Individual Application 90/19
Press Release concerning the Judgment Finding a Violation of the Right of Access to a Court due to Dismissal of the Action for the Alleged Lack of Capacity to Sue
On 12 September 2019, the Second Section of the Constitutional Court found a violation of the right of access to a court safeguarded by Article 36 of the Constitution in the individual application lodged by Kudus-i Şerifte Kain Maryakop Ermeni Kilisesi Vakfı (no. 2016/14982).
The applicant is an Armenian church foundation based in Jerusalem. A report issued at the end of the inspection carried out by the General Directorate of Foundations stated that “the Foundation of Maryakup Armenian Church located in Kumkapı district of İstanbul and the headquarters of which is located in Jerusalem” should be granted the status of fused foundation (Foundations to be governed and represented by the General Directorate of Foundations as per the Foundations Law no. 5737). On 18 July 1973 the Administrative Council held that the foundation be granted the status of fused foundation. However, the applicant brought an action for annulment against the said administrative act before the administrative court (“the court”) on 19 July 2012. The court dismissed the case. Upon the applicant’s appeal, the decision was upheld by the Council of State. The applicant’s subsequent request for rectification was also dismissed.
The Applicant’s Allegations
The applicant maintained that his right of access to a court had been violated due to dismissal, for the alleged lack of capacity to sue, of the action it had brought against the administrative act whereby it had been granted the status of fused foundation.
The Court’s Assessment
The right of access to a court that is safeguarded by Article 36 of the Constitution is not absolute and may be subject to limitations. However, in accordance with the principle of proportionality enshrined in Article 13 of the Constitution, the said limitations must not make it impossible or extremely difficult to have access to a court.
It appears that dismissal of the action brought by the applicant for annulment of the impugned administrative act on the ground that the respondent of the said act was another foundation constitutes an interference with the right of access to a court. The criterion which is of particular importance for the assessment of the impugned interference is proportionality. In this respect, the Court assessed whether the impugned measure had placed an excessive and disproportionate burden on the applicant.
It has been observed that the uncertainty as to whether there were indeed two separate foundations and whether the applicant was the respondent of the impugned administrative act could not be fully clarified in the present case. The Court has accordingly concluded that the inferior courts dismissed the applicant’s action for its lack of capacity to sue without making no adequate inquiry into whether the applicant was indeed the respondent foundation.
It appears that the question whether there was another foundation should have been clarified in view of the records and documents submitted by the administration and the applicant as well as notably the functioning process and history of the applicant foundation prior to the impugned administrative act and by also seeking information from all relevant institutions and organizations. Therefore, the applicant had to bear a personal and excessive burden due to the dismissal of the action, for its lack of capacity, without a relevant and adequate inquiry into the existence of another foundation. It has been accordingly concluded that the interference with the applicant’s right of access to a court was disproportionate.
Consequently, the Court has found a violation of the right of access to a court 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.