Press Release No: Individual Application 7/19
29.01.2019

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE RIGHT TO ACCESS TO COURT ON ACCOUNT OF THE DECISION NOT TO ADJUDICATE ON THE CASE FOR REINSTATEMENT

On 9 January 2019, the Second Section of the Constitutional Court found a violation of the right to access to court, safeguarded by Article 36 of the Constitution, in the individual application lodged by Ahmet Özdoğan (no. 2017/26326).

The Facts

Employment contract of the applicant, who was employed by a sub-contractor at a university, was terminated pursuant to the Decree-Law no. 667 on Measures to be Taken under State of Emergency (Decree-Law) on account of his relationship with the structures and formations specified therein.

The applicant filed a case for his reinstatement against the primary employer and sub-contractor, maintaining that his employment contract had been terminated without a valid reason. 

The incumbent labour court decided not to adjudicate on the case as it was the Inquiry Commission on the State of Emergency Measures (Inquiry Commission) entrusted with the jurisdiction to examine the case pursuant to the Decree-Law no. 685. It accordingly decided to send the applicant’s case to the Inquiry Commission, with no right of appeal. 

The Applicant’s Allegations

Maintaining that the case for his reinstatement should have been examined as to its merits, the applicant alleged that his right to access to court had been violated.   

The Constitutional Court’s Assessment

The right to legal remedies safeguarded by Article 36 of the Constitution is a fundamental right which is also one of the most efficient safeguards enabling individuals to properly enjoy these fundamental rights and freedoms and ensuring protection of such rights and freedoms. In this respect, in order for a case to be examined by a court as well as for a person to enjoy safeguards falling under the right to a fair trial, he must be primarily provided with the opportunity to submit his claims.

In the Decree-Law no. 685, it is clearly set out without any hesitation that jurisdiction of the Inquiry Commission is limited to the applications concerning acts and actions which have been performed, directly by virtue of the provisions of the Decree-Law, without carrying out any other administrative action.  

In the present case, the first instance court entrusted with the task of resolving labour disputes between employees and employers discontinued the proceedings without making any examination on the merits of the case and referred the case to the Inquiry Commission, which is a flagrant error of interpretation. Accordingly, it cannot be said that the decision rendered at the end of the proceedings was lawful.   

For the reasons explained above, the Court found a violation of the right to access to court falling under the scope of the right to a fair trial safeguarded by Article 36 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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