Time Limits And Procedure In The Event Of A Case Being Brought Before An Incompetent Court: The Legal Consequences Of A Ruling On Lack Of Jurisdiction

The correct determination of which branch of the judiciary has jurisdiction over a dispute is important not only for identifying the judicial authority that will examine the merits of the case, but also for the effective exercise of the right to seek redress, the protection of time limits for bringing proceedings, and the observance of procedural rights acquired by the parties. This is because the division of jurisdiction between the ordinary and administrative courts relates to public order and may be taken into account ex officio by the courts at every stage of the proceedings.

However, the fact that a dispute has been brought before a court lacking jurisdiction does not necessarily mean that the claimant has lost their right to a remedy. Our legal system contains provisions allowing an application made to a court lacking jurisdiction to be transferred to the competent court under certain conditions.

However, this protection is subject to different procedural rules and time limits depending on the branch of the judiciary; these procedural rules and time limits are examined below under two headings.

1. Filing a Case in the Ordinary Courts That Should Be Heard in the Administrative Courts

Where a dispute falling within the jurisdiction of the administrative courts is brought before the ordinary courts, the case is dismissed on procedural grounds upon a finding that the dispute lies outside the jurisdiction of the ordinary courts. The specific provision applicable in such cases is Article 9 of the Code of Administrative Procedure No. 2577 (‘İYUK’).

Pursuant to Article 9(1) of the AJP, where a case falling within the jurisdiction of the administrative courts is brought before the ordinary courts and is dismissed on grounds of lack of jurisdiction, proceedings may be brought before the competent administrative court within thirty days from the date on which the decision on lack of jurisdiction becomes final. More importantly, the date of the application to the court lacking jurisdiction is deemed to be the date of application to the administrative courts. In this way, the legislature prevents, under certain conditions, any loss of time that might arise from the claimant’s choice of the incorrect branch of the judiciary.

This thirty-day period should not, at first glance, be regarded as a new and independent time limit for bringing a claim. This is because the purpose of Article 9 of the Administrative Courts Law is to ensure that a claim filed within the time limit but with the wrong judicial body is preserved before the competent administrative court. Indeed, it is accepted that a case filed with the incorrect judicial body must also have been filed within the time limit for bringing an administrative action. In other words, Article 9 of the Administrative Courts Law is not a provision that revives a time-barred case, but rather a special procedural provision ensuring the protection, under certain conditions, of a time-compliant application filed with the incorrect judicial body.

Article 9(2) of the Administrative Courts Law introduces an important supplementary provision. According to this, even if the thirty-day period has elapsed since the decision on lack of jurisdiction became final, provided that the time limit for bringing an administrative action has not yet expired, it is possible to bring an action before the administrative courts within that period. Consequently, in practice, two separate time limits must be assessed together: firstly, whether the application to the incorrect judicial authority was made within the time limit for bringing the main action; and secondly, within what time limit the application to the competent administrative court was made following the finalisation of the decision on lack of jurisdiction.

The concept of ‘finality’ also holds particular significance here. Where an appeal is lodged against a decision on lack of jurisdiction, the start of the thirty-day period is determined not by the date of the first-instance court’s decision, but by the completion of the appeal process and the decision becoming final. In practice, it is accepted that the period begins upon service of the decision rejecting the appeal against the decision on lack of jurisdiction.

Underlying this provision is the principle of safeguarding the freedom to seek redress, as guaranteed by Article 36 of the Constitution, alongside the principles of procedural economy and the right of access to the courts. Indeed, this situation indicates that, whilst the right to bring a claim is subject to statutory conditions, excessive formalism must be avoided in the application of procedural rules.

1. The Filing of a Case in the Administrative Courts That Should Be Heard in the Ordinary Courts

The situation is different, however, where a dispute falling within the jurisdiction of the ordinary courts is brought before the administrative courts. It should first be noted that Article 9 of the Administrative Courts Organisation Act (İYUK) does not regulate this situation. The aforementioned provision merely provides for a special time-limit regime applicable where a case falling within the jurisdiction of the administrative courts is brought before the ordinary or military courts.

Should the administrative court determine that the dispute falls within the jurisdiction of the ordinary courts, the case is dismissed on grounds of lack of jurisdiction in accordance with Article 15(1)(a) of Law No. 2577. The key point here is that, unlike the ‘jurisdiction’ relationship between two different courts within the same branch of the judiciary, a dispute between two different branches of the judiciary is, in technical terms, a matter of ‘jurisdictional route’. Indeed, the Court of Cassation also emphasises that the provisions on jurisdiction in the Code of Civil Procedure (HMK) are, in essence, directed at the relationship of jurisdiction between courts within the ordinary courts; whereas the relationship between the ordinary and administrative courts is a matter of ‘jurisdictional route’.

For this reason, it is not, as a general rule, possible for a case file to be automatically transferred to a court of ordinary jurisdiction following a decision by an administrative court. There is no explicit and general provision, such as that found in Article 20 of the Code of Civil Procedure, governing the transfer of case files between the two branches of the judiciary. In practice, however, Article 158 of the Turkish Civil Code and the specific circumstances of the case take on particular importance, particularly with regard to the preservation of limitation periods and time limits.

However, in the decision of the General Assembly of the Court of Cassation dated 28 June 2022, Case No. 2021/902 E., Decision No. 2022/1049 K., it was held that in disputes concerning jurisdiction between ordinary courts, where a decision on lack of jurisdiction or lack of authority is issued, the claimant must file a new application within two weeks of the date on which the decision becomes final; otherwise, the case will be deemed not to have been brought. It was stated that this provision of Article 20 of the Code of Civil Procedure must also be applied by analogy in ‘jurisdictional’ disputes. In the relevant decision, it was stated that, as a case subsequently brought before the competent ordinary court is deemed to be a continuation of the case originally brought before the court lacking jurisdiction, and since the rights acquired by bringing the case before the court lacking jurisdiction are preserved, the limitation period shall also be determined according to the date on which the case was brought before the court within the erroneous judicial system. In some of its decisions, the Court of Cassation has also held that decisions deeming a case not to have been brought on the sole ground that it was not brought within the time limit set out in Article 20 of the Code of Civil Procedure are unfounded, and has accepted that such a case does not constitute a continuation of the case brought before the administrative court but is a new case.

On the other hand, where, following the bringing of proceedings before the incorrect judicial authority, both judicial authorities declare themselves to lack jurisdiction, there can be no question of ‘the bringing of new proceedings following a decision on lack of jurisdiction’. In such a case, a negative conflict of jurisdiction arises. Pursuant to Article 158 of the Constitution, the Court of Jurisdictional Disputes ( ) is the authority responsible for resolving jurisdictional disputes between the judicial and administrative courts. In such cases, the competent branch of the judiciary must be determined by referring the case file to the Court of Jurisdictional Disputes.

In this context, it is not appropriate to reach the definitive conclusion that ‘Article 20 of the Code of Civil Procedure applies by analogy in all cases’. Indeed, in the decision of the General Assembly of the Court of Cassation dated 24 April 2024, Case No. E.2023/104, Decision No. 2024/206, it was held that, although the case had initially been brought before the judicial courts, it was accepted that the case fell within the jurisdiction of the administrative courts; consequently, whilst an appeal to the administrative courts following the dismissal of the case on procedural grounds is permissible, if the administrative court raises a conflict of jurisdiction and the Court of Jurisdictional Disputes subsequently rules that the ordinary courts have jurisdiction, the ordinary court is obliged to hear the case by applying the decision of the Court of Jurisdictional Disputes; therefore, it was stated that there is no situation.

Conclusion:

The filing of a claim in the wrong branch of the judiciary should not be assessed, from the perspective of procedural law, merely as an ‘application to an incompetent court’; the judicial route, the time limit for bringing the action, the finalisation of the decision on lack of jurisdiction, the nature of the application and the scope of the Jurisdictional Disputes Court’s jurisdiction must be considered together.

Where a dispute falling within the jurisdiction of the administrative courts is brought before the ordinary courts, Article 9 of the Administrative Courts Organisation Act provides the claimant with explicit and specific protection. Conversely, where a dispute falling within the jurisdiction of the ordinary courts is brought before the administrative courts, as there is no provision of the same nature that can be directly applied, the statute of limitations and time-barring periods must be assessed in light of the specific circumstances of the case; in this regard, Article 20 of the Code of Civil Procedure (HMK), Article 158 of the Turkish Civil Code (TBK) and, where necessary, the mechanism of the Court of Jurisdictional Disputes must be considered separately.

In this context, the fact that a decision on lack of jurisdiction has been issued does not in itself imply that the proceedings have come to an end, nor should it be concluded that proceedings following the finalisation of the decision will automatically continue within the competent branch of the judiciary. In particular, to prevent any loss of time that may arise due to the incorrect determination of the competent judicial branch, the date on which the decision on lack of jurisdiction became final, whether an appeal has been lodged, and which procedural provisions apply to a new application in the relevant judicial branch must be carefully assessed on the basis of the specific facts of the case.

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.