The Unification of Jurisprudence Decision on the Examination of the Application Made within the Legal Remedy Period Incorrectly Indicated in the Decision
The Grand General Assembly of the Unification of Jurisprudence ("GGAUJ") ruled with the Decision of the Grand General Assembly of the Unification of Jurisprudence dated 28.04.2023 numbered 2021/5 E. 2023/2 K. ("Decision") that if the legal remedy period is erroneously indicated longer in the decision in civil cases, the legal remedy application made within the erroneously indicated period must be examined.
Subject of Unification of Jurisprudence
With its decision dated 27.05.2021 and numbered 159, the First Presidency Board of the Court of Cassation stated that there is a difference of opinion among the legal chambers of the Court of Cassation regarding whether the application made within the incorrectly indicated legal remedy period will be examined in the event that the legal remedy period is incorrectly indicated in the decision in civil cases and that different practices are maintained, and decided that the difference of opinion should be resolved by unifying the case law.
Opinions of the Relevant Chambers
Within the scope of the summary opinions in the Decision, it is understood that the 9th Civil Chamber and the 11th Civil Chamber of the Court of Cassation are of the opinion that even if the legal remedy period is erroneously indicated as longer in the decision in civil cases, the application made after the period specified in the law should not be examined. Emphasizing that the remedy periods set out in the law are final and forfeitures and that the judge may not increase or decrease the periods set out in the law, except for the exceptional circumstances specified in the law pursuant to Article 90 of the Code of Civil Procedure No. 6100 ("CCP"), the relevant chambers are of the opinion that mistakenly indicating a longer remedy period in the decision would mean granting the parties a right beyond the period set out in the law.
Again, according to the relevant opinions, such a practice means the violation of the acquired right in favor of the other party and is contrary to the principle of equality regulated in Article 10 of the Constitution. For these reasons, it is stated that it is not possible to examine the application made after the period specified in the law, even if the legal remedy period is indicated longer in the decision in civil cases.
As it is understood from the Decision, the 2nd Civil Chamber, 3rd Civil Chamber, 8th Civil Chamber, 10th Civil Chamber, and 20th Civil Chamber of the Court of Cassation, on the other hand, are of the opinion that the application made within this period should be examined even if the legal remedy period in civil cases is incorrectly indicated in the decision. In the relevant opinions, it is stated that it is obligatory to indicate the legal remedy to be applied and its duration correctly in the court judgements, that the decision to reject the legal remedy application due to the incorrect indication of the duration in the judgement will lead to the restriction of the right of access to the court, which is one of the most fundamental elements of the right to a fair trial, and that although the right of access to the court is not an absolute right as a rule, but a right that can be limited, this limitation should not be applied in a way that harms the essence of the right of access to the court and legal remedies. In the relevant opinions, the decisions of the Constitutional Court were emphasized, and it was stated that the application for legal remedy made within the period specified by the court in its decision should not be interpreted to the detriment of the applicant party in a way that would lead to loss of rights, and it was concluded that the application should be examined.
Reasoning of the Unification Decision
According to the GGAUJ, the legal problem that leads to the difference of opinion is whether the legal remedy is filed within the period of time that is determined shorter in the law but erroneously indicated as longer in the decision, and if the legal remedy application of the party who has been misled by the court is examined, this situation will lead to the result of the elimination of the provisions regarding the mandatory definite periods regulated in the CCP. According to the Decision, this issue lies on the basis of the discrepancies between the doctrine and the Court of Cassation.
On the one hand, there is the person who applies for legal remedy within the time limit specified in the judgement by relying on the court decision, and on the other hand, there are the provisions of the law regarding the definite time limit, which cannot be increased or decreased by the judge. According to the GGAUJ, the issue should be evaluated within the scope of the rule of law, the freedom to seek rights and the right of access to the court, which are guaranteed by the Constitution.
Emphasizing that the right to apply to the judicial authorities is regulated in Article 36 of the Constitution under the title of the freedom to seek rights, the GGAUJ stated that for a case to be heard by a court and for the person to benefit from the guarantees within the scope of the right to a fair trial, the person must first be granted the right of access to the court. According to the reasoning of the Decision, as a requirement of being a state of law, the state is obliged to ensure the effective exercise of the freedom to seek rights and thus the right to sue and to establish mechanisms for the exercise of this right. In various judgements of the European Court of Human Rights ("ECtHR"), it is stated that the right of access to a court requires that a coherent system of recourse to the court exists and that the person who wishes to bring a case has clear, practical and effective opportunities to access the court. For this reason, the ECtHR finds violations of this right where legal uncertainty or uncertainties in practice impair the parties' access to the court.
Pointing out that, under Article 40 of the Constitution and Article 297 of the CCP, the legal remedies and authorities to which the applicant may apply and the time limits thereof must be specified in the judgement, the GGAUJ stated that it is a constitutional and legal requirement to indicate these time limits correctly and that in this way, the freedom to seek rights and the right to a fair trial will be established.
As referenced in the Decision, the Constitutional Court is of the opinion that the decision rejecting the appeal on the grounds of time, in cases where the time limit for the remedy is incorrectly indicated, damages the essence of the right of access to the court and violates the right of access to the court within the scope of the right to a fair trial regulated under Article 36 of the Constitution.
In the Decision, it is also stated that the obligation of the judge to determine the legal provision to be applied in the dispute and to apply it ex officio and to show the parties the legal remedy period within this framework is related to public order and that failure to apply for legal remedy within the time limit will not constitute a procedural vested right for the other party. In this context, the GGAUJ is of the opinion that such a practice cannot be characterized as the elimination of the rule that the definite period cannot be changed or the change of the legal remedy period. Here, it cannot be said that the judge has extended the definite period of time; it is a matter of misleading the parties by misrepresenting the period of time as a result of an error.
In the light of the detailed evaluations made, it has been decided by the majority of votes that if the legal remedy period is erroneously indicated as long in the judgement in civil cases, the legal remedy application made by complying with the erroneously indicated period should be examined.
The GGAUJ evaluated the issue in dispute within the scope of the right to a fair trial and the right of access to the court and emphasized that a rigid and formalistic application would lead to the loss of rights of the party who relies on the court decision and applies for legal remedy within the period specified in the decision, and that this situation is contrary to the purpose of the law. With this decision, it is understood that the GGAUJ aims to prevent the restriction of the right of access to the court due to the complexity of the legislation and the error caused by the court.
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