The Consumer Protection Act No. 6502 was enacted in order to safeguard the rights and interests of the weaker party in consumption relationships; through its provisions, the Act seeks to make it easier for that party to pursue its rights before judicial and administrative authorities. Foremost among the facilities the Act introduces to that end is the exemption of consumer actions from court fees. By way of special rules on judicial fees, the aim is to render the freedom to seek justice effectively exercisable and to allow the consumer to reach his or her right more easily.
Exempting the consumer who pursues a right before judicial and administrative authorities from every kind of judicial fee serves the swifter and lower-cost resolution of consumer disputes.
The Concept of a Consumer Transaction
The statutory definition of the concept is given in the Consumer Protection Act No. 6502:
Consumer Protection Act, Art. 3
“Consumer transaction: any contract and legal transaction of whatever kind, including contracts for work, carriage, brokerage, insurance, agency, banking and the like, concluded in goods or services markets between consumers and natural or legal persons — including public legal entities — acting for commercial or professional purposes, or acting in the name or on behalf of such persons,”
The essential criterion indicated by the definition is that one of the parties to the transaction holds the capacity of consumer. The consumer, in turn, denotes the individual user who acts without pursuing a commercial purpose, solely with a view to consumption.
Scope of Consumer Actions
The concept of a consumer action denotes disputes arising out of consumer transactions and out of practices directed at consumers, once they have been brought before the courts.
So long as one of the parties to a legal relationship holds the capacity of consumer, actions arising out of that relationship are as a rule regarded as consumer actions and fall within the subject-matter jurisdiction of the consumer courts. Standing against this rule are absolute commercial actions: in those actions, which are enumerated under the Turkish Commercial Code No. 6102, jurisdiction lies in every case with the Commercial Courts. For detailed information on the routes by which disputes may be resolved without bringing an action, the note entitled Mandatory Mediation in Consumer Actions may be consulted.
Judicial Fees and the Exemption Granted in Favour of the Consumer
Litigation fees are among the items that must be paid before a court can take a dispute under examination. The general rule is that these fees are borne by the claimant in every action. Part of the fees is deposited when the action is brought, while another part is paid to the court in the course of the proceedings or at the stage of resorting to a legal remedy. The principal items are the judgment and decree fee, the hearing fee, the application fee and the appeal application fee.
It is precisely at this point that one of the protective provisions of the Consumer Protection Act comes into play. Actions brought by the consumer himself or herself before the consumer court are exempted from the fees falling within the scope of the Fees Act No. 492. Consequently, consumers are able to bring an action without paying the items listed above or the other fees set out in the Fees Act.
The purpose of this exemption is to facilitate consumers’ access to the courts, thereby lending practical support to the freedom to seek justice guaranteed by the Constitution.
Our law contains other provisions pursuing a similar protective purpose. On the question of invalid clauses in the contracts consumers sign, the note entitled Invalidity of General Terms of Contract to the Detriment of the Consumer may be of assistance.
Litigation Costs: the Cost Advance and the Evidence Advance
Although the Act exempts consumers from fees, it provides no such exemption in respect of litigation costs.
Litigation costs are essentially gathered under two headings: the cost advance and the evidence advance.
The cost advance is the sum serving to meet the basic items required for the conduct of the action, such as postal and service-of-process expenses. The evidence advance, on the other hand, denotes the expenditure necessary for a given item of evidence relied upon to be gathered. For instance, where expert evidence is relied upon, the fee of the court-appointed expert, and where evidence by on-site examination is relied upon, the costs of that examination are met from this advance.
The difference between the two advances becomes apparent in the consequences of their non-payment. If the cost advance is not deposited, the action is dismissed for want of a procedural requirement. Failure to deposit the evidence advance, by contrast, does not lead to the dismissal of the action; it is merely held that reliance on that item of evidence has been abandoned.
Consumers must therefore meet litigation costs such as the cost advance and the evidence advance themselves, even though they are exempt from the litigation fees falling within the scope of the Fees Act.
Legal Aid and the Meeting of Costs
As stated above, exempting consumers from fees does not remove their responsibility for litigation costs.
For persons who are unable to meet even these costs, the legislation provides for the institution of legal aid. Accordingly, a party who lacks the financial means to bear the litigation costs may request legal aid, with a view to securing the right to a fair trial.
Acceptance of the request depends on the applicant establishing by concrete evidence that he or she is in financial hardship. Records showing that no assets are registered in the applicant’s name, or documents such as a certificate of indigence issued by the neighbourhood headman’s office, may be used for this purpose of proof.
Where the request for legal aid is granted, all costs relating to the proceedings are met by the public treasury. It should further be noted that legal aid is not an institution peculiar to consumer actions; it may be requested in any kind of action.
Independent Legal’s Assessment
Although the fee exemption considerably reduces the cost of consumer litigation, it does not mean that the action will proceed free of expense. Particularly in files requiring an expert examination and an on-site examination, the evidence advance may constitute a far heavier burden than the fee item. It is therefore appropriate, before bringing an action, to anticipate not merely the fees but the overall picture of costs as a whole.
Nor should the personal limit of the exemption be overlooked. The exemption is granted for actions brought by the consumer; the same result may not be reached in actions brought by the other party, or in files where the capacity of consumer is disputed.
The following headings come to the fore in planning the process:
- Determining at the outset whether the dispute falls within the scope of a consumer transaction
- Distinguishing disputes that qualify as absolute commercial actions
- Depositing the cost advance within time so as to avert the risk of a missing procedural requirement
- Calculating in advance the advance sums relating to evidence such as expert and on-site examination
- Submitting the request for legal aid together with the necessary documents in cases of financial hardship
Independent Legal provides advisory services and litigation representation across the whole of the process in consumer disputes, from determining the jurisdiction and fee regime to planning the litigation costs.