Decision On the Cancellation Of The Second Sentence Of Paragraph (1) Of Article 166 Of The Code Of Civil Procedure No. 6100
CONSTITUTIONAL COURT DECISION
Main Number: 2021/53
Decision Number: 2021/41
Decision Date:24/6/2021
R.G. Date – Issue: Notified.
APPEAL APPLICANT: Büyükçekmece 5th Civil Court of First Instance
SUBJECT OF THE OBJECTION
Request for the cancellation of the second sentence of paragraph (1) of Article 166 of the Code of Civil Procedure dated 12/1/2011 and numbered 6100.
CASE:
In the lawsuit filed with the request for cancellation and registration of the title deed and compensation for the rent, and compensation in case registration is not possible, the Court concluded that the rule subject to the objection is contrary to the Constitution and applied for its cancellation.
PROVISION OF THE LAW REQUESTED TO BE CANCELLED
Article 166 of the Law, which includes the rule subject to objection, is as follows
“Consolidation of cases
ARTICLE 166- (1) In the event that there is a connection between the lawsuits filed in the civil courts of the same level and title in the same judicial circle, the lawsuits may be consolidated at every stage of the case, upon request or automatically in the court where the first lawsuit was filed. The consolidation decision shall be rendered by the court where the second action is filed and this decision shall bind the other court.
(2) If the lawsuits are filed in civil courts of the same level and title located in different jurisdictions, consolidation due to the connection may be requested from the court where the second lawsuit is filed. The court where the first lawsuit was filed shall be bound by the finalisation of the decision on consolidation of the lawsuits upon the acceptance of the request.
(3) The consolidation decision shall be immediately notified to the court where the first action was filed.
(4) A connection shall be deemed to exist if the cases arise out of the same or similar reasons or if the judgement to be rendered on one of them is of a nature to affect the other.
(5) It may be decided to consolidate the cases, the appeal examination of which must be conducted in separate chambers, in accordance with the provisions of this article. In this case, the appeal examination shall be conducted in the chamber of the regional court of justice that examines the decision on the main legal relationship that gave rise to the dispute in the consolidated cases.”
FIRST REVIEW
At the first review meeting held in accordance with the provisions of the Rules of Procedure of the Constitutional Court, after the application decision and its annexes, the first review report prepared by Rapporteur Osman KODAL and the provision of law subject to objection were read and examined, the necessity was discussed and considered:
Article 40 of the Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court dated 30/3/2011 and numbered 6216, entitled “Assertion of unconstitutionality by the courts” regulates the method to be followed in applications to the Constitutional Court through objection.
Paragraph (1) of the said Article states that if the court hearing a case considers the provisions of a law or Presidential decree to be applied in this case to be contrary to the Constitution, or if it concludes that the allegation of contradiction put forward by one of the parties is serious, it will send the documents listed in this paragraph to the Constitutional Court by binding them to a series list; and in subparagraph (a) of the aforementioned paragraph, “the original of the reasoned application decision explaining which articles of the Constitution the rules to be annulled are contrary to” is listed among the documents to be sent to the Constitutional Court. Paragraph (4) of the Article stipulates that the Constitutional Court shall reject the objection applications that are clearly groundless or not in accordance with the procedure, without proceeding to the examination of the merits.
Paragraph (a) of subparagraph (1) of Article 46 of the Rules of Procedure states that in the reasoned decision of the court applying for an appeal, it must be clearly stated separately and with reasons, which articles of the Constitution each of the provisions claimed to be contrary to the Constitution are contrary to and for which reasons.
Again, in subparagraph (b) of paragraph (1) of Article 49 of the Rules of Procedure, it is stated that if the Constitutional Court determines that there are deficiencies in the application during the first examination, it will decide to reject the application without proceeding to the substantive examination in the works related to the objection procedure; and in paragraph (2), it is stated that the decision given in accordance with the aforementioned subparagraph (b) does not prevent the court applying for the objection procedure from completing the deficiencies and reapplying.
In the application decision, it has not been clearly shown separately and with justifications, for which reasons the part of the sentence subject to objection “The consolidation decision is given by the court where the second case is filed…” is contrary to Articles 2, 36 and 37 of the Constitution.
For the explained reason, it is necessary to reject the application for the section “The consolidation decision is made by the court where the second case is filed…” of the sentence subject to objection, which is contrary to subparagraph (a) of paragraph (1) of Article 40 of the Law No. 6216 and subparagraph (a) of paragraph (1) of Article 46 of the Rules of Procedure, without proceeding to the merits examination, as it is not in accordance with the method pursuant to paragraph (4) of Article 40 of the Law No. 6216.
On the other hand, in the fourth paragraph of Article 152 of the Constitution titled “Assertion of unconstitutionality before other courts”, it is stated that “No reapplication can be made with the claim of unconstitutionality of the same provision of the law until ten years have elapsed after the publication of the rejection decision of the Constitutional Court in the Official Gazette.” Paragraph (1) of Article 41 of the Law No. 6216 entitled “Obstacles to the application” stipulates that “An application for objection cannot be made claiming that the same provision of law is unconstitutional until ten years have elapsed after the publication in the Official Gazette of the rejection decision of the Court on the merits.”
The Court that applied for appeal requested the cancellation of the second sentence of paragraph (1) of Article 166 of the Law No. 6100.
The request for the annulment of the remaining part of the sentence subject to the objection, which reads “…and this decision binds the other court.”, was rejected on the grounds that it was not contrary to the Constitution by the decision of the Constitutional Court 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. In order for a new application to be made about the rule rejected by the Constitutional Court by going into the merits of the matter, the ten-year period that must elapse starting from 12/12/2014, when the previous decision was published in the Official Gazette, has not yet expired.
For the explained reason, the application for the remaining part of the second sentence of the second sentence of Article 166 paragraph (1) of the Law No. 6100, which is subject to objection, as “…and this decision binds the other court.” must be rejected in accordance with the fourth paragraph of Article 152 of the Constitution and paragraph (1) of Article 41 of the Law No. 6216.
III. JUDGEMENT
The second sentence of the second sentence of paragraph (1) of Article 166 of the Code of Civil Procedure dated 12/1/2011 and numbered 6100;
“Consolidation decision is made by the court where the second case is filed…” is rejected without proceeding to the substantive examination because it is not in accordance with the method pursuant to paragraph (4) of Article 40 of the Law on the Establishment and Trial Procedures of the Constitutional Court dated 30/3/2011 and numbered 6216,
The application for the remaining part is rejected in accordance with the fourth paragraph of Article 152 of the Constitution and paragraph (1) of Article 41 of Law No. 6216,
It was unanimously decided on 24/6/2021.
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