The Constitutional Court recently considered an applicant's right to receive a fair trial. The court held this constitutional right to receive a fair trial was violated in these circumstances because the court of first instance gave a decision regarding cancellation of an enforcement proceeding, contrary to mandatory rules and without jurisdiction over the dispute.
The applicant initiated an enforcement proceeding, receiving a judgement for payment of the applicant's attorney's fee. The debtor of the proceeding brought an action for annulment of enforcement proceeding before Labor Court. The court held that the action had the characteristic of an action for annulment of objection. It awarded the debtor 25% compensation for denegation of enforcement and nullified the objection.
The Constitutional Court held that the applicant's right to receive a fair trial had been violated, particularly the right to receive a justified decision.
According to Article 16 of Law numbered 2004, it is clear that the annulment of the execution order must be claimed before the Enforcement Court. No time limits apply to such claims. In this case, despite the court's statement that the action has the characteristic of an action for annulment of objection, the Labor Court acted as an Enforcement Court, ruling on a claim regarding enforcement proceedings.
In addition, the Labor Court awarded the debtor 25% compensation for denegation of enforcement. Compensation for denegation of enforcement can only be awarded if the action is accepted for annulment of objection against enforcement proceeding without judgment. It is not possible to award compensation for denegation of enforcement while ruling on the nullification of the objection.
During the trial, the applicant's claim must be made before the Enforcement Court. However, the Labor Court ruled on a claim regarding an enforcement proceedings, without jurisdiction over the subject matter. Even if the action is deemed to be an action for annulment of objection, the annulment can only be claimed by a creditor, not a debtor. In addition, compensation for denegation of enforcement at the rate of more than 20% must be provided together with justification from the court. The court did not provide the justification in these circumstances and did not consider the substantial objections about the case.
Accordingly, the Constitutional Court held the applicant's right to fair trial were violated. However, the court rejected the applicant's claim about violation of the right to receive due process before an objective court, due to lack of legal basis.
The full text of the Constitutional Court's decision can be found at this link (only available in Turkish).
Information first published in the MA | Gazette, a fortnightly legal update newsletter produced by Moroğlu Arseven.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
