Incidents Subject to The Decision
The Applicant has filed an action for fixing of period of service by stating that he has been employed as uninsured and uninterruptedly between 01.06.1990 and 20.06.2003 and that no notification has been made to SSI. The case has been partially accepted and partially rejected by the local court as based on the adjacent workplace witnesses and expert report.
The decision has been appealed and the 10th Civil Chamber of the Court of Cassation has removed the decision with its decision dated 27.12.2013 by stating that the judgement was based on incomplete research.
After the decision of reversal, the Court has complied with this reversal decision and with its decision made on 20.10.2015, it has been decided to determine that the applicant was working with a minimum wage between 10.04.1992 – 20.06.2003 and to reject the requests for surplus. This judgement has also been appealed and the Court of Cassation has reversed the judgement on 12.04.2016 due to the failure to fulfil the requirements of the decision of reversal, despite compliance with the decision of reversal. This decision of reversal and notification indicating the hearing date have been notified to the parties.
At the first hearing held on 17.11.2016 after the reversal, the counsels of the parties were present and the Court has decided to collect the missing documents in accordance with the decision of reversal and to have the next hearing at 10.30 on 19.01.2017.
On this date, The Court has stated that the counsel of the applicant was not present and did not report any excuse and the Court has decided on the cancelation of the case by stating the following; “It is understood that the claimant’s counsel was present at the previous hearing, the hearing’s time was 10.30, the time is now 11.20 and that the claimant or the claimant’s counsel did not come to the court although they have been called many times by bailiff.” Three months have passed since the case has been cancelled and it has been decided to accept the filed case as not-filed on 20.04.2017. The justified decision has been notified to the counsel of the applicant on 03.05.2017.
The applicant’s counsel has appealed the judgement with the petition dated 11.05.2017 and has claimed that the hearing has been mistakenly missed due to the excessive intensity on specified date, that the record that the case has been cancelled was not saved in the UYAP system, that they could not learn the outcome of the case in time and therefore they could not renewal the case, that they have pursued the case for ten years and this judgement has entrenched upon the applicant’s rights. The Court of Cassation has approved the decision of the local court with its decision dated 12.10.2017 and the final decision has been notified to the counsel of the applicant on 01.11.2017.
The applicant has made an individual application on 23.11.2017.
Examination of Supreme Court
- About the Claim of Violation of the Right to Access to the Court
The Applicant has claimed that the right to fair trial has been violated by stating that despite there was enough advance on expenses within the file, the last minutes of hearing has not been notified to him, that therefore it has been decided to accept the filed case as not-filed, that it has caused a loss of a right. Within the scope of the applicant’s claims, the Supreme Court has made an examination in terms of the right to access to the court within the scope of right to fair trial regulated under the Article 36 of the Constitution.
The Article 36/1 of the Constitution states that everyone has the right to make claims and defence before the judicial authorities. The right to access to the court is an element of the right to legal remedies guaranteed in accordance with Article 36 of the Constitution. In this present case, it is seen by the Supreme Court that the case has been cancelled on the grounds that it was not pursued and that there was an interference to the applicant’s right to access to court as a result of the decision of accepting the filed case as not-filed since it has not been renewed in time.
The Supreme Court has stated in its decision that in order for this interference with the right to access to the court to be in accordance with the Constitution, it should fulfil the conditions of lawfulness, legitimate aim and proportionality stated in the Article 13 of the Constitution.
In this present case, the Court’s decision to accept the filed case as not-filed is based on Article 150 of the Civil Procedure Law and it is seen that it has a legal basis in this context.
The Supreme Court has stated in its decision that deciding to accept the filed case as not-filed is a regulation made for the purpose of resolving the disputes with the least cost and as soon as possible by ensuring pursuing the cases in which the parties have the power of disposition and that it was based on a constitutionally legitimate aim as completion of the trial within reasonable periods is aimed.
In accordance with the Article 13 of Constitution, the limitations mentioned within the scope of the principle of proportionality should not make access to the court impossible or excessively difficult. The intervention foreseen under the proportionality principle should be suitable for achieving the desired goal, the intervention should be mandatory in terms of purpose and there should be a reasonable balance between the right of the individual and the purpose to be achieved by the intervention. The Supreme Court stated has that “the issue that needs to be examined in the application is determining whether the consequences of not notifying the hearing date to him in accordance with the practice of the court caused a heavy burden on the applicant or not.” In the incident, it has been stated that the counsel of the applicant has attended the first hearing and was informed of the new hearing date, that the counsel has not attended the second hearing and has not submitted any excuse and that its results were predictable by him. It has further stated that it was clear that the Court had no obligation to notify the minutes of the hearing regarding the cancellation of the file which is not pursued to the claimant. In this context, it has been concluded that there was no violation in the proceedings subject to the application in terms of the right to access the court. Within this scope, it has been decided that the application was inadmissible as it was manifestly ill-founded.
- About the Claim of Violation of Right to Trial within a Reasonable Time
It is foreseen for the inadmissibility decision made for individual applications pending before the Supreme Court due to the non-exhaustion of the remedies that upon the application to be made within three months following the notification of the decision shall be examined by the Ministry of Justice Human Rights Compensation Commission (Compensation Commission).
The Constitutional Court has made an inadmissibility decision due to the non-exhaustion of the remedies in its previous decisions by concluding that the examination of the application made at first glance, which has the capacity to offer a chance of success and provide adequate relief in relation to violation claims, without applying to the Compensation Commission, was incompatible with the secondary nature of the individual application. In line with this decision, it has been stated that the remedies were not exhausted in terms of this application, too. In this context, it has been decided that the application was inadmissible due to the non-exhaustion of the remedies.