Events
The applicant filed a lawsuit for severance pay, overtime wages, and payment of wages for working on national and religious holidays, stating that he worked at the hospital where he started working as a cleaning worker until his retirement. The labour court decided to partially accept the lawsuit. Upon the appeal request, the regional court of appeal ruled to annul the decision of the labour court and to send the file to the court for a new decision. The labour court decided to partially accept the lawsuit at the end of the trial in line with the decision of the regional court of justice. The defendant has filed an appeal against the aforementioned decision and the decision has not yet been finalised.
Allegations
The applicant claimed that the right to be tried within a reasonable time was violated due to the long duration of the debt lawsuit filed on 10/12/2014 based on the employment contract, and that the right to effective remedy in connection with the right to be tried within a reasonable time was violated due to the lack of an effective remedy to raise the complaint that the proceedings were not completed within a reasonable time.
The Court’s Assessment
1. Regarding the Allegation of Violation of the Right to a Reasonable Trial
When determining the duration of the proceedings regarding disputes related to civil rights and obligations, the date of filing of the lawsuit is taken as the starting date of the duration; the date of the end of the proceedings, including the execution phase, is taken as the date of the end of the proceedings, and the date of the Constitutional Court’s decision on the complaint regarding the violation of the right to be tried within a reasonable time is taken as the date of the decision.
As a result of the evaluation of the application, it has been understood that the case subject to the application is far from being complex, considering criteria such as the difficulty in solving the legal issue, the complexity of the material events, the obstacles encountered in the collection of evidence, and the number of parties. It cannot be said that the applicant significantly caused the prolongation of the proceedings with his attitude and behaviour and his careless behaviour while exercising his procedural rights.
Considering the decisions of the Constitutional Court in similar applications, it has been concluded that the lawsuit filed by the applicant for labour receivables is ongoing, and the trial period of more than 7 years in the concrete case is not reasonable.
For the reasons explained above, the Constitutional Court decided that the right to be tried within a reasonable time was violated.
2. Regarding the Allegation of Violation of the Right to Effective Application
Article 40 of the Constitution guarantees the right of everyone whose rights and freedoms guaranteed by the Constitution are violated to request that the competent authority be provided with the opportunity to apply without delay (right to effective remedy). The right to an effective remedy is regulated as a means of controlling whether fundamental rights and freedoms are violated in the exercise of public duties and powers.
The right to effective application does not have an independent protection function, but is one of the complementary rights that guarantee the exercise, protection and remedies of fundamental rights and freedoms. In the concrete case, the right to effective remedy guaranteed under Article 40 of the Constitution is linked to the right to be tried within a reasonable time guaranteed under Article 36 of the Constitution. Therefore, this right is within the protection area of fundamental rights and freedoms guaranteed in the Constitution and covered by the Convention. Therefore, it is possible to examine the right to effective remedy in connection with the right to be tried within a reasonable time.
The right to an effective remedy can be defined as providing everyone who claims that a constitutional right has been violated with the opportunity to apply to administrative and judicial remedies that are reasonable, accessible, and capable of preventing the violation from occurring or continuing or eliminating its consequences (providing adequate remedy) in accordance with the nature of the right.
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The scope of the guarantee that individuals have in terms of the right to effective remedy varies according to the nature of the right subject to the alleged violation. However, in general, it should be stated that the remedy that must be provided pursuant to Article 40 of the Constitution must prevent the alleged violation both in theory and in practice, terminate the violation if it continues, and provide reasonable compensation for violations that have already occurred.
In order to ensure the protection of the right to be tried within a reasonable time, which is protected under Article 36 of the Constitution, and to prevent public authorities from violating these rights, it is clear that there must be effective remedies that can be applied for the violation of the right to be tried within a reasonable time. This remedy should be able to provide solutions to eliminate the damages that may arise due to the long duration of the proceedings or the case subject to the complaint.
It has been determined that there are some measures envisaged by administrative and judicial authorities and the legislature to prevent violations of the right to be tried within a reasonable time. However, in cases where a violation has occurred despite the measures taken, it is obligatory and necessary to establish a compensation remedy in order to compensate the damages caused by the violation in accordance with Article 40 of the Constitution. Continuing to examine these applications first-hand and directly by the Constitutional Court would be incompatible with the wording and purpose of Article 148 of the Constitution at this point. In order for the application procedure to be established in this direction to be considered effective, it is also important to act in accordance with certain principles.
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On the other hand, individual application is a unique, extraordinary, constitutional remedy that can be applied after exhaustion of administrative and judicial remedies. Since there is no administrative or judicial remedy that can be applied for the determination of the violation and compensation for the damage incurred before the application to the Constitutional Court with the claim of violation of the right to be tried within a reasonable time guaranteed under Article 36 of the Constitution, it is evaluated that the guarantees of the right to effective application regulated under Article 40 of the Constitution are not provided in the current application.
Analysing the number of applications to the Constitutional Court and the violation decisions, it is concluded that there is a structural problem that leads to the violation of the right to be tried within a reasonable time. Despite all kinds of measures taken to eliminate this structural problem, an effective remedy must be established before the individual application in accordance with Article 40 of the Constitution in order to compensate the damages arising from the violation of the right to be tried within a reasonable time.
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Taking into account the subsidiarity of the individual application to the Constitutional Court and the fact that it is a constitutional remedy that can be applied after the exhaustion of the remedies regulated in the legal system, it is necessary to establish an authority that can be applied in this regard with a legal regulation in order to compensate the situation that arises due to violations arising from the long duration of the proceedings and constitutes a structural problem. It is clear that the remedy to be established should be capable of compensating the damages of the applicants due to the long duration of the proceedings.
In this context, the Constitutional Court, in fulfilment of its powers and duties conferred by the Constitution, has determined that an effective remedy for the alleged violation of the right to be tried within a reasonable time should be established. Therefore, a copy of the judgement should also be notified to the Grand National Assembly of Turkey for the solution of the structural problem in question, which has been determined to lead to the violation of a fundamental right and freedom under the common protection of the Constitution and the Convention.
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In this context, it has been decided to postpone the examination of the applications filed with the allegation of violation of the right to trial within a reasonable time until the date of publication of the decision in the Official Gazette and the applications of the same nature to be registered after this date for four months from the publication of the decision in the Official Gazette.
For the reasons explained above, the Constitutional Court decided that the right to effective remedy was violated and that the pilot judgement procedure should be applied.
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