The Constitutional Court of the Republic Of Turkey (“Constitutional Court” or “Court) has decided to cancel a provision under the Art. 398 of the Turkish Code of Civil Procedure (“Procedural Code”) regulating the penalty of not complying with the execution of preliminary injunctions on the ground of it is unconstitutional. The decision of cancellation was published on the Official Gazette on February 20, 2019.
What was the legislation on the penalty concerning non-compliance with the execution of preliminary injunctions?
The subject article 398 of the Procedural Code is as follows;
“(1) The person who does not comply with the execution order of the preliminary injunction or acts against the decision of preliminary injunction shall be sentenced to a disciplinary imprisonment of 1 to 6 months. If the main action is not filed, the competent court shall be the court deciding on the preliminary injunction; if the main action is filed, it shall be the court before which the action is filed.”
How was the matter referred to the Constitutional Court?
During an infringement action filed for movie title before the 1st Civil Court of Intellectual and Industrial Property Rights of Istanbul (“IP Court”), the court decided for a preliminary injunction (“PI”) against one of the parties. Subsequently, the party against whom the PI was enforced was charged with claims of not complying with the court’s decision for PI. Upon these charges, said party objected to the enforcement of the subject-matter article of the Procedural Code on grounds that it is unconstitutional.
The objecting party argued that this provision restrains the right of defense; that the imprisonment of 1 to 6 months is against the principle of proportionality; that there are not any certain rules on how to appeal against this decision. They also argued that the procedure to be followed is not clear, considering the fact that the penalty results in criminal sanctions, but it is regulated by a provision of civil law.
The IP Court considered the unconstitutionality objection admissible and referred the matter to the Constitutional Court to resolve the matter.
What does Constitutional Court state?
The criteria on which the Court mainly based its evaluation on merits of the case were the principle of certainty and the principle of proportionality.
As a first step, the Court categorizes the principle of certainty as the natural result of legal certainty and describes it as “clear, certain, applicable, objective and non-arbitrary legislation for both the persons and the administrative authorities”.
As the second phase of its evaluation, the Constitutional Court interprets the principle of proportionality in three sub-branches: convenience, necessity and proportionality. The Court states that such measures increase the efficiency in enforcement of PIs and safeguard the enforceability of the final judgment. Therefore, it cannot be accepted that this provision is not convenient or necessary. Furthermore, the Court indicates that the punishment regulated under this provision is not disproportionate, considering the fact that there could be several unpredicted scenarios of non-compliance with the execution of PI and the law protects the legal interests of the party requesting the PI.
However, the Constitutional Court also took into consideration the fact that there are not any means of recourse against the disciplinary imprisonment regulated under the subject-matter article. According to the Court, the fact that there not any means of recourse against the subject criminal measures (e.g. means of appeal) despite their being imposed by the courts and restrict basic human rights of the individuals means that these measures are not certain and predictable. In conclusion, the provision is violating the principle of legal certainty and the right to legal remedies.
The Court Ruling
Consequently, the Constitutional Court decided that the first sentence of the provision goes against the principle of legal certainty and the right to legal remedies and it shall be cancelled. By the power vested in it by the Art. 153 of the Constitution, the Court decided that the cancellation decision shall come into force after 9 (nine) months following the date the decision is published on the Official Gazette. Given that it was published on February 20, 2019, the decision shall come into effect on November 20, 2019.
In most cases, the disciplinary imprisonment serves as a deterrent factor against the non-compliance with PIs and ensures the legal interests of the party whose rights might be damaged, especially in IP disputes. . Hence, absence of such measures may result in lack of compelling force against the infringers insisting on not complying with courts’ preliminary injunction orders. .
Thanks to the decision of postponement of the Constitutional Court, the lawmaker has 9 (nine) months to fill this legal gap and to prevent any losses of right. It is yet be determined whether the lawmaker will enact a new law or reinstitute the provision with a reference to any other existing law in terms of recourses.