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On 25 December 2018, the First Section of the Constitutional
Court found a violation of the right to a fair hearing safeguarded by Article
36 of the Constitution in the individual application lodged by Yasemin
Bodur (no. 2017/29896).
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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 5th, 6th, 7th,
8th and 9th Civil Chambers of the Regional Court of
Appeal. Although the case files assigned to the other chambers resulted in
favour of the workers, the 7th 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 7th
and 9th 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 22nd 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 9th Civil Chamber
of the Court of Cassation, which had long been the appellate authority for such
disputes, and the (now-closed) 7th 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 22nd 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 22nd
Civil Chamber of the Court of Cassation considered that the above-mentioned
finding was in line with its own opinion, whereas the 9th 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.
