Press Release No: Individual Application 61/23

Press Release concerning the Judgment Finding a Violation of the Right of Access to a Court Due to the Dismissal of the Request for Legal Aid

On 17 May 2023, the Plenary of the Constitutional Court found a violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution, in the individual applications lodged by Mohamma Salem Pashto and Nazı Salem (no. 2019/26339) and Kemtaş Tekstil İnşaat Sanayi ve Ticaret Anonim Şirketi (no. 2020/22192).

The Facts

The applicants, Mohamma Salem Pashto and Nazı Salem, citizens of the Islamic Republic of Afghanistan, entered unlawfully and resided in Türkiye by seeking international protection. The applicants requested legal aid with regard to the legal action they initiated following the death of their son in a stabbing attack. Their request was dismissed on the grounds that there was no agreement on legal aid between Afghanistan and Türkiye.

The housing estate built by the applicant, Kemtaş Tekstil İnşaat Sanayi ve Ticaret Anonim Şirketi, operating in the construction industry, was demolished upon decisions taken by the relevant municipalities following the annulment of the revised master development plan by the administrative court. After the demolition process, the applicant lodged an action for pecuniary compensation by reserving his right to surplus, and then sought a rectification for an increase in the amount of claim for pecuniary damages in line with the expert report. The applicant then requested legal aid by declaring that he could not afford to pay the fee for rectification. The court dismissed the applicant’s request. The incumbent court examining the applicant’s subsequent appeal dismissed its request for legal aid with no right of appeal on the grounds that pursuant to Article 334 of the Code of Civil Procedure no. 6100, there was no regulation allowing legal persons governed by private law to benefit from legal aid.

The Applicants’ Allegations

The applicants maintained that their right of access to a court had been violated due to the dismissal of their request for legal aid.

The Court’s Assessment

A. As Regards the Applicants Mohamma Salem Pashto and Nazı Salem

The condition of reciprocity laid down in Article 334 of Code no. 6100 categorically restricts the access of foreign nationals to legal aid, without taking into account their specific circumstances (status, ability to pay, etc.) and does not afford the judge any discretion to assess whether the foreign nationals who intend to bring an action are in fact unable to pay. This approach may lead to the deprivation of the right to bring an action due to non-compliance with the condition of reciprocity, which may result in substantial concerns in relation to the right of access to a court. In this regard, the application of the condition of reciprocity enshrined in the wording of the law as a rule leads to a practice that arises from the law itself and conflicts with constitutional safeguards.

In addition, when reviewing compliance with international law, it must first be determined whether the State is a party to a treaty that imposes an obligation on foreign nationals to benefit from legal aid. In the present case, however, the court did not carry out any investigation in this respect. Furthermore, although the relevant legislation stipulates that the condition of reciprocity shall not apply to cases brought by persons with international status, and the Provincial Migration Administration established that the applicants held international protection status, the first instance court did not make any assessment in this regard. Accordingly, as a result of the examination made under the criteria of compliance with international law and lawfulness, it has been concluded that the interference with the applicants’ right of access to a court resulted in a violation.

Consequently, the Court has found a violation of the right of access to a court.

B. As Regards the Applicant Kemtaş Tekstil İnşaat Sanayi ve Ticaret Anonim Şirketi

Commercial companies, which bear the equal rights and obligations of natural persons, are unable to enjoy the rights granted to natural persons due to the practices stipulated by the law with regard to benefiting from the legal aid institution. The Constitutional Court assessed this statutorily determined matter through an autonomous constitutional interpretation. The legal system imposes obligations and liabilities on legal persons who have the capacity to exercise rights and actions, and provides them with the opportunity to bring their claims before the judicial authorities with active and passive legal capacity. However, it will be particularly problematic, if not impossible, for commercial companies that cannot afford the high litigation costs to avail themselves of this opportunity. There is no regulation or judicial practice that can facilitate the bringing of an action for insolvent commercial companies apart from the legal aid institution. It is therefore essential to carry out an individual assessment of those commercial companies claiming that they are unable to pay the litigation costs, even though they are entitled to bring an action, in order to ensure the balance of benefits and burdens which the legal system endeavours to strike for all.

In this regard, it has been considered that the approach derived from the law, according to which the applicant cannot benefit from legal aid simply because it is a legal person, without any assessment of its individual situation, does not pursue a legitimate aim. Additionally, it has been concluded that the said interference rendered the applicant’s access to the court extremely limited, if not impossible, and it has been concluded that the impugned interference, which imposed an excessive burden on the applicant, was not proportionate.

Consequently, the Court has found a violation of the right of access to a court.

In both cases, the Constitutional Court has found that the violation arose from the law and ruled that a copy of the judgment be communicated to the legislative branch so that similar violations can be prevented. Furthermore, considering that the last paragraph of Article 90 of the Constitution, which provides that in case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms, the provisions of international agreements shall prevail, or that an application may be lodged with the Constitutional Court for the annulment of the impugned provision in accordance with Article 152 of the Constitution, it has been determined that there is legal interest in holding a retrial, and accordingly, the judgment has been remitted to the first instance court.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.