Before the European Court of human rights in criminal proceedings must have exhausted all domestic legal remedies in the field of law, which will be opened due to material and moral damages due to the wrongful arrest in the first instance, appeal and Cassation to the Constitutional Court by the ingestion of ways the law a reference is required.
Wrongful arrest T.The Constitution of the C Constitution, entitled “Personal Freedom and Security”, is the 19th Constitution. in the article, he stated the principles of arrest and in the last paragraph; “The damage suffered by the persons subjected to a transaction other than these principles shall be paid by the state in accordance with the general principles of compensation law”. In this judicial process, we have the Constitution 19. Based on this right, which is guaranteed by the Article, we have the opportunity to compensate for the damage caused.
With the adoption of the individual application to the Constitutional Court, the right to individual application has taken its place in our legal system as a new way of seeking rights. Dec. The primary task of protecting fundamental rights and freedoms is undoubtedly within the competence of administrative and judicial authorities. However, it is aimed to protect fundamental rights and freedoms by granting the Constitutional Court the duty and authority to accept individual applications by a national judicial authority. Because the authority to which people whose fundamental rights and freedoms have been violated apply after exhausting domestic legal remedies has been the European Court of Human Rights, whose jurisdiction we have accepted since 1990, while it has been the Constitutional Court since 23.9.2012. People who claim that the fundamental rights and freedoms have been violated by public power required to be consulted for legal and administrative remedies in order to apply to the European Court of human rights after exhausting are required to apply to the Constitutional Court
In its previous decisions, the Constitutional Court, while the criminal proceedings are ongoing, in individual applications for the elimination of material and moral damages suffered by a person due to the fact that the period of detention exceeds a reasonable period, CMK 142. article 1. Paragraph, “three months after finalization of the decision or notification to the person concerned and the provisions of the provisions of the decision or within a year of dates in every case compensation may be requested kesinlesme” shaped arrangement, considering the decision of the ECtHR by drawing their attention in this direction, since it does not offer an effective way of regulation in Article 141-142 CMK CMK bet 142-142. according to its articles, it was making decisions that the case should not be opened and concluded in the relevant High Criminal Court.
The individual application must be made within 30 (thirty) days from the “date of consumption” of all of these paths, if the mandatory administrative and judicial application paths are provided for in the law, and “from the date of learning of the violation if the application path is not provided for”. Applications exceeding this period are rejected without further examination. As the starting date of the thirty-day period, the date of notification or interpretation of the finalized decision to the person is taken as the basis.Individual applications to the Constitutional Court must be made using an Individual Application Form or with a petition containing all the information required to be contained in the application form and having the same format. The form should contain only concise information that is relevant to the merits of the application and is mandatory for the October decision of the application, and the form should not exceed 10 pages in total, excluding attachments. The current information of the applicant must be submitted in this form.
SAMPLE JUDICIAL DECISION ON THE ISSUE
SUPREME
law office
2017/38462
2017/19163
25.9.2017
LAWSUIT: It was understood that the decision made as a result of the case between the parties was requested by the plaintiff’s attorney to be examined on appeal and that the appeal request was in Decency. After hearing the report prepared by the Examination Judge for the case file, the file was examined, discussed and considered as necessary:
DECISION : Summary of the Plaintiff’s Claim:
The plaintiff’s attorney claimed that his client’s employment contract was terminated by the defendant employer without a valid reason and demanded and sued to determine the invalidity of the termination and to decide on his return to work and compensation for wages and other rights related to the idle time and failure to start work.
Summary of the Respondent’s Response:
The defendant’s counsel, the court is Unauthorized, The plaintiff’s employment contract as of the date 19.07.2016 the personnel structure of the re-evaluation result is terminated as a result of the decision if the country’s political and economic conditions to be altered before termination of existing institutional structures and practices of staff in this direction due to being a necessity in making a change and this change had been taken to comply with this decision, arguing that the plaintiff has signed disclaimer I can not open the case and requested a dismissal of the case.
Summary of the Court Decision:
The Court of First Instance decided to accept the case on the grounds that the employer could not fulfill the obligation of proof, could not prove the valid reason arising from the requirements of the workplace and work.
Application for Appeal:
Against the decision of the Court of First Instance, the defendant’s attorney filed an appeal.
Summary of the Decision of the Regional Court of Justice:
Regional justice by the tribunal, in the aftermath of the 15 July coup attempt in the process the staff structure that is received on an administrative decision, this administrative decision considering the reasons which led to the proclamation of the state of emergency and a state of emergency decree when given the purpose and justification of termination cannot be subject to policy control to be a last resort, especially FETO/PCM, including membership in terrorist organizations, due to the subjective nature of the opinion at the point of contact and communication with belonging, the termination made in accordance with the administrative decision on the grounds that it is not suitable for precedent comparison and consistency control is based on a valid reason, therefore, with the acceptance of the appeal request of the defendant’s attorney, the decision of the court of first instance was lifted and the case was dismissed.
Application For Appeal:
The decision was appealed by the plaintiff’s attorney.
Reason:
The dispute between the parties is the issue of whether the termination of the employment contract is based on a valid reason, and the legal basis is the 18th amendment of the Labor Law No. 4857. Dec. et al. they are substances.
19 of the Law No. 4857. in accordance with Article 18 of the same Law. the employer who wants to terminate the employee’s employment contract remaining within the scope of the article for a valid reason must make the termination notice in writing and clearly and definitively state the reason for termination. It is a condition of validity that the written notice of termination also contains the reason for termination clearly and definitively.
A concrete dispute, the employer defendant on the plaintiff’s employment contract 19.07.2016 “dated 03.11.2015 our organization concluded with an indefinite term employment contract as of the date 19.07.2016, and personnel structure of the re-evaluation result that you can take what you have been dissolved by decision rights and payable.” terminated with notice of termination in the form. However, what kind of changes are planned to be made in the personnel structure by the defendant employer, objective concrete data on why the plaintiff employeewhose employment contract was terminated cannot take part in the planned structure cannot be revealed by the defendant employer, who has the burden of proof, although it was understood that the formal conditions were met at the termination, it was necessary to decide on the acceptance of the case, since it was not possible to present evidence proving its content, while the provision established by the relevant civil chamber of the Regional Court of Justice was erroneous .
CONCLUSION : For the reasons stated, Article 20 of the Law No. 4857. article 3. in accordance with paragraph, the provision of the Regional Court of Justice should be eliminated by overturning and decided as follows.
CONCLUSION : With the justification described above;
1-) Gaziantep Regional Court of Justice 7. The decision of the Civil Chamber Numbered 2017/178 and numbered 2017/578 shall be OVERTURNED AND ELIMINATED,
2-) The INVALIDITY of the TERMINATION made by the employer and the RETURN of the plaintiff TO WORK in …,
3-) Despite the fact that the plaintiff applied for a job within the legal period, the amount of compensation that must be paid if the employer does not start work within the period is determined as the employee’s four-month salary.,
4-) Determining that the maximum four months of wages and other rights that will be earned if the plaintiff applies to the employer for a return to work within the time limit and which were born until the finalization of the decision should be paid to the plaintiff,
5-) From the decision and decision fee of TL 31.40, which must be taken as of the date of the decision, deducting the fee of TL 29.20 received in advance, and the balance is collected from the defendant of TL 2.20 decision and decision fee to the treasury for will registration, the 29.20 TL advance fee deposited by the plaintiff is taken from the defendant and given to the plaintiff,
6-) Since the plaintiff is represented by a proxy, the power of attorney fee of 1.980, 00 TL is taken from the defendant and given to the plaintiff according to the tariff in force on the date of the decision,
7-) The 232,50 TL judgment expense made by the plaintiff is taken from the defendant and given to the plaintiff, leaving it above the judgment expense made by the defendant,
😎 Sending the file to the Regional Court of Justice that made the decision, sending an example from the decision to the Court of First Instance that made the decision,
9-) It was decided unanimously on 25.09.2017 to return the unused balances to the related party, if any, from the expense advances deposited by the parties, and to return the appeal decision fee received in advance to the related party, if requested.
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