17 May 2018 Thursday

Hakan Altıncan [PA] (no. 2016/13021, 17 May 2018)

The Facts

The applicant, who is working in a thermal power plant within the Electricity Generation Corporation (EÜAŞ), became a member of a labour union carrying out activities in this field. However, the EÜAŞ, stating that the applicant is not its own staff, returned the applicant’s relevant documents which he had submitted for membership.

Many employees, including the applicant, working in the same workplace and under similar conditions brought personal actions on the basis of the collective labour agreement that had been signed with the company and was still in force.

The Labour Court, citing precedent cases that became final after review of the Court of Cassation, accepted the cases on the grounds; that the applicant and the other employees continued working the sub-employers had changed after the service procurement auction; that the work that was subject to the service procurement constituted the main line of business; and that therefore the service procurement between the primary employer and the sub-employer constituted a collusive agreement. These decisions were appealed.

The relevant Chamber of the Court of Cassation conducting the appellate review departed from its previous case-law for the first time and quashed the decision on the ground that according to the relevant provision of law, an allegation of collusion could not be submitted against the defendant. Thereupon, the cases were allocated to two different labour courts. The labour court that had previously accepted the cases reiterated its original decision on the ground that the approach of the relevant Chamber of the Court of Cassation was contrary to its previous case-law. The General Assembly of Civil Chambers of the Court of Cassation (HGK) upheld the decision of the labour court. Hence, the cases were concluded in favour of the employees in the capacity of plaintiffs.

The other labour court complied with the Court of Cassation’s judgment and dismissed many cases including that of the applicant. Upon appeal, the relevant Chamber of the Court of Cassation upheld the decision on the ground that as the first instance court complied with the judgment of the Court of Cassation and the present case was not brought before the HGK, a vested right in the procedure arose in favour of the defendant.

The Applicant’s Allegations

The applicant claimed that his right to a fair trial was violated as the case he filed to obtain the receivables as an employee was concluded in a different way from the other cases filed on the basis of the same material fact.

The Court’s Assessment

The right to a fair trial safeguarded in Article 36 of the Constitution requires that the principle of the rule of law must be respected in terms of the settlement of disputes. Indeed, the rule of law that is regarded among the characteristics of the Republic is a principle that must be taken into consideration in the interpretation and implementation of all articles of the Constitution.

In cases where the legal rules can be interpreted in different ways, the inferior courts shall decide on the issue. However, conclusion of the cases in different ways which are filed by the persons in the same legal situation and on the basis of same material fact may run counter to the principles of legal certainty and predictability that are among the fundamental elements of the rule of law. Judicial authorities are expected to maintain a certain degree of stability in their decisions in order to maintain the public confidence in the judiciary as a necessity of the mentioned principles.

In the present case, the relevant Chamber of the Court of Cassation adopted a new approach by departing from the manner used to resolve similar disputes. Although the Court of Cassation’s departing from its established case-law cannot be considered in itself to constitute a violation of the right to a fair trial, it has been determined that the new approach was not adopted by the other Chambers and the HGK resolving the same disputes, and that therefore the Court of Cassation did not have a consistent and uniform practice in itself.

As a result of different practices of the Court of Cassation not arising out of the contents of the cases, some of litigants in the same situation obtained favourable results while some others could not. This situation created legal uncertainty. It is concluded that the fairness of the proceedings was impaired because such practice was not predictable for the applicant.

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