As we approach the halfway point of 2023, the overload of litigation continues unbated and this issue remains as concerning as ever. On one hand, the courts are still very busy, and on the other hand, we see a number of innovations coming to balance this busyness. In addition, with the rapid globalization of the world, steps are being taken to globalize litigation.
In this issue of Litigation Quarterly, we have compiled decisions of Turkish courts as well as foreign courts that had global significance in the past year. We have also covered developments in the field of litigation for the last three months, the new trends in the world of litigation, as well as recent data that has shed light on the past year of litigation.
Significant court decisions concerning litigation
1.1 The constitutional court underlined that court decisions should be reasoned within the scope of the right to a reasoned decision.1
In its recently published decision, the constitutional court emphasized the "right to a reasoned decision" within the right to a fair trial and ruled that, even if the courts use their discretionary power, the reasons considered whilst doing so must be indicated and explained.
The application subject to the decision was brought before the constitutional court by a subcontracted worker in a state institution. The applicant applied to the administration to be appointed as a permanent worker. The administration rejected the application on the grounds that the security investigation conducted on the applicant was negative and, accordingly, the applicant's employment contract was terminated. The applicant challenged the decision before the administrative courts, arguing that they were not informed of the reasons for the negative outcome of the security investigation. The first instance court rejected the application, stating that the administration had discretionary power on the matter. The applicant then filed an appeal against the decision, but this application was also rejected by the appellate court.
The constitutional court emphasized that the requirement for a positive outcome of the security investigation for appointment as a permanent worker makes the process ambiguous. This is because, whether the outcome of a security investigation is positive or negative may depend on the initiative of the person or persons authorized to make this decision. This may lead to arbitrary practices and, at the end of the day, to a loss of trust in the state. Therefore, the constitutional court stated that the court decisions have to be reasoned because of the requirement of right to a fair trial and, in this context, it is necessary to provide a reasonable justification for the discretion used in reaching the conclusion and the reasons behind such decision to prevent arbitrary practices.
Additionally, the issues determined as a result of the investigations and examinations carried out by the courts must be set out in the reasoned decision in a manner that will ensure the principles of legal security and certainty and prevent arbitrary practices. The constitutional court, therefore, found that it was not clear why the security investigation regarding the applicant was considered negative, and the findings regarding the applicant were not shared or explained in the decision. The constitutional court added that, if there are valid reasons not to show the applicant the documents and evidence on which the judgment is based, such as public safety or the protection of the rights of others, other compensatory opportunities should be considered and provided to satisfy the relevant applicant's right to defense. These may include, for example, informing the applicant of the content of the document, giving the applicant the opportunity to examine the document in the court as long as the confidential parts are blocked out, and allowing the applicant to submit their defense and objections to the court. Therefore, since the applicant was neither notified of the reasoning nor given the opportunity to learn its content, the constitutional court ruled that the applicant's right to a reasoned decision was violated, thereby violating the right to a fair trial.
1.2 The constitutional court annulled the provision under the Code of Criminal Procedure that an objection can be made against the decision to defer the announcement of the verdict.2
The constitutional court annulled Article 231/12 of Code of Criminal Procedure No. 5271 (CCP) that regulates the right to object to the deferment of the verdict announcement. The annulment decision will enter into force on 23 June 2023. The deferment of the announcement of the verdict is a practice that prevents the defendant from entering a penal institution and ensures that the conviction does not have legal consequences for the defendant under certain conditions. With the decision to defer the announcement of the verdict, the defendant is subject to a five-year supervision period. If the defendant complies with the obligations and does not commit an intentional crime during this supervision period, the decision to defer the announcement of the verdict is annulled at the end of the period and the criminal case is dismissed.
Within the scope of the annulled Article 231/12 of the CCP, the legal remedy that was available against the deferment of the announcement of the verdict was regulated as an objection. In this case, the injured party or the victim of the crime had the right to object to the deferment decision.
The constitutional court found this provision contrary to the right to legal remedies regulated under Article 40 of the Constitution and annulled the provision because the objection procedure does not provide sufficient procedural guarantees, does not offer a chance of success, is decided upon only by examining the file and is not an effective means of review. With the annulment of this provision, it is expected that the legal remedy to be applied against the deferment of the announcement of the verdict will be regulated by additional regulations.3
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1. Constitutional Court Application No.: 2019/26463, Decision Date: 12.1.2023. You may access Constitutional Court's judgement here.
2. Constitutional Court File No.: 2021/121, Decision No.: 2022/88, Decision Date: 20 July 2022. You may access the constitutional court's judgment here.
3. You may access the details of the case from our legal alert.
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