1.THE CONTESTED PROVISION

 

The Nevşehir 4th Civil Court of First Instance and the Istanbul Anadolu 15th Civil Court of Peace requested the annulment of Article 166/1 of the Code of Civil Procedure (HMK) on the grounds that it violates Articles 2, 13, 36, 37, and 138 of the Constitution.

 

Article 166 – (1)

“Cases filed before civil courts of the same level and title within the same judicial district may be consolidated at any stage of the proceedings, either upon request or ex officio, before the court where the first case was filed, provided that they are related to each other. The decision on consolidation shall be rendered by the court where the second case was filed, and this decision shall be binding on the other court.”

 

 2.GROUNDS FOR THE OBJECTION

 

The Nevşehir 4th Civil Court of First Instance and the Istanbul Anadolu 15th Civil Court of Peace argued that under the contested rule, when a consolidation decision is rendered in cases filed before courts of the same level and within the same judicial district, such a decision binds the other court. Since an appeal against the consolidation decision can only be made together with the final judgment, the court where the first case was filed has no opportunity to review the consolidation decision.

 

They contended that this situation is incompatible with the principles of the rule of law, the right to legal remedies, the guarantee of a lawful judge, and the independence of the judiciary, thereby violating Articles 2, 13, 36, 37, and 138 of the Constitution. Consequently, annulment of the rule was requested.

 3.ASSESSMENT BY THE CONSTITUTIONAL COURT

 

The Constitutional Court, while explaining the guarantee of a lawful judge, made the following assessments:

 

• Under the guarantee of a lawful judge, the rules determining which court has jurisdiction over a case must be established by law and in advance. However, it is possible to make legal arrangements allowing a case to be heard before a different court than the one where it was initially filed, provided there are legitimate and reasonable grounds. One such arrangement is Article 166 of the Code of Civil Procedure, which regulates the consolidation of cases.

 

• The institution of consolidation serves the purpose of procedural economy and applies only when there is a connection between separately filed civil cases.

 

• The decision to consolidate cases is rendered by the court where the second case is filed, and in such cases, the first court is bound by that decision.

 

• Since it is only possible to appeal the consolidation decision together with the final judgment, there is no independent legal remedy to review the consolidation decision itself.

 

• In cases where no connection exists between the lawsuits, the first court may order separation, but even then, the situation may lead to the first court having to hear a case that was initially filed before another court. This, in the Court’s view, violates the guarantee of a lawful judge, as the conditions for consolidation under Article 166 would not be properly met.

 

 4.CONCLUSION

 

As a result of these evaluations, the Constitutional Court ruled that the phrase

“...and this decision shall be binding on the other court...”

contained in the second sentence of Article 166(1) of the Code of Civil Procedure No. 6100, dated 12 January 2011, is unconstitutional and therefore annulled.