In Theory

Since 1995, we have had a law specifically for consumer protection: the Consumer Protection Law (the Law). The Law’s purposes include protecting consumer’s economic interests, compensating their losses, and encouraging them to take self-protective measures.

Let’s say a product seller or service provider violated a consumer’s rights under the Law and failed to fulfill their responsibilities. What can the consumer do?

Depending on the amount of the dispute, the basic paths that the consumer can follow are as follows, which they must follow in order:

The cases we focus on in this piece are consumer disputes below the threshold, which a consumer applies to the consumer arbitration committee. In these cases, the last resort for the consumer is the consumer courts, which have the authority to annul the decisions of the consumer arbitration committee. The decisions of consumer courts on these cases cannot be overturned by a first-degree appeal court or reversed by the Supreme Court; they are final judgments.

However, the fact that those consumer court decisions are final does not necessarily mean they are correct. For this reason, there is a procedure called appeal in the interest of the law. According to this procedure, the Ministry of Justice can appeal a final court decision to the Supreme Court if it becomes a final judgment without going through an appeal review and the Ministry believes the decision is unlawful.

If the Supreme Court reverses a consumer court’s decision following this appeal review, it does not affect the case result. However, the decision for reversal shows that the consumer court made an unlawful decision. Then, the official journal announces the reversal decision to the legal world and the public. So, the aim is to prevent similar unlawful decisions from being rendered in new cases.

In Practice

When we look into the reversal decisions in the interest of the law rendered by the Supreme Court in recent years, the following unlawful aspects of consumer court decisions stand out:

• Dismissing the case because the dispute falls within the jurisdiction of another court (e.g., commercial court), even though the dispute does indeed fall within the jurisdiction of the consumer court;
• Ruling the case even though the dispute is outside the jurisdiction of the consumer court (e.g., objection to an administrative fine);
• Dismissing the case because the plaintiff did not file the case in time, without taking into account undue service of process or National Judiciary Network Information System records proving the contrary;
• Dismissing the case because the plaintiff did not resort to compulsory mediation first, even though mandatory mediation is not the first step for the cases filed to annul a consumer arbitration committee decision;
• Dismissing the case due to the statute of limitations, contrary to the rule that “Unless a party asserts the statute of limitations, the judge cannot take it into consideration on their own accord.”;
• Ruling the case disregarding the consumer contract’s unfair terms that create an imbalance to the detriment of the consumer;
• Although in principle, the ruling should be the result of a hearing, ruling the case based on the file, violating the right to a fair trial, the right to claim and defend, and the right to being heard;
• Ruling the case without sufficiently evaluating the evidence;
• Ruling the case involving technical matters based on an insufficient court expert examination or without ordering such an examination;
• Deciding on issues exceeding or irrelevant to the parties’ requests, contrary to the principle that “The parties’ requests bind the judge; they cannot decide more than that or anything else.”

A Suggestion

Neither theory nor practice fully serves the purposes of the Law. So, a solution could be as follows:

• Transforming consumer arbitration committees into consumer arbitral tribunals, whose awards will have the effect of a first-instance court decision;
• Determining the procedural principles of arbitration proceedings and the qualifications of arbitrators in detail;
• Creating a platform where all processes of the dispute, including hearings, can be conducted online;
• Designing all processes in a way to resolve disputes more quickly and less costly than consumer courts, and simple enough for consumers to handle their conflicts themselves;
• Applying the thresholds for first-degree appeal and the Supreme Court appeal to consumer arbitral tribunal awards, ensuring review of judgments.

In this way, while the consumer arbitral tribunals balance the workload of consumer courts, the number of erroneous decisions that higher courts cannot correct, the number of appeals in the interest of the law that the Supreme Court must review, and the number of applications that consumers may bring to the Constitutional Court because of fundamental rights violations can also be reduced.

Suppose we maintain the current status quo without considering a solution, even if there are violations of the freedom to seek legal remedies, as in the examples above. In that case, the consumer who unjustly loses their case will continue to bear the litigation expenses in addition to all the time and money they have lost and will also have to pay the attorneys’ fees to the seller/provider’s lawyer. Then, the result will be nothing other than rewarding sellers/providers who violate consumer rights and urging consumers to give up on seeking their rights…

Av. Müge Önal Başer, LL.M., LL.B.

References

1. Constitution of the Republic of Türkiye No. 2709 (Official Journal (OJ), 20 October 1982, No. 17844).
2. The Convention for the Protection of Human Rights and Fundamental Freedoms, As Amended by Protocols Nos. 11, 14 and 15, Supplemented by Protocols Nos. 1, 4, 6, 7, 12, 13 and 16, 02 October 2013, https://www.echr.coe.int/documents/d/echr/convention_eng (last visited 17 December 2024).
3. Repealed Consumer Protection Law No. 4077 (OJ, 08 March 1995, No. 22221).
4. Turkish Code of Obligations No. 6098 (OJ, 04 February 2011, No. 27836).
5. Law of Civil Procedure No. 6100 (OJ, 04 February 2011, No. 27836).
6. Consumer Protection Law No. 6502 (OJ, 28 November 2013, No. 28835).
7. Regulation on Consumer Arbitration Committees (OJ, 21 September 2022, No. 31960).
8. Communiqué on the Increase of Thresholds in Article 68 of the Consumer Protection Law No. 6502 and Article 6 of the Regulation on Consumer Arbitration Committees (OJ, 20 December 2023, No. 32405).
9. Tax Procedure Law General Communiqué No. 574 (OJ, 27 November 2024, No. 32735).
10. Relevant Supreme Court Decisions: 11th Civil Law Chamber (CLC), 05 January 2022, E. 2021/6238 K. 2022/2; 3th CLC., 17 January 2022, E. 2021/7219 K. 2022/37; 11th CLC, 17 January 2022, E. 2021/4712 K. 2022/331; 11th CLC, 21 January 2022, E. 2021/5340 K. 2022/488; 3th CLC, 24 January 2022, E. 2021/8418 K. 2022/286; 3th CLC, 07 February 2022, E. 2021/8671 K. 2022/654; 3th CLC, 14 March 2022, E. 2022/1046 K. 2022/2167; 3th CLC, 30 March 2022, E. 2021/6309 K. 2022/2954; 3th CLC, 09 May 2022, E. 2022/2394 K. 2022/4295; 3th CLC, 26 September 2022, E. 2022/6080 K. 2022/6982; 11th CLC, 29 September 2022, E. 2022/3467 K. 2022/6446; 11th CLC, 29 September 2022, E. 2022/5264 K. 2022/6483; 3th CLC, 07 November 2022, E. 2022/6567 K. 2022/8531; 4th CLC, 07 December 2022, E. 2021/24570 K. 2022/16357; 3th CLC, 17 January 2023, E. 2022/8184 K. 2023/27; 3th CLC, 02 November 2023, E. 2023/1367 K. 2023/3066; 3th CLC, 06 November 2023, E. 2023/1149 K. 2023/3072; 3th CLC, 06 November 2023, E. 2023/1364 K. 2023/3073; 3th CLC, 06 November 2023, E. 2023/1365 K. 2023/3074; 3th CLC, 06 November 2023, E. 2023/1366 K. 2023/3075; 3th CLC, 09 November 2023, E. 2023/2060 K. 2023/3199; 3th CLC, 09 November 2023, E. 2023/2436 K. 2023/3201; 4th CLC, 11 December 2023, E. 2023/6778 K. 2023/13307; 6th CLC, 09 January 2024, E. 2023/4494 K. 2024/53; 11th CLC, 26 June 2024, E. 2024/3362 K. 2024/5219; 11th CLC, 10 July 2024, E. 2024/2529 K. 2024/5754, https://www.lexpera.com.tr/ (last visited 17 December 2024).
11. Pekcanıtez, Hakan / Özekes, Muhammet / Akkan, Mine / Taş Korkmaz, Hülya: Medenî Usûl Hukuku, İstanbul 2017.
12. Yağbasan, Hicabi: “Medeni Usul Hukuku Kuralları Çerçevesinde Tüketici Hakem Heyetlerinde Ortaya Çıkan Bazı Usuli Sorunlar,” Selçuk Üniversitesi Adalet Meslek Yüksekokulu Dergisi 2019, V. 2, I. 1, p. 73-125.
13. Kadıoğlu, Cemre Ç.: “Bricks and Clicks: Online Dispute Resolution Mechanisms and Implementation of Online Arbitration in Turkey for Cross-Border Business to Consumer E-Commerce Disputes,” Bilişim Hukuku Dergisi 2019, V. 1, I. 1, p. 113-146.
14. Dağdelen Yaşar, Nilay: “Elektronik Tüketici Sözleşmelerinden Kaynaklanan Uyuşmazlıkların Çözümünde Elektronik Tahkim,” Public and Private International Law Bulletin 2021, V. 41, I. 2, p. 779-826.
15. Kaya, Serkan: “Access to Justice for Consumers in Turkey: The Need for Enhancing Consumer Dispute Resolution Through Online Dispute Resolution,” Ankara Hacı Bayram Veli Üniversitesi Hukuk Fakültesi Dergisi 2022, V. 26, I. 1, p. 225-260.
16. Meriç, Nedim: “HMK ve İİK’da Yer Alan Parasal Sınırlar,” https://legalbank.net/belge/hmk-ve-iikda-yer-alan-parasal-sinirlar-2024-yili/3009245/ (last visited 17 December 2024).