Press Release No: Individual Application 29/20

Press Release concerning the Judgment Finding a Violation due to Dismissal of the Action brought by a Trade Union on behalf of the Applicant

On 26 February 2020, the Second Section of the Constitutional Court found a violation of the right of access to a court falling within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution in the individual application lodged by Mustafa Berberoğlu (no. 2015/3324).

The Facts

The applicant, a trade-union representative at his workplace, was given disciplinary punishments by the institution where he was holding office. For failing to adapt himself to his office, the applicant was then appointed to another institution. The trade union of which the applicant was a member brought an action, on behalf of him, against the appointment. The incumbent administrative court dismissed the action. In upholding the first instance decision during the appeal process, the Council of State noted that the file contained no document whereby the trade union was authorised by the applicant to bring an action on his behalf. It also dismissed the applicant’s request for rectification of the dismissal decision.

The Applicant’s Allegations

The applicant maintained that his right of access to a court had been violated due to dismissal of the action brought by the relevant trade union against his appointment for lack of litigation capacity.

The Court’s Assessment

In its examinations as to the individual applications before it, the Court has noted that the restrictions whereby individuals have been denied access to a court may infringe the right of access to a court.

In the present case, an action was brought against the applicant’s appointment by the trade union acting on behalf of the former. The Council of State acknowledged that the trade union was entitled to bring an administrative action on behalf of the applicant on condition of being authorised with a power of attorney pursuant to the Law no. 4688 on Civil Servants’ Trade Unions and Collective Bargaining. It however noted that the trade union had no litigation capacity as the applicant did not grant an explicit authorisation and accordingly dismissed the action. Thereafter, the applicant requested rectification of the dismissal decision, stating that the document authorising the trade union to bring an action on his behalf was indeed included in the file and that any deficiency, if found, could be easily remedied. His request was also rejected by the Council of State.

Regard being had to the fact that in cases where an action is dismissed for lack of litigation capacity, it is almost impossible to bring a fresh action, this procedure must be applied only as a last resort. If an administrative action is dismissed for lack of litigation capacity, it is all but impossible to bring a fresh action in due course. The dismissal of an administrative action for lack of litigation capacity constitutes a particularly severe interference with the right of access to a court. Therefore, this procedure is to be applied only in the absence of any alternative means of a less severe nature.

The Code of Civil Procedures no. 6100 (“the Code”) has introduced mechanisms so as to preclude immediate dismissal of an action in case of any deficiency in documents, namely power of attorney and authorisation certificate. It is accordingly ensured that any deficiency found in this respect may be subsequently remedied by the relevant party. The judgments rendered by the Council of State also reveal that such deficiencies may be remedied through interlocutory decisions. This procedure is undoubtedly more appropriate for the approach according to which the exercise of fundamental rights is essential, but their restriction is exceptional. However, in the present case, the Council of State failed to provide the trade union with the opportunity to remedy the deficiency. It did not also explain why it had not resorted to this procedure, which was a less severe means of interference, or why this procedure was considered not to be capable of achieving the legitimate aim pursued.

Nor was it discussed why the relevant provisions of the Code, which would preclude the immediate dismissal of the action, had not been applied in the present case. The interpretation adopted by the Council of State rendered the applicant’s access to a court impossible.

In resorting to a more severe means, which precluded the applicant’s access to a court, despite the existence of a less severe means of interference to achieve the pursued aim, the Council of State acted in breach of the principle of necessity.

Consequently, the Court has found a violation of the right of access to a court falling within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution.

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