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
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
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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