Ramazan Şaş, Application No: 2014/16928, 27 October 2016 [Right to Access to Court – Article 36 of the Turkish Constitution – Violation – Retrial]

A) Facts

The applicant, who was employed at the Directorate of Monopolies without any insurance between the years of 1979 and 2007, commenced an action of debt against unpaid labour and this action was found rightful. However, the termination date of the employment contract was written as “31 December 2006” in certain sections of the decision and as “1 January 2007” in other sections. The Court of Appeal upheld the decision of the first instance court. After that, the applicant filed an action for fixing of period of service for the determination of his employment period without insurance. However, the First Instance Court stated that the termination date of the contract had to be accepted as 31 December 2006 and dismissed the action on the ground of the lapse of time according to paragraph 10 of Article 79 of the former Law no. 506, which required that the relevant action to be filed within five years starting from the end of the last year of the service period. The applicant applied to the Constitutional Court claiming a violation of right to a fair trial as a result of a wrongful assessment of the last employment date, that contradicts with the former judicial decision stating the relevant date as “1 January 2007”, and asserting that the Court of Appeal upheld the mentioned decision without any reasoning.

B) Judgment and Reasoning of the Court

The Constitutional Court has found a violation against the right to access to court after stating that the reasoned decision given in the context of the action of debt did not make a definite determination as to the termination date of the employment contract, therefore the dismissal of the case on the ground of the lapse of time has presented an obvious discretionary mistake.

“In spite of the fact that the judgment given in the action of debt has not determined the last date of the applicant’s ‘service period’ in the workplace in an open and clear manner, to dismiss the case on the ground of the lapse of time in the action for fixing of period of service on the basis of indefinite findings, without a separate research and assessment was conducted and without assessing whether the date written in some sections of the reasoned decision given in the action of debt as ‘1 January 2007’ has affected the applicant in miscalculating the term of litigation, is considered as an obvious discretionary mistake” (§ 51).

The dissenting judge M. Emin Kuz argued in his dissenting opinion that the application should have been declared inadmissible on the ground of being manifestly ill-founded by asserting that “in the expert report on which the judgment was based, it was stated that the employment term of the applicant should be calculated as 27 years and 7 months starting from 1 June 1979 till 31 December 2006, whereas the term would be miscalculated as 27 years, 7 months and 1 day if the date of 1 January 2007 to be added into the employment term”, furthermore “two different dates referred as the ending date of employment in the previous judgment should be considered as a typographical error which shall not create any ambiguity needed to be researched and clarified as regards to the last date of the applicant’s service period in the workplace”.

C) Significance of the Judgment

This judgment is significant in concreting the “obvious discretionary mistake” criterion as regards to not determining the termination date of an employment contract.