Article 398 of the Code of Civil Procedure previously set out that parties which failed to comply with an interim injunction or that violated an injunction would face one to six months' disciplinary imprisonment.

However, following an application to the constitutional court by the Istanbul First Intellectual and Industrial Property Court for the annulment of Article 398, the Constitutional Court decided to cancel the first sentence of Article 398(1) regarding imprisonment for opposition to interim injunctions.(1)

The Constitutional Court's decisions stated that the penalties set out in Article 398 regarding imprisonment were not contrary to the principle of proportionality set out in the Constitution. However, the court concluded that legal certainty and the right to legal remedies were harmed due to Article 398's lack of clear regulation on the procedure and the merits of the proceedings and legal remedies against the decision of disciplinary imprisonment.

The Constitutional Court's annulment decisions are final and as of publication in the Official Gazette, are binding on:

  • legislative, executive and judicial bodies;
  • administrative authorities; and
  • real and legal entities.

Further, the Constitutional Court decided that the annulment decisions will enter into force nine months after their publication in the Official Gazette to prevent the legal gap or confusion that could arise on their immediate entry into force.

The annulment decisions will not be retrospective and previous decisions will not be considered unlawful. Further, Article 398 will remain in force until the annulment decisions come into force.

For further information on this topic please contact Riza Gümbüşoğlu, Beril Yayla Sapan or Pınar Ece Bişkin at Gün & Partners by telephone (+90 212 354 00 00) or email ([email protected], [email protected] or [email protected]). The Gün & Partners website can be accessed at www.gun.av.tr.

Endnotes

(1) Decision with merit 2018/1 and decision 2018/83 published in the Official Gazette (30692) on 20 February 2019.