BASIN DUYURUSU

22/02/2019

Individual Application 13/19

Press Release Concerning the Judgment Finding a Violation of the Right to a Fair Hearing Due to Dismissal of the Case for Difference of Opinion Among the Chambers of the Court of Cassation

On 25 December 2018, the First Section of the Constitutional Court found a violation of the right to fair hearing safeguarded by Article 36 of the Constitution in the individual application lodged by Yasemin Bodur (no. 2017/29896).

The Facts

The applicant works as an office staff in a social assistance and solidarity foundation (“the Foundation”) on a contractual basis.

The applicant, stating that the Foundation had the characteristics of a public institution affiliated to a general directorate under a ministry, requested an addition payment (bonus payable to the workers in State enterprises) to which she was entitled under the Act no. 6772 on the Payment of Additional Salary for Employees Working for the State and State Institutions.

Upon rejection of her request by the Foundation, the applicant brought an action against it. The civil court, in its capacity as the labour court, awarded the applicant the amount calculated by an expert at the end of the proceedings. Upon the appeal of the Foundation, the Regional Court of Appeal quashed the first instance court’s decision and dismissed the case.

The Applicant’s Allegations

The applicant maintained that the action she had brought seeking an additional payment (bonus payable to the workers in State enterprises) was rejected as a result of the difference of opinion among the chambers of the Court of Cassation. In this regard, she claimed that her right to a fair hearing was violated.

The Court’s Assessment

It is at the discretion of inferior courts to decide how legal rules will be interpreted or which one will be adopted in case of non-existence of a sole interpretation. The Court is entrusted with determining whether non-existence of a sole interpretation of legal rules affects the legal certainty and predictability, within the scope of the principle of legality.

In judicial decisions, different conclusions of the chambers of supreme courts which are expected to reach a consensus in practice will lead to contradicting and occasional outcomes whereby a decision upheld by a certain chamber might be quashed if examined by another. This falls foul of the principles of legal certainty and predictability. In addition, in the event that the society adopts such an impression, the individuals’ confidence in the judicial system and court decisions may be undermined.

The State that is responsible for ensuring and maintaining the confidence in the judicial system in pursuit of the principle of the rule of law is also obliged to establish a mechanism capable of eliminating the deep and continuous differences in the case-law of the courts of the same jurisdiction and to make arrangements to ensure the effective functioning of this mechanism.

The subject-matter of the present case is the alleged unfairness in that the actions brought by workers working under similar conditions were concluded differently due to the difference of opinion among the chambers of the Court of Cassation.

The deep and continuous differences in the case-law of the chambers of the Court of Cassation also prevail among the chambers of the Regional Court of Appeal. In addition, the Court of Cassation unified its case-law in order to determine the legal status of the foundations in the position of employer, and although it was established in the relevant decision that the foundations were legal persons governed by private law, no assessment was made regarding the staff working in these foundations.     

In the present case, it was concluded that the conclusion reached due to failure to unify the case-law, which was a mechanism capable of eliminating the deep and continuous differences, was unpredictable for the applicant and impaired the fairness of the proceedings, independently of the decision.   

Consequently, the Constitutional Court found a violation of the right to a fair hearing safeguarded by Article 36 of the Constitution.

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