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A Short Review of an Individual Application to the Constitutional Court

Updated: Apr 11, 2022



The application to the Constitutional Court dated 24/05/2016 and numbered 2016/10023 was concluded on 28/12/2021 and published in the official gazette on 10 February 2022. The application was filed with the allegation that the right to a trial within a reasonable time was violated due to the fact that the merits of the case were not examined on the grounds that the negotiated settlement was signed.

Applicant claimed that he had to leave his village as a result of terrorist incidents while residing in Siirt and applied to the Siirt Governor's Office for the Determination of Damages Due to Terrorism and the Fight Against Terrorism, in order to compensate his losses within the scope of the Law No. 5233. The applicant objected to the expert report stating that only immovables with title deed would be taken into account, and immovables without title deed would not be taken into account, and applicant requested a new expert report. The Damage Determination Commission, on the other hand, decided on 20/05/2014 to pay compensation to the applicant, for immovables with title deed, at the rate of the inheritance share due to the property inherited from the applicant's father. With an invitation dated 13/11/2014, the Damage Determination Commission informed the applicant that the negotiated settlement should be signed within thirty days, otherwise it would be deemed not to have accepted the agreement. The applicant, on the other hand, accepted the settlement by making reservation that the damage was determined incompletely and that he reserved his rights regarding the damage due to the missing goods. Thereupon, the applicant filed a lawsuit, on 19/01/2015, at the Administrative Court, stated that the Damage Determination Commission made a loss calculation only for the title deed property of his father, that the houses and annexes that do not have a title deed were not taken into account. The defendant administration, on the other hand, argued in its defense that the applicant signed a negotiated settlement, therefore, there was no dispute that could be subject to action. The court rejected the case on 10/07/2015, citing that the signing of the negotiated settlement would eliminate the dispute, and that a lawsuit could not be filed on the grounds that the damage items claimed to be underpaid were not covered. Therefore, the applicant took this decision before the Regional Administrative Court. In his petition, he stated that it is possible to file a lawsuit with reservations, according to the case-law of the Council of State. At the same time, he also stated that he had to sign the negotiated settlement since it was not allowed to put a reservation in the peace note, but the reservation was notified to the administration with a separate petition. However, the Regional Administrative Court rejected the objection on its merits on 06/01/2015. Although the applicant applied for the correction of the decision, the request for correction of the decision was rejected by the decision of the Regional Administrative Court dated 01/03/2016. The final decision was notified to the applicant on 02/05/2016. Thereupon, the applicant made an individual application to Constituonal Court on 24/05/2016.

The Constitutional Court, in its assessment in terms of applicability, did not find the defense of the defendant Admistration appropriate that the applicant's claim for compensation lacks legal basis, on the grounds that the relevant law was brought in order to cover the property damages arising within the scope of the fight against terrorism and that no distinction is made between title deed and undeeded real estate in the relevant article.

In its substantive examination, the court stated that the right to a court is one of the justifications for the right to a fair trial; it includes the right of access to a court, the right to a decision and the right to enforce the decision, the right to a court is closely related to the right to an effective application guaranteed in Article 40 of the Turkish Constitution, the right to an effective application; Quoting the ECHR decision (Emin Arda Büyük), it is stated that everyone who claims that a constitutional right has been violated is provided with the opportunity to have their claims examined in accordance with the nature of the right, to apply to reasonable, accessible, administrative and judicial means that are suitable to prevent the realization or continuation of the violation or to eliminate its consequences. If one of the parties adhering to the claim and defense of the dispute before him and concludes the trial without discussing the fundamental objections put forward by the other party, even if there is a formal decision, it cannot be said that there is a real trial, in this case, the theoretical openness of the judicial remedy against the dispute will not be practical in practice. He stated that it would not make any sense, so that the right to a court and therefore the right to a fair trial would remain an illusion”.

The Court further noted that Article 36 or any other article of the Constitution did not prohibit waiving the guarantees of individuals' right to a fair trial. Therefore, while expressing that it is possible for individuals to waive their right to court as a rule, in order for the waiver of the guarantees of the right to a fair trial to be in accordance with the Constitution, the will of the waiver must be clear and the results must be reasonably foreseeable for the individual, as well as minimum procedural safeguards must be provided. It is also stated that the waiver of the right to a fair trial must be in the overriding public interest that renders it illegitimate.

In the light of these principles, the Constitutional Court determined that the main reason for the applicant to file the first lawsuit was that the damage caused by the destruction of the applicant's house and its annexes was not compensated, but the court decided on the merits of the request by citing the negotiated settlement, therefore there was an interference with the right of the court. The Constitutional Court stated that Article 12 of Law No. 5233 could be interpreted as the applicant's waiver of his right to court. Moreover, in the decision of Hüseyin Gönek and Şahin Toprak (No: 2015/4683), they concluded that after the signing of the peace agreement, it was no longer possible to take the dispute to the judiciary. On the other hand, the Court concluded that the situation in the concrete case was different from the exemplary applications, which were found inadmissible by the court due to the fact that the negotiated settlement was signed, due to the fact that the applicant applied to the commission and complained that the house and outbuildings belonging to the Sub-Expert Commission were not taken into account since the applicant applied to the administration and conveyed the request to the administration to calculate compensation for his house and outbuildings. Secondly, after the invitation sent to the applicant by the Damage Determination Commission, it was reported to the administration that the applicant reserved his rights in terms of his personal home and outbuildings within a period of thirty days. In addition, the Constitutional Court is of the opinion that the applicant's statement that he wanted to try to make a reservation on the negotiated settlement, but that this was not allowed, should also be taken into account. However, the court found it reasonable to sign the negotiated settlement in order to receive the compensation amount and came to the conclusion that the right to court was not waived by the applicant. In this respect, it has been concluded that the right of the court has been violated since the applicant's claim for compensation has been examined on the merits in terms of damages arising from the destruction of the applicant's house and outbuildings.

The court examined the applicant's claim that his right to a trial within a reasonable time was violated due to the length of the trial, in the context of the Ferat Yüksel decision, and stated that this part of the application was inadmissible due to failure to exhaust the remedies, without examining this part of the application in terms of other admissibility conditions. Finally, the Constitutional Court has stated that it is legally beneficial to send a copy of the decision to the relevant court for a retrial in order to eliminate the violation and its consequences, without waiting for the request of the relevant person and unlike other similar legal remedies and the relevant court did not have discretion in this matter, which is regulated and expressed in Article 50 of the Law No. 6216.

As a result, the Court decided that the right to a court within the scope of the right to a fair trial in the examined application was violated, but the claims regarding the violation of the right to a trial within a reasonable time were inadmissible due to failure to exhaust the remedies, and the right to a court within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution was violated. Therefore, the Court decided unanimously to send a copy of the decision to the administrative court for retrial and to reject the applicant's claim for compensation.


Ünal § Partners Legal Team

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