Individual Application

The Facts

The applicant brought an action for severance pay, overtime pay and payment of wages for work on national and religious holidays, claiming that she had worked until her retirement in the hospital where she had started as a cleaner. The labour court decided that the proceeding be partially upheld. Upon the request for appeal, the regional court of appeal decided that the judgment of the labour court be annulled and the case be remanded to the relevant court to deliver a new decision. The labour court decided that the proceeding be partially upheld at the end of the trial in line with the decision of the regional court of appeal. The defendant has lodged an appeal against the aforementioned decision and the decision has not yet been finalised.

The Applicants’ Allegations

The applicant maintained that the right to a trial within a reasonable time was violated due to the prolongation of the action of debt filed on 10 December 2014 based on the labour agreement, and the right to effective remedy in connection with the right to a trial within a reasonable time was violated due to the lack of an effective remedy to lodge a complaint that the proceedings were not finalised within a reasonable time.

The Court’s Assessment

1. As Regards the Alleged Violation of The Right to A Trial Within a Reasonable Time

When determining the duration of the proceedings regarding disputes related to civil rights and obligations, the date of filing the lawsuit shall be taken as the starting date of the duration; the date of the finalisation of the proceedings, often including the execution phase, shall be 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 a trial within a reasonable time shall be taken as a basis for pending cases.

On the other hand, the evaluation of the application revealed that the case at hand is not particularly complicated when factors like the difficulty of resolving the judicial issue, the complexity of the material events, the challenges encountered when collecting evidence, and the number of parties are taken into account. It cannot be argued that the stance and conduct of the applicant significantly contributed to the prolongation of the proceedings by acting negligently while exercising her procedural rights.

Given the decisions rendered by the Constitutional Court in relevant cases, it has been concluded that the lawsuit filed by the applicant for worker’s receivable lawsuit is ongoing and that the duration of proceedings exceeding 7 years in the present case is deemed unreasonable.

Consequently, the Court has found a violation of the right to a trial within a reasonable time.

2. As Regards the Alleged Violation of The Right to An Effective Remedy

It is safeguarded in Article 40 of the Constitution that everyone whose constitutional rights and freedoms have been violated has the right to request prompt access to the competent authorities (the right to an effective remedy). The right to an effective remedy is enshrined to review whether fundamental rights and freedoms are violated in the exercise of public duties and powers.

The right to an effective remedy operates as a complementary right, ensuring the exercise and protection of fundamental rights and freedoms and remedies, rather than as an independent protective mechanism. In the present case, the right to an effective remedy, safeguarded by Article 40 of the Constitution, is related to the right to a trial within a reasonable time, safeguarded by Article 36 of the Constitution. This right is therefore included in the fundamental rights and freedoms safeguarded by the Constitution and covered by the Convention. Consequently, the right to an effective remedy can be examined in connection with the right to a trial within a reasonable time.

Accordingly, the right to an effective remedy may be described as ensuring that everyone who claims to have suffered a violation of one of his constitutional rights are provided with an opportunity to submit applications with administrative and judicial remedies that are reasonable, accessible, and capable of preventing the violation from taking place or ceasing its continuation or eliminating its consequences (i.e. offering adequate redress).

The scope of the safeguards that individuals are entitled to with respect to the right to an effective remedy varies depending on the nature of the right subject to the alleged violation. However, in general, it should be noted that the remedy that needs to be provided pursuant to Article 40 of the Constitution should, both in theory and in practice, prevent the alleged violation, eliminate the violation if it continues, and offer reasonable restitution for violations that have already taken place.

It is evident that there must be effective remedies available for violations of the right to a trial within a reasonable time in order to ensure the protection of the right to a trial within a reasonable time safeguarded in Article 36 of the Constitution and to prevent public authorities from violating these rights. This remedy should be able to offer solutions to compensate for the damages that may arise due to the prolongation of the proceedings or case which is the subject matter of the complaint. It has been determined that there are some measures prescribed by administrative and judicial authorities and the legislature to prevent violations of the right to a trial within a reasonable time. However, in cases where a violation has occurred despite the measures taken, it is obligatory and necessary to establish a remedy to compensate for the damage caused by the violation in accordance with Article 40 of the Constitution. It would be contradictory to the letter and spirit of Article 148 of the Constitution for the Constitutional Court to proceed with the direct examination of these applications at this stage. Accordingly, in order for the remedy to be considered effective, it is essential to act in accordance with certain principles as well.

On the other hand, the individual application is a subsidiary, in other words, a specific, extraordinary, constitutional remedy that can be resorted to following the exhaustion of administrative and judicial remedies. Since there is no administrative or judicial remedy that can be sought for the determination of the violation and compensation for the damage incurred prior to the application to the Constitutional Court with the alleged violation of the right to trial within a reasonable time enshrined in Article 36 of the Constitution, it has been concluded that the safeguards of the right to an effective remedy set out in Article 40 of the Constitution are not provided in the present application either.

An analysis of the number of applications to the Constitutional Court and the decisions finding violations leads to the conclusion that there is a structural problem leading to the violation of the right to a trial within a reasonable time. Despite any measure taken to resolve 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 a trial within a reasonable time.

In view of the fact that the individual application to the Constitutional Court is a constitutional remedy that can be applied after the exhaustion of the remedies provided for in the legal system, and given its subsidiary nature, it is necessary to establish an body that can be applied to this issue by means of a legal regulation, in order to compensate for the condition arising from the violations due to the prolongation of the proceedings, which constitutes a structural problem. It is of obvious importance that the remedy to be established must be capable of compensating the applicants for the damages caused by the prolongation of the proceedings.

In this respect, the Constitutional Court, in exercising its powers and duties vested in it by the virtue of the Constitution, has determined that an effective remedy should be provided for the violation of the right to a trial within a reasonable time. Therefore, a copy of the judgment should also be submitted to the Grand National Assembly of Türkiye for the resolution of the structural problem concerned, which has been found to lead to a violation of a fundamental right and freedom falling under the common protection area of the Constitution and the Convention.

Accordingly, it is hereby decided to postpone the examination of applications alleging violation of the right to a trial within a reasonable time until the date of the issuance of the decision in the Official Gazette and to postpone the examination of applications of the same nature lodged after that date for a period of four months from the date of the issuance of the decision in the Official Gazette.

Consequently, the Court has found a violation of the right to an effective remedy and therefore decided to apply the pilot-judgment procedure.