REPUBLIC OF TURKEY
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CONSTITUTIONAL COURT
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FIRST
SECTION
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DECISION
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Application
No: 2012/660
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Date of Decision: 7/11/2013
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FIRST
SECTION
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DECISION
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President
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:
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Serruh KALELİ
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Members
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:
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Mehmet ERTEN
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Zehra Ayla PERKTAŞ
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Erdal TERCAN
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Zühtü ARSLAN
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Rapporteur
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:
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Cüneyt DURMAZ
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Applicant
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:
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Kamil KOÇ
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Counsel
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:
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Att. Cavit ÇALIŞ
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I. SUBJECT OF APPLICATON
1. The
applicant, who received treatment for a long period following an accident he
had, alleged that his rights defined under article 36 of the Constitution were
violated by indicating that, in the case he filed at the High Military
Administrative Court with the request that the action pertaining to his
assignment to a duty located in another province while his treatment was
ongoing be annulled, a decision was delivered to dismiss the case due to statue
of limitations despite the fact that the period to file the case started from
the notification of the action to himself and that he filed the case within its
due period, that certain information and documents were not notified to him
during the trial.
II. APPLICATION PROCESS
2. The application was directly lodged
by the attorney of the applicant on 16/11/2012. In the preliminary examination 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 on 25/12/2012 by the
First Commission of the First Section that the admissibility examination be
carried out by the Section, that the file be sent to the Section as per clause
(3) of article 33 of the Internal Regulation of the Constitutional Court.
4. In the session held by the Section
on 26/3/2013, it was decided that the examination of admissibility and merits
of the application be carried out together as per subparagraph (b) of paragraph
(1) of article 28 of the Internal Regulation of the Constitutional Court. The
facts and cases, which are the subject of the application, were notified to the
Ministry of Justice on 1/4/2013 and the Ministry submitted its opinion to the
Constitutional Court on 3/6/2013.
5. The opinion submitted by the
Ministry of Justice to the Constitutional Court was notified to the applicant
on 5/6/2013 and the applicant submitted his opinion to the Constitutional Court
on 28/6/2013.
III. INCIDENTS AND FACTS
A. Incidents
6. As expressed in the application
petition, the incidents are summarized as follows:
7. The applicant, who worked as an
officer at the Special Forces Command Ankara Gölbaşı Natural Disaster Rescue
(NDS) Battalion Command, was injured in his right knee as a result of the
accident he had on 12/6/2009 in Ankara during the ''compulsory parachute jumps'' for the year 2009.
8. The applicant, who received treatment
at and obtained rest reports from various military hospitals, underwent
arthroscopic surgery at Gülhane Military Medical Academy (GMMA) on 5/4/2010.
9. The applicant was appointed to Ağrı
Doğubayazıt 1. Mec. Inf. Brig. 2. Mec. Inf. Bat. Com. Sup. Comp. Command with
the September 2010 General Officer Assignments.
10. The applicant, who obtained rest
reports on numerous occasions following the operation he had, was re-operated
at a private hospital in Ankara on 31/5/2011.
11. Regarding the applicant, who was
referred to the GMMA Health Board with the decision that he was ''incapable of fulfilling his B 61 F4 type duty''
as a result of the examination carried out at the GMMA orthopedics department
on 22/9/2011, a decision was delivered with the health board report dated
2/2/2012 and numbered 971 to the effect that he was ''incapable of fulfilling his 61/B/4 36/A/1 type duty.
It is suitable that he be assigned in classes marked with (+) in the
classification chart number 2 of the TAF HCR pertaining to the L.F.C.''
12. While a case was filed at the High
Military Administrative Court for the determination of the applicant's new
class due to the report that had been issued, the classification actions are
still ongoing.
13. The applicant, who was re-operated
at a private hospital on 3/2/2012, received a rest report for a total period of
4 months. The treatment process of the applicant is still ongoing.
14. The action pertaining to the
assignment of the applicant to Ağrı Doğubayazıt within the scope of the
September 2010 Officer Assignments was notified to the applicant on 21/3/2012.
15. The applicant filed a case at the
High Military Administrative Court (HMAC) on 11/4/2012 with the request that
the assignment action be annulled. The First Chamber of the HMAC dismissed the
case due to statue of limitations with its decision dated 6/6/2012 and numbered
M.2012/577, D.2012/722. In the justification for the decision of dismissal, it
was indicated that although the action of assignment was notified to the
applicant on 21/3/2012, the assignments were published over KARANET Personnel
Administration Information System (PAIS) on 17/9/2010 for individual and
corporate users, that the plaintiff received this action on his personal page,
that he then completed an assignment satisfaction survey, that the plaintiff
saw his assignment in the announcements section through the KARANET user report
and that he had talks with officers tasked at the assignment department, that
the applicant learned about the assignment action on 17/9/2010, that the case
was filed approximately 1,5 years later on 11/4/2012 whereas it needed to have
been filed within sixty days for the annulment of the action.
16. The applicant requested the
correction of the decision on 9/7/2012 by alleging that the decision on the
dismissal of the case due to statue of limitations despite the fact that he
filed his case within its due period starting from the notification of the
assignment action to him was erroneous. This request of the applicant was
dismissed by the same Court with the decision dated 9/10/2012 and numbered
M.2012/2535, D.2012/1027. The decision of dismissal was notified to the
applicant on 18/10/2012.
B. Relevant Law
17. Paragraph one of article 40 of the
Code of High Military Administrative Court numbered 1602 with the heading of "Period for filing a case" is as
follows:
“The period for filing cases at the High Military Administrative Court
shall be sixty days starting from the date of written notification in all sorts
of actions in circumstances where no separate period is indicated in codes. In
cases where notification is made through notice as per the provisions in codes
that are specific to those whose addresses are not definite, unless a provision
to the contrary exists in the special code, the period shall start fifteen days
after the deadline of the notice.
18. Article 47 of the Code Numbered
1602 with the side heading "Giving
files to the Office of the Chief Prosecutor" is as follows:
“The case files shall be given to the Office of the Chief Prosecutor by
the Secretariat General after the petitions and defenses are received or once
the response periods have elapsed. The files shall be sent back to the
Secretariat General once the opinion of the Office of the Chief Prosecutor is
received. The opinion of the Office of the Chief Prosecutor shall be notified
to the parties by the Secretariat General. The parties can submit their
opinions in writing to the Court within seven days starting from the date of
notification. This period cannot be extended. Once the responses of the parties
are received or the response period has elapsed, the files shall be sent to the
competent administration via the Secretariat General.”
19. Paragraphs four, five, six and
seven of article 52 of the Code numbered 1602 with the side heading "Examination outside the file" are as
follows:
(Amended paragraph four: 19/6/2010-6000/20 art.) The information and
documents in the case file shall be open to the parties and their attorneys. So
much so that; of the information, documents and files that have been made to be
brought by the court or sent by the administration, those regarding which a
condition has been imposed not to be examined by the parties and their
attorneys for the purposes of protecting the special information, honor, dignity
and safety of other individuals and instances or keeping the investigation
methods of the administration secret as well as those in the personal file of
the personnel except for the subject of the case cannot be made to be examined
by the parties and their attorneys.
(Additional paragraph: 19/6/2010-6000/20 art.) If the information and
documents that are of such a nature that they cannot be made to be examined by
the parties and their attorneys are of such a quality as not to be able to be
separated from other documents that are open to the parties and their attorneys
as per their locations, the copies that will be made to be examined by the
parties and their attorneys shall be sent separately as the relevant parts are
blacked out by the administration.
(Additional paragraph: 19/6/2010-6000/20 art.) The plaintiff party or
his/her attorney can object to the court with the claim that the information
and documents that have been blacked out or not provided are matters that would
constitute the basis for the defense. Information and documents that were
previously blacked out or not provided can be made to be examined by the
opposing party within the framework to be determined by the court, in matters
that are deemed to be rightful following the examination of this objection by
the court.
(Additional paragraph: 19/6/2010-6000/20 art.) Information and
documents that are obtained as per these provisions and are classified cannot
be used by the parties and their attorneys for another purpose outside the
court. The relevant provisions of codes shall remain reserved regarding those
who act to the contrary.”
20. Article 120 of the Code of
Personnel of the Turkish Armed Forces numbered 926 with the side heading ''Period of starting in assignment to duty''
is as follows:
“In assignments of officers and non-commissioned officers for the first
time and during their service period:
a) Those that are located within the boundaries of the same municipality
or within the same garrison, shall be obliged to join the duty they have been
assigned to within 24 hours following their acknowledgment of the order of
assignment, within working hours of the day when the service starts if this
period coincides with a day of official holiday,
b) In assignments outside the municipal boundaries or to another garrison,
they shall be obliged to join the duty they have been assigned to within 15
days except for the travel period indicated in the special code pertaining to
their travel allowances.
An action shall be carried out as per the special codes regarding those
who do not join their duties within these periods without an excuse.
(Additional: 29/7/1983 - 2870/9 art.) In assignments that are fulfilled
by means of changing places, the fact that the personnel is on leave or sick
leave shall not thwart notification. However, the periods under sub-paragraphs
(a) and (b) shall commence at the end of the leave or sick leave period.”
21. Paragraph (1) of article 14 of the
Decree in the Force of Code Regarding the Delivery of Legal Services in Public
Administrations Within the Scope of the General Budget and Administrations with
Special Budgets dated 26/9/2011 and numbered 659 with the side heading “Nature of representation in cases and ruling on
counsel's fee and distribution thereof” is as follows:
“For proceedings and
hearings carried out by chiefs of legal departments, directors of procedure,
legal advisors and lawyers in the capacity of attorneys of administrations in
judicial and administrative cases including those that are subject to the
arbitration procedure and at execution offices, in the event that these cases
are concluded in favor of administrations, counsel's fees shall be decided upon
in favor of administrations based on the amount to be ruled upon as per the
relevant legislation in cases and actions represented and followed by these.”
IV. EXAMINATION AND JUSTIFICATION
22. The
individual application of the applicant dated 16/11/2012 and numbered 2012/660
was examined during the session held by the court on 7/11/2013 and the
following were ordered and adjudged:
A. Claims of the Applicant
23. The
applicant alleged that his right to a fair trial defined under article 36 of
the Constitution was violated by indicating that in the case he filed with the
request that his assignment realized while his treatment was still ongoing be
annulled, a decision was delivered to dismiss the case due to statue of
limitations despite the fact that the period for filing the case started from
the notification of the action to himself and that he had filed the case within
its due period, that the information that was presented by the defendant
administration and was classified was not notified to himself, that the opinion
of the chief prosecutor and the rapporteur was not notified to himself when his
case was dismissed and that the fact that counsel's fee was ruled upon as per
the provisions of the DIFC numbered 659 was in violation of the Constitution.
B. Evaluation
1. In Terms of Admissibility
a. Competence In Terms of Subject
24. It should first be determined
whether or not the application falls within the jurisdiction of the
Constitutional Court in terms of its subject. In the examination of an
individual application, the common field of protection of the Constitution and
the European Convention on Human Rights (the Convention) is taken as the basis
for determining whether a claim of violation falls into the jurisdiction of the
Constitutional Court in terms of subject or not (App. No: 2012/1049, § 18,
26/3/2013).
25. Paragraph one of article 36 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."
26. In paragraph one of article 36 of
the Constitution, it is stated that 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. Since
the scope of the right to a “fair trial” stipulated in the article is not
explicitly regulated in the Constitution, the scope and content of this right
need to be determined within the framework of article 6 of the Convention with
the side heading “Right to a fair trial”.
27. Paragraph (1) of article 6 with the
side heading of "Right to a fair
trial" of the Convention is as follows:
In the determination of 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 code. …”
28. The European Court of Human Rights
(ECtHR) accepts in principle that disputes pertaining to civil servants can be
dealt with within the scope of the right to a fair trial. However, it considers
the matter separately regarding the state and those civil servants who are
affiliated with it with a special bond of confidence and loyalty (military,
police and so on). Within this framework, the following two conditions need to
have been fulfilled together in order for disputes between civil servants and
the state to be excluded from the scope of the right to a fair trial. First,
the state needs to not have granted the right to apply to a court in its
domestic law with regard to the dispute in question. Secondly, this deprivation
needs to be justified with objective reasons pertaining to the interest of the
state. In other words, the state needs to demonstrate explicitly that the subject
of the dispute pertains to the execution of the public force and a bond of
loyalty and confidence that is specifically directed at the state (See Vilho Eskelinen v. Finland, App. No:
63235/00, 19/4/2007, § 62). Indeed, the ECtHR examined a dispute where the
national authorities granted the right to apply to a court, the applicant was
military and where the trial took place at a military court within the scope of
the right to a fair trial(See Pridatchenko
and Others v. Russia, B. No: 2191/03, 3104/03, 16094/03, 24486/03,
21/6/2007, § 47).
29. Therefore, claims of violation
pertaining to the dispute that is the subject of the application, which falls
within the common field of protection of the Constitution and the Convention
fall within the jurisdiction of the Constitutional Court in terms of the
subject.
30. Due to the fact that the other
matters that have been made the subject of complaint in the application bear
different qualities in terms of other admissibility criteria, the examination
pertaining to each complaint needs to be conducted separately.
b. Claim Pertaining to the Violation of the Right to Access to
Court due to Dismissal of the Case as a Result of Statue of Limitations
31. It
is seen that the part of the application to the effect that article 36 of the
Constitution was violated as a result of the decision to dismiss the case on
grounds of statue of limitation despite the fact that the applicant had filed
his case within its due period starting from the notification of the action of
assignment to the applicant is not clearly devoid of grounds in accordance with
article 48 of the Code numbered 6216. As no other reason for inadmissibility
has been observed, it must be decided that this part of the application is of
an admissible nature.
c. Claim That Confidential Documents Were Not Submitted
32. The applicant alleges that the
confidential information submitted as an annex by the defendant administration
were not notified to himself and that his right to a fair trial was thus
violated.
33. One of the elements of the right to
a fair trial is the principle of the equality of arms. The principle of the
equality of arms means the subjection of the parties to a case to the same
conditions in terms of procedural rights and the fact that one of the parties
has the opportunity of stating its claims and defenses before a court in a
reasonable way without it being put at a weaker position than the other one.
This principle needs to be abided by in civil cases pertaining to civil rights
and liabilities and in administrative cases in addition to criminal cases.
(App. No: 2013/1134, 16/5/2013, § 32).
34. It is understood that in the
decision that was delivered as a result of the trial that is the subject of the
application it was decided to return a confidential envelope in addition to
dismissing the case due to it not having been filed within its due period, that
this decision was not a decision that was delivered as a result of a discussion
of the merits of the case, that the reasoned decision did not contain clear
information to the effect that the documents contained within the envelope
stated to be confidential were evaluated by the court and that they constituted
the grounds for the decision.
35. Paragraph three of article 148 of
the Constitution is as follows:
''...In order to make an application, ordinary legal remedies must be
exhausted.''
36. Paragraph (2) of article 45 of the
Code on the Establishment and Trial Procedures of the Constitutional Court
dated 30/3/2011 and numbered 6216 with the side heading of ''Individual application right'' is as
follows:
“All administrative and judicial remedies stipulated in the code in
relation to the act, action or neglect, which is claimed to have caused the
violation, must be exhausted before the individual application is lodged.”
37. In accordance with the
aforementioned provisions of the Constitution and the Code, an individual
application to the Constitutional Court is "a
legal remedy with a secondary quality" and, prior to resorting
to this remedy, as a rule, ordinary legal remedies must be exhausted.
38. The respect to fundamental rights
and freedoms is a principle which all of the organs of the state must abide by,
and in the event of behavior that is non-compliant with this principle, the
administrative instances and courts of instance that have venue must be applied
to against the resulting violation.
39. Due to the secondary nature of the
individual application, the applicant needs to primarily convey the claims that
his fundamental rights and freedoms were violated to the administrative and
judicial authorities of venue in accordance with the due procedure, to submit
the information and evidence that he has about this subject to these instances
within due period, at the same time, to pay required attention to following his
case and application in this process. The claims as regards the violation of
fundamental rights and freedoms which are not asserted and pursued before
ordinary review mechanisms in this way cannot be made the subject of an
individual application before the Constitutional Court (App. No: 2012/1049,
16/4/2013, § 32).
40. In the incident that is the subject
of the application, when the request for correction (§16) filed by the
applicant on 9/7/2012 is examined, it is seen that the applicant does not bring
forward any claim to the effect that the confidential information submitted by
the defendant administration was not notified to himself or that this
information was taken as the basis for the judgment.
41. As it is understood that the
individual application was lodged without the claims of violation regarding
this part of the application being brought forward by the applicant in the
legal remedies envisaged for the administrative action, which is the subject of
the violation claim, it must be decided that the claims regarding this part are
inadmissible due to the fact that ''the
remedies were not exhausted'' without them being examined in terms
of other conditions of admissibility.
d. Claim That The Opinion Of The Chief Prosecutor And The
Rapporteur Were Not Notified
42. The applicant also alleges that the
written opinion of the Office of Chief Prosecutor and the opinion of the
rapporteur were not notified to himself prior to the decision by the HMAC on
the dismissal of the case and that his right to a fair trial was thus violated.
43. The ECtHR has decided that the
principles of the equality of arms and adversarial trial were violated as a
result of the failure to notify the opinion of the Chief Prosecutor of the
HMAC, who submitted his opinion to the court after having conducted an
independent examination pertaining to the file, to the parties in advance (See Miran v. Turkey, App. No: 43980/04,
21/4/2009). Therefore, notifying the opinion of the Office of Chief Prosecutor
to the parties in advance and submitting it to their examination and providing
them with the opportunity to prepare their own counter opinions is a
requirement of the right to a fair trial (App. No: 2013/1134, 16/5/2013, § 33).
44. Within this framework, the lawmaker
carried out a legal amendment and through article 60 of the Code dated
22/5/2012 and numbered 6318 published in the Official Gazette dated 3/6/2012
and numbered 28312 it added a rule to article 47 of the Code numbered 1602 that
allows the notification of the opinion of the Office of Chief Prosecutor to the
parties via the Secretariat General and the parties to submit their responses
to the Court in writing within seven days starting from the notification (App.
No: 2013/1134, 16/5/2013, § 34).
45. The duty and position of the
rapporteur judge during the trial process does not have the same quality as the
prosecution authority. While rapporteur judges examine cases that are referred
to them under the supervision of the court or president of chamber and prepare
draft decisions and minutes, prosecutors serve under the chief prosecutor of
the court. Rapporteur judges generally do not conduct investigations, they
declare their opinions orally or in writing regarding a case the investigation
of which has already been completed. Although it thus becomes possible for them
to bring forward opinions that can influence court members, they fulfill this
duty on behalf of the president of the court or president of the chamber (For
the decision of the ECtHR in the same vein see Meral
v. Turkey, App. No: 33446/02, 27/11//2007, § 40-42).
46. It cannot be understood from the
examination of the file that the opinion of the Office of Chief Prosecutor and
the Rapporteur were notified to the parties in advance during the first
instance trial. The opinions of the Office of Chief Prosecutor and the
Rapporteur were not included in the decision of the First Chamber of the HMAC
to dismiss the case on the grounds of statue of limitation. In his petition with
the request of correction dated 9/7/2012, the applicant did not allege that the
opinion of the Office of Chief Prosecutor and the Rapporteur was not notified
to himself. It is seen that the opinion of the Office of Chief Prosecutor
received during the correction examination was notified to the applicant and
that the applicant provided a response to these opinions. Therefore, the
applicant became aware of the opinion of the Office of Public Prosecutor at the
correction phase even though it had not been notified at the first instance
trial phase and he found the opportunity to prepare his opinions against this
and submit them to the court.
47. On the other hand, the applicant
did not provide any explanation as to what additional theses he would have
brought forward that he could not express before the court had the opinion of
the office of chief prosecutor and the rapporteur been notified during the
first instance trial. Moreover, it is also seen that the HMAC did not rely on
the opinion of the Office of Chief Prosecutor and the rapporteur when
delivering its decision. For this reason, it cannot be stated that the
applicant was deprived of a procedural means that would impact the outcome of
the trial as a result of the failure to notify in advance the opinion of the
Office of Chief Prosecutor and the rapporteur during the first instance trial.
As a result, it is understood that the principle of the equality of arms was
not violated in the concrete incident.
48. For the explained reasons, since it
is understood that there is no clear violation in terms of the principles of
the equality of arms and adversarial trial in the decisions of the HMAC, it
must be decided that this part of the application is inadmissible due to the
fact that it is ''clearly devoid of grounds''.
e. Claim That Ruling On Counsel's Fee By Relying On The Provisions
Of The DIFC Numbered 659 Is In Violation Of The Constitution
49. The applicant finally alleged that
the regulation introduced with regard to the counsel's fee restricted his
freedom to claim rights, that the fact that fundamental rights were regulated
with the DIFC numbered 659 was in violation of the Constitution, that this
regulation was in violation of the principle of proportionality.
50. The claims of violation that were
brought forward with regard to the same subject with the same justifications
were examined in the decision dated 2/10/2013 and numbered App. No: 2013/1613.
In the decision in question, it was primarily stated that in the case that is
the subject of the application, counsel's fee in favor of the administration
was ruled upon based on the regulation introduced with the DIFC numbered 659,
that therefore it was understood that the provisions envisaged by this
regulatory administrative action were applied to the case, that the concrete
application also needed to be assessed from this point of view. It was then
decided in the decision that the violation claim was inadmissible by stating
that the counsel's fee was a trial expense, that as a rule these kinds of
expenses would constitute an intervention to the right to access to court, that
however, certain liabilities could be envisaged for the applicants with a view
to reducing the number of cases by preventing unnecessary applications and
concluding disputes within a reasonable period without unnecessarily occupying
the courts, that it was within the discretionary authority of public
authorities to determine the scope of these liabilities, that it cannot be
stated that the right to access to court would be violated unless the envisaged
liabilities render it impossible or extremely difficult to file a case, that
therefore the counsel's fee to be charged on the applicant in the event that he
lost the case needed to be considered within this framework, that when the
concrete application was examined in line with these principles, the fact that
the applicant was rendered liable to pay counsel's fee in favor of the
administration as a result of the dismissal of his case could not be claimed to
involve an intervention to the right to access to court (App. No: 2013/1613,
2/10/2013, § 35-41).
51. For the explained reasons, it must
be decided that this part of the application, which does not have a different
aspect from the application referred to above, is inadmissible due to the fact
that it is "clearly devoid of basis".
Zühtü ARSLAN did not participate in this opinion.
2. Examination in Terms of Merits
52. The applicant alleged that his
rights stipulated under article 36 of the Constitution were violated by stating
that in the case he filed with the request that his assignment, which was
carried out while his treatment was still on-going, be annulled, it was decided
to dismiss the case due to statue of limitations despite the fact that the
period to file the case started from the notification of the action to himself
and that he filed his case within its due period.
53. In the opinion of the Ministry,
when the complaints to the effect that article 36 of the Constitution was
violated were examined, the principles adopted by the ECtHR in the subject of
the right to a fair trial were referred to, it was stated that the periods for
filing cases served important and legitimate purposes such as preventing
situations of injustice that can occur as a result of courts being requested to
deliver decisions regarding incidents that occurred in the distant past by
relying on evidence that is incomplete and has lost its reliability due to the
principle of legal security and time that has elapsed, that these periods aimed
to serve justice and especially to guarantee respect to legal security.
54. The applicant did not agree with
the statements included in the opinion of the Ministry on the merits of the
application to the effect that the information contained within the
confidential documents was not taken as basis for the judgment, he alleged on
the contrary that the case was dismissed from a period point of view by relying
on the information contained within the confidential documents that were not
conveyed to his part.
55. 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."
56. Article 40 of the Constitution with
the side heading of ''Protection of
fundamental rights and freedoms'' is as follows:
“Anyone whose rights
and freedoms vested by the Constitution are violated has the right to ask for
being granted the opportunity to apply to an authorized body without any delay.
(Additional paragraph: 3.10.2001-4709/16 art.) The State is obliged to
indicate in its proceedings the legal remedies and authorities the relevant
individuals should apply and the time frames for these.
Damages incurred by any individual through unfair treatment by public
officials are compensated for by the State as per the law. The State reserves
the right of recourse to the relevant official having responsibility.”
57. Paragraph (1) of article 6 with the
side heading of "Right to a fair
trial" of the Convention is as follows:
In the determination of 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. …”
58. In line with the fundamental
approach adopted by the Constitutional Court with regard to individual
applications, as a rule, proving the incidents that are contained within the
case that is the subject of the individual application, the interpretation and
implementation of legal rules, the admissibility and evaluation of evidence
during the trial and whether or not a solution brought by courts of first instance
to an individual dispute is fair from a merit point of view are not subjected
to assessment during the individual application examination. As long as the
rights and freedoms stipulated in the Constitution are not violated and unless
they contain any obvious arbitrariness, material and legal mistakes in
decisions of courts of instance cannot be handled in the examination of an
individual application. In this framework, unless a clear and evident
discretionary mistake is present in the evaluation of the evidence by the
courts of instance, the Constitutional Court cannot intervene in this
discretion (App. No: 2012/1027, 12/2/2013, § 26).
59. Nevertheless, the right to access
to trial is one of the fundamental elements of the right to a fair trial.
Practices that can render it extremely difficult or impossible to access the
court can violate the right to access to court. The fact that certain periods
are envisaged for filing a case or resorting to legal remedies are a
requirement of the principle of legal certainty and do not constitute a
violation of the right to access to court unless they are so short as to render
it impossible to file a case. Nevertheless, it must be accepted that the right
to access to court has been violated if individuals have not been able to
exercise their rights to file a case or to resort to legal remedies as a result
of the envisaged period conditions having been clearly mistakenly implemented
in violation of the law or miscalculated (App. No: 2013/1718, 2/10/2013, § 27).
60. It is stipulated under paragraph
two of article 40 of the Constitution that the State must indicate in its
actions what legal remedies and instances individuals shall resort to and the
periods thereof.
61. It is clearly adjudged under
paragraph three of article 125 of the Constitution that the periods in cases to
be filed against administrative actions shall begin starting from the date of
written notification.
62. The lawmaker thus adjudged with
paragraph one of article 40 of the Code numbered 1602 that the period to file a
case at the HMAC in all sorts of actions shall be sixty days starting from the
date of written notification in circumstances where no separate period is
provided in the codes.
63. It is adjudged under article 120 of
the Code numbered 926 that in assignments of officers and non-commissioned
officers that are conducted by means of changing places, the fact that the
personnel is on leave or sick leave would not hinder the notification of the
assignment action, that however, the periods accepted for them to join their
assigned duties would begin at the end of the leave or sick leave period.
64. The applicant complains about the
interpretation and implementation of the provisions pertaining to the period to
file a case. Despite the fact that the action that is the subject of the case
was notified to the applicant in writing on 21/3/2012, it is seen that the HMAC
considered the date of 17/9/2010, when it considers the assignment action to be
learnt by the applicant (when the September 2010 assignments were announced),
as the date on which the period to file the case began to elapse.
65. As the courts implement procedural
rules, they must refrain from strict formalism that would impair the fairness
of the case on the one hand and from excessive flexibility that would result in
the abolition of procedural conditions that are stipulated by law on the other
(For a decision of the ECtHR in the same vein see Walchli v. France, App. No. 35787/03, § 29).
66. The periods to file administrative
cases have been regulated with codes with a view to prevent administrative
actions from constantly being under the threat of a case being filed and
ensuring that the public service is conducted in a rapid and efficient manner;
as per article 125 of the Constitution and various procedural codes, the
commencement of these periods are rendered conditional on written notification.
67. The main objective of regulating
the principle of written notification as a constitutional rule is to protect
the rights and interests of individuals against administrative actions through
judicial remedy; and to place the exercise of the right to file a case under
constitutional guarantee to this end. In other words, the written notification
especially comes into play in the exercise of the right of individuals to file
cases against administrative actions that violate their interests (Council of
State 10. Chamber, M. 2010/7934, D. 2010/6948, 28/9/2010).
68. The right to access to court would
be violated in the event that procedural rules become a kind of obstacle in
terms of the cases of individuals being heard by a competent court rather than
serving the fulfillment of justice as a result of ensuring legal security and
properly conducting the trial (For the decision of the ECtHR in the same vein see
Efstathiou and Others v Greece,
App. No: 36998/02, § 24).
69. Even though it was explained in
detail in the decision of the HMAC to dismiss the case on period grounds that
the applicant had learned about the assignment action in various ways (although
the applicant alleges the contrary), it is clearly adjudged in article 40 of
the Code numbered 1602 that the period for filing cases against administrative
actions is sixty days starting from the notification of the action and it is
stipulated under article 120 of the Code numbered 926 that the periods
pertaining to the obligation to join the duty would start at the end of leave
or sick leave period even though the notification pertaining to the assignment
action is received while on leave or sick leave. The applicant did not join his
new place of duty due to the fact that he was considered to be on leave during
the assignment action and until the date of application through continuous
health reports.
70. Given the fact that the exercise of
the right to access to court is rendered conditional on the period stipulated
in the code with a view to administrative actions and that this period is
rendered conditional on written notification, that the HMAC considered the
period to file the case pertaining to the assignment action, which was not
legally notified to the applicant and thus did not bear the liability to
fulfill for the applicant, as the date on which the applicant learned about the
assignment action by ignoring the clear rule that is the subject of the dispute
and that it decided to dismiss the case with the justification that it had not
been filed within its due period prevented the court from examining the merits
of the applicant's claims pertaining to the administrative action.
71. A legal regulation needs to contain
enough certainty so that individuals can organize their behavior accordingly
and the individual needs to be able to predict, if necessary by means of
seeking legal assistance, to a reasonable degree the results that would occur
in the field regulated by this code as a result of a certain action. The
predictability does not have to be at an absolute scale. Even though the
clarity of the code is a desirable situation, it can sometimes result in
excessive rigidity as well. However, the law needs to be adaptable to changes
that arise. Many codes contain, quite naturally, formulas that are open to
interpretation, the interpretation and implementation of which depend on the
practical reality (For a decision of the ECtHR in the same vein see Kayasu v Turkey, App. No: 64119/00 and
76292/01, § 83).
72. In the incident that is the subject
of the application, there is a clear legal provision pertaining to the
commencement of the period to file the case. The ordinary meaning to be attributed
to this provision is clear and the applicant expects to be treated according to
this. However, the court of instance attributed an extraordinary meaning to the
clear legal provision and conducted its practice according to this. That there
is an established case law in favor of this practice was neither specified in
the decision of the court of instance, nor was it brought forward in the
opinion of the Ministry. Therefore, according to the available documents, there
is no circumstance that would require the applicant to expect that he would be
treated differently than the clear legal provision when filing the case (even
though he benefits from legal assistance). Therefore, the interpretation of the
court of instance is unpredictable in nature.
73. As a result, the case that the
applicant filed within its due period according to the ordinary meaning that
can be attributed to the clear legal provision was dismissed as a result of the
court of instance interpreting the clear legal provision in an extraordinary
and fairly flexible way and in an unpredictable manner within the circumstances
of this application and the right to access to court was violated.
74. For the explained reasons, it must
be decided that the applicant's right to access to court, which is one of the
fundamental elements of the right to a fair trial, was violated as a result of
the extraordinary interpretation of the clear procedural rules pertaining to
the period to file cases in an unpredictable manner.
V. IMPLEMENTATION OF ARTICLE 50 OF THE CODE NUMBERED 6216
75. Paragraph (2) of article 50 of the
Code numbered 6216 is as follows:
"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."
76. Taking into account the fact that
the decision to dismiss the case due to statue of limitations violated the
right to access to court in the incident that is the subject of the
application, as per paragraph (2) of article 50 of the Code numbered 6216, it
must be decided that a copy of the decision be sent to the High Military
Administrative Court in order to conduct a retrial with a view to eliminating
the violation and the consequences thereof.
77. The applicant requested 1.403 TL
material and 10.000 TL moral compensation for the damages he incurred due to
the assignment action in the event that it is concluded that there is no legal
benefit in conducting a retrial. It must be decided that the compensation
requests be rejected since the determined violation stemmed from a court
decision and the file needs to be sent to the relevant court for a retrial to
be conducted with a view to eliminating the violation and the consequences
thereof.
78. The applicant requested the
collection of the counsel's fee and trial expenses from the defendant. It must
be decided that the trial expenses made by the applicant be paid to the
applicant.
VI. JUDGMENT
In the
light of the reasons explained, it is decided on 7/11/2013;
A. UNANIMOUSLY that the complaints of
the applicant to the effect that his right to a fair trial was violated by
means of deciding on the dismissal of the case on statue of limitation grounds
are ADMISSIBLE,
B. BY MAJORITY OF VOTES and the
dissenting vote of Zühtü ARSLAN that the claim of the applicant pertaining to
the counsel's fee is INADMISSIBLE,
C. UNANIMOUSLY that the other
complaints of the applicant pertaining to the right to a fair trial were
INADMISSIBLE,
D. UNANIMOUSLY that the right to
access to court within the framework of article 36 of the Constitution was
VIOLATED,
E. UNANIMOUSLY that the requests of
the applicants pertaining to compensation be DISMISSED,
F. UNANIMOUSLY that the trial expenses of 2,812.50 TL in
total composed of the fee of 172.50 and the counsel's fee of 2,640.00 TL which
were made by the applicant be PAID TO THE APPLICANT,
G. UNANIMOUSLY that the payment be
made within four months as of the date of application by the applicant to the
State Treasury 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.
H. UNANIMOUSLY that a copy of the
decision be sent to the High Military Administrative Court in order to carry
out a retrial for the violation and the consequences thereof to be removed in
accordance with paragraphs (1) and (2) of article 50 of the Code numbered 6216,
JUSTIFICATION
OF DISSENTING VOTE
In addition to other matters, the applicant
alleged that the fact that counsel's fee was ruled upon in favor of the
administration at the end of the trial violated his freedom to claim rights,
the majority of our Court, however, decided that the claim to this end was
''clearly devoid of basis''.
As it is explained in detail in the dissenting
vote justification in the decision with the date of 2/10/2013 and the
application number of 2013/1613 of the First Section of our Court, trial
expenses such as the counsel's fee should not bring a heavy economic burden on
the individual in such a way as to impair the essence of the right to access to
court, they should be proportional. Indeed, the approaches of the
Constitutional Court and the European Court of Human Rights to the matter are
also in this vein. (See M.2011/54, D. 2011/142, D.D: 20.10.2011; M.2011/64,
2012/168, D.D: 1.11.2012; App. No: 2012/791, 7/11/2013, § 66; Kreuz v Poland (no.1), App.N: 28249/95,
D.D: 19.6.2001, § 60; Apostol v Georgia,
40765/02, 28.11.2006, § 59; Bakan v Turkey,
App.N: 50939/99, D.D: 12.6.2007,
§ 70, 73; Mehmet and Suna Yiğit v Turkey,
App.N: 52658/99, D.D: 17.7.2007; Stankov v
Bulgaria, App.N: 68490/01, D.D: 12.7.2007, § 54, 67; Klauz v Croatia, App.N: 28963/10, D.D:
18.7.2013, § 97.)
Examining whether or not the envisaged counsel's
fee constitutes a heavy economic burden on the applicant, in other words,
carrying out the proportionality test is especially important with a view to
cases that are heard in administrative justice. Indeed, a disproportional
counsel's fee has the potential of rendering dysfunctional the constitutional
guarantees granted to the individual in the face of the administration that
wields public power. The high amount of counsel's fee can make it harder for
individuals to claim their rights against the potential arbitrary actions of
the administration, create a deterrent impact especially on individuals with a
weak ability to pay in terms of filing a case and thus render them defenseless
against the administration.
In the concrete application, the majority of
our Court did not evaluate whether or not the fixed counsel's fee of 1.200 TL
ruled upon to the detriment of the applicant was proportional to the envisaged
purpose, but instead concluded that there was not an intervention to the right
to access to court by means of referring to the decision with the application
number 2013/1613 in which the proportionality test was not conducted.
Ruling on the counsel's fee to the detriment
of the applicant is an intervention to the right to access to court under all
circumstances. Whether or not this intervention led to a violation can be
determined as a result of a proportionality examination that would be conducted
by taking into account such matters as the envisaged amount, the monthly income
of the applicant, his general economic status, briefly, his ability to pay and
the special circumstances of the case.
With these justifications, I do not agree with
the majority decision to the effect that the counsel's fee that was ruled upon
to the detriment of the applicant without conducting a proportionality test did
not amount to an intervention to the right to access to court and that the
application is ''clearly devoid of basis''.