Individual Application

The Facts

The applicant’s spouse, O.B., died as a result of a fire breaking out at the shopping mall where he had been working. Reserving her right to a surplus, the applicant then lodged an action for pecuniary and non-pecuniary compensation before the incumbent civil court. Upon the decision of lack of jurisdiction issued by the incumbent civil court, the file was referred to the 1^st Civil Court. The action for compensation brought by O.B.’s mother, father and siblings before the 5^th Civil Court was joined to that of the applicant.

The relevant civil court, concluding that the disputed incident fell under the scope of the Social Insurance Law no. 506 and was an occupational accident, ruled that it lacked jurisdiction to hear the case and referred it to the competent labour court. In the present case, the labour court dismissed the claim for pecuniary damages, on the basis of the expert reports obtained, since the pecuniary damages had been reimbursed by the relevant institution, but accepted the claim for non-pecuniary damages. On appeal, the decision of the labour court was ultimately quashed by the Court of Cassation due to the discrepancy between the expert reports. The labour court then ordered a new expert examination of the impugned incident. Upon the expert examination, the applicant submitted a petition to the court, seeking a rectification for an increase in the amount of claim for pecuniary damages. The labour court accepted the request for rectification. This decision was, however, quashed by the Court of Cassation in accordance with the decision of the Court of Cassation General Assembly on the Unification of Case Law (“Court of Cassation General Assembly”), on the ground that a claim could not be rectified following the quashing decision. Thereupon, the labour court awarded compensation for pecuniary and non-pecuniary damages, taking into consideration the amounts originally claimed before the request for rectification. This decision, which was appealed, was ultimately upheld by the Court of Cassation.

The Applicant’s Allegations

The applicant maintained that her right of access to a court had been violated due to the dismissal of her request for rectification of the claim for compensation, although the investigation stage had been still pending, on the ground that no rectification could be made following a quashing decision; and that her right to a trial within a reasonable time had been violated due to the unreasonably lengthy proceedings.

The Court’s Assessment

A. Alleged Violation of the Right of Access to a Court

The abovementioned decision of the Court of Cassation General Assembly, which forms the basis for the impugned decision in the present case, states that, as inferred from Article 84 of the repealed Law no. 1086, rectification can be carried out only during the investigation and prosecution stages, that is, until the conclusion of the proceedings and the issuance of a decision; and that the parties cannot exercise this right after the investigation and prosecution stages. There is no explicit or implicit provision in the relevant articles of the repealed Law no. 1086 and Law no. 6100 that excludes the possibility of rectification upon quashing. The general provisions excluding the possibility of rectification after quashing are established through jurisprudence. In the decision of the Court of Cassation General Assembly, which states that no rectification can be made upon a quashing decision, the investigation stage is confined to the proceedings before the first instance court prior to the quashing decision, and no assessment is made as to the nature of the investigatory actions to be performed following the quashing decision.

In the present case, pursuant to the decisions of the Court of Cassation General Assembly, which were relied on by the respective courts in the applicant’s case, the investigation stage was confined to the proceedings before the first instance court prior to the quashing decision, and no distinction and exception was made with respect to the cases where investigatory actions were to be carried out following the quashing decisions. Therefore, it can be said that the categorical interpretation by the incumbent courts, with respect to all disputes, to the effect that no rectification can be made upon a quashing decision constitutes a significant restriction on the right of access to a court. As a matter of fact, through the statutory amendment of 28 July 2020, the legislator has explicitly provided that in cases where the first instance court performs an investigatory action, rectification may be carried out until the end of the investigation.

In the light of these explanations, the Court has concluded that despite the existence of no explicit obstacle in the legislation to the submission of a request for rectification in cases where an investigation is conducted upon a quashing decision pursuant to the very same decision, the categorical interpretations excluding the rectification following a quashing decision in every case without any exception are unforeseeable; and that these interpretations fall contrary to the requirement of legality in constitutional terms.

As regards the proceedings in the present case, it has been concluded that the interference with the applicant’s right of access to a court -due to the dismissal of her request for rectification on the sole ground that no rectification could be carried out following a quashing decision, although the court once again proceeded to the investigation stage following the quashing decision so as to carry out the investigatory actions pursuant to the quashing decision- lacked any legal basis.

Consequently, the Court has found a violation of the right of access to a court falling under the right to a fair trial.

B. Alleged Violation of the Right to a Trial within a Reasonable Time

In determining the total duration of the proceedings concerning the disputes as to civil rights and obligations, the start date of the duration is accepted as the date when the legal action is brought, and the end date is accepted as the date when the proceedings -usually including the execution phase- are concluded. In assessing whether the overall duration of proceedings before the labour courts is reasonable, the courts take into account various factors such as the complexity of the proceedings, the number of levels of jurisdiction involved, the attitude of the parties and relevant authorities during the proceedings, as well as the applicant’s interest in the speedy conclusion of the proceedings. In view thereof, the Court has found unreasonable the overall duration of the proceedings, which lasted for 17 years and 3 months.

Consequently, the Court has found a violation of the right to a trial within a reasonable time falling under the right to a fair trial.