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Judgment of Constitutional Court of the Republic of Turkey Regarding the Application by Kamil Serdar Oğur and Gülhan Oğur Number of Application: 2014/7273 Date of Judgment: 20.04.2017

Anayasa Mahkemesinin Kamil Serdar Oğur ve Gülhan Oğur Kararı Başvuru Numarası: 2014/7273 Karar Tarihi: 20.04.2017

Gökhan AYKUT

The fact that the merits of the case couldn’t be examined for many years by virtue of judgments regarding -rejection of venue and lack of jurisdiction given by different court different courts resulted in violation of right to trial within a reasonable time and such a situation is unacceptable in a state of law. The judgment of the Constitutional Court dated 20.04.2017 has been examined in this scope and we came to the same conclusion with the Constitutional Court that to spend nearly 5 years to fulfill the procedural shortcomings because of misjudgments would be a violation of right to trial within a reasonable time.

Judicial Remedy, Lack of Jurisdiction, Lack of Competence, The Right to a Fair Trial, the Right to Trial within a Reasonable Time.

Farklı mahkemelerce verilen yargı yolu yanlışlığı, görevsizlik ve yetkisizlik kararları sebebiyle, uzun yıllar boyunca yargılamanın esasına girilememiş olması makul sürede yargılanma hakkının ihlal edilmesi sonucunu doğurmakta olup, hukuk devletinde böyle bir durumun varlığı kabul edilemez. Anayasa Mahkemesi’nin 20.04.2017 tarihli kararı, bu çerçevede incelenmiş olup, mahkemelerce verilen hatalı kararlar sebebiyle yaklaşık 5 yıllık sürenin usûli eksiklikleri gidermeye harcanması, kanaatimizce, Anayasa Mahkemesi ile aynı yönde makul sürede yargılanma hakkının ihlali olarak görülmüştür.

Yargı Yolu Yanlışlığı, Görevsizlik, Yetkisizlik, Adil Yargılanma Hakkı, Makul Sürede Yargılanma Hakkı.

I. Introduction

The judgment which we examined is the judgment of Constitutional Court dated 20.04.2017 regarding an individual application by Kamil Serdar Oğur and Gülhan Oğur1 . The application is about the claim that the right to a fair trial was violated because of the fact that a contradictory judgment was given in defiance of procedure and merits in lawsuit filed for pecuniary and non-pecuniary damages; the right to justified judgment because of the fact that essential points had not been addressed in the judgment and the right to trial within a reasonable time because of the fact that the trial took a long time.

Regarding the application, the Constitutional Court decided that the right to trial within a reasonable time which is guaranteed by article 36 of the Constitution was violated while deciding on the inadmissibility of the application because of the fact that remedies weren’t exhausted in terms of other violation claims.

And we will make our examination on the judgment as to, in general, whether the right to trial within a reasonable time guaranteed by article 36 of the Constitution was violated or not and will not make a detailed examination in terms of other violation claims.

II. Summary of the Case

1. The applicants who are married purchased a flat owned by Armed Forces Pension Fund (OYAK), that is situated in İkitelli and the flat was delivered to the applicants in 2009.

2. The applicants claimed 18.000 liras in respect of pecuniary damages and 4.000 liras for non-pecuniary damages in the lawsuit they filed at 2nd Civil Court of First Instance of Küçükçekmece on 03.06.2010 by alleging that when they examined the Environmental Impact Assessment (EIA) report on the site in which the flat they purchased is located; the price of the flat was unreasonable, the sale was given in defiance of law and good faith and due to this irregular sale, they suffered material and moral damages.

3. The Court of First Instance decided on its lack of competence and that the file be submitted to the 25th First Instance Court on Duty of Ankara on 07.12.2010 by stating that the address of OYAK General Directorate was Kurtuluş/Ankara.

4. Upon the judgment of lack of competence, the 25th First Instance Court on Duty of Ankara, to which the file was submitted, decided that it lacked jurisdiction on 12.05.2011 by stating that the parties bore the character of consumer-seller defined in the Law numbered 4077 on the Protection of the Consumer; this judgment was appealed by the applicants. The judgment on lack of jurisdiction dated 12.05.2011 was approved by the judgment of 13th Civil Chamber of Supreme Court of Appeals on 21.12.2011.

5. Upon the approval of the judgment of lack of jurisdiction, 6th Court on Duty of Ankara Consumer Court, to which the file was submitted, decided on its lack of competence and that the file be submitted to Court on Duty of Bakırköy Consumer Court on 25.09.2012 by stating that the settlement of claimants was Başakşehir/İstanbul.

6. Upon the judgment of lack of competence, 1st Court on Duty of Bakırköy Consumer Court, to which the file was submitted, decided on its lack of competence on 10.10.2013 by stating that the judgment of lack of competence was taken although a jurisdiction plea wasn’t entered by the defendant, 2nd Court of First Instance of Küçükçekmece, which reviewed the file for the first time, solved the issue of competency, the case had to be ruled by Court on Duty of Ankara Consumer Courts according to the judgment of Supreme Council of Judges and Prosecutors and Supreme Court of Appeals; this judgment was appealed by the applicants. 10.10.2013 dated judgment of lack of competence of 1st Consumer Court of Bakırköy was approved by 01.04.2014 dated judgment of 13th Civil Chamber of Supreme Court of Appeals.

7. 01.04.2014 dated judgment of approval of 13th Civil Chamber of Supreme Court of Appeals was notified to the applicants on 29.04.2014; the applicants filed an individual application to Constitutional Court on 27.05.2014 by claiming for the payment of pecuniary damages of 10.000 liras and non-pecuniary damages of 25.000 liras to them separately with the allegation that their right to a fair trial, justified judgment and trial within a reasonable time was violated.

8. Upon the approval of the judgment of lack of competence gave by 1st Consumer Court of Bakırköy by 01.04.2014 dated judgment of 13th Civil Chamber of Supreme Court of Appeals, after 27.05.2014 when an individual application was given to the Constitutional Court by the applicants, 6th Consumer Court of Ankara, to which the file was submitted, decided on the dismissal of action in terms of procedure on 12.03.2015 due to wrongness of the judicial remedy, by stating that the person whom the claimants addressed their claims was OYAK, the claim stemmed from the social aids and services provided by OYAK to the members of Turkish Armed Forces by operation of law as also mentioned in the judgments of Court of Jurisdictional Disputes, these services were operated together with military service, therefore the place of jurisdiction was Supreme Military Administrative Court.

9. With 14.05.2015 dated petition they wrote addressing 6th Consumer Court of Ankara, the applicants requested the correction of the judgment by stating that the court didn’t decide on the submission of the file to Supreme Military Administrative Court and attorney’s fee was ordered also with this judgment whereas the attorney’s fee which was the litigation cost shouldn’t be ordered.

10. In its 18.05.2015 dated judgment, 6th Consumer Court of Ankara rejected the claim of applicants for the correction of judgment by deciding that the lawsuit was rejected due to the wrongness of judicial remedy, it was not possible to decide on the submission of the file to the relevant court in such judgments, while in terms of the attorney’s fee which was the litigation cost, attorney’s fee which was the litigation cost couldn’t be ordered in case of the dismissal of action due to the judgment of lack of competence or lack of jurisdiction, whereas here there wasn’t any unlawfulness on the grounds that the lawsuit was rejected due to the wrongness of judicial remedy.