Press Release No: Individual Application 51/20

Press Release concerning the Judgment Finding a Violation of the Right to a Court due to Dismissal of Reinstatement Cases without an Examination on the Merits

On 2 July 2020, the Plenary of the Constitutional Court found a violation of the right 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 Emin Arda Büyük (no. 2017/28079) and Berrin Baran Eker (no. 2018/23568).

The Facts

The applicants had been working, respectively, as a subcontracted medical secretary at a university and as a cleaning worker in a nursery operated by the municipality. Their employment contracts had been terminated within the scope of the Decree Law no. 667 issued after the coup attempt of 15 July 2016. Thereupon, the applicants brought actions before the labour courts for their reinstatement. Upon the courts’ dismissal, the applicants’ subsequent appellate requests were also rejected by the regional courts of appeal.

The Applicants’ Allegations

The applicants claimed that their right to a court had been violated, arguing that their actions for reinstatement, which they had brought challenging the termination of their employment contracts for the alleged breach of the trust relationship, had been dismissed without an examination on the merits.

The Court’s Assessment

The right to a court, one of the guarantees of the right to a fair trial that is an indispensable right in a democratic society, requires that the substantial claims and defences related to the dispute at issue be examined, assessed and adjudicated by the incumbent judicial authority. The right to a court not only guarantees that the individuals obtain a formal decision at the end of the proceedings, but it also requires the incumbent judicial authority to deal with the substantial requests regarding the dispute.

In cases where the court, while settling a dispute before it, concludes the trial by relying on the claims and defence put forth by one of the parties but without discussing the substantial objections raised by the other party, then there has not been an actual trial, even if there is a formal decision.

In this case, it will not make any sense in practice that the judicial remedy for the dispute at issue is accessible in theory, and therefore the right to a court and thus the right to a fair trial will remain an illusion. It is the constitutional obligation of the judicial authorities to respond to the demands of individuals for judicial protection, and in this regard, to adjudicate a given case after examining the merits of the dispute and evaluating the claims and defences.

In the present cases, it was specified in the reasoned judgments of the incumbent courts that the applicants’ cases were dismissed on the merits. However, the courts’ mere expression of this fact does not actually mean that the merits of the dispute have been resolved. In order for a dispute to have actually been resolved, the incumbent courts should have examined whether the termination was based on a valid ground within the framework of the provisions of the Labour Law. While dismissing the cases, the courts stated that the applicants’ employment contracts had been terminated in accordance with the relevant provisions of the Decree Law no. 667 and that therefore it was not for the judicial authority to review the expediency of the assessments made and decisions given by the public institution. Considering that the courts dismissed the applicants’ cases by making such a statement, it is clear that they did not decide on the merits of the dispute.

In the present cases, the actions for reinstatement brought by the applicants were based on Article 20 of the Labour Law no. 4857. The essence of the dispute subject matter of the case filed under the relevant article is whether the termination of the applicants’ employment contracts had been based on valid grounds. Therefore, it is clear that within the scope of the examinations of the cases filed against the termination process carried out by the employer in accordance with Article 4 of the Decree Law No. 667, it will essentially be determined whether the termination of the applicants’ employment contracts had been based on valid grounds.

The relevant provision stipulates that the employment contracts of those who are considered to be a member of, or have relation, connection or contact with terrorist organisations or structures/entities, organisations or groups, which have been determined by the National Security Council to have been engaging in activities against the national security of the State, shall be terminated. However, the said provision does not contain any clause restricting the judicial authorities’ power to make a review. As such, there is no regulation that prevents the review of the merits of the reinstatement cases filed by the employees whose employment contracts have been terminated under Article 4 of the Decree Law no. 667.

In the present cases, the incumbent courts failed to examine whether the conditions for valid termination had been fulfilled. In other words, the courts failed to fulfill their duty of addressing and adjudicating the material and legal matters of dispute, which constitutes the basis of their judicial function, and thus failed to perform an actual judicial activity. Therefore, the judicial remedy available to the applicants enabling them to challenge the termination process at issue was accessible for them only in theory.

Consequently, the Court has found a violation of the right to a court in both applications.

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