COURT OF LAW GENERAL ASSEMBLY DECISION 2019/8-335 E. 2022/850 K. DATED 7.6.2022
SUMMARY: The case; Participation in acquired property regime is related to the claim. Dispute; In the concrete case, the parties’ provisions of TMK 166/3. Considering that their divorce was decided by agreement in accordance with the article, the issue is whether the statement and expression in the divorce decision of the spouses stating that “they have no other material and moral compensation claims from each other” covers the right to receivable arising from the liquidation of the property regime of participation in acquired property.
I. TRIAL PROCESS
Plaintiff Request:
The plaintiff’s attorney stated in the petition; The parties got married on 30.04.1999, the Izmir 5th Family Court decided to divorce with the decision dated 05.02.2013 and numbered 2012/648 E., 2013/101 K., the decision became final on 21.01.2013, Izmir on behalf of the defendant within the marriage union. 1/2 share of the real estate registered in Seferihisar district of İzmir province, one flat in Altındağ District of İzmir province, one flat in Dikili district of İzmir province, vehicles with plate numbers 35…, 35… and 35… are available in the company called Elit Otomasyon. Claiming that the dividend receivable share was acquired and that his client has a receivable in terms of these goods arising from the regime of participation in the goods acquired from the defendant, he requested the collection of 10,000 TL from the defendant for now, without prejudice to his rights regarding the surplus.
Defendant Answer:
In his reply petition, the defendant’s attorney stated; It was decided that the parties would divorce by mutual agreement in accordance with the 3rd paragraph of Article 166 of the Turkish Civil Code No. 4721 (TMK), accordingly, they did not claim material or moral compensation from each other, and the plaintiff could not file the case on the grounds of final judgment in line with his declaration, which was an in-court confession, Moreover, he defended the rejection of the case by arguing that the acquired goods in the lawsuit were among the goods considered to be his client’s personal property group, and that the plaintiff could not claim any rights in terms of the suit property falling into this group of goods.
Court order:
With the decision of Izmir 5th Family Court dated 09.09.2014 and numbered 2014/108 E., 2014/583 K.; The parties have decided to divorce consensually as a result of the protocol they signed in the Court’s divorce case file numbered 2012/648 E. and 2013/101 K., and that they accepted that this signed protocol was correct at the hearing, and that the protocol states that “except for custody, alimony and personal relations, which are ancillary to the divorce, the defendant’s It is stated that “the plaintiff will continue to live in the house belonging to the plaintiff, the belongings in the house will belong to the defendant N. and that they have no other material and moral demands from each other”, in accordance with this protocol, an agreement has been reached between the parties on aspects other than the ancillary aspects of the divorce, and these statements are considered as in-court confessions. It was decided to reject the case on the grounds that
Special Chamber Decision:
An appeal was requested by the plaintiff’s attorney against the above-mentioned decision of the court within the legal period. With the decision of the 8th Civil Chamber of the Supreme Court of Appeals dated 15.03.2016 and numbered 2014/24971E., 2016/4701 K.;
“… It belongs to the parties to put forward the material facts, and it belongs to the judge to make legal qualifications and determine the articles of law to be applied (TCC No. 6100, Article 33). According to the way the claim is put forward, the case is about the request for a share of increase in value and participation in the residual value.
As a rule, in a consensual divorce case, the agreement articles arising from property regime law in the divorce protocol concluded between the parties must be included in the court decision or the protocol must be approved by the court. Since claims arising from the property regime are not an accessory part of the divorce, they can be filed separately. … even though it was decided to reject the case based on the view that an agreement was reached other than the accessory aspects of the divorce; The result obtained is not accurate. Plaintiff N.’s statement in the divorce protocol and in the divorce case file at the session dated 05.02.2013, where he confirmed the protocol, is about financial issues that are ancillary to the divorce and does not contain a statement about the assets that are the subject of the lawsuit due to the liquidation of the property regime. Since the liquidation of the property regime is not an annex to the divorce case; There is no obligation to decide upon the divorce. For the reasons explained, while the court should have collected and discussed the evidence of the parties within the framework of the claim and defense and given a positive or negative decision on the merits of the request after evaluating all the evidence, it was not correct to decide to reject the case in writing based on the protocol and the in-court confession,…” .
Decision to Resist:
With the decision of the Izmir 5th Family Court dated 21.06.2017 and numbered 2017/200 E., 2017/433 K., a decision to resist was given for the previous reason.
Appeal of the Resistance Decision:
The decision to resist was appealed by the plaintiff’s attorney within the legal period.
II. DISPUTE
Dispute brought before the General Assembly of Law through resistance; in the concrete case
166/3 of the TMK of the parties. Considering that their divorce was decided by agreement in accordance with the article, the issue is whether the statement and expression in the divorce decision of the spouses stating that “they have no other material or moral compensation claims from each other” covers the right to receivable arising from the liquidation of the property regime of participation in acquired property.
III. REASON
Property regime; It refers to the rights of the spouses on the property they owned before marriage and acquired as long as the marriage union continues, their responsibilities towards each other and third parties, and the set of rules regarding the distribution of these properties when the marriage union ends. Property regimes are divided into two groups: legal and optional property regimes. Although it is possible to determine the property regime by contract regarding the management of the assets of the spouses, the legal property regime to which the spouses will be subject has been determined by law, taking into account the possibility of this choice not being realized.
As it is known, in accordance with the 1st paragraph of Article 202 of the Turkish Civil Code, it is essential to apply the regime of participation in property acquired between spouses. Regulations regarding the participation in acquired property regime, which is the legal property regime, are included in Articles 218 to 241 of the Turkish Civil Code. The regime of participation in acquired property covers the acquired property (TMK article 219) and the personal property of each spouse (TMK article 220-221).
In order to liquidate the regime of participation in acquired assets, it is necessary to determine which group the property subject to liquidation falls into. Because the group in which the assets are located is of great importance in terms of whether this asset will be liquidated or how it will be liquidated if it is liquidated. It should also be noted that; The rule in the regime of participation in acquired goods is the immutability of property groups. Except for the exceptions explained in paragraphs 1 and 2 of Article 221 of the Turkish Civil Code, spouses; They cannot change the product groups; contracts to the contrary are invalid. All property of a spouse is considered acquired property until the contrary is proven (TMK article 222/3).
In order for a liquidation case to be heard in the regime of participation in acquired property, the property regime between the spouses must have ended. According to Article 225 of the TMK, “The property regime ends with the death of one of the spouses or the adoption of another property regime. In cases where the court decides to terminate the marriage due to annulment or divorce or to proceed with the separation of property, the property regime ends effective from the date of the case” has been regulated.
Lawsuits that can be filed by spouses or heirs after the regime of participation in acquired property ends; value increase share receivable (TMK art. 227) case and residual value participation claim (TMK art. 231) cases. Although there are differences between the features, conditions and calculation methods of these two types of receivables, all general principles regarding the procedure and principles specific to liquidation cases are valid for both types of cases.
As in the case at hand, one of the special situations in the liquidation of the property regime is the termination of the marital union as a result of consensual divorce. If so, the concept of “consensual divorce” needs to be explained in order to resolve the dispute.
As it is known, the 3rd paragraph of Article 166 of the Turkish Civil Code regulates the consensual divorce of the spouses and its principles. Accordingly, if the marriage has lasted at least one year, if the spouses apply together or if one spouse accepts the other’s case, the marriage union is deemed to be shaken from its foundations. In this case, in order to give a divorce decision, the judge must personally listen to the parties and be satisfied that their will has been freely expressed, and approve the arrangement to be accepted by the parties regarding the financial consequences of the divorce and the situation of the children. The judge may make any changes he deems necessary in this agreement, taking into account the interests of the parties and the children. In this case the parties shall be subject to the adoption of amendments divorce. In this case, the provision that the parties’ confessions are not binding on the judge does not apply. As mentioned in the article, in order to achieve a consensual divorce, an agreement must be reached between the parties regarding the requests that are accessory to the divorce. These demands are expressed by the legislator as “the financial consequences of divorce and the situation of the children”. The concept of “financial consequences of divorce” mentioned in the article does not include the liquidation of the property regime. What needs to be understood with the financial consequences of divorce are the material and moral compensation due to divorce regulated in Article 174 of the Turkish Civil Code, the poverty alimony regulated in Article 174, and the participation alimony regulated in Article 182. However, in a divorce case, there is no legal regulation preventing the parties from making an agreement regarding the liquidation of the property regime.
Liquidation of property regime is not an accessory to divorce; Spouses can make the liquidation together with the consensual divorce, or they may want to exercise their rights in this regard later within the statute of limitations. Failure to reach an agreement on this issue is considered a consensual divorce.
It does not result in the rejection of the petition and cannot have any effect on the consensual divorce. If it is not specifically included in the agreement, the mere fact that the parties have divorced by agreement cannot be accepted as meaning that they have liquidated the property regime between them.
If the spouses decide to liquidate the property regime in a consensual divorce, this will not mean the use of an unborn right. Because, in terms of marriages that ended with divorce, although divorce is required as a condition for the visibility of the property regime liquidation case, the date on which the property regime between the spouses ends is the lawsuit date of the divorce case that results in acceptance (TCC Art. 225/2), and the receivable right arising from the liquidation of the property regime is the lawsuit date. is born as of. The point that needs to be taken into consideration here is that the decision regarding the divorce of the spouses must be finalized in order for the right arising from the property regime to be exercised through litigation, in other words, for the liquidation of the property regime to be decided.
In consensual divorce, spouses can make savings regarding the liquidation of the property regime that they have rights arising from filing for divorce. In practice, spouses file a lawsuit for liquidation of property simultaneously with the divorce lawsuit. In the consistent decisions of the Supreme Court regarding liquidation cases that are filed together with the divorce case and separated or filed independently but before the divorce is finalized, it is pointed out that the case should not be rejected on the grounds that the condition of viability is not met due to procedural economy, the outcome of the divorce should be made a pending issue and the decision should be made according to its result.
Indeed, spouses; Although it is not mandatory, they can also make an agreement on the liquidation of the property regime in a consensual divorce case. If the agreement also includes the liquidation of the property regime, no separate validity condition is required. In a consensual divorce, the parties can liquidate the property regime by sharing the assets they have acquired or by waiving their rights to liquidation. If the divorce case has been concluded with a duly concluded agreement and the decision has been finalized, it will not be possible for the parties to request property regime liquidation again.
On the other hand, since the property regime recommendation case is not an accessory nature of the divorce case, it should be accepted that the agreement of the parties in the divorce case covers, as a rule, the issues of compensation, alimony and custody, which are an accessory part of the divorce case. If the spouses want to make an agreement regarding the liquidation of the property regime in the divorce case, it is very important that this issue be clear enough to leave no room for hesitation. Agreement texts that are abstract, ambiguous, can have any meaning, are open to different interpretations, and use ambiguous words and sentences do not constitute an obstacle to the hearing of a later lawsuit.
After these general explanations… In the concrete case; While it cannot be concluded that the spouses have liquidated the property regime between them, both from the text of the protocol based on the consensual divorce and from their statements at the hearing, it is not possible to evaluate that the spouses have completely liquidated the property regime simply from the provision of the agreement stating that “the defendant will live in the house belonging to the plaintiff”.
That being the case; While it is necessary to comply with the Special Chamber’s reversal decision, which was also adopted by the General Assembly, resisting the previous decision is against the procedure and the law. Therefore, the decision to resist must be overturned.
CONCLUSION: For the reasons explained;
It was unanimously decided on 07.06.2022 that the appeal objection of the plaintiff’s attorney was accepted and the decision to resist was REVERSED for the reasons given in the Special Chamber’s reversal decision.
COURT OF LAW GENERAL ASSEMBLY DECISION 2022/8-1042 E 2023/1101 K. DATED 15.11.2023
CASE I
The plaintiff’s attorney stated in the petition; The parties got married on 10.06.1997, they had no children in common, it was the second marriage of both parties and the spouses had children from their previous marriages, the man was 62 years old and his client was 27 years old at the time of marriage, the marriage continued without any problems, the plaintiff’s wife was her client even during the years she was in prison due to the murder she committed. that the acquired assets are protected by her client, the female spouse, that her client has a share and contribution to the properties acquired by the man, that there are many movable assets registered in the man’s name, that he does not accept the divorce, that his client, who is now 62 years old, has no security, in the divorce case filed by the male spouse. In case the court decides to divorce, 1,200.00 TL provisional-poverty alimony, 75,000.00 TL material compensation, 75,000.00 TL non-pecuniary compensation for the benefit of the client, as well as the client’s contribution fee before 2002 regarding the property acquired by the defendant, and contribution and participation fee after 2002. He requested that his receivables be calculated and paid to his client.
II. REPLY
In his reply petition, the defendant’s attorney stated; The main reason why the wife married her client was financial, she visited her husband only twice during the six years he spent in prison, this marriage
He also stated that he made financial demands from his wife in his work, that the man did not acquire any assets after the marriage union was established, and that the spouses had actually been living separately for six years. Stating that they did not come together, he requested that the parties be granted a divorce.
III. FIRST INSTANCE COURT DECISION
With the decision of the First Instance Court dated 24.01.2019 and numbered 2018/159 Merits, Decision 2019/10; The divorce case filed by the defendant was seen in the file numbered 2016/864 of the Acıpayam 1st Civil Court of First Instance, and in the trial, the wife requested contribution and participation receivables with a response petition, and the court gave a separation decision in terms of this request on 08.06.2017. The file was recorded on a separate basis, when the said file was examined, there was no counterclaim petition regarding contribution and participation receivables and no relevant application fee, and the fact that “a request for contribution and participation receivables was made at the same time as the rejection of the case” in the response petition could not be considered as a counterclaim. It was decided that there was no need to make a decision on this aspect, on the grounds that there was no separate or counter lawsuit filed regarding the contribution fee and participation receivable.
IV. APPEAL
The plaintiff’s attorney filed an appeal against the above-mentioned decision of the First Instance Court within the prescribed period.
With the decision of the Regional Court of Justice dated 08.07.2020 and numbered 2019/1002 Principles, 2020/899 Decision; A lawsuit for divorce was filed by the male spouse on 11.02.2016, against which the female spouse defended the rejection of the divorce case with a response petition dated 02.03.2016 and also requested contribution and participation receivables, and the fact that the fee was paid later by the defendant would not turn this request into a countersuit, Law According to Article 24 of the Code of Procedure, the judge cannot examine and decide on a case ex officio without the request of one of the parties, and it was decided to reject the appeal request on the grounds that there was no case duly filed by the wife.
V. REVERSE AND TRIAL PROCESS AFTER REVERSE
A. Decision to Revoke
With the decision of the 2nd Civil Chamber of the Supreme Court of Appeals, dated and numbered above, “…The entire scope of the file was examined together, and in the response petition submitted in due time, it was stated that “the property acquired within the marriage union should be retained as contribution share before 2002, and as participation receivable after 2002”. The court requested the decision to “make the contribution and participation receivables be calculated and given”, and in the hearing number 1 dated 09.02.2017, the plaintiff was “given a definite period until the next hearing to notify his request for contribution and participation receivables, the value of the case and to charge the fee”, The plaintiff’s attorney paid a fee of 2,561.62 TL on 21.02.2017 based on this period, in the next hearing dated 13.04.2017 and number 2, it was decided to “separate the case for which the fee was paid”, and in the next session dated 29.03.2018 and number 5 after the separation, the plaintiff’s attorney stated that “before 2002” It is understood that he stated that “there is a contribution claim for the properties acquired, a participation claim for the properties acquired after 2002, and that the case is about the liquidation of the property regime.” Even though the court decided to reject the case with written justification, it is not possible to agree with the court’s reasoning. Namely, since it is understood that the plaintiff clearly made a request regarding the property regime in the reply petition in the divorce file, and then paid the fee within the given time after the Court granted time, it should be accepted that there is a lawsuit filed. In that case, although the Court should have collected evidence in line with the claim and defense and decided according to the results, the decision in writing was wrong and the verdict had to be overturned….”
B. Resistance Decision Given by the Court of First Instance
In addition to the decision of the Regional Court of Justice whose date and number are stated above and the justification in the previous decision; In accordance with the first paragraph of Article 133 of Law No. 6100, it is regulated that the counterclaim can be filed with a response petition or by submitting a separate petition within the response period to the merits, and in the case at hand, there is no counterclaim petition for the liquidation of the woman’s property regime, which is not an accessory of the divorce, and there is no counterclaim petition for the liquidation of the property regime of the woman, which is not an accessory of the divorce. It was decided to resist on the grounds that the application fee, which must be paid in return for a receipt, was not paid when the petition was filed in accordance with the Law on Fees, and that paying the relative fee later would not turn this request into a lawsuit.
VI. APPEAL
DISPUTE
Dispute brought before the General Assembly through resistance; In the concrete case, whether the claim arising from the property regime regarding contribution and participation receivables was filed by the plaintiff in accordance with the procedure or not, and according to the conclusion to be drawn from this, this claim is
The court decides whether the merits of the case should be examined and a decision should be made.
REASON
As it is known, the manner in which the lawsuit will be filed is shown in Articles 118 and following of Law No. 6100, and the content of the petition is determined in Article 119. This form foreseen for the petition forms the basis of the procedural process. In accordance with Article 120 of the same Law, the plaintiff must pay the trial fees specified in the tariff when filing a lawsuit.
In the case at hand, the parties were married on 10.06.1997, a divorce case was filed by the male spouse on 11.02.2016 with the file numbered 2016/54 of the Acıpayam Civil Court of First Instance (Family), and the dispute was resolved with the response petition submitted by the female spouse on 02.03.2016. Whether there is a lawsuit duly filed regarding the “claims arising from the property regime” should be evaluated on a concrete case basis. When the content and conclusion of the wife’s response petition dated 02.03.2016 are examined, it is seen that “1,200 TL provisional poverty alimony for the benefit of her client, 75,000 TL material compensation, 75,000 TL non-pecuniary compensation and the plaintiff man has assets consisting of a large amount of land, movable properties and deposits, and the need for the acquisition of these assets is It is understood that he requested a decision to “calculate and collect the contribution amount before 2002 and the participation receivable amounts after 2002” on these properties, stating that his client had a very serious contribution to the property and preventing it from being disposed of. The property regime between the parties ended as of 11.02.2016, when the divorce case was filed. Since it is not claimed that another property regime was chosen by contract between the spouses; Property separation regime from 31.08.1994, which is the date of marriage, until 01.01.2002, when Law No. 4721 came into force, and from this date until 25.06.2010, when the property regime ended, Article 202/1 of Law No. 4721. The regime of participation in acquired property regulated by the article is valid.
In the examination of the case file numbered 2016/864 of the Acıpayam Civil (Family) Court of First Instance, where the trial was held due to the divorce case filed by the husband; The case was opened on 28.12.2016, the woman responded to the case on 02.03.2016, at the hearing of the trial dated 09.02.2017, the defendant’s attorney was given time “until the next hearing to charge her request for contribution fee”, and upon the given time, the defendant’s attorney filed a lawsuit on 21.02.2017. “A total fee of 2,561.62 TL” was paid, and at the hearing dated 13.04.2017, the Court decided to “separate the contribution share participation receivable case, for which the fee was paid, from the file at hand and that the separation expenses be covered by the defendant”, and as can be understood from the expense receipt dated 19.04.2017 available in the file, the relevant separation expenses were not paid. It is seen that the trial of the “case regarding the contribution fee contribution receivable” continues on the basis of the case file numbered 2017/188 of the same Court.
In the examination of the case file numbered 2017/188 of the Acıpayam Civil (Family) Court of First Instance regarding the dispute at hand, it was seen that the female spouse attorney, who is now the plaintiff, was given time to “declare her assets regarding the participation receivable request” at the hearing dated 16.11.2017, and upon the given time, the plaintiff In the petition dated 01.02.2018 submitted by his attorney, “During the period when the male spouse was in prison for six years, the plaintiff helped the defendant in the maintenance, supervision, processing of the real estate on the defendant, and the removal of the crops, and claimed that he contributed to the property not being disposed of and to the survival of the family, and to the Land Registry Office and It was requested from the Acıpayam Traffic Bureau to request the records of the immovable properties and vehicles registered in the name of the defendant, and in accordance with this petition, the Court requested “the records of the movable immovable properties that the defendant acquired after 1997 and is still active by writing a warrant to the relevant land registry and traffic registration directorates”, on behalf of the defendant husband. The records regarding the registered assets were put into the file, after this stage, the plaintiff’s witnesses were heard at the hearing dated 25.10.2018, and in the subsequent hearing dated 24.01.2019, with the interim decision, the “request to hear the defendant’s witnesses” was rejected and the merits of the case were discussed as “The lawsuit filed regarding contribution and participation receivables”. It is understood that it was decided that “since it is understood that there is no separate or counter-case, there is no need to decide on this aspect.”
Mortar; It is defined as the money that the state receives from those who benefit from that service in return for the public services it provides, in order to cover various expenses. The fees and rates to be collected in a case are shown in Law No. 492 and especially in Tariff No. (1) attached to this Law. According to provision A, III-1.a of Tariff No. (1) under Law No. 492, in cases where a decision is made on the merits in cases where the subject is related to a certain value, the relative value in dispute is decided.
Decision and judgment fees are collected as follows. The application fee is a fixed fee that must be paid in advance when filing a lawsuit.
Considering the date of the case, according to the provisions of the Communiqué published in the Official Gazette dated 27.12.2016 and numbered 29931, the application fee in the civil court of first instance has been regulated as 31.40 TL. On the other hand, the response petition is not subject to an application fee or any other fee.
It is not.
If the plaintiff files more than one lawsuit with a single petition, which is referred to as “objective lawsuit merger/accumulation” in the doctrine, he/she must clearly and separately show the result of the claim for each case. In this case, the application fee paid is deemed to cover each case. In the case at hand, although it is not possible to talk about an objective merger of cases in accordance with the form described in the response petition submitted to the divorce case and the request for the liquidation of the property regime, there is no hesitation that there is no application fee charged for the request for the liquidation of the property regime.
Undoubtedly, the plaintiff must pay the trial fees to the court cashier when filing a lawsuit. These fees are the application fee, advance decision and verdict fee. The application fee is a fee that must be collected in full from the beginning only for the opening of the case, and it is possible to complete the advance decision and judgment fee later. If the value of the subject matter is not shown in the petition, this value is determined by the plaintiff. If the plaintiff refrains from determining the value, the petition will not be processed. If it is understood during the trial that the value in question is more than what is shown, the case will continue for that session only. The case cannot continue until the next session unless the advance decision and judgment fee for the missing value is completed.
However, in the concrete case, the Court said; The trial continued for more than three years, from the date of 02.03.2016, when the plaintiff first put forward his request “regarding contribution and participation receivables”, until the decision stating that “there is no need to make a decision” on his request on 24.01.2019, by completing the “incomplete decision and judgment fee”. It appears to have been done.
In the first paragraph of Article 36 of the Constitution of the Republic of Turkey; It is stated that “Everyone has the right to claim and defend before the judicial authorities as plaintiff or defendant and to a fair trial by making use of legitimate means and ways”, and in this context, the right to apply to judicial authorities as plaintiff and defendant and, as a natural consequence, the right to claim, defend and a fair trial is guaranteed. taken. Contemporary legal systems based on the principle of the rule of law do not consider it sufficient to provide legal protection to their citizens, but they also take care to ensure that this legal protection is effective protection. In other words, as a requirement of being a state of law, the state is obliged to ensure the effective use of the freedom to seek justice and therefore the right to sue, and to create the mechanisms through which this freedom and right will be exercised.
According to the fourth paragraph of Article 141 of the Constitution of the Republic of Turkey, it is the duty of the judiciary to conclude cases with the least expense and as quickly as possible. In this context, it is stated in Article 30 of Law No. 6100, which regulates the principle of procedural economy, that the judge is obliged to ensure that the trial is carried out in a reasonable time and in an orderly manner and that unnecessary expenses are not incurred. In accordance with the aforementioned provisions, the right to trial within a reasonable time, which is an element of the principle of procedural economy, is also stipulated in the European Convention on Human Rights, to which our country is a party. Accordingly, everyone has the right to request that their case be heard within a reasonable time.
Considering the general justification of the Code of Civil Procedure, in regulating all provisions; It is clearly stated that the principles that expand the freedom of the parties and those concerned to seek their rights, guarantee their rights during the trial in the best possible way, and protect the dignity and respect of the judicial bodies are included. In the justification of Article 30 titled “Principle of procedural economy”, which is directly related to the right to a fair trial; It has been pointed out that if the trial is prolonged, the legal protection mechanism will fulfill its function and cause people to lose their faith in the effect of the legal order, and it has been pointed out that judgments that come too late may no longer have any relevance to life. “The strict application of expediting the trial limits the perfection of the life event and thus adversely affects the perfection and correctness of the foundations of the verdict. This is even more so if a procedural law provides a balancing system that will ensure, as far as possible, both the perfect determination of a life event and the speedy conduct of the trial.” It is also emphasized that procedural rules should not be applied strictly in a way that restricts the right to access the court.
In the light of all these explanations, when it comes to the concrete case, the amount that must be deposited when filing a lawsuit and the 3rd deposit on the date of the lawsuit.
Although the case at hand was filed without paying the “application fee”, which was understood to be 1.50 TL, the Court ordered the plaintiff party to complete the missing relative decision and judgment fee of 2,561.62 TL, on the other hand, no action was taken regarding the missing application fee, and some evidence shown by the parties was collected, It is clear that the trial continued for more than three years, and as a result of the trial spanning all this time, it was decided that there was no need to make a decision on the merits of the case, on the grounds that there was no application fee. Essentially, in resolving the dispute; In the face of definitive procedural provisions, it is important to determine whether the right to a fair trial of the party who acts by relying on the Court decision has been violated.
Since the right to access the court aims to bring a dispute before the court and have the dispute resolved effectively, this right is a fundamental element of the freedom to seek justice guaranteed in Article 36 of the Constitution. When the scope of the file is evaluated as a whole; It is understood that the court completed the relative decision and judgment fee, but did not take any action regarding the missing application fee, and the trial continued for three years, and the parties were asked for their evidence and witnesses were heard. Therefore, there is no doubt that the trial held gave rise to a justified expectation on the part of the plaintiff that a decision would be made on the merits of the case. In such a case, it cannot be concluded that liability is imposed on the party who acts by relying on the Court. Therefore, it should be accepted that there is a case filed within the scope of the plaintiff’s right to a fair trial and right to access the court.
During the discussions held at the General Assembly of Law; The main thing is that the application fee has been paid, the manner in which the lawsuit or counterclaim should be filed is regulated in the provisions of Law No. 6100, the application fee has not been paid in the case at hand, and the decision to resist given on the grounds that the subsequent payment of the relative fee will not turn this request into a lawsuit is in accordance with the procedure and law and should be approved. Although the opinion that it was necessary was put forward, this opinion was not adopted by the majority of the Board for the reasons explained above.
In that case, while the decision of reversal of the Special Chamber, which was also adopted by the General Assembly of Law, should be complied with with this expanded justification, it was not right to resist the previous ruling. Therefore, the decision to resist must be overturned.
CONCLUSION: For the reason explained; REVERSED the decision to resist due to the expanded justification explained and the reasons given in the Special Chamber reversal decision,
The file is under Article 373/2 of Law No. 6100. It was decided by majority vote to send the decision to the Acıpayam 2nd Civil (Family) Court of First Instance, which made the decision in accordance with the article.
Hunting. Aleyna ONVER
