Violation Of The Right Of Access To The Court Due To The Decision Of No Action To Be Taken On The Appeal Application
Events
The applicant served as the rector of the university in 2012. During the audit of the university’s accounts for the year 2012, the Court of Accounts auditors questioned the allegations of causing public damage due to certain findings that the vice-rectors working in the Continuing Education Centre unit were paid additional payments by calculating out-of-hours (B2) points and that the amounts collected in accordance with the protocols issued for some places belonging to the university were not deposited in the special budget. Following the written defences submitted by the university officials, the report prepared by the auditors, which was the basis of the proceedings, requested compensation for the damages from those concerned.
The Chamber of the Court of Accounts (Chamber) decided with its judgement dated 26/11/2013 that the applicant and N.H., who signed the protocols, and N.H., who was the vice-rector, were jointly and severally compensated for 78.000 TL of public damages. Applicant filed an appeal, while the other responsible person, N.H., applied for the reinstatement of the proceedings.
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The Chamber recalculated the public loss, which was determined as 78.000 TL with the additional judgement as a result of the proceedings held upon N.H.’s application for restoration of the proceedings, and determined it as 45.500 TL and decided to compensate the applicant and N.H. jointly and severally.
Upon the applicant’s application for appeal, the Board of Appeal of the Court of Accounts (Board) stated that an additional judgement was issued by the Chamber as a result of the return of the judgement, and stated that the appeal application should be made on the basis of the newly issued additional judgement, and decided that there was no action to be taken on this application. The applicant appealed against the Board’s decision on appeal, arguing that the appeal should be examined on the merits. The Board repeated its reasoning in the appellate review and decided by majority of votes that there was no action to be taken on the request.
Allegations
The applicant claimed that his right to access to court was violated due to the Board’s decision that there was no action to be taken on his appeal.
Assessment of the Court
According to Article 160 of the Constitution, the Court of Accounts is tasked with auditing all revenues, expenditures and properties of public administrations within the scope of the central government budget and social security institutions on behalf of the Grand National Assembly of Turkey, finalising the accounts and transactions of those responsible, and performing the examinations, audits and judgements assigned by law. Considering that the Court of Accounts audits the irregularities related to the financial matters in the public administrations specified in the Constitution, that the responsible persons are judged by the bodies within its body, and that the judgement is mostly limited to documents, it is seen that the Court of Accounts has a unique judgement procedure.
There is no dispute that not examining the judgement subject to the appeal in cases where the judgement is eliminated with an additional judgement is a favourable tool in terms of preventing the judicial authority from making a decision twice on the same judgement and preventing unnecessary occupation of the judicial authorities. However, in cases where the subject matter and amount of liability determined in the judgement are not completely eliminated by the additional judgement, as in the case subject to the application, the convenience of the intervention regarding the non-examination of the appeal should be evaluated separately.
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The applicant appealed against the entire amount specified in Article 18 of the judgement, arguing that the protocol was not a lease agreement but a conditional donation. In the supplementary judgement, it was stated that the amount for which the applicant and N.H. were responsible under Article 18 was reduced from 78.000 TL to 45.500 TL, therefore they were no longer responsible for 32.500 TL. The reason for the reduction of the liability in the supplementary judgement is that the applicant and N.H. left their positions that caused their liability as a result of the change of management during part of the three-year contract period.
It should be emphasised that in the retrial conducted as a result of the request for retrial, there was no assessment of the applicant’s claim regarding the nature of the protocol, which he had raised in his appeal petition. Aside from the applicant’s claim that the protocol in the appeal petition is not in the nature of a lease agreement, it is understood that the applicant is still held responsible for the 45,500 TL stated in the additional judgement within the scope of the lease agreement.
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Article 55 of the Turkish Code of Obligations No. 6085 stipulates that the judgements issued by the Court of Accounts departments can be appealed within sixty days from the notification of the judgement to the relevant person. There is no dispute that the applicant’s appeal application complies with the conditions specified in the Law. Although the amount for which the applicant is liable has decreased with the additional judgement, it cannot be said that the applicant does not have a justified expectation for an appellate review in line with the reasons stated above in terms of the remaining amount.
For this reason, it is concluded that the interference in the rejection of the appeal application due to the fact that the judgement subject to appeal has been abolished by the additional judgement is not suitable to achieve the legitimate aim of preventing the re-examination of an abolished decision, since it is clear that the subject and amount of liability determined in the judgement has not been completely eliminated by the additional judgement.
However, it should also be examined whether the interference with the right of access to the court is necessary. In the event that the appeal application is not examined by stating that it should be made against the additional judgement, considering that it is almost impossible to file an appeal application again at this stage, this tool should only be used as a last resort.
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Indeed, the appeal application period is relatively short and is in the nature of a forfeiture period. Considering this point, it can be easily stated that the rejection of the timely appeal application on the grounds that an additional judgement has been issued constitutes a very serious interference with the right of access to the court. Therefore, a severe intervention of this nature should only be resorted to in the absence of a milder and alternative means.
In the concrete case, the additional judgement was notified to the applicant on 19/12/2014 and the appeal application was decided on 24/11/2015, approximately 11 months later. Considering that the applicant filed an appeal in due time and that the amount for which the applicant was liable was not completely cancelled with the additional judgement, it cannot be said that the applicant did not have a justified expectation for a decision on the appeal.
It is considered that the absence of a clear provision in the relevant Law regarding the non-examination of the appeal in the event that an additional judgement is issued after the judgement subject to appeal, as well as the absence of a statement in the additional judgement that the applicant should apply for a new appeal, supports this justified expectation.
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Considering that there is no provision preventing the applicant’s appeal against the judgement from being examined in terms of the remaining amount even if the additional judgement is issued after the application, it may also be possible to use a milder intervention tool in the form of asking the applicant -during the appellate examination- for the Board’s statement, if any, against the additional judgement. Finally, considering that the appeal period is sixty days from the notification of the additional judgement to the applicant, it is clear that the appeal period against the additional judgement will have expired after the appeal decision.
In this respect, the Board’s preference for a heavy intervention tool that renders the applicant’s access to the court impossible in the first place, instead of a lighter intervention tool by asking the applicant’s will to appeal against the additional judgement, has rendered the applicant’s access to the court impossible.
For the reasons explained, the Constitutional Court decided that the right to access to court within the scope of the right to a fair trial was violated.