Constitutional Court Decision on the Time Limit for Requesting an Appeal and the Right of Access to the Court

30.11.2022 Ece Özsü

Introduction

The Constitutional Court's decision dated 14.09.2022 and published in the Official Gazette dated 25.10.2022 and numbered 31994 ("the Constitutional Court Decision") examines whether the start of the application period related to the applicant’s request for appeal being from the date of the pronouncement of the judgement violates the right of access to the court.

This study will analyze this Constitutional Court Decision, which states that the rejection of an appeal application due to failure to file within the time limit violates the right of access to the court.[1]

Constitutional Court Decision on the Time Limit for Requesting an Appeal and the Right of Access to the Court
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Material Facts of the Case

The applicants, İhsan Yücel and Necmiye Anaç ("the Applicants") filed a lawsuit before the Seferihisar Enforcement Civil Court and the Serik Enforcement Civil Court ("the ECCs") for a dispute arising out of enforcement law. The ECCs dismissed the case with a short decision[2] rendered at the hearing attended by the parties. The ECCs stated that their decision could be appealed within 10 days of the announcement date for those who were present and within 10 days of the notification date for those who were not present when the decision was made.

In the case filed before Seferihisar Enforcement Civil Court, the applicant was notified of the reasoned decision on 21.01.2019 and they filed an appeal against the decision on 30.01.2019. The 8th Civil Chamber of the Izmir Regional Court of Appeal which examined the appeal application, ruled that the appeal application was not filed in due time on the grounds that the decision of the enforcement court was announced in the applicant's presence on 21.12.2018, the appeal application was not filed within 10 days after the pronouncement as per Article 363 of the Execution and Bankruptcy Law ("EBL"), and no time keeping petition[3] was submitted.

In the case filed before Serik Enforcement Civil Court, the applicant was notified of the reasoned decision on 10.04.2019 and the applicant filed an appeal against the decision on 17.04.2019. The Court ruled that the appeal application was not filed within the time limit, on the grounds that the appeal application was not filed within 10 days from the date of the pronouncement and that no time keeping petition was submitted. The applicant appealed against this decision, and the 12th Civil Chamber of the Antalya Regional Court of Appeal rejected the appeal on the merits.

The applicants made separate individual applications to the Constitutional Court, claiming that in order for the appeal period to start upon the pronouncement of the judgment, all matters regarding the judgment should have been explained in the short decision[4], and that the short judgment did not contain reasons, and therefore the rejection of the appeal application due to the time limit violated their right of access to the court.

Since the subjects of the individual application requests of the applicants on various dates were the same, the applications were examined by the Constitutional Court in a single file.

Examination of the Allegation of Violation of the Right of Access to Court

In the Constitutional Court Decision, the right of access to a court is considered as an element of the right to legal remedies guaranteed by Article 36 of the Constitution, and is defined as "being able to bring a dispute before a court and to request an effective resolution of the dispute".[5] The Constitutional Court stated that in proceedings concerning civil rights and obligations, in cases where legal remedies such as appeal and cassation are available, the guarantees within the scope of the right to a fair trial should also be provided in terms of these remedies. Within this framework, the Constitutional Court determined that the rejection of the requests for appeal on the grounds of time limitation and the failure of lower courts to examine the merits of the applications constituted an interference with the right of access to the court.[6]

The Constitutional Court examined whether this intervention was contrary to the principles of legality, legitimate purpose and proportionality:

1. Legality

The Constitutional Court found that the absence of examination of the appeal application against the first instance court decision due to the time limit was based on Article 363 of the EBL, therefore the interference with the right of access to the court had a legal basis.

2. Legitimate Purpose

The Constitutional Court found that the requirement of a certain limitation of time for the right to apply for a legal remedy serves an important and legitimate purpose within the framework of the principles of legal security and stability. This is because the purpose of setting a certain time limit for the application for a legal remedy is to prevent proceedings from dragging on, and the possibility of eliminating judicial decisions and their consequences is incompatible with the principles of security and stability.

3. Proportionality

The principle of proportionality consists of three sub-principles: convenience, necessity and commensurability. In this case, the Constitutional Court did not evaluate whether the interference was suitable for achieving the objective sought (convenience) or whether the interference was necessary in terms of its intended objective, and stated that there was no need to discuss these issues. According to the Constitutional Court, what should be emphasized is whether the interference was commensurate or not. In other words, the Constitutional Court’s Decision examined whether there was a reasonable balance between the interference with the right of access to the court and the purpose to be achieved.

Evaluation

The Constitutional Court stated that limiting the right to file a lawsuit to a certain period of time in order to ensure the security and stability of law does not violate the right of access to the court by itself, but the prescribed period should not be so short as to make it impossible or excessively difficult to exercise the right. The moment when the time limit for filing a lawsuit starts to run is also important in terms of the proportionality of the intervention.

According to the jurisprudence of the Court of Cassation, a judgement that does not have the elements listed in Article 297 of the Code of Civil Procedure no. 6100 ("CCP") is not considered as a validly pronounced judgment. Therefore, the period for legal remedy does not start until the reasoned decision is served. Indeed, the Constitutional Court draws attention to this issue in its decision dated 20.03.2014, Application No: 2012/1034. In this decision, where the application was made after the approval of the reasoned decision but without the applicant being notified of the reasoned decision, the Constitutional Court emphasized that if the period to apply for a legal remedy starts from the date of the pronouncement, it is obligatory to provide a reason that will form the basis of the judgment.

Turning to the material facts, the Court stated that the short judgment of the first instance Enforcement Courts did not include any reasoning, and only the result of the judgment was announced. The Court cited Article 363 of the EBL, which was in force on the date of the incident, which states that “The period of application for appeal is ten days from the date of pronouncement or notification.”

In the case at hand, there was no doubt that the period of appeal would start within 10 days after the pronouncement or notification. In its Decision, the Court examined the question of when the 10-day period starts from the time that a party is notified of a decision, and in which case it begins from the pronouncement. A court decision without reasons is not deemed to have been pronounced, and therefore the legal remedy period does not start until the reasoned decision has been served or pronounced. As a matter of fact, in this case, the Applicants filed an appeal against the judgment within 10 days from the date of notification, as the reasons for the decisions of the Enforcement Courts were not explained in the notification.

Within the framework of all these explanations, the Constitutional Court concluded that the Applicants did not learn the reasoning of the decision together with the short decision, and that waiting for the Applicants, who did not know the reasoning of the decision, to apply for the legal remedy of appeal within 10 days from the announcement of the short decision imposed a heavy burden on the Applicants. It determined that the interpretation regarding the commencement of the appeal period by the Enforcement Courts as of the pronouncement of the judgment without explaining the reasons for the judgment was arbitrary, that the burden that the Applicants had to endure was incommensurate to the legitimate purpose pursued and that the interference was not proportionate.

The Constitutional Court ruled that the applicants' allegations of a violation of the right of access to the court were admissible and that the right of access to the court within the scope of the right to a fair trial guaranteed under Article 36 of the Constitution was violated.

Conclusion

The Constitutional Court concluded that the Applicants' right of access to the court was violated due to the decision to reject their appeal requests for failure to file in a timely manner. The most important reason for the Constitutional Court to come to this conclusion is the absence of the reasoning of the judgment and the heavy burden imposed on the applicants who do not know the reasoning of the judgment and whose appeal period starts from the date of the judgment. It should be underlined that, in reaching this decision, the Constitutional Court did not consider whether the Applicants submitted a time keeping petition to the court of first instance or not, but focused on the incommensurate nature of the interference with the right of access to the court.

References
  • For the full text see also https://www.resmigazete.gov.tr/eskiler/2022/10/20221025-19.pdf
  • In Turkish law, the term of “short decision” refers to the decision without reason
  • In Turkish law, when the court renders its decision without any reason and announces it during the hearing, in the presence of the attorneys, the present parties submits a time keeping petition in order to state that they reserve their rights to appeal after the reasoned decision is received.
  • In Turkish law, the term of “short decision” refers to the decision without reason
  • CC Decision para.21
  • CC Decision, para.23

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