THE FACTS

 [9-23] The applicant was the wife of A.E.E. who died in 2017. In 2009, A.E.E. issued a bond in the value of 200,000 Turkish liras (TRY), maturity date of which was 2011, in favour of S.M.. In 2013, the creditor S.M. initiated attachment proceedings pertaining to the bills of exchange amounting to TRY 277,908.33 against the applicant’s husband. Upon the finalization of the proceedings, the residence owned by the applicant’s husband A.E.E. was attached by the creditor S.M..

 The applicant lodged a complaint with the incumbent enforcement court, arguing that the immovable could not be attached for being a residence where she lived together with her husband and children. However, the enforcement court rejected her complaint due to lack of capacity to be a party to the proceedings.

 As the creditor S.M. claimed sale of the attached immovable, the enforcement office determined the value of the immovable as TRY 3,500,000 according to the expert examination. At the end of the tender made by auction, it was sold to a third party in return for TRY 1,758,000.

 Maintaining that sale of the immovable was unlawful, the applicant requested termination (annulment) of the tender. The enforcement court dismissed the case as there was no irregularity in the tender and imposed, on the applicant, an administrative fine (TRY 175,800) amounting to 10% of the tender price of TRY 1,758,000 for being recorded as revenue.

 The first instance decision was appealed before the Court of Cassation which however upheld the decision. After the applicant’s request for rectification of the judgment had been dismissed, she lodged an individual application with the Court.

 V. EXAMINATION AND GROUNDS

24. The Constitutional Court, at its session of 22 November 2018, examined the application and decided as follows:

A. Alleged Violation of the Right to Respect for Family Life

1. The Applicant’s Allegations and the Ministry’s Observations

25. The applicant maintained that both the Debt Enforcement Office and the inferior courts failed to consider that the immovable that had been sold by auction and registered in her spouse’s name was their family home, which gave rise to the violation of the right to respect for family life.

26. In its observations, the Ministry indicated that the inferior courts must act in a way that would ensure sustainability and effectiveness of the relationships within the scope of family life; that it was for the Constitutional Court to assess whether these courts had exercised their discretion and powers in a reasonable and sound manner; that the claim of family home could be raised only by the debtor, the party to the execution proceedings, and that in the present case, the applicant, who had no such capacity, had not indeed raised any such claim.

27. In her counter-statements against the Ministry’s observations, the applicant stated that her husband tried to sell the home, where they were living together, with malicious intent; and that as she was not a party to the execution proceedings, she could not raise the claim that the home could not be attached.

2. The Court’s Assessment

28. Article 20 § 1 of the Constitution reads as follows:

 “Everyone has the right to demand respect for his/her private and family life. Privacy of private or family life shall not be violated.”

29. Article 41 of the Constitution, insofar as relevant, reads as follows:

 “Family is the foundation of the Turkish society and based on the equality between the spouses.

 The State shall take the necessary measures and establish the necessary organization to protect peace and welfare of the family, especially mother and children, and to ensure the instruction of family planning and its practice.”

30. In Article 48 § 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, it is set forth that the individual applications which are manifestly ill-founded may be declared inadmissible by the Court. In this sense, the individual applications where the applicant fails to substantiate the alleged violations, or where there is no interference with fundamental rights and freedoms, or where the interference is manifestly legitimate, as well as the applications consisting of complex or contrived complaints may be declared manifestly ill-founded (see Hikmet Balabanoğlu, no. 2012/1334, 17 September 2013, § 24).

31. The obligation incumbent on the State within the scope of the right to respect for family life is not merely limited to avoiding arbitrary interferences with the said right. In addition to this negative obligation, it also involves positive obligations which would ensure effective respect for family life. These positive obligations entail taking of measures so as to ensure respect for family life even between the individuals concerned (see Murat Atılgan, no. 2013/9047, 7 May 2015, § 26).

32. It appears that the provisions embodied in Article 194 of the Turkish Civil Code no. 4721 and dated 22 November 2001, which make the family centre of life and which introduce certain protective arrangements with respect to home -loss of which would endanger the family members’ housing rights and sustainability of family relations- are intended for protecting family life. It has been observed that through this statutory arrangement, which has been introduced in pursuance of the positive obligation to ensure effective exercise and protection of the right to respect for family life, the legal foundation necessary for the effective protection of this right as well as for ensuring the sustainability of the family relations has been established (see Melahat Karkin [Plenary], no. 2014/17751, 13 October 2016, § 59).

 33. Besides, as these obligations would be satisfied only through the implementation of these arrangements, the fundamental rights must be taken into consideration also in interpretation of such relations notably in case of disputes among the individuals governed by private law, a trial affording the necessary procedural safeguards must be conducted, and the judicial authorities must consider the rights and freedoms enshrined in the Constitution in interpreting the provisions and notions of private law (see Melahat Karkin, § 60).

 34. The matters as to the interpretation of the legal provisions fall primarily within the inferior courts’ discretionary power and jurisdiction. It is also undisputed that the inferior courts which have direct access to all parties of the case are in a better position than the Court in assessing the particular circumstances of the case. The Court’s role is confined to assessing the effects of the interpretation of these provisions on fundamental rights and freedoms. Accordingly, the Court is empowered to review the procedure followed by the inferior courts and notably to ascertain whether, in interpreting and applying the provisions of the relevant legislation, the inferior courts observed the safeguards set out in Articles 20 and 41 of the Constitution. In this sense, the Court’s role is not to replace the inferior courts as to the interpretation and application of the provisions concerning family home and its protection, but to assess the decisions taken by public authorities within the limits of their discretionary powers from the standpoint of the safeguards inherent in the right to respect for family life (see Melahat Karkin, § 61).

 35. It is requisite that the inferior courts act in a manner which would ensure the sustainability and effectiveness of the relationships within the scope of family life. The Court, which deals with notably the question whether the inferior courts have exercised their discretionary power in a reasonable and sound manner, examines whether the grounds raised to justify their discretion are relevant and sufficient (see Murat Atılgan, § 44; and N.Ö., no. 2014/19725, 19 November 2015, § 55).

 36. In the present case, the immovable, owned by the applicant’s husband and in the form of a family home, was sold to a third party by auction at the end of the execution proceedings peculiar to the bill of exchange, which was conducted against her husband. The applicant then filed an action for annulment of tender, complaining that the preparatory process prior to the impugned tender and the sale process were contrary to Enforcement and Bankruptcy Law no. 2004 (“Law no. 2004”) and that the immovable was in the form of a family home. At the end of the proceedings, as the said processes were found lawful, the applicant’s action was dismissed. The incumbent court failed to make any assessment as to her claims arising from the safeguard peculiar to family home.

 37. Although the State has the positive obligation to protect the house where the family lives against the deeds of the spouses and third persons (for a detailed explanation on this matter, see Melahat Karkin, §§ 48-57), this does not mean that the rights with respect to family home must be granted an absolute advantage. The State also has the liability to strike a fair balance between different interests. When the rights of third persons are at stake, the State is liable to establish mechanisms so as to ensure a reasonable balance between the rights and interests of these two parties.

 38. As explained in detail below, in the present case, the aim underlying the sale of the immovable, which was a family home, is to protect the creditor’s right to property. In this respect, what is expected from the public authorities is to strike a reasonable balance between the third person’s right to property and the applicant’s right to respect for family life.

 39. Undoubtedly, the applicant must have the opportunity to raise her claims regarding the safeguard afforded to family home and bring them before the judicial authorities, in the face of the deeds of her husband or third persons with respect to the family home. Otherwise, protecting the house where the individuals maintain their lives, as a requisite of the safeguard afforded to family home, becomes dysfunctional. However, this should not be construed to the effect that the claims arising from the guarantee afforded to family home are to be examined in every case. It must be therefore considered ordinary for the law-maker, considering the very nature of certain cases, to limit the judge’s power to examine in these cases and to thereby introduce arrangements so as to preclude an examination as to the rights related to the guarantee afforded to family home.

 40. In the present case, the applicant raised her claims as to the family home during the action she brought for annulment of tender where the impugned act was the sale by auction of the debtor’s immovable by the enforcement office. Tender is a compulsory enforcement process which is performed following a certain set of procedures and intended for the sale of the debtor’s asset(s). The amount obtained through sale after this stage is paid to the creditor, and thereby the compulsory enforcement process ends. The creditor is thereby enabled to rapidly receive the amount receivable. Taking into consideration this nature of the tender process, the law-maker limits the court’s power to examine to assessing whether the preparatory process prior to the sale and the sale process were conducted in accordance with the procedure specified in Article 134 of Law no. 2004. In the action for annulment of tender, the claims as to the substance of the impugned debt cannot be examined; and nor is the incumbent court entitled to make an assessment as to the rights resulting from the notion of family home.

 41. Given the nature and subject-matter of the action for annulment of tender, limiting the judge’s power to examine as well as the inability to examine the applicant’s rights resulting from the guarantee afforded to family home in this action must be considered reasonable. Accordingly, it has been concluded that there is undoubtedly no violation of the right to respect for family life due to the incumbent court’s limited examination as to the review of the tender processes.

 42. On the other hand, although the applicant’s complaint of 6 March 2014 whereby she claimed that the immovable in question could not be attached for being a family home was dismissed by the court as she was not a party to the enforcement process, it appears that her individual application does not concern this dismissal.

 43. For these reasons, this part of the application must be declared inadmissible for being manifestly ill-founded, without any further examination as to the other admissibility criteria.

 B. Alleged Unconstitutionality of the Relevant Statutory Provision

 44. The applicant requested the annulment of Article 134 § 2 of Law no. 2004, stating that it precluded her right to legal remedies.

 45. In Article 45 § 3 of Code no. 6216, it is set forth that no individual application can be filed against the legislative acts and regulatory administrative acts. In cases where a given legislative act gives rise to violation of any fundamental right or freedom, an individual application may be lodged not directly against a legislative act but against any act, action or negligence whereby the said legislative act has been implemented (see Süleyman Erte, no. 2013/469, 16 April 2013, § 17; and Serkan Acar, no. 2013/1613, 2 October 2013, § 37).

 46. In the present case, the applicant lodged her application also directly for the annulment of the impugned legislative act for being unconstitutional.

 47. For these reasons, this part of the application must be declared inadmissible for lack of competence ratione materiae without any further examination as to the other admissibility criteria.

 C. Alleged Violation of the Right to a Fair Trial

 1. The Applicant’s Allegations and the Ministry’s Observations

 48. The applicant maintained that her right of access to a court had been violated for being held liable to pay an amount corresponding to 10% of the tender price to the State Treasury due to the dismissal of her action for annulment of tender.

 49. In its observations, the Ministry noted that the applicant had filed an action for annulment of tender due to the alleged irregularity at the tender stage upon the sale of the immovable at the end of the enforcement proceedings conducted against her husband; that the incumbent court dismissed her request as well as imposed a fine amounting to 10% of the tender price by virtue of Law no. 2004; and that the statutory provision on the basis of which the fine was imposed had been brought before the Constitutional Court through the constitutionality review procedure; however, by its decision no. E.2012/68 K.2012/182 and dated 22 November 2012, the Court found the contested provision constitutional. The Ministry further indicated that on 15 January 2015, the applicant filed an action for annulment of the tender of 24 June 2014; and that this action was still pending.

 50. In her counter-statements against the Ministry, the applicant stated that her sole aim was to save their family home, amounting to 4,000,000 Turkish liras (“TRY”), against the debt in the amount of TRY 200,000.

 2. The Court’s Assessment

 51. Article 36 § 1 of the Constitution titled “Right to a legal remedy” reads as follows:

 “Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures. No court shall refuse to hear a case within its jurisdiction.”

 52. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). It has been considered that the applicant’s allegations must be examined from the standpoint of the right of access to a court.

 a. Admissibility

 53. The Court found admissible the alleged violation of the right of access to a court for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

 b. Merits

 i. Scope of the Right and Existence of an Interference

 54. Article 36 § 1 of the Constitution sets forth that everyone has the right of litigation either as plaintiff or defendant before the courts. Therefore, the right of access of to a court is an element inherent in the right to legal remedies safeguarded by Article 36 of the Constitution. Besides, in the legislative intention of adding the notion of “the right to a fair trial” to Article 36 of the Constitution, it is underlined that the right to a fair trial which is also enshrined in the international conventions to which Turkey is a party has been incorporated into the said Article. The European Court of Human Rights (“the ECHR”), interpreting the European Convention on Human Rights (“the Convention”), notes that Article 6 § 1 of the Convention embodies the right of access to a court (see Özbakım Özel Sağlık Hiz. İnş. Tur. San. ve Tic. Ltd. Şti., no. 2014/13156, 20 April 2017, § 34).

 55. In its assessments within the scope of the individual application, the Court notes that the right of access to a court means the ability to bring a dispute before a tribunal and to request the resolution of the dispute in an effective manner (see Özkan Şen, no. 2012/731, 7 November 2013, § 52).

 56. The probability or the fact that the applicants, who have brought a dispute before a tribunal, would be subject to a fee calculated over the amount, which was the subject-matter of the dismissed action, or to any similar financial liability involves the risk of precluding them from accessing to a court or rendering dysfunctional the access to a court (see, in the same vein, Ali Şimşek and Others, no. 2014/2073, 6 July 2017, § 83).

 57. It has been observed that imposition of a fine, which would place a financial burden on the applicant, at the end of the proceedings constituted an interference with the right of access to a court.

 ii. Whether the Interference Constituted a Violation

 58. Article 13 of the Constitution, titled “Restriction of fundamental rights and freedoms”, insofar as relevant, reads as follows:

 “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution ... These restrictions shall not be contrary to … and the principle of proportionality.”

 59. The above-mentioned interference would constitute a breach of Article 36 of the Constitution unless it satisfied the requirements laid down in Article 13 of the Constitution. Therefore, it must be determined whether the interference complied with the requirements set out in Article 13 of the Constitution and applicable to the present case, namely being prescribed by law, relying on a justified reason as well as not being contrary to the principle of proportionality.

 (1) Lawfulness

 60. It appears that the fine was imposed on the applicant on the basis of Article 134 § 2 of Law no. 2004. It has been therefore concluded that the interference with the applicant’s right of access to a court in the present case had a legal basis.

 (2) Legitimate Aim

 61. The right to legal remedies is enshrined in Article 36 of the Constitution. Although this provision sets forth no ground for the restriction of this right, it cannot be said to be an absolute right which could be restricted by no means. It is acknowledged that the rights in respect of which no special ground for restriction is prescribed nevertheless have certain boundaries by their very nature. Moreover, even if the provisions embodying the relevant rights introduce no ground for restriction, these rights may be nevertheless subject to restriction on the basis of the provisions specified in the other provisions of the Constitution. It is clear that certain arrangements as to the scope, and the conditions for the exercise, of right of litigation are the rules that set forth the limitations arising from the very nature of the right to legal remedies and determines the coverage of the right. However, these restrictions cannot be contrary to the safeguards set forth in Article 13 of the Constitution (see the Court’s judgment no. E.2015/96 K.2016/9, § 10).

 62. Imposing an additional sanction leading to a financial burden, along with the dismissal of the action for the prevention of any delay likely to occur in the payment of a debt, ensuring the creditor to receive the receivable in a timely manner as well as for the protection of the successful tenderer, is intended for protecting the amounts owed to the creditors which are found established by the judicial authorities as well as the right having material value that the successful tenderer has obtained through making a payment. As the impugned interference was in pursuit of protecting the right to property, it pursued a constitutionality legitimate aim.

 (3) Proportionality

 (a) General Principles

 63. Proportionality, which is one of the criteria to be taken into account in restricting the rights and freedoms under Article 13 of the Constitution, stems from the principle of state of law. Since the restriction of rights and freedoms in a state of law is an exceptional power, it may be justified only on the condition of being applied as required by the exigency of the situation. Imposing restrictions on individuals’ rights and freedoms to a degree that is more than what is required by the circumstances of the case would amount to excess of power afforded to the public authorities, which is therefore incompatible with the state of law (see the Court’s judgment no. E.2013/95, K.2014/176, 13 November 2014).

 64. The principle of proportionality entails that the prescribed interference is suitable for achieving the aim sought to be attained; that the interference is absolutely necessary for the aim pursued; and that a reasonable balance must be struck between the interference with the individual’s right and the aim sought. In the event that the prescribed measure places an extraordinary and excessive burden on the individual, the interference cannot be said to be proportionate (see the Court’s judgments no. E.2012/102, K.2012/207, 27 December 2012; no. E.2014/176, K.2015/53, 27 May 2015; E.2015/43, K.2015/101, 12 November 2015; no. E.2016/16, K.2016/37, 5 May 2016; no. E.2016/13, K.2016/127, 22 June 2016; and Mehmet Akdoğan and Others, no. 2013/817, 19 December 2013, § 38). In making an assessment as to the proportionality of an impugned interference, the relevant statutory arrangements as well as the particular circumstances of the present case and the applicant’s conduct must be taken into consideration (see Ahmet Ersoy and Others, no. 2014/4212, 5 April 2017, § 50).

 65. It primarily falls upon the public authorities to assess the necessity of the means of interference employed. The authorised administrations are responsible for the achievement of the public interest sought to be attained by the impugned interference, and the administrations are afforded a certain degree of discretionary power in choosing the means to be employed for the aim pursued. However, the discretionary power granted to the administrations as to the necessity of the means employed is not unlimited. In cases where the means employed explicitly make the aim sought to be attained overridden by the interference, the Constitutional Court may conclude that the interference was unnecessary. However, the Constitutional Court’s examination in this context is directed towards not the degree of appropriateness of the means chosen, but the gravity of its interference with rights and freedoms (see Recep Tarhan and Afife Tarhan, no. 2014/1546, 2 February 2017, § 70).

 66. The action for annulment of a tender, whereby the sale of an attached property by way of compulsory enforcement proceedings is requested to be annulled due to certain irregularities at the preparatory stage of the tender or in the tender itself, is a case peculiar to the enforcement law. Certain additional arrangements may be introduced, in the enforcement law, by departing from the general provisions, with a view to protecting the creditor’s right to property and enabling him to receive the relevant amount within a reasonable time. In this sense, placing an additional pecuniary liability -along with the decision on dismissal of the action for annulment of tender- on the party requesting the annulment for ensuring the legal consequences of the tender to take effect immediately as well as for hindering the unnecessary applications likely to pose an obstacle thereto would not thwart the right of access to a court. However, this additional burden must not be of the nature and gravity that would restrict, to a significant extent, those who would raise an alleged infringement of their rights and interests during the tender process from filing an action.

 67. A fair balance must be struck between the aim pursued by placing a financial burden and the applicant’s interests. It must be considered whether the parties filing an action for annulment of the tender had the opportunity to interfere with the enforcement proceedings and the sale prior to that stage. The judicial bodies to make such assessments must be afforded a certain degree of flexibility that vest in them a discretionary power by the particular circumstances of the given case.

 (b) Application of Principles to the Present Case

 68. The action for the annulment of tender, which was brought by the applicant, was dismissed by the incumbent court as the grounds of alleged unlawfulness were not found justified. She was also imposed a fine of TRY 175,800, amounting to 10% of the tender price of TRY 1,758,000, which would be paid to the State Treasury. The said fine is not, as also indicated by the applicant, an amount that would be paid to the creditor and would be therefore deducted from the amount receivable by the creditor; but rather an amount that is recorded as revenue in the State Treasury.

 69. It has been accordingly understood that the imposition of a fine amounting to 10% of the tender price in case of dismissal of the action brought for annulment of the tender is a suitable means for the protection of the creditor’s right to property by preventing the procrastination of the enforcement proceedings and facilitating the collection of the specified receivable.

 70. It is one of the State’s positive obligations to set up the compulsory enforcement system so as to ensure, in the private debt relations, the payment of the debts which have not been paid with consent as well as to enable the creditor to receive the relevant amount within a reasonable time by ensuring effective functioning of the system. Disruptions in the compulsory enforcement system and unreasonable delays during this process may fall foul of this positive obligation. In this regard, it may be said that it is requisite to take measures for the prevention of the unnecessary prolongation of the compulsory enforcement proceedings and its remaining inconclusive. An action for annulment of a tender without a justified ground may lead to the procrastination of the compulsory enforcement proceedings which have indeed reached the final stages. Accordingly, the introduction, by the law-maker, of various mechanisms capable of having a deterrent effect on filing an action for annulment of tender without any justified reason must be considered reasonable. In this sense, it cannot be concluded that the imposition of an additional financial burden on the litigant in case of dismissal of the action for annulment of tender is not a necessary means for avoiding unnecessary actions to be brought.

 71. However, it must be assessed whether this interference was proportionate. In assessing the proportionality of the interference, it is taken into consideration whether a reasonable balance has been struck between the interests of the creditor, who has sought the State’s assistance to collect the amounts receivable and accordingly resorted to the State’s compulsory enforcement mechanism, and those of the applicant, who requested annulment of the tender. In this connection, the type of the asset that was put on sale by auction as well as the questions whether this asset had a bearing on a special safeguard within the context of the other individuals, whether the applicant had any opportunity, at earlier stages, to bring an action through which she could obtain the same result with that of the action for annulment of tender are ascertained. Besides, amount of the fine imposed and the applicant’s ability to pay that amount are also considered under the particular circumstances of the present case.

 72. The immovable, subject-matter of the tender, is a family home as maintained by the applicant. As a requirement inherent in the duty to protect family, a positive obligation set out in Article 41 of the Constitution, family home is subject to a special protection mechanism by virtue of Article 194 of Law no. 4721. It must be also borne in mind that in her action for annulment of the tender, the applicant relied on these safeguards concerning the family home.

 73. It has been observed that the applicant resorted to all available judicial remedies so as to prevent the sale of the immovable, which was -according to her- a family home and of great value for her and her family in both pecuniary and non-pecuniary terms. Given the amount of the debt amount, which was subject to enforcement proceedings and extremely low in comparison to the price estimated for the immovable in question at the end of the appraisal, it must be underlined that preventing the sale of the immovable was of considerable personal significance to the applicant. As a matter of fact, although the applicant claimed that the impugned immovable could not be attached for being a family home, relying on Article 82 § 12 of the Law no. 2004 when she became aware of the enforcement proceedings, the incumbent court dismissed her claim on the ground that she was not a party to the proceedings.

 74. Besides, it must be further emphasised that the applicant stated that she was a housewife and therefore had no income; and that the inferior courts did not make any finding or assessment to the contrary. In the light of these explanations, the fine at the amount of TRY 175,800 would undoubtedly place a significant financial burden on her and may cause her to have financial difficulties.

 75. On the other hand, the fine prescribed in Article 134 § 2 of Law no. 2004 is imposed directly in cases where the request for annulment of tender is dismissed on the merits. The Law does not set an upper limit for the amount of the fine. Nor does it provide a certain degree of flexibility that would enable the inferior courts to take into account the circumstances of a given case and afford discretionary power to the judge. On account of this situation, the applicant, who did not have any opportunity to raise her claim of family home at the earlier stages as well as any income, was imposed a fine of TRY 175,800, which was quite high according to the conditions in the country.

 76. Regard being had to all these considerations, it has been concluded that no fair balance could be struck between the interest of protecting the creditor’s rights and the applicant’s interest of bringing an action for annulment of the tender; that the fine imposed on the applicant placed an extraordinary burden on her; and that it therefore rendered the interference with the applicant’s right of access to a court disproportionate.

 77. For these reasons, the Court found a violation of the right of access to a court under the right to a fair trial safeguarded by Article 36 of the Constitution.

 Mr. Hicabi DURSUN did not agree with this conclusion.

 D. Application of Article 50 of Code no. 6216

 78. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

 “1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…

 (2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

 79. The applicant requested the Court to find a violation, order a retrial or to award her compensation.

 80. Pursuant to Article 49 § 6 of Code no. 6216, during an examination on the merits, it is determined whether any fundamental right has been violated, and if any, how the violation would be redressed. In Article 50 § 1 of the same Code, in cases where a violation judgment is rendered, the steps needed to be taken for the redress of the violation and its consequences shall be indicated. Accordingly, if a violation is found, not only the violation of a fundamental rights and freedom is established, but also it must be determined how the found violation would be redressed, in other words, the steps needed to be taken in order to redress the violation and consequences thereof must be indicated (see Mehmet Doğan [Plenary], no. 2014/8875, 7 June 2018, § 54).

 81. In cases where it is established through individual application mechanism that a fundamental right or freedom has been violated, the main rule, for redressing the violation and its consequences, is to ensure restitution as much as possible, that is to say, to ensure restoring to the former state prior to the violation. To that end, it must be primarily required to end the continuing violation, to revoke the decision or the act giving rise to the violation or to eliminate their consequences, to compensate the pecuniary and non-pecuniary damages resulting therefrom, as well as to take the other measures deemed necessary in this respect (Mehmet Doğan, § 55).

 82. Before indicating the steps to be taken for redressing the violation and its consequences, the reason giving rise to the violation must be identified. The violation may be caused by administrative acts and actions, judicial processes or the actions of the legislative body. Therefore, the identification of the underlying reason of the violation is of importance for determining the appropriate means of redress (Mehmet Doğan, § 57).

 83. If the violation is caused by the implementation of a provision of law, which is not clear enough to enable the administrative authorities or the judicial courts to make an interpretation in accordance with the Constitution, this violation is resulted not from its implementation but directly from the law itself. In such a case, the violation along with all consequences thereof may be redressed only when a fresh decision eliminating the ground giving rise to the violation is taken through a retrial, and if it is not possible, only when certain compensatory measures capable of affording a sufficient redress and suitable to the particular circumstances of the given case are taken.

 84. In the present case, it has been concluded that the right of access to a court falling under the scope of the right to a fair trial, which is safeguarded by Article 36 of the Constitution, was violated; and that the violation was resulted directly from Article 134 of Law no. 2004. In other words, the said provision of law does not allow the judge to make an assessment or use discretion in consideration of the particular circumstances of the dispute in question. This provision entails the imposition of a fine at a proportional amount in case of dismissal of the action, and this proportional rate is absolutely applied to each case in the same way.

 85. In the present case, there is no opportunity for a retrial. In that case, as required by the rule of restoring to the former state, the pecuniary damage sustained by the applicant must be redressed in order to eliminate the consequences of the impugned court decision. A fine of TRY 175,800 was imposed on the applicant, and upon the finalisation of the court decision, a writ for the collection of the fee was issued and submitted to the tax office. There is not ny information or document in the file to the effect that the impugned fine was collected. Nor is there any notification by the applicant in this regard. Accordingly, the revocation of the said writ of 2 November 2015, which was issued by the incumbent court, in a way that would preclude its being put into force by the relevant tax office, as well as its return to the relevant court would constitute a sufficient redress, also in consideration of the fact that the applicant did not claim non-pecuniary compensation.

 86. The total court expense of TRY 2,206.90 including the court fee of TRY 226.90 and the counsel fee of TRY 1,980, which is calculated over the documents in the case file, must be reimbursed to the applicant.

 Mr. Hicabi DURSUN did not agree with this conclusion.

 VI. JUDGMENT

 For these reasons, the Constitutional Court held on 22 November 2018:

 A. 1. UNANIMOUSLY that the alleged violation of the right to respect for family life be DECLARED INADMISSIBLE for being manifestly ill-founded;

 2. UNANIMOUSLY that the alleged unconstitutionality of the provision of law applied in the present case and the request for its annulment be DECLARED INADMISSIBLE for lack of competence ratione materiae;

 3. UNANIMOUSLY that the alleged violation of the right of access to a court be DECLARED ADMISSIBLE;

 B. By MAJORITY and by dissenting opinion of Mr. Hicabi Dursun, that the right to access of a court under the scope of the right to a fair trial, safeguarded by Article 36 of the Constitution, was VIOLATED;

 C. By MAJORITY and by dissenting opinion of Mr. Hicabi Dursun, that a copy of the judgment be SENT to the 19^th Chamber of the İstanbul Civil Enforcement Court (file no. 2014/893, K.2014/1202) for the revocation of the writ of collection as well as its withdrawal by the enforcement court so as to redress the consequences of the violation of the right of access to a court;

 D. That the total court expense of TRY 2,206.90 including the court fee of TRY 226.90 and the counsel fee of TRY 1,980 be REIMBURSED to the applicant;

 E. That the payment be made within four months as from the date when the applicant applies to the Ministry of Finance following the notification of the judgment. In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date;

 F. That a copy of the judgment be SENT to the Ministry of Justice.

DISSENTING OPINION OF JUSTICE HİCABİ DURSUN

 1. The application concerns the alleged violation of the right of access to a court due to the imposition of a fine, amounting to 10% of the tender price, on the applicant upon the dismissal of the action for annulment of the tender brought against the sale of the immovable, which was a family home, by auction.

 2. Article 36 § 1 of the Constitution sets forth that everyone has the right of litigation either as plaintiff or defendant before the courts. Therefore, the right of access of to a court is an element inherent in the right to legal remedies safeguarded by Article 36 of the Constitution (see Özbakım Özel Sağlık Hiz. İnş. Tur. San. ve Tic. Ltd. Şti., no. 2014/13156, 20 April 2017, § 34). In its assessments within the scope of the individual application, the Court notes that the right of access to a court means the ability to bring a dispute before a tribunal and to request the resolution of the dispute in an effective manner (see Özkan Şen, no. 2012/731, 7 November 2013, § 52).

 3. By imposing a fine at the rate of 10% of tender price in case of dismissal of the action for annulment of tender, it is aimed at preventing the procrastination of the finalisation of tender process by means of precluding unnecessary and unfounded applications, completing tender process within the shortest time possible, as well as at ensuring maintenance and increase of confidence in tender process, which is of public nature. It is prescribed that in case of dismissal of the action for annulment of tender, a fine shall be automatically imposed, and the tender process, which is public act, is subject to judicial review. As regards the tender process, the creditor seeking the sale of the immovable, the debtor, the relevant parties in the register of title deeds as well as the bidders are entitled resort to judicial remedies within 7 days as from the tender date. They may also request the annulment of a given tender, relying on any ground. Thus, the constitutional rights that the parties to the tender process have in their capacity either as a plaintiff or defendant before the enforcement courts are not impaired. The relevant parties have access to the prescribed judicial remedy in case of a disputed tender, which is a process of the enforcement law, and the incumbent courts are not thereby precluded from issuing necessary decisions by dealing with the actions brought with respect to this process. Therefore, the imposition of a fine at the rate of 10% of tender price in case of dismissal of the action brought for annulment of tender does not, in any aspect, hinder the right to legal remedies.

 4. The fine to be imposed, in cases where the action for annulment of tender has been dismissed, is determined proportionally by considering that tender prices as well as the amount of loss –that would incur as a result of the prevention of the finalisation of tender process through the action for annulment of tender which is unfounded– may vary by the particular circumstances of a given case. It thus appears that the aim of this fine is to ensure that those concerned bring an action for annulment of tender in good faith whereby their real intent is to claim rights on justified grounds, as well as to ensure the conduct of the tender process in a rapid and effective way. The imposition of a fine in case of dismissal of an action for annulment of tender and determination of this fine proportionally to the tender price demonstrate the reasonable and appropriate relation between the aim pursued and the means employed.

 5. Therefore, in the present case, it cannot be concluded that the imposition of a fine, amounting to 10% of the tender price, on the applicant due to the dismissal of her action for annulment of the tender was not proportionate; and that therefore, the right to access of court has been violated.

 6. For these reasons, I disagree with the majority’s conclusion that there was a violation of the applicant’s right of access to a court. In the same vein, I do not agree with the award of compensation to the applicant.