Recent development
The decision of the Constitutional Court of the Republic of Türkiye (“Constitutional Court“) file No. 2023/160, decision No. 2024/77 (“Decision“) was published in the Official Gazette dated 18 April 2024 No. 32521. The Constitutional Court ruled that the first sentence of paragraph 11 of Article 18/A of the Mediation in Civil Disputes Law No. 6325 (“Mediation Law“), “… this party shall be held responsible for the entire litigation expenses even if he/she is partially or fully prevailed in the lawsuit“, and the second sentence, “In addition, no attorneyship fees shall be ruled in favor of this party“, disproportionately restricted fundamental rights and freedoms and violated the right to property and the freedom to seek rights, and, therefore, they were annulled.
What does the Decision say?
Pursuant to paragraph 11 of Article 18/A of the Mediation Law, if a party does not attend the first meeting without providing a valid excuse, this party will be held liable for the entire litigation expenses even if this party partially or fully prevails in the lawsuit. The same paragraph also stipulates that no attorneyship fee will be awarded in favor of the party who did not attend the meeting without a valid excuse.
In a case brought before Çorum Consumer Court, the court concluded that the contested rules were unconstitutional and applied to the Constitutional Court for their annulment, for a concrete norm review of the relevant rules. After examining the application, the Constitutional Court ruled for annulment.
The following points are noteworthy in the Constitutional Court’s Decision:
- According to the Constitutional Court, in disputes where mediation is regulated as a condition for litigation, the parties may implicitly reject the settlement in mediation by not attending the mediation meeting, as they may request the dispute to be heard before the court. The Constitutional Court has argued that being held liable for all litigation expenses, even if the relevant party prevails at the end of the dispute, imposes a disproportionate limitation on the right to request the dispute to be heard before the court.
- The Constitutional Court stated that the litigation expenses for which the party who did not attend the first mediation meeting is held responsible and the attorneyship fees that will not be ruled in favor of this party constitute property within the scope of the right to property regulated in the Constitution. In addition, the Constitutional Court underlined that the freedom to seek justice through litigation is a fundamental right and one of the most effective guarantees that ensure the proper enjoyment and protection of fundamental rights and freedoms. In this context, the Constitutional Court identified that the rules subject to the objection, imposed restrictions on the right to property and the right of access to the court, by stipulating that the party who prevails at the end of the lawsuit is deprived of the litigation expenses and attorneyship fees that should be collected from the other party.
In summary, the Constitutional Court concluded that holding the party who did not attend the first mediation meeting without providing a valid excuse fully liable for the litigation expenses and depriving the party of the attorneyship fees causes a disproportionate restriction, as it imposes an excessive burden on individuals and disrupts the fair balance that should be considered between the public interest and the rights to property as well as access to the court to the detriment of individuals. Therefore, the Constitutional Court ruled for the annulment of the rules subject to objection.
The aforementioned annulment decision will enter into force nine months after the publication of the Decision in the Official Gazette (i.e., 18 April 2024).
Conclusion
With the Constitutional Court’s annulment decision, the provisions of “incurring litigation expenses even if the case is concluded in favor of the party” and “attorneyship fee cannot be awarded in favor of the nonattending party”, which were the consequences of unexcused nonattendance to the first mediation meeting, have been annulled. The effects of the Decision should be followed and considered for all legal disputes subject to mediation.
