1. Introduction
The society in which we live is constantly
changing and evolving, and these changes also affect the legal system. In
response to changing social needs, the legislature enacts new laws and
introduces amendments to existing regulations. Whether and to what extent these
new rules, once they enter into force, should alter the legal position that
existed under the previous regulations remains an ongoing debate in legal
scholarship and practice. When applying new regulations, the principles of the
rule of law, legal certainty, foreseeability, and the right to seek judicial
remedies should be taken into consideration. The retroactive application of new
laws may undermine legal stability and predictability. At the same time, it is
important to ensure that changes introduced during pending proceedings do not
adversely affect the right to a fair trial.
Accordingly,
an appropriate balance must be struck by taking into account the specific
circumstances of each case. The legislature and the judiciary are expected to
observe these principles when applying regulations and to ensure the effective
protection of the parties’ rights.
2. Temporal Application of Laws
The temporal application of laws refers to the
rules that determine which events a newly enacted law applies to, from which
date and within what limits it applies. [1]
The principles governing the temporal application
of laws are a consequence of, and an integral part of, the rule of law. Article
2 of the Constitution provides that the Republic of Türkiye is a state governed
by the rule of law. The Constitutional Court has also stated in numerous
decisions that the principle of the rule of law encompasses the principles of
legal certainty and legal foreseeability. The principle of legal certainty aims
to enable individuals to conduct legal transactions in reliance on the rules of
law in force and to ensure that they are not exposed to unforeseeable
consequences as a result of subsequent legislative changes. The principle of
legal certainty, on the other hand, requires laws to be clear, foreseeable, and
stable. Accordingly, when applying newly enacted laws, the principles of the
rule of law, legal certainty, and the right to seek judicial remedies should be
observed. This is particularly important when applying new statutory provisions
to pending proceedings, where consideration should be given to the legal
position of the parties at the time the proceedings were initiated. The
parties’ legal position should be preserved to the greatest extent possible,
and their legitimate legal expectations should be taken into account.
In legal doctrine and practice, the temporal application
of laws is generally addressed under two main categories: substantive law and
procedural law. The general principle governing substantive law is that laws do
not apply retroactively. In procedural law, by contrast, the principle of
immediate application applies. However, in pending proceedings, determining
which law applies cannot be based solely on this distinction. Even where a new
provision concerns procedural matters, if it directly affects the parties’
legal position or produces such effects, the principles of legal certainty,
legitimate expectations, and vested rights must also be taken into
consideration. Accordingly, the protection of legitimate expectations and the
rule of law, set out under Article 2 of the Constitution, must also be taken
into account when determining the temporal application of laws.
3. Key Principles Governing the Temporal Application
of Laws
The events to which a new law applies are
determined within the framework of the general principles governing the temporal
application of laws. Legal scholarship and judicial practice recognize certain
fundamental principles in this area. These are the principle of
non-retroactivity of laws and the principle of immediate application.
3.1. Principle of Immediate Application
As a general rule, events and legal
transactions are governed by the rules of law in force at the time they occur.
The application of the law in force at that time to a particular event is
referred to as the principle of immediate application. Under this principle, a
new law applies to events and legal transactions occurring after its entry into
force and does not have retroactive effect. By contrast, the application of a
legal rule that subsequently enters into force to an event or transaction that
occurred in the past is referred to as “the principle of retroactivity”.
Retroactive application is essentially an exception. One example can be found
in criminal law, where a law more favorable to the defendant may be applied. In
civil proceedings, however, the general principle governing legislative
amendments is immediate application. [2] Under this general rule, procedural
acts carried out under the previous law should be governed by that law, whereas
proceedings that have not yet been completed should be concluded in accordance
with the new law. The provisions of a new procedural law also apply to the
continuing effects, under the new law, of incomplete procedural acts relating
to events and legal relationships that arose while the previous law was in
force. However, legal situations and procedural acts that were completed and
became final under the previous law, and whose legal consequences had already
taken effect for the parties, are not affected by the new law. They remain
valid and do not need to be renewed. Accordingly, procedural laws cannot
disrupt a legal situation that was validly established before they entered into
force, nor can they revive a legal situation that was never validly established
or had already become invalid. [3]
The Constitutional Court has also issued
decisions affirming the principle that laws should not have retroactive effect.
Under its decision dated 30.05.2006, and bearing the Basis number 2003/82 and
the Decision number 2006/66, the Constitutional Court held as follows:
“The legal certainty that the rule of law is
required to safeguard, as a general principle, necessitates that laws do not
have retroactive effect. Under the principle of non-retroactivity of laws,
legislation is, as a rule, enacted to apply to events, transactions, and acts
occurring after its entry into force, except in certain exceptional
circumstances, such as the protection of vested rights required by the public
interest and public order, or improvements to financial rights.” [4]
Under another decision, the Constitutional
Court held as follows:
“The legal certainty that the rule of law, as
set out under Article 2 of the Constitution, is required to safeguard, as a
general principle, necessitates that laws do not have retroactive effect. Under
the principle of non-retroactivity of laws, legislation is, as a rule, enacted
to apply to events, transactions, and acts occurring after its entry into
force, except in certain exceptional circumstances, such as those required by
the public interest and public order, the protection of vested rights, or improvements
to financial rights. The past therefore remains outside the scope of newly
enacted legislation. Accordingly, it is a general principle of law that laws
entering into force subsequently should not affect the past or legal situations
that have acquired a definitive status.” (Decision, bearing the Basis number
2013/86, the Decision number 2013/117, and dated 10.10.2013, of the
Constitutional Court) [5]
“The principle of legal certainty, which the
rule of law is required to safeguard, is a common value that requires legal
norms to be foreseeable, enables individuals to have confidence in the state in
all their acts and transactions, and requires the state to refrain from methods
that may undermine this confidence when enacting legislation. As a general rule,
legal certainty requires that laws do not have retroactive effect. Under this
principle, known as the ‘principle of non-retroactivity of laws,’ laws may
apply only to legal situations arising after their entry into force; therefore,
a law enacted subsequently does not apply to events that occurred before its
entry into force.” (Decision, bearing the Basis number 2012/102, the
Decision number 2012/207, and dated 27.12.2012, of the Constitutional Court) [6]
Under another decision, the Court of Cassation
explained the principle as follows:
“Although there is no consensus in legal
doctrine on the definition of the principle of non-retroactivity, the principle
may generally be defined as a general principle of law that prohibits a newly
enacted rule from producing legal effects for the period preceding its entry
into force and requires the rule to apply only to events occurring after its
entry into force.” (Decision, bearing the Basis number 2021/86, the Decision
number 2021/516, and dated 20.04.2021,
of the General Assembly of Civil Chambers of the Court of Cassation) [7]
3.2. Principle of Legal Certainty
The principle that laws should not have
retroactive effect is a general principle, rooted in the principle of legal
certainty [8]. The principle of legal certainty requires that legal stability
and predictability not be undermined through frequent changes to legal rules
and that retroactive rules safeguard individuals’ fundamental rights and
freedoms without interfering with vested rights. Individuals are entitled to
rely on the continued validity and application of the legislation in force. If
individuals’ acts and transactions may subsequently be deemed invalid on the
basis of a legal rule that was not in force and could not have been known at
the time, confidence in the law is undermined. Under the principle of
non-retroactivity, the rules governing the procedure to be followed in pending
proceedings should, as a general principle, apply only to the procedural
aspects that have not yet been completed. This is because a completed
procedural act cannot subsequently be assessed under rules that were enacted
after the act was completed, regardless of how the completed stage is characterized.
Individuals cannot reasonably be expected to act in accordance with rules that
have not yet entered into force and whose content is unknown to them [3].
4. Application of New Laws to Pending
Proceedings and the Principle of Legitimate Expectations
Under Turkish law, procedural rules are
generally subject to the principle of immediate application. This is expressly
provided for in Article 448 of the Code of Civil Procedure Nr. 6100, which
states: “The provisions of this Law shall apply immediately, provided that
they do not affect completed procedural acts.” As the wording of the
provision makes clear, the principle of immediate application is subject to the
condition that completed procedural acts remain unaffected. This does not,
however, mean that the principle of immediate application is without limitations.
In particular, where a new provision affects the parties’ legal position as it
stood when the proceedings were initiated or has an impact on the outcome of
the proceedings, the principles of legal certainty and legitimate expectations,
which derive from the rule of law, should also be taken into consideration.
The Constitutional Court defined the concept of legitimate expectations
in an individual application concerning an alleged violation of the right to
property as follows:
“A legitimate expectation is an expectation
of sufficient substance arising from an enforceable claim that has been
reasonably established and is based either on a specific provision of domestic
law or on settled and consistent case law indicating a high likelihood of
success.”
Under the decisions in which it has used this
definition, the Constitutional Court directly refers to the definition adopted
by the European Court of Human Rights. Under its constitutional review
decisions, the Court approaches the concept by emphasizing whether individuals
who have relied on the long-standing application of legislation have structured
their lives accordingly, and whether such reliance is worthy of protection in a
state governed by the rule of law. [9]
Similarly, the Court of Cassation has
recognized in its case law that vested rights arising from certain procedural
acts should be protected. The opposite approach could make judicial proceedings
unpredictable due to constantly changing rules and prevent the parties from
having a foreseeable and stable litigation process.
Article 36 of the Constitution guarantees the
right to seek judicial remedies. It provides that everyone has the right to
assert and defend their rights and claims before judicial authorities. This
right encompasses not only access to the courts, but also the ability to obtain
effective judicial protection within the legal system to which the individual
has had recourse.
Accordingly, where a person initiates
proceedings in reliance on the legal rules in force at the time the action is
brought, subjecting that person during the proceedings to new obstacles that
could not have been foreseen and did not exist at the outset as a result of
subsequent legislative amendments may constitute an infringement of the right
to seek judicial remedies. This is particularly the case where a new provision
significantly alters the person’s ability to bring an action, the manner in
which their claim is assessed, or the legal criteria to be applied in resolving
the dispute. Such changes may undermine the right to a fair trial.
The right to a fair trial is set out under
Article 6 of the European Convention on Human Rights and guarantees that
proceedings are conducted fairly and concluded within a reasonable time. The
European Court of Human Rights recognizes legal certainty and foreseeability as
fundamental elements of the right to a fair trial. Accordingly, subsequent
legislative amendments that intervene in pending proceedings should not
undermine the parties’ legitimate expectations regarding the course and outcome
of those proceedings.
5. Conclusion
When determining whether new laws should apply
to pending proceedings, the analysis should not be based solely on the law’s
date of entry into force and the principle of immediate application. The
parties’ legal position at the time the proceedings were initiated, their
legitimate expectations, and the procedural rights and opportunities available
to them should also be taken into consideration. In particular, the right to
seek judicial remedies, as protected under the Constitution and the European
Convention on Human Rights, must not be infringed. From the perspective of the
right to seek judicial remedies and the right to a fair trial, individuals’
confidence in the legal system should be protected. Where subsequently enacted
laws produce consequences that the parties could not have foreseen and could
not reasonably be expected to accept, the principles of legal certainty and
legitimate expectations should be safeguarded. The concept of vested rights is
also an important safeguard in determining the limits of applying new laws to
pending proceedings. Although new legislation may be enacted in pursuit of the
public interest, its effects on legal proceedings initiated in the past should
be assessed in accordance with the principle of proportionality. The rule of
law requires not only that new legislation be enacted, but also that such
legislation be applied in a foreseeable and consistent manner that protects
individuals’ legitimate expectations.
Fatma Şengün, Legal Intern
References:
1. Pekcanıtez / Atalay / Özekes, Medeni Usûl
Hukuku (Code of Civil Procedure); Baki Kuru, Hukuk Muhakemeleri Usulü
Kitabı (Book on the Code of Civil Procedure).
2. Özekes, Muhammet, Özel Hukuk –Kamu hukuku ve
Yargılama Hukuku Bakımından Kanunların Zaman itibariyle uygulanması (Temporal
Application of Laws under Private Law, Public Law, and Procedural Law),
Ankara 2010, p.2871
3. Dr. Halil Yılmaz, Kanunların Zaman Bakımından
Uygulanması (Temporal Application of Laws) (6100 Sayılı Hukuk
Muhakemeleri Kanunu Açısından) (From the Perspective of the Code of Civil
Procedure Nr. 6100)
4. Decision, bearing the Basis number 2003/82, the
Decision number 2006/66, and dated 30.05.2006, of the Constitutional Court
5. Decision, bearing the Basis number 2013/86, the
Decision number 2013/117, and dated 10.10.2013, of the Constitutional Court
6. Decision, bearing the Basis number 2012/102, the
Decision number 2012/207, and dated 27.12.2012, of the Constitutional Court
7. Decision, bearing the Basis number 2021/86,
the Decision number 2021/516, and dated 20.04.2021, of the General Assembly of
Civil Chambers of the Court of Cassation
8. Akıllıoğlu, Tekin: Yasaların (anayasa dahil)
zaman içinde uygulanması (Temporal Application of Laws (inc. the
Constitution)), Ankara 1984 (footnote #9), p.285
9. Jülide Gül Erdem, Anayasa Mahkemesi’nin Haklı
Beklentilerin Korunması İlkesine Yaklaşımı (The Constitutional Court’s
Approach to the Principle of Protecting Legitimate Expectations)
