ABSTRACT
The issue of whether the applications alleging a violation of the right to a trial within a reasonable time, which continue to be examined at first instance, can be reviewed after the completion of the application process alleging a violation of the right to a trial within a reasonable time as per the pilot judgment, has been evaluated.
I. INTRODUCTION
The fundamental duty of the judiciary is to resolve legal disputes and issues fairly and expeditiously through judicial proceedings. The duration of the trial process is one of the most important factors in performing this duty. Ensuring that disputes are resolved as quickly as possible is essential to maintaining trust and confidence in the judicial organs of your country. Prolonged trials risk undermining justice, either by delaying its realization or rendering it meaningless altogether. Among the most significant risks are the loss of the parties’ capacity to cover the costs of litigation and the emotional strain prolonged legal processes impose on them. As a result, confidence in the judiciary is shaken, weakening faith in the resolution of disputes through legal means. The right to a trial within a reasonable time embodies the principle expressed since ancient times that justice should not be delayed or denied, ensuring the timely realization of justice1.
In the first section of our study, we attempted to elucidate the concept of the right to a fair trial, and in this context, we examined the right to a trial within a reasonable time, which is the most crucial element of the right to a fair trial.In the second section, we examined the effects of the parameters used to determine a reasonable time on civil and criminal cases.
In the third and final section, we analyzed the decision of the Constitutional Court dated 10.10.2023, which dismissed the individual application made to the Constitutional Court of the Republic of Turkey regarding the violation of the right to a trial within a reasonable time, based on the application of Kesin Altıntaş, on the grounds that there was no justification for continuing the examination of the application. This decision was evaluated within the scope of the Nevriye Kuruç decision dated 05.07.2023 of the Constitutional Court.
II. THE PRINCIPLE OF REASONABLE TIME AND THERIGHT TO A FAIR TRIAL
The State is not only responsible for the writing of abstract laws, but also for ensuring that the laws drafted by the legislator are enforceable and that the existing order is not disturbed2. Additionally, we emphasized that beyond the limitations specified in the Constitution, one of the state’s objectives is to eliminate all barriers to fundamental rights and freedoms as well as economic and social obstacles. Furthermore, we underscored that among these obligations, ensuring the prevention of violations of rights by public authorities, eliminating restrictions on fundamental rights and freedoms, or imposing deterrent penalties against such violations, ranks foremost3. In parallel with these issues, individuals have the right to a fair trial against the public or the state. This right has become the cornerstone of human rights by being guaranteed by the Constitution of the Republic of Turkey4.
The perhaps most fundamental aspect of the principle of the rule of law is the assurance of a fair decision through objective judicial proceedings5. As seen, the right to a fair trial can be considered as one of the most important components of the trial process. The minimum requirements for the right to a fair trial, as outlined in the 6th Article of the European Convention on Human Rights, are also broadly echoed in the 36th Article titled “Right to Seek Remedies” of the Constitution. Citizens should be free to decide whether or not to participate in judicial proceedings in order to seek their rights, and to take legal remedies to prevent irreparable damage in the event that their rights are violated6.
According to Article 36 of the Constitution, citizens have the right to participate in judicial processes and to be tried fairly as parties before the judiciary. Consequently, individuals’ freedom to seek remedies for their rights is safeguarded by the Constitution. Additionally, Articles 14, 37, 38, 40, 125, 138, and 142 of the Constitution also serve as elements of Article 36 titled “Right to Seek Remedies.” Article 6(1) of the European Convention on Human Rights states, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. This provision explicitly underscores the necessity for trials to be conducted within a reasonable time.
In general, the right to a fair trial encompasses individuals’ right to resort to judicial authorities when they claim that their existing rights have been violated, seeking the cessation of such violations and redress for unlawful acts7. The freedom to seek remedies not only encompasses the right of individuals who believe their rights have been violated to appeal to judicial authorities but also includes the right to appeal to administrative authorities considering the nature of the violated rights. As a continuation of this situation, it can be said that the right to a fair trial and the right to a fair trial are intertwined. In conclusion, it can be said that the right to a trial within a reasonable time is intricately linked with the right to a fair trial8.
III. DETERMINATION AND CRITERIA OF REASONABLE TIME
A. The Beginning And End Of The Period For Determining The Reasonable Period Of Time
1. General Explanation
The completion of a trial within a reasonable time does not imply the termination of proceedings in a short period but rather refers to concluding each individual case within a sufficient timeframe9. To determine whether the trial has been conducted within a reasonable time for each individual case, it is necessary to establish when the timeframe begins. The starting point varies between civil and criminal cases. The Constitutional Court considers the date of filing the lawsuit as the start date for civil cases, while for criminal cases, it is either the date when the person is notified of the accusation by the competent authorities or the date when the person first becomes aware of the accusation, such as during detention10.
Following the determination of the start date, it is essential to note the end date. In civil cases, the end date is when the trial concludes, including the enforcement process, while in criminal cases, it is when the trial concludes based on the accusation against the individual. There is no distinction between civil and criminal cases regarding the date to be considered when assessing an alleged violation of the right to a trial within a reasonable time. The Constitutional Court considers the date when the applicant’s objection is adjudicated11.
2. In Civil Litigation
In civil cases, the general rule is that the timeframe begins when the individual resorts to the judicial process, i.e., when the lawsuit is filed. In other words, in civil cases, the start of the reasonable time period is considered to be the date when the competent judicial authority takes the initial steps regarding the dispute. What should be understood from the first action taken by the competent judicial authority is that the case file has been opened in the court registry. However, in specific cases where recourse to administrative justice is mandatory before resorting to civil courts or where the case is heard in administrative courts before filing a lawsuit, the date of application to the administrative authority is taken into account12.
In the evaluation of the reasonable time in civil cases, both the attitudes and behaviors of the courts and the parties play a significant role13. Prolonging trials due to the misuse of procedural rights and actions provided in civil procedure law is contrary to the principle of fair trial14. As for the conclusion of the trial, it ends with the decision of the final judicial authority. In simple terms, the date when the judgment becomes final is considered the end of the trial15.
3. In Criminal Cases
Criminal proceedings progress differently compared to civil proceedings. Besides expediting the trial process, it is essential to clarify all the details of the factual truth thoroughly16.
In criminal cases, the start of the timeframe does not begin with the filing of the lawsuit or the date of application to administrative authorities before filing the lawsuit, as in civil cases. Ultimately, the time in criminal proceedings starts with the official activity indicating the initiation of the investigation by the law enforcement or prosecution17. Therefore, in evaluating the start of the reasonable time in criminal proceedings, the date when the suspect is taken into custody and their documents are processed or the date when the investigation requested by the prosecution begins should be considered18. As for the conclusion of criminal proceedings, it is calculated based on the date when the judgment becomes final19.
B. Criteria For The Determination Of Reasonable Time Within The Scope Of Fair Trial
1. General Explanation
Determining a clear timeframe that encompasses all possibilities for establishing a reasonable time is often not feasible. The criteria used to determine the reasonable time include the nature of the specific case, the attitude and intentions of the applicant, and the conduct of the judicial authorities. Because these criteria are abstract, there is no universally agreedupon reasonable time for all cases20. Therefore, the determination of a reasonable time must be made on a casebycase basis. In our study, we examine whether the case has been concluded within a reasonable time considering the following criteria: The duration from the beginning to the end of the trial21. Whether the applicant who resorts to the judicial process due to the belief that their rights have been violated has any fault that could cause delays in the trial. The nature of the case. Judicial authorities investigate whether the trial has been concluded within a reasonable time by considering these criteria.
2. Whether it can be completed within a reasonable time due to the nature of the case
Disputes seen in judicial authorities are often multifaceted and complex, making it necessary to gather all evidence that will shed light on the specific case for a fair resolution of disputes. Factors such as the complexity of the dispute in the specific case, the inability to collect evidence due to reasons such as the parties or other factors, the large number of parties involved in the case, expert reports, and conducting a discovery process can prolong trials.
As explained above, the complexity of the dispute in the specific case removes the state’s responsibility for concluding trials within a reasonable time. When evaluating whether the reasonable time has been exceeded in specific cases, the European Court of Human Rights takes into account the complexity of the case and all the difficulties encountered during the trial process22.
3. Whether the Applicant Caused the Judicial Prolongation of the Proceedings
In cases where the right to a trial within a reasonable time is believed to have been violated, whether the applicant, as either the defendant or the plaintiff, has contributed to prolonging the trial is examined, both in civil and criminal proceedings23. The authority determining whether the trial has been conducted within a reasonable time specifically evaluates whether the parties involved in the trial have caused the delay24. However, it is important to emphasize that neither the parties involved in the specific case nor third parties with an interest in the case can be held responsible for the prolongation of the trial solely because they have exercised their legal remedies. Therefore, the use of legal avenues by the parties or third parties with an interest in the specific case does not imply a violation of the principle of a reasonable time25.
In summary, the responsibility for the prolongation of the trial cannot be attributed to the parties or individuals with an interest in the case solely based on their exercise of legal rights26.
4. Whether the Authorities Authorized to Conduct the Trial Have Conducted the Trial within a Reasonable Time
Delays or faults attributable to the judicial organs conducting the trial activity are held responsible27. A frequently encountered issue in practice is that the termination of the trial due to errors of the competent authorities responsible for conducting the trial constitutes a violation of the right to a fair trial28. For example, failure to include a petition sent electronically by the parties in the case file, or the failure to write a requested memorandum despite a decision made in the previous session. Another crucial point to emphasize is the interpretation of the term “Competent Authority”. This term should not be understood to include the direct errors made by judges who have the responsibility to exercise judicial authority29.
IV. REVIEW OF THE DECISION OF THE CONSTITUTIONAL COURT DECISION ISSUEDON 10.10.2023
A. Review of the Constitutional Court’s Nevriye Kuruç Decision dated 05.07.2023
In the Nevriye Kuruç decision, the Constitutional Court determined that there is a structural problem regarding the right to a trial within a reasonable time and concluded that an effective remedy should be established before individual applications in accordance with Article 40 of the Constitution to compensate for the damages arising from the violation of the right to a trial within a reasonable time, despite any measures taken to address this structural problem. The Nevriye Kuruç decision found that the applicant’s right to a trial within a reasonable time and the associated effective remedy were violated and decided to apply the pilot judgment procedure to address the structural problem. As part of this decision, it was ruled that the decision should be sent to the Turkish Grand National Assembly (TBMM) for legislative action to address the structural problem and that the examination of applications alleging violations of the right to a trial within a reasonable time should be postponed for a period of four months30.
One of the reasons presented in the decision by the Constitutional Court is that the payment of compensation is not an effective domestic remedy. When it is determined within the scope of individual application that a fundamental right has been violated, the basic rule for being able to speak of the elimination of the violation and its consequences is to restore the situation as much as possible, that is, to return to the state before the violation. For this purpose, it is necessary first to determine the source of the violation, stop the ongoing violation, eliminate the decision or action causing the violation and its consequences, remedy any material and moral damages caused by the violation, and take any other appropriate measures deemed necessary in this context.
B. Review of the Constitutional Court’s Keser Altıntas Decision dated 10.10.2023
The right to a trial within a reasonable time is an important aspect of the right to a fair trial. This right has been the subject of numerous applications to the Constitutional Court. In the application of Keser Altıntaş to the Constitutional Court, it was argued that the right to a trial within a reasonable time was violated by asserting that the lawsuit for cancellation and registration of title filed in the Court of First Instance continued. However, the Constitutional Court rejected the application stating, “In this case, considering the principles and principles in the Nevriye Kuruç pilot decision, according to Article 80 (1) (ç) of the Internal Regulation, ... there is no justified reason to continue the examination of the application alleging violation of the right to a trial within a reasonable time, so the application must be dismissed.”
Furthermore, the decision stated, “In this regard, since the possibility of applying to the Compensation Commission for pending applications alleging a violation of the right to a trial within a reasonable time has been introduced by temporary article 2 of Law No. 6384 until 09.03.2023, a dismissal decision should be made for applications made after 10/3/2023.” As a result, the Constitutional Court transferred the authority and responsibility to examine individual applications alleging a violation of the right to a trial within a reasonable time to the Ministry of Justice Compensation Commission Presidency in accordance with Law No. 6384 on the Settlement of Some Applications Made to the European Court of Human Rights by Payment of Compensation. Upon examining the reasons for the dismissal decision in Keser Altıntaş’s application by the Constitutional Court, it can be observed that the failure to establish an administrative or judicial remedy before applying to the Constitutional Court, as well as the continued examination of allegations of violation of the right to a trial within a reasonable time by the Constitutional Court without the creation of such a remedy, would undermine the significance and importance of the pilot decision outlined in the Nevriye Kuruç case.
The application was dismissed by the Constitutional Court due to the lack of utility in examining the relevant application.
V. CONCLUSION
In the first part of our study, we attempted to explain the concept of the right to a fair trial, focusing on the right to a trial within a reasonable time as the most crucial element of this right.
The second part delved into the parameters used to determine a reasonable time and their implications on civil and criminal cases.
In the third and final part, we analyzed the decision of the Constitutional Court dated 10.10.2023, titled “Dismissal of the Application due to Lack of Justification for Continuing the Examination of the Application Alleging Violation of the Right to a Trial Within a Reasonable Time,” made regarding the individual application submitted by Keser Altıntaş, within the scope of the Nevriye Kuruç decision dated 05.07.2023.
Parties to a legal dispute have the right to demand a trial within a reasonable time under the framework of the right to a fair trial, concerning certain criminal, legal, administrative, or tax disputes they are involved in. However, in our country, legal proceedings often take longer due to the high number of cases. Consequently, the violation of individuals’ right to access justice within a reasonable time may occur.
For long-standing legal disputes that are still under consideration, those involved have the opportunity to assert individual claims in the Constitutional Court. According to the jurisprudence of the Constitutional Court, it is stated that in individual claims regarding the violation of the right to a trial, since there is no recourse for the violation of the right to a trial, an individual application can be made within a reasonable time without exhausting ordinary legal remedies. Both the Constitutional Court and the ECtHR state in their decisions against Turkey that there are long trial processes in our country, this situation is constantly increasing, and there are no effective domestic remedies to prevent long trial processes. In fact, pilot decisionmaking on this issue has already been carried out many times.
However, it should be noted that this solution method is of a palliative nature; therefore, the legislative body should provide permanent, effective, feasible, and longterm methods to prevent or at least minimize prolonged lawsuits, determine the existence of violations in case of violation, and compensate for the damages instead of merely adding temporary provisions to Law No. 6384 for individual complaints pending before the Constitutional Court at certain dates.
BIBLIOGRAPHY
EROL CİHAN, “Hakim Unsuru Bakımından Ceza Davalarının Uzamasının Sebepleri”, İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, İstanbul, Cilt 45-47, Sayı 1-4, Yıl 1979-1981, p. 873-898, p. 877.
PEKCANITEZ/ ATALAY/ ÖZEKES, “Medeni Usul Hukuku” İstanbul, Yıl 2023/10 p. 38.
ÖYKÜ DİDEM AYDIN, “Türk Anayasa Yargısında Yeni Bir Mekanizma: Anayasa Mahkemesi’ne Bireysel Başvuru”, Gazi Üniversitesi Hukuk Fakültesi Dergisi, Ankara, Y.2011, S. 4, p. 122.
PEKCANITEZ/ ATALAY/ ÖZEKES, “Medeni Usul Hukuku” İstanbul, Yıl 2023/10, p. 39.
SİBEL İNCEOĞLU, “İnsan Hakları Avrupa Sözleşmesi ve Anayasa” 3. Baskı, İstanbul 2013, p. 209.
İSMAİL KÖKÜSARI, “Hak Arama Özgürlüğü ve 2010 Anayasa Değişiklikleri”, Gazi Üniversitesi Hukuk Fakültesi Dergisi, Y.2011, S.4, p.165 Cilt 15 Sayı 1.
TUĞBA BAYRAKTAR/ NURAN KOYUNCA, “Adil Yargılanma Hakkı” http://www. registericpess.org/index.php/ICPESS/article/ view/1271/41, E.T. 07.12.17., p. 164. Cilt 5, Sayı 8.
OZAN ERGÜL, “Türk Anayasa Mahkemesi Kararlarında İçtihat İstikrarsızlığı” 1. Baskı, Ankara 2016, p. 93.
AKSOY, “Türkiye Barolar Birliği 143. Sayısı” p. 50.
HASAN HENDEK, “Makul Sürede Yargılama Zorunluluğu” Ankara, 2016, p. 60. p. 217.
AYDIN, “Adil Yargılanma Hakkı Bağlamında Anonim Tanık” p. 294 Ankara, 2023 Aralık.
PEKCANITEZ/ ATALAY/ ÖZEKES, Medeni Usul Hukuku” İstanbul, Yıl 2023/10 p. 232.
PEKCANITEZ/ ATALAY/ ÖZEKES, Medeni Usul Hukuku” İstanbul, Yıl 2023/10 p. 235, 236. AKSOY, “Türkiye Barolar Birliği 143. Sayısı”p. 51.
KENAN ÖZDEMİR, “Adil Yargılanma Hakkı Ve Makul Süre”, http:// www.yayin. adalet.gov.tr/adaletdergisi/01.sayi/7kenan.pdf, E.T. 11.01.18., p. 7, ÖZER, p. 103,
İNCEOĞLU, p. 280,
PEKCANITEZ/ ATALAY/ ÖZEKES, p. 232.
HENDEK, “Makul Sürede Yargılama Zorunluluğu” Ankara, 2016, p. 80.
RAMADAN SANIVAR, İnsan Hakları Avrupa Sözleşmesi’nin 6. maddesi Çerçevesinde Adil Yargılanma Hakkı ve Sanığa Tanınan Temel Haklar, (Yayınlanmamış Yüksek Lisans Tezi), Doğu Akdeniz Üniversitesi Öğretim ve Araştırma Enstitüsü, Gazimağusa 2012, p. 46.
ÖZDEMİR, p. 9.
AKSOY, “Türkiye Barolar Birliği 143. Sayısı s. 51,
HENDEK, Hasan “Makul Sürede Yargılama Zorunluluğu” Ankara, 2016 p. 85, 86.
ÖZER, p. 104,
HENDEK, “Makul Sürede Yargılama Zorunluluğu” Ankara, 2016 p. 8.
FOOTNOTE
1 Erol Cihan, “Hakim Unsuru Bakımından Ceza Davalarının Uzamasının Sebepleri”, İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, Cilt 45-47, Sayı 1-4, Yıl 1979-1981,ss. 873-898, p. 877.
2 Hakan Pekcanıtez/ Oğuz Atalay/ Muhammet Özekes, “Medeni Usul Hukuku” İstanbul, Yıl 2023/10 p. 38.
3 Öykü Didem Aydın, “Türk Anayasa Yargısında Yeni Bir Mekanizma: Anayasa Mahkemesi’ne Bireysel Başvuru”, Gazi Üniversitesi Hukuk Fakültesi Dergisi, Y.2011, S. 4, p. 122.
4 Pekcanıtez/ Atalay / Özekes, “Medeni Usul Hukuku” İstanbul, Yıl 2023/10 p. 38, 39.
5 Sibel İnceoğlu, İnsan Hakları Avrupa Sözleşmesi ve Anayasa, 3. Baskı, İstanbul 2013, p. 209.
6 İsmail Köküsarı, “Hak Arama Özgürlüğü ve 2010 Anayasa Değişiklikleri”, Gazi Üniversitesi Hukuk Fakültesi Dergisi, Y.2011, S. 4, p. 165.
7 Tuğba Bayraktar/ Nuran Koyunca, “Adil Yargılanma Hakkı” http://www. registericpess.org/index.php/ICPESS/ article/view/1271/41, E.T. 07.12.17., p. 164.
8 Ozan Ergül, “Türk Anayasa Mahkemesi Kararlarında İçtihat İstikrarsızlığı”, 1. Baskı, Ankara 2016, p. 93.
9 Aksoy, “Türkiye Barolar Birliği 143. Sayısı” p. 50.
10 Hasan Hendek, “Makul Sürede Yargılanma Hakkı” 1. Baskı, Mayıs 2016 p. 217.
11 Aydın, p. 294, Aksoy, “Türkiye Barolar Birliği 143. Sayısı”p. 50, Sanıvar, p. 42.
12 Pekcanıtez/ Atalay/ Özekes, “Medeni Usul Hukuku Temel Bilgiler” s. 232, Kaşıkara, Serhat: “Avrupa İnsan Hakları Sözleşmesi Çerçevesinde Adil Yargılanma”, p. 251.
13 Özer, p. 100.
14 Pekcanıtez / Atalay / Özekes, “Medeni Usul Hukuku Temel Bilgiler” p. 235, 236.
15 Erşen, p. 69-70, Kaşıkara, p. 177, İnceoğlu, p. 377-378.
16 Aksoy, “Türkiye Barolar Birliği 143. Sayısı”, p. 51.
17 Kaşıkara,: Avrupa İnsan Hakları Sözleşmesi Çerçevesinde Adil Yargılanma s. 252, Kenan Özdemir “Adil Yargılanma Hakkı Ve Makul Süre” p. 6.
18 Ramadan Sanıvar, İnsan Hakları Avrupa Sözleşmesi’nin 6. maddesi Çerçevesinde Adil Yargılanma Hakkı Ve Sanığa Tanınan Temel Haklar, (Yayınlanmamış Yüksek Lisans Tezi), Doğu Akdeniz Üniversitesi Öğretim ve Araştırma Enstitüsü, Gazimağusa 2012,p. 42.
19 Sanıvar, İnsan Hakları Avrupa Sözleşmesi’nin 6. maddesi Çerçevesinde Adil Yargılanma Hakkı Ve Sanığa Tanınan Temel Haklar”, (Yayınlanmamış Yüksek Lisans Tezi), Doğu Akdeniz Üniversitesi Öğretim ve Araştırma Enstitüsü, Gazimağusa 2012, p. 42, Kaşıkara,: Avrupa İnsan Hakları Sözleşmesi Çerçevesinde Adil Yargılanma, p. 177- 178, Özer, p. 107, Aydın, p. 294.
20 Özdemir, “Adil Yargılanma Hakkı Ve Makul Süre”, http://www.yayin. adalet.gov.tr/adaletdergisi/01.sayi/7ke nan.pdf, E.T. 11.01.18., p. 7, Özer, p. 103, İnceoğlu, s. 280, Pekcanıtez/ Atalay/ Özekes, Medeni Usul Hukuku Temel Bilgiler. p. 232.
21 Hendek, Makul Sürede Yargılanma Hakkı” 1. Baskı, Mayıs 2016 p. 80.
22 Kaşıkara, Avrupa İnsan Hakları Sözleşmesi Çerçevesinde Adil Yargılanma, p. 247, Özdemir, “Adil Yargılanma Hakkı Ve Makul Süre” p. 8.
23 Sanıvar, İnsan Hakları Avrupa Sözleşmesi’nin 6. maddesi Çerçevesinde Adil Yargılanma Hakkı Ve Sanığa Tanınan Temel Haklar, (Yayınlanmamış Yüksek Lisans Tezi), Doğu Akdeniz Üniversitesi Öğretim ve Araştırma Enstitüsü, Gazimağusa 2012, p. 46.
24 Özdemir, “Adil Yargılanma Hakkı Ve Makul Süre”, p. 9.
25 Aksoy, “Türkiye Barolar Birliği 143. Sayısı” p. 51, Hendek, “Makul Sürede Yargılama Zorunluluğu” Ankara, 2016, p. 85, 86.
26 Kaşıkara, Avrupa İnsan Hakları Sözleşmesi Çerçevesinde Adil Yargılanma, p. 249, Aksoy, “Türkiye Barolar Birliği 143. Sayısı”, p. 52, Özdemir, p. 9.
27 Özer, p. 104, Hendek, Makul Sürede Yargılanma Hakkı” 1. Baskı, Mayıs 2016 p. 88.
28 Özdemir, “Adil Yargılanma Hakkı Ve Makul Süre”, p. 9, Aksoy, “Türkiye Barolar Birliği 143. Sayısı”, p. 52.
29 Kaşıkara, Avrupa İnsan Hakları Sözleşmesi Çerçevesinde Adil Yargılanma, p. 250.
30 Özer, p. 104, Hendek, “Makul Sürede Yargılama Zorunluluğu” Ankara, 2016 p. 88.
