generally
30 Of the Code of Civil Procedure No. 6100. in accordance with the principle of procedural economy regulated in the article, the judge is obliged to ensure that the trial is conducted within a reasonable time and in an orderly manner and that unnecessary expenses are not incurred.[1]
As it is the duty of the state to conclude cases promptly within the framework of the principle of procedural economics, the right to trial within a reasonable time is an element of the right to a fair trial, therefore it is a positive status right from the point of view of the individual. On the other hand, the state provides a judicial service by providing legal protection to individuals through the courts. For example, paying fees, which is a requirement of litigation, aims to reduce the workload of courts in terms of procedural economics (HMK Md. 119). Thus, one of the purposes of levies is to prevent people from applying to the judiciary with bad intentions. In order to prevent the judiciary from being under excessive burden due to unnecessary applications, therefore, in order for the judicial function to be performed effectively, fees should be taken, provided that they do not complicate the right of individuals to access the court.[2] For this reason, it is necessary to use the balance mechanism effectively between taking excessive fees or taking unnecessary fees and making it difficult to apply for judicial Decrees.
In this study, the decisions of the Court of Cassation, the Regional Court of Justice and the Constitutional Court have tried to strengthen the principle of procedural economics and clarify the criteria of the principle of procedural economics.
The Principle of Procedural Economics in Supreme Court Decisions
In a decision of the Regional Court of Justice, it was stated that it is possible to collect receivables with the same parties and arising from the same decision by depositing fees on the same tracking file, and that initiating separate tracking without a reasonable and acceptable reason would constitute a violation of procedural economics.[3]
Pays payable by the defendant company in accordance with the contract concluded between the parties of the case in a decision of the Regional Court of Justice again, it is stated that if the fees or expenses to be paid by the defendant company are left on the plaintiff party in the Decest, the judge’s obligation to ensure that unfair and unnecessary expenses are not violated, therefore the lawsuit filed by the plaintiff party for the payment of the said expenses by the defendant company will not be contrary to the procedural economy.[4]
In a decision of the Regional Court of Justice, it was stated that the lawsuit petition must be notified to the defendant party absolutely before the decision of dismissal is made, otherwise there will be a violation of procedural laws and the right to legal hearing, but since the decision of dismissal is in place, it will not provide a retroactive benefit and will not comply with the purpose of the principle of procedural economy, even if the provision is not removed and the procedural procedure is not fulfilled.[5]
In October October, in a case filed as an indefinite receivable case in a decision of the Regional Court of Justice, it was stated that the plaintiff’s attorney was not given time to correct the amount of the case, that this transaction is contrary to the law and the purpose of the right to legal hearing, the reasoned decision of the local court concluded that there would be no loss of rights, since it is possible to request receivables with additional cases, but the additional case may face the statute of limitations, and that this transaction would not be in accordance with the purpose of the principle of procedural economy.[6]
In a decision of the Constitutional Court, it was stated that although the difficulty in resolving the legal issue, the complexity of material events, the obstacles encountered in the collection of evidence may be considered complex, considering that the applicant’s attitude and behavior did not cause the trial to be prolonged, the 9-year duration of the trial is contrary to the purpose of the principle of procedural economics and the right to a fair trial.[7]
Again, in a decision of the Constitutional Court, it was stated that the costs incurred by the applicant in the individual application and before were a reasonable expense compared to the amount decided by the local court on the merits of the case.[8]
In a decision of the Supreme Court, 3, which is not a party in the case. 3, who is not currently present as a plaintiff in the case due to the fact that it has been accepted that the person will always gain the title of a party to the case by taking over the subject matter of the case from the plaintiff. it has been stated that giving a person the opportunity to gain the title of a party (plaintiff) in a lawsuit will be in accordance with the principle of procedural economy.[9]
Result
As a result, whether the principle of procedural economics is of a nature that can be considered complex when criteria such as difficulty in resolving a legal issue, complexity of material events, obstacles encountered in collecting evidence are taken into account, however, whether it causes prolongation of the trial by the applicant’s attitude and behavior should be determined by taking into account, therefore, it is accepted that it is different in terms of each concrete event, but it should be applied in a way that does not contradict the criteria taken in violation of the right to a fair trial, which is protected under the AHIS and the Constitution.
[1] Istanbul BAM 3. HD., 04.05.2018 T ., 2018/832 E., 2018/508 K.; “Duty is a condition of the case and should be taken into account by the judge ex officio and at every stage of the trial. In the concrete case, according to the way the claim is put forward, the plaintiffs do not have the title of merchant, and it is also understood that the place subject to sale is housing. TCC 4. just as it is not one of the cases mentioned in the absolute definition of commercial litigation in the article, it is clear that the concrete case does not have the nature of a commercial case, since neither side has the title of merchant. In that case; for the provision of hearing of this case in the Civil Court of First Instance, which is the general court, Jul 138 ex officio and HMK. article and the regulation specified in this article on the way of listening to the parties when necessary, and CCP 114. when the conditions of the case in Article 30 of the CCP are evaluated together, the cases are again. since there was no violation of any law and the law in the decision made by the judge taking into account the regulation on preventing unnecessary expenses by conducting it within a reasonable time and in a regular manner within the framework of the article, it was necessary to reject the defendant’s appeal request for this purpose.”
[2] Dispute Resolution Procedure Arising from Consumer Transactions, Asst. Assoc. Dr. Evolution Accesses, p. 111-112
[3] Izmir BAM 8. HD., 20.04.2018 T ., 2018/1782 E., 2018/841 K.; “HMK’s 30. the principle of procedural economy is introduced in the article “the judge is obliged to ensure that the trial is conducted within a reasonable time and in an orderly manner and that unnecessary expenses are not incurred”. It is possible to collect receivables whose parties are the same and arising from the same decision by depositing fees through the same tracking file. Initiating separate follow-up without a reasonable and acceptable reason will constitute a violation of procedural economics. In the concrete case, Çanakkale 1. Ankara 8 with the decision on the subject of the follow-up file numbered 2016/3387 of the Enforcement Directorate. Enforcement Directorate’s decision on increasing alimony against the appointment of the defendant from Ankara to Çanakkale on 14/03/2016 on the basis that the decision subject to the follow-up file No. 2014/23779 is not the same, there is no question of dividing the decision or repeated follow-up due to the fact that the decisions based on both follow-up files are different, the defendant, who works as a nurse on the staff of the Ministry of Health, was appointed from Ankara to Çanakkale on 14/03/2016, Çanakkale 1. It has been understood that the subject of the Enforcement Directorate’s follow-up file numbered 2016/3387 does not constitute a violation of the principle of procedural economics, and that the decision to cancel the follow-up by the court of first instance is not in accordance with the procedure and the law.”
[4] Izmir BAM 14. HD., 27.02.2018 T ., 2018/79 E., 2018/229 K. Jul ; “Although the plaintiff has given power of attorney to the defendant company representative for the performance of the contract in accordance with the defendant company’s warnings, 3 of the contract. in accordance with the article, it is understood that the case was filed by the plaintiff party after the defendant contractor failed to fulfill this obligation, despite the fact that the purchase of a building permit (settlement license) related to the C-Block, which fell to him in accordance with the contract, was arranged in the contract, the costs of which also belonged to the defendant contractor.
30 Of the CCP numbered 6100, which bears the title ”The principle of procedural economics”. article, ”The judge is obliged to ensure that the trial is conducted within a reasonable time and in an orderly manner and that unnecessary expenses are not made. 33 of the same law entitled ”Application of the law”. the article says, “The judge applies Turkish law ex officio.” he regulates his judgment.
According to the issues put forward by the plaintiff in the lawsuit petition and the statements reflected in the file, as well as the construction contract that the plaintiff concluded between the defendant and the plaintiff, there are independent sections that hit him (although he later sold), 640 islands, 331 plots of the contract related to 6 independent sections located in the C-Block, Dec. 3. although the obligation to obtain a building permit (settlement license) and cover the costs in accordance with article 30 and 33 of the CCP described above belongs to the defendant company, due to the fact that the purchase of a building permit (settlement license) by the defendant company has not been fulfilled by the defendant party, the costs of purchasing this permit (settlement license) have been covered by the defendant company, therefore, for the provision of the cost without being covered by it, Jul. it is understood that he has filed his case in hand within the scope of the articles.”
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