Press Release No: Constitutionality Review 40/22

Press Release Concerning the Decision Finding Unconstitutional the Provision Envisaging that the Decision Dismissing the Appellate Request due to the Statute of Limitation shall Be Final

The Constitutional Court, at its session dated 20 July 2022, found unconstitutional and annulled the first sentence of paragraph (2) of Article 45 of the Administrative Adjudication Procedure Law No. 2577, as amended by Article 19 of Law No. 6545, and the phrase "...and the 6th..." in paragraph (7) of Article 48 amended by Article 17 of Law No. 3622, as amended by Article 21 of Law No. 6545, for being unconstitutional in so far as concerned the “submitting an appellate request after expiry of the statutory time limit”  (file no. E. 2022/48). 

Contested Provisions

The contested provisions envisage that in case of a failure to submit an appellate request within the statutory time limit, the decision rendered by the regional administrative courts dismissing the appellate request shall be final.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional since the contested provisions which are the subject of the appeal have resulted in the termination of a dispute which is subject to a multi-stage adjudication procedure, the examination of the merits of which is carried out by the judicial authority of first instance and may be referred to the appeal authority, with a decision which is to be taken for the first time on the application for review and which is not subject to appellate review, even if it is evident to the appellate authority from the documents in the case file that the appellate request was not submitted within the statutory time limit. Therefore, it is claimed that denial to examine the case file may result in a situation whereby the applicant is deprived of the chance to submit his reasonable claims and evidence to justify the impugned delay, such as the irregularities within the communication process or force majeure.

The Court’s Assessment

In cases where a decision on fundamental rights and freedoms is rendered by the highest court having jurisdiction in the relevant branch of judiciary, the inability to appeal it may not constitute a constitutional matter in terms of the right to an effective remedy. However, if the said decision is not rendered by the highest court, the lack of an effective remedy to challenge it shall not be put into this category.

In cases where the regional administrative courts - which do not qualify as the highest administrative courts - make the initial assessment of the failure to file an appeal within the statutory time limit, there may be instances where these courts base their judgments on a rigid and formalistic interpretation to the extent that the individuals would be imposed an excessive burden on account of the restriction on their right of access to a court, or where there are unclear legal issues regarding the calculation of the statutory time limit or legal issues that require interpretation, these may be interpreted in an unpredictable manner by the regional administrative courts. It's also probable that the aforementioned courts incorrectly applied the contested provisions on statutory time limits.

The contested provisions hinder individuals from exercising their allegations and appeals against relevant decisions of the Regional Administrative Courts, which may constitute a disproportionate interference with the right of access to the courts and therefore lead to a violation of the aforementioned right, in other words, it precludes the availability of an effective remedy capable of preventing the execution of the violation in question.

Hence, the contested provisions hinder the legal remedies to challenge the decisions which have not been rendered by the highest court operating in the relevant branch of judiciary (Council of State). Thus, they fall foul of the right to an effective remedy, safeguarded by Article 40 of the Constitution, in conjunction with the right of access to a court safeguarded by Article 36 thereof.

Consequently, the contested provisions have been found unconstitutional and therefore annulled.

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