FIRST SECTION
DECISION
President
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:
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Serruh KALELİ
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Members
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:
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Zehra Ayla PERKTAŞ
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Burhan ÜSTÜN
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Hicabi DURSUN
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Zühtü ARSLAN
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Rapporteur
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:
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Bahadır YALÇINÖZ
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Applicant
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:
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Aziz TURHAN
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I. SUBJECT OF APPLICATON
1. The applicant asserted that "equality
before law" defined in article 10, "the right to property"
defined in article 35 and "the right to a fair trial" defined
in article 36 of the Constitution were violated in the action of debt which was
filed by the Rectorate of Balıkesir University against him.
II. APPLICATION PROCESS
2. The
application was directly lodged by the applicant to the Constitutional Court on
26/12/2012. In the preliminary examination carried out in terms of
administrative aspects, it has been determined that there is no situation to
prevent the submission of the application to the Commission.
3. It was
decided by the Second Commission of the First Section on 23/10/2013 that the
examination of admissibility be conducted by the Section and the file be sent
to the Section.
4. In the
session held by the Section on 4/12/2013, it was decided that the examination
of admissibility and merits be carried out together.
5. The facts
and cases which are the subject matter of the application and a copy of the
application were sent to the Ministry of Justice for its opinion, the Ministry
submitted its written opinion to the Constitutional Court on 4/2/2014.
6. The opinion
letter of the Ministry was notified to the applicant on 18/2/2014. The
applicant submitted his petition including his answers to the opinion of the
Ministry on 3/3/2014.
III. FACTS AND CASES
A. Facts
7. As
expressed in the application form and the annexes thereof, the facts are
summarized as follows:
8. The
applicant was sent to the United States of America in order to perform master
and doctoral study in the field of economics on 15/12/1993 within the scope of
article 33 of the Code of Higher Education dated 4/11/1981 and numbered 2547
while he was working as a research assistant in the Bandırma Faculty of
Economic and Administrative Sciences of Balıkesir University.
9. Following
his study, the applicant returned to the country and started working as a research
assistant in the Division of Budget and Financial Planning of the Department of
Finance in accordance with the decision that the Bandırma Faculty of Economic
and Administrative Sciences made at its meeting dated 21/5/2004 and numbered
14.
10. The applicant
notified that he resigned from his duty as of 18/10/2005 and the notification
reached to the University on 24/10/2005 and the applicant did not come to work
following this date. In the meantime, the applicant started working at the
Banking Regulation and Supervision Agency (BRSA).
11. The
resignation of the applicant was not accepted on the ground that he was
responsible against the university for compulsory service, the applicant was
considered to have withdrawn from his duty as of 25/10/2005 by the Dean's
Office of the Bandırma Faculty of Economic and Administrative Sciences in
accordance with article 94 of the Public Servants Code dated 14/7/1965 and
numbered 657.
12. The
applicant was requested to pay a total of 299,265.39 US Dollars through the
procedure of the Rectorate of Balıkesir University dated 6/9/2006 on the ground
that he had not entirely fulfilled his responsibility of compulsory service.
13. One day
after this letter, the rectorate stated through a letter dated 7/9/2006 that an
opportunity of restructuring is provided as regards the debts of the research
assistants who studied abroad in accordance with article 33 of the Code
numbered 2547 by considering provisional articles 53 and 54 of added to the
Code numbered 2547 with the Code on the Collection and Annulment of Some Public
Receivables dated 29/6/2006 and numbered 5535 and that it was necessary to
apply to the Rectorate in the event that a request needed to be made to benefit
from this opportunity.
14. The
applicant filed a request for the re-calculation of his amount of debt
according to the Code numbered 5535 through his petition dated 25/9/2006.
15. Following
this request, the Rectorate re-calculated the applicant's debt remaining from
his responsibility of compulsory service as 55,778.44 TL through its procedure
dated 23/3/2007.
16. The
applicant requested through the petition which he sent to the university on
18/4/2007 that his responsibility of compulsory service be transferred to the
BRSA at which he is still working in accordance with the regulation enacted
with article 2 of the Code numbered 5535. Balıkesir University, in the response
dated 17/10/2007 which it sent to the applicant in line with the opinion and
instruction that it received from the Presidency of Council of Higher Education
(CoHE), stated that provisional article 53 added through article 2 of the Code
numbered 5535 included a provision requiring that an application be filed
before the Council of Higher Education within 3 months following the date on
which this article entered into force, that it was not possible to consider the
applications which were filed following this date within the scope of the
aforementioned Code.
17. The
Rectorate filed an action of debt against the applicant before the 2nd Civil
Court of First Instance of Balıkesir on 2/7/2010 in order to collect his
education and training expenses as he left before completing his responsibility
of compulsory service, filed a request for cautionary judgment while filing an
action against the applicant and cautionary judgment was imposed by the Court
on the immovable property and vehicle that belonged to the applicant.
18. The
applicant, in his defense that he submitted in relation to the action, asserted
that those who work at public institutions could fulfill the responsibility of
compulsory service that they did not fulfill in return for their education
expenses at abroad at the institution in which they were currently working in
accordance with provisional article 53 added into the Code numbered 2547
through article 2 of the Code numbered 5535, that it was regulated that in this
case debt proceeding could be waived, that an application was filed on
25/9/2006 in order to benefit from the aforementioned regulation although no
condition of application was sought in order to benefit from this regulation,
that on the other hand the period for the responsibility of compulsory service
was miscalculated.
19. An expert
review was commissioned by the court for the determination of the period of
service and the amount of debt of the applicant and according to the report
which was submitted to the file, in relation to the request and objection of
the applicant, when provisional article 53 added into the Code numbered 2547
was taken into consideration, it was stated that final discretion was left to
the court by indicating that the applicant must have applied to the Council of
Higher Education within 3 months and he must also have been appointed to
another institution by transfer on the date of application, that however the
applicant was considered to have withdrawn as his resignation was not accepted,
that the administrative proceeding as regards the applicant being considered to
have withdrawn became final as he did not apply before the administrative
judiciary against it, that an obligation of paying the compensation which was
equivalent to his missing compulsory service arose, it was found out that the
period for the responsibility of compulsory service of the applicant was 5335
days, that a total receivable of 65,758.52 TL including a principal debt of
32,702.40 TL and an interest of 33,056.12 TL was present as of the date of
action.
20. The
applicant objected to the expert report through his petition dated 22/11/2011
and stated that there was no legal obstacle against the transfer of his
responsibility of compulsory service in accordance with provisional article 53
added into the Code numbered 2547.
21. The court,
by partially accepting, partially dismissing the action through its decision
dated 1/12/2011 numbered M.2010/361, D.2011/475, decided that the principal
receivable of the Rectorate from the applicant was 32,702.40 TL, its receivable
of interest was 31,646.97 TL by complying with the request, its total
receivable was 64,349.37 TL and this amount be received from the applicant
together with the legal interest that would run following the date of action
and be given to the Rectorate.
22. On the
other hand, the following statements were also included in the aforementioned
decision:
" . It was found out that the documents; the
petition of the defendant dated 25.09.2006 (with a request for the calculation
of his debt in accordance with the aforementioned Code), our response letter
dated 23.03.2007 and numbered 199/2143 and its annexes, the petition of the
Defendant dated 18.04.2007 (with a request for the transfer of service), the
letter of our Rectorate dated 26/07/2007 and numbered 2700/4978 (for obtaining
an opinion from the Council of Higher Education on the transfer of service),
the response letter of the Council of Higher Education dated 03.09.2007 and
numbered 3756/0221 17, our letter dated 17.10.2007 and numbered 4050/6948 (in
relation to the rejection of the request of the Defendant for the transfer of
service) were submitted for the file,"
23. The
applicant appealed the decision through his petition dated 18/1/2012 and
asserted that his responsibility of compulsory service could be transferred to
the BRSA in accordance with provisional article 53 added into the Code numbered
2547, that no period of 3 months was present in order to file a request in
relation to this issue, that the defenses that he pleaded in relation to this
were not taken into consideration in the Court decision, that the Court
delivered the decision by applying the wrong legal regulation to the case, that
a different decision was delivered on another person who was in the same
situation with him and whose only difference was to the effect that s/he had
filed a case prior to the entry into force of the Code numbered 5535.
24. Upon the
application lodged by the applicant before the Ministry of Finance while the
appeal examination was going on before the 18th Civil Chamber of the Supreme
Court of Appeals, the opinion of the Ministry dated 20/3/2012 and numbered 3527
as to the effect that there was no prejudice in carrying out a proceeding for
the applicant within the scope of paragraph three of article 53 of the Code
numbered 2547 was submitted to the related Chamber; however, the Chamber did
not carry out an evaluation on the claims of the applicant and approved the
decision of the Court of First Instance through its decision dated 29/5/2012
and numbered M.2012/4774, D.2012/6461.
25. The
request filed by the applicant against this decision for the revision of
decision was also dismissed with the decision of the same Chamber dated
18/10/2012 and numbered M.2012/11216, D.2012/11595.
26. The decision
was notified to the attorney of the applicant on 28/11/2012.
Moreover, upon the request filed by
the Rectorate on the applicant before the 5th Enforcement Office of Balıkesir
following the decision of the Civil Court of First Instance, a total proceeding
of 80,631.89 TL composed of the principal receivable, interest and trial
expenses was initiated.
B. Relevant Law
28. Provisional article 53 added into the Code
numbered 2547 through article 2 of the Code numbered 5535 is as follows:
"Out of those who have been sent abroad for
postgraduate education - training according to article 33 and those who have
been sent to another university within the country for postgraduate education -
training according to article 35 or those who work in their universities, until
the date on which this article enters into force;
a) Out of
those who have been discharged from their posts due to the failure to complete
their education within the period during which they need to stay abroad for
postgraduate education - training or who have not been discharged and continue
to work and who have been appointed to another public institution by transfer,
b) Out of
those who have been called to Turkey for whatever reason in any stage of their education,
c) Out of
those who have been discharged from their posts due to the failure to complete
their education within the period during which they need to stay at another
university within the country for postgraduate education - training,
d) Out of
those who have been discharged from their posts due to the fact that they have
resigned in any stage of their education, who have been considered to have
withdrawn from their duties without starting to work in order to complete their
compulsory services at the end of their periods and who have started to work,
but leave their posts without completing their compulsory service for which
they are responsible,
e) Out of
those who have been discharged from any university while working in that university
in order not to be appointed again, in the event that those who have
successfully completed at least the master's degree apply to the Council of
Higher Education within three months following the date on which this article
enters into force, on the condition that they meet the general conditions
stipulated in article 48 of the Code of Public Servants numbered 657, they can
be appointed to one of the instructor posts that are suitable for their
situation in the higher education institutions to be determined by the Council
(in particular the institutions in which their posts were previously present)
within three months following the date of application upon the approval of
their appointment by the Council of Higher Education. Without being subject to
the limitation as regards the implementation thereof once a year for its use
towards those whose situations comply with sub-paragraphs (a), (b), (c), (d)
and (e), title and degree changes can be performed in the posts of instructors
depending on needs through the resolution of the Council of Ministers in
accordance with the provision of additional article 1 of the Decree in the
Force of Law numbered 78. Those whose appointment is not approved by the
Council of Higher Education can resort to the legal remedy within sixty days.
Out of those who do not apply to the Council of Higher Education and those
whose appointment is not approved by the Council of Higher Education, those who
do not apply to the legal remedy and those whose appointment as instructor is
not approved through a judicial ruling shall apply to the State Personnel
Presidency within one year following the date on which this Code enters into
force. These shall be appointed to the vacant civil servant posts of the public
institutions and organizations to be determined by the aforementioned
Presidency within six months by considering the need of personnel without
seeking any condition of examination and without being subjected to the
limitations as regards open appointment.
However, in the event that those who have not
successfully completed the master's degree apply to the State Personnel
Presidency within three months following the date on which this article enters
into force, on the condition that they meet the general conditions stipulated
in article 48 of the Code of Public Servants numbered 657, within three months
following the date of application, they shall be appointed to the vacant civil
servant posts of the public institutions and organizations to be determined by
the aforementioned Presidency by considering the need of personnel without
seeking any condition of examination and without being subjected to the
limitations as regards open appointment. Those who currently work with the
status of Civil servant shall be allowed to perform their compulsory services
at the institutions at which they are working.
If these are those who currently work at public
institutions at the institutions to which they are appointed, they shall
fulfill their responsibility of compulsory service as determined within the
framework of general provisions at their institutions as regards their
education periods within the country or at abroad and the proceeding of the
debt amounts initiated in the name of the concerned due to their education
shall be renounced and the procedure of collection shall be terminated. In the
event there are amounts which have been previously paid by them, the periods
which correspond to this amount shall be deducted from the period of compulsory
service of the concerned. However, the domestic salaries which those who do not
want to return to the university or another public institution have received in
return for their services shall not be requested in return for compulsory
service. Other payments which are made for their education shall be requested
except for these salaries.
Out of those who have been granted with the right to
education in accordance with provisional article 47 although the situations
stipulated in subparagraphs (a), (b) or (c) of paragraph one have occurred,
those whose appointment has been made and out of those who have not been
discharged from their posts, those about whom a debt proceeding is carried out
shall be kept in their posts; the provision of the foregoing paragraph shall
also apply on them. The periods during which they have worked at higher
education institutions shall be deducted from their compulsory services.
In the event that those for whom an assignment in
which a responsibility of compulsory service is prescribed again has been made
or will be made out of those who fall under the scope of this article and who
are appointed to a post of instructor have completed or complete their
postgraduate education - training within the framework of this assignment in a
successful way, the periods during which they work in this duty shall be
deducted from their compulsory services as regards the first assignment and
their responsibility of compulsory service shall continue in relation to the
second assignment; in the event that they fail, the periods for the
responsibility of compulsory service arising out of this assignment shall be
added into their previous periods for the responsibility of compulsory service.
For all kinds of expenses which are made in foreign
currency to those who leave their posts or who are dismissed because of a penalty
without completing their compulsory service for which they are responsible
after they are appointed to the posts of instructor or civil servant within the
framework of the aforementioned provisions and those who fail to fulfill their
responsibility of compulsory service due to the fact that they do not apply
although they are covered by this article or that they do not meet the general
conditions stipulated in article 48 of the Code of Public Servants without
considering the amount for which they will be held responsible and the
provisions of the undertaking deed that they have signed and of the dulysigned
joint guarantee deed and without resulting in the making of payment to the
concerned;
a) About
those whose undertaking deed and duly-signed joint guarantee deed have been
received after 5/8/1996 on which additional article 34 of the Code of Public
Servants numbered 657 enters into force, calculation shall be made according to
the provisions of paragraph two of the aforementioned article without incurring
interest for the periods prior to the date of publication of this Code.
b) About
those whose undertaking deed and duly-signed joint guarantee deed have been
received prior to the date of 5/8/1996, calculation shall be made over the
amount to be determined by converting it to Turkish Lira over effective selling
rate of exchange determined and announced by the Central Bank of the Republic
of Turkey on the date on which the payment is actually made in the name of the
concerned and by incurring the legal interest determined and announced so as to
be valid as of the date of 1/1/2006 for the period that elapses until the date
on which this Code enters into force. However, in the event that a situation
which is disadvantageous to the debtor occurs as a result of the calculation
being made according to these provisions, the provisions of subparagraph (a)
shall apply.
The calculated amount of debt can be split into
installments up to a maximum period of five years by considering the situation
of the concerned and the amount that will be made to be paid. The amount that
they have previously paid and the amount that corresponds to the periods which
pass in their compulsory services shall be deducted from the amount to be
determined in accordance with the aforementioned article."
IV. EXAMINATION AND JUSTIFICATION
29. The individual application of the applicant
dated 26/12/2012 and numbered 2012/1269 was examined during the session held by
the court on 8/5/2014 and the following are ordered and adjudged:
A. Claims of the Applicant
30. The applicant asserts that "equality
before law" defined in article 10, "the right of ownership"
defined in article 35 and "the right to a fair trial" defined
in article 36 of the Constitution were violated by stating that, in the action
of debt filed by the Rectorate of Balıkesir University against him due to the
responsibility of compulsory service, wrong legal provision was implemented,
that his defense was not taken into account either by the local court or the
appeal authority, that no justification and evaluation was present in the
decision of the local court as regards why he could not benefit from the legal
provision that he specified in his defense, that the correct legal provision
was implemented in another similar incident and the action for compensation
filed by the university was dismissed, that he was obliged to pay compensation
in an unjust way as a result of the fact that the wrong legal provision was
implemented for him and that some of the compensation was collected by way of enforcement
and requests that a decision be delivered on the removal of the violation.
B. Evaluation
31. The Constitutional Court is not bound by the
legal qualification of the facts made by the applicant. It has been necessary
to evaluate the claim of violation of the principle of equality by the
applicant under a separate heading and to evaluate the part of the application
related to his claims as to the effect that he was obliged to make payment in
an unjust way as a result of the implementation of the wrong legal provision in
the settlement of the dispute and that his right of ownership was also violated
due to the compensation a part of which was collected by way of compulsory
enforcement as they are linked with his complaints that he has asserted within
the scope of the right to a fair trial.
1. In Terms of Admissibility
a. On His Claim As to the Effect that the Principle of
Equality Was Violated
32. The
applicant asserted that the principle of equality was violated by stating that,
in a similar incident, the action of debt filed on another person working at
the same institution was dismissed, that however the action filed against him
was accepted.
33. Paragraphs
one and five of Article 10 of the Constitution with the side heading "Equality
before law" are as follows:
"Everyone is equal before law without being
subject to any discrimination based on language, race, colour, gender,
political opinion, philosophical belief, religion, sect or similar grounds.
The State organs and administrative authorities must
act in compliance with the principle of equality before law in all their
proceedings."
34. Article 14
of the Convention with the side heading of ''Prohibition of discrimination''
is as follows:
"The enjoyment of the rights and freedoms set
forth in this Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other opinions,
national or social origin, association with a national minority, property,
birth or other status."
35. It is not
possible to evaluate in an abstract manner the claim of the applicant as to the
effect that the principle of equality regulated in article 10 of the
Constitution and the prohibition of discrimination regulated in article 14 of
the Convention have been violated given the expressions in the aforementioned
articles and it is absolutely necessary to discuss it in connection with other
fundamental rights and freedoms stipulated within the scope of the Constitution
and the Convention. In other words, in order to discuss whether the prohibition
of discrimination has been violated or not, the claim of violation needs to
answer the questions on which fundamental right and freedom the person was
subject to discrimination (App. No: 2012/1049, 26/3/2013, § 33).
36. The
applicant asserted his application based on the principle of equality in
connection with the delivery of different decisions in trial. In other words,
he claims that he was subject to discrimination in terms of the right to a fair
trial. In this context, it is necessary to examine the claim of the applicant
within the framework of article 10 of the Constitution by also considering
article 14 of the Convention.
37. The fact
that the principle of equality does not have an independent protective function
in the examination of an individual application does not constitute an obstacle
for the subjection of this prohibition to an expansive interpretation. Even if
a conclusion can be reached as to effect that a constitutional right has not
been violated when the claim that a right has been violated is examined
separately, this situation does not prevent the examination of a discriminative
practice towards that right. In this context, even if the relevant fundamental
right and freedom has not been violated, a conclusion can be reached as to
effect that the discriminative attitude shown in a subject related to that
right has violated the principle of equality (App. No: 2012/606, 20/2/2014, §
48).
38. The
concept of "equality" solely means the requirement in relation
to not performing a different treatment for the individuals in the same
situation without any objective and reasonable basis. Article 10 of the
Constitution in which this concept has become concrete prohibits different
forms of treatment "based on language, race, colour, gender, political
opinion, philosophical belief, religion, sect or similar grounds";
article 14 of the Convention prohibits different forms of treatment based on
"sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property,
birth or other status" (App. No: 2012/606, 20/2/2014, § 49).
39. In
accordance with paragraph (2) of article 48 of the Code numbered 6216, it can
be decided that the applications which are clearly devoid of basis are inadmissible.
The applications in which an applicant cannot prove the claims of violation
will also be considered to be clearly devoid of basis for this reason (App. No:
2012/665, 13/6/2013, § 20). In parallel with this, the responsibility of
explaining and proving the facts and cases which are the subject matter of the
application and the connections between the constitutional rights which are the
subject matter of the claim of violation belongs to the applicant as a rule
(App. No: 2013/2355, 7/11/2013, § 38).
40. The
applicant asserts that the action for compensation filed against him was
accepted while the action for compensation filed against his colleague that he
describes as "being in the same situation" and "having
the same legal status" with him was dismissed and that this situation
is contrary to the principle of equality. These expressions used by the
applicant and the information included in the application form and the annexes
thereof are not suitable for the inference of sufficient reasoning on the
evaluation of discrimination. For as much as, the colleague of the applicant
that he has pointed as a precedent filed an application in order to benefit
from the transfer of the responsibility of service within the period prescribed
in provisional article 53 added into the Code numbered 2547 through article 2
of the Code numbered 5535; however his/her request was not sent to the Council
of Higher Education due to the mistake of the institution to which s/he filed
the application, then the action of debt filed against the relevant person was
also dismissed on the ground that the person filed an application within due
period. However, the applicant filed a request for the restructuring of debt
rather than a request for the transfer of the responsibility of service within
the period prescribed in the legal regulation, but his request for the
responsibility of service that he filed after the end of the period prescribed
in the regulation was dismissed, then the action of debt filed against him was
accepted.
41. For the
reasons explained, as it is understood that no comparison of equality can be
made between the cases of the applicant and his colleague that he has made a
subject of comparison which were finalized in a different way due to the fact
that they are not in the same legal situation and that for this reason the
applicant cannot prove his claim of violation, it should be decided that this
part of application is inadmissible due to the fact that "it is clearly
devoid of basis" without examining it in terms of other conditions of
admissibility.
b. On His Claim As to the Effect that the Right to a
Fair Trial Was Violated
42. The
applicant claimed that his defense was not taken into account either by the
local court or the appeal authority, that no justification was present and no
evaluation was made in the decision of the local court as regards why he could
not benefit from the legal provision that he specified in his defense, that for
these reasons "the right to a fair trial" defined in article
36 of the Constitution was violated.
43. It must be
decided that this part of the application as regards the claim of the right to
a fair trial of the applicant having been violated is admissible as it is not
clearly devoid of basis and there is no other reason that will require the
delivery of a decision on its admissibility.
2. In Terms of Merits
44. The
applicant claimed that "the right to a fair trial" defined in
article 36 of the Constitution was violated.
45. The
Ministry of Justice, in its opinion letter, stated that these issues should be
taken into account during the examination of the complaint as to the effect
that the decisions of the court and the appeal authority were devoid of
justification by indicating that the applicant stated that he should benefit
from the regulation brought through the Code numbered 5535 due to the fact that
he was currently working at a public institution, that while the unfair action
filed by the Rectorate of the University against him was required to be
dismissed for this reason, he was ruled to be the debtor without considering
his defense on this matter at all; that the court took the expert report as the
basis for its final decision, that an evaluation was made on the objection
asserted by the applicant as regards the aforementioned report and final
discretion was left to the Court, that it was understood from the final
decision that the objection of the applicant was not considered to be
appropriate, a decision on the dismissal of this request was also delivered by
the Supreme Court of Appeals by stating that there was no reason for appeal and
correction.
46. The
applicant, other than the claims that he asserted in the application form,
stated that the expressions included in the expert report would not render the
decisions of the court justified.
47. The claim
of the applicant will be examined in terms of the right to a reasoned decision.
48. Paragraph
one of Article 36 with the side heading "Freedom to claim rights"
of the Constitution is as follows:
"Everyone
has the right to make claims and defend themselves either as plaintiff or
defendant and the right to a fair trial before judicial bodies through the use
of legitimate ways and means."
49. Paragraph
three of article 141 of the Constitution with the side heading of ''Publicity
of hearings and the need for verdicts to be justified'' is as follows:
“All types
of verdicts of all courts are written together with their justification.”
50. The
relevant section of article 6 of the Convention with the side heading of ''Right
to a fair trial'' is as follows:
"In
the determination of disputes related to his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal
established by law."
51. The
production and evaluation of evidence including the right to call witness
during the trial held are accepted within the scope of the principle of the
equality of arms accepted as one of the elements of the right to a fair trial
and this right and the right to a reasoned decision are also concrete
manifestations of the right to a fair trial just as the right to trial in a
reasonable time. In many of its decisions over which it carries out an examination
in accordance with article 36 of the Constitution, the Constitutional Court
includes principles and rights such as the right to a reasoned decision and the
principle of the equality of arms which are both stipulated in the wording of
the Convention and included within the scope of the right to a fair trial
through the case law of the ECtHR within the scope of article 36 of the
Constitution by way of interpreting the relevant provision in the evidence of
article 6 of the Convention and the case law of the ECtHR (App. No: 2012/13,
2/7/2013,§ 38).
52. While the
fact that the decisions of the court are reasoned is one of the elements of the
right to a fair trial, this right cannot be construed as responding to all
kinds of claims and defenses asserted in the trial in a detailed way. For this
reason, the scope of the obligation of showing a justification can vary
depending on the quality of a decision. Nevertheless, the fact that the claims
of the applicant as regards procedure or merits which require a separate and
clear response have been left unresponded will result in the violation of a
right (App. No: 2013/1213, 4/12/2013, § 26).
53. While the
fact that the justifications of the decisions delivered by the courts of remedy
are not detailed is construed as the fact that the justifications included in
the decisions of the court of first instance are accepted in the decisions of
approval (see García Ruiz v. Spain, App. No: 30544/96, 21/1/1999, § 26),
the fact that the concrete complaints of the applicants as to the effect that
their procedural rights have been violated through the appeal applications as
regards the significant issues which are not discussed by the court of first
instance although the applicants have stated them are not discussed in the
appeal examination can be considered as the violation of the right to a
reasoned decision (App. No: 2012/603, 20/2/2014, § 49).
54. In the
concrete case, the applicant, in his defense petition that he submitted in
relation to the action of debt filed against him on the ground that he did not
fulfill the responsibility of compulsory service, asserted that those who work
at public institutions could fulfill the responsibility of compulsory service
that they did not fulfill in return for their education expenses at abroad at
the institution at which they were currently working in accordance with
provisional article 53 added into the Code numbered 2547 through article 2 of
the Code numbered 5535, that it was regulated that in this case debt proceeding
could be waived, that he filed an application on 25/9/2006 in order to benefit
from the aforementioned regulation although no condition of application was
sought in order to benefit from this regulation, that on the other hand the
period for the responsibility of compulsory service was miscalculated, the
Court of First Instance decided that an expert review be carried out for the
settlement of dispute; although it was stated that the applicant could not
benefit from provisional article 53 added into the Code numbered 2547, it was stated
that the discretion of decision over this issue belonged to the Court and the
calculated amount of debt was notified to the Court. The applicant objected to
the expert report as to the effect that he could not benefit from the
regulation. However, in the decision it delivered on merits, the Court of First
Instance decided that the amount of debt determined in the expert report be
paid to the Rectorate without carrying out any evaluation on the main claim of
the applicant as to the effect that the action should be dismissed due to the
regulation as regards the fact that he could complete his responsibility of
compulsory service at BRSA.
55. The same
issue was asserted in the petition as regards the appeal application filed by
the applicant against this decision; as a matter of fact, although he submitted
to the 18th Civil Chamber of the Supreme Court of Appeals the opinion of the
Ministry of Finance dated 20/3/2012 and numbered 3527 as to the effect that he
was also in the scope of paragraph three of article 53 of the Code numbered
2547 while the appeal trial was going on, the aforementioned Chamber decided
that the decision of the Court of First Instance be approved without carrying
out any evaluation on the claims of the applicant.
56. As can be
seen, as it is clear that the objections filed by the applicant in the action
of debt filed against him as to the effect that the transfer of responsibility
of compulsory service to the institution at which he was working which
indicated that he was not a debtor and was based on as the main claim and that
there was no time limitations for this request in accordance with the
regulation made were only evaluated in the expert report, that the expert did
not have any duty other than helping the court for the settlement of dispute
and that it is clear that the report that s/he prepared did not have a quality
of judicial decision, it is observed that it is not possible to accept that the
claim of the applicant which was not discussed and justified in the decision of
the court to be responded due to the fact that it was stated in the expert
report, that no justification as regards this issue was included in the
decision delivered on the appeal although the same claim was asserted in the
appeal phase of the decision.
57. In this
case, the claim that the responsibility of compulsory service of the applicant
could be transferred to the institution at which he was working and that there
was no time limitation for this, which is a significant claim for the
settlement of dispute that needs to be responded in a separate and clear way
was not discussed and responded in the decision of the Court of First Instance.
Although the applicant also asserted the same claim in the appeal remedy which
is an effective legal remedy that needs to be exhausted, this claim was not
responded in the decision of the Supreme Court of Appeals either and the
attitude of the Court of First Instance leaving the claim unresponded was
accepted in the same way. For this reason, when the trial process is considered
as a whole, a conclusion has been reached to the effect that the right to a
reasoned decision of the applicant was violated.
58. For the
aforementioned reasons, it should be decided that the applicant's right to a
fair trial which is enshrined in article 36 of the Constitution was violated.
59. Members
Burhan ÜSTÜN and Hicabi DURSUN have disagreed with this opinion.
3. In Terms of Article 50 of the Code
Numbered 6216
60. By stating
that his constitutional rights were violated, the applicant requests that a
decision be delivered on the removal of the violation.
61. Article 50
of the Code numbered 6216 with the side heading "Decisions" is as
follows:
"(1) At the end of the examination on merits, it
shall be decided that the right of the applicant has been violated or has not
been violated. In the event that a decision of violation is delivered, what
needs to be done for the removal of the violation and its consequences shall be
adjudged. However, legitimacy cannot be reviewed, no decision with the quality
of an administrative act and action cannot be delivered.
(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 favor 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."
62. As the
violation determined in the case which is the subject matter of the application
arises out of the violation of the right to a reasoned decision that is one of
the elements of the right to a fair trial and there is legal interest in the
removal of the violation by carrying out a retrial, it should be decided that a
copy of the decision be sent to the relevant court in order to carry out a
retrial for the removal of the violation and its consequences in accordance
with paragraphs (1) and (2) of the Code numbered 6216.
63. It should
be decided that 172.50 TL deposited by the applicant as the amount of fee be
paid to the applicant.
V. JUDGMENT
In the light
of the reasons explained, it is decided on 8/5/2014
A.
1. UNANIMOUSLY
that the claim of the applicant to the effect that the principle of
equality was violated is INADMISSIBLE as "it is clearly devoid
of basis",
2. UNANIMOUSLY
that his claim as to his right to a reasoned decision was violated is ADMISSIBLE,
3. BY
MAJORITY OF VOTES and the dissenting votes of Burhan ÜSTÜN and Hicabi
DURSUN that the right to a reasoned decision WAS VIOLATED,
B. UNANIMOUSLY
that a copy of the decision be SENT to the 2nd Civil Court of First
Instance of Balıkesir for carrying out a retrial in order for the violation and
the consequences thereof to be removed,
C. UNANIMOUSLY
that the trial expense of 172.50 TL be PAID TO THE APPLICANT,
D. That
the payment be made within four months as of the date of application by the
applicant to the Ministry of Finance following the notification of the
decision; that in the event that a delay occurs as regards the payment, the
legal interest be charged for the period that elapses from the date on which
this period comes to an end to the date of payment.
LETTER OF DISSENTING VOTE
The applicant
asserted that paragraph three of provisional article 53 of the Code numbered
2547 which should have been implemented for him was not implemented, that his
action was dismissed in the action that he filed, that however there was no
justification in the decisions of the court and the Supreme Court of Appeals as
regards this issue, that "the right to a fair trial" defined in
article 36 of the Constitution was violated.
The principle
of the decisions of courts being reasoned is among the elements of the right to
a fair trial. This right does not mean that every claim and defense will be
answered or responded except for responding to the claims and defenses as
regards procedure and merits. However, if one of the asserted issues is accepted,
in the event that it is influential on the result of the action, the court can
be obliged to provide a certain and clear response on this matter. Even in such
a case, if expressed in a clear way, an implied dismissal can also be
sufficient. On the other hand, as the justifications shown by subordinate
courts in their decision will be accepted by the authorities of remedy, there
is no need to show justification in a separate way in the aforementioned
decisions. As a matter of fact, the case law of the ECtHR is also in the same
vein.
The issues
asserted by the applicant was clearly evaluated in the expert report, the
report was notified to the applicant and he was allowed to file an objection,
the expert report was referred and the evaluation in it was agreed by the
court, thus, justification was formed on the asserted issue. The Supreme Court
of Appeals which approved the decision of the court and dismissed the request
of the applicant for the correction of the decision also shared the same
opinion.
Due to the
reasons explained, I do not agree with the majority opinion which accepted that
the right to a fair trial was violated due to the lack of justification.