Unification of Conflicting Judgements on erroneously cited period for legal remedies
30 October 2023
With its latest decision, The Turkish Court of Appeal General Assembly of the Unification of Conflicting Judgements (General Assembly of the Unification or General Assembly) resolved the divergent practices of different chambers on whether a party can rely on an erroneous period for legal remedy stipulated in a court decision, and therefore seek legal remedies after the prescribed statutory window has closed. The General Assembly ruled that if the legal remedy period is inaccurately cited in a court decision, applications submitted within the erroneously stated timeframe must be accepted.
Perspectives of different chambers
As the General Assembly of the Unification mentioned, the discussion mainly revolves around the balance between safeguarding fundamental rights and upholding the principle of the rule of law, on one hand, and adhering to the legally prescribed timeframes which judges cannot alter, on the other.
The 9th and 11th Chambers of the Turkish Court of Appeal were of the opinion that applications submitted within the erroneously stated timeframe cannot be accepted. The reasoning of the Chambers mainly stems from the definiteness of the periods stipulated within the Code of Civil Procedure. Considering that a judge cannot extend the periods specified within law except when it is expressly foreseen, the chambers support that an erroneously indicated timeframe cannot grant more right to a party than the law itself does. It is argued that the contrary would also violate the principle of generality of law, equality, and procedural vested rights for the other party.
On the other hand, 2nd, 3rd, 8th, 10th and 20th Chambers are of the opinion that preventing a party who relied on a judgement of a court from applying to legal remedies would violate the right of access to a court which is one of the fundamental elements of right to a fair trial.
General Assembly’s reasoning
Before rendering its decision, the General Assembly considered various sources of law including the European Convention on Human Rights (ECHR), the Turkish Constitution, decisions of the European Court of Human Rights (ECtHR) and the Turkish Constitutional Court, and doctrine.
In particular, the General Assembly considered the following:
- Article 2 on rule of law;
- Article 40, obliging the State to indicate the legal remedies including the competent authority and the period to apply for such a remedy in its proceedings; and
- Article 36, regulating the freedom to claim rights, the right to a fair trial, and the right of access to a court.
Article 297 of the Code of Civil Procedure numbered 6100 which stipulates that judgments of courts must include the legal remedies and the timeframes for applying for such remedies. General Assembly stated that correctly providing information as to the legal remedies, avenues for such remedies, and periods for such remedies, is a constitutional and legal requirement. This precision is imperative to uphold and secure individuals’ rights to legal remedies and fair trials, as guaranteed by the Turkish Constitution.
The Turkish Constitutional Court (Constitutional Court) decisions numbered 2014/819 dated 09.06.2016 and 2013/7114 dated 20.01.2016 (among other decisions of the Constitutional Court. It was held that in cases where the period to apply for legal remedies is erroneously stated within a judgement, the practice of rejecting the appeal due to lapse of time cannot be considered within the limits of foreseeability and violates the right of access to a court.
Geffre v France decision of the European Court of Human Rights in which the ECtHR established that the right to effective access to a court is compromised when legal uncertainties, both in law and in practice, hinder the access of parties to the judicial system. Additionally, the Bayar-Gürbüz v Turkey decision is referenced, emphasizing that if a legal remedy exists within national law, it must be genuinely accessible and usable.
Based on the above, the General Assembly concluded that the procedural rules should not be applied as strictly as to limit the right of access to a court. The General Assembly found that such a formalistic approach can result in a loss of right for a party that relied on the judgement of a court and applied for legal remedy within the period stated in the judgement, which would also contradict with the purpose of legal remedies.
However, it should be highlighted that in the Decision, the General Assembly specifically excluded the following scenarios:
- Cases where the court decision states a legal remedy period that does not exist at all in the legislation. For instance, a period of 33 days is not stipulated for any type of case within Turkish legislation. If the court erroneously states the legal remedy period as 33 days in the decision, parties cannot rely on the General Assembly decision and resort to the competent authorities within 33 days. However, if a court erroneously states a period foreseen within the legislation for a different scenario (such as 15 days, 30 days etc), the General Assembly decision would be applicable.
- Cases in which the judgement is final and there is no legal remedy applicable, but still, a remedy is erroneously shown within the judgement.
In short, with its decision binding on all courts in Turkey, the General Assembly establishes that in cases where the timeframe for applying for a legal remedy is inaccurately specified in a court judgment, any application made within the erroneously indicated period will be deemed valid by the competent authority.