REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 SECOND SECTION

JUDGMENT

REMEZAN ORAK AND OTHERS

Application no. 2013/2229

3 February 2016

            III. THE FACTS

            [8-19]. The service contracts of the applicants were suspended by the Municipality, which was the employer, for the applicants’ taking part in the management of a trade union while working as a worker. The applicants requested to be reemployed upon termination of their tasks in the trade union. The Municipality decided to terminate the applicants’ service contracts by means of paying their severance allowance. The applicants filed a case by maintaining that the termination of their service contract had been unfair; that their service contracts had been terminated for trade-union grounds; and that the other trade-union members in the same status with them had been re-employed. In the letter submitted by the Municipality to the Court, it is noted that there were two persons alleged to be in the same position and re-employed upon the end of their office in the management of the trade union in 2011. The court rejected the requests. The decisions were upheld by the Court of Cassation. 

IV.  EXAMINATION AND GROUNDS

20. The Constitutional Court, at its session of 3 February 2016, examined the application and decided as follows.

A.   The Applicants’ Allegations                                

21. The applicants maintained that their service contracts had been suspended for their having started to serve as professional officers in a trade union called Belediye-İş; and that although they had requested to be reinstated after the termination of their office in the trade union, their contracts had been terminated on trade-union related grounds. They also claimed that in spite of the existence of a letter of termination, their actions had been dismissed by the first instance court on the ground that their service contracts had not been terminated by the employer; and that their allegations concerning the reinstatement of other persons, who had been members of another trade union called Hizmet-İş and had been in the same position with them, had not been accepted by the inferior courts as a ground for the breach of equality. In this respect, the applicants alleged that their rights to a fair trial and to employment were violated, and therefore, they requested retrial for redress of the violation and its consequences.

B.    The Court’s Assessment

22. The Constitutional Court is not bound by the legal qualification of the facts by the applicants and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The Court considered that the applicants’ allegations that their right to employment was violated due to the Municipality’s refusal of their request for reinstatement upon the termination of their professional service in the management of the trade union, unlike the members of another trade union, as well as, due to the inferior courts’ rejection, within the scope of an action brought by the applicants, of their request for reinstatement relying on erroneous grounds without taking into consideration the assurance of the trade union management were related to the failure of the relevant authorities to protect their trade union rights. The Court was of the opinion that the application in question must be examined within the scope of the right to trade union, within the specific context of the freedom of association.

23. In addition, the applicants’ allegation that while the reinstatement requests made by the members of another trade union had been accepted, their requests for reinstatement was rejected due to their trade union preference, which was in breach of the principle of equality, was examined in conjunction with their right to trade union.

24. In its observations, the Ministry stated that during the proceedings carried out by the first instance court, the now repealed Law no. 2821 had been in force; that Law no. 6356 had entered into force during the appeal proceedings; that however, the decision of the first instance court had been upheld at the end of the appellate review without taking into consideration these facts; and that accordingly, these issues must be taken into consideration in the examination of the applicants’ allegations of violation.

1.    Admissibility

25. Article 51 §§ 1 and 2 of the Constitution provides as follows:

“Employees and employers have the right to form unions and higher organizations, without prior permission, and they also possess the right to become a member of a union and to freely withdraw from membership, in order to safeguard and develop their economic and social rights and the interests of their members in their labour relations. No one shall be forced to become a member of a union or to withdraw from membership.

The right to form a union shall be solely restricted by law on the grounds of national security, public order, prevention of commission 24 of crime, public health, public morals and protecting the rights and freedoms of others.”

26. Article 11 of the European Convention on Human Rights (“the Convention”) provides as follows:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

27. The freedom of association stands for the individuals’ freedom to come together by forming a collective entity which represents them in order to protect their own interests. The concept of “association” has an autonomous meaning within the framework of the Constitution, and our legal system does not recognize as association the activities carried out by the individuals continuously and coordinately. However, this does not mean that the freedom of association will not necessarily be mentioned within the provisions of the Constitution (see Tayfun Cengiz, no. 2013/8463, 18 September 2014, § 30).

28. In democracies, the existence of organizations under which citizens will come together and pursue common goals constitutes an important component of a sound society. In democracies, such an "organization" enjoys fundamental rights which need to be respected and protected by the State. Trade unions, which are the organizations that aim at protecting the interests of their members in the field of employment, constitute an important part of the freedom of association, namely the individuals’ freedom to come together by forming collective entities in order to protect their own interests (see Tayfun Cengiz, § 31).

29. The freedom of association provides individuals with the opportunity of realizing their political, cultural, social and economic goals in a collective manner. The right to trade union brings about the employees’ freedom of association by coming together so as to protect their personal and common interests. From this aspect, it is not an independent right, but a form or a special aspect of the freedom of association (see National Union of Belgian Police v. Belgium, no. 4464/70, 27 October 1975, § 38).

30.  Trade unions are the establishments formed to protect the financial and social rights of the employees. Conventions of the International Labour Organization (ILO), the European Social Charter and the judgments of the European Court of Human Rights (“the ECHR”) must be taken into consideration in the interpretation of the scope of the trade union rights and freedoms enshrined in Articles 51-54 of the Constitution.

31. The State has positive and negative obligations in the enjoyment of trade union rights. Article 51 of the Constitution provides that employees have the right to form unions and higher organizations, without prior permission, and they also possess the right to become a member of a union and to freely withdraw from membership (see Adalet Mehtap Buluryer, no. 2013/5447, 16 October 2014, § 75). Despite the existence of judgments where it was found that certain sanctions imposed on the members of trade unions for their trade union activities adversely affected their freedom of assembly and violated their right to trade union, the European Court of Human Rights concluded that the right to reinstatement of the members of trade unions, whose service at the union ended for any reason, cannot be protected under Article 11 of the Convention (see Ceyhan v. Turkey (dec.), no. 46330/99, 4 October 2005).

32. In this respect, it has not been exactly shown that unconditional reinstatement of the employees, who are suspended from work on account of being assigned as union officials, as well as protection of their rights acquired by them until the date of their suspension from work are necessary safeguards for the effective enjoyment of the right to trade union. Compulsion, which does not significantly affect the enjoyment of the right to trade union, even if it causes economic damage, cannot give rise to any positive obligation for the State under Article 11 (see Gustafsson v. Switzerland, 15573/89, 25 April 1996, § 52).

33. Article 59 of Law no. 2821 envisages criminal penalty in the event that the reinstatement requests of the applicants under Article 29 of the same Law are rejected by the employer for no apparent reason. On the other hand, in such cases, Article 23 of Law no. 6356 provides legal guarantee in the form of “severance allowance”. In other words, Article 23 of Law no. 6356 provides two alternative safeguards for the applicants who are assigned to trade union services, which are “reinstatement” and “severance allowance”.

34. In the present case, it is understood that the employer who rejected the applicants’ request for reinstatement paid their severance allowances in accordance with Article 9 (c) of the Collective Labour Agreement that complies with Article 23 of Article 6356, which entered into force after Law no. 2821, and provides more safeguards than Article 29 thereof. The first instance court dismissed the applicants’ request, stressing that the request for reinstatement that was made upon the termination of the trade union service differed from the other requests for reinstatement.

35. Thus, although the applicants sustained partial financial damages as a result of the authorities’ failure to meet their requests for “severance allowance” or “trade union compensation” for not being reinstated after the termination of their office in trade unions, there appears no compulsion that significantly restricted the enjoyment of their right to trade union. In addition, the applicants’ having been subject to discrimination while the members of other trade unions were reinstated must separately be examined under Article 10 of the Constitution.

36. Pursuant to Article 148 § 3 of the Constitution and Article 45 § 1 of the Code on Establishment and Rules of Procedures of the Constitutional Court no. 6216, dated 30 March 2011, in order for an examination to be made on the merits of an individual application lodged with the Constitutional Court, the right alleged to be interfered with by the public force must not only be safeguarded by the Constitution but it must also fall under the scope of the Convention and the additional protocols thereto to which Turkey is a party. In other words, applications which contain alleged violations of rights falling outside the common protection area of the Constitution and the Convention cannot be declared admissible (see Onurhan Solmaz, no. 2012/1049, 26 March 2013, § 18). Therefore, while determining the content of the rights within the scope of individual application, the provisions of the Constitution and the Convention must be considered together and their common protection area must be determined.

37. Article 10 §§ 1 and 5 of the Constitution, titled “Equality before the law”, reads as follows:

“Everyone is equal before the law without distinction as to language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such grounds.

…

State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all their proceedings.”

38. Article 14 of the Convention, titled “Prohibition of discrimination” reads as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

39. Regard being had to the provisions above, the applicants’ claim within the scope of the prohibition of discrimination cannot be examined abstractly; it must be examined in conjunction with the other fundamental rights and freedoms enshrined in the Constitution, as well as, in the Convention (see Onurhan Solmaz, § 33).

40. The applicants submitted their application based on the principle of equality in conjunction with the right to trade union. In other words, they alleged to have been subject to discrimination in terms of the protection of the right to trade union. Therefore, their allegation must be examined within the scope of Article 10 of the Constitution, by also relying on Article 14 of the Convention.

41. However, the fact that the prohibition of discrimination lacks an independent protective function in the examination of individual applications does not impede the broad interpretation of this prohibition. When the alleged violation of a constitutional right is examined alone, although no violation is found, it cannot prevent the examination of a discriminatory act conducted with regard to that right. Therefore, even though there is no violation of the relevant fundamental right or freedom, the discriminatory act conducted in this respect may be found to be in breach of Article 10 of the Constitution (see İhsan Asutay, no. 2012/606, 20 February 2014, § 48).

42. The applicants’ complaints that their requests for reinstatement were rejected due to their trade union preference, which was in breach of the principle of equality, are not manifestly ill-founded. Accordingly, the alleged violations were declared admissible for not being manifestly ill-founded and there being no other grounds for their inadmissibility

2.    Merits

43. Although the applicants are required to prove the facts underlying the different treatment in order for the assessment of the alleged discrimination, this rule is not absolute. The applicants allege that while their requests for reinstatement were rejected, the requests submitted to this end by their colleagues who were “in the same position” and “having the same legal status” with them and members of another trade union were accepted, which was in breach of the principle of equality.

44. The concept of "equality" solely means the requirement in relation to not performing a different treatment for the individuals in the same situation without any objective and reasonable basis. Grounds of different treatments are embodied in the Constitution as “language, race, colour, sex, political opinion, philosophical belief, religion, sect or similar grounds”; and in the Convention as “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

45. The fact that whether the requests for reinstatement submitted by two other persons who had been members of another trade union and had been in the same position with the applicants had been accepted was investigated and established during the proceedings before the first instance courts. Allegation that the Municipality made discrimination in terms of the act of reinstatement to work after the termination of trade union management is based on the fact that the trade union to which the applicants were member was different from the other trade union. Trade unions are not only the organizations established to defend the economic interests of their members, but they also serve as non-governmental organizations that can express their opinions regarding the political and social events in the country. From this aspect, trade union membership may reflect the preferences of persons in regard to “political view” or “philosophical belief”.

46. Democracy will be reinforced in a social understanding in which the differences are perceived not as a threat but as a resource for enrichment. The assessment of the request for reinstatement according to the trade union of which the relevant persons are members is not acceptable in contemporary democratic societies. It is possible to accept that after having assessed the requests for reinstatement, the employer may reach a conclusion which does not allow for reinstatement of certain trade-union members for reasons other than being a member of a trade union and that such a conclusion reached may not be regarded as discrimination. However, such assessments must be based on objective criteria and concrete grounds.

47. In the present case, while the service contracts of the applicants who had been members of the trade union called Belediye-İş were terminated, the persons who had been members of the trade union called Hizmet-İş were reinstated. There is no explanation and assessment indicating that such choice of the employer is based on objective criteria and grounds other than the membership of different trade unions. Although the applicants’ allegations of discrimination were put forth during the proceedings, the cases were concluded without these allegations being dealt with in the judgments of the first instance courts.

48. Consequently, it has been concluded that subjecting the employees to a different treatment in the absence of “objective and reasonable grounds”, while making an assessment with respect to their request for reinstatement, by taking into consideration the trade union of which they are members does not pursue “a legitimate aim”. Therefore, it must be held that there was a breach of the principle of equality (the prohibition of discrimination) guaranteed in Article 10 of the Constitution.

3.    Application of Article 50 of Law no. 6216

49. Article 50 §§ 1 and 2 of Law no. 6216 reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not.   In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled.   However, legitimacy review cannot be done, decisions having the quality of administrative acts and transactions cannot be made.   

(2)If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed.   In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favor of the applicant or the remedy of filing a case before the general courts may be shown.   The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

50. The applicants requested that the violation be found and retrial be conducted.

51. It was concluded that the principle of equality was violated in conjunction with the right to trade union.

52. As there is a legal interest in conducting retrial for redress of the violation of the principle of equality, it must be ordered that a copy of the judgment be sent to the 12^th Chamber of the Istanbul Labour Court in order to conduct retrial.

53. The total court expense of TRY 1,998.35, which includes the court fee of TRY 198.35 and the counsel fee of TRY 1.800, which is calculated over the documents in the case file, must be reimbursed to the applicants respectively. 

V.   JUDGMENT

            The Constitutional Court UNANIMOUSLY held on 3 February 2016 that

            A. The alleged violation of the principle of equality in conjunction with the right to trade union be DECLARED ADMISSIBLE;

            B. The principle of equality safeguarded by Article 10 of the Constitution was VIOLATED;

            C. One copy of the judgment be SENT to the 12^th Chamber of the Istanbul Labour Court to conduct retrial for redress of the consequences of the violation of the principle of equality;

            D. The total court expense of  TRY 1,998.35, which includes the court fee of TRY 198.35 and the counsel fee of TRY 1.800, be REIMBURSED TO THE APPLICANTS SEPARATELY;

            E. The payment be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and

            F. One copy of the judgment be SENT to the Ministry of Justice.