CONSTITUTIONAL COURT DECISION
Case Number: 2021/53
Decision Number: 2021/41
Date of Decision: 6/24/2021
Official Gazette Date – Number: Notified.
APPLICANT: Büyükçekmece 5th Civil Court of First Instance
SUBJECT OF THE APPEAL: Request for a decision to annul the second sentence of Article 166(1) of the Code of Civil Procedure No. 6100 dated 12/1/2011.
FACTS: In a case filed for the cancellation of title registration and compensation for rent, or compensation if registration is not possible, the court concluded that the rule subject to objection was unconstitutional and applied for its annulment.
PROVISION OF THE LAW REQUESTED TO BE ANNULLED
Article 166 of the Law, which contains the rule on the basis of the objection, reads as follows:
“Joinder of Cases
ARTICLE 166- (1) Cases filed in courts of law of the same level and status concerning the same hearing may be consolidated at any stage of the proceedings, upon request or at the court where the first case was filed, if they are related. The decision to consolidate shall be made by the court where the second case was filed, and this decision shall be binding on the other court.
(2) If the cases are filed in courts of the same level and jurisdiction located in separate judicial districts, consolidation may be requested from the court where the second case was filed. The court where the first case was filed shall be bound by the decision to consolidate the cases upon the acceptance of the request and the finalization of the decision.
(3) The decision to consolidate shall be immediately notified to the court where the first case was filed.
(4) A connection shall be presumed if the cases arise from the same or similar reasons or if the judgment rendered in one case is of the same nature as the other.
(5) Cases that must be reviewed separately by different chambers may also be decided to be consolidated under the provisions of this article. In this case, the appeal review shall be conducted in the chambers of the regional court of appeal by examining the substantive legal review decision giving rise to the dispute in the consolidated cases.
PRELIMINARY REVIEW
At the preliminary review meeting where the Additional Court Rules were kept, it was decided that the application decision and its attachments, the preliminary review report prepared by Rapporteur Osman KODAL, and the contested provision of the law would be read, examined, and then considered and evaluated:
Article 40 of the Law No. 6216 on the Establishment and Judicial Procedures of the Constitutional Court dated 30/3/2011, titled “Allegation of unconstitutionality by courts,” regulates the procedure to be followed in applications to the Constitutional Court.
The aforementioned (1) links state that if a court hearing a case finds that the provisions of a law or presidential decree applicable to that case are unconstitutional, or if it concludes that the claim of unconstitutionality raised by one of the parties is serious, the case shall be referred to the Constitutional Court by attaching the series listed in these intervals; Subparagraph (a) of the aforementioned paragraphs also states that “the original application explaining which details of the rules requested to be annulled are contrary to the Constitution” shall be included among the documents to be sent to the Constitutional Court. Paragraph (4) of the article clearly states that the Constitutional Court shall reject, without proceeding to a substantive review, any appeals that are unfounded or procedurally improper, stating the reasons for its decision.
Subparagraph (a) of paragraph (1) of Article 46 of the Rules of Procedure also states that the court’s reasoned decision on the objection amendments shall list which provisions of the Constitution each of the alleged violations are in conflict with, and which parts are listed separately and together.
Subparagraph (b) of Article 49(1) of the Rules of Procedure states that if the Constitutional Court finds deficiencies in the application during its initial review, it shall decide to reject the application without proceeding to a substantive review.
(2) In the terms of the agreement, however, the aforementioned paragraph (b) was not included, and the decision did not indicate that the court would prevent a new application after the deficiencies were remedied.
In the application decision, the changes to the sentence subject to objection, “The decision to consolidate shall be made by the court where the second case was filed…”, which are contrary to features 2, 36, and 37 of the Amendment, are not clearly indicated separately with their reasons.
It is understood that the sentence subject to objection, “The decision to consolidate shall be made by the court where the second case was filed…”, falls under the conditions of Article 40(1)(a) of Law No. 6216 and Article 46(1)(a) of the Rules of Procedure. The objection must be rejected without proceeding to a proper examination, in accordance with Article 40(4) of the Law.
On the other hand, Article 152(4) of the Constitution, under the heading “Raising the issue of unconstitutionality in other courts,” states that “No further application may be made on the grounds that the same provision of law is unconstitutional until ten years have elapsed after the publication of the Constitutional Court’s final decision in the Official Gazette.”
Article 41(1) of Law No. 6216, titled “Circumstances Preventing Filing an Appeal,” also states: “If the court decides to postpone the case, the same provision of the law cannot be challenged on the grounds of unconstitutionality until ten years have passed since the postponement was published in the Official Gazette.”
The Court, which regulates objection periods, requested the annulment of the second sentence of paragraph (1) of Article 166 of Law No. 6100.
lass=”yoast-text-mark” />>The sentence subject to objection is “… and this decision shall be binding on other courts.” The request for annulment of the remaining provisions was rejected on the merits as not being contrary to the Constitution by the Constitutional Court’s decision dated 27/3/2014 and numbered E.2014/5, K.2014/65, and this decision was published in the Official Gazette dated 12/12/2014 and numbered 29203.
The annual period that should have been recorded on December 12, 2014, the date of publication of the previous decision in the Official Gazette, has not expired for a new application regarding the rule rejected by the Constitutional Court on its merits.
For the reasons explained, the objection to the separation of Article 166(1) of Law No. 6100, which is the subject of the second sentence, “… and this decision binds the other court,” must be rejected as it is necessary to separate the remaining part of the application from the fourth paragraph of Article 152 of the Constitution and Article 41(1) of Law No. 6216, and therefore must be rejected.
III. RULING
The objection to the second sentence of Article 166(1) of the Code of Civil Procedure No. 6100 dated 12/1/2011;
“The decision to consolidate shall be made by the court where the second case was filed…” is REJECTED without proceeding to examination in accordance with the procedure set forth in Article 40(4) of the Constitutional Court Establishment and Trial Procedures Law No. 6216 dated 30/3/2011.
>The remaining part of the application is REJECTED due to the necessity of the conditions of the fourth paragraph of Article 152 of the Constitution and Article 41(1) of Law No. 6216.
>The decision was made UNANIMOUSLY on 24/6/2021.