Individual Application

The Facts

The applicant, who had retired from the municipality where he had worked as a labourer, brought an action against the municipality for payment of his debts under the collective agreement for the period during which he had worked. In addition to filing the action as an action for an indefinite debt, the applicant also stated the amount of the compensation he claimed as 6,539.68 Turkish liras, reserving his rights in respect of the surplus. The applicant amended his action in the light of the expert’s report and increased his compensation claim to 11,745.23 Turkish liras. The Civil Court of First Instance partially upheld the action and ordered 8,827.97 Turkish liras to be paid to the applicant as compensation.

The 22^nd Civil Chamber of the Court of Cassation recognised that the debt was not indefinite, held that the applicant had no legal interest in bringing an action for an indefinite debt before the conditions were met, instead of bringing an action for a full/partial debt (general action for performance), and reversed the decision of the Civil Court of First Instance on the grounds that the action should be dismissed on procedural grounds. Following the reversal and adopting the reasoning of the reversal decision, the Civil Court of First Instance dismissed the action on procedural grounds for lack of legal interest, and this decision was upheld by the Chamber.

The Applicant’s Allegations

The applicant claimed that his right of access to a court had been violated by the dismissal of his action for non-payment of his salary on the ground that there was no cause of action (on the ground of failure to state a claim).

The Court’s Assessment

The action for an indefinite debt is a type of action introduced for the first time by the Code of Civil Procedure no. 6100 and aims to prevent the applicant, who cannot fully calculate his debt at the time of filing the action, from losing his rights due to the statute of limitations. The applicant is thus relieved of the obligation to state the exact amount of the debt in the statement of claim (petition) and has the opportunity to obtain the actual amount of the debt determined during the proceedings, without being subject to the prohibition on extending the action and without being exposed to the risk of limitation. It is therefore clear that the action for an indefinite debt, as opposed to the general action for performance, offers some additional advantages in terms of the creditor’s right of access to a court.

As stated in the preamble to Article 107 of Law no. 6100, the purpose of an action for an indefinite debt is to ensure the exercise of the freedom to seek justice and to facilitate access to the courts. In cases where it is not possible for the creditor to fully calculate his debt, the legislator has introduced the possibility of bringing an action for an indefinite debt in order to prevent the loss of rights due to procedural requirements. In this respect, it is understood that the action for an indefinite debt is a legal remedy brought to prevent the substance of the case being sacrificed to the procedure.

In order to ensure that the interference with the right of access to a court is proportionate, dismissal of the action for lack of legal interest should be the last resort. Article 119 of Law no. 6100 provides that if the statement of claim is incomplete, the judge shall grant the applicant a specific period of one week to remedy the deficiency. Article 115 § 2 of the same Law states that if it is possible to remedy the lack of cause of action, a definite period shall be set for its completion, and if the lack of cause of action is not remedied within this period, the case shall be dismissed on procedural grounds for lack of cause of action. Article 31 of Law no. 6100 states that the judge has the power to clarify matters that are unclear or contradictory.

It is observed that the provisions referred to above confer on the judge wide powers to bring the statement of claim issued in breach of procedure into line with the procedure. The purpose of conferring these powers on the judge is to prevent the applicant’s substantive right from being sacrificed to the procedure because of certain formal defects, and thus to ensure that he/she benefits from the right of access to a court safeguarded by Article 36 of the Constitution. Therefore, in the event that the action is erroneously considered to have been brought in the form of an action for an indefinite debt, it is considered that granting the applicant time to clarify the outcome of the claim by accepting the case as a general action for performance is a remedy to avoid a severe intervention in the form of a procedural dismissal of the action. Although the Chamber has accepted that, in the case of an indefinite debt, no time limit can be granted pursuant to Article 119 of Law no. 6100 because of the indefinite nature of the claim, it is clear that the outcome of the claim will be incomplete if the action is accepted as a general action for performance. The granting of a period of time for the correction of a statement of claim which is considered to be deficient and to bring it into conformity with the procedure guarantees the applicant’s right of access to a court.

The possibility of bringing an action for an indefinite debt, which was introduced by the legislature in order to make it easier for plaintiffs to exercise their right of access to a court, had consequences to the detriment of the applicant in the present case as a result of the Chamber’s strict interpretation. The applicant was deprived of the right to bring a dispute concerning his civil rights before the Court simply because he had stated in his statement of claim that his case was one of indefinite debt. The fact that the applicant erroneously brought an action for an indefinite debt not only prevented him from benefiting from the advantages of an action for an indefinite debt, but also deprived him of the rights which he could have obtained by way of a general action for performance.

It may be considered reasonable that the effect of a failure to comply with the conditions of an action which confers additional benefits in terms of access to justice should be limited to the removal of those additional benefits. In such a case, it may be considered that the choice of a remedy which results in the person not benefiting from these additional opportunities does not impose a heavy burden on the person. On the other hand, measures which would cause the person to suffer deprivations going beyond the inability to benefit from the advantages of the action for an indefinite debt because the action for an indefinite debt was brought before the conditions were met cannot be accepted as a last resort. In the present case, the fact that the applicant had brought an action for an indefinite debt without complying with the conditions not only meant that the applicant could not benefit from the advantages of the statute of limitations or the prohibition on extending the action, but also made it completely impossible for the applicant to bring an action for the debt arising from the collective labour agreement.

As a result, it was held that the dismissal of the applicant’s action for an indefinite debt, which had been filed before the applicant’s conditions had been met, on the grounds of lack of cause of action, was not the last resort that could be resorted to, taking into account the possibilities of procedural law. With regard to the interference with the right of access to a court by the dismissal of the action for lack of legal interest, it was concluded that the choice of a severe remedy, which makes it impossible for the applicant to have access to the courts, is not in accordance with the requirement of necessity, instead of choosing a milder intervention to achieve the objective of ensuring the filing of the action, which is the most effective in terms of resolving the civil law dispute.

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