Published on 5 December 2022

SECOND SECTION

Application no. 18350/21 Mustafa BAĞCI against Türkiye lodged on 13 March 2021 communicated on 15 November 2022

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s right of access to a court in the context of dismissal proceedings. The applicant was dismissed from his post at the Commission of Turkish Exporters ( Türkiye İhracatçılar Meclisi) on 21 May 2009. He challenged his dismissal by bringing a case before an administrative court within the sixty-day time-limit provided by Administrative Procedure Act. During those proceedings the defendant objected to the jurisdiction of the administrative court, arguing that civil courts were competent to hear the case. On 11 March 2010 the administrative court, after having sought and obtained a favourable decision by the Court of Appeal of Civil Jurisdiction on the jurisdiction issue, declared itself competent to hear the case and ruled in favour of the applicant, finding the dismissal unlawful. Upon appeal by the defendant, the Supreme Administrative Court quashed the administrative court’s ruling on the grounds that the dispute fell to be examined under the civil justice procedure, pointing to a decision of the Constitutional Court of 18 September 2008 (entry into force 18 March 2009) that Commission of Turkish Exports did not have a public legal entity status.

On 22 April 2016 the applicant applied to the civil court, but the latter rejected the case for non-compliance with the thirty-day time limit provided by the Labour Act, with respect to the date of lodging of the initial case with the administrative court.

The applicant complains under Article 6 § 1 of the Convention about the failure of the domestic courts to examine the merits of his claim, thus depriving him of his right of access to court. He submits that the civil court approached the dispute with excessive formalism in interpreting and applying relevant domestic law with respect to time-limits given that at the time of his initial action with administrative courts, and even post-dating the period after Constitutional Court’s ruling of 18 March 2009, similar disputes involving the Commission of Turkish Exporters were examined under the jurisdiction of administrative courts (see relevant annexes to the application).

QUESTIONS TO THE PARTIES

1. Has there been a breach of the applicant’s right of access to Court within the meaning of Article 6 § 1 of the Convention on account of the dismissal of his claim for being lodged out of time (see for instance Zubac v. Croatia [GC], no. 40160/12, §§ 76-79, 5 April 2018 and, mutatis mutandis , Kurşun v. Turkey , no. 22677/10, §§ 101-103, 30 October 2018)? In particular was the civil court’s approach in interpreting the procedural rules relating to time-limits excessively formalistic given the applicant’s allegation set out above about the jurisprudence of the courts at the relevant time?

2. Alternatively, does the case raise any issues of legal certainty given that the courts in rejecting the applicant’s action for being out of time did not take into consideration the actual practice of the administrative courts at the relevant time?