REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
PLENARY
DECISION
K.V.
(Application no. 2014/2293)
1 December 2016
On 1 December 2016, the Plenary of the Constitutional Court declared inadmissible the individual application lodged by K.V. (no. 2014/2293) for being devoid of constitutional and personal significance without making any further examination as to the other admissibility criteria.
THE FACTS
[8-35] The applicant being a self-employed lawyer brought a full remedy action before the Supreme Military Administrative Court (“the SMAC”) for being insulted by his superior while he was fulfilling his military duty. The Second Chamber of the SMAC decided through its decision of 9 October 2002 that the claim for compensation was partially accepted and partially rejected. The applicant requested rectification of the decision of partial rejection; the Second Chamber of the SMAC rejected this request by its decision of 26 February 2003, and the applicant was imposed a fine of 54.55 Turkish Liras (“TRY”) regarding rectification of the decision.
The Presidency of the High Military Administrative Court issued a writ to the Tax Office on 3 March 2003 to ensure the collection of the fine; and the Tax Office transmitted the payment order to the applicant’s address on 4 May 2007, intended to make a notification through an officer on 22 July 2008 but upon the failure to make the notification, it publicly notified the payment order on 29 December 2008.
After a letter requesting a meeting on payment of the debt had been sent by the Tax Office to another address of the applicant, the applicant made a cancellation request (terkin talebi) on 31 December 2011 alleging that the mentioned fine was time-barred. His request was rejected by the act of 27 January 2012. The aforesaid debt was collected on 29 February 2012 as TRY 184, plus the interest.
The applicant brought an action for the cancellation of the notice by publication and of the act regarding rejection of the cancellation request, stating that he had been a tax payer in the capacity of a self-employed lawyer since 2004, that he submitted a declaration every month, that the addresses indicated in the tax declarations were deemed to be as among the well-known addresses, that there was an effort to notify the payment order to an address other than the known address and without making any sufficient research. He accordingly alleged that this notification is contrary to law, and that the collection of time-barred debt is at issue.
The 6th Chamber of the Ankara Administrative Court dismissed the action on the grounds that the procedure of notice by publication cannot be actionable since it is not a certain procedure to be carried out on a compulsory basis, and that the fine in question had not time-barred.. The Administrative Court also awarded the attorney’s fee as TRY 660 in favour of the respondent administration (the defendant).
The applicant raised an objection to the mentioned decision alleging that his claims regarding the illegality of the notice by publication was not examined and that the attorney’s fee was awarded even though the respondent administration (the defendant) was not represented by an attorney. The 1st Chamber of the Ankara District Administrative Court rejected the objection by it decision of 18 December 2003 with reference to the decision rendered by the first instance court.
36. The Constitutional Court, at its session of 1 December 2016, examined the application and decided as follows:
1. The Applicant’s Allegations
37. The applicant alleged that there had been a violation of the right to a fair trial enshrined in Article 36 of the Constitution by maintaining that his freedom to claim rights had been restricted because of the imposition of a fine on him upon the dismissal of his request for rectification of the decision by the 2nd Chamber of the Supreme Military Administrative Court (“the SMAC”) in its decision of 26 February 2003.
38. Provisional Article 1 § 8 of the Law on the Establishment and Rules of Procedures of the Constitutional Court (Law no. 6216, dated 30 March 2011) reads as follows:
“The court shall examine individual applications to be lodged against the acts and decisions that became final after 23 September 2012.”
39. Pursuant to this legal provision, the Court’s compatibility ratione temporis runs from 23 September 2012, which means that it is authorised to examine only the individual applications lodged against the acts and decisions that became final after the said date. It is not possible to expand the Court’s temporal jurisdiction to include the final acts and decisions that became final prior to the above-mentioned date (see Hasan Taşlıyurt, no. 2012/947, 12 February 2013, § 16).
40. The fact that a definite date is determined for the Constitutional Court's temporal jurisdiction and that it is not applied retrospectively is a requirement of the principle of legal security (see Zafer Öztürk, no. 2012/51, 25 December 2012, § 18).
41. In the case giving rise to the present application, although the applicant claims a breach of his right of access to a court due to the fine imposed on him upon the dismissal of his rectification request, the fine in question was imposed as with final effect on 26 February 2003 by the 2nd Chamber of the SMAC.
42. In this case, since the applicant’s complaint concerning a breach of the right of access to a court relies on a court decision that became final before 23 September 2012, it falls outside the scope of the Court’s temporal jurisdiction.
43. For these reasons, seeing that the alleged violation concerns a date prior to 23 September 2012, the Court considers that this part of the application must be declared inadmissible, without examining it from the standpoint of the remaining admissibility criteria, for incompatibility ratione temporis.
44. Stating that the inferior court did not respond to his allegation concerning the expiry of the statutory limitation period in respect of the fine of 54.55 Turkish liras (TRY) -imposed on him upon dismissal of his rectification request (“the rectification fine”)- due to the failure to duly notify him of the payment order regarding the collection of this fine, the applicant complained of a violation of his right to a reasoned decision. The applicant further alleged that there had been violation of his right of access to a court due to the fact that he had been ordered to pay TRY 660 as attorney’s fee (of the opposing party).
45. Article 48 § 2 of Law no. 6216, titled “Conditions for and examination of the admissibility of individual applications”, reads as follows:
“The Court can decide that applications which bear no importance as to the application and interpretation of the Constitution or regarding the definition of the limits of fundamental rights and freedoms and whereby the applicant has incurred no significant damages and the applications that are manifestly ill-founded are inadmissible.”
46. In the present case, the applicant maintained that he paid TRY 184 for the rectification fine that had been ruled as TRY 54.55; he was ordered to pay TRY 660 for the attorney’s fee of the respondent party in the action he brought against the collection procedure; and he also paid TRY 114.85 of court fee and TRY 100 of postage cost for the proceedings in question. Hence, the amount of pecuniary damage incurred by the applicant due to the alleged violations reached TRY 1,058.85 in total. The Court will now examine whether the application lacks constitutional and personal significance, which is part of the admissibility criteria.
i. Origin and Purpose of the Criterion
47. Article 148 § 3 of the Constitution safeguards everyone’s right to lodge an individual application. On the other hand, the aforementioned legal provision stipulates that the applications of little to no constitutional and personal significance may be dismissed without an examination on the merits. The origin of the said provision stems from the ever-present principle of De minimis non curat praetor, which states that the judge should not deal with minor/insignificant issues. One of the ideas behind this principle is to ensure that courts focus on their main functions and to prevent insignificant cases and applications from becoming an obstruction before that purpose by creating a heavy workload.
48. In comparative law, courts have been implementing the deep-rooted principle of De minimis non curat praetor with regard to disputes arising in various fields of law. The said principle is being applied in the field of human rights law as well due to the heavy workload faced by the international courts and the constitutional courts entrusted with the duty of reviewing individual applications or constitutional complaints and due to the difficulty they have in carrying out their main functions. Thus, such regulations were made in the laws setting out the functions and powers of the Federal Constitutional Court of Germany and the Constitutional Court of Spain as well as in the European Convention on Human Rights.
49. In our law, as well, there have been such long-standing regulations that do not allow pursuit of legal remedies in respect of certain disputes of little significance. These regulations were also made the subject of the Court’s rulings. In this connection, the Court has not found it unconstitutional that there is a rule which disallows pursuit of legal remedies against the imposition of judicial fines under a certain limit. In reaching this conclusion, the Court drew attention to the said rule’s aim of reducing the workload of appellate authorities. Having held that the right to a fair trial guaranteed by Article 36 of the Constitution could be limited with reference to Article 141 of the Constitution which requires proceedings to be concluded as quickly as possible, the Court arrived at the conclusion that the unavailability of pursuing legal remedies in respect of “offences of little significance” would not prejudice the principle of State of law and the right to a fair trial (see the Court’s judgment no. E.2011/64, K.2012/168, 1 November 2012).
50. Eventually, the Court has been authorised via Article 48 § 2 of the Law no. 6216 to declare inadmissible the applications that lack constitutional and personal significance with a view to ensuring that the Constitutional Court focuses on its main functions and preventing constitutionally and personally insignificant applications from creating a workload that would hinder the Court’s achievement of its main functions. In the lower Committee meetings on the Law no. 6216, in fact, it was indicated that similar regulations were in place in the international law and comparative law and they were aimed at relieving the courts of a workload.
51. In interpreting the conditions for applying the criterion of “lack of constitutional and personal significance”, the Court should take account of the purpose of this rule and, in that connection, the functions of the Constitutional Court with regard to individual applications should be set forth.
52. In the context of individual applications, the Court has two fundamental functions: objective and subjective. The Court’s objective function is to interpret the Constitution’s provisions that regulate the fundamental rights and freedoms and to supervise the implementation thereof. Its subjective role is to examine whether there has been a violation of the said provisions in the cases brought before it through individual applications and, where necessary, to award redress in favour of the applicant.
53. It must be acknowledged that the Court’s objective function, which involves interpreting and applying the law, is more at the forefront than its subjective function. Indeed, in view of the subsidiary nature of the individual application mechanism -one of its basic principles- and its reflection in Article 148 § 3 of the Constitution which sets out the requirement of exhaustion of all remedies before lodging an individual application, public authorities and inferior courts (i.e. courts of instance) play the primary role in terms of the protection of the fundamental rights and freedoms while the Court has a secondary role.
Therefore, the fundamental rights and freedoms should be protected at first hand by public authorities and inferior courts. If there is an allegation that these authorities have failed to offer a protection in line with the Constitution on a particular matter, then it will be possible to lodge an individual application. In such a case, the Court shall interpret the Constitution with regard to that matter and deliver a ruling. Thereafter the public authorities and the inferior courts shall be expected to shape their practices on the same matter within the framework of this interpretation. Otherwise, all disputes regarding the same matter would consequently be brought before the Court. It would be impossible to sustain an individual application mechanism functioning in such manner. The Court’s interpretation of the Constitution plays a crucial role in the continuity of the above-mentioned mechanism’s functionality. Its ability to fulfil its function in the best way possible depends on the Court concentrating its focus on matters in respect of which it has not previously interpreted the Constitution, rather than securing justice in each and every application.
(1) In General
54. Pursuant to Article 48 § 2 of Law no. 6216, the Court may declare inadmissible the applications that do not bear significance with regard to the interpretation and the implementation of the Constitution or determination of the scope and the limits of fundamental rights and where the applicant has not incurred a significant damage.
55. The above-mentioned provision has introduced an additional admissibility criterion that allows for non-examination of applications on their merits if they lack constitutional and personal significance. Thus, even if it meets all the other admissibility criteria and is capable of leading to finding of a violation at the stage of assessment on the merits, such an application as described in the Law may be declared inadmissible.
56. Besides, none of the fundamental rights or freedoms have been left out of the scope of this admissibility criterion. Accordingly, it is possible for applications concerning an alleged violation of any of the fundamental rights and freedoms to be declared inadmissible under this criterion. On the other hand, the nature of the allegedly-violated right or freedom must be taken into consideration when deliberating upon the conditions for application of the said criterion.
57. The Law lays down two conditions for declaration of inadmissibility with respect to applications devoid of constitutional and personal significance: the first condition that can be called as “constitutional significance” implies that “the application is not significant in terms of implementation and interpretation of the Constitution or the determination of the scope and limits of fundamental rights”; and the second condition that can be called as “personal significance” implies that “the applicant has not suffered a significant damage”.
58. The fact that the wording of the Law uses the conjunction “and” means that both conditions must be present for an individual application to be declared inadmissible through the application of the criterion of lack of constitutional and personal significance.
59. What the terms “constitutional significance” and “personal significance” imply has not been explicitly regulated in the Law but this issue has been left to the discretion of the Court. Therefore, the Court shall determine the principles surrounding the said conditions in its decisions where it applies the criterion of lack of constitutional and personal significance. In fact, during the lower Committee meetings of the Law no. 6216, it was indicated that the conditions in question were “vaguely” regulated in the text of the Law and that it would become concrete via the case-law of the Court as it had been in the examples taken from the international law and the comparative law.
60. While it is left to the Court’s discretion to determine whether the conditions to apply this criterion are present in every particular case, the due diligence to be displayed by the applicants in terms of proving the existence of constitutional and personal significance shall have a bearing on the Court’s assessment in this regard.
(2) Constitutional Significance
61. As regards the application of the condition of constitutional significance, the legislator defined three elements: (i) “being significant in terms of implementation of the Constitution”, (ii) “being significant in terms of interpretation of the Constitution”, and (iii) “being significant in terms of determination of the scope and limits of fundamental rights”. On the other hand, the interpretation of constitutional provisions related to fundamental rights and freedoms naturally involves the determination of the scope and the limits of fundamental rights and freedoms. For this reason, it should be acknowledged that the constitutional significance contains two basic elements, which can be described as being significant with regard to the “interpretation” and the “implementation” of the provisions in the Constitution concerning the fundamental rights and freedoms.
62. Given the nature of the work and the text of the law, the Court considers that it will be sufficient for an application to be significant in terms of one of these two elements.
63. There is no doubt that the element of being significant in terms of interpretation of constitutional provisions primarily encompasses the matters which have not yet been interpreted by the Constitutional Court through the individual application mechanism. Besides, even if the Court has previously interpreted the relevant provisions of the Constitution regarding a certain matter, it can feel the need to reinterpret them, taking into account the changing situations. In that case, an application concerning that matter should be considered as constitutionally significant. Changes in the social and economic circumstances, amendments to the legislation on fundamental rights and freedoms, or emergence of a discrepancy among the Court’s interpretations on a certain matter capable of leading to uncertainty with regard to the implementation of the Constitution may give rise to the need for re-interpreting the Constitution.
64. As for the element of being significant in terms of implementation of the Constitution, it reveals itself particularly in the discrepancy between the Court’s interpretation of constitutional provisions and implementation thereof carried out by public authorities and instance courts. However, each discrepancy in implementation does not imply that the application is “significant” in terms of implementation of the Constitution. For an application to be considered as significant in terms of implementation of the constitutional provisions concerning fundamental rights and freedoms, regard being had to the aim behind the introduction of the criterion of “lack of constitutional and personal significance”, the practices of public authorities and inferior courts on a certain matter must be different than the Court’s interpretation and that this discrepancy must be significant. In other words, since this criterion is in direct relation with the respect for the Constitution, only the discrepancies that would prejudice the respect for the Constitution must be deemed significant rather than any kind of discrepancy arising between the interpretation of the Court and the practices of public authorities and inferior courts.
65. In this scope, the fact that an application concerns a widespread practice that is different than the Court’s interpretations means that it is significant in terms of implementation of the Constitution. On the other hand, even if a practice that is different than the Court’s interpretations is not widespread, an application concerning thereof that is manifestly incompatible with the principle of respect for the Constitution should be considered as significant in terms of interpretation of the Constitution. In such cases, there might be a clear avoidance or, in some cases, even defiance of implementing the Constitution.
66. The condition of personal significance implies that the applicant has not suffered a major damage. This condition is related to the degree of the negative effect of the case at hand on the applicant’s personal situation.
67. Whether the arising personal damage is significant or not shall not be determined by the applicant’s subjective perception. This issue shall be considered by the Court by taking into account the particular circumstances of each case, including the applicant’s circumstances, and by acting on the basis of objective data.
68. Whether the damage may be measured in money shall not be determinative for the assessment of its significance. It is possible to apply the criterion of “lack of constitutional and personal significance” in respect of the damages which cannot be measured in money, as well. As regards the damages that can be measured in money, on the other hand, it is not possible to fix a certain amount to be taken as reference in respect of every applicant in the determination of the condition of personal significance. Such a certain amount may have varying degrees of significance for the applicants depending on the prevailing circumstances.
i. As regards the Constitutional Significance
69. The applicant maintained that the inferior court had not responded to his allegations concerning the expiry of the statutory limitation period in respect of the rectification fine due to his inability to be duly notified of the payment order regarding this fine. This allegation concerns the right to a reasoned decision, which is an aspect of the right to a fair trial.
70. In many applications it has handled, the Court has determined the scope and content of the right to a reasoned decision. The Court has underlined in its case-law that, in order to achieve a practical and effective fulfilment of the guarantees regarding human rights rather than leaving them in an abstract and theoretical manner, the inferior courts should not confine themselves to giving responses to allegations and defences merely in appearance and form; the responses given to allegations and defences must be well-founded, coherent and reasonable. The Court drew attention to the fact, especially where the expressly and concretely-raised allegations and defences have an effect on the outcome of the proceedings, i.e. capable of changing the result of the trial, courts are required to respond with reasonable grounds to such matters that are in a direct relation with the proceedings (see Muhittin Kaya and Muhittin Kaya İnşaat Taahhüt Madencilik Gıda Turizm Pazarlama Sanayi ve Ticaret Ltd. Şti., no. 2013/1213, 4 December 2013, §§ 25, 26; Vesim Parlak, no. 2012/1034, 20 March 2014, §§ 33, 34; Yasemin Ekşi, no. 2013/5486, 4 December 2013, §§ 56, 57; Sencer Başat and Others [Plenary], no. 2013/7800, 18 June 2014, §§ 31-39; Münür Ata, no. 2014/4958, 22 January 2015, §§ 37-43; Hikmet Çelik and Others, no. 2013/4894, 15 December 2015, §§ 54-59; and Şah Tarım İnş. Tur. Ltd. Şti., no. 2013/7847, 9 March 2016, §§ 36-48).
71. The applicant further complained about the violation of his right of access to a court due to the award of an attorney’s fee in favour of the respondent party. In many applications it has handled, the Court has determined the scope and content of the right of access to a court. Having held that the attorney’s fee constituted an interference with the right of access to a court, the Court stressed that the fee imposed must have a legal basis (see Yahya Özay, no. 2014/11141, 22 September 2016), pursue a legitimate aim, be proportionate and not impose a heavy burden on the applicant (see Serkan Acar, no. 2013/1613, 2 October 2013, §§ 38, 39; Özkan Şen, no. 2012/791, 7 November 2013, §§ 52-54, 58, 61-67; and Murat Daş, no. 2013/3063, 26 June 2014, §§ 43, 51-54). In the case of Ahmet Türko (no. 2013/5949, 12 March 2015), the Court found a breach of the applicant’s right of access to a court on the grounds that the attempts for notification of the payment order had been made to an address other than the known address and without having conducted sufficient research; the applicant had been prevented from using his right to bring an action against the notification as a result of the eventual recourse to the method of notification by way of announcement; and the applicant had had a limited right to bring an action against the payment order issued.
72. In the light of these explanations, it is understood that such complaints that are similar to the ones lodged under the present application have been previously examined by the Court and the relevant rules of the Constitution have been interpreted.
73. Although it may be asserted that the impugned practice of the inferior court -giving rise to both of the applicant’s complaints- differed from the interpretations adopted by the Court in its above-mentioned case-law, the Court considers that this difference does not point at a general problem.
74. Accordingly, the Court concludes that the present application concerning the alleged violations of the right to a reasoned decision and the right of access to a court, with respect to which it has a clear and frequently-applied case-law, does not point to a general problem. It also arrives at the conclusion that the present application has not been proven to carry any significance in terms of implementation and interpretation of the Constitution or determination of the scope and the limits of fundamental rights.
75. The items of damage allegedly incurred by the applicant in the instant case are the rectification fine, for which he paid TRY 184, and the attorney’s fee of TRY 660, which he has not yet paid according to his assertions. The applicant also claimed that he had spent TRY 114.85 in court fees and TRY 100 in postal costs for this set of proceedings.
76. The applicant did not mention any non-pecuniary damage or claim any non-pecuniary compensation. He only requested the Court to rule on a retrial and the individual application costs and the attorney’s fee for the individual application process be covered by the Treasury.
77. The issue that was of main importance for the applicant is the fact that he had failed to timely pay the rectification fine of TRY 54.55, to which there had been no impediment upon the notification of the final decision of the SMAC; upon which the debt was taken under a pursuit for collection by the tax office but the applicant was not duly notified over the course of that pursuit and, therefore, had to pay TRY 184 for this fine; and he had to bear a litigation cost of TRY 874.85 in the action he brought to challenge this matter.
78. In sum, the total amount of the pecuniary damage suffered by the applicant in the present case shall be acknowledged as TRY 1,058.85 by the Court. Having regard to the fact that the applicant, who was working as a self-employed lawyer, failed to make an explanation to indicate that such an amount seriously damaged his financial situation and how significant it was for him, the Court has concluded that this does not amount to a significant damage for the applicant.
79. In the light of the above, the Court has reached the conclusion that the application is not of significance in terms of implementation and interpretation of the Constitution and also that the applicant has not suffered a significant damage.
80. For these reasons, the Court must declare this part of the application, which is understood to be lacking of constitutional and personal significance, inadmissible without holding any examination in respect of the remaining admissibility criteria.
For these reasons, the Constitutional Court UNANIMOUSLY held on 1 December 2016 that
A. The applicant’s request for anonymity in public documents be ACCEPTED;
B. 1. The allegation concerning the imposition of a fine as a result of the dismissal of a rectification request be DECLARED INADMISSIBLE for incompatibility ratione temporis;
2. The allegations concerning the action brought against the collection procedure of the fine be DECLARED INADMISSIBLE for lack of constitutional and personal significance;
C. The court expenses be COVERED by the applicant;
D. A copy of the judgment be SENT to the Ministry of Justice.
