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Covid-19 Related Decisions
THE DRIVER’S REQUEST FOR AN ALCOHOL MEASUREMENT THROUGH A BLOOD TESTING, WHO REFUSES TO BLOW INTO THE BREATHMETERS DUE TO COVID-19, CANNOT BE INTERPRETED AS AN INTENTION TO AVOID BLOWING INTO THE BREATHMETERS.
Criminal Chamber 2021/7500 E., 2021/7148 K.
About … who is guilty of not blowing into the breathalyzer, according to Article 48/9 of the Highway Traffic Law No. 2918. The case file, which is attached to the letter of the Ministry of Justice, containing the request for reversal in favor of the law numbered 1221 dated 17.03.2021, against the decision of the Denizli 1st Criminal Court of Peace dated 30/10/2020 and amended case numbered 2020/5658 regarding the rejection of the application made against the traffic administrative fine decision record numbered IJ 357006 dated 03/10/2020 of the Denizli Traffic Inspection Branch Directorate regarding the imposition of an administrative fine of 3,516.00 Turkish liras pursuant to the article and the decision of the Denizli 1st Criminal Court of Peace dated 30/10/2020 and amended case numbered 2020/5658 regarding the withdrawal of the driver’s license of the offender for 2 years, and the request for reversal in favor of the law numbered 2020/7047 dated 26/11/2020 of the Denizli 2nd Criminal Court of Peace, which is the authority for the rejection of the objection made against the decision record …004665 dated 03/03/2020 of the Denizli Traffic Inspection Branch Directorate regarding the imposition of an administrative fine of 3,516.00 Turkish liras pursuant to the article, is attached to the letter of the Ministry of Justice, which is attached to the letter of the Chief Public Prosecutor of the Supreme Court of Appeals dated 06.04.2021 and amended case numbered It was read that the notification numbered KYB – 2021 – 37324 was submitted to the department.
In the said notification;
In the concrete case; The offender was stopped by the law enforcement units at the Karataş Junction of Antalya Road in Denizli Province on 03/10/2020 at 20:47 and wanted to measure his alcohol with a breathalyzer, the offender did not want to blow the breathalyzer within the scope of Covid-19 measures and wanted to measure his alcohol by blood test, thereupon an administrative fine of 3,516.00 Turkish liras was imposed and following the revocation of his driver’s license for 2 years, the offender gave a blood test at Denizli State Hospital on the same day at 21:50 and no alcohol (ethanol) was detected in his blood, individuals may show such sensitivities as in the concrete incident within the scope of Covid measures, considering that the aforementioned disease is transmitted through the respiratory tract, it is acceptable to refrain from blowing the technical device that works by touching the mouth and blowing the breath, according to Law No. 2918, the method of measuring the driver’s alcohol content is not only a technical device, the exceptions to this issue are the same It is requested that the aforementioned decision be overturned in the interest of the law in accordance with Article 309 of the Criminal Procedure Law No. 5271 on the grounds that it can also be demonstrated by a blood test as explained in Article 48/3 of the law, that the desire of people such as the offender with chronic illnesses to resort to such alternative methods in order to protect themselves according to the content of the file cannot be interpreted as an intention to abstain from blowing the breathalyzer, that he took a blood test from the hospital approximately 1 hour later and that no alcohol was detected in his blood, that the alcohol level decreases by an average of 0.15 per mille every hour, although it varies from person to person, according to established Forensic Medicine practices, and that it is not appropriate to decide in writing to reject the offender’s application instead of accepting it,
The necessary was discussed and considered; Since the content of the notification based on the request for reversal in the interest of law by the Office of the Chief Public Prosecutor of the Supreme Court of Appeals was not found to be appropriate, the request for reversal in the interest of law was accepted, and the decision of the Denizli 2nd Criminal Court of Peace dated 26/11/2020 and amended case number 2020/7047 was REVERSED in accordance with Article 309/4-d of the CMK No. 5271, and the decision of the applied administrative sanction was lifted, unanimously decided on 23.06.2021.
IN CASES WHERE THE RENT COST CANNOT BE COVERED DUE TO THE COVID-19 PANDEMIC, AN INJUNCTIVE INJECTION DECISION ON THE REDUCTION OF THE RENT COST MAY BE MADE DEPENDING ON THE REQUIREMENTS OF THE CONCRETE EVENT
Civil Department 2021/3452 E., 2021/6001 K.
APPLICATION :BURSA REGIONAL COURT OF JUSTICE
BOARD OF PRESIDENTS
Upon the request of the Board of Presidents of the Bursa Regional Court of Justice regarding the resolution of the dispute between the final decisions of the 15th Civil Chamber of the Ankara Regional Court of Justice and the 4th Civil Chamber of the Bursa Regional Court of Justice; all the papers in the file were read and their merits were taken into consideration:
Y A R G I T A Y K O R K E R
The duties of the Board of Presidents of the Regional Court of Justice are regulated in Article 35 of the Law No. 5235 on the “Establishment, Duties and Powers of the First Instance Courts of the Judiciary and the Regional Courts of Justice” and in the 3rd paragraph of the said article, “3. Upon the request of the relevant civil or criminal chamber of the regional court of justice or the chief public prosecutor, those who have the right to appeal according to the Code of Civil Procedure or the Code of Criminal Procedure, in similar cases, to resolve the dispute in case of a conflict between the final decisions given by the civil or criminal chambers of the regional court of justice or between the final decisions given by this court and the civil or criminal chambers of another regional court of justice, with their own opinions added to the request, with justification,
requesting a decision from the Supreme Court on this matter,” is included in the provision.
With the aforementioned provision, the procedure to be followed by the relevant regional court of justice board in case they request a decision from the Supreme Court regarding the dispute between the final decisions given in similar cases is regulated in detail, and it is clearly stipulated here that the application will be made with a reason, by adding the board of justices’ own opinions.
In the application numbered 2021/1 dated 09.04.2021 of the Bursa Regional Court of Justice Board of Justice; It was reported that there is a dispute between the file numbered 2020/1596 – decision numbered 2020/1499 of the 4th Civil Chamber of the Bursa Regional Court of Justice and the final decisions numbered 2020/2164 – decision numbered 2021/50 of the 15th Civil Chamber of the Ankara Regional Court of Justice due to differences of opinion on whether an interim injunction can be given in adaptation cases, and it was requested that the disputes be resolved within the scope of Article 35/1-3 titled “Duties of the Board of Presidents” of the Law No. 5235 on the Establishment, Duties and Powers of the First Instance Courts of Judiciary and Regional Courts of Justice. In the file numbered 2020/1107 dated 05/11/2020 of the 6th Civil Court of Peace of Bursa, the plaintiff; that she was running a kindergarten as a tenant in the immovable property belonging to the defendant, that there was a decrease in business volume by 80-85% due to the pandemic process effective throughout the country, that according to Article 138 of the TCC, the debtor has the right to request the judge to adapt the contract to the conditions and if this is not possible, he has the right to withdraw from the contract, that she has requests for interim measures according to Article 389 of the HMK, and that she filed a lawsuit requesting that the period covering the dates 15/03/2020 – 01/06/2020 when her workplace activities stopped and that the period elapsed due to the force majeure be added to the end of the lease term and that the rent be reduced by 50% and adapted due to the decrease in business volume, that the court of first instance rejected the plaintiff’s attorney’s request for interim measures in accordance with Articles 389 et seq. of the HMK. Upon the appeal of the decision by the plaintiff, the Bursa Regional Court of Justice 4th Civil Chamber, with its final decision dated 14/12/2020, numbered 2020/1596-2020/1499, decided to reject the application since it was understood that the conditions were not met in accordance with its articles; “It has been decided that the appeal application be accepted, the interim decision dated 05/11/2020 given in the case file numbered 2020/1107 of the Bursa 6th Civil Court of Peace be lifted in accordance with Article 353/1-b-2 of the HMK, the request for interim injunction be accepted, the monthly rent of the leased property, of which the plaintiff is the tenant with the lease agreement approved on 14/06/2018, be paid as 6,000 TL per month, excluding VAT, for the unpaid rents accruing as of 03/06/2020 and the rents to accrue as of the date of this decision, and the interim injunction be re-evaluated by the court within 6 months in accordance with Article 396/1 of the HMK and according to the status of the evidence collected, the measures taken and the effects of the measures on the plaintiff.” In the file numbered 2020/1055 dated 23/11/2020 of the Ankara Western 4th Civil Court of Peace; The plaintiff company is a tenant of the defendant Etimesgut Municipality, the business consisting of the wedding halls and outbuildings located on the immovable property owned by the municipality was leased for 5 years, the purpose and nature of the rented property was clearly stated as wedding halls and outbuildings in the lease agreement signed between the plaintiff and the municipality, there was a loss of at least 83% of customers due to the pandemic, the wedding hall has completely lost its purpose of use, and in order to prevent the tenant company from being exposed to the threat of eviction due to default that may arise from not being able to pay the rent and to avoid any grievances, the plaintiff company filed a lawsuit requesting an interim injunction and an order to pay the rent of 25,800TL starting from 02/07/2020 until the final decision is made, the court decided to reject the request for an interim injunction, upon the plaintiff’s appeal of the decision, Ankara Regional Court of Justice 15th Civil Chamber, dated 2020/2164, With the decision numbered 2021/50; “As accepted in the practices of the Court of Cassation and explained in the justification of Article 391 of the Civil Procedure Code No. 6100, it is not correct to give an interim injunction “in a way that will provide the benefit to be obtained at the end of the case”, in other words, “in a way that will resolve the merits of the case and the dispute”. In addition, an interim injunction can only be given regarding the subject of the dispute. In the specific case, there is a dispute between the parties as to whether the rental fee will be reduced due to the pandemic. Since the nature of the dispute requires a trial and it is understood that an interim injunction decision cannot be given that will resolve the merits of the dispute, since the reviewed court decision is found to be in accordance with the procedure and law, it has been decided definitively to reject the attorney’s appeal request on the merits.”
Since there is a disagreement between the final decisions of the Bursa Regional Court of Justice 4th Civil Chamber and the Ankara Regional Court of Justice 15th Civil Chamber in a similar case, it has been concluded that these disagreements should be resolved in accordance with Article 35/1-3 of the Law No. 5235 on the Establishment, Duties and Powers of the First Instance Courts of Judiciary and Regional Courts of Justice.
As is known; In our law, the principles of commitment to contract (Ahde Vefa-Pacta Sund Servanda) and freedom of contract have been accepted. According to these principles, the contract should be applied exactly as it was at the time it was made. In other words, even if the terms of the contract have become more difficult for the debtor later and the balance of obligations has changed due to subsequent events, the debtor must perform the obligation in the contract exactly as it was. The principle of commitment to contract constitutes the basic principle of contract law as a requirement of the rule of legal security, truthfulness and honesty. However, in the practice that developed with the Supreme Court precedents in the period before the TCC No. 6098, this principle was limited by other principles of private law. In Turkish law, inspired by Articles 2 and 4 of the TCC, it has long been accepted that adaptation cases can be filed by applying both the principle of adaptation of the contract to changing conditions (Clauseula Rebus Sic Stantibus) and the Collapse of the Basis of Transaction Theory. The adaptation case, which was adopted by the Supreme Court and constitutes an exception to the principle of commitment to the contract, was also adopted during the enactment of the TCC No. 6098 and regulated under the article title “Excessive Difficulty of Performance” in Article 138 of Law No. 6098, and it is stated that “If an extraordinary situation that was not foreseen by the parties at the time the contract was made and was not expected to be foreseen arises for a reason not originating from the debtor and changes the existing facts at the time the contract was made to the detriment of the debtor to the extent that it would be against the rules of honesty to request performance from him, and if the debtor has not yet performed his debt or has performed it by reserving his rights arising from the excessive difficulty of performance, the debtor has the right to request the judge to adapt the contract to the new conditions, and if this is not possible, the debtor has the right to withdraw from the contract. In continuous performance contracts, the debtor, as a rule, uses the right of termination instead of the right of withdrawal. The provision of this article is also applied to foreign currency debts.” The justification of the relevant article states that “This new regulation is related to the “collapse of the basis of the transaction”, which is accepted as one of the exceptions to the principle of commitment to the contract (pacta sunt servanda). The basis of the adaptation request based on extreme difficulty of performance, which is different from the concept of impossibility, is the rules of good faith stipulated in Article 2 of the Turkish Civil Code. However, the adaptation of the contract to the changing conditions or the exercise of the right of withdrawal depends on the fulfillment of the following four conditions together.
An extraordinary situation that was not foreseen by the parties and was not expected to be foreseen at the time the contract was made must have arisen.
This situation must not have originated from the debtor.
This situation must have changed the existing facts at the time the contract was made to the detriment of the debtor to such an extent that requesting performance from him would be contrary to the rules of good faith.
The debtor must not have yet fulfilled his debt or must have fulfilled it by reserving his rights arising from the excessive difficulty of performance.
According to the article, if all the conditions of adaptation have been fulfilled, the debtor may request the judge to adapt the contract to the new conditions. If this is not possible, the debtor may withdraw from the contract; in continuous performance contracts, as a rule, the right of termination is used.”, and the adaptation case accepted in the Supreme Court of Appeals practice before the TCC has been made a law article.
As it is known; in cases where a person can create a new legal relationship with a unilateral declaration of will, the existence of constitutive (constructive-innovative) rights is mentioned. As a rule, a legal consequence arises when the owner of the constructive right uses this right unilaterally. However, in some constructive rights, a legal consequence does not arise automatically when the owner of the constructive right uses this right unilaterally. These constructive rights must definitely be used through the court. If the court decides to accept the constructive case, this decision is constructive. Because a new legal situation is created with this acceptance decision. In this case, the case filed can be called a constructive case and based on this constructive right, it requests the court to decide to change or remove a legal situation or to create a new legal situation.
In case of acceptance of constructive cases, the constructive decisions given are effective in the future as a rule. In other words, the innovative effect that emerges from the acquisition of this right is, as a rule, for the future and does not affect the past.
One of the reflections of the complexity of social life and human relations in the field of law is that it becomes difficult to resolve disputes in a short time. In order to eliminate these drawbacks, it is necessary to wait for the dispute to end and
Since there is a disagreement between the final decisions of the Bursa Regional Court of Justice 4th Civil Chamber and the Ankara Regional Court of Justice 15th Civil Chamber in a similar case, it has been concluded that these disagreements should be resolved in accordance with Article 35/1-3 of the Law No. 5235 on the Establishment, Duties and Powers of the First Instance Courts of Judiciary and Regional Courts of Justice.
As is known; In our law, the principles of commitment to contract (Ahde Vefa-Pacta Sund Servanda) and freedom of contract have been accepted. According to these principles, the contract should be applied exactly as it was at the time it was made. In other words, even if the terms of the contract have become more difficult for the debtor later and the balance of obligations has changed due to subsequent events, the debtor must perform the obligation in the contract exactly as it was. The principle of commitment to contract constitutes the basic principle of contract law as a requirement of the rule of legal security, truthfulness and honesty. However, in the practice that developed with the Supreme Court precedents in the period before the TCC No. 6098, this principle was limited by other principles of private law. In Turkish law, inspired by Articles 2 and 4 of the TCC, it has long been accepted that adaptation cases can be filed by applying both the principle of adaptation of the contract to changing conditions (Clauseula Rebus Sic Stantibus) and the Collapse of the Basis of Transaction Theory. The adaptation case, which was adopted by the Supreme Court and constitutes an exception to the principle of commitment to the contract, was also adopted during the enactment of the TCC No. 6098 and regulated under the article title “Excessive Difficulty of Performance” in Article 138 of Law No. 6098, and it is stated that “If an extraordinary situation that was not foreseen by the parties at the time the contract was made and was not expected to be foreseen arises for a reason not originating from the debtor and changes the existing facts at the time the contract was made to the detriment of the debtor to the extent that it would be against the rules of honesty to request performance from him, and if the debtor has not yet performed his debt or has performed it by reserving his rights arising from the excessive difficulty of performance, the debtor has the right to request the judge to adapt the contract to the new conditions, and if this is not possible, the debtor has the right to withdraw from the contract. In continuous performance contracts, the debtor, as a rule, uses the right of termination instead of the right of withdrawal. The provision of this article is also applied to foreign currency debts.” The justification of the relevant article states that “This new regulation is related to the “collapse of the basis of the transaction”, which is accepted as one of the exceptions to the principle of commitment to the contract (pacta sunt servanda). The basis of the adaptation request based on extreme difficulty of performance, which is different from the concept of impossibility, is the rules of good faith stipulated in Article 2 of the Turkish Civil Code. However, the adaptation of the contract to the changing conditions or the exercise of the right of withdrawal depends on the fulfillment of the following four conditions together.
An extraordinary situation that was not foreseen by the parties and was not expected to be foreseen at the time the contract was made must have arisen.
This situation must not have originated from the debtor.
This situation must have changed the existing facts at the time the contract was made to the detriment of the debtor to such an extent that requesting performance from him would be contrary to the rules of good faith.
The debtor must not have yet fulfilled his debt or must have fulfilled it by reserving his rights arising from the excessive difficulty of performance.
According to the article, if all the conditions of adaptation have been fulfilled, the debtor may request the judge to adapt the contract to the new conditions. If this is not possible, the debtor may withdraw from the contract; in continuous performance contracts, as a rule, the right of termination is used.”, and the adaptation case accepted in the Supreme Court of Appeals practice before the TCC has been made a law article.
As it is known; in cases where a person can create a new legal relationship with a unilateral declaration of will, the existence of constitutive (constructive-innovative) rights is mentioned. As a rule, a legal consequence arises when the owner of the constructive right uses this right unilaterally. However, in some constructive rights, a legal consequence does not arise automatically when the owner of the constructive right uses this right unilaterally. These constructive rights must definitely be used through the court. If the court decides to accept the constructive case, this decision is constructive. Because a new legal situation is created with this acceptance decision. In this case, the case filed can be called a constructive case and based on this constructive right, it requests the court to decide to change or remove a legal situation or to create a new legal situation.
In case of acceptance of constructive cases, the constructive decisions given are effective in the future as a rule. In other words, the innovative effect that emerges from the acquisition of this right is, as a rule, for the future and does not affect the past.
One of the reflections of the complexity of social life and human relations in the field of law is that it becomes difficult to resolve disputes in a short time. In order to eliminate these drawbacks, it is necessary to wait for the dispute to end and
In the lawsuit for adaptation of the rental price due to the adverse effects of the restrictive and prohibitive administrative measures directly or in order to prevent the pandemic, it is requested that the lease contract terms (price) be adapted to the changing conditions due to the fact that the performance of the obligation has become unbearable for one of the parties after the pandemic, which occurred after the signing of the contract and affected a large part of the society and disrupted the social and economic balance of the parties. Here, the purpose of the adaptation request is not to terminate or rescind the contract, but to keep the contract alive. Adaptation cases are constructive cases and produce results with the court decision given as a result of the trial. If the process of the lawsuit with an adaptation request filed due to the pandemic is prolonged, its effects will be further aggravated. By filing a lawsuit, the injunction decisions to be given at the beginning; It goes without saying that in cases such as the course of the pandemic, the effects on the sector in which the tenants who are negatively affected by the relaxation and tightening of the precautionary measures taken, the abuse of the tenant in paying the discounted rent and the tenant’s actions aimed at prolonging the trial, the court can always make changes upon request and that each concrete file should be evaluated on a case-by-case basis, taking into account the parties’ ability to collect their receivables with interest as a result of the case. In the event that no precautionary measure is given; termination of the contract and eviction due to default becomes possible in accordance with Article 315 of the Turkish Code of Obligations due to the economic hardship caused by the pandemic due to direct or preventive administrative decisions. The aim in adaptation cases is to maintain the contract between the parties and to re-establish justice between the obligations that existed at the beginning in the face of extraordinary circumstances. In cases filed with a request for adaptation, when an interim measure decision is not given, it may not be possible to maintain the lease contract until the end of the case in some cases. What is expected from an adaptation case is to maintain the contract by changing the conditions despite the extraordinary circumstances. In the case filed, a precautionary measure may be issued in order to eliminate the inconveniences arising from the prolongation of the case for the parties until the verdict on the merits and to provide temporary legal protection, thus ensuring that the plaintiff will obtain the subject of the case in case he/she wins the case he/she has filed, and to prevent victimization. Otherwise, tenants of businesses in sectors whose activities have been prohibited or restricted, especially due to the direct impact of the pandemic or administrative measures aimed at preventing the outbreak, may experience extreme difficulty in performance due to the decrease in their business turnover and may be evicted from the leased property due to termination of the contract due to default until the conclusion of the adaptation case, and the purpose of keeping the contract alive aimed at with the adaptation case will not be achieved, and the adaptation decision to be given as a result of the trial will somehow become dysfunctional.
In the light of these explanations, in the case filed regarding the adaptation of the lease contract terms (rent fee) due to the epidemic (pandemic) disease, it is stated that the issuance of an interim measure in case the conditions are met is in accordance with Article 389 et seq. of the Civil Procedure Code. , the decision of the Ankara 15th Regional Court of Justice regarding the rejection of the request for an interim measure in the case of adaptation of the rent on the grounds that an interim measure decision cannot be given in a way that will resolve the merits of the case and the dispute is not appropriate.
The dispute between the final decisions of the 4th Civil Chamber of the Bursa Regional Court of Justice and the 15th Civil Chamber of the Ankara Regional Court of Justice had to be resolved within this framework.
CONCLUSION: For the reasons explained above, the rejection decision regarding the fact that an interim measure decision cannot be given in a way that will resolve the merits of the case and the dispute in the cases regarding the adaptation of the rent due to an epidemic (pandemic) disease is not in accordance with the procedure and law, and an interim measure decision can be given if the conditions in Articles 389 et seq. of the Code of Civil Procedure are met; It was unanimously decided on 04/06/2021 that the disagreements in opinion and application between the final decisions of the 4th Civil Chamber of the Bursa Regional Court of Justice and the 15th Civil Chamber of the Ankara Regional Court of Justice be resolved in this way, that a copy of the decision be sent to the General Secretariat of the Council of Judges and Prosecutors to be forwarded to all Regional Courts of Justice, in accordance with Article 35/1-(3) of Law No. 5235.
REQUEST FOR RETIREMENT DUE TO COVID-19
“…one of the lawyers of the office had a Covid 19 test on 20/11/2020 and tested positive the next day; the quarantine process was extended due to the secretary’s positive test on 25/11/2020 and the subsequent positive test of two lawyers on 04/12/2020, and the e-notification sent to the parties could not be opened from the system
In the lawsuit for adaptation of the rental price due to the adverse effects of the restrictive and prohibitive administrative measures directly or in order to prevent the pandemic, it is requested that the lease contract terms (price) be adapted to the changing conditions due to the fact that the performance of the obligation has become unbearable for one of the parties after the pandemic, which occurred after the signing of the contract and affected a large part of the society and disrupted the social and economic balance of the parties. Here, the purpose of the adaptation request is not to terminate or rescind the contract, but to keep the contract alive. Adaptation cases are constructive cases and produce results with the court decision given as a result of the trial. If the process of the lawsuit with an adaptation request filed due to the pandemic is prolonged, its effects will be further aggravated. By filing a lawsuit, the injunction decisions to be given at the beginning; It goes without saying that in cases such as the course of the pandemic, the effects on the sector in which the tenants who are negatively affected by the relaxation and tightening of the precautionary measures taken, the abuse of the tenant in paying the discounted rent and the tenant’s actions aimed at prolonging the trial, the court can always make changes upon request and that each concrete file should be evaluated on a case-by-case basis, taking into account the parties’ ability to collect their receivables with interest as a result of the case. In the event that no precautionary measure is given; termination of the contract and eviction due to default becomes possible in accordance with Article 315 of the Turkish Code of Obligations due to the economic hardship caused by the pandemic due to direct or preventive administrative decisions. The aim in adaptation cases is to maintain the contract between the parties and to re-establish justice between the obligations that existed at the beginning in the face of extraordinary circumstances. In cases filed with a request for adaptation, when an interim measure decision is not given, it may not be possible to maintain the lease contract until the end of the case in some cases. What is expected from an adaptation case is to maintain the contract by changing the conditions despite the extraordinary circumstances. In the case filed, a precautionary measure may be issued in order to eliminate the inconveniences arising from the prolongation of the case for the parties until the verdict on the merits and to provide temporary legal protection, thus ensuring that the plaintiff will obtain the subject of the case in case he/she wins the case he/she has filed, and to prevent victimization. Otherwise, tenants of businesses in sectors whose activities have been prohibited or restricted, especially due to the direct impact of the pandemic or administrative measures aimed at preventing the outbreak, may experience extreme difficulty in performance due to the decrease in their business turnover and may be evicted from the leased property due to termination of the contract due to default until the conclusion of the adaptation case, and the purpose of keeping the contract alive aimed at with the adaptation case will not be achieved, and the adaptation decision to be given as a result of the trial will somehow become dysfunctional.
In the light of these explanations, in the case filed regarding the adaptation of the lease contract terms (rent fee) due to the epidemic (pandemic) disease, it is stated that the issuance of an interim measure in case the conditions are met is in accordance with Article 389 et seq. of the Civil Procedure Code. , the decision of the Ankara 15th Regional Court of Justice regarding the rejection of the request for an interim measure in the case of adaptation of the rent on the grounds that an interim measure decision cannot be given in a way that will resolve the merits of the case and the dispute is not appropriate.
The dispute between the final decisions of the 4th Civil Chamber of the Bursa Regional Court of Justice and the 15th Civil Chamber of the Ankara Regional Court of Justice had to be resolved within this framework.
CONCLUSION: For the reasons explained above, the rejection decision regarding the fact that an interim measure decision cannot be given in a way that will resolve the merits of the case and the dispute in the cases regarding the adaptation of the rent due to an epidemic (pandemic) disease is not in accordance with the procedure and law, and an interim measure decision can be given if the conditions in Articles 389 et seq. of the Code of Civil Procedure are met; It was unanimously decided on 04/06/2021 that the disagreements in opinion and application between the final decisions of the 4th Civil Chamber of the Bursa Regional Court of Justice and the 15th Civil Chamber of the Ankara Regional Court of Justice be resolved in this way, that a copy of the decision be sent to the General Secretariat of the Council of Judges and Prosecutors to be forwarded to all Regional Courts of Justice, in accordance with Article 35/1-(3) of Law No. 5235.
REQUEST FOR RETIREMENT DUE TO COVID-19
“…one of the lawyers of the office had a Covid 19 test on 20/11/2020 and tested positive the next day; the quarantine process was extended due to the secretary’s positive test on 25/11/2020 and the subsequent positive test of two lawyers on 04/12/2020, and the e-notification sent to the parties could not be opened from the system
that, from the enforcement office on 21/03/2021…”
Civil Department 2021/3571 E., 2021/8700 K.
COURT: CIVIL COURT OF FIRST INSTANCE
As a result of the trial of the lawsuit for the prevention of the dispute between the parties, the decision given for the dismissal of the case was finalized without being appealed by the parties, and this time, upon the request for reinstatement by the plaintiff’s attorney, all the papers in the file were read and the necessary was considered:
JUDICIAL COURT DECISION
Plaintiff; … was treated in the emergency room at the hospital belonging to their company, and later, the defendant institution sent a letter stating that the patient’s brother … was treated at the hospital using the identity of his brother …, that the patient’s identity was verified incorrectly, that this situation was against the Health Practice Circular and the contract made between them and the institution, and that the company was requested to refund the treatment expense of 43.74 TL and that a penalty of 20,000 TL would be imposed, and that in practice, the identification was made by the hospital officer looking at the identity and checking the physical condition, and that when the genetic and blood relationship of the person using his brother’s identity is considered, the photographs on the identity card and the identity information are evaluated together, it will be understood that their company acted in accordance with the necessary legislation and diligently; and requested that the penal action dated 01/10/2014 be stopped as a precautionary measure, that the penal action be cancelled, and that the company does not owe any debt to the defendant institution.
The defendant; The institution prepared a report as a result of the investigation, that as a result of the investigation conducted in the Medula system, hundreds of follow-ups were received 5-6 times a day in 2012 in the name of …, that the plaintiff party acted contrary to the requirements of both Law No. 5510, SUT and the contract made with the defendant institution, that the plaintiff hospital is liable for 43.74 TL undue payment and 20,000 TL penalty transaction in accordance with articles 11.1.2, 10.1, 10.2 of the contract, that the transaction in question was a legally mandatory transaction carried out within the framework of the provisions of the protocol accepted by the plaintiff, and requested the dismissal of the case.
As a result of the trial held by the court in compliance with the reversal, the decision to dismiss the case was notified to the parties and was finalized on 03/12/2020. Later, the plaintiff’s attorney requested reinstatement by stating in his petition dated 29/03/2021 that one of the office’s lawyers had a Covid 19 test on 20/11/2020 and tested positive the next day; that the quarantine process was extended due to the secretary’s positive test on 25/11/2020 and the subsequent positive test of two lawyers on 04/12/2020, that the e-notification sent to them could not be opened from the system, and that they were informed of the decision on 25/03/2021 following the payment order sent from the enforcement office on 21/03/2021. In Article 95 of the Civil Procedure Code No. 6100; “Anyone who cannot perform a transaction within the period specified by law or strictly determined by the judge, due to reasons beyond his control, may request reinstatement. If the same result sought to be achieved by the transaction that could not be performed on time can be achieved by another legal means other than reinstatement, a request for reinstatement cannot be made.”, Article 96 states; “Reinstatement must be requested within two weeks from the elimination of the obstacle that caused the transaction not to be performed on time. In first instance and appeal trials, it is possible to request reinstatement until the final decision is given at the latest. However, if the final decision is given in the absence of one party, a request for reinstatement can be made after the decision is given for the periods missed during the investigation phase.” In the subsequent Article 97 of the same Law, it is determined that the reasons on which the request is based and their evidence or indications will be shown in the petition for reinstatement, and Article 98 stipulates that in the event that the right to appeal is lost, reinstatement will be requested from the Supreme Court of Appeals. Although the plaintiff’s attorney stated that the quarantine process was extended due to the positive Covid-19 test of the lawyer and employee in the office, and therefore, the appeal remedy could not be applied for, it could not be proven that the necessary action (appeal) could not be carried out within the period specified in the law or strictly determined by the judge due to reasons beyond the plaintiff’s control.
In this case, since it could not be proven that the necessary appeal process could not be carried out within the period specified in the law due to reasons beyond the plaintiff’s control as mentioned in Article 95 of the Civil Procedure Code, and also since the request for reinstatement was not made within the period stipulated in the Law, it was necessary to decide to reject the request for reinstatement since the conditions for reinstatement specified in Articles 95 and following of the Civil Procedure Code No. 6100 did not occur in the concrete case.
CONCLUSION: For the reasons explained above, the plaintiff’s attorney’s request for reinstatement is REJECTED, in advance
