Doğan Alkan and Dilan Sıla Kayalıca of Gün and Partners consider the supervisory power of Turkey’s Court of Cassation and its role as a court of precedents

The Turkish Court of Cassation has been one of the most important authorities of the Turkish judicial system, which has been on duty since mid-1800s. Since the establishment of the Court of Cassation, it has served as the supreme court of our judicial justice system. But the recent decisions of the Court of Cassation made us question its supervisory power as the supreme court as well as the boundaries of this power.

Until the regional courts of appeal were established in 2016, only first instance courts and the Court of Cassation were operational. During this era, the Court of Cassation used its judicial power as a review of expediency by examining the merits of cases as well – in addition to the review of legitimacy – since this was the natural requirement of the binary judicial system which was in force at that time.

However, after the establishment of the regional courts of appeal in 2016, a triple judiciary system was adopted and in this system the regional court of appeal is an intermediary step between the first instance courts and the Court of Cassation. In this new period post-2016, the main duty assigned to the Court of Cassation is to act as a court of precedents. The Court of Cassation is not expected or entitled to conduct a review of expediency.

However, within the last two years, particularly in some reversing decisions rendered by the Court of Cassation in disputes related to the trademark and design law, the relevant chamber acted like inferior courts and examined the merits of the cases, carried out its own assessment by partially or fully ignoring the expert reports, as well as the initial considerations of inferior courts, mostly on technical matters related particularly to the merits of the case, such as:

  • Comparison of trademarks;

  • Comparison of the goods/services;

  • Attentiveness of the relevant consumer group; and

  • Well-known status of trademarks

This has, therefore, exceeded the boundaries of its supervisory power.

Legislative regulations and the intended purpose of the system foresee that the appeal examination to be performed by the Court of Cassation is limited to a legitimacy examination.

For example, the decisions rendered by inferior courts (both first instance courts and regional courts of appeal) shall be examined solely in respect of its compliance with laws. This follows that a reversing decision to be issued by the Court of Cassation may not substitute the decisions of inferior courts and may not violate the discretionary power vested in specialised courts.

Performance of such examination by the Court of Cassation would mean annulment or disabling of the powers and duties assigned to the regional courts of appeal, which have jurisdiction to review the first instance courts’ decisions in terms of both expediency and legitimacy.

If the Court of Cassation finds the inferior courts’ decisions unlawful as a result of its legitimacy examination, it should render reversal decisions by not eliminating the discretion of the judges of inferior courts. For instance, the Court of Cassation may simply indicate which rule of law is incorrectly applied and – possibly – how it should have been applied.

Otherwise, if the Court of Cassation examines the merits of each case in a manner exceeding the scope of a legitimacy examination, the long years of examination and assessment performed by the judges of inferior courts based on their areas of special expertise, would become dysfunctional and vain.

Also, the workload of the Court of Cassation would not be reduced as intended by the transition into the triple justice system, on the contrary, it would increase, and the duties of the Court of Cassation as a court of precedents would be impeded as well.

It is hoped that the Court of Cassation will reconsider its supervisory power as well as the boundaries of this power and focus on its role to act as a court of precedents again, so that the case law of the Turkish courts may develop and flourish.

 

Güldeniz Doğan Alkan

Partner, Gün + Partners

E: guldeniz.dogan@gun.av.tr

 

Dilan Sıla Kayalıca

Senior associate, Gün + Partners

E: dilan.aslan@gun.av.tr

 

 

more from across site and SHARED ros bottom lb

More from across our site

Deals between five more law firms and President Trump and an antitrust lawsuit against Amgen were also among the top talking points this week
US counsel explain how they win new cleantech IP business and how they’re navigating the industry’s challenges
Leaders at the IP firms, which have joined forces with backing from a PE investor, share their vision of building the number one pan-European IP practice
Firms will steer clients towards other ways of getting quicker examinations, but fear the ramifications of the USPTO’s decision
Melissa Haapala added that returning to client advocacy and the chance to work on patent litigation were reasons for returning to private practice
Michelle Clark, who has a generalist litigation background, plans to focus on IP disputes at Alston & Bird
Philips and Vivo have entered into a licensing agreement, putting an end to a five-year-old telecom SEP dispute in India
Stefan Müller discusses managing deadlines, the importance of reflection, and why IP is more than just a 'nice to have'
The three founders of the IP firm’s new US offering say they plan to offer a unique proposition in a market fixated by the billable hour
The opinion provides useful guidance when it comes to how courts might consider contributory infringement, DMCA claims, and other issues in AI copyright cases
Gift this article