T.C. CONSTITUTION
2.Episode
Basis: 2015/13950
Verdict: 2018/
Decision Date: 24.05.2018
DECISION OF THE CONSTITUTIONAL COURT DATED 24/5/2018 AND NUMBERED 2015/13950 (INDIVIDUAL APPLICATION)
(ECHR m. 6) (2709 Pp. K. m. 2, 13, 36) (6100 Pp. K. m. 27, 61, 63, 66, 68) (2577 P. K. m. 31) (6216 Pp. K. m. 50) (GOLDER V. UNITED KINGDOM) (SEFER YILMAZ AND MERYEM YILMAZ V. TURKEY) (MY WIFE V. TURKEY) (Menemen MINIBUS CHAMBER V. TURKEY) (TAHIR CANAN V. TURKEY) (ANY. MAH. 10.02.2016 t. 2015/96 e. K.2016/9 K.)
RGT: 29.06.2018
OG NO.: 30463
THE SECOND CHAPTER
decision
SEMA KALGAV AND OYA YAMAK APPLICATION
Application Number: 2015/13950
Decision Date: 24/5/2018
Chairman: Engin YILDIRIM
Members: Osman Alifeyyaz PAKSUT
Jalal Mumtaz AKINCI
Muammar TOPAL
M.Emin KUZ
Rapporteur: Gülbin AYNUR
Applicants: 1. Sema KALGAVA
Oya YAMAK
Deputy: Av. Mehmet Suat KAYIKÇI
I.SUBJECT OF THE APPLICATION
1.The application relates to the claim that the right of access to the court has been violated due to the fact that the case filed against the administration by a third party with the request for cancellation of the zoning plan related to a real estate has not been notified to the real estate owner and his participation in the trial has not been ensured.
APPLICATION PROCESS
The application was made on 19/8/2015.
The application was submitted to the Commission after a preliminary administrative examination of the application form and October.
The Commission decided that the admissibility examination of the application should be carried out by the Department.
It was decided by the Head of the Department that the admissibility and merits examination of the application should be carried out together.
A sample of the application documents has been sent to the Ministry of Justice (Ministry) for information. The Ministry has not expressed an opinion.
III. EVENTS AND FACTS
The events as expressed in the application form and October are as follows in summary:
The applicants are one of the 1/4 share owners of a real estate subject to shared ownership located in Maltepe district of Istanbul province.
The real estate in question is divided into “fuel station area” in the 4/5/2006 approval dated 1/5000 scale nazim zoning plan and 26/2/2007 approval dated 1/1000 scale application zoning plan prepared in relation to the specified settlement.
After the applicants and their stakeholders completed the necessary license transactions in terms of zoning legislation, they leased the real estate to a company (tenant Company) engaged in the purchase and sale of petroleum products to be operated as a fuel station with a lease agreement signed on 18/12/2007. The lease agreement has been arranged to be valid until 31/12/2023.
Another company, which operates gas stations in the same neighborhood (the plaintiff Company) specified by the applicant in relation to the settlement of the Zoning Plan No. 73 poetry and parcel of immovable shareholder in terms of the parts of the prompt area separated as a gas station and cancellation Maltepe Istanbul Metropolitan Municipality (Administrative Court has been filed in the defendant against the authorities.
Istanbul 1. The tenant Company participated in this case, which was heard in the Administrative Court (Court), as an intervener alongside the defendant administrations.
The Court canceled the zoning plans subject to the lawsuit with its decision dated 24/2/2009. In the justification of the decision, it is stated that in accordance with the provisions of the legislation on fuel stations, it is mandatory for fuel sales stations that want to be opened and operated with applications made after 19/6/1996 to comply with the distance condition. Based on the report prepared as a result of the on-site exploration and expert examination, it has been stated that there is no compliance with the law in terms of the parcel subject to the case in the case of the zoning plans, which are understood to have been established without taking into account the distance conditions determined in accordance with the provisions of the legislation regarding fuel stations.
The decision was overturned by the decision of the Sixth Chamber of the Council of State (Chamber) dated 22/12/2009 upon the application of the respondent administrations and the respondent to the appeal. In the justification of the decision to overturn, it was determined that the lawsuit filed against the nazım zoning plan was not in time. In the face of the fact that the implementation zoning plan is in accordance with the original zoning plan, which is not the subject of litigation during the period, a decision should be made by the court of first instance, taking into account this issue, while the decision on the appeal given in the way of cancellation of the plans subject to the case has not been found to be a legal hit.
The plaintiff has gone on the path of correcting the decision against the Company spoiling the blackout. The chamber accepted the request for correction of the decision with its decision dated 11/9/2013 and approved the decision of the court of first instance.
After the trial process regarding the zoning plans was finalized in this way, the plaintiff Company applied to the Municipality on 26/2/2014 with a request to cancel the licenses of informal institutions organized on behalf of the tenant Company on the grounds that this time it is contrary to the current zoning situation and to stop the operation of the fuel station; the application was rejected by not responding. The Plaintiff Company requests the cancellation of the implied refusal transaction in Istanbul 4. He filed a lawsuit in the Administrative Court. In accordance with the decision of the aforementioned Court dated 7/4/2015 on the cancellation of the implied refusal transaction subject to the case, the operating license of the tenant Company has been canceled.
Sema Calgav, one of the applicants, applied to Istanbul Metropolitan Municipality on 29/6/2015 and requested to be informed whether any lawsuit has been filed with the request to cancel the zoning plan related to her real estate, what the court and file basis number information is if the lawsuit has been filed, and the outcome of the case.
In the reply letter dated 22/7/2015, Istanbul Metropolitan Municipality informed the applicant that the zoning plans related to the immovable property were canceled by a judicial decision, therefore the parcel in question became unplanned, but the re-planning process related to the immovable property was initiated and this process is continuing.
The said article was notified to the said applicant on 22/7/2015.
The applicants applied individually on 19/8/2015.
IV.RELATED LAW
A.National Law
31 of the Administrative Trial Procedure Code dated 6/1/1982 and numbered 2577. the relevant part of its article is as follows:
“In matters where there is no provision in this Law, the participation of third parties in the case, the notification of the case, in cases … the provisions of the Code of Civil Procedure shall be complied with. However, the notification of the case is made ex officio by the Council of State, the court or the judge.”
27, which is included in the Second Part of the Code of Civil Procedure dated 12/1/2011 and numbered 6100 with the main title “Principles Prevailing in the Judiciary”. “the right to legal hearing” is regulated in the article. The mentioned item is as follows:
“(1) The parties to the case, the participants and other interested parties in the proceedings have the right to legal hearing in connection with their rights.
(2) This right;
a) To have information about the trial,
b) The right to explanation and proof,
c) The evaluation of the court taking into account the explanations and the concrete and clear justification of the decisions,
contains.”
61 of the Law No. 6100 with the marginal title “Notification and conditions”. paragraph (1) of the article is as follows:
“If one of the parties thinks that if he loses the case, he will resort to the third person or the third person himself, he may notify the case to the third person until the conclusion of the investigation.”
63 of the Law No. 6100 entitled “The status of the person to whom the notification has been made”. paragraph (1) of the article is as follows:
“The person who has been notified of the case may participate in the case alongside the party who has a legal interest in winning the case.”
66 of the Law No. 6100 with the marginal title “Fer intervention”. its substance is as follows:
“(1) A third person may take part in the case as an intervener on the side of the party who has a legal interest in winning the case and in order to assist him, until the end of the investigation.”
68 of the Law No. 6100 with the marginal title “The situation of Fer’s intervention”. paragraph (1) of the article is as follows:
“If the request for intervention is accepted, the respondent can only follow the case from the point where he is located. The respondent may put forward claims or means of defense that are in the best interest of the party with whom he participates; he may perform all kinds of procedural actions that do not contradict his actions and explanations.”
International Law
European Convention on Human Rights
6 of the European Convention on Human Rights (Convention). the relevant part of paragraph (1) of the article is as follows:
”Everyone has the right to request that his case be heard by a court that will decide disputes related to his civil rights and obligations …”
Case Law of the European Court of Human Rights
The European Court of Human Rights (ECHR) has adopted Article 6 of the Convention. paragraph (1) paragraph does not mention the right to access to the court or the judicial authorities clearly in the article as a whole, although the terms that are used with the context given to the court reached the conclusion that guarantees stated that they have a right to access (Golder/United Kingdom, B. No: 4451/70, 21/2/1975, §§ 28-36). According to the ECHR, the right of access to the court is 6 of the Convention. it is mundemic in paragraph (1) of the article. This inference is not an expansive interpretation that imposes new obligations on the Contracting states, but 6. it is based on the reading of the first sentence of paragraph (1) of the article together with the aims and objectives of the Convention and the general principles of law. As a result, 6 of the Convention. paragraph (1) of the article covers that everyone has the right to bring their claims related to civil rights and obligations before a court (Golder v. United Kingdom, § 36).
The ECTHR recognizes that the right of access to a court, which constitutes an element of a fair trial, is not absolute, and that this right, which requires regulation by the state due to its nature, may be limited to a certain extent. However, the ECTHR states that these restrictions should not restrict or weaken a person’s access to the court in such a way and in such a way as to damage the essence of the right. According to the ECTHR, limitations that do not have a legitimate purpose or do not establish a reasonable proportionality relationship between the applied means and the desired goal are Deciphered in Article 6 of the Convention. it would not be compatible with the first paragraph of the article (Sefer Yılmaz and Meryem Yılmaz v. Turkey, B. No: 611/12, 17/11/2015, § 59; My Wife/Turkey, B. No: 59601/09, 17/9/2013, § 19; Edificaciones March Gallego P.A./Spain, B. No: 28028/95,19/2/1998, § 34).
According to the ECTHR, there is no law preventing access to domestic remedies 6. it may not always be sufficient in terms of fulfilling the requirements in paragraph (1) of the article. Considering the function of the Jul-tus rule of law principle in a democratic society, it is understood that the degree of access provided by the legislator should also be sufficient in terms of securing the “right to a court” of individuals. In order for the right of access to be effective, the individual must have clear and practical opportunities to express his arguments against actions and actions that constitute interference with his right (Bellet v. France, B. No: 23805/94, 4/12/1995, § 36).
The Chamber of Minibus Drivers of Menemen, where the ECHR examined the institution of notification in the administrative judiciary-Turkey (B. No: 44088/04, 9/12/2008, §§ 4-11) darkening In the subject matter, a regulatory act has been issued by the governor’s office providing for the issuance of a temporary route authorization certificate for vehicles of a certain category, provided that they have insurance. The Menemen Menemen Minibus Chamber, which operates on the Menemen-Izmir line, is directly concerned with this regulatory process. The administrative court canceled the regulatory action on the lawsuit filed by the Menemen Passenger Buses Motor Vehicles Cooperative against the governor’s office against the said regulatory action. The Governor’s office has appealed the decision. Menemen Minibus Chamber has filed an intervention petition at the appeal stage. On 16/3/2004, the Council of State approved the decision of the court of first instance shortly after accepting the applicant’s request for intervention. Although the Governor’s office issued a new regulatory act allowing the applicant’s vehicles on 7/5/2004, this procedure was also canceled by the administrative court on 11/1/2005. on 23/5/2005, the applicant was notified to cease his transportation activity.
The ECTHR has adopted Article 31 of Law No. 2577 referring to the Code of Civil Procedure in relation to the procedure for notification of a case. he pointed out that the article specifically provides that the notification of the case to third parties whose interests are affected by the dispute in question should be made “ex officio” by the court (Menemen Minibus Chamber v. Turkey, § 25). The ECTHR emphasized that, despite the explicit wording of the said article, the court had not informed the applicant about the dispute in dispute. According to the ECTHR, as a result, the applicant – in the first case – was deprived of the opportunity to be heard due to his inability to participate in the trial at the first instance stage. Due to the limited number of reasons for appeal being subject to the rule, the applicant was also unable to put forward his objections on the merits to the Council of State. Regarding the second case, Article 31 of the Law No. 2577. due to the non-compliance with the article, the applicant remained completely out of touch with the dispute. As the main party, the governorship did not appeal the decision, so the applicant did not have the opportunity to put forward claims – albeit limited- in the Council of State (Menemen Minibus Chamber v. Turkey, § 26).
In this context, the ECTHR, which evaluated the application, decided that the national courts should comply with Article 31 of Law No. 2577. the court concluded that the applicant’s failure to succeed in fulfilling the requirements of the article prevented him from being heard in relation to the dispute that directly affected his rights and obligations and that the applicant’s right of access to the court was violated (Menemen Minibus Chamber v. Turkey, § § 27,28),
V.REVIEW AND JUSTIFICATION
At the meeting held by the court on 24/5/2018, the application was examined and considered as necessary:
A.Claims of the Applicants
The applicants complain that they were deprived of the opportunity to present evidence and prove their claims at the trial stage due to the fact that the cancellation decision made in the case based on the individual application had direct consequences for them, but the Court had not notified them of the case. The applicants state that they were able to have information about the case in question with the letter sent in response to the application they made to the Municipality upon the feeling that the zoning plan for the immovable property they owned had been canceled. The applicants, who stated that the value of their real estate decreased due to the cancellation of the zoning plan and that they were deprived of the rental income it provided, complain that they could not express their claims to protect their legal interests due to the fact that their participation in the case was not ensured; 36 of the Constitution. it claims that the German fair trial rights guaranteed in the article have been violated.
B.Evaluation
Dec. 36 of the Constitution entitled ”Freedom to seek rights”. the first paragraph of the article is as follows:
“Everyone has the right to a fair trial with claims and defense as a plaintiff or defendant before judicial authorities by using legitimate means and means.”
The Constitutional Court is not bound by the legal characterization of the events made by the applicant and appreciates the legal interpretation of the events and facts itself (Tahir Canan, B. No: 2012/969, 18/9/2013, § 16). The essence of the applicants’ complaints is that their participation in the trial was not ensured in order to be able to effectively exercise the right of defense that should have been granted to the parties in an administrative case, the outcome of which they were directly affected by. For this reason, the violation allegations in the context of the applicants’ stated complaints were examined within the scope of the right of access to the court.
In Terms of Acceptability
In the concrete case, it is seen that the decision on the individual application was finalized on 11/9/2013 and the individual application was made on 19/8/2015. The applicants; With the notification of the response letter regarding the application made to the Municipality for the purpose of obtaining information on 22/7/2015, I am aware of the case in question, and they claim that they have made an individual application within the period starting from this date.
At this point, firstly, it should be recalled that the applicants are based on the fact that they were not informed of the case in question, which they claim affects their interests as a result of the violation allegations in this individual application. On the other hand, in a concrete case, a judicial decision of the zoning plans of the company after it was cancelled by the tenant that have not been revoked, and no license to work yet due until the date the tenancy agreement pursuant to 31/12/2023 that preserves validity continues to be the operator of the gas station, in addition, they perform 22/7/2015 new applicants apply to the municipality for a zoning plan has not yet been made as of the date it is observed that the immovable. In other words, it is understood that the material and legal consequences of the case, which would enable the applicants to be aware of the trial in question, have not been revealed for some time.
Accordingly, the material on the application form by the applicants event of the violation of special conditions for individual learns is shown and the relevant articles of the municipality as of the date before the date on which the date of notification of the violation of the applicant to justify the acceptance that 22/7/2015 learned or did not fulfill his obligation to take care of their part in this regard, it was decided that no concrete evidence has been found of such a nature as to require under file. In this respect, it has been accepted that the application, which is understood to have been made within thirty days from the date of 22/7/2015, when the violation was learned, is on time.
On the other hand, it should be decided that the application regarding the violation of the right of access to the court, which clearly does not lack grounds and there is no other reason for deciding on its inadmissibility, is admissible.
From The Main Point Of View
a.Scope of the Right and Usefulness of the Intervention
36 Of the Constitution. in the first paragraph of the article, it is stated that everyone has the right to make a claim and defend himself as a plaintiff or defendant before judicial authorities. Therefore, the right of access to the court is subject to Article 36 of the Constitution. it is an element of the freedom to seek German Decency guaranteed in the article. On the other hand, Article 36 of the Constitution. in the justification for adding the phrase “fair trial” to the article, it was emphasized that the German right to a fair trial, which is also guaranteed by international conventions to which Turkey is a party, is included in the text of the article (Self-care Private Health Service. Insh. Tour. Renown. and tic. Ltd. Şti., B . No: 2014/13156, 20/4/2017, § 34).
36 Of the Constitution. in addition to being a fundamental right, the freedom to seek German rights guaranteed in the article is one of the most effective guarantees that ensure the Decisively 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 covered by the right to a fair trial, the person must first be given the opportunity to present his claims. In other words, if there is no trial, it will not be possible to benefit from the guarantees provided by the right to a fair trial (Mohammed Aynosah, B. No: 2013/8896, 23/2/2016, § 33).
The Constitutional Court stated that the right of access to the court means to be able to bring a dispute before the court and to request that the dispute be resolved effectively in the evaluations it made within the scope of an individual application (Özkan Şen, B. No: 2012/791, 7/11/2013, § 52).
In addition to the fact that individuals can file a lawsuit against transactions that affect their interests, providing them with the opportunity to participate in a lawsuit filed by third parties and express their claims and defenses in a lawsuit that they are not a direct party to, but which affects their interests as a result, is also one of the guarantees that should be evaluated within the scope of the right of access to the court. In this respect, it should be ensured that people whose interests will be affected by the outcome of a case can have information about this trial, be able to explain what they think is necessary for the resolution of the dispute and effective to the result, and provide evidence to prove their claims. This issue is also related to the principle of equality of arms and contradictory judgment, as it will allow judicial authorities to make a reasoned decision after taking into account and evaluating all the data. As a matter of fact, Law No. 6100 No. 27. in the article, a regulation that coincides with the guarantees of the right of access to the court is introduced, stating that the parties to the case, as well as the participants and other interested parties in the proceedings, have the right to legal hearing in connection with their rights. Therefore, the court will not be able to assess the merits of the case without giving the parties to the case, the participants, and other interested parties to the trial the opportunity to exercise their right of defense (Yusuf Bilin, B. No: 2014/14498, 26/12/2017, § 44; for similar evaluations, see. Mehmet Ali Bedir and Tevfik Günay, B. No: 2013/4073, 21/1/2016, § 35).
Failure to ensure an individual’s participation in a case by not being informed of a case that affects his/her interests as a result and depriving him/her of the opportunity to put forward his/her arguments before the court constitutes an interference with the right of access to the court.
In the event that is the subject of an individual application, there is an administrative case in which the zoning plans related to the real estate owned by the applicants are the subject of dispute. In this lawsuit filed by a company, the cancellation of the parts of the original and application zoning plans regarding the separation of the immovable property as a fuel station area was requested. As a result of the trial, the zoning plans subject to the lawsuit were canceled. It is seen that the specified cancellation provision shows the impact and consequences directly on the applicants, as a matter of fact, in accordance with the aforementioned decision, the immovable property of which the applicants are the owners of shares has been removed from being a fuel station area in the zoning plan and included in the re-planning process. In this respect, it has been concluded that there was an interference with the right of access to the court due to the fact that the applicants were not allowed to participate in the judicial process of an administrative case, the outcome of which they were directly affected by.
b.Whether the Intervention Constitutes a Violation
13 Of the Constitution. the relevant part of its article is as follows:
“Fundamental rights and freedoms … may be restricted only by law and only depending on the reasons specified in the relevant articles of the Constitution. These limitations cannot be contrary to the principle of moderation.”
The intervention mentioned above is part of Article 13 of the Constitution. if it does not comply with the conditions specified in Article 36 of the Constitution. it will constitute a violation of the article.
For this reason, the intervention of the Constitution 13. it is necessary to determine whether it complies with the conditions stipulated in the article and which correspond to the concrete application, is stipulated by the law, is based on a just reason, and is not contrary to the principle of proportionality.
i.Legality
31 of the Law No. 2577. in the article, it is stated that the notification of the case will be made ex officio by the court. It is understood that the aforementioned regulation also includes the discretion granted to the judicial authority at the point of whether the case should be notified to a third party. In the concrete case, it is seen that the applicants could not participate in the trial process as a result of the courts of instance using their discretion not to notify the applicants of the case. 31 of the Law No. 2577 of the said application of the court. considering that the interference with the applicants’ right to access the court is based on the article, it is concluded that there is a legal basis for the interference with the applicants’ right to access the court.
ii.Legitimate Purpose
36 Of the Constitution. although no reason for limitation is provided for the freedom to seek rights in the article, it cannot be said that this is an absolute right that cannot be restricted in any way. Dec. It is accepted that rights for which a special reason for limitation is not provided also have some limits arising from the nature of the right. In addition, although the article regulating the right does not include any reason for limitation, it may be possible to restrict these rights based on the rules contained in other articles of the Constitution. It is clear that some regulations regarding the scope of the right to sue and the conditions of use are rules that Decipher the boundaries arising from the nature of the freedom to seek rights and determine the norm field of the right. However, these restrictions are subject to Article 13 of the Constitution. it cannot be contrary to the guarantees contained in the Article (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 a case is a procedural law institution that ensures that an individual is informed of a case that he is not a party to, but which affects his interests as a result, in order to allow him to exercise his rights through intervention and other means. Jul. However, in order to ensure that the proceedings are conducted within a reasonable time, in an orderly manner and without unnecessary expenses, and thus to realize the principle of procedural economy, the notification of the case is subject to certain conditions and procedural rules. Jul. 2 Of the Constitution to observe the procedural economy in determining the judicial procedures and to realize the public interest by ensuring the good administration of justice in this way. it is one of the requirements of the principle of the rule of law regulated in the article. Therefore, it is possible to connect the notification of the case to certain conditions and procedural rules by observing the principles of procedural economy and good administration of justice (Yusuf Bilin, § 54).
However, it should not be overlooked that the right of access to the court is also a requirement for individuals to be able to express their claims and defenses in a lawsuit filed by third parties, but which affects the interests of individuals as a result. In such a case, the public interest in public authorities of procedural economy of individuals with the right of access to a court to ensure a reasonable balance between benefit the individual injuries are expected. In cases where the individual benefit of the individual in accessing the court is clearly dominant, it may become controversial that restricting access to the court has a legitimate purpose on the grounds of procedural economics. In other words, in such cases, Article 2 of the Constitution. it may not be possible to say that the article allows limiting the right of access to the court (Yusuf Bilin, § 55).
Considering that the cancellation of the zoning plans for the real estate they own in the concrete case directly affects the interests of the applicants, there are serious doubts that the public interest in ensuring the procedural economy in the intervention of the right of access to the court by not notifying the applicants of the case is of such importance and weight that the individual benefits of the applicants in participating in the case should be ignored. For this reason, it has been assessed that it would be more appropriate to consider the existence of a legitimate purpose together with the moderation of the intervention below.
iii. Moderation
(1) General Principles
The principle of proportionality consists of three sub-principles: “expediency”, “necessity” and “proportionality”. “Availability” of the intervention convenient to be prescribed to achieve the desired goal, “of necessity” to the desired objective in terms of the intervention to achieve the same purpose i.e. not being able to be mandatory intervention with a lighter, “proportionality” is a reasonable balance between the rights of the individual with the necessity of intervention refers to the observance of the desired objective (Mehmet Akdoğan and others, B. No: 2013/817, 19/12/2013, § 38).
Proportionality, the third sub-principle of Decisiveness, requires that a fair balance be achieved between the protection of public interest and the rights and freedoms of the individual. In the event that the prescribed measure puts the individual under an unusual and excessive burden, it cannot be said that the intervention is proportionate and therefore measured. In this respect, it is necessary to determine whether an excessive and disproportionate burden is imposed on the applicants with the measure applied.
The Constitutional Court stated that restrictions that prevent a person from applying to the court or render the court decision meaningless, in other words, significantly neutralize the court decision, may violate my right of access to the court in the evaluations it makes within the scope of an individual application (Özkan Şen, § 52).
The provision of certain conditions and procedural rules for third parties to participate in a case affecting their own interests does not constitute a violation of the right to access the court, unless these conditions and rules make it impossible or extremely difficult to participate in the case. However, as a result of incorrect application of these conditions and rules by the judicial authority in clear violation of 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 the court. For this reason, courts should avoid attitudes, comments and evaluations that harm the fairness of the trial while examining whether these conditions have occurred and applying the procedural rules (Yusuf Bilin, § 51).
31 of the Law No. 2577. in the article, it is stated that the Code of Civil Procedure will apply to the participation of third parties in the case and the notification of the case, but it is stipulated that the notification of the case will be made ex officio by the court. 66 of the Law No. 6100. in the article, it is also bound to the rule that the third person can participate in the case as an intervener next to the party who has a legal interest in winning the case and in order to assist him until the end of the investigation, The process of administration the legality of their actions and lawsuits pending in the court where the control is performed upon the subject of the dispute in terms of administrative claims or legal proceedings in the trial of one of the parties to win the case in the interest of third parties the right to a fair trial, formally ensuring effective participation is not only important to ensure the security of an institution. The most important result of using this right in terms of procedural law is that it is necessary to inform third parties who have legal benefits in participating in the case about the case, since their interests will be directly or indirectly affected by the decision to be made in the case (Yusuf Bilin, § 59).
At this point, 31 of the Law No. 2577. it should be noted that the regulation contained in the article, which provides for the notification of the case to be made ex officio by the court, cannot be interpreted as meaning that the administrative judicial authority is obliged to inform all relevant persons of an administrative case that it is looking at ex officio. Therefore, that may influence the outcome of the case before the court of any third parties in connection with its rights to turn in order to come up with their arguments brought in the courts of the institution belongs to the degree of discretion in the operation of the procedural provisions. In this context, it is essentially the duty of the courts of instance to assess whether the third person will be affected by the outcome of the case in the special circumstances of each concrete incident and whether there is a legal benefit in participating in the case. Isletilmeme run west from the tip of the court of First Instance and check if this directly affects the applicant’s rights and obligations in the use of discretion and, therefore, participate in the case where a legal interest is located denied the opportunity to put forward their arguments on a conflict that is very open to the fairness of the proceedings and will cause any harm unless it is a showcase of an approach which would be the task of the Constitutional Court encountered a finding that it will not know Joseph, § 60).
(2) Application of the Principles to the Event
When the subject of the individual application and the nature of the dispute are taken into account, it is seen at first glance and very clearly that the applicants will be directly affected by the outcome of the specified case and that there are legal benefits in participating in the case in this respect.
It is clear that the applicants have a number of interests that intersect and overlap with the tenant Company (the respondent) involved in the case, as well as the respondent administrations and the respondent administrations in the case in question. In this context, it is observed that some of the issues that may be put forward by the applicants regarding the absence of any elements of unlawfulness that would require the cancellation of the zoning plans that are the subject of the lawsuit have already been expressed by the respondent administrations and the respondent during the trial process. However, it is also foreseeable that the applicants may make a number of additional claims that can only be put forward by themselves in relation to the dispute subject to the case, especially since they have the title of owner of the immovable subject to dispute. As a matter of fact, the applicants’ claims, which they put forward in the individual application form, especially in the context of the right to property, and which they stated should be taken into account by the courts of instance (see. § 35) it is understood that it was not put forward by the respondent administrations and the respondent during the trial process. In this respect, it cannot be said that the courts of instance have reached a conclusion by evaluating the claims in question during the trial process. Therefore, if the applicants had participated in the case, it should not be overlooked that they had made different claims that would require a number of evaluations / examinations to be made in addition to the evaluations in the decision of the court of first instance.
Accordingly, the applicants informing them of the case in a concrete case related to real estate due to not-they can actually be involved in the trial process, the mismatch that is completely non-com, staying the merits of the dispute, and the results and express their views on matters that are effective think the opportunity to present evidence to prove their claims, it is understood that they could not find. On the other hand, it has been assessed that the individual benefit of the applicants being informed of the case in question, which directly affects their rights, has a dominant nature compared to the public benefit in monitoring the procedural economy, and the failure to notify the case seriously Decimates the balance that should be observed between the public interest and the individual benefit to the applicants.
In this case, the courts of instance are required to comply with Article 31 of Law No. 2577. notification procedures in the case of the article does not fulfill the provisions of the arguments before the court because they forward an excessive and disproportionate burden deprived of the opportunity of riding to any applicant, therefore, the court concluded that the interference was disproportionate to the applicants with the right to access it.
On the grounds described, the applicants were required to comply with Article 36 of the Constitution. it must be decided that the right of access to the German court, guaranteed in the article, has been violated.
Article 50 of Law No. 6216. In Terms Of Substance
Article 50 of the Law No. 6216 dated 30/3/2011 on the Establishment and Judicial Procedures of the Constitutional Court. the paragraphs (1) and (2) of the article are as follows:
“(1) At the end of the substantive examination, it is decided that the applicant’s right has been violated or not. In case of a violation decision, it is decided what needs to be done to eliminate the violation and its consequences…
(2) If the detected violation is caused by a court decision, the file is sent to the relevant court for a retrial in order to eliminate the violation and its consequences. In cases where there is no legal benefit in conducting a retrial, compensation may be awarded in favor of the applicant or the way to file a lawsuit in the general courts may be shown. The court, which is obliged to conduct a retrial, decides on the file, if possible, in such a way as to eliminate the violation and consequences announced by the Constitutional Court in the violation decision.”
The applicants requested that a decision be made on the determination of the violation and a retrial be held.
In the application, Article 36 of the Constitution. it has been concluded that the right of access to the court under the right to a fair trial guaranteed in the article has been violated.
Since there is a legal benefit in conducting a retrial in order to eliminate the consequences of a violation of the right of access to the court, a sample of the violation decision is required to be re-tried in Istanbul 1. It should be decided to send it to the Administrative Court.
A decision should be made to jointly pay the applicants a total of 2,206.90 TL trial expenses, consisting of a fee of 226.90 TL and a power of attorney fee of 1,980 TL, determined from the documents in the file.
VI.provision
On the grounds described;
A.That the claim that the right of access to the court has been violated is ADMISSIBLE,
B.36 Of the Constitution. the right of access to the court under the German right to a fair trial guaranteed in the article has been VIOLATED,
C.Istanbul 1 for a retrial to eliminate the consequences of the violation of the right of access to the court of a sample of the decision. To the Administrative Court (e.2007/1256,K.2009/243) to be sent to,
D.A total of TL 2,206.90, consisting of a fee of TL 226.90 and a proxy fee of TL 1,980, is paid JOINTLY to the INITIATORS of the trial expenses of TL 2,206.90,
E.The payment must be paid within four months from the date of the applicants’ application to the Ministry of Finance following the notification of the decision, and in case of delay in paying, the legal INTEREST must be paid for the period from the date of expiration of this period to the date of payment,
F.It was UNANIMOUSLY decided on 24/5/2018 to SEND a sample of the decision to the Ministry of Justice.
You can read our articles and petition examples by clicking here.