REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
SECOND SECTION
JUDGMENT
T. A. A.
(Application no. 2014/19081)
1 February 2017
On 1 February 2017, the Second Section of the Constitutional Court found violations of the right to protection of one’s corporeal and spiritual existence and the right to respect for private life safeguarded respectively by Articles 17 and 20 of the Constitution in the individual application lodged by T. A. A. (no. 2014/19081).
THE FACTS
[5-47] On 14 February 2005, the applicant started to work as a pipe profile manufacturing operator in a company operating in the field of plastic pipe and profile manufacturing. He was diagnosed with the human immunodeficiency virus (HIV) in December 2006.
The on-site doctor asked the Medical Faculty of the Ege University, where the applicant being suspended from work for six months in spite of being paid was receiving treatment, whether his situation constituted an impediment to work. In the response given it was noted that the health condition of the applicant did not constitute any obstacle to work at any job and he had no disabilities in respect thereof.
On 26 January 2009, the applicant left work by submitting a resignation letter, and signed a certificate of quittance declaring he had no receivables from the relevant workplace.
By his petition of 5 November 2009, the applicant filed an action of debt against the company he used to work before the 2nd Chamber of the Karşıyaka Labour Court (“the Labour Court”). The Labour Court qualified the action as an action for debt and compensation for non-pecuniary damage based on Article 5 of the Law No. 4857.
By the decision of the Labour Court dated 24 February 2011, it was noted that the applicant’s allegation that his private life had been violated was not substantiated and accordingly rejected his claim for non-pecuniary compensation. In terms of the compensation claimed for the prohibition of discrimination, the Labour Court indicated in its decision that it was found established that the applicant was paid his salary although he was not caused to work for five or six months, and that the applicant’s being precluded from performing his obligation to work and being suspended from work, as well as in employment relation the employer’s liability to pay salary, were discriminatory in nature. It was consequently held that the employer had contravened the obligation of equal treatment, and the compensation claimed was partially accepted.
The decision was quashed, upon the appeal of the parties, by the judgment of the 9th Civil Chamber of the Court of Cassation dated 1 October 2013, by considering that “the employer acted with the motive of protecting his other employees…”
Upon the retrial held following the quashing judgment, the Labour Court complied with the quashing judgment and dismissed the action with its decision of 20 March 2014.
This decision was upheld by the 9th Civil Chamber of the Court of Cassation by its judgment of 24 September 2014.
IV. EXAMINATION AND GROUNDS
48. The Constitutional Court, at its session of 1 February 2017, examined the application and decided as follows.
A. The Applicant’s Allegations
49. The applicant alleged;
i. That he was primarily suspended from his workplace and subsequently dismissed from work wrongfully on the ground of his health condition and that this situation constituted a discriminatory treatment; that his disease did not have an adverse effect on his business life and that it had also been supported with medical reports that it did not pose a risk for the others working in the same office with him; that despite these medical reports, the grounds on which the judicial authorities relied in their decisions dismissing the action would pose an obstacle for him to find work, which might cause serious problems to be in breach of the right to life and the right to have access to treatment with respect to the treatment of his disease requiring a high cost; and that therefore his rights enshrined in the Articles 10, 17, 20, 35, 36, 40 and 49 of the Constitution were violated;
ii. That in case of a public trial, his business life would end up permanently and that he accordingly requested that his trial be held closed to third parties due to his fear that his case, which was not common in nature, may attract attention of the public especially of the journalists; however, his request was rejected by the domestic court without any justification, which was in breach of Articles 20 and 36 of the Constitution; and
iii. That there was a breach of his right to a fair trial as his trial was not concluded within a reasonable time. The applicant requested that a violation be found and retrial be conducted, as well as 2,260 Turkish liras (TRY) and TRY 20,000 be awarded to him for respectively pecuniary and non-pecuniary damages, for redress of the consequences of the violation found. The applicant also requested that his identity be kept confidential in public documents.
B. The Court’s Assessment
1. Request for Confidentiality
50. Regard being had to difficulties experienced by the persons carrying HIV (+) due to the lack of adequate knowledge by the society about the said disease, the applicant requested that his identity be kept confidential in public documents. Since the reasons specified by the applicant were considered appropriate, it was necessary to accept the applicant’s request for confidentiality.
2. Determination of the Norms Applicable in the Case
51. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). Given the abovementioned allegations as a whole, it is seen that the applicant had been forced to quit on the ground that he was carrying HIV virus, which was allegedly in breach of the principle of equality and the prohibition of discrimination.
52. Pursuant to the provisions of Article 148 § 3 of the Constitution and Article 45 § 1 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court dated 30 March 2011, in order for the merits of an individual application lodged with the Constitutional Court to be examined, the right claimed to have been interfered with by the public power must, in addition to being guaranteed in the Constitution, fall within the scope of the European Convention on Human Rights (“the Convention”) and the additional protocols to which Turkey is a party. In other words, it is not possible to declare admissible an application which contains a claim as to the violation of a right falling outside the common protection area of the Constitution and the Convention (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.
53. Article 10 § 1 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.”
54. 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. In other words, in order for a discussion as to whether there has been a violation of the prohibition of discrimination, an allegation in this respect must be able to answer the questions as to the fundamental right and freedom on the basis of which the individual has been subject to discrimination (see Onurhan Solmaz, § 33).
55. Article 17 § 1 of the Constitution, titled “Personal inviolability, corporeal and spiritual existence of the individual”, in so far as relevant, provides as follows:
“Everyone has … the right to protect and improve his/her corporeal and spiritual existence.”
56. Article 20 of the Constitution, titled “Privacy of private life”, provides as follows:
“Everyone has the right to demand respect for his/her private and family life. Privacy of private or family life shall not be violated.
Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms 16 of others, or unless there exists a written order of an agency authorized by law, in cases where delay is prejudicial, again on the above-mentioned grounds, neither the person, nor the private papers, nor belongings of an individual shall be searched nor shall they be seized. The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours. The judge shall announce his decision within forty-eight hours from the time of seizure; otherwise, seizure shall automatically be lifted.
Everyone has the right to request the protection of his/her personal data. This right includes being informed of, having access to and requesting the correction and deletion of his/her personal data, and to be informed whether these are used in consistency with envisaged objectives. Personal data can be processed only in cases envisaged by law or by the person’s explicit consent. The principles and procedures regarding the protection of personal data shall be laid down in law.”
57. While any legal interest falling into the scope of private life shall be safeguarded by Article 8 of the Constitution, it appears that the legal interests in question shall fall under the protection of different articles of the Constitution. In this context, while it is specified in Article 17 § 1 of the Constitution that everyone has the right to protect and improve his/her corporeal and spiritual existence, the right to protect and improve corporeal and spiritual existence laid down therein corresponds to the right to physical and moral integrity as well as to the rights to self-fulfilment and self-determination, safeguarded within the scope of the right to respect for private life under Article 8 of the Convention (see Sevim Akat Eşki, no. 2013/2187, 19 December 2013, § 30).
58. One of the legal interests safeguarded within the scope of the right to respect for private life is the right of privacy. However, right of privacy does not only represent the right to be left alone, but it also covers the individual’s legal interest of controlling the information about him. An individual has an interest in the fact that any information concerning himself is not disclosed or disseminated without his consent, that such information is not accessed by the others and is not used without his consent, in other words, that such information remains confidential. This points out the individual’s right to determine the future of the information about him (see Serap Tortuk, no. 2013/9660, 21 January 2015, § 32). Right to protection of personal data covered by the right to respect for private life is clearly defined in Article 20 of the Constitution.
59. As set out in the Constitutional Court’s judgments, personal data covers all information concerning a person, provided that he is a specific and identifiable person. It is noted that not only the personal identifying information such as name, surname, date and place of birth, but also any information such as phone number, motor vehicle plate number, social security number, passport number, cv, photo, footage, voice records, fingerprints, statements of health, genetic information, IP address, e-mail address, shopping habits, hobbies, preferences, persons interacted with, group memberships and family information, which lead to direct or indirect identification of the person, are regarded as personal data (see the Court’s judgment nos. E.2014/74, K.2014/201, 25 December 2014; E.2013/122, K.2014/74, 9 April 2014; E.2014/149, K.2014/151, 2 October 2014; E.2013/84, K.2014/183, 4 December 2014; E.2014/74, K.2014/201, 25 December 2014; and E.2014/180, K.2015/30, 19 March 2015). Accordingly, the applicant’s statement of health is to be regarded as personal data safeguarded by Article 20 of the Constitution.
60. Besides, the right to respect for private life also contains the right to establish and develop relationships with other human beings. The professional life and private life commune with each other, therefore the activities carried out within the scope of professional life cannot be excluded from the notion of “private life”. Accordingly, where the matters concerning an individual’s private life are taken as a basis for the actions taken with respect to his profession, then the right to respect for private life will be at stake (see Bülent Polat [Plenary], no. 2013/7666, 10 December 2015, § 62; and Ata Türkeri, no. 2013/6057, 16 December 2015, § 31; for similar judgments of the European Court of Human Rights (ECHR), see Özpınar v. Turkey, no. 20999/04, 19 October 2010, § 45; and Niemietz v. Germany, no. 13710/88, 16 December 1992, § 29).
61. There is no doubt that the state of health concerns the right to protect and develop corporeal and spiritual existence. Besides, for persons with HIV positive, this disease is not only a health problem, but it also affects the other aspects of their private lives by leading to problems such as facing prejudices and stigmatizations in social life and being excluded from the society. The effects on people can be much more destructive if such exclusions, stigmatizations and prejudices are present especially in business life. Dismissal of the persons with HIV positive for solely this reason will make it very difficult for them to find a new job, as well as it may make it difficult for them to have access to the treatment required to be undergone for a life time which is quite expensive, hence cause serious problems on their health. In addition, it can hardly be said that an individual deprived of his financial independence as a result of being deprived of his salary is able to fully enjoy his rights to self-realization and self-determination.
62. In the present case, while it is established that the applicant had submitted a petition for resignation, it is understood that the applicant had first been suspended from work for a few months by receiving his salary and subsequently been dismissed after he had become HIV virus carrier and this situation had been learnt by his employer. As a matter of fact, it is stated in the reasoning of the judgments of the Court of Cassation and the labour court that “Considering that the plaintiff’s current disease is of contagious nature and that where he is allowed to continue his work despite his disease, it might cause inconvenience for the other employees, it is understood that the employer aimed at protecting his other employees.”; thus, it was accepted that the applicant had been dismissed due to his being HIV positive. There is no reason for the Constitutional Court to depart from the inferior courts’ acknowledgement in this respect. Accordingly, in the present case, the applicant’s having been subject to a process affecting his professional life on account of his “health condition” concerns, in addition to his right to protect and develop his corporeal and spiritual existence, his right to respect for his private life safeguarded by Article 20 of the Constitution.
63. In this framework, it has been concluded that considering the applicant’s complaints mentioned above, his allegation under Article 10 of the Constitution must be examined in conjunction with his right to protect and develop his corporeal and spiritual existence as well as his right to respect for his private life, which are safeguarded by the Constitution and the Convention.
64. In addition, the applicant maintained that the grounds on which the judicial authorities relied in their decisions were of a nature which might cause serious problems in breach of the right to life and the right to have access to treatment with respect to the treatment of his disease requiring a high cost. However, the medical reports submitted by the applicant pertaining to the fact that he was a carrier of the HIV virus stated that his health status did not prevent him from working in any business and that nor did he have any disability. Moreover, the subject matter of the action brought by the applicant before the labour court had related to his claim for compensation for discrimination, not to the alleged failure to cover his treatment costs. In addition, the treatment costs of the patients with HIV can be covered by the General Health Insurance in our country. Besides, there is no allegation or finding in the case file that the applicant had been prevented from making use of such an opportunity. For all these reasons, it has been concluded that it is not necessary to examine these allegations within the scope of the right to life. However, the said grounds relied on by the judicial authorities must be examined within the scope of the right to protect and develop corporeal and spiritual existence as well as the right to respect for private life.
65. Similarly, the applicant’s allegation that he had requested that his trial be held closed to third parties; however, his request had been rejected by the labour court without any justification must also be examined under his right to respect for his private life within the scope of his right to control the information about him and to the protection of personal data, which constitutes one of the elements of the right to privacy.
66. Besides, the applicant’s allegation concerning the excessive length of the proceedings has been examined within the scope of the right to be tried within a reasonable time, which constitutes one of the elements of the right to a fair trial.
3. Admissibility
67. The present application must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.
4. Merits
a. Alleged violation of the right to respect for private life and the right to protect and improve corporeal and spiritual existence assessed in conjunction with the principle of equality due to the dismissal of the action brought for seeking compensation for discrimination
i. General Principles
68. The applicant claimed that he had been primarily suspended from his workplace and subsequently dismissed from work wrongfully on the ground of his health condition and that this situation constituted a discriminatory treatment.
69. The grounds of discrimination such as “language, race, colour, sex, political opinion, philosophical belief, religion and sect” which are set out in Article 10 of the Constitution, which provides “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.”, are important discrimination grounds which are also specified in many international regulations. However, the phrases “everyone” and “such grounds” stated in the relevant provision points out that a limited approach is adopted in view of the persons protected against discrimination and the grounds of discrimination, and the grounds specified therein are exemplary (see Hüseyin Kesici, no. 2013/3440, 20 April 2016, § 56).
70. Within the context of the interpretation of the phrase “such grounds”, the Constitutions Court states that “…One of the most important concepts set out in the Constitution regarding freedoms is the principle of equality before the law… The issues that cannot be subject to discrimination is not limited to those listed in the provision. With the phrase “such grounds”, the scope of the issues where no discrimination is allowed have been extended; thus the provision has been clarified also in practice…”, where it clearly specified that the grounds of discrimination is not limited to those listed in the relevant provision (see the Court’s judgment no. E.1986/11, K. 1986/26, 4 November 1986).
71. In this scope, the principle of equality and the prohibition of discrimination also ensure that individuals are not subject to discrimination on the basis of sex, race, language, religion as well as on the basis of “health condition” which is part of the private life (for similar judgments of the ECHR, see Kiyutin v. Russia, no. 2700/10, 10 March 011, §§ 56-57; and I.B. v. Greece, no. 552/10, 3 October 2013, § 73).
72. The ECHR has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, the persons in relevantly similar situations. It is also specified in the ECHR’s case-law; that while Article 14 of the Convention provides guarantee against any discrimination in terms of the enjoyment of rights and freedoms safeguarded by other provisions, all different treatments are not in breach of this article; that it is necessary to prove that other individuals in similar situations have been subject to a privileged treatment, constituting a discrimination; that in order for a different treatment to be in breach of Article 14 of the Constitution, it must not have an objective and reasonable justification; that existence of such a justification will be assessed in accordance with the principles which prevail in a democratic society; and that accordingly, a different treatment in terms of enjoyment of a right safeguarded by the Convention must pursue a legitimate aim, as well as there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (for similar judgments of the ECHR, see D.H and Others v. the Czech Republic [GC], no. 57325/00, 13 November 2007, § 175; and Burden v. the United Kingdom [GC], no. 13378/05, 29 April 2008, § 60, and Ünal Tekeli v. Turkey, no. 29865/96, 16 November 2004, §§ 49-53).
73. While the Contracting States enjoy a certain margin of appreciation in determining the cases in which differences in otherwise similar situations justify a different treatment, weighty reasons have to be put forward (for a similar judgment of the ECHR, see Ünal Tekeli v. Turkey, no. 29865/96, 2 February 2009, §§ 49-53). In addition, if a restriction applies to a particularly vulnerable group in society, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons to demonstrate that the restriction in question has been in compliance with the Constitution and the Convention (for similar judgments of the ECHR, see Kiyutin v. Russia, § 63; and I. B. v. Greece, no. 552/10, 3 October 2013, § 79).
74. The ECHR identified a number of vulnerable groups that suffered different treatment on account of their sex, sexual orientation, race or ethnicity, mental faculties or disability (for similar judgments of the ECHR, see Abdulaziz, Cabales, Balkandali v. the United Kingdom, nos. 9214/80, 9473/81 and 9474/81, 28 May 1985, § 78; Burghartz v. Switzerland, no. 16213/90, 22 February 1994, § 27; Schalk and Kopf v. Austria, no. 30141/04, 24 June 2010, § 97; Smith and Grady v. the United Kingdom, nos. 33985/96, 33986/96 and 27/9/1999, § 90; Timishev v. Russia, nos. 55762/00 and 55974/00, 13 December 2005, § 56; and Kiyutin v. Russia, § 63).
75. The ECHR has also underlined; that people living with HIV/AIDS have suffered from widespread stigma and exclusion, including within the Council of Europe region; that, in the early years of the epidemic when HIV/AIDS diagnosis was nearly always a lethal condition and very little was known about the risk of transmission, people were scared of those infected due to fear of contagion; that ignorance about how the disease spreads has bred prejudice which, in turn, has stigmatised or marginalised those who carry the virus; that as the routes of transmission of HIV/AIDS became better understood, it was recognised that HIV infection could be traced to specific behaviours – such as same-sex sexual relations, drug injection, prostitution or promiscuity – that were already stigmatised in many societies, thereby creating a false nexus between the infection and personal irresponsibility and reinforcing other forms of stigma and discrimination, such as racism, homophobia or misogyny; that despite the recent considerable progress in HIV prevention and improved access to HIV treatment, stigma and related discrimination against people living with HIV/AIDS have remained a subject of great concern for all international organisations active in the field of HIV/AIDS; that therefore, people living with HIV are a vulnerable group with a history of prejudice and stigmatisation and that the State should be afforded only a narrow margin of appreciation in choosing measures that single out this group for differential treatment on the basis of their HIV status (see Kiyutin v. Russia, § 64; and I. B. v. Greece, § 81 ).
76. In the present case, the dispute is related to the termination of the employment contract between real persons. Accordingly, there has been no alleged interference on the part of the public authorities. However, the State has a positive obligation to effectively protect and respect the corporeal and spiritual existence of individuals and their right to respect for their private lives. This obligation also involves taking necessary measures to protect these rights in terms of the individuals’ acts against each other (see Adnan Oktar (3), no. 2013/1123, 2 October 2013, § 32; and Marcus Frank Cerny [Plenary], no. 2013/5126, 2 July 2015, § 36). Accordingly, the dispute in question must be examined within the scope of the State’s positive obligation.
77. The State’s positive obligation primarily requires the establishment of a legal infrastructure that effectively protects the right to protect and improve corporeal and spiritual existence and the right to respect for private life in terms relations between individuals (see Ömür Kara and Onursal Özbek, no. 2013/4825, 24 March 2016, § 46).
78. In addition, the disputes falling into the scope of the right to protect and improve corporeal and spiritual existence and the right to respect for private life must be examined by the judicial authorities within the scope of proceedings where constitutional safeguards concerning the fundamental rights in question as well as guarantees concerning fair trial are respected. These requirements stem from the obligation of the public authorities not to tolerate the unjust interferences by third parties with the rights and freedoms of individuals. As a matter of fact, the inferior courts play a role in the protection of safeguards by delivering binding decisions for the resolution of disputes between private persons. At this point, bringing the disputes before the judicial authorities and the resolution of them through fair proceedings constitute a part of the positive obligations incumbent on the public authorities (see Ömür Kara and Onursal Özbek, § 47).
79. Although the necessary structural measures have been taken by public authorities, in cases where individuals are not provided with protection against the interference by third parties in the decisions of the courts conducting the proceedings in dispute, their obligations mentioned above shall not be deemed to have been fulfilled. This means that the rights and freedoms of individuals are left unprotected through the courts, which are public authorities (see Ömür Kara and Onursal Özbek, § 49).
80. Accordingly, in cases where the disputes concerning alleged interferences with the rights, safeguarded by the Constitution, of individuals working within the scope of private law employment relationship, the inferior courts must not ignore these safeguards, a fair balance must be struck between the competing interests of employer and employees, it must be examined whether the interference with the applicant’s fundamental rights was proportionate to the legitimate aim pursued by the employer and relevant and sufficient justifications must be submitted while delivering the judgment (see Ömür Kara and Onursal Özbek, § 50).
ii. Application of Principles to the Present Case
81. The applicant claimed that he had been primarily suspended from his workplace and subsequently dismissed from work wrongfully on the ground of his health condition and that this situation constituted a discriminatory treatment. In this regard, the applicant brought an action before the labour court seeking compensation for discrimination and thus non-pecuniary damages.
82. Accordingly, it must be underlined that the action brought by the applicant was not an action for reinstatement. The applicant, maintaining that he had been dismissed from work as a result of being subject to discriminatory treatment, sought compensation in accordance with Article 5 of Law no. 4857, titled “principle of equal treatment” and defined through the judicial decisions as “compensation for discrimination” in the doctrine.
83. As is known, Article 5 § 1 of Law no. 4857 provides that no discrimination based on language, race, sex, political opinion, philosophical belief, religion and sex or similar reasons is permissible in the employment relationship; while Article 5 § 6 provides that if the employer violates the above provisions in the execution or termination of the employment relationship, the employee may demand compensation (compensation for discrimination) up to his four months’ salaries plus other claims of which he has been deprived.
84. In the present case, it must be proven whether the applicant had been subject to a different treatment. There are two acts that the applicant described as discriminatory treatment. The first one is the applicant’s having allegedly not been allowed to work despite the payment of his salary and being suspended from work. The second one is his allegedly been dismissed from work wrongfully.
85. The applicant claimed; that he had been dismissed from work on account of his health condition; that making use of his difficult situation, he had been shown as if he had resigned and had been made to sign many documents in this respect; and that he had been made payment under the name of premium, despite not existence of such a procedure in his workplace. Stating that he reserved his rights as regards severance and notice pay, the applicant claimed compensation for discrimination. The documents submitted to the case file by the labour court stated that the applicant had resigned by submitting a letter of resignation. However, according to the relevant documents, the applicant was paid 4,416.75 Turkish liras (TRY) after resignation.
86. The expert report dated 15 December 2010 which was requested by the labour court stated; that although the applicant had submitted a letter of resignation and signed a voucher, these documents would not be valid because the contents of the documents and the defense of the employer contradicted with each other; that although it was indicated that the applicant had been paid TRY 4,416.75 as premium, the witness of the defendant stated that the relevant payment had been severance payment; and that accordingly, it must be accepted that the applicant’s employment contract had been terminated by the employer.
87. Besides, it was found established by the inferior courts that after the applicant’s health condition had been learnt by his employer, his salary was paid to him for a few months without working. It was also indicated by the inferior courts that the employer had not provided the applicant with another position appropriate for his health condition. According to the documents included in the case file as well as to the court decisions, the applicant had been made payment for a few months but he had not been allowed to work, and afterwards, he submitted a letter of resignation.
88. In view of all these points, it has been understood; that after the applicant’s health condition had been learnt by his employer, he was first suspended from work for a few months but his salary was paid to him; that subsequently, he was made a payment under the name of premium and then made to submit a letter of resignation; and that thus he was forced to resign from work.
89. In the initial decision of the labour court, “payment of the applicant’s salary without working” and “his being suspended from work” was considered to be contrary to the principle of equality. It was stated in the Court of Cassation’s judgment quashing the labour court’s decision that the applicant’s employment contract had explicitly been terminated with his resignation. According to the decisions of the labour court and the Court of Cassation, the act attributable to the employer was the fact that the applicant had not been allowed to work despite the payment of his salary to him for a few months.
90. Accordingly, it is seen that the inferior courts made no assessments as to the applicant’s allegedly been forced to resign and thereby his actually having been dismissed by his employer. It has therefore been understood that the inferior courts failed to address the applicant’s claims and demands which constituted the basis of the applicant’s case and might have an impact on the outcome of the proceedings, and that accordingly, the justifications of the decision were not sufficient and relevant in terms of the applicant’s right to protect his corporeal and spiritual existence as well as his right to respect for his private life.
91. In addition, the grounds relied on by the inferior courts as to the fact that the applicant’s not having been allowed to work despite the payment made to him did not constitute a discrimination must also be assessed.
92. It was found established by the inferior courts and the Court of Cassation that after the applicant’s health condition had been learnt by his employer, he was suspended from work for a few months, while his salary was still paid to him. This practice was classified by the labour court in its initial decision as a different treatment. On the other hand, whether this practice had been of a different nature was not specified in the Court of Cassation’s judgment, and only the motive of the employer was focused on. In its judgment, the Court of Cassation relied on the ground that the employer aimed at protecting the other employees working in the same place with the applicant and that therefore the employer’s act could not be regarded as discriminatory. Accordingly, the grounds relied on by the inferior courts regarding the motive of the employer must also be assessed.
93. In the present case, it must be acknowledged that the applicant had reasonably expected that he would legally continue working, unless he committed an act leading to his dismissal from work, as regulated by the labour law. However, it has been found established that the applicant was not allowed to work for a few months after his health condition had been learnt by his employer.
94. Even if it may be asserted that the applicant was subject to a different treatment which was not shown to any of his workmates and which was more convenient and even advantageous for him given the fact that he was paid salary during the period he was not allowed to work and could get his receivables when he left work, it must in the first place be recalled that the applicant, who has been in need of a continuous and regular income to cover his lifelong treatment, has lost his job by which he could obtain this income not due to the legal reasons stipulated in Law no. 4857 but for suffering from HIV positive. Therefore, it turns out that the applicant was subject to a different treatment in a negative sense.
95. It was stated in the Court of Cassation’s judgment quashing the labour court’s decision and in the labour court’s subsequent decision on the dismissal of the case that the employer had taken such a measure with a view to protecting the other employees, which could not be regarded as a discriminatory act.
96. Indeed, there is no doubt that in workplaces where sharp objects are used and labour accidents and injuries may occur, the risk of infection of HIV disease –even if it is a slight probability- should be taken seriously. In this respect, it must be acknowledged that the employer was concerned about protecting other employees in his company and that therefore the measure taken by him pursued a legitimate aim.
97. In the present case, there has been conflict between the benefits to be obtained by the employer by protecting the others employees and thereby ensuring peace and discipline in his company within the frame of the rules set by him and the applicant’s right to respect for his private life as well as his right to protect and improve his corporeal and spiritual existence. Accordingly, the judicial authorities must hold the balance between the interests of the employer and the employee who was the weak party of the employment contract as well as included in the weak group of the society due to his being HIV positive.
98. Whether the termination of the employment contract by the employer on account of the health status of the employee constitutes a violation of the obligation of equal treatment must be assessed, in the particular circumstances of each case, in terms of the elements such as the nature of the employee’s disease, the effects of the disease on work attendance, working conditions, performance and efficiency, whether it poses a danger to the other employees and the measures to be taken in order to prevent such danger.
99. In their decisions, the Court of Cassation and the Labour Court focused on the “contagious” nature of the applicant’s disease and therefore considered that the only solution to prevent this risk from occurring was to suspend the applicant from work. However, in the relevant decisions, it was not taken into consideration whether the employer had the obligation to assess the opportunity to allow the applicant to work in another position that would not pose a risk to the other workers. Whereas according to witness statements, the on-site doctor gave suggestions to the employer to employ the applicant in another position, as well as the manager of the staff and financial affairs informed the employer that the applicant may be tasked with performing sales calls in an outside position. It was also indicated in the report of the expert assigned by the court that the employer’s duty was to employ the applicant in another position which was not risky for his health condition. However, it appears that the employer failed to make an assessment as to whether there was such a position at the workplace and if any, whether the applicant’s qualifications were sufficient for this position. Besides, it has been observed that in the decisions of the Court of Cassation and the Labour Court, no assessment as to the obligation to look for alternative positions at the workplace was done and no fair balance was therefore struck between the conflicting interest of the employer and the employee.
100. Consequently, it has been established in the first place that the applicant’s allegation that he had been unjustly forced to leave work was never examined by the first instance court and in the second place that the incumbent court’s decisions included no assessment concerning the obligation to look for alternative positions at the workplace. It has therefore been concluded that the public authorities failed to fulfil their positive obligations to protect the applicant’s corporeal and spiritual existence as well as his right to respect for his private life.
101. For the reasons mentioned above, the Constitutional Court has found violations of the applicant’s right to protect his corporeal and spiritual existence as well as his right to respect for private life, which are respectively safeguarded by Articles 17 and 20 of the Constitution.
b. Alleged violation of the right to respect for private life due to rejection of the applicant’s request for holding of his trial closed to third parties
102. The applicant claimed that his right to respect for his private life was violated due to the rejection of his request for holding of his trial closed to third parties by the labour court.
103. As specified in the previous judgments of the Constitutional Court, personal data covers all information concerning a person, provided that he is a specific and identifiable person (see the Court’s judgments nos. E.2014/74, K.2014/201, 25 December 2014; E.2013/122, K.2014/74, 9 April 2014; E.2014/149, K.2014/151, 2 October 2014; E.2013/84, K.2014/183, 4 December 2014; E.2014/74, K.2014/201, 25 December 2014; and E.2014/180, K.2015/30, 19 March 2015). Data concerning individuals’ health condition is also regarded as personal data.
104. Considering that people with HIV infection are a weak group that has been exposed to prejudice and condemnation for a long time, respecting the confidentiality of health data of such individuals is of vital importance. Appropriate measures for preventing the disclosure of medical data should be taken in order to prevent any condemnation against these individuals and ensuring that they make use of medical services without being subject to discrimination (for similar judgments of the ECHR, see I v. Finland, no. 20511/03, 17 July 2008, § 38; and Y v. Turkey (dec.), no. 648/10, 17 February 2015, § 73).
105. In the present case, the applicant requested that his trial be conducted closed to third parties, stating that otherwise it would have negative effects on his working life due to his being HIV virus carrier. The labour court dismissed the applicant’s request for confidentiality due to the nature of the petition of complaint. Thus, it has been understood that there was an interference with the applicant’s right to request the protection of personal data within the scope of his right to respect for his private life due to the dismissal by the judicial authorities of his request for the conduct of his trial closed to third parties on account of his health condition.
106. In determination of whether the said interference constituted a violation, an examination should be carried out in accordance with the principles of being prescribed by law, relying on the grounds specified in the relevant articles of the Constitution, and not being contrary to the requirements of the democratic order of the society and to the principle of proportionality, which are laid down in Article 13 of the Constitution and applicable to the present case.
107. Judicial authorities may hold hearings closed to third parties in cases specified in Article 28 of Law no. 6100. It is therefore understood that the interference in the present case had a legal basis.
108. The principle of publicity of proceedings is safeguarded within the scope of the right to a fair trial. The purpose of this principle is to ensure the transparency of the trial proceedings and avoid arbitrariness in the trial by means of exposing the functioning of the judicial mechanism to the public scrutiny. From this aspect, it is one of the most significant means to achieve a state of law (see Nevruz Bozkurt, no. 2013/664, 17 September 2013, § 32). Accordingly, the said principle pursues the legitimate aim of public interest.
109. However, within the scope of the right to respect for private life as in the present case, in cases where personal data that is of particular sensitivity is to be protected, the public authorities must show particularly significant grounds in order to prove that the interference with the said fundamental right has been justified.
110. In the present case, as concerns the applicant’s request for a trial closed to third parties, the labour court stated in its minutes of hearing dated 9 February 2010 that by the nature of the petition of complaint the applicant’s request for confidentiality was dismissed. As stated above, considering that people with HIV infection are a weak group that has been exposed to prejudice and condemnation for a long time and that in case of being subject to exclusion, stigmatization and prejudice especially in the business life, its effects on people may be much more devastating, the applicant’s request for confidentiality is of reasonable and defensible nature within the scope of the right to respect for private life. Although it is clear that the judicial authorities enjoy discretion in the assessment of the parties’ claims and requests, in cases where the requests concerning the matters that may have significant effects with respect to the individual’s confidentiality and thus his private life are dismissed, the grounds relied on must be specified in detail in the decision, as a requirement of the right to a fair hearing.
111. Although it is stated by the Labour Court that the request for confidentiality is denied due to the nature of the complaint petition, the relevant statement is ambiguous and is far from explaining the concrete reasons why the confidentiality decision was not given. It appears that although same allegations were put forth at the appellate stage, any justification on these matters was not included in the appellate judgment. In this sense, it must be accepted that the decision and judgment in question did not include relevant and sufficient justification on the matter.
112. Consequently, the Constitutional Court has found a violation of the applicant’s right to protection of personal data, which is one of the elements of the right to respect for private life safeguarded by Article 20 of the Constitution.
c. Alleged violation of the right to a fair trial due to the unreasonable length of proceedings
113. The applicant claimed that his right to a fair trial had been violated, stating that the action he had brought before the 2nd Chamber of the Karşıyaka Labour Court was not concluded within a reasonable period.
114. In determination of the length of the administrative proceedings concerning the disputes related to civil rights and obligations, the starting date shall be taken as the date on which the action was brought, while the ending date shall be taken as the date on which the proceedings are concluded (usually covering the execution stage) and, as regads the pending cases, the date of the Constitutional Court’s judgment on the alleged violation of the right to a fair trial (see Güher Ergun and Others, no. 2012/13, 2 July 2013, §§ 50 and 52).
115. In the assessment of whether the length of the administrative proceedings concerning civil rights and obligations was reasonable, the issues such as the complexity of the proceedings and the level of jurisdiction, the attitudes shown by the parties and the relevant authorities in the proceedings and the nature of the applicant’s benefit in expeditious conclusion of the proceedings are taken into consideration (see Güher Ergun and Others, §§ 41-45).
116. In view of the principles mentioned above and the judgments rendered by the Constitutional Court in similar applications, it has been concluded that the length of proceedings which lasted 4 years and 10 months in the present case (from 5 November 2009 on which the action was brought until 24 September 2014 on which the Court of Cassation upheld the decision) was not reasonable.
117. Consequently, the Constitutional Court has found a violation of the right to a trial within a reasonable time safeguarded by Article 36 of the Constitution.
C. Application of Article 50 of Code no. 6216
118. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, 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…
(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 favour 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.”
119. The applicant requested a retrial, as well as 2,260 Turkish liras (TRY) corresponding to his four salaries and TRY 20,000 for respectively pecuniary and non-pecuniary damages.
120. It has been concluded that the applicant’s right to respect for his private life and his right to protect and improve his corporeal and spiritual existence, which have been examined in accordance with the principle of equality, have been violated.
121. As there is a legal interest in holding a retrial for redress of the consequences of the violation, a copy of the judgment must be sent to the 2nd Chamber of the Karşıyaka Labour Court in order to hold a retrial. The applicant’s request for pecuniary damages must be dismissed since it is the subject matter of the retrial to be held.
122. It has also been concluded that the applicant’s right to respect for his private life has been violated due to the rejection of his request for holding his trial closed to third parties. The applicant must be awarded TRY 8,000 for non-pecuniary damages that cannot be redressed solely with the finding of a violation.
123. The action for compensation brought by the applicant was concluded within a period of five years which was not reasonable; therefore, the applicant must be awarded TRY 4,800 for non-pecuniary damages that cannot be redressed solely with the finding of a violation.
124. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicant.
V. JUDGMENT
For the reasons explained above, the Constitutional Court UNANIMOUSLY held on 1 February 2017 that
A. The applicant’s request for keeping his identity confidential in public documents be ACCEPTED;
B. 1. Alleged violation of the applicant’s right to respect for his private life and his right to protect and improve his corporeal and spiritual existence, which have been examined in accordance with the principle of equality, be DECLARED ADMISSIBLE;
2. Alleged violation of the applicant’s right to respect for his private life due to the rejection of his request for holding his trial closed to third parties be DECLARED ADMISSIBLE;
3. Alleged violation of the applicant’s right to be tried within a reasonable time be DECLARED ADMISSIBLE;
C. 1. The principle of equality enshrined in Article 10 of the Constitution, the applicant’s right to protect and improve his corporeal and spiritual existence safeguarded by Article 17 § 1 of the Constitution, and his right to respect for his private life safeguarded by Article 20 of the Constitution were VIOLATED;
2. The applicant’s right to respect for his private life safeguarded by Article 20 of the Constitution was VIOLATED, due to the rejection of his request for holding trial closed to third parties;
3. The applicant’s right to be tried within a reasonable time safeguarded by Article 36 of the Constitution was VIOLATED;
D. A copy of the judgment be SENT to the 2nd Chamber of the Karşıyaka Labour Court (Decision of the 2nd Chamber of the Karşıyaka Labour Court, dated 20 March 2014 and numbered E.2013/337, K.2014/90) in order to hold a retrial for redress of the consequences of the violation;
E. Although the applicant sought compensation for pecuniary and non-pecuniary damages for the alleged violations of his right to respect for his private life and his right to protect and improve his corporeal and spiritual existence, which have been examined in accordance with the principle of equality, sending the case file to the 2nd Chamber of the Karşıyaka Labour Court for holding retrial will constitute a sufficient redress for the applicant’s allegations in this respect; therefore his request for compensation regarding his mentioned rights be REJECTED;
F. 1. The applicant be AWARDED TRY 8,000 for non-pecuniary damages he had sustained due to the rejection of his request for holding his trial closed to third parties; and his other requests for compensation be REJECTED;
2. The applicant be AWARDED TRY 4,800 for non-pecuniary damages he had sustained due to the length of the judicial proceedings; and his other claims for compensation be REJECTED;
G. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1,800 be REIMBURSED to the applicant;
H. The payment be made within four months as from the date when the applicant applies 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
I. A copy of the judgment be SENT to the Ministry of Justice.
