Violation Of The Right Of Access To Court In The Lawsuit Filed Due To The Rejection Of The Indefinite Receivable Lawsuit For Lack Of Case Requirement
Events
The applicant, who retired from the Municipality where he worked as a labourer, filed a claim against the Municipality for the payment of his receivables arising from the collective labour agreement for the period he worked. In addition to filing the lawsuit as an indefinite receivable lawsuit, the applicant also indicated the amount of compensation he claimed as 6.539,68 TL, reserving his rights regarding the excess. Considering the expert report, the applicant amended the lawsuit and increased the compensation claim to 11,745.23 TL. The Civil Court of First Instance partially accepted the case and ordered the applicant to pay 8,827.97 TL compensation.
The 22nd Civil Chamber of the Court of Cassation (Chamber), accepting that the claim was not indefinite, stated that the applicant did not have legal interest in filing an indefinite claim without the conditions instead of filing a full/partial claim (general action) and reversed the decision of the Civil Court of First Instance on the grounds that the case should be dismissed procedurally. Civil Court of First Instance, following the reversal and adopting the reasoning in the reversal decision, dismissed the case on procedural grounds due to lack of legal interest and the decision was upheld by the Chamber.
Allegations
Applicant claimed that his right of access to court was violated due to the dismissal of the lawsuit he filed for non-payment of his labour receivable due to lack of a cause of action.
The Court’s Assessment
The indefinite claim lawsuit is a type of lawsuit introduced for the first time by the Code of Civil Procedure No. 6100 and aims to prevent the plaintiff, who cannot calculate the exact amount of the claim at the time the lawsuit is filed, from losing his/her rights due to the statute of limitations. Thus, the plaintiff is relieved from the obligation to show the exact amount of the claim in the statement of claim, and has the opportunity to reach the actual amount of the claim determined during the proceedings, without being subject to the prohibition of extension of the claim and without facing the risk of statute of limitations. Therefore, it is understood that the indefinite receivable action brings some additional advantages in terms of the creditor’s enjoyment of the right of access to the court, unlike the general action for performance.
As can be understood from the preamble of Article 107 of the Law No. 6100, the purpose of the indefinite receivable action is to ensure the enjoyment of the freedom to seek rights and to facilitate the access of persons to the court. In cases where it is not possible for the creditor to fully calculate his/her claim, the legislator has introduced the possibility of filing an indefinite claim lawsuit in order to prevent loss of rights due to procedural requirements. İn this respect, it is understood that the indefinite claim action is a legal remedy brought to prevent the sacrifice of the substance to the procedure.
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In order for the interference with the right of access to the court to be proportionate, the dismissal of the lawsuit for lack of legal interest should be the last resort. Article 119 of the Law No. 6100 stipulates that in the event that the result of the claim is incomplete in the statement of claim, the judge shall give the plaintiff a definite period of one week to complete the deficiency.
Again, in paragraph (2) of Article 115 of the same Law, it is stated that if it is possible to remedy the deficiency of the condition of action, a definite period of time will be given for its completion, and if the deficiency of the condition of action is not remedied within this period, the case will be dismissed procedurally due to the lack of the condition of action. In Article 31 of the Law No. 6100, it is stated that the judge has the authority to clarify the matters that are unclear or contradictory.
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It is seen that the aforementioned provisions give strong powers to the judge in order to make the lawsuit petitions, which are organised in violation of the procedure, in compliance with the procedure. The purpose of granting these powers to the judge is to prevent the plaintiff’s substantive right from being sacrificed to the procedure due to some formal deficiencies and thus to ensure that he/she benefits from the right of access to court guaranteed under Article 36 of the Constitution.
Therefore, in the event that it is erroneously considered that the lawsuit is filed in the form of an indefinite receivable lawsuit, it is seen that granting the applicant time to clarify the result of the applicant’s claim by accepting that the lawsuit is a general action for performance is a tool to avoid a severe intervention in the form of procedural rejection of the lawsuit.
Although the Chamber has accepted that no time cannot be granted pursuant to Article 119 of the Law No. 6100 due to the openness of the claim in the indefinite receivable case, it is clear that the result of the claim will be incomplete if the lawsuit is accepted as a general action for recovery. Granting a period of time for the correction of a lawsuit petition, which is accepted to be improperly drafted, and making it in accordance with the method, will guarantee the applicant’s enjoyment of the right of access to the court.
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In the concrete case, the possibility to file an indefinite claim lawsuit, which was introduced by the legislator in order to facilitate the plaintiffs’ enjoyment of the right of access to the court, had consequences against the plaintiff due to the strict interpretation of the Chamber. The applicant was deprived of the right to bring a dispute concerning his civil rights before the court solely because he had stated in his statement of claim that his case was an indefinite claim. The applicant’s erroneous filing of an action for indefinite receivable not only resulted in his inability to benefit from the advantages brought by the action for indefinite receivable, but also led to the loss of the rights he could have obtained through a general action for recovery.
It may be considered reasonable that the non-occurrence of the conditions of a case that provides additional advantages in terms of access to the court may have an effect limited to the cancellation of these additional advantages. In such a case, it may be assessed that the selection of an instrument that will result in the person not benefiting from these additional opportunities does not impose a heavy burden on the person.
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However, interventions that would cause the person to face deprivations beyond the inability to benefit from the advantages brought by the indefinite receivable lawsuit on the grounds that the indefinite receivable lawsuit was filed before the conditions were met cannot be accepted as a last resort. In the concrete case, the acceptance that the applicant filed an indefinite claim lawsuit before the conditions were met did not only result in the applicant not being able to benefit from the advantages related to the statute of limitations or the prohibition of the extension of the lawsuit; it made it completely impossible for the applicant to sue for the receivable arising from the collective labour agreement.
As a result, it has been assessed that the rejection of the applicant’s indefinite receivable lawsuit, which was filed before the conditions were met, due to the lack of a cause of action, was not the last resort that could be resorted to, considering the possibilities in procedural law. In the interference with the right of access to the court by dismissing the lawsuit for lack of legal merit, it has been concluded that the choice of a severe tool that makes the applicant’s access to the court impossible is not in accordance with the necessity requirement, instead of choosing the tool that constitutes a milder intervention in order to achieve the purpose of ensuring the filing of the lawsuit, which is the most effective in terms of resolving the dispute regarding the civil right.
The Constitutional Court decided that the right of access to the court was violated for the reasons explained.