Constitutional Court Decision on Erroneous Determination of the Period for Filing a Lawsuit
Introduction
Under the principle of “procedure precedes substance” prevailing in Turkish law, the correct determination of the period for filing a lawsuit is crucial. In its decision dated 02.05.2024 numbered 2020/13187 E. and 02.05.2024 K. (“Decision”), the Constitutional Court examined the claim that the right of access to court was violated due to the rejection of the case upon the erroneous determination of the period for filing a lawsuit. As a result of the evaluation made, by determining that the courts made a mistake while calculating the period for filing a lawsuit, it was concluded that there was no legal basis for the rejection of the lawsuit. It was unanimously decided that the right to a fair trial guaranteed under Article 36 of the Constitution was violated. In the newsletter article, the Decision and the related legislation are examined.
Concrete Case Subject to Decision
The applicant's employment contract was terminated on the grounds that he was taken into custody while working as a laborer and did not continue working. The negotiations held within the scope of the mandatory mediation application ended in disagreement and the applicant filed a lawsuit for reinstatement.
Kızıltepe 1st Civil Court of First Instance (“Local Court”), acting as the labor court, decided to dismiss the lawsuit on the grounds that the law stipulates that if no agreement is reached at the end of the mediation talks, a lawsuit can be filed at the labor court within two weeks from the date of the final minutes of the mediation and that the lawsuit was not filed within this period.
The applicant appealed against the decision, stating that the last day of the period for filing a lawsuit coincided with an official holiday and that the lawsuit was filed on the first working day after the official holiday ended.
The 7th Civil Chamber of the Gaziantep Regional Court of Appeal (“Court of Appeal”) rejected the appeal application on the same grounds as the Local Court, stating that the case was not filed within the two-week period.
Following the notification of the decision, the applicant filed an individual application before the Constitutional Court. The applicant claimed that his right of access to the court was violated, stating that the last day of the two-week statutory period for filing a lawsuit coincided with an official holiday and that he filed the lawsuit on the first working day as the following two days were weekends.
Overview of Related Legislation
Within the scope of the application, the Constitutional Court examined the regulation on the mandatory mediation application for reinstatement cases and the provisions in Turkish procedural laws regarding the day of filing the lawsuit and the time calculation.
Article 20 of the Labor Law No. 4857 (“Law No. 4857”) has been amended by Article 11 of the Labor Courts Law No. 7036 (“Law No. 7036”) published in the Official Gazette dated 25.10.2017 and numbered 30221. With this amendment, an obligation has been introduced for the employee whose employment contract has been terminated, to apply to the mediator -before the initiation of the lawsuit- with the claim of reinstatement within one month from the date of notification of the termination notice, claiming that no reason was given in the termination notice or that the reason given was not a valid reason. If no agreement is reached at the end of the mediation talks, it is regulated that a lawsuit can be filed at the labor court within two weeks from the date of the final minutes of mediation.
Under Article 9 of Law No. 7036, the provisions of the Code of Civil Procedure No. 6100 (“Law No. 6100”) shall apply in cases where there is no clarification in the law. The Decision also states that Article 15 of the abrogated Labor Courts Law dated 30.01.1950 and numbered 5521 stipulates that “In cases where there is no clarification in this Law, the provisions of the Code of Civil Procedure shall apply.” Law No. 5521 was repealed by Law No. 7036.
Under our current legislation, the fundamental procedural rules applicable to proceedings before civil courts are set out in Law No. 6100.
In this context, it has been stipulated in Article 118 of Law No. 6100 that the lawsuit shall be deemed to have been filed on the date of registration of the statement of claim.
The above-mentioned law also contains rules on the calculation of the periods. Accordingly, in the second paragraph of Article 92 of Law No. 6100, the provision “If the period is determined as a week, month or year, it ends at the holiday time of the corresponding day in the last week, month or year to the day it starts”, and in Article 93, the provision “If the last day of the period coincides with an official holiday, the period ends at the end of working hours on the first working day following the holiday.” is included.
Assessment Regarding Violation of the Constitution
In the concrete case, the applicant claims that his right of access to the court has been violated. In Article 36 of the Constitution, it has been stipulated that everyone has the right to claim and defend himself as a plaintiff or defendant before the judicial authorities by using legitimate means and remedies and to a fair trial and that no court may refrain from hearing a case within its jurisdiction. It is accepted that the right of access to the court is a component of the freedom to seek rights guaranteed under Article 36 of the Constitution[1].
Article 13 of the Constitution stipulates that “Fundamental rights and freedoms may be restricted without prejudice to their essence only for the reasons specified in the relevant articles of the Constitution and only by law. These limitations may not be contrary to the wording and spirit of the Constitution, the requirements of the democratic social order and the secular Republic, and the principle of proportionality.” [2]
In the Decision, it is stated that fundamental rights and freedoms can only be restricted by law and for the reasons set out in the relevant articles of the Constitution, without being contrary to the requirements of the democratic social order and the principle of proportionality, and therefore, it is necessary to examine whether the interference with the applicant's right of access to the court has a legal basis.
In its evaluation, the Constitutional Court pointed out the following points:
- Article 20 of Law No. 4857 emphasizes, an employee whose employment contract has been terminated must apply to a mediator with a claim of reinstatement within one month from the date of notification of the termination notice, claiming that no reason was not given in the termination notice or that the reason provided was not valid.
- Pursuant to this above-mentioned article, if no agreement is reached at the end of the mediation talks, the employee may file a lawsuit in the labor court within two weeks from the date of the final minutes of the mediation.
- The second paragraph of Article 92 of Law No. 6100 regulates that if a period is specified as a week, month, or year, the period ends at the end of the holiday time on the day corresponding to the day it started in the final week, month, or year.
- Article 93 of the same law regulates that if the last day of the period coincides with an official holiday, the period will end at the end of working hours on the first working day following the holiday.
In the concrete case, it is understood that the last day of the period for filing a lawsuit is the Eid al-Adha, which is an official holiday[3].
As a result, it is emphasized that; there is no dispute that the applicant should file the reinstatement case within the two weeks starting from the date of the disagreement minutes of mediation, and that the last day of the two weeks coincides with the last day of Eid al-Adha, which is an official holiday, and the following days coincided with Saturday and Sunday, which are weekends, and it is understood that the Local Court and the Court of Appeal have determined and accepted the last day of the limitation period as a working day when calculating the period to file a lawsuit. In the Decision, it is stated that this acceptance of the courts is contrary to the regulation stating that if the last day of the period falls on an official holiday, the period will end at the end of working hours on the first business day following the holiday.
In this respect, the Constitutional Court concluded that there was no legal basis for the reinstatement lawsuit filed by the applicant to be rejected out of period and decided that the applicant's right of access to court within the scope of the right to a fair trial guaranteed under Article 36 of the Constitution was violated.
As for the applicant's request for 50,000 TL pecuniary compensation and 50,000 TL non-pecuniary compensation the Constitutional Court rejected it because a retrial would provide a sufficient remedy to eliminate the violation and its consequences.
Conclusion
To avoid loss of rights, the correct determination of the period for filing a lawsuit is essential. In its recent decision, the Constitutional Court examined the claim that the right of access to the court was violated due to the dismissal of the case upon the erroneous determination of the period for filing a lawsuit. In this context, in the Decision, the provisions in the procedural legislation regarding the calculation of the period were discussed, and it was concluded that the determination of the last day of the period as a working day by the Local Court and the Courts of Appeal when calculating the period was contrary to the regulation stating that if the last day of the period coincides with an official holiday, the period will end at the end of working hours on the first working day following the holiday. In this framework, it has been decided that the applicant's right of access to the court within the scope of the right to a fair trial guaranteed under Article 36 of the Constitution has been violated.
- Please see Judgment para. 23 for a discussion of this issue.
- Translated by the Author.
- In the Decision, it is stated that Article 2 of the Law No. 2429 on National Holidays and General Holidays dated 17.03.1981 and numbered 2429 states official and religious holidays, New Year's Day, May 1 and July 15 as public holidays, and that the Eid al-Adha is a religious holiday.
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