The Constitutional Court Decision Annulled The Regulation Envisaging Liability For Litigation Expenses Within The Scope Of Mediation In Civil Disputes 18 April 2024

In accordance with paragraph 11 of Article 18/A of Law No. 6325 on Mediation in Civil Disputes1 ("the Code"), a party shall be held liable for the entire cost of the litigation, nothwithstanding justification at the conclusion of the proceedings, and shall not be granted power of attorney fee if he or she fails to appear for the initial session of mandatory mediation without providing an explanation.The aforementioned regulation is outlined as follows:

"In the event that the mediation activity finalises due to the failure of one of the parties to attend the first meeting without a valid excuse, the party that not attending the meeting shall be specified in the final report and this party shall be held responsible for the whole of the litigation expense, even if s/he is partially or completely justified in the case. In addition, the power of attorney fee shall not be adjudicated in this party’s favor."

As per the Constitutional Court Decision2 ("the Decision") published in the Official Gazette dated 18.04.2024, the aforementioned regulation has been annulled. In the Decision, which was adopted by majority of votes, the absence of exceptions or limitations in the applicable regulation and its failure to strike an equitable balance  between public interest and individual rights and freedoms was underscored. The reasoning of the Decision includes the following statements:

"...In this respect, it has been concluded that, without providing for exceptions or a certain upper limit that can be applied by taking into account the situation of rightfulness, especially the party who is fully justified in the trial, in other words, the party who is found to have been subjected to a completely unfair process at the end of the trial, being held fully responsible for the litigation expenses and being deprived of the entire power of attorney's fee, imposes an excessive burden on individuals, disrupts the fair balance that should be observed between the public interest, the right to property and the right of access to court to the detriment of the individual, and thus causes a disproportionate restriction..." (Unofficial translation of the Reasoning)

The decision will become effective nine months after its publication in the Official Gazette on 18.04.2024.

It is also worth noting that a comparable provision can be found in paragraph 12 of Article 3 of the Labor Courts Law No. 70363, which pertains to the requirement of mediation prior to initiating litigation in labor disputes. However, the Constitutional Court denied the annulment request regarding this provision in the Labor Courts Law on 11.07.20184. The pertinent regulation concerning the liability for litigation costs in relation to labor disputes has not been annulled and remains in force.

1 https://r turkish- regulation -of-law-on- mediation-in-civil-disputes/ 1680a72d95 (ENG) (Online) (Access Date: 18.04.2024)
2 Constitutional Court Decision dated March 14, 2024 and numbered 32521, Case Number: 2023/160 Decision Number: 2024/77, OG, April 18, 2024. eskiler/ 2024/ 04/ 20240418-2.pdf (TUR) (Online) (Access Date: 18.04.2024)
3 MevzuatMetin/ 1.5.7036.pdf (TUR) (Online) (Access Date: 18.04.2024)
4 Constitutional Court Decision dated July 11, 2018 and numbered 30622, Case Number: 2017/178 Decision Number: 2018/82, OG, December 11, 2018. eskiler/ 2024/ 04/ 20240418-2.pdf (TUR) (Online) (Access Date: 18.04.2024)


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