Press Release No: Individual Application 92/21

Press Release concerning the Judgment Finding a Violation of the Right of Access to a Court due to Dismissal of the Full Remedy Action as Time-Barred

On 6 October 2021, the First Section of the Constitutional Court found a violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution, in the individual application lodged by Hayat Abdulbari and Muhanned Ferdusi (no. 2018/35788).

The Facts

The applicants are the mother and brother of M.F. who lost his life after the goalpost on the public beach had fallen on his head. At the end of the investigation launched by the chief public prosecutor’s office (“prosecutor’s office”) into the incident, a decision of non-prosecution was issued in respect of those responsible for placing the goalpost. The applicants claimed pecuniary and non-pecuniary compensation from the Municipality, arguing that the decision of non-prosecution had not been communicated to them. Upon the implicit rejection of their claims, the applicants brought a full remedy action before the administrative court which would dismiss the case as time-barred. The applicant’s subsequent appeal was also rejected by the regional administrative court.

The Applicants’ Allegations

The applicants claimed that their right of access to a court had been violated, stating that the full remedy action they had brought due to the death of their relative as a result of the public authorities’ failure to take the necessary measures had been dismissed as time-barred.

The Court’s Assessment

According to the pertinent case-law of the Council of State, in order for the administration to be held liable for compensation in the full remedy action brought for redressing the damage suffered as a result of an administrative act, there must be an administrative act and damage, and there must be a causal link between them. While the administrative nature of, and the damage caused by, a given act sometimes emerge at the very moment when it is performed, it may sometimes be established after a long time through various researches, examinations and even at the end of criminal proceedings. Thus, in cases where the damage caused on account of the administrative nature of the said act or the causal link between them has been understood or could be revealed long after the act, the time-limit prescribed for bringing an action shall start to run after that date.

The administrative court dismissed the case on the ground that “the plaintiffs had learned about the death incident underlying their claim for damages and the facts giving rise to it on the date of the incident, namely on 25 September 2015, and that … while the plaintiffs were required to claim compensation from the administration for the damages allegedly sustained by them within one year since 25 September 2015, which is the date when they learned about their relative’s death allegedly in breach of their respective rights, and were also required to bring an action within 60 days after the full or partial rejection of their request, they brought an action approximately 2 years after the incident upon receiving a copy of the investigation file  to which they did not even submit a complaint.”

At all stages of the proceedings, which have been the subject-matter of the individual application, the applicants maintained that on 7 June 2017 Hayat Abdulbari submitted a petition to the prosecutor’s office with the assistance of a friend of hers who spoke Turkish as well as Arabic, and after receiving a copy of the investigation file and her friend’s translating the decision of non-prosecution for her, she learned the fact that the goalpost falling on his son’s head had belonged to the Municipality and had been taken to the beach by the garage supervisor, which was an indication of the possibility of a service failure attributable to the former, and that she therefore had victim status and had certain rights.

Examination of the case file revealed no information or document indicating that the applicants had participated in the investigation process, that they had been informed of the outcome of the investigation before 7 June 2017 or that the decision of non-prosecution had been served on Hayat Abdulbari whose statement had been taken. In fact, it is set forth in Article 172 § 1 of the Code of Criminal Procedure no. 5271 that the decision of non-prosecution should be communicated to the aggrieved party.

Although the fact that the applicant Hayat Abdulbari, who had been aware of the investigation launched by the prosecutor’s office only when her statement had been taken, had waited for 1 years and 8 months to learn the outcome of the investigation may be considered as the lack of due diligence expected of individuals wishing to pursue their cases and applications, the factors such as the applicants’ being of Syrian origin, their inability to speak Turkish and their not having received legal assistance during the investigation should be taken into account while determining the statutory time-limit set for bringing an action.

Considering as a whole the circumstances, including the fact that the failure of the prosecutor’s office to communicate the decision of non-prosecution to the applicants had resulted in a delay in their being aware of the administrative nature of the impugned act, the Court has evaluated that the acknowledgement by the administrative court to the effect that the statutory time-limit for bringing an action should have started to run from the date of the impugned death made it extremely difficult for the applicants to bring an action. Accordingly, it has been concluded that the aforementioned interpretation resulted in the dismissal of the case as time-barred, thus constituting a disproportionate interference with the applicants’ right of access to a court.

Consequently, the Court has found a violation of the right of access to a court.

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