Litigation and Alternative Dispute Resolution

Author: Ece Ozsu

Introduction

The Constitutional Court's decision dated 14.09.2022 and published in the Official Gazette dated 25.10.2022 and numbered 31994 ("the Constitutional Court Decision") examines whether the start of the application period related to the applicant’s request for appeal being from the date of the pronouncement of the judgement violates the right of access to the court.

This study will analyze this Constitutional Court Decision, which states that the rejection of an appeal application due to failure to file within the time limit violates the right of access to the court.

Material Facts of the Case

The applicants, İhsan Yücel and Necmiye Anaç ("the Applicants") filed a lawsuit before the Seferihisar Enforcement Civil Court and the Serik Enforcement Civil Court ("the ECCs") for a dispute arising out of enforcement law. The ECCs dismissed the case with a short decision rendered at the hearing attended by the parties. The ECCs stated that their decision could be appealed within 10 days of the announcement date for those who were present and within 10 days of the notification date for those who were not present when the decision was made.

In the case filed before Seferihisar Enforcement Civil Court, the applicant was notified of the reasoned decision on 21.01.2019 and they filed an appeal against the decision on 30.01.2019. The 8th Civil Chamber of the Izmir Regional Court of Appeal which examined the appeal application, ruled that the appeal application was not filed in due time on the grounds that the decision of the enforcement court was announced in the applicant's presence on 21.12.2018, the appeal application was not filed within 10 days after the pronouncement as per Article 363 of the Execution and Bankruptcy Law ("EBL"), and no time keeping petition was submitted.

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