Recent Development
With its decision numbered 2021/5 E., 2023/2 K. (“Decision“), the Court of Cassation General Assembly on the Unification of Judgements (“Court“) has decided that the application for legal remedy made according to the legal remedy period shown erroneously in the court decisions should be examined. The conclusion of the Decision shall be binding on all courts and judicial and administrative bodies. You can access the decision published in the Official Gazette dated 14.09.2023 here.
What does this development mean?
The subject of the Court’s decision to unify the case-law is the erroneous indication by the courts in the paragraph of the judgment of the period of application for legal remedy, which is undisputed to be of a final nature. On this issue, a difference of opinion and practice has emerged between some chambers of the Court of Cassation, including the General Assembly of Civil Chambers.
The basis of the dispute between the chambers is whether examining the application for legal remedy made based on the erroneous deadline on its merits will eliminate the consequences that the law binds to the definitive period.
First of all, the Court has determined that the right to apply for a remedy is an integral part of the freedom to claim rights and the right of access to the court guaranteed by the Constitution, and has decided to make an assessment in line with these rights.
According to this assessment, the Court stated that one of the most fundamental obligations of Rechtsstaat is to provide individuals with the necessary remedies as a result of the violation of their rights and freedoms pursuant to Article 40 of the Constitution. As a matter of fact, the Court has determined that the freedom to claim rights regulated under Article 36 of the Constitution guarantees the right of individuals to apply both as plaintiffs and defendants, as well as their right to claim, defense and fair trial. For this reason, the Court stated that the right of access to the court is a fundamental element of the freedom to claim rights. In fact, it stated that in a situation where the right of access to the court is not ensured, the other guarantees contained in the right to a fair trial will also become ineffective.
The Court further stated that the state is under an obligation not only to provide legal protection to its citizens but also to establish effective mechanisms to ensure its exercise. In this respect, the Court referred to the findings of the European Court of Human Rights (“ECHR“) that the right of access to a court is an integral part of the principle of the rule of law and therefore, there must be a coherent system of recourse to the courts and individuals must have clear, practical and effective opportunities to access the courts. Similarly, the Court cited the ECHR’s ruling in Bayar and Gürbüz v. Turkey that the right to apply for legal remedies, recognized under domestic law, must be effectively exercised.
In addition to the above matters, the Court stated that the obligation of the state in its proceedings to inform individuals of the legal remedies and the time periods within which they must apply to the legal remedies, as provided under Article 40 of the Constitution, is an obligation in terms of freedom to claim rights. Furthermore, the Court stated that, pursuant to Article 297 of the Code of Civil Procedures No. 6100, one of the elements that must be included in the judgments of the courts in civil cases is the legal remedies, if any, and the application period for them. The Court concluded that it is a constitutional requirement that the correct indication of the legal remedy and its period of application is provided.
The Court further stated that there is no dispute that the period of application for legal remedies is a definite and prescriptive period. However, the Court emphasized that in cases where the courts are at fault for the late filing of the application for a legal remedy (for instance, when the courts erroneously indicate the application period), a strict adherence to the definite nature of the period for the application for remedies may violate the right of access to the courts. Thus, the Court concluded that the application made in accordance with the erroneously indicated legal remedy period should be deemed to have been filed in due time by evaluating it within the scope of the right to a fair trial and right to access to the court.
Finally, the Court stated that the application periods for legal remedies that the courts erroneously indicated in their judgments must be stipulated in the law. Otherwise, an erroneous judgment on a period that is not regulated at all shall not provide the parties with the right to apply for a legal remedy. The Court stated that in cases where the courts erroneously indicate in the judgment that the legal remedy is available, a judicial review cannot be conducted on the merits.
Conclusion
With the decision of the Court of Cassation General Assembly on the Unification of Judgements , a decision was made to unify the case law in order to enable the examination of the applications made in compliance with the period of application for legal remedy, which the courts erroneously indicated in their judgments, on the merits. This conclusion of the Court shall be binding in terms of its subject on other courts, judicial and administrative authorities.
