Events
The applicant stated that he had worked at the hospital where he started as a cleaning worker until his retirement and filed a lawsuit for severance pay, overtime pay, and payment for working on national and religious holidays. The labor court ruled to partially accept the case. Upon appeal, the regional court of appeals ruled to overturn the labor court’s decision and send the case back to the court for a new ruling. The labor court, in accordance with the regional court of appeals’ decision, ruled to partially accept the case after the retrial. The defendant appealed this decision, and the ruling 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 claim for payment he had filed on 10/12/2014 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 to complain that the trial had not been completed within a reasonable time.
The Court’s Assessment
1. Regarding the Allegation of Violation of the Right to a Trial within a Reasonable Time
When determining the duration of proceedings concerning disputes relating to civil rights and obligations, the date on which the lawsuit was filed is considered the starting point of the period; the date on which the proceedings ended, often including the enforcement phase, is taken as the end date of the period. For ongoing cases, the date on which the Constitutional Court issued its decision on the complaint regarding the violation of the right to a trial within a reasonable time is taken as the basis.
Upon evaluation of the application, it was concluded that the case in question was not complex, considering criteria such as the difficulty in resolving the legal issue, the complexity of the factual circumstances, obstacles encountered in gathering evidence, and the number of parties involved. It cannot be said that the applicant’s attitude and behavior, or his careless exercise of procedural rights, significantly contributed to the prolongation of the proceedings.
Taking into account the decisions of the Constitutional Court in similar applications, it has been concluded that the applicant’s lawsuit for employee claims is ongoing and that the trial period of more than seven years in the concrete case is unreasonable.
The Constitutional Court has decided that the right to a trial within a reasonable time has been violated based on the reasons explained.
2. Allegation of Violation of the Right to an Effective Remedy
Article 40 of the Constitution guarantees the right of everyone whose rights and freedoms guaranteed by the Constitution have been violated to request that the competent authority be provided with the opportunity to apply 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 in the exercise of public duties and powers.
The right to an effective remedy is not an independent protection 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 linked to the right to a trial 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 protection of fundamental rights and freedoms under the Convention. For this reason, 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 to which anyone claiming a violation of a constitutional right can apply to have their claims examined in a manner appropriate to the nature of the right, and which are capable of preventing the occurrence or continuation of the violation or eliminating its consequences (providing adequate redress).
The scope of the guarantee that individuals have in terms of their 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 stated in general terms 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.
It is clear that in order to ensure the protection of the right to a trial within a reasonable time, as guaranteed by Article 36 of the Constitution, and to prevent public authorities from violating this right, effective legal remedies must be available for claims alleging violations of the right to a trial within a reasonable time. This remedy must offer solutions that remedy the harm that will arise due to the length of the trial or case that is the subject of the complaint. It has been determined that administrative and judicial authorities and the legislature have envisaged certain measures to prevent violations of the right to a trial within a reasonable time. However, even with the measures taken, if a violation occurs, the establishment of a remedy to remedy the damage caused by the violation is mandatory and necessary under Article 40 of the Constitution. Continuing to have these applications examined directly and at first instance by the Constitutional Court would, at this point, be incompatible with the wording and purpose of Article 148 of the Constitution. In this regard, it is also important to act in accordance with certain principles for the application route to be considered effective.
On the other hand, individual application is a secondary, i.e., extraordinary, constitutional application route that can be used after exhausting administrative and judicial application routes. Since there is no administrative or judicial remedy available to determine the violation and compensate for the damage incurred before applying to the Constitutional Court on the grounds of a violation of the right to a trial within a reasonable time, guaranteed by Article 36 of the Constitution, it has been assessed that the guarantees of the right to an effective remedy, as regulated in Article 40 of the Constitution, are not 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 measures taken to remedy this structural problem, an effective remedy must be established in accordance with Article 40 of the Constitution before individual applications can be made to compensate for damages arising from the violation of the right to a trial within a reasonable time.
Considering that individual applications to the Constitutional Court are secondary and constitute a constitutional remedy that can be sought only after exhausting the remedies provided for in the legal system, it is necessary to establish a legal remedy through legislative regulation to compensate for the situation arising from violations due to lengthy trials, which constitutes a structural problem. It is clear that the appeal route to be established must be capable of compensating applicants for damages arising from the excessive length of proceedings.
In this context, the Constitutional Court, exercising the authority and duties conferred upon it by the Constitution, has determined that an effective route must be established for filing appeals alleging violations 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 for the resolution of the structural problem identified as violating a fundamental right and freedom covered by the joint protection of the Constitution and the Convention.
In this context, it has been decided that the examination of applications made on the grounds of violation of the right to a trial within a reasonable time until the date of publication of the decision in the Official Gazette, as well as applications of the same nature to be recorded 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 has decided that the right to an effective remedy has been violated based on the stated reasons and that the pilot decision procedure should be applied.
