Press Release No: Individual Application 47/16
28.12.2016

PRESS RELEASE CONCERNING THE DECISION OF SUAT BİRCAN FOR BEING OUT OF TIME

The Constitutional Court held, at its plenary meeting on 1/12/2016, with regard to the individual application lodged by Suat Bircan (application no. 2014/16800) that the application must be declared inadmissible for being out of time without any examination in respect of the other admissibility criteria.

The Facts

While the applicant was working in the Toroslar Elektrik Dağıtım A.Ş. as a personnel not being subject to the Collective Agreement, he was subsequently included in the scope of the Collective Agreement. He accordingly brought an action for his receivables against the employer before the 1st Chamber of the Adana Labour Court (“the Court”) by maintaining that his daily wage was reduced for being subject to the Collective Agreement and requested the collection of his labour receivables incurring due to both his service contract and the provisions of the Collective Agreement applicable in the workplace. 

Having heard the applicant’s witnesses and obtaining the documents pertaining to the action, the Court received an expert report with respect to the impugned matter of dispute.

The Court decided to dismiss the action by virtue of its decision of 10/7/2012 on the grounds that the applicant became a member of the labour union which was a party to the Collective Agreement; that he was accordingly deemed to accept the wage specified in the Collective Agreement; and that the allegation that the service contract had been signed under duress could not be substantiated.

Upon the appeal by the applicant, this decision was upheld by the judgment of the 22nd Civil Chamber of the Court of Cassation dated 26/3/2013. It has been observed that the Court of Cassation’s judgment and the case-file were received by the Court on 9/4/2013; and that the applicant lodged an individual application on 23/10/2014.

The Applicants’ Allegations

The applicant maintained that he had been included in the scope of the Collective Agreement, to which the union of which he had made to become a member under duress and by threat was a party, and his daily wage had been reduced; that the action for collection of his labour receivables incurring for this reason had been dismissed; that another action, which had been the same with his action in terms of the subject-matter, ground and conditions thereof, had been concluded in favour of the worker by the decision of the 2nd Chamber of the Adana Labour Court dated 22/7/2011, which was subsequently upheld by the judgment of the 9th Civil Chamber of the Court of Cassation dated 26/11/2013; that as the first instance courts and the Chambers of the Court of Cassation rendered different verdicts on the same matter, the right to a fair trial enshrined in Article 36 of the Constitution had been breached. The applicant accordingly requested the establishment of the breach in question and a re-trial. Otherwise, he requested to be awarded compensation.

The Court’s Assessment

In brief, the Constitutional Court has made the following assessments as to the matter whether the application was lodged out of time. 

Introducing a requirement of time for lodging an individual application not only provides the applicants with the opportunity to lodge an individual application but also ensures legal certainty. Prescribing certain periods of time for filing an action or having recourse to legal remedies – unless such periods are short to the extent which would preclude filing of an action – is a requirement of the principle of legal certainty and is not in breach of the right to access to court.

In respect of the period for lodging an individual application, “notification of the reasoning of the final decision” is one of the ways of being informed. However, the act of being informed is not only limited with the notification of the reasoned decision. Persons may be informed in other means. Accordingly, it is possible to be informed of the reasoning of the final decision in certain circumstances such as “receiving a copy of the case-file”. The date when the applicants declare that they have been informed of the reasoning of the final decision may be regarded as the starting point of the individual application.

In civil proceedings, as the judgments of the Court of Cassation are immediately notified to the parties by the registry of the relevant court, the period for individual application with respect to such decisions starts to run from the date of notification. However, in respect of case-files which are received by the first instance court upon the appellate review, the parties having recourse to the court and make a request or declaration; in other words, performing an action concerning the case at a stage where the final decision has not been notified to the relevant party yet are expected to be informed of the conclusion of the final decision at this stage. As, in such a case, it is accepted that the conclusion of the final decision has been informed, the period of individual application must be started to run as from this date if it is possible to precisely obtain from the inferior court the reasoning of the final decision of which conclusion has been informed of.

Accordingly, given the facts that the lawyers are entitled to examine the case-files for which they have been appointed as a representative through the UYAP (the National Judiciary Informatics System) Lawyer Information System without any restriction and to take copies of the documents included in such case-files, it is obvious that the representatives performing an action pertaining to the case-file though the UYAP are certainly entitled to be informed of the conclusion and reasoning of the final decision in the meantime.

Having regard to the facts that although the judgment of the Court of Cassation, which was received by the Court on 9/4/2013, was notified to the applicant’s representative at the Court’s registry on 16/10/2014, the representative had requested, through his petitions of 9/7/2014 and 11/7/2014  submitted to the Court via the UYAP long before 16/10/2014, the issuance of a notification in respect of the Court of Cassation’s judgment and the final reasoned decision and the return of the remaining amount of advance on expenses to him upon the finalization of the decision; and that the advance on expenses was returned to the applicant’s representative with the return receipt dated 18/7/2014; it has been concluded that, with respect to the above-mentioned principles, the applicant and his representative were informed of the conclusion of the final decision on, at the latest, 9/7/2014 and obtained the opportunity to get access to the content of the decision.

As it has been observed that the applicant lodged his individual application on 23/10/2014 against the final decision of which he was informed on 9/7/2014 upon the expiry of the period of thirty days prescribed for lodging of individual applications, the application was lodged out of time.

For these reasons, the Constitutional Court has held that the application must be declared inadmissible for being out of time without being examined in respect of the other admissibility criteria.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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