CONSTITUTIONAL COURT DECISION

Number Of Bases:2021/53

Decision Number: 2021/41

Decision Date: 24/6/2021

R.G. Date-number: notified.

Appeal: Buyukcekmece 5. The Court Of First Instance

Subject of objection: 166 of the Code of Civil Procedure of 12/1/2011 and 6100. it is a request to decide on the cancellation of the second sentence of Paragraph (1) of the article.

Event: the court, which considers that the rule on appeal is unconstitutional in the case filed with a claim for damages in case of cancellation and registration of the title deed and compensation of the rent, has applied for cancellation.

PROVISION OF THE LAW REQUESTED FOR CANCELLATION
166, which includes the rule that is subject to appeal. clause is as follows:

“Combining cases

Article 166 – (1) cases filed in civil courts of the same level and decency located around the same jurisdiction may be combined at each stage of the case, on request or spontaneously in the court where the first case was filed. The decision to merge is made by the court where the second case is filed, and this decision binds the other court.

(2) If cases have been filed in civil courts of the same level and adjective located in separate judicial circles, the merger may be requested from the court where the second case was filed due to the connection. The court in which the first case is filed depends on it from the date of completion of the decision to combine the cases with the acceptance of the request.

(3) the decision to merge is immediately notified to the court where the first case was filed.

(4) if the cases arise from the same or similar reasons, or if the provision against one of them affects the other, the connection is considered to exist.

(5) a decision may also be made to combine cases that must be conducted in separate apartments in accordance with the provision of this article. In this case, the appeal review is carried out in the District Court office, which examines the decision of the original legal relationship that leads to the dispute in the combined cases.”

FIRST REVIEW
At the first review meeting held in accordance with the provisions of the Constitutional Court, the decision to apply and its annexes, the first review report prepared by Rapporteur Osman KODAL and the law provision on the subject of objection were read and discussed.
40 of 30/3/2011 and 6216 on the establishment and judicial procedures of the Constitutional Court entitled“The prosecution of unconstitutionality by the courts”. in the article, the method to be followed in applications to be made through appeal to the Constitutional Court is regulated. In Paragraph (1) of this article, it is stated that if the court considering the case considers the provisions of the law or presidential decree to be applied in this case unconstitutional, or if one of the parties considers that the claim of violation is serious, it will send the documents counted in this paragraph to the Constitutional Court by linking them to the series list; in Paragraph (a) of the aforementioned paragraph, “the original of the reasoned application decision explaining which articles of the Constitution the rules requested for cancellation are contrary” is counted among the documents to be sent to the Constitutional Court.Dec. In paragraph (4) of the article, it is stipulated that appeals that clearly lack basis or do not comply with the method will be rejected by the Constitutional Court on their grounds without going to the main review.
46. paragraph (1) subclause (a) the court’s reasoned decision that refers to the object in the path, in which each of the alleged breaches the provisions of the Constitution of the articles of the Constitution, for reasons which are contrary, and it was stated clearly the reasons for that should be shown separately.
Again, The 49th. paragraph (1) Paragraph (B) analysis by the Constitutional Court in the first appeal, if it is determined that there were deficiencies in the application related to the application without passing the path to the main examination will be given in the decision to dismiss; (2) a numbered referred to in Paragraph (B) under this clause that refers to the path to appeal the decision of the court was not an obstacle to reapply by completing the deficiencies noted.
In the application decision, the sentence subject to appeal is “the decision to merge is made by the court where the second case was filed…”for what reasons the Constitution 2., 36. and 37. it has not been clearly shown separately and together with its justifications that it is contrary to its articles.
40 of law 6216 for the reason described. paragraph (A) of Paragraph (1) of Article 46. Article (1) Paragraph (a) of the sentence subject to appeal, which seems to be contrary to Paragraph (A) “the decision to merge is made by the court in which the second case was filed…”section of the application 6216 of Law 40. as it does not comply with the method in accordance with paragraph (4) of the article, it must be rejected without passing the main review.
152 of the Constitution, on the other hand, entitled“asserting unconstitutionality in other courts”. in the fourth paragraph of the article, “the Constitutional Court may not apply again for the unconstitutionality of the same provision of the law unless it has passed ten years after the decision to reject it on the basis of the work has been published in the Official Gazette.” he is called. 41 of the law No. 6216, entitled “cases preventing application”. in Paragraph (1) of the article, “an application for an appeal cannot be filed for the unconstitutionality of the same provision of the law, unless ten years have passed since the decision of the court to reject it on the basis of the work has been published in the Official Gazette.”the verdict is given.
The court, which appealed to the method of Appeal, is entitled 166 of Act 6100. he demanded the cancellation of the second sentence of Paragraph (1) of his article.
“…And this decision binds the other court.”the cancellation request for the remaining part in the form of the Constitutional Court dated 27/3/2014 and E.2014/5, K.2014/65 decision was rejected on the grounds that it was not contrary to the Constitution and this decision was published in the Official Gazette dated 12/12/2014 and numbered 29203. In order to make a new application for the rule, which was rejected by the Constitutional Court on the basis of work, the ten-year period that must pass starting from 12/12/2014, when the previous decision was published in the Official Gazette, has not yet expired.
166 of Law No. 6100 for the reason described. the second sentence of Paragraph (1) of article “…and this decision binds the other court.”the application for the remaining part of the Constitution 152. Article 41 of the fourth paragraph and Law No. 6216. in accordance with paragraph (1) of the article, it must be rejected.
III. PROVISION

166 of the Code of Civil Procedure of 12/1/2011 and 6100. the second sentence of Paragraph (1) of the article;

”The decision to merge is made by the court where the second case was filed… ” Section 40 of the law on the establishment and judicial procedures of the Constitutional Court dated 30/3/2011 and numbered 6216. in accordance with paragraph (4) of the article, the method does not comply with the rejection without passing the main review,
152 of the Constitution of the application for the remainder. Article 41 of the fourth paragraph and Law No. 6216. refusal in accordance with paragraph (1) of Article,
It was decided by unanimous decision on 24/6/2021.