THE FACTS

 [7-32] The applicant works as an office staff in a social assistance and solidarity foundation (“the Foundation”) on a contractual basis.

 Stating that the Foundation had the characteristics of a public institution affiliated to a general directorate under a ministry, the applicant requested an additional 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 final decision was served on the applicant on 9 June 2017. Thereafter, she lodged an individual application with the Court on 6 July 2017.

V.            EXAMINATION AND GROUNDS

33.          The Constitutional Court (“the Court”), at its session of 25 December 2018, examined the application and decided as follows:

A.           The Applicant’s Allegations and the Ministry’s Observations

34.          The applicant asserted that fourteen workers employed at the same workplace under similar conditions brought separate actions to claim additional pay (a certain bonus payable to the workers in State enterprises), upon which the first-instance court ruled in favour of the workers and decided that she was to be paid 26,843.45 Turkish liras (“TRY”). During the proceedings, the remedy of appeal on points of fact and law (istinaf) became operational. Upon the respondent Foundation’s requests for appeal, the case files were assigned to the 5^th, 6^th, 7^th, 8^th and 9^th Civil Chambers of the Regional Court of Appeal. Although the case files assigned to the other chambers resulted in favour of the workers, the 7^th Civil Chamber dismissed her case, as well as those of three others, by reaching a different conclusion. The applicant argued that the conclusion of similar disputes with different outcomes was caused by the difference of opinion among the chambers of the Court of Cassation, which had held the appellate reviews on points of law on such disputes in the past. In this connection, despite the decisions of the 7^th and 9^th Civil Chambers of the Court of Cassation recognising persons in the same status with her as a public worker (i.e. worker employed in State enterprise) and granting their additional pay claims, the applicant’s claims for additional pay were dismissed on the ground that the 22^nd Civil Chamber of the Court of Cassation had not recognised those persons as public workers. The applicant alleged that this difference of opinion among the jurisprudence of chambers of the Court of Cassation had undermined the confidence in the judiciary; and that there had been a violation of her right to a fair trial.

B. The Court’s Assessment

35.          Article 36 § 1 of the Constitution provides as follows:

“Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures.”

36.          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). The Court has considered that the essence of the applicant’s allegations pertains to the right to be tried on a fair and equitable basis, which is one of the guarantees of the right to a fair trial, and that the examination must be made under this scope.

1. Admissibility

37. The Court found admissible the alleged violation of the right to fair a trial for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

2.             Merits

a.             General Principles

38. Article 36 § 1 of the Constitution guarantees everyone’s right to apply to judicial bodies either as a plaintiff/claimant or a defendant/respondent and, as a natural consequence thereof, the right to contention, defence, and a fair trial. According to the legislative intention of Article 14 of the Law no. 4709 dated 3 October 2001 whereby the term of “fair trial” was added to Article 36 § 1 of the Constitution, “the term ‘right to a fair trial’ was added to the text as it has also been guaranteed by international conventions to which the Republic of Turkey is a party”. Thus, it is understood that the purpose of adding the phrase that everyone has the right to a fair trial to Article 36 of the Constitution was placing the right to a fair trial enshrined in the Convention under a constitutional guarantee (see Yaşar Çoban [Plenary], no. 2014/6673, 25 July 2017, § 54).

39.          The right to a fair trial requires upholding the principle of a state governed by rule of law in the resolution of disputes. The principle of a state governed by rule of law, one of the characteristics of the Republic listed under Article 2 of the Constitution, must be borne in mind in the interpretation and application of all articles of the Constitution.

40.          In this regard, one of the requirements of a state governed by rule of law is the principle of legal certainty (see the judgments nos. E.2008/50, K.2010/84, 24 June 2010; and E.2012/65, K.2012/128, 20 September 2012). Aimed at ensuring the legal safety of persons, the principle of legal certainty requires that legal norms are foreseeable, that individuals can trust the state in all of their acts and actions, and that the state avoids using any methods which would undermine this trust in their legislative acts. The certainty principle means that legislative acts must be sufficiently clear, precise, understandable and applicable to the extent not to cause any hesitation or doubt on the part of both the administration and individuals and they must afford safeguards against arbitrary practices of public authorities (see the judgment no. E.2013/39, K.2013/65, 22 May 2013).

41.          It is within the within the jurisdiction of the inferior courts to decide how legal rules are to be interpreted and which interpretation is to be adopted where more than one interpretation is possible. It would be incompatible with the purpose of the individual application if the Court gives more weight to one of the interpretations adopted by the inferior courts within the scope of the individual application or interprets legal rules by substituting itself for the inferior courts. The Court is entrusted, within the scope of the principle of legality, with the duty to determine whether non-existence of a sole interpretation of legal rules affects legal certainty and foreseeability (see Mehmet Arif Madenci, no. 2014/13916, 12 January 2017, § 81).

42.          Changes in judicial decisions are positive in the sense that they reflect the dynamism of the law and the courts’ capability to adapt their approach according to new developments. However, different conclusions reached in similar cases without satisfactory reasons by different chambers of supreme courts, which are expected to ensure a coherence in practice, will lead to contradicting and coincidental outcomes whereby a decision upheld by a certain chamber might be quashed if examined by another chamber. This falls foul of the principles of legal certainty and foreseeability. In addition, in the event that such a perception takes root in the society, the individuals’ confidence in the judicial system and court decisions may be undermined (see Türkan Bal [Plenary], no. 2013/6932, 6 January2015, § 64).

43.          In this connection, the Court draws attention to the importance of measures oriented at eliminating the inconsistencies in the practice in cases where differences in case-law stemming from the interpretation of legal rules by inferior courts become deep-rooted, i.e. where the coherence of practice has not been ensured within a not-so-short period of time.

44.          Being responsible for ensuring and maintaining the confidence in the judicial system in pursuit of the principle of the rule of law, the state is under an obligation to establish a mechanism capable of eliminating the deep and continuous differences in the case-law of the courts functioning within the same branch of the judiciary and to make arrangements to ensure the effective functioning of this mechanism. This obligation must be regarded as one of the safeguards inherent in the right to a fair trial (see Engin Selek, no. 2015/19816, 8 November 2017, § 58).

45.          In a case in which it made an assessment on the differences in case-law, the Court has pointed out that, if the Court of Cassation departed from the established case-law and adopted a new approach, this new approach would need to be implemented consistently from that point on in order to preserve the public confidence in the judiciary. The Court has followed that the failure of the supreme courts, which are entrusted with ensuring the coherence in practice, to implement consistently the approach adopted after the change in case-law might lead to a violation of the right to a fair trial (see Hakan Altıncan [Plenary], no. 2016/13021, 17May 2018, § 48).

b.             Application of Principles to the Present Case

46.          The subject matter of the present case concerns the alleged unfairness of proceedings, 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.

47.          The applicant works under a service contract for the Foundation which pursues the aims of aiding citizens in need or such persons who are in the country for any reason, taking measures to promote social justice, and achieving social assistance and solidarity pursuant to Article 7 of the Law no. 3294. The applicant, stating that she qualified as a public (State) worker on account of the Foundation’s characteristics, purpose and administration regime, brought an action to be able to benefit from the additional pay bonus, which is payable to public staff under certain conditions.

48.          It has been understood from the copies of court rulings submitted by the applicant into the case file that a part of the cases filed by workers of the same workplace on the basis of the same claims resulted in favour of the workers whereas some other cases resulted against the workers. It has further been observed from the documents and information obtained over the UYAP (National Judicial Network System) that the 9^th Civil Chamber of the Court of Cassation, which had long been the appellate authority for such disputes, and the (now-closed) 7^th Civil Chamber of the Court of Cassation, which had subsequently been assigned with this duty, typically accepted the claims brought by the personnel working for similar foundations in various parts of the country. Both Chambers rendered decisions in which they recognised the Foundation staff as public workers and thereby enabled them to benefit from the additional pay bonus decided by the administration, provided they met the conditions. Nevertheless, the 22^nd Civil Chamber of the Court of Cassation, set up in 2011, has consistently held that the aforementioned foundations had the status of legal entities of private law; therefore, their staff who do not have the status of public personnel could not benefit from the additional pay. Despite the existence of a decision on case-law unification which discussed the nature of the Foundation for which the applicant has been working under a service contract, the chambers of the Court of Cassation continued to rule on cases in accordance with their earlier views because, though the said decision ascertained the characteristic of the foundations, it did not contain any finding as to the status of their staff.

49.          From this standpoint, the Court has pointed out that the present case is different than the above-cited case of Hakan Altıncan since there has been no departure from a piece of case-law that has been followed consistently by the relevant Chambers and Assemblies (Plenary, etc.) of the Court of Cassation.

50.          The Court has noted that the deep-rooted and long-standing difference in case-law among the chambers of the Court of Cassation has also been resumed among the chambers of Regional Courts of Appeal, authorities of appellate review on points of fact and law which have recently been put into operation. On the other hand, the Court of Cassation conducted a practice of case-law unification with a view to ascertaining the legal status of foundations in their capacity as employers. However, although this decision established that the foundations were legal entities subject to private law, it did not include any assessment with regard to their staff. Indeed, the 22^nd Civil Chamber of the Court of Cassation considered that the above-mentioned finding was in line with its own opinion, whereas the 9^th Civil Chamber of the Court of Cassation did not make any changes to its opinion as the decision on case-law unification did not affect the legal status of the staff.

51.          In their conflicting decisions, the chambers of the Court of Cassation and the Regional Court of Appeal present sufficient reasons capable of allowing the applicant and third parties to objectively understand how they have reached the conclusions therein.

52.          In the present case, the difference in case-law concerning the question of whether the staff working for a social assistance and solidarity foundation are entitled to additional pay bonus went on for seven years, thereby becoming a deep-rooted and continuous issue. The conclusion reached by the Chambers and, in this connection, the inferior courts did not stem from the particular characteristic of the cases. Moreover, despite the availability of such a mechanism as the case-law unification that is capable of eliminating this issue causing legal uncertainty, it has not been operated. As a result, different and conflicting decisions have emerged depending on the Chamber or Assembly. In other words, the Court has concluded that the conclusion reached at the end of the proceedings was unforeseeable for the applicant due to the failure to operate the mechanism of case-law unification, which is capable of eliminating the deep-rooted and long-standing differences. This has prejudiced the fairness of the proceedings, regardless of the ruling.

53.          For these reasons, it must be held that there has been a violation of the applicant’s right to a fair trial safeguarded by Article 36 of the Constitution.

C. Application of Article 50 of Code no. 6216

54.          Article 50 §§ 1 and 2 of the Code on the 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.”

55.          The applicant requested a retrial and claimed compensation.

56.          According to Article 49 § 6 of Code no. 6216, the examination on the merits determines whether there has been a violation of a fundamental right and, if so, how it can be removed. Further, as per Article 50 § 1 of the same Code and Article 79 § 2 of the Internal Regulations of the Constitutional Court, where a violation is found, the Court rules on what needs to be done to redress the violation and its consequences. Accordingly, in case of a violation, the Court will not only find that the fundamental right or freedom concerned has been violated but also determine the matter of how to remove the violation, in other words decide on what needs to be done so that the violation and its consequences can be redressed (see Mehmet Doğan [Plenary], no. 2014/8875, 7 June 2018, § 54).

57.          If the Court finds a violation of a fundamental right or freedom within the scope of an individual application, the main requirement which needs to be satisfied to be able to consider that the violation and its consequences have been redressed is to ensure restitution to the extent possible, that is to restore the situation to the state it was in prior to the violation. For this to happen, the continuing violation needs to be ceased, the decision or act giving rise to the violation as well as the consequences thereof need to be redressed, where applicable the pecuniary and non-pecuniary damages caused by the violation need to be indemnified, and any other measures deemed appropriate in that scope need to be taken (see Mehmet Doğan, § 55).

58.          On the other hand, Article 50 § 1 of the Code no. 6216 precludes the Court from rendering decisions or judgments in the nature of an administrative act or action when determining the way to remove the violation and its consequences. Accordingly, in determining the way to redress the violation and its consequences, the Court cannot issue an act by substituting itself for the administration, the judicial authorities or the legislative branch. The Court adjudicates the way by which the violation and its consequences would be removed and remits its judgment to the relevant authorities for the necessary action to be taken (see Şahin Alpay (2) [Plenary], no. 2018/3007, 15/3/2018, § 57).

59.          Before ruling on what needs to be done to redress the violation and its consequences, the source of the violation must first be ascertained. In this respect, a violation may stem from administrative acts and actions, judicial acts, or legislative acts. Determining the source of the violation plays a significant role in the determination of the appropriate way of redress (see Mehmet Doğan, § 57).

60.          In cases where the violation stems from the inferior courts’ interpretation of the applicable law, it may sometimes be sufficient to award compensation in order to provide redress for the violation along with all of its consequences. However, with due regard to the purpose of the individual application, the highest judicial authority within the same branch of the judiciary should also address the impugned interpretation giving rise to similar violations and ensure that a set of measures be taken in a fashion that will prevent the discord in case-law.

61.          The Court has concluded that there has been a violation of the right to be tried on a fair and equitable basis within the scope of the right to a fair trial, safeguarded under Article 36 of the Constitution. It is understood that the violation found in the present case has stemmed from the failure to ensure coherence and unity in the case-law through elimination of the difference of opinion among the chambers of the Court of Cassation, despite the considerable length of time elapsed since the emergence of that difference, in cases brought by individuals in similar circumstances on the basis of the same legal reason. In other words, the source of the violation is the application, to the applicant’s case, of a legal rule which does not satisfy the certainty requirement as there are two different interpretations of the rule in force at the same time.

62.          It should be underlined that the finding of a violation by the Court is not oriented at the outcome of the inferior court and independent from the conclusion reached by the inferior court. Under these circumstances, there is no legal in conducting a retrial. In the contrary case, in other words when a retrial is ordered, it may mean that a preference has been made in favour of the parties by upholding one of these interpretations, which would not redress the violation in question and may also give rise to new violations to the detriment of the other party of the dispute dealt with by the inferior court. Therefore, since retrial cannot be regarded as a means capable of redressing the consequences of the violation, an award of appropriate compensation would offer adequate redress for the applicant.

63.          In this scope, as regards the non-pecuniary damages sustained by the applicant due to the violation of her right to a fair trial, which cannot be redressed by a mere finding of a violation, the Court awards a net amount of TRY 7,000 in favour of the applicant as non-pecuniary compensation.

64.          Furthermore, in addition to an award of compensation, a communication must be made to the First Presidency Board of the Court of Cassation pursuant to Article 45 § 2 of the Law on the Court of Cassation (Law no. 2797 dated 4 February 1983) regarding the review of the issue giving rise to the violation. Thus, it will be possible to prevent a practice, which might cause new violations, by means of eliminating through the case-law unification mechanism the deep-rooted and long-standing differences in case-law among the courts of the same branch of the judiciary.

65.          The total court of expense of TRY 2,237.50 including the court fee of TRY 257.50 and counsel fee of TRY 1,980, which is calculated over the documents in the case file must be reimbursed to the applicant.

VI.        JUDGMENT

For these reasons, the Constitutional Court held UNANIMOUSLY on 25 December 2018 that

A. The alleged violation of the right to be tried on a fair and equitable basis be DECLARED ADMISSIBLE;

B.            The right to be tried on a fair and equitable basis within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution was VIOLATED;

C.            A net amount of TRY 7,000 be PAID to the applicant in respect of non-pecuniary damage, and other compensation claims be DISMISSED;

D.            One copy of the judgment be SENT to the First Presidency Board of the Court of Cassation for the latter to become informed and assess whether there is need for a decision on case-law unification in order to redress the consequences of the violation of the right to be tried on a fair and equitable basis;

E.             The total court expense of TRY 2,237.50 including the court fee of TRY 257.50 and counsel fee of TRY 1,980 be REIMBURSED TO THE APPLICANT;

F.             The payment be made within four months as from the date when the applicant applies to the Ministry of Treasury and Finance following the notification of the judgment; in case of any default in payment, statutory INTEREST ACCRUE for the period elapsing from the expiry of four-month time-limit to the payment date; and

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