LEXIST

With the decision of the Constitutional Court numbered 2019/17969 and dated 8 June 2023 published in the Official Gazette

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The Judicial Process and the subject of the Application:

As a result of the trial conducted by the court of first instance, it was decided to accept the undetermined receivables lawsuit filed by the applicants for the collection of claims arising from employment. The 22nd Civil Chamber of the Court of Cassation ruled that since the claims subject to the lawsuit could be determined, the plaintiffs had no legal interest in filing an undetermined receivables lawsuit and that the lawsuits should be dismissed procedurally based on a lack of procedural requirement. Upon the reversal, the Court of First Instance complied with the reversal decision of the Court of Cassation.

The applicants argued that the dismissal of their case without the possibility of converting the case into a full action for performance and the fact that their claims expired due to the statute of limitations during the proceedings violated their right of access to court within the scope of the right to due process guaranteed by the Constitution.

In this context, the subject of the application is related to the allegations that “the right of access to court was violated due to the dismissal of the lawsuit filed due to non-payment of the employment claims based on a lack of procedural requirement.”

Relevant Legislation

The provision in paragraph 2 Article 119 of Law No. 6100 is interpreted as follows: “In the case where the request for relief is unclear in the lawsuit petition, the judge shall grant the plaintiff a definite period of one week to resolve the deficiency.”

Paragraph (2) of Article 115 of Law No. 6100 states: “In the case where it is possible to resolve the lack of procedural requirement, a definite period shall be granted for its completion, and if the lack of procedural requirement has not been resolved within this period, the lawsuit shall be dismissed on procedural grounds based on a lack of procedural requirement”.

Article 31 of the Law No. 6100 set forth: “The judge has the authority to clarify the matters that he/she deems unclear or contradictory”.

Decision of the Constitutional Court

In the aforementioned decision of the Constitutional Court, by referring to its previous decision of İsmail Avcı (İsmail Avcı, B. No: 2019/12190, 22/2/2022, § …); it was evaluated that the dismissal of the undetermined receivables lawsuits filed by the applicants before the conditions were met due to the lack of procedural requirement was not the last resort that could have been applied in procedural law; and therefore it has been concluded that “choosing a severe measure that renders access to the court impossible, rather than opting for a less intrusive measure to achieve the goal of ensuring the most effective litigation for resolving the civil dispute in cases where claims are dismissed for lack of legal interest, constitutes a violation of the right to access to the court in terms of the resolution of the dispute regarding the civil right.” Consequently, it has been decided that the right of access to court has been violated.

Conclusion

With the Code of Civil Procedure (CCP) No. 6100, the right to legal remedies has been expanded in terms of undetermined receivables by recognizing the possibility to file an undetermined receivables lawsuit; the undetermined receivables lawsuit has been included in our law in order to eliminate some situations that interferes with the right to legal remedies in cases where it is impossible to determine the amount or amount of the receivable when filing a lawsuit.

Conversely, there is no legal interest in filing a lawsuit in the form of an undetermined receivables lawsuit without meeting the conditions specified in Article 107 of the CCP. Legal interest constitutes a procedural requirement according to Article 114 of the CCP.

In this context, in the recent decision of the Constitutional Court numbered 2019/17969 and dated 8 June 2023, published in the Official Gazette dated 6 October 2023, by referring to the İsmail Avcı decision on the subject (İsmail Avcı, B. No: 2019/12190, 22/2/2022, § …), it was accepted that the court may prefer to give a period of time to complete the deficiency in the lawsuit and make it in accordance with the law, and that the decision to dismiss the lawsuit based on lack of legal cause without giving the opportunity to resolve the deficiency is a violation of the right of access to court.

Click on the link for the Constitutional Court decision https://www.resmigazete.gov.tr/eskiler/2023/10/20231006-7.pdf

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