Press Release No: Individual Application 8/17
06.04.2017

PRESS RELEASE CONCERNING THE DECISION ON CONSTITUTIONAL AND PERSONAL SIGNIFICANCE

The Constitutional Court held, at its plenary meeting on 1/12/2016, with regard to the individual application lodged by K.V. (App. No. 2014/2293) that the application found to be devoid of constitutional and personal significance was inadmissible without being subject to any further examination in terms of the other admissibility conditions.

The Facts

The applicant being a self-employed lawyer brought a full remedy action before the Supreme Military Administrative Court (“the SMAC”) for being insulted by his superior while he was fulfilling his military duty. The Second Chamber of the SMAC decided through its decision of 9 October 2002 that the claim for compensation was partially accepted and partially rejected. The applicant requested rectification of the decision of partial rejection; the Second Chamber of the SMAC rejected this request by its decision of 26 February 2003, and the applicant was imposed a fine of 54,55 Turkish Liras (“TRY”) regarding rectification of the decision.

The Presidency of the High Military Administrative Court issued a writ to the Tax Office on 3 March 2003 to ensure the collection of the fine; and the Tax Office transmitted the payment order to the applicant’s address on 4 May 2007, intended to make a notification through an officer on 22 July 2008 but upon the failure to make the notification, it publicly notified the payment order on 29 December 2008.

After a letter requesting a meeting on payment of the debt had been sent by the Tax Office to another address of the applicant, the applicant made a cancellation request (terkin talebi) on 31 December 2011 alleging that the mentioned fine was time-barred. His request was rejected by the act of 27 January 2012. The aforesaid debt was collected on 29 February 2012 as TRY 184, plus the interest.

The applicant brought an action for the cancellation of the notice by publication and of the act regarding rejection of the cancellation request, stating that he had been a tax payer in the capacity of a self-employed lawyer since 2004, that he submitted a declaration every month, that the addresses indicated in the tax declarations were deemed to be as among the well-known addresses, that there was an effort to notify the payment order to an address other than the known address and without making any sufficient research. He accordingly alleged that this notification is contrary to law, and that the collection of time-barred debt is at issue.

The 6th Chamber of the Ankara Administrative Court dismissed the action on the grounds that the procedure of notice by publication cannot be actionable since it is not a certain procedure to be carried out on a compulsory basis, and that the fine in question had not time-barred.. The Administrative Court also awarded the attorney’s fee as TRY 660 in favor of the respondent administration (the defendant).

The applicant raised an objection to the mentioned decision alleging that his claims regarding the illegality of the notice by publication was not examined and that the attorney’s fee was awarded even though the respondent administration (the defendant) was not represented by an attorney. The 1st Board of Ankara District Administrative Court rejected the objection by it decision of 18 December2003 with reference to the decision rendered by the first instance court.

The Applicant’s Allegations

The applicant maintained that within the scope of the action he brought against the imposition of fine following the rejection of his request for the rectification of the decision before the SMAC and the act of collection of this fine as TRY 54,55 , his allegations with regard to the notification procedure and the fact that fine was time-barred were not assessed by the instance court and an amount of TRY 660 was awarded against him as the attorney’s fee. He accordingly alleged that his right to a fair trial was violated.

The Court’s Assessment

The Constitutional Court dealt with the allegations made with regard to the action brought against the act of the collection of fine in terms of the criterion of “lacking of constitutional and personal significance”.

In brief, the Constitutional Court made the following assessments in the context of these allegations:

The mentioned criterion is set out in paragraph (2) of Article 48 of the Law no. 6216 derives from the ever-present De minimis non curat praetor principle stating that the judge should not deal with minor/ insignificant issues.

The said principle is being applied in the field of human rights law as well due to the heavy work load faced by the international courts and the constitutional courts entrusted with the duty of reviewing individual applications or constitutional complaints and due to the difficulty they have in carrying out their main functions. Thus, such regulations were made in the laws setting out the functions and powers of the Federal Constitutional Court of Germany and the Constitutional Court of Spain as well as in the European Convention on Human Rights. The European Court of Human Rights, the Federal Constitutional Court of Germany and the Constitutional Court of Spain have established their case-law in respect thereof.

With regard to thousands of applications, the Constitutional Court has interpreted and enforced the constitutional provisions on fundamental rights and freedoms since 23 September 2012 the date when it started to receive individual applications, and has attained the accumulation of jurisprudence in such a number and of such a nature as to enforce the criterion of “lacking of constitutional and personal significance” and to establish the relevant case-law.

Two conditions are prescribed in the Law no. 6216 for the applications lacking of constitutional and personal significance to be declared inadmissible: the first condition that can be called as “the constitutional significance” implies that “the application is not significant in terms of enforcement and interpretation of the Constitution or the determination of the scope and limits of fundamental rights”, and the second condition that can be called as “the personal significance” implies that “the applicant shall not suffer a significant damage.”

What “the constitutional significance” and “the personal significance” imply have not been explicitly regulated in the Law but this issue has been left to the discretion of the Constitutional Court. Besides, due diligence to be exercised by the applicants for the display of the existence of constitutional and personal significance would have a bearing on the assessment to be made by the Court.

The condition of constitutional significance contains two elements that could be expressed as being significant in terms of “interpretation” and “implementation” of constitutional provisions on fundamental rights and freedoms.

There is no doubt that the element of being significant in terms of interpretation of constitutional provisions contains firstly the issues which the Constitutional Court has not interpreted before through individual application. Besides, even if the Court interpreted previously the relevant provisions of the Constitution regarding an issue, it can feel the need to reinterpret them, taking into account the changing situations.

As for the element of being significant in terms of implementation of the Constitution, it reveals itself particularly in the discrepancy between the Court’s interpretation of constitutional provisions and implementation thereof carried out by public authorities and instance courts. However, each discrepancy in implementation does not imply that the application is significant in terms of implementation of the Constitution. To be able to say that the application is significant in terms of implementation of constitutional provisions on fundamental rights and freedoms, taking into account the purpose of setting the criterion of “lacking of constitutional and personal significance” as well, it is required that the implementation by public authorities and instance courts regarding a specific issue be different from the interpretations of the Constitutional Court, and also that this difference be significant. In other words, since this criterion is directly linked with the respect for the Constitution, not all kinds of differences arising between the interpretation of the Constitutional Court and implementation by public authorities and instance courts but merely the differences to impair the respect for the Constitution should be considered significant.

The condition of personal significance implies that the applicant has not suffered a major damage. This criterion is related to the degree of the negative effect of the concrete case on the applicant’s personal situation. Whether the arising personal damage is significant or not is not determined by the applicant’s subjective perception. This issue is considered by the Constitutional Court, taking into account the specific conditions of each case including the applicant’s conditions and acting on the basis of objective data. Whether the damage may be measured in money or not is not determinative for the assessment of its importance. It is possible to apply the criterion of “lacking of constitutional and personal significance” in respect of the damages which are not possible to be measured in money, as well.

The applicant’s allegation concerning that their claims are not assessed by the instance court is in relation to the right to a reasoned decision falling into the scope of the right to a fair trial and his allegation that an attorney’s fee was awarded against him is in relation to the right of access to court falling into the scope of the right to a fair trial. Accordingly, the Constitutional Court determined and interpreted the scope and content of the right to a reasoned decision and of the right of access to court, with regard to many applications brought before it.

Even though it can be asserted that the implementation by the instance court constituting the subject matter of both complaints lodged by the applicant differs from the interpretations the Court has adopted in its case-law, it has been revealed that this difference does not indicate a general problem.

Thus, the Constitutional Court has concluded that the application concerning the alleged violation of the right to a reasoned decision and the right of access to court in respect of which the Court has an explicit case-law implemented very often does not indicate a general problem, and that it cannot be set forth that it is significant also in terms of the implementation and interpretation of the Constitution or the determination of the scope and limits of fundamental rights.

In terms of personal significance; the applicant states that he paid TRY 184 for the fine imposed as TRY 54,55 for the rectification of the decision; that an amount of TRY 660 was awarded against him as the attorney’s fee in consequence of the action he had brought against the act of collection; and that he also paid TRY 114,85 and TRY 100 as fee and postage for the above-mentioned proceedings. So, the total amount of the pecuniary damage that the applicant suffered due to the alleged violations is TRY 1.058,85. Having regard to the fact that the applicant, who is serving as a self-employed lawyer, failed to make an explanation to indicate that such an amount seriously damaged his financial situation and how significant it is for him, the Constitutional Court has concluded that this is not a significant damage for him.

Consequently, having reached the conclusion that the application is not significant in terms of implementation and interpretation of the Constitution and also that the applicant has not suffered a major damage, the Constitutional Court declared this part of the application which is understood to be lacking of constitutional and personal significance inadmissible without any examination in respect of the other admissibility conditions.

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

The Constitutional Court of the Republic of Turkey © 2015
Number of Visitors: