Individual Application 113/19

Press Release concerning the Judgment Finding a Violation of the Right of Access to a Court for Running of the Statutory Time-limit from the Incident Date

On 7 November 2019, the First Section of the Constitutional Court found a violation of the right of access to a court under the right to fair trial safeguarded by Article 36 of the Constitution in the individual application lodged by Ali Ertan and Others (no. 2016/6190).

The Facts

The applicants are the relatives of two lieutenant pilots who died as a result of a plane crash taking place due to the fire opened by a foreign State’s forces while serving in the Turkish Armed Forces.

The Military Prosecutor’s Office of the Turkish General Staff issued an indictment against the military officers considered to have negligence or fault in the incident, and subsequently a public action was brought against several military officers for causing death by lack of attention and due precaution, issuing false report and professional misconduct.

Maintaining that the administration was in fault and had responsibility for deaths of the pilots, the relatives of the deceased persons applied to the Ministry of National Defence, seeking non-pecuniary compensation. However, their claims were implicitly rejected. In the action for compensation which was brought by the applicants thereafter, the Supreme Military Administrative Court (“SMAC”) dismissed both actions for being time-barred. The request for rectification of the decision was also dismissed by the SMAC.

The Applicants’ Allegations

The applicants maintained that the dismissal, as being time-barred, of the action for compensation brought on account of the deaths taking place while performing a military duty was in breach of their right of access to a court.

The Court’s Assessment

The applicants complain of the violation of the right of access to a court as the date when the deaths had taken place was taken as a basis for the start of the period prescribed for resorting to an administrative remedy.

The Second Chamber of the SMAC dismissed the applicants’ action, noting that they had become aware of the deaths and the sustained damage at the date of the incident and that the action brought upon the expiry of the one-year time-limit running as of that date became time-barred. The SMAC also indicated that the indictment whereby the military officers were also held liable for the incident had had no effect on the time-limit for filing of an action by the applicants.

As also pointed out by the Court in similar applications, an administration may be held liable for compensation through an action for compensation which is brought seeking redress for the damage sustained on account of an administrative act only when there have been an administrative act and damage as well as a causal link between the administrative act and the sustained damage.  In this respect, it must be accepted that in cases where the administrative nature of act, or the damage it has caused, or the casual link between them, is found out or can be proven long after the incident, the prescribed time-limit for filing an action will start running only thereafter.

Notably in cases of loss, injury or death taking place during the military task, the question whether the incident has taken place due to an attack, an accident or negligence will be elucidated at the end of a judicial or administrative investigation to be conducted. In this sense, information obtained during, or at the end of, an investigation plays an important role in determination of the question whether those concerned have a right of action as well as of the procedure they will follow.

In the present case, although it is evident that the pilots died as a result of the crash of the plane they were in by the attack of a foreign State, the military prosecutor’s office indicted several military officers for having fault and/or negligence in the incident, and accordingly a public action was brought against these officers. It has been observed that as the indictment was served on the applicants on 11 April 2014, they had not been aware of the administrative nature of the impugned act until that date.

In this regard, expecting the applicants to file an administrative action, with respect to the damage they sustained, within the prescribed time-limit which started running from the date of the incident placed a disproportionate burden on them.

The Court has accordingly considered that the approach adopted by the SMAC in setting the time-limit for bringing an action was a strict interpretation of the applicants’ right of access to a court, which practically impeded the exercise of the said right by the applicant. In the light of these considerations, the impugned interference with the applicants’ right of access to a court due to dismissal of their action as being time-barred has been found disproportionate.

Consequently, the Constitutional Court has 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.

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