T.R. CONSTITUTION
Part 2
Base: 2015/13950
Decision: 2018/
Decision Date: 24.05.2018
DECISION OF THE CONSTITUTIONAL COURT DATED 24/5/2018 AND NUMBERED 2015/13950 (INDIVIDUAL APPLICATION)
(ECHR Art. 6) (2709 A.C. Art. 2, 13, 36) (6100 A.C. Art. 27, 61, 63, 66, 68) (2577 A.C. Art. 31) (6216 A.C. Art. 50) (GOLDER – UNITED KINGDOM CASE) (SEFER YILMAZ AND MERYEM YILMAZ – TURKEY CASE) (MY WIFE – TURKEY CASE) (MENEMEN CHAMBER OF MINIBUSES – TURKEY CASE) (TAHİR CANAN – TURKEY CASE) (ANY. MAH. 10.02.2016 T. 2015/96 E. K.2016/9 K.)
RGT: 29.06.2018
RG NO: 30463
CHAPTER TWO
DECISION
SEMA CALGAV AND OYA YAMAK APPLICATION
Application Number: 2015/13950
Decision Date: 24/5/2018
President: Engin YILDIRIM
Members: Osman Alifeyyaz PAKSÜT
Celal Mümtaz AKINCI
Muammer TOPAL
M.Emin KUZ
Reporter: Gülbin AYNUR
Applicants: 1. Sema CALGAV
Oya YAMAK
Deputy: Atty. Mehmet Suat KAYIKÇI
I. SUBJECT OF THE APPLICATION
1. The application relates to the claim that the right of access to the court was violated due to the failure to notify the owner of the lawsuit filed against the administration by a third party, requesting the cancellation of the zoning plan for a real estate, and to participate in the proceedings.
APPLICATION PROCESS
The application was made on 19/8/2015.
The application was submitted to the Commission after a preliminary administrative review of the application form and its annexes.
The Commission decided that the admissibility review of the application would be carried out by the Department.
It was decided by the Head of Department to review the admissibility and merits of the application together.
A copy of the application documents has been sent to the Ministry of Justice (Ministry) for information. The Ministry did not express an opinion.
III. EVENT AND FACTS
The events, as expressed in the application form and its annexes, are briefly as follows:
The applicants are the 1/4 share owners of a real estate subject to joint ownership located in the Maltepe district of Istanbul.
The real estate in question is reserved as “fuel station area” in the 1/5000 scale master zoning plan with the approval date of 4/5/2006 and the 1/1000 scale implementation zoning plan with the approval date of 26/2/2007 prepared for the specified settlement.
After completing the necessary license procedures in terms of zoning legislation, the applicants and their stakeholders rented the real estate to a company engaged in the purchase and sale of petroleum products (tenant Company) to be operated as a fuel station, with the lease agreement signed on 18/12/2007. The lease agreement is valid until 31/12/2023.
Another company (plaintiff Company) operating a fuel station in the same neighborhood filed a lawsuit against the Istanbul Metropolitan Municipality and Maltepe Municipalities (defendant administrations) in the administrative court, requesting the cancellation of the master and implementation zoning plans for the specified settlement in terms of the parts of the real estate numbered 73, of which the applicants are shareholders, that are reserved for the fuel station area.
The tenant company participated in this case, which was heard at the Istanbul 1st Administrative Court (Court), as an intervener alongside the defendant administrations.
The court canceled the development plans in question with its decision dated 24/2/2009. In the justification of the decision, it was stated that in accordance with the legislative provisions regarding fuel stations, fuel sales stations that are intended to be opened and operated with applications made after 19/6/1996 are required to comply with the distance requirement. Based on the report prepared as a result of the on-site discovery and expert examination, it was stated that there was no legality in terms of the parcel in question in the zoning plans in question, which were understood to have been established without taking into account the distance conditions determined in accordance with the legislation regarding the fuel stations.
The decision was overturned by the decision of the Sixth Chamber of the Council of State (Department) dated 22/12/2009 upon the appeal of the defendant administrations and the intervener. In the justification of the decision to overturn, it was determined that the lawsuit filed against the master zoning plan was not within due time. Although the first instance court should have made a decision considering this issue, since the implementation zoning plan was also in compliance with the master zoning plan, which was not the subject of a lawsuit in due time, it was stated that the decision subject to appeal regarding the cancellation of the plans in question was not legally correct.
The Plaintiff Company resorted to rectification of the decision against the reversal decision. With its decision dated 11/9/2013, the Chamber accepted the request for correction and approved the decision of the first instance court.
After the trial process regarding the zoning plans was finalized in this way, the plaintiff Company applied to the Municipality on 26/2/2014, requesting the cancellation of the licenses of non-sanitary establishments issued in the name of the tenant Company and the suspension of the activities of the gas station, on the grounds that it was contrary to the current zoning status; His application was rejected with no response. The Plaintiff Company filed a lawsuit at the Istanbul 4th Administrative Court requesting the annulment of the implied rejection. Pursuant to the decision of the said Court dated 7/4/2015 to annul the implied rejection in question, the operating license of the tenant Company was cancelled.
Sema Calgav, one of the applicants, applied to the Istanbul Metropolitan Municipality on 29/6/2015 and asked to be informed whether any lawsuit has been filed for the cancellation of the zoning plan for her real estate, if a lawsuit has been filed, what the court and file number information are, and the outcome of the case.
In the response letter of Istanbul Metropolitan Municipality dated 22/7/2015; He informed the applicant that the zoning plans for the real estate were canceled by the judicial decision, therefore the parcel in question became unplanned, but the re-planning process for the real estate was initiated and this process continues.
The said letter was notified to the said applicant on 22/7/2015.
Applicants made an individual application on 19/8/2015.
IV. RELEVANT LAW
A.National Law
The relevant part of Article 31 of the Administrative Procedure Law No. 2577 dated 6/1/1982 is as follows:
“In matters for which there is no provision in this Law: … participation of third parties in the case, notification of the case, … the provisions of the Code of Civil Procedure shall apply. However, the notification of the case shall be made ex officio by the Council of State, the court or the judge.”
“The right to be heard” is regulated in Article 27 of the Second Chapter titled “Principles Governing Trial” of the Code of Civil Procedure No. 6100 dated 12/1/2011. The said article is as follows:
“(1) Parties to the case, interveners and other interested parties in the trial have the right to be heard in connection with their own rights.
(2) This right;
a) To have information about the trial,
b) The right to explanation and proof,
c) The court evaluates the statements taking into account and the decisions are concretely and clearly justified,
includes.”
Paragraph (1) of Article 61 of Law No. 6100, titled “Notification and conditions”, is as follows:
“If one of the parties loses the case, they can report the case to the third party or the third party until the investigation is concluded, if they think that the third party will have recourse against them.”
Paragraph (1) of Article 63 of Law No. 6100, titled “Status of the person notified”, is as follows:
“The person to whom the case is notified may participate in the case alongside the party who has a legal interest in winning the case.”
Article 66 of Law No. 6100, titled “Accessory intervention”, is as follows:
“(1) The third party may take part in the case as an accessory intervener until the investigation is concluded, in order to assist and support the party that has a legal interest in winning the case.”
Paragraph (1) of Article 68 of Law No. 6100, titled “Status of the accessory intervener”, is as follows:
“If the request for intervention is accepted, the intervener can only pursue the case from the point at which it is located. The intervener may put forward claims or means of defense that are in the interest of the party in whose presence he joins, and may take all kinds of procedural actions that are not contrary to his actions and explanations.”
International law
European Convention on Human Rights
The relevant part of paragraph (1) of Article 6 of the European Convention on Human Rights (Convention) is as follows:
“Everyone has the right to have his case heard by a court which shall decide on … disputes concerning his civil rights and obligations…”
Case law of the European Court of Human Rights
The European Court of Human Rights (ECHR) stated that although paragraph (1) of Article 6 of the Convention does not explicitly mention the right of access to the court or judicial authority, when the terms used in the article are taken into consideration together with their context as a whole, it is concluded that it also guarantees the right to access the court (Golder v. United Kingdom, App. No: 4451/70, 21/2/1975, §§ 28-36). According to the ECHR, the right to access the court is included in paragraph (1) of Article 6 of the Convention. This inference is not an expansive interpretation that imposes new obligations on the Contracting States, but is based on reading the wording of the first sentence of paragraph (1) of Article 6 together, taking into account the aims and objectives of the Convention and the general principles of law. Consequently, paragraph (1) of Article 6 of the Convention provides that everyone has the right to bring claims regarding civil rights and obligations before the courts (Golder v. the United Kingdom, § 36).
ECHR; It accepts that the right to access to court, which constitutes an element of a fair trial, is not absolute, and that this right, which by its nature requires the state to regulate, can be limited to a certain extent. However, the ECHR states that these restrictions should not restrict or weaken the person’s access to the court in a way and to such an extent that they would damage the essence of the right. According to the ECHR, restrictions that do not pursue a legitimate aim or do not establish a reasonable relationship of proportionality between the means applied and the aim sought to be achieved are not compatible with the first paragraph of Article 6 of the Convention (Sefer Yılmaz and Meryem Yılmaz / Turkey, App. No: 611/12, 17/11/2015, § 59; Eşim / Turkey, App. No: 59601/09, 17/9/2013, § 19; Edificaciones March Gallego S.A. / Spain, App. No: 28028/95, 19/2/1998, § 34).
According to the ECHR, the absence of a law preventing access to domestic remedies may not always be sufficient to fulfill the requirements of paragraph (1) of Article 6. Considering the function of the rule of law in a democratic society, it is understood that the degree of access provided by the legislator should also be sufficient to secure the “right to court” of individuals. In order for the right of access to be effective, the individual must have clear and practical opportunities to express his/her arguments against the action or procedure that constitutes an interference with his/her right (Bellet v. France, App. No: 23805/94, 4/12/1995, § 36).
In the case subject to the Menemen Minibus Operators Chamber v. Turkey (App. No: 44088/04, 9/12/2008, §§ 4-11) decision, in which the ECHR examined the notification institution in the administrative jurisdiction, a regulatory action was issued by the governor’s office providing for the issuance of temporary route authorization certificates for certain categories of vehicles, provided that they are insured. This regulatory action directly concerns the Menemen Minibus Operators Chamber operating on the Menemen-İzmir line. Upon the lawsuit filed by the Menemen Passenger Buses Motor Vehicles Cooperative against the governorship against the said regulatory action, the administrative court annulled the regulatory action. The Governorship appealed the decision. Menemen Minibus Operators Chamber submitted a petition for intervention during the appeal phase. Shortly after the Council of State accepted the applicant’s request for intervention on 16/3/2004, it approved the decision of the first instance court. Although the Governorship issued a new regulatory action allowing the applicant’s vehicles on 7/5/2004, this action was canceled by the administrative court on 11/1/2005. On 23/5/2005, the applicant was notified to terminate his transportation activities.
On the other hand, it should be decided that the application regarding the violation of the right to access to the court, which is clearly not devoid of basis and that there is no other reason to decide its inadmissibility, is admissible.
Essentially
a. Scope of the Right and Benefit of Intervention
In the first paragraph of Article 36 of the Constitution, it is stated that everyone has the right to claim and defend before the judicial authorities as plaintiff or defendant. Therefore, the right to access the court is an element of the freedom to seek justice guaranteed in Article 36 of the Constitution. On the other hand, in the justification for adding the phrase “fair trial” to Article 36 of the Constitution, it was emphasized that the right to a fair trial, which is guaranteed by the international agreements to which Turkey is a party, was included in the text of the article (Özbakım Özel Sağlık Hiz. İnş. Tur. San. ve Tic. Ltd. Şti., B. No: 2014/13156, 20/4/2017, § 34).
The freedom to seek justice, guaranteed in Article 36 of the Constitution, is not only a fundamental right, but also one of the most effective safeguards that ensure the proper enjoyment and protection of other fundamental rights and freedoms. In this regard, in order for the case to be heard by a court and for the person to benefit from the guarantees within the scope of the right to a fair trial, the person must first be given the opportunity to put forward his/her claims. In other words, if there is no case, it is not possible to benefit from the guarantees provided by the right to a fair trial (Mohammed Aynosah, App. No: 2013/8896, 23/2/2016, § 33).
In its evaluations within the scope of individual application, the Constitutional Court stated that the right to access the court means being able to bring a dispute before the court and requesting that the dispute be resolved effectively (Özkan Şen, App. No: 2012/791, 7/11/2013, § 52).
In addition to being able to file a lawsuit against transactions that affect their interests, providing individuals with the opportunity to participate in a lawsuit filed by third parties in which they are not a direct party but which affects their interests as a result, so that they can express their claims and defenses, is one of the guarantees that should be considered within the scope of the right to access the court. In this respect, people whose interests will be affected by the outcome of a case should be enabled to have information about this trial, to make statements on the issues they think are necessary for the resolution of the dispute and effective on the outcome, and to present evidence to prove their claims. This issue is also related to the principle of equality of arms and adversarial trial, as it will enable the judicial authorities to make a reasoned decision after considering all the data and making an evaluation. As a matter of fact, in Article 27 of Law No. 6100, a regulation that is compatible with the guarantees of the right to access the court has been introduced and it has been stated that the parties to the case, as well as the interveners and other interested parties in the trial, have the right to be heard in connection with their own rights. Therefore, the court; will not be able to make an evaluation on the merits of the case without giving the parties to the case, the interveners, and other relevant parties in the trial the opportunity to exercise their right to defense (Yusuf Bilin, App. No: 2014/14498, 26/12/2017, § 44; for similar evaluations, see Mehmet Ali Bedir and Tevfik Günay, App. No: 2013/4073, 21/1/2016, § 35).
Failure to ensure that an individual participates in a case that affects his/her interests by not being informed about the outcome and depriving him of the opportunity to put forward his arguments before the court constitutes an interference with the right to access the court.
In the case subject to the individual application, there is an administrative case in which the zoning plans for the real estate owned by the applicants are in dispute. In this case filed by a company, it was requested to cancel the parts of the master and implementation zoning plans regarding the separation of the real estate as a gas station area. As a result of the trial, the development plans in question were canceled. It is seen that the mentioned annulment provision has a direct impact and consequences on the applicants, as a matter of fact, in accordance with the said decision, the real estate, which the applicants own in shares, was excluded from being a gas station area in the zoning plan and was included in the re-planning process. In this respect, it was concluded that there was an intervention in the applicants’ right to access the court due to their failure to participate in the trial process of an administrative case in which they were directly affected by the outcome.
b. Whether the Intervention Constitutes a Violation
The relevant part of Article 13 of the Constitution is as follows:
“Fundamental rights and freedoms, … can only be limited by law and based on the reasons specified in the relevant articles of the Constitution. These restrictions, … cannot be contrary to the principle of proportionality.”
If the above-mentioned intervention does not comply with the conditions specified in Article 13 of the Constitution, it will constitute a violation of Article 36 of the Constitution.
For this reason, it must be determined whether the intervention complies with the conditions stipulated in Article 13 of the Constitution, which complies with the concrete application, is prescribed by law, is based on a justified reason, and is not contrary to the principle of proportionality.
i.Legality
Article 31 of Law No. 2577 states that notification of the case will be made ex officio by the court. It is understood that the said regulation also includes the discretionary power granted to the judicial authority regarding whether or not to notify the case to a third party. In the concrete case, it is seen that the applicants were not able to participate in the trial process as a result of the courts of first instance exercising their discretionary power not to notify the applicants of the case. Considering that the court’s practice in question is based on Article 31 of Law No. 2577, it has been concluded that there is a legal basis for the intervention regarding the applicants’ right to access the court.
ii. Legitimate Purpose
Although Article 36 of the Constitution does not provide any limitation for the freedom to seek justice, it cannot be said that this is an absolute right that cannot be limited in any way. It is accepted that rights for which no specific reason for limitation is foreseen also have some limits arising from the nature of the right. In addition, although there is no reason for limitation in the article regulating the right, it may be possible to limit these rights based on the rules contained in other articles of the Constitution. It is clear that some of the regulations regarding the scope of the right to sue and the conditions of use are rules that reveal the inherent limits of the freedom to seek justice and determine the norm area of the right. However, these restrictions cannot be contrary to the guarantees contained in Article 13 of the Constitution (AYM, E.2015/96, K.2016/9, 10/2/2016, § 10; Ertuğrul Dalbaş, B. No: 2014/7805, 25/10/2017, § 58; Osman Uslu, B. No: 2014/9414, 26/10/2017, § 75).
Notification of the case is a procedural law institution that ensures that the individual is informed of a case to which he is not a party, but whose outcome affects his interests, in order to enable him to exercise his rights through intervention and other means. However, in order to ensure that the trials are carried out within a reasonable time, in an orderly manner and without unnecessary expenses, and thus to realize the principle of procedural economy, notification of the case is subject to certain conditions and procedural rules. Observing procedural economy in determining trial procedures, thus ensuring good justice administration and realizing the public interest is one of the requirements of the rule of law principle regulated in Article 2 of the Constitution. Therefore, it is possible to subject the notification of the case to certain conditions and procedural rules, taking into account the principles of procedural economy and good justice administration (Yusuf Bilin, § 54).
However, it should not be overlooked that individuals’ ability to express their claims and defenses in a lawsuit filed by third parties but whose outcome affects their interests is also a requirement of the right to access the court. In such a case, public authorities are expected to maintain a reasonable balance between the public interest in procedural economy and the individual benefit of individuals in exercising their right of access to court. In cases where the individual’s personal interest in accessing the court clearly predominates, it may become debatable whether restricting access to the court on the grounds of procedural economy has a legitimate aim. In other words, in such cases, it may not be possible to say that Article 2 of the Constitution allows limiting the right of access to court (Yusuf Bilin, § 55).
In the concrete case, considering that the cancellation of the zoning plans for the real estate they own directly affects the interests of the applicants, serious doubts arise that the public interest in ensuring procedural economy in the intervention in the right of access to the court by not notifying the applicants of the case is of such importance and weight that it requires ignoring the individual interests of the applicants in participating in the case. For this reason, it is considered that it would be more appropriate to consider the existence of a legitimate purpose together with the proportionality of the intervention below.
iii. moderation
(1) General Principles
The principle of proportionality consists of three sub-principles: “convenience”, “necessity” and “proportionality”. “Adequacy” means that the envisaged intervention must be suitable to achieve the aim to be achieved, “necessity” means that the intervention is mandatory in terms of the aim to be achieved, that is, it is not possible to achieve the same goal with a lighter intervention, and “proportionality” means that a reasonable balance must be observed between the intervention made to the individual’s right and the aim to be achieved (Mehmet Akdoğan et al., App. No: 2013/817, 19/12/2013, § 38).
Proportionality, the third sub-principle of proportionality, requires ensuring a fair balance between the protection of the public interest and the rights and freedoms of the individual. If the proposed measure puts the individual under an unusual and excessive burden, it cannot be said that the intervention is proportionate and therefore proportionate. In this respect, it is necessary to determine whether an excessive and disproportionate burden is imposed on the applicants by the measure implemented.
Constitutional Court; In his evaluations within the scope of individual application, he stated that restrictions that prevent a person from applying to the court or make the court decision meaningless, in other words, significantly ineffective the court decision, may violate the right to access the court (Özkan Şen, § 52).
Prescribing certain conditions and procedural rules for third parties to participate in a lawsuit that affects their interests does not constitute a violation of the right to access the court, as long as these conditions and rules do not make it impossible or excessively difficult to participate in the lawsuit. However, as a result of the incorrect application of these conditions and rules by the judicial authority, which is clearly contrary to the law, preventing people who want to protect their interests in disputes affecting them from participating in the case may violate the right of access to court. For this reason, when examining whether these conditions are met and when applying procedural rules, courts must avoid attitudes, comments and evaluations that may harm the fairness of the trial (Yusuf Bilin, § 51).
In Article 31 of Law No. 2577, it is stated that the Code of Civil Procedure will be applied regarding the participation of third parties in the case and notification of the case, but it is envisaged that the notification of the case will be made ex officio by the court. In Article 66 of Law No. 6100, it is stipulated that the third party can take part in the case as an accessory participant until the end of the investigation, in order to assist and side with the party that has a legal interest in winning the case. In terms of cases pending in the administrative judiciary, where the legality of the administration’s transactions and actions are audited, it is fair to ensure that third parties who claim rights on the subject of the dispute or who have a legal interest in one of the parties winning the case, participate in the case not only formally but also effectively. It is an important institution to ensure the guarantee of the right to trial. The most important consequence of the use of this right in terms of procedural law is that it is necessary to inform third parties who have a legal interest in participating in the case, as their interests will be directly or indirectly affected by the decision to be made in the case (Yusuf Bilin, § 59).
At this point, it should be noted that the regulation included in Article 31 of Law No. 2577, which requires the court to notify the case ex officio, cannot be interpreted as meaning that it is mandatory for the administrative judicial authority to notify all relevant persons of an administrative case it is considering. Therefore, the discretionary power in the operation of the procedural provisions regarding the notification institution introduced to third parties who may be affected by the outcome of the case in order to be able to put forward their arguments before the court in connection with their own rights belongs to the courts of first instance. In this context, it is essentially the duty of the first instance courts to evaluate whether the third party will be affected by the outcome of the case under the specific circumstances of each concrete case and whether there is a legal benefit in participating in the case.
For the reasons explained above, it must be decided that the applicants’ right to access the court, guaranteed by Article 36 of the Constitution, has been violated.
In Terms of Article 50 of Law No. 6216
Paragraphs (1) and (2) of Article 50 of the Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court dated 30/3/2011 are as follows:
“(1) At the end of the main examination, it is decided whether the applicant’s right has been violated or not. In case of a violation decision, what needs to be done to eliminate the violation and its consequences is decided…
(2) If the detected violation results from a court decision, the file is sent to the relevant court for a retrial to eliminate the violation and its consequences. In cases where there is no legal benefit in a retrial, compensation may be awarded in favor of the applicant or a lawsuit may be filed in general courts. “The court responsible for retrial decides on the file, if possible, in a way that eliminates the violation and its consequences declared by the Constitutional Court in its violation decision.”
The applicants requested a determination of violation and a decision to hold a retrial.
In the application, it was concluded that the right of access to court within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution was violated.
Since there is a legal benefit in holding a retrial to eliminate the consequences of the violation of the right to access the court, it should be decided that a copy of the violation decision be sent to the Istanbul 1st Administrative Court for a retrial.
It should be decided that a total of 2,206.90 TL trial expenses, consisting of 226.90 TL fee and 1,980 TL attorney fee determined from the documents in the file, be paid jointly to the applicants.
PROVISION VI
For the reasons explained;
A. THAT the allegation that the right to access the court has been violated is ACCEPTABLE,
B.The right of access to court within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution has been VIOLATED,
C. A copy of the decision SHOULD be sent to the Istanbul 1st Administrative Court (E.2007/1256, K.2009/243) for a retrial to eliminate the consequences of the violation of the right to access the court,
D. A total of 2,206.90 TL of trial expenses, consisting of 226.90 TL of fees and 1,980 TL of attorney’s fees, TO BE PAID JOINTLY TO THE APPLICANTS,
E. Payment will be made within four months from the date of application of the applicants to the Ministry of Finance following the notification of the decision, and in case of delay in payment, legal INTEREST WILL BE APPLIED for the period from the date of expiration of this period until the date of payment,
F. It was UNANIMOUSLY decided on 24/5/2018 to SEND a copy of the decision to the Ministry of Justice.