Havva Kaya was fired because she wanted to attend a funeral ceremony. She wanted to sue her employee for her reinstatement but was only able to get the required TL 100 (€ 45) on 2 October. However, due to a recent amendment of the according law, she now had to pay TL 616 (€ 300) in advance - an amount she could not afford. Thus, Kaya was not able to open a trial. Thereupon, lawyers Şerife Ceren Uysal and Meryem Asıl from the Contemporary Lawyers Association (ÇHD) applied to the Council of State for the annulment of the law.
According to Article 120 of the revised Civil Procedure Law as enforced on 1 October 2011, "The plaintiff shall pay the expenses of the judiciary process in advance when opening the trial. The advance tariff shall be determined each year by the Ministry of Justice".
Kaya was working at a construction company in Gebze/İzmit (east of Istanbul) for a net salary of TL 700 (€ 340). She asked for leave because she was going to attend the funeral of a relative. She was not given leave in writing but based on an oral agreement. The following day her work contract was dissolved because "she had not appeared at work". 33-year-old Kaya is the only working member of her family and is responsible to take care for her mother and father.
Kaya was sacked on 5 September. She decided to take legal steps in order to be able to return to work. According to the former regulations, she had to pay TL 100 for the proceedings in advance which she was only able to provide on 2 October when the new law had been enforced already. Consequently, the fee was raised to TL 616. Kaya was not able to pay this amount and hence lost her right to appeal against her lay-off on 5 October.
"Contrary to the freedom to seek legal remedy"
Lawyers Uysal and Asıl applied to the Council of State for the suspension and the annulment of the revised law. They stated in their application that the right to trial should be returned to Kaya. The petition draws attention to the fact that the legal amendment "eliminated the individual's access to justice, the freedom to seek their rights and the right to effective legal remedies".
"Law No.120 and the 'Legal Expense Advance Tariff Notification Procedure Code' based thereupon impose the obligation of very high fees and advance payments whereas access to justice and to judicial services should be free of charge. This regulation renders the society's and especially the poor people's access to justice impossible", the petition read.
According to Articles 3 and 4 of the notification, "notification and mailing fees, investigation fees and fees for experts and witnesses" are to be paid to court in advance. The calculation in the petition reveals that a worker who was made redundant after working for years for the minimum wage has to pay TL 926.40 (€450) in advance in order to receive severance pay of TL 6,000 (€ 2,800).
Notification fee according to the number of involved parties multiplied by five: TL 60.
Notification fee for a minimum of three witnesses: TL 18.
Witness fee for a minimum of three witnesses: TL 90.
Expert fee: TL 300.
Investigation fee: TL 300.
Other expenses: TL 50.
Cash proportional cost: TL 90.
Application fee: TL 18.40.
Total: TL 926,40.
The petition criticizes that "the obligation for an unemployed person to pay such a high amount in advance in order to seek their right makes it impossible for such a person to open a trial. This means 'If you do not have the money do not keep the judiciary busy'". (AS/VK)
