10/7/2020

Press Release No: Individual Application 40/20

Press Release concerning the Judgment Finding a Violation of the Prohibition of Discrimination due to Deprival of the Opportunity to Fill Pension Contribution Gaps Incurred for the Period of Service Abroad prior to Acquirement of Citizenship

On 5 March 2020, the Plenary of the Constitutional Court found a violation of the prohibition of discrimination, taken in conjunction with the right to property, in the individual application lodged by Bedrettin Morina (no. 2017/40089).

The Facts

The applicant, who subsequently acquired Turkish citizenship, was entitled to receive old age pension from the Social Insurance Institution (“the SSI”) as of 1 July 2009 by filling the pension contribution gaps incurred for the periods he worked abroad. However, the SSI cut the applicant’s old age pension on 22 January 2015 and requested the return of the amounts paid. Relying on the Law no. 3201 on the Evaluation of Periods Spent by Turkish Citizens Abroad in terms of their Social Insurance, the SSI noted that it was impossible for the applicant to be entitled to old age pension by filling the pension contribution gaps for the period of his service abroad before he acquired Turkish citizenship; and that accordingly, the remaining period of his service did not meet the minimum period required for his entitlement to old age pension. The applicant’s challenge against this decision was dismissed by the SSI.

Thereafter, the applicant filed a case with the relevant labour court which ordered payment of old age pension to the applicant on the basis of the period of his service following his acquirement of Turkish citizenship (3600 days). The decision was appealed by the parties before the Court of Cassation which ultimately quashed it. The Court of Cassation dismissed the case, finding that the applicant acquiring Turkish citizenship was not entitled to old age pension by filling the pension contribution gaps incurred for working abroad; and that nor did he seek protection afforded by voluntary insurance. The labour court, making a reference to grounds indicated in the Court of Cassation’s judgment, dismissed the applicant’s case. The appealed first-instance decision was upheld and thereby became final.  

The Applicant’s Allegations

The applicant maintained that he had been provided with the opportunity to fill the pension contribution gaps incurred for working abroad only for the period following his acquirement of Turkish citizenship, which was in breach of the prohibition of discrimination taken in conjunction with the right to property.  

The Court’s Assessment

In the present case, the impugned old age pension constitutes a property within the meaning of Article 35 of the Constitution. Therefore, the applicant’s complaint was examined from the standpoint of the prohibition of discrimination under the right to property. In the examination of the alleged discrimination within the meaning of the right to property, it would be primarily ascertained whether there was a different treatment, under Article 10 of the Constitution, in terms of the alleged interference with the said right among the persons in the same or similar situation. It would be then addressed and concluded whether the different treatment had an objective and reasonable basis and whether the interference was proportionate.  

Working conditions of natural-born citizens and naturalised citizens, as well as the remuneration for these works within the social insurance system, bear similar characteristics. In this sense, the natural-born Turkish citizens and the naturalised Turkish citizens are in a comparable situation in terms of entitlement to old age pension by filling the pension contribution gaps incurred for the periods of service abroad.

Law no. 3201 allows the natural-born citizens to fill pension contribution gaps while granting no such opportunity for those who subsequently acquire citizenship for the periods of service abroad prior to their citizenship.

A natural-born Turkish citizen is entitled to old age pension by filling insurance premium gap for the whole period of service abroad. However, the applicant, who subsequently acquired Turkish citizenship, has been deprived of such opportunity for the period of service abroad spent before he acquired citizenship and thereby of his old age pension, in the absence of any objective and reasonable ground justifying such a difference in treatment by the type of acquirement of citizenship.

The public authorities enjoy a certain margin of appreciation in granting an entitlement to old age pension by way of filling pension contribution gaps incurred for the period of service abroad. In the present case, the applicant’s being deprived of his old age pension as the period of his service abroad prior to acquirement of citizenship was not taken into consideration without any just and objective justification constituted a different treatment within the meaning of the right to property. As a result of this discriminatory interference, the applicant, who could no longer work, had to bear an excessive burden for being left outside the social insurance coverage.  

Consequently, the Court has found a violation of the prohibition of discrimination taken in conjunction with the right to property safeguarded by Article 35 of the Constitution.

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