Silent Risks Surrounding Final Court Decisions: Has the Litigation Truly Come to an End?

A dispute may have completed all stages of litigation, the judgment may have become final, and the case file may appear to be closed. Nevertheless, this may not always mean that the legal effects of the decision are no longer open to challenge. Following the finalisation of a judgment, individual applications filed before the Constitutional Court of Turkey (“CC”), which may proceed without notification to the parties, can give rise to unforeseen legal risks relating to the effects of the decision, even years later.

As is well established in practice, individual applications before the CC are examined without any notification or service being made to the counterparty during the review phase. The proceedings therefore progress in a largely silent manner, without the participation of the party to the underlying dispute whose legal interests may ultimately be affected by the CC’s decision. This practice creates a risk that disputes believed to have been conclusively resolved may, many years later, give rise to unexpected consequences, including retrial proceedings or compensation claims.

Where the CC finds that a constitutional violation has occurred and determines that such violation stems from a court decision, the case file is remitted to the relevant court for the purpose of conducting a retrial in order to eliminate the violation and its consequences. In cases where a retrial is considered to lack legal interest, the CC may instead award compensation in favor of the applicant or direct the applicant to bring an action before the ordinary courts. In retrial proceedings, the court is required to issue a new decision that eliminates both the violation and its effects in line with the reasoning set out in the CC’s decision.

Accordingly, the fact that a judgment has become final should not be taken to mean that all legal risks associated with that judgment have necessarily been eliminated. In particular, individual applications before the CC that proceed without notification to the opposing party may give rise to long-term and difficult-to-anticipate consequences, even in disputes that are considered final. For this reason, and in order to ensure that the right of defense is not restricted, there appears to be need for legislative amendment requiring notification to, and participation of, the opposing party in individual application proceedings before the CC.