EXTENDED SUMMARY

The inconsistency or difference between jurisprudence is in question in terms of ordinary legal remedy judicial bodies’ decisions. In the Turkish law system, due to the regulation regarding the remedy of appeal, first of all, a case-law dispute may arise between the final decisions of the district courts of appeal. The second type of case-law dispute comes into question in the chambers of the court of Cassation. As a matter of fact, there may be case-law conflicts between the decisions of the high court chambers on the same issue, and there may also be differences between the decisions of the Assembly of civil chambers in similar cases, or between the decisions of the Assembly of civil chambers and a civil chamber that are contrary to each other in similar events. Similarly, if one of the chambers of the Court of Cassation wishes to revert from its settled case-law, and if it has made inconsistent decisions in similar cases, the problem of combining the case-law will be encountered.

Apart from these disputes, the dispute arising from the competence of the courts is also important in terms of the right to a fair trial. In case of disagreement between the civil court and the administrative court regarding which court of appeal (administrative or civil) a case will be heard, there is a dispute of competence. The place of settlement of this dispute is not the Court of Cassation, but the Court of Jurisdictional Disputes which has been established for this purpose.

The task of unifying jurisprudence in the field of judiciary is carried out mainly through the decisions of the Court of Cassation. Because the main duty of the Court of Cassation is to ensure the unity of interpretation and jurisprudence throughout the country on the meaning of a rule, in other words, to ensure that the laws are applied in the same way throughout the country. The need to unify jurisprudence comes into question at the level of the Court of Cassation when the chambers of the supreme court or the general assemblies make different decisions. In this possibility, in order for the Court of Cassation to fulfill its duty of ensuring the unity of jurisprudence, the prerequisite and basic condition is the existence of at least two judgments of the Court of Cassation that are contradictory (incompatible or contradictory with each other) on similar legal issues. In that case, the decisions of the Court of Cassation, which are contrary to each other, will be combined in the case of “similar events”, as clearly stipulated in Article 16/5 of Law numbered 2797.

Different assemblies have been appointed to resolve case-law disputes in the judiciary, depending on the nature of the dispute. These are the Assembly of Civil Courts and the Grand General Assembly of the supreme court, respectively. On the other hand, if there is a difference in case-law between the decisions of the district courts of appeal, the relevant civil chamber of the Court of Cassation will definitively decide to resolve this dispute. Conflicts of competence and judgment between courts in the field of civil and administrative jurisdiction are resolved definitively by the Court of Jurisdictional Disputes. Pursuant to the provision of Cons. art. 158/II, the decision of the Constitutional Court shall be taken as the basis in the disputes between the other courts and the Constitutional Court.

The direct relation of the case-law disputes between the decisions of the mentioned judicial bodies with the right to a fair trial is important. One of the prerequisites and basic conditions to be able to talk about a truly democratic society, a state of law, or the principle of the rule of law is the right to a fair trial. The right to a fair trial is both a human right and one of the building blocks of a democratic state of law.

It has been confirmed by the case-law of the ECtHR that the case-law dispute causes a violation of the right to a fair trial under art. 6/1 of ECHR. The fact that the case-law disputes stemming from the judicial system of our country has reached significant dimensions has also been proven by the numerous decisions made against Turkey by ECtHR. The same phenomenon comes to the fore in numerous Constitutional Court decisions given within the scope of individual application.

Case-law disputes, especially in the field of labour law and social security law, have turned into a serious problem that makes it difficult for employees to obtain their rights. The complexity of our system of combining jurisprudence exacerbates the aforementioned problems.

This study is aimed to identify the problems regarding the unification of the jurisprudence system in terms of the right to a fair trial and to propose a new model in terms of de lege ferenda by determining the failing aspects of the jurisprudence unification system.