The Constitutional Court, in a judgment published in the Official Gazette on 9 January 2025, considered whether requiring proportional court fees in proceedings for the enforcement of foreign judgments in Turkey is compatible with constitutional principles.
1. Subject Matter of the Application
The rules and the procedure governing enforcement of foreign judgments are regulated under the Law on the International Private and Procedural law no. 5718 whereas the applicable court fees are stipulated under the Law of Fees no. 492. You may follow this link to our Q&A article for further information on the enforcement process.
The application concerns the constitutionality of Article 4 of the Law on Fees, which mandates proportional court fees in lawsuits seeking the enforcement of foreign judgments in Turkey. The applicant contended that this provision infringes upon the right to a legal remedy, arguing that enforcement proceedings essentially of the nature of declaratory actions and thus should be subject to a fixed fee rather than a proportional one. The practical basis for the application is that the proportional method usually gives rise to a much higher fee payable at the time of filing the enforcement proceedings especially in high value commercial disputes and thereby significantly increases costs.
2. The Constitutional Court’s Examination
The Constitutional Court found that the imposition of proportional fees in foreign judgment enforcement proceedings interferes with the right of access to a court. However, consistent with the principle that certain interferences with fundamental rights may be permissible if they serve the public interest, the Court held that preventing an excessive workload for the judiciary and promoting swift dispute resolution constitute legitimate aims.
Moreover, applying the proportionality principle, the Court assessed whether the public interest served by proportional fees is balanced against the burden they place on the parties. The Court focused on the defendant’s position, noting that if the claim succeeds, the defendant is ordered to reimburse the claimant and to pay the balance court fees. The Court reasoned that a debtor unnecessarily consumes judicial resources by neglecting to fulfill an obligation before the claimant proceeds to enforcement. Consequently, the Court concluded that the burden on such defendants does not exceed the threshold of reasonableness in light of the public benefits gained.
3. Dissenting Opinion
Dissenting judges of the Court expressed the view that proportional fees impose a severe financial burden on those who seek to enforce foreign judgments, thereby infringing upon the right to property and the right of access to court.
The dissenting opinion stressed also that proceedings for the enforcement of foreign judgments essentially carry the nature of declaratory actions, meaning they can be concluded quicker and with less effort without an examination on the merits. On that basis, the dissenting judges were in favour of imposing a fixed fee instead of a proportional one as that would be more appropriate for the relatively straightforward process of enforcement proceedings.
Conclusion
The decision of the Constitutional Court, by mandating proportional fees even in enforcement proceedings that do not involve a comprehensive examination of the merits, imposes an additional financial burden on the parties and raises concerns about its impact on the right of access to the courts. Furthermore, a separate court fee regime is applicable in the enforcement of foreign awards for which only a fixed fee is required in a relatively minimal sum. The fact that the enforcement of foreign judgments and awards are subject to different court fee regimes is another reason to criticize the Constitutional Court’s ruling. Even though the decision is expected to bring clarity and foreseeability to an issue that has long been debated, it seems to have fall short of satisfying the parties of that debate.
