31/10/2019
Individual Application 96/19
Press Release concerning the Judgment Finding a Violation of the Right of Access to a Court due to Dismissal of Appeal Request
On 25 September 2019, the Second Section of the Constitutional Court found a violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution in the individual application lodged by Nihal Uslukol (no. 2016/73086).
The Facts
Enforcement proceedings were instituted against the company of which the applicant was a shareholder. The applicant brought an action before the enforcement court, claiming that the sale announcement of the property that was decided to be sold upon the finalization of the enforcement proceedings was not duly notified to the company. In this respect, she requested that the irregular tender be cancelled, as well as the process related to the notification of the payment order be annulled.
The enforcement court dismissed the applicant’s case as being time-barred. Upon the applicant’s appeal, the Court of Cassation quashed the enforcement court’s decision. Following the subsequent request for rectification, the Court of Cassation once again quashed the enforcement court’s decision but relying on different grounds. The enforcement court, complying with the Court of Cassation’s judgment, dismissed the case on the merits on 9 December 2015. It was stated that the reasoned judgment could be appealed within ten days following its notification to the applicant. On 30 December 2015, the reasoned judgment was served on the applicant. The applicant’s lawyer appealed against the judgment on 11 January 2016.
The Court of Cassation dismissed the applicant’s appeal against the decision that was read out to her at the hearing dated 9 December 2015, stating that the she appealed on 11 January 2016, falling outside the statutory time-limit. It also rejected the applicant’s subsequent request for rectification.
The Applicant’s Allegations
The applicant maintained that her right of access to a court had been violated for dismissal of her appeal as being time-barred.
The Court’s Assessment
As the essence of the applicant’s complaint concerned the Court of Cassation’s refusal to examine the merits of her appeal, her claim was examined within the scope of the right of access to a court that is one of the safeguards of the right to a fair trial.
The applicant claimed that although she had appealed within the statutory period, the Court of Cassation dismissed her appeal, which hindered her right of appeal. It is clear that dismissal of the applicant’s appeal as being time-barred constituted an interference with her right of access to a court. The impugned interference would be in breach of Article 36 of the Constitution, unless it complied with the conditions set out in Article 13 of the Constitution.
In the present case, it is clear that the statutory period for appeal was ten days to run from the date on which the decision was pronounced or served on the applicant in accordance with the relevant Law. In the present case, the matter is the date -namely the pronouncement of the decision or its notification to the applicant- to be taken as a basis for running of the time limit for appeal.
It is obvious that a judgment that does not fulfil the requirements prescribed in Article 297 of the Law no. 6100 cannot be considered to have been pronounced properly. Accordingly, the appeal period cannot start to run before the reasoned judgment is served on the applicant. This is also necessary for ensuring the effectiveness of the right of appeal. As a matter of fact, in the present case, the first instance court stated that as its reasoning was not announced yet, the judgment could be appealed within ten days following its notification.
Considering that the courts are obliged to provide the parties with the accurate information regarding the appeal process and the time limit prescribed for it in accordance with the relevant Law and case-law, it is reasonable that the applicant appealed relying on the fact that the appeal period would start to run from the date on which the judgment would be served on her as stated in the short and reasoned decision of the first instance court.
The appellate authority’s interpretation that the appeal period would start to run from the date on which the judgment was read out although its reasoning was not announced by the first instance court had been unpredictable for the applicant and therefore imposed a heavy burden on her. Accordingly, the burden imposed on the applicant had been disproportionate to the legitimate aim pursued. Hence, the said interference had not been proportionate.
Consequently, the Court has found a violation of the right of access to a court safeguarded by Article 36 of the Constitution.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.
