With the Decision ("Decision") dated 22.02.2022 and application numbered 2019/12190, published in the Official Gazette dated 20.04.2022 and numbered 31815, the Constitutional Court has decided that the right of access to the court has been violated as a result of the procedural rejection of the lawsuit filed by the employee in case the quantified claims are the subject of the action for unquantified debt.

In the same Decision, it was decided that the right to be tried within a reasonable time was violated due to the length of the proceedings.

The relevant Decision revealed that the view adopted by the 22nd Civil Chamber of the Supreme Court (closed) is not appropriate in the case of bringing an action for unquantified debt for quantified claims and that the case should be dismissed directly due to lack of legal interest. This situation also eliminates the dual distinction in the pilot decision of the 9th Civil Chamber of the Supreme Court will consider the cases brought before the 9th Civil Chamber of the Supreme Court as partial lawsuits while rejecting the cases brought before the 22nd Civil Chamber before 01.01.2021 after the closure of the 22nd Civil Chamber.

In the concrete case, the applicant employee started to work on 07.10.1987 in the Municipality and retired on 13.04.2020 and quit his job. Subsequently, in the report prepared by the labor inspector, it has been determined that the claims of 137 workers, including the applicant, arising from the collective bargaining agreement were paid incompletely. The applicant, who could not fully calculate his claims due to the fact that the documents related to the wage were not given to him, stated that he understood through the labor inspector's report that some of his claims were not paid. Afterward, the applicant filed a lawsuit in the Court of First Instance, both as an action for unquantified debt and a partial action, for the payment of the missing amount from the wages and bonus claims arising from the collective bargaining agreement. As a result of the proceedings, the Court of the First Instance rejected on procedural grounds due to the lack of legal interest. While the decision to accept the case partially by the Court of First Instance, upon the appeal of the Defendant, the 22nd Civil Chamber of the Supreme Court reversed the relevant decision due to the lack of legal benefit in accordance with the case law it adopted, the Court of First Instance complied with the appropriate reversal decision. Upon this, the applicant filed an individual application dated 05.04.2019, arguing that the lawsuit he filed has only accepted as an action for unquantified debt and rejected on procedural grounds, that there was a dispute between the 22nd and 9th Civil Chambers of the Supreme Court regarding the issue, and that the right to a fair trial has been violated due to this difference of opinion of the Chambers and that also his right to access to court has been violated.

The Constitutional Court considered that the rejection of the lawsuit filed by the applicant for the payment of his employment claims arising from the collective bargaining agreement, on the grounds that it had filed as an action for unquantified debt before the conditions were met, without examining the merits of the lawsuit due to the absence of the conditions, as an interference with his right of access to the court. In the reasoning of the Decision, it is considered that the procedural rejection of the lawsuit filed as an action for unquantified debt,

which should have been filed as an action for performance, is convenient in terms of achieving the aim of ensuring that the most effective lawsuit is filed for the settlement of the civil rights dispute. However, the Constitutional Court also underlined that in order for the intervention to meet the criterion of proportionality, it should be an ultimate remedy in a way that would harm the rights of the applicant the least. In this context, the Constitutional Court pointed out that there is no formal legal basis for the rejection of the lawsuit filed without any legal interest due to the absence of a cause of action. In its evaluation, the Constitutional Court stated that everyone has the right to claim and defend before the judicial authorities as a plaintiff or defendant and stated that the right of access to the court is within the scope of the right to a fair trial, which is guaranteed in accordance with Article 36 of the Constitution.

In addition, the Constitutional Court has mainly taken into account the proportionality principle criteria in Article 13 of the Constitution, titled "restriction of fundamental rights and freedoms," when assessing whether the applicant's right to access to a court has been violated. The rejection of the applicant's action for unquantified debt due to the absence of cause of action has been considered that it is not the ultimate remedy. In addition, it has been concluded that the rejection of the case without trying other possibilities to keep the lawsuit afloat has been accepted as a heavy choice in order to reach the target in terms of the dispute resolution, and it was not in accordance with the requirement condition. Therefore, it is understood that the violation resulted from the Decision of the Court of the First Instance.

The applicant also claimed that his right to be tried within a reasonable time had been violated due to the lengthy proceedings. In the concrete case, the Constitutional Court considered that the trial period of 4 years, 11 months, and 16 days was unreasonable. Consequently, it concluded that the applicant's right to be tried within a reasonable time had to be decided that it had been violated.

Finally, the applicant claimed that his property right had been violated due to his inability to access his claims arising from the collective bargaining agreement. Since the Constitutional Court concluded that the applicant's right of access to a court had already been violated, it did not consider it necessary to evaluate the claims within the scope of the property right.

In the light of the issues mentioned above, the Constitutional Court concluded that the applicant's right to access a court within the scope of his right to a judicial trial and his right to a trial within a reasonable time had been violated. It held that there had been a legal interest in a retrial in order to eliminate the consequences of the violation of the right of access to the court. In addition, the Constitutional Court ordered non-pecuniary compensation in the amount of 10.000,00 TL in favor of the applicant.

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Authors: Bilge Derinbay, Hande Ülker Pehlivan

Contact: [email protected]