1. Introduction
Article 341(2) of the Code of Civil Procedure Nr. 6100
(CCP) sets forth the monetary threshold required for filing an appeal before
the regional courts of appeal. Likewise, Article 362(1)(a) of the CCP
stipulates that decisions rendered in cases where the amount or value in
dispute does not exceed forty thousand Turkish liras (inclusive) are not
subject to appeal before the Court of Cassation. Pursuant to these provisions,
not every dispute involving a monetary claim may be subjected to appellate or appellate
review. In other words, whether a case may be brought before the appellate
courts or the Court of Cassation depends on the amount in dispute exceeding the
statutory monetary thresholds prescribed for the relevant legal remedies.
Moreover, Additional Article 1 of the CCP, entitled
“Increase of the Monetary Threshold,” provides that the monetary thresholds
stipulated in Articles 200, 201, 341, 362 and 369 shall be applied, as of the
beginning of each calendar year, by increasing the amounts applicable in the preceding
year at the revaluation rate determined and announced by the Ministry of
Finance pursuant to Article 298 bis of the Tax Procedure Law Nr. 213 dated 04/01/1961.
In this article, in light of the decision, dated
30.04.2025 and bearing the Basis number 2025/1175, and the Decision number
2025/1821, of the 6th Civil Chamber of the Court of Cassation [1],
the issue of which date should be taken as the basis for the exchange rate
calculation, where the subject matter of the case is determined in foreign
currency, will be examined with respect to the monetary finality thresholds
prescribed for recourse to appellate review.
2. Analysis of
the Decision, dated 30.04.2025 and bearing the Basis number 2025/1175, and the
Decision number 2025/1821, and the Dissenting Opinion
The content of the decision is as follows:
“Final decisions in cases where the amount or value
does not exceed the appellate review threshold under Article 362 of the Code of
Civil Procedure Nr. 6100 (CCP) cannot be appealed. If the amount subject to
appeal falls below the threshold, pursuant to Article 366 of the said Code, the
appeal petition must be rejected in accordance with Article 352(1)(b) of the
said Code.
According to the case file, the total amount that was
adjudicated, rejected, and simultaneously appealed is USD 111,727.84.-, which
corresponds to TRY 322,893.46.- at the exchange rate on the date of the claim.
For the plaintiff, the amount is USD 36,044.13.-, equivalent to TRY 104,167.54.-
at the exchange rate on the date of the claim, which is below the monetary
threshold of TRY 544,000.00.- as of the date of the decision by the Regional
Court of Appeal.”
As can be seen, the decision emphasizes that, pursuant
to Article 362 of the Code of Civil Procedure Nr. 6100, final decisions in
cases where the amount or value does not exceed the appellate review threshold
cannot be subjected to appellate review. It further states that, where the
monetary amount subject to appeal falls below the threshold, the appeal
petition must be rejected in accordance with Article 352(1)(b) of the CCP, as
referred to through Article 366 of the said Code. In the case underlying the decision,
it was determined that the total amount adjudicated, rejected, and
simultaneously subject to appeal was converted into Turkish lira based on the
exchange rate on the date of the claim. As a result of this conversion, the
amounts remained below the appellate review threshold of TRY 544,000.- in
effect as of the date of the Regional Court of Appeal’s decision. Consequently,
it was concluded that recourse to appellate review was not possible due to the
monetary threshold. In this respect, the decision demonstrates that, in cases
concerning claims denominated in foreign currency, the exchange rate on the
date of the claim should be used when determining the appellate review
threshold, and that this approach directly affects access to the legal remedy.
In the dissenting opinion regarding the decision, the
essence of the ruling and the dispute was explained as follows: “In cases
filed for claims or debt enforcement actions denominated in foreign currency,
where a judgment is rendered in foreign currency, the issue centers on whether
the amount in dispute should be calculated based on the exchange rate on the
date of the claim or the exchange rate on the date of the decision. This is
because if the exchange rate on the date of the claim is taken as the basis,
access to appellate review may be closed, whereas if the exchange rate on the
date of the decision is used, legal remedies may remain available.”
As understood from the dissenting opinion, in this
present case, the plaintiff submitted a claim in foreign currency under the petition,
and the court rendered its judgment for collection in the same foreign
currency. This indicates that the claim concerns performance in kind of the
foreign currency. Where the creditor requests performance in kind, the debt
must, as a rule, be satisfied in the foreign currency.
However, pursuant to Article 58(3) of the Debt Enforcement
and Bankruptcy Law, in debt enforcement proceedings concerning claims in
foreign currency, it is mandatory to clearly indicate the exchange rate and the
relevant date used to determine the Turkish lira equivalent of the claimed
amount. While the creditor’s request for performance in foreign currency grants
a limited choice to the debtor, the debtor may discharge the debt either by
paying the foreign currency in kind or by paying the Turkish lira equivalent
calculated at the exchange rate on the actual date of payment. Within this
framework, initiating debt enforcement proceedings in foreign currency does not
automatically or necessarily require that the foreign currency be collected in
kind from the debtor and delivered to the creditor. On the contrary, a creditor
requesting payment in foreign currency must claim the Turkish lira equivalent
calculated based on the exchange rate on the actual date of payment.
In the dissenting opinion, reference is made to the
decision, dated 07.04.1993 and numbered 13-41/145, of the General Assembly of
the Court of Cassation, which stated that “By requesting payment of the
principal in kind, the plaintiff is deemed to have requested payment in Turkish
lira at the prevailing rate on the actual date of payment.” This clearly demonstrates,
within the framework of the Debt Enforcement and Bankruptcy Law, that a claim
for payment in foreign currency in kind also encompasses payment in Turkish
lira calculated at the exchange rate on the actual date of payment.
Accordingly, where the creditor does not have a claim converted into Turkish
lira based on the exchange rate on the due date or the date of the claim, it is
accepted that the amount adjudicated corresponds to the foreign currency amount
at the date of the judgment.
On the other hand, the question of which exchange rate
should be used for determining the monetary threshold for appellate review in
judgments concerning claims in foreign currency has been a subject of debate
both in judicial decisions and in the doctrine. In this context, Prof. Dr.
Hakan Pekcanıtez [2] has stated that where a foreign currency claim appreciates
in value by the date of judgment, the threshold should be calculated based on
the exchange rate at the date the court renders its judgment rather than the
exchange rate on the date of the claim.
Indeed, within the framework of this debate, which
directly affects access to appellate review, it is observed that, upon an
application for unification of precedents, the 11th Civil Chamber of
the Court of Cassation and the abolished 15th Civil Chamber held
that the exchange rate on the date of the claim should be taken as the basis,
whereas the 9th, 12th, and the abolished 23rd Civil
Chambers held that the exchange rate on the date of the judgment should be
used. However, on the grounds that this divergence does not constitute a
persistent conflict of precedents, the First Presidency Board of the Court of
Cassation, by its decision dated 9.12.2020 and numbered 338, concluded that
there was no need to unify the precedents.
It is stated, under the dissenting opinion, that due
to the continuous fluctuations of foreign currency under a floating exchange
rate regime, it is necessary to base the determination of monetary thresholds
and attorney’s fees on the date of the judgment. This approach is emphasized as
being both required by statutory provisions and ensuring that the actual and
current value of the adjudicated claim is accurately reflected. Furthermore, it
is noted that, in the enforcement of a judgment for a foreign currency claim
through debt enforcement office, the Turkish lira equivalent of the foreign
currency at the date of the judgment should also be taken as the basis.
Within this framework, as in the dispute underlying
the decision, it is argued that, both with respect to attorney’s fees and the
monetary threshold for appellate review and court fees, the relevant basis
should be the Turkish lira equivalent of the foreign currency at the date of
the judgment. Accordingly, it is concluded that the dissenting opinion does not
concur with the majority opinion, which rejected the appeal on the grounds of
the monetary threshold, and emphasizes that the case should be examined on its
merits.
3. Conclusion
In the Court of Cassation’s decision under review, the
majority opinion holds that, in cases concerning claims in foreign currency,
the determination of the monetary threshold for appellate review should be
based on the Turkish lira equivalent of the foreign currency on the date of the
claim. Under this approach, the amount in dispute established at the time the
lawsuit is filed is considered decisive for access to appellate review, and in
disputes where the calculation based on the exchange rate on the date of the
claim results in an amount below the threshold, appellate review is not
permitted.
In contrast, the dissenting opinion emphasizes that,
due to the continuous fluctuations of foreign currency under a floating
exchange rate regime, it is more appropriate—both in terms of statutory
provisions and the actual and current value of the adjudicated claim—to base
the determination of monetary thresholds and attorney’s fees on the date of the
judgment. According to the dissenting opinion, since the Turkish lira
equivalent of the foreign currency at the date of the judgment is also taken as
the basis during the enforcement of a judgment for a foreign currency claim,
the exchange rate on the date of the judgment should likewise be applied when
determining the monetary threshold for appellate review and court fees.
Accordingly, the fundamental divergence between the
majority decision of the Court of Cassation and the dissenting opinion centers
on which exchange rate date should be used in determining the monetary
threshold for appellate review in foreign currency claims. While the majority
opinion restricts access to appellate review by relying on the exchange rate on
the date of the claim, the dissenting opinion argues that the exchange rate on
the date of the judgment should be applied to preserve both the actual value of
the claim and the opportunity to seek appellate review.
Please note that this article, originally written in
Turkish, has been translated with the support of AI-based tools and then
reviewed and edited by human editors.
Att. Melda İz
References:
1. Decision, bearing the Basis number 2025/1175, and
the Decision number 2025/1821 and dated 30.04.2025, of the 6th Civil
Chamber of the Court of Cessation
2. Medeni Usul ve
İcra İflas Hukukunda Yabancı Para Alacaklarının Tahsili, Genişletilmiş ve Yeniden
Gözden Geçirilmiş [Recovery of Foreign Currency Claims in Civil Procedure
and Debt Enforcement and Bankruptcy Law (Expanded and Revised Edition)], Ankara,
1998, Prof. Dr. Hakan Pekcanıtez
