Events
The applicant’s wife OB lost her life as a result of a fire at the shopping mall where she worked. The applicant has filed a lawsuit at the Civil Court of First Instance with a claim for material and moral compensation, without reserving his rights regarding the excess. File on the decision of the court of non-duty 1. He was registered in the Court of First Instance. 5 By OB’s mother, father and siblings. Compensation claim filed at the Court of First Instance was combined with the compensation claim filed by the applicant.
The Court of First Instance decided that the incident in dispute was covered by the Social Insurance Law No. 506 and was a work accident, stating that the court was out of office and that the file should be sent to the competent labor court. ; Upon this decision, the file was sent to the labor court. The labor court evaluated the expert report and decided to reject the claim for financial compensation and accept the claim for non-pecuniary compensation, stating that the material damage was covered from the income on which the institution depends. Court of Cassation overturned the Decrees on the grounds that there was a contradiction between the expert reports.
After the decision was overturned, the Court decided to conduct an expert examination again. The applicant amended and increased his claim for financial compensation with the petition he submitted to the court after the expert examinations in question. The court decided to accept the case. In accordance with the decision of the General Assembly of the Court of Cassation (YIBGK), the Court of Cassation overturned this acceptance decision on the grounds that it was not possible to correct the claim after the violation. Upon the reversal of the decision, the court ruled on material and moral compensation, adhering to the amount requested in the petition, and the decision was also upheld by the Supreme Court.
The Allegations
The applicant claimed that the right of access to the court was violated and the right to trial within a reasonable time was violated due to the rejection of the request for amendment on the grounds that changes could not be made after the decision to annul despite the continuation of the trial. Due to the long duration of the case.
The Court’s Assessment
A. The Claim that the Right of Access to the Court has been Violated Hk.
In the said decision of the SIBGK, which constitutes the basis for the justification of the court decision in the concrete dispute; 84 of the abrogated Law No. 1086. stating that the article means that changing the defense may only be possible during the investigation and trial stages, that is, until the investigation is completed and a verdict is rendered, the parties may not exercise this right after the investigation and trial period.1086 There is no explicit or implied provision in the abrogated Law No. 6100 and the related articles of the Law No. 6100 that changes cannot be made after the violation.
The general rules regarding the impossibility of correction after violation are determined by case law. In the YIBGK decision, while the impossibility of correction after disruption was interpreted, the investigation phase was limited to the trial process at the court of first instance before the disruption decision, and no assessment was made regarding the nature of the disruption operations. An investigation was launched after the cancellation decision.
In the concrete case, with the decisions of the Court of Cassation based on the judgment of the courts, the investigation phase has been limited only to the trial before the overturning decision of the court of first instance, and there are no distinctions and exceptions. Investigation procedures were carried out for the cases conducted after the decisions of disruption. Therefore, it can be said that the courts’ categorical interpretation that it will not be possible to make changes after the overturning decision for all disputes significantly limits the right of access to the court. As a matter of fact, with the amendment dated 28/7/2020, the legislator has clearly arranged that if the court of first instance takes action related to the trial, changes can be made until the trial is concluded.
In the light of these explanations, it has been concluded that although there is no clear obstacle in the legislation to requesting changes after the decision to disrupt, if the investigation is conducted in accordance with the decision to disrupt, it is not possible to make comments in this direction. In all cases without exception, the changes to be made after the decision to overturn are unpredictable with a categorical approach, and these interpretations do not comply with the criteria of legality in the constitutional sense.
It was concluded that the right of access to the court of the applicant was interfered with by not accepting the request for amendment on the grounds that changes could not be made after the decision to annul, even if the applicant returned, in the trial that was the subject of the application. Due to the procedures for conducting an investigation in accordance with the decision to disrupt, there is no legal basis for proceeding to the investigation stage after the decision to disrupt.
B. The Claim that the Right to a Reasonable Trial has been Violated Hk.
In determining the trial period in disputes related to civil rights and obligations, the start date of the trial is taken as the date of opening the case, and the end date of the trial is taken as the end date of the trial. It usually involves the execution stage. When evaluating whether the duration of the trial before the labor courts is reasonable, the complexity and number of stages of the trial, the attitude of the parties and the relevant authorities to the trial and the nature of the applicant’s interest in a speedy conclusion, the proceedings are taken into account. Considering the above-mentioned principles, it is concluded that the trial period of 17 years and 3 months is not reasonable.
For the reasons explained, the Constitutional Court decided that the right to be tried within a reasonable time within the scope of the right to a fair trial had been violated.
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