The Requirement to Specify the Respondent's Address and Identification Information in the Statement of Claim in Light of a Recent Constitutional Court Decision
Introduction
With its decision dated 22.05.2024 and numbered 2022/31465 E. (“Decision”) published in the Official Gazette dated 22.10.2024 and numbered 32700, the Constitutional Court examined the claim that the decision to deem the case as not filed due to the failure to complete the addresses and identification numbers of the defendants (which were not specified with the statement of claim), despite the definite period given for their completion, violated the right of access to the court.
As a result of its examination the Constitutional Court, ruled that there was no legal basis for granting the applicant a definite period of time to specify identification numbers of the respondents, which were not required to be included in the statement of claim, and deciding to deem the lawsuit as not filed due to the failure to complete this deficiency. Whereas the Constitutional Court concluded that the decision to deem the case as not filed due to the failure to specify the addresses of some of the defendants (since these addresses could not be determined) had a legal basis, but the said intervention was not proportionate. For the reasons explained, it was decided that the applicant's right of access to the court within the scope of the right to a fair trial guaranteed under Article 36 of the Constitution, was violated. This Newsletter examines the Decision, the relevant legislation and the Court of Cassation's position in similar cases.
The Concrete Event Subjected to Decision
The case subject to the application is an action for dissolution of partnership. The applicant filed a lawsuit at the Gümüşhane Civil Court of Peace (“Local Court”) for the dissolution of partnership in the immovable property in which she was a shareholder together with the defendants, through sale. The Local Court issued a memorandum to the applicant to complete within a one-week definite period of time, the identification numbers and addresses of some of the defendants which were not included in the statement of claim.
With the petition submitted to the file, the claimant stated that a definite period of time could not be granted for the submission of the identification numbers of the defendants, that the mailing addresses of the defendants were not included in the land registry, and that the addresses could be determined by the court. The Local Court decided to deem the case as not filed pursuant to Article 119/2 of the Code of Civil Procedure No. 6100 (“Law No. 6100”) on the grounds that the applicant failed to complete this deficiency within the one-week definite period of time.
The applicant appealed against the decision, stating that it was not mandatory to specify the identification numbers of the defendants in the statement of claim, that the deadline given in this regard was unlawful, and that the court could conduct an address search in order to determine the mailing addresses of the defendants, which were not certain and could not be determined.
The 2nd Civil Chamber of Trabzon Regional Court of Appeals has definitively decided to reject the appeal request on the merits. In the appeal decision, it is stated that, while it was possible to access the identity information and addresses of the defendants by examining the land registry records, the claimant’s attorney did not fulfill the requirement of the interim decision.
Following the notification of the decision, the applicant filed an individual application before the Constitutional Court.
Overview of Related Legislation
The case subject to the concrete case is referred to as a case for the dissolution of partnership (also known as suit of partition) in practice. Article 698 and the following provisions of the Turkish Civil Code No. 4721, published in the Official Gazette dated 08.12.2001 and numbered 24607, comprises provisions regarding the termination of shared ownership. Accordingly, each of the shareholders may request the division of the property, unless there is an obligation to continue the shared ownership due to a legal transaction or due to the fact that the shared property is dedicated to a permanent purpose.
Law No. 6100, published in the Official Gazette dated 04.02.2021 numbered 27836, is the law that comprises fundamental provisions on the procedural rules to be applied to the proceedings before the civil courts. In this context, the elements that must be included in the statement of claim are regulated under Article 119 of the Law No. 6100. Accordingly, information on the court to which the application is made, the subject matter of the lawsuit, the facts and evidence on which the claim is based, certain information regarding the claimant and his/her attorney, as well as certain information regarding the defendant must be included in the statement of claim. Pursuant to subparagraph (b) of paragraph 1 of the aforementioned provision, the name, surname and address of the defendant are also among the mandatory elements that must be included in the statement of claim. It is also stated in Article 119/2 of the Law No. 6100 that if the matters other than some subparagraphs of paragraph 1 are missing, the judge shall grant the claimant a definite period of one week to complete the deficiency, and if the deficiency is not completed within the period, the lawsuit shall be deemed not filed. The name, surname and address of the defendant are among the information that the court may grant the claimant time to complete.
In the case at hand, it is understood that the Local Court requested the applicant to complete both the addresses of some of the defendants and the identification numbers of the defendants. In this respect, the Constitutional Court separately examined the claims that (i) the decision to deem the case as not filed due to the failure to complete the identification numbers and (ii) the decision to deem the case as not filed due to the failure to complete the mailing addresses, constituted a violation of rights.
Assessment Regarding Violation of the Constitution
In the specific case, the Constitutional Court examined the application within the scope of the right of access to the court, which is among the guarantees of the right to a fair trial.
In this context, first of all, it is determined that the decision to deem the case as not filed due to the failure to specify the identification numbers and addresses despite the definite period of time, and consequently not examining the merits of the dispute, constitutes an interference with the right of access to the court.
After this determination, it is assessed by the Constitutional Court whether the interference complied with the conditions of (i) being foreseen by law (legality), (ii) being based on a justifiable reason (legitimate aim) and (iii) not being contrary to the principles of proportionality (proportionality), in light of the general principles set out in Article 13 of the Constitution which allows the limitation of constitutional rights.
Deeming the Case Not Filed Due to Failure to Complete the Identification Numbers
The Constitutional Court first examined whether the said interference was foreseen by the law. In this context, as the result of its assessment, the Constitutional Court determined that Article 119/1 of the Law No. 6100 does not include the identification numbers of the defendants among the elements that must be included in the statement of claim.
On the other hand, it is stated in the Decision by referring many previous decisions of the Constitutional Court, that all data that makes a person directly or indirectly identifiable is personal data and that the identification number is indisputably a personal data.
In this respect, the Constitutional Court has concluded that there is no legal basis for; granting the applicant a definite period of time for the notification of the identification numbers which are not mandatory to be included in the statement of claim and which constitute a crime in case of unlawful acquisition, and the decision to deem the lawsuit as not filed due to the failure to complete this deficiency.
Deeming the Case Not Filed Due to Failure to Complete the Addresses
The Constitutional Court whereas considered that the intervention in the form of the decision to deem the case as not filed due to the failure to specify the addresses of the defendants despite the definite period given, has a legal basis in accordance with Article 119/1(b) of the Law No. 6100 and Article 119/2 of the Law No. 6100.
However, the Constitutional Court assessed that the said interference was disproportionate as the result of the examination made within the scope of the sub-principles of the principle of proportionality. The Constitutional Court examined the sub-principles of convenience, necessity and balance (orantılılık) within the scope of the principle of proportionality (ölçülülük). In this framework, it has been assessed that the decision to deem the case as not filed due to the applicant's failure to remedy the deficiency of defendants addresses in due time, is convenient and necessary in terms of preventing the delay of the proceedings due to procedural deficiencies and achieving the purpose of effective trial on the merits of the proceedings. However, as a result of the examination in terms of balance (orantılılık), considering the nature of the case, it was concluded that the burden that the applicant had to endure was disproportionate to the legitimate aim, and therefore the interference was not proportionate (ölçülü).
In this context, the Constitutional Court stated that, although the principle of preparation of case by the parties is valid in civil proceedings, in cases where there are many shareholders in the land registry and not all of their addresses are found in the land registry, imposing the requirement on the claimant party to specify the addresses of all defendants who are shareholders in the statement of claim may have severe consequences, whereas, the court may search the addresses of the shareholders seen in the land registry from various institutions.
In conclusion, the Constitutional Court ruled that the right of access to the court within the scope of the right to a fair trial guaranteed under Article 36 of the Constitution was violated.
As for the applicant's request for compensation was rejected on the grounds that a retrial would provide sufficient remedy to eliminate the violation and its consequences.
Court of Cassation's Practice in Similar Cases
The Decision is significant since it demonstrates the Constitutional Court's approach to cases where the defendant's address is unknown, which has been a long-standing challenge in practice.
Over time, as in the case subject to the Decision, the decision to deem the lawsuit as not filed due to the claimant’s failure to complete the defendant's address information within the given deadline has been subject to the review of various chambers of the Court of Cassation.
In practice, it is observed that, to overcome this issue, addresses whose accuracy is uncertain are sometimes included in the statement of claim. Following the failure of notifications sent to such addresses, a request is made to the court to conduct an address search[1].
Conversely, it has been noted that in the past, the Supreme Courts in some of its decisions have strictly accepted the conditions sought under Art. 119 of Law No. 6100 and assessed the decision of deeming the lawsuit as not filed to be correct, while in some of its decisions[2] it has demonstrated a more flexible approach[3] .
It is understood that the opinion adopted by the Constitutional Court includes an approach that interprets the provision broadly, despite the explicit regulation of Article 119/1(b) of Law No. 6100.
Conclusion
In its decision dated 22.05.2024, the Constitutional Court evaluated whether the decision to deem the case as not filed due to the failure to complete the identification numbers and addresses of the defendants within the definite period given to the applicant violated the right of access to the court. As a result of its examination, the Constitutional Court decided that the applicant's right of access to the court within the scope of the right to a fair trial guaranteed under Article 36 of the Constitution was violated. With this decision, the Constitutional Court revealed its position on the long-standing challenge in practice of “not knowing the address of the defendant” and has demonstrated that it has adopted a broad interpretation of the provision, despite the explicit regulation outlined in Art. 119/1(b) of the Law No. 6100.
- In its decision dated 05.04.2018 and numbered 2017/7320 E. 2018/10787 K., the 8th Civil Chamber of the Court of Cassation stated that, Art. 119 of the Law No. 6100 pertains to situations where the defendant's address is not included in the statement of claim at all, and in the relevant case, the court considered, the facts that the claimant has provided the defendant’s addresses in the statement of claim, thereby fulfilled the mandatory requirement to be included in the statement of claim, and concluded that the court should investigate the mailing addresses of the defendants for notification and if identified, notification should be served accordingly, and if such addresses could not be found, service by public announcement should be considered and a judgment should be rendered accordingly (Access: www.lexpera.com.tr).
- Decision of the 2nd Civil Chamber of the Court of Cassation dated 10.09.2024 and numbered 2023/9198 E. 2024/5591 K. (Access: www.lexpera.com.tr). In the decision of the 8th Civil Chamber of the Court of Cassation dated 28.03.2024 and numbered 2021/14841 E. 2024/2137 K. (Access: www.lexpera.com.tr), the decision to deem the lawsuit as not filed was deemed appropriate with the majority of votes, and a dissenting opinion was written against the decision.
- See the decision of the General Assembly of Civil Chambers of the Court of Cassation dated 10.06.2015 and numbered 2014/266 E. 2015/1547 K. stating that Art. 119(1)-b and Art. 119/2 of the Law No. 6100 is not applicable since it is necessary to determine the addresses of defendants pursuant to the regulations on the Notification Law considering that the claimant stated in due time that he did not know the addresses (Access: www.lexpera.com.tr). See also the decision of the General Assembly of Civil Chambers of the Court of Cassation dated 24.02.2016 and numbered 2014/14-810 E. 2016/167 K. (Access: www.kazanci.com.tr). See the decision of the 8th Civil Chamber of the Court of Cassation dated 04.03.2020 and numbered 2018/7988 E. 2020/2123 K. stating that it is the duty of the court to investigate the last known addresses of the defendant for notification and that failure to comply with the court's notice will not result in any legal consequences (Access: www.lexpera.com.tr). See the decision of the 11th Civil Chamber of the Court of Cassation dated 02.12.2013 and numbered 2013/5492 E. 2013/21835 K. stating that the court should determine the addresses of the defendants by conducting an address and identity research, and that the decision to dismiss the lawsuit procedurally without conducting the necessary research requires a reversal (Access: www.lexpera.com.tr) See the decision of the 20th Civil Chamber of the Izmir Regional Court of Appeal dated 09.10.2024 and numbered 2024/1661 E. 2024/1435 K. stating that the absolute requirement to indicate the address of the defendant at the time of filing a lawsuit may hinder access to justice, and that indicating the address of the defendant should not be interpreted as a mandatory content in terms of the Law No. 6100, as in the practice of former Civil Code of Procedure. (Access: www.lexpera.com.tr).
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