The Constitutional Court, with its decision published in Official Gazette number 29633 on 23 February 2016, struck out part of Article 20(1) of the Turkish Code of Civil Procedure ("Code") on the grounds that it exceeds its aims and restricts the right to legal remedies (Decision numbered E. 2015/96, K. 2016/9, dated 10 February 2016). According to the article, if a court gives a decision about jurisdiction or competence, parties are allowed two weeks to appeal, beginning on the decision's date. The court ruled to strike out the phrase which states the appeal period begins on the decision's date.

Under the Code, parties can object to a court's jurisdiction or competence at any stage of litigation. The court can choose to render its decision based on the casefile alone, without the parties being present at the court. The court is also not legislatively required to pronounce or serve its decision to the parties. Under the Code, once a jurisdiction or competence decision is made, parties receive two weeks to appeal, starting from the decision's date. However, since the court is not obliged to notify the parties about its decision, parties may not be aware of the decision and lose their opportunity to appeal.

The right of access courts is accepted as an element of the constitutional right to a fair trial (Article 36 of the Constitution). According to the European Court of Human Rights, restrictions on an individual's right of reach the court must not injure the core of this right.

The Constitutional Court noted that Article 20(1) was intended to expedite proceedings and decrease judicial workload. However, it found that an appropriate balance did not exist between the article's aim and the risks involved in making a final decision without the parties present, or without the court pronouncing or serving the decision to the parties. Accordingly, it struck out the phrase "if this decision is final as of its rendering, starting from this date" from the article. The struck out phrase will be removed from the Code, taking effect nine months after the publication date of the Constitutional Court's decision in Official Gazette, since the court deems the legal gap that will occur due to the cancellation will violate public interests.

The Constitutional Court does not specifically state in its decision when the two week appeal period should now be calculated from and it is not the court's role to make such a declaration. According to general principles under Turkish law though, the period would begin on the date the parties are advised of or duly served the decision (Article 91 of the Code). Further judicial or legislative clarification on this subject is necessary.

Please see this link for the full text of the Constitutional Court decision (only available in Turkish).

Information first published in the MA | Gazette, a fortnightly legal update newsletter produced by Moroğlu Arseven.

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