Events
The applicant stated that he had worked at the hospital where he started as a cleaner until his retirement and filed a lawsuit for severance pay, overtime pay, and pay for working on national and religious holidays. The labor court partially upheld the claim. Upon appeal, the regional court of appeals overturned the labor court’s decision and remanded the case back to the court for a new decision. The labor court, in accordance with the regional court of appeals’ decision, partially upheld the claim after a retrial. The defendant has appealed this decision, and the decision is not yet final.
Allegations
The applicant claimed that his right to a trial within a reasonable time had been violated due to the lengthy duration of the payment claim he filed on December 10, 2014, based on his employment contract, and that his right to an effective remedy in connection with the right to a trial within a reasonable time had also been violated due to the lack of an effective remedy available to him on the grounds that the trial had not been completed within a reasonable time.
The Court’s Assessment
1. Regarding the Alleged Violation of the Right to a Trial within a Reasonable Time
In determining the duration of proceedings in disputes concerning civil rights and obligations, the date on which the case was filed is considered the starting date of the period; the date on which the proceedings ended, often including the enforcement phase, is considered the end date of the period. In ongoing cases, the date on which the Constitutional Court ruled on the complaint alleging a violation of the right to a trial within a reasonable time is taken as the basis.
As a result of evaluating the application, considering criteria such as the difficulty of resolving the legal issue, the complexity of the factual circumstances, the obstacles encountered in gathering evidence, and the number of parties, it has been concluded that the case in question is not complex. It cannot be said that the applicant’s attitude and behavior or careless use of procedural rights contributed significantly to the prolongation of the proceedings.
Taking into account the decisions of the Constitutional Court in similar applications, it was concluded that the applicant’s case regarding employee receivables was ongoing and that the trial period exceeding seven years in the concrete case was unreasonable.
The Constitutional Court ruled that the right to a trial within a reasonable time had been violated for the reasons stated.
2. Alleged Violation of the Right to an Effective Remedy
Article 40 of the Constitution guarantees the right to request that everyone whose rights and freedoms guaranteed by the Constitution have been violated be given the opportunity to apply to the competent authority without delay (the right to an effective remedy). The right to an effective remedy is regulated as a means of monitoring whether fundamental rights and freedoms have been violated during the exercise of public duties and powers.
The right to an effective remedy is not an independent protective function but is one of the complementary rights that guarantee the exercise and protection of fundamental rights and freedoms and the means of recourse. In the specific case, the right to an effective remedy guaranteed by Article 40 of the Constitution is guaranteed by Article 36 of the Constitution
In the present case, the right to an effective remedy guaranteed by Article 40 of the Constitution is linked to the right to be tried within a reasonable time guaranteed by Article 36 of the Constitution. Therefore, this right is guaranteed by the Constitution and falls within the scope of the protection of fundamental rights and freedoms under the Convention. Consequently, it is possible to examine the right to an effective remedy in connection with the right to a trial within a reasonable time.
The right to an effective remedy can be defined as the provision of reasonable, accessible administrative and judicial channels through which anyone claiming that a constitutional right has been violated can seek an examination of their claims in a manner appropriate to the nature of the right and prevent the violation from occurring or continuing, or eliminate its consequences (by providing adequate compensation).
The scope of the guarantee that individuals have under the right to an effective remedy varies depending on the nature of the right that is the subject of the alleged violation. However, it should be broadly stated that the remedy required under Article 40 of the Constitution must, both in theory and in practice, prevent the alleged violation, terminate it if it is ongoing, and provide reasonable compensation for violations that have occurred and ended.
To ensure the protection of the right to a trial within a reasonable time, guaranteed by Article 36 of the Constitution, and to prevent public authorities from violating this right, it is clear that effective legal remedies must be available in cases brought on the grounds that the right to a trial within a reasonable time has been violated. This remedy must offer solutions that remedy the harm arising from the length of the trial or proceedings that are the subject of the complaint.
It has been determined that administrative and judicial authorities and the legislative body have envisaged certain measures to prevent the violation of the right to a trial within a reasonable time. However, even if measures are taken, if a violation occurs, the establishment of a legal remedy to remedy the damage arising from the violation is mandatory and necessary under Article 40 of the Constitution. The continued examination of these applications directly by the Constitutional Court and in the court of first instance would be inconsistent with the wording and purpose of Article 148 of the Constitution at this point. In this context, it is also important to act in accordance with certain principles for the application procedure to be considered effective.
On the other hand, individual application is a secondary, i.e., extraordinary constitutional application route that can be used after administrative and judicial application routes have been exhausted.
Since there is no administrative or judicial remedy available to identify the violation and compensate for the damage prior to applying to the Constitutional Court on the grounds that the right to a trial within a reasonable time, guaranteed by Article 36 of the Constitution, has been violated, it has been assessed that the guarantees of the right to an effective remedy, as stipulated in Article 40 of the Constitution, have not been provided in the current application.
An examination of the number of applications made to the Constitutional Court and the violation decisions issued leads to the conclusion that there is a structural problem causing the violation of the right to a trial within a reasonable time. Despite all the measures taken to remedy this structural problem, an effective remedy must be established in accordance with Article 40 of the Constitution to enable individuals to apply for compensation for damages resulting from the violation of the right to a trial within a reasonable time.
Considering that individual applications to the Constitutional Court are subsidiary in nature and constitute a constitutional remedy that can only be sought after exhausting the remedies provided for in the legal system, it is necessary to establish a legal remedy through legislation to remedy the situation arising from violations caused by structurally problematic lengthy trial processes. It is clear that the appeal route to be established must be of a nature that can compensate the plaintiffs for the damages caused by the excessive length of the proceedings.
In this context, the Constitutional Court, exercising the authority and duties conferred upon it by the Constitution, has ruled that an effective remedy must be established for applications alleging a violation of the right to a trial within a reasonable time. Therefore, a copy of the decision must also be sent to the Grand National Assembly of Turkey to resolve the structural problem that has been found to violate a fundamental right and freedom protected by both the Constitution and the Convention.
In this context, it has been decided that the examination of applications filed on the grounds that the right to a trial within a reasonable time has been violated until the date of publication of the decision in the Official Gazette and the examination of applications of the same nature to be registered after this date shall be postponed for a period of four months from the date of publication of the decision in the Official Gazette.
The Constitutional Court ruled that the right to an effective remedy had been violated for the reasons stated and that the pilot decision procedure should be applied.
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