Individual Application 10/19

Press Release Concerning the Judgment Finding a Violation of the Right to a Fair Hearing Due to the Decision Contrary to the Established Case-Law of The Court of Cassation

On 22 January 2019, the First Section of the Constitutional Court found a violation of the right to a fair hearing, safeguarded by Article 36 of the Constitution, in the individual application lodged by Aşır Tunç (no. 2015/17453).

The Facts

The applicant, who had a shanty house built in 1976 on a certain part of an immovable registered in the name of another person, filed cases for annulment of the title deed and registration, before the incumbent civil court, against the owners of the immovable in question and their heirs in 1999 and 2008. These actions were joined for being interrelated. In 2013, the incumbent court dismissed the original case and the joined cases.

Taking into consideration that the joined case was filed in 2008, the first instance court indicated that as the Constitutional Court (“Court”) annulled the phrase “deceased” specified in Article 713 § 2 of the Turkish Civil Code no. 4721 and dated 17 March 2011, the conditions stipulated therein were not satisfied. The first instance court, making a reference to the Court’s decision annulling the relevant provision, dismissed the original and joined cases as legal conditions had not been satisfied.

The Court of Cassation upheld the first instance decision, which was appealed by the applicant, in 2014. After the applicant’s request for rectification of the judgment had been also dismissed by the Court of Cassation, the applicant filed an individual application.

The Applicant’s Allegations

The applicant maintained that the implementation of the Court’s annulment decision in a retroactive manner which would have a bearing on the previously acquired rights and the decision contrary to the established case-law of the Court of Cassation were in breach of his right to a fair hearing.

The Court’s Assessment

In the Turkish constitutional system, it is in principle adopted that the annulment decisions of the Court shall have no retroactive effect, in order not to tarnish public confidence in legal system and also not to cause disorder in the State affairs. It has been thereby ensured that situations which have had legal and practical effects and borne consequences will be deemed valid for the period until annulment decisions will take effect.

By its decision dated 17 March 2011, the Constitutional Court annulled the phrase “deceased” which was specified in Article 713 § 2 of Law no. 4721 and was also the legal ground for the joined case in the present application. In several judgments rendered by the relevant civil chamber of the Court of Cassation both prior to and after the impugned case, it has particularly been emphasized that the annulment decisions of the Court cannot be retroactive.

In his case filed in 2008, the applicant claimed that as the defendants’ testator, owner of the relevant immovable, died in 1943, the conditions of the extraordinary acquisitive prescription specified in Article 713 of Law no. 4721 had been satisfied in his favour. Indicating that the phrase “deceased” in the said provision had been annulled by the Court, the court dismissed the applicant’s case.

In the present incident, the applicant filed his case in 2008, the date prior to the Court’s annulment decision of 2011. However, the relevant civil chamber of the Court of Cassation departed from its other case-law in the present case and accordingly upheld the first instance decision whereby the applicant’s case had been dismissed due to the annulment of the said provision by the Court.

Although adoption of another case-law by the Court of Cassation which is entitled to interpret and apply provisions of law cannot be per se considered to be in breach of the right to a fair trial, it must be taken into consideration in the present case that the same chamber of the Court of Cassation continued applying the previous case-law in its subsequent judgments. Besides, in its said judgment, the relevant chamber did not submit any ground for its departure from the previous case-law.

Besides, it must be pointed out that no mechanism was employed to remove the said difference in the relevant case-law.

It has been accordingly observed that the case-law applicable to the present incident was not adopted by the same chamber and the Assembly of Civil Chambers of the Court of Cassation in dealing with disputes of the same nature; and that no consistent and uniform practice have been adopted by the Court of Cassation in this respect. This is in contravention of the principles of legal certainty and predictability as well as impairs the public confidence in judicial system and court decisions.

As a result, in the present case, the relevant chamber of the Court of Cassation rendered a judgment conflicting with its other case-law in the same respect. Conclusion of the case without a reasonable justification and on the basis of a case-law which is not consistent and is contrary to the case-law applied in another similar conflict has resulted in legal uncertainty.

It has been accordingly concluded that the fairness of the proceedings was undermined due to this practice which was unpredictable for the applicant.

Consequently, the Court found a violation of the right to a fair hearing safeguarded by Article 36 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.