Before appealing to the European Court of Human Rights, all domestic legal remedies must be exhausted. Since it is a criminal case, the requirement for applying to the Constitutional Court for compensation for material and moral damages arising from wrongful detention is that all legal remedies, including first-instance appeals and cassation, must be exhausted.
Regarding wrongful detention, Article 19 of the Turkish Constitution, titled “Personal Liberty and Security,” specifies the principles of detention and states in its last paragraph: “The damage suffered by persons subjected to a procedure outside these principles shall be compensated by the state according to the general principles of compensation law.” In this judicial process, we also have the opportunity to seek compensation for the damage we have suffered by basing our claim on this right guaranteed by Article 19 of the Constitution.
With the acceptance of the individual application route to the Constitutional Court, the right to individual application has taken its place in our legal system as a new means of seeking justice. The primary responsibility for protecting fundamental rights and freedoms undoubtedly lies with administrative and judicial authorities. However, the granting of the duty and authority to accept individual applications to the Constitutional Court aims to ensure that fundamental rights and freedoms are protected by a national judicial authority. Because while the authority to which individuals whose fundamental rights and freedoms have been violated apply after exhausting domestic legal remedies was the European Court of Human Rights, whose jurisdiction we accepted in 1990, it has been the Constitutional Court since September 23, 2012. Individuals who claim that their fundamental rights and freedoms have been violated by public authorities must first apply to the Constitutional Court before they can apply to the European Court of Human Rights, after exhausting all mandatory legal and administrative remedies.
In its previous decisions, the Constitutional Court, in individual applications for compensation for material and moral damages suffered due to the excessive length of detention during criminal proceedings, considered the provision in Article 142, paragraph 1 of the Code of Criminal Procedure, which states that “claims for compensation may be made within three months from the notification of the final judgment or decision to the person concerned, and in any case within one year following the date of finalization of the judgment or decision,” and, drawing attention to the ECHR’s decisions in this regard, ruled that the provisions in Articles 141-142 of the Code of Criminal Procedure did not provide an effective remedy, and therefore, it was not necessary to initiate and conclude a case in the relevant High Criminal Court according to Articles 142-142 of the Code of Criminal Procedure.
Individual applications must be filed within 30 (thirty) days from the date on which all mandatory administrative and judicial remedies provided for in the laws have been exhausted, or from the date on which the violation was learned if no remedy is provided for. Applications exceeding this period will be rejected without further examination. The date of notification or announcement of the final decision to the individual shall be taken as the starting date of the thirty-day period. Individual applications to the Constitutional Court must be made using the Individual Application Form or with a petition containing all the information required in the application form and in the same format. The form should only contain concise information relevant to the merits of the application and necessary for the decision, and the form should not exceed 10 pages in total, excluding attachments. The applicant must provide their current information on this form.
EXAMPLE COURT DECISION ON THE SUBJECT
SUPREME COURT
LAW DIVISION
23. 2017/38462
24. 2017/19163
25. 25.9.2017
CASE: The appeal of the decision rendered as a result of the case between the parties was requested by the plaintiff’s attorney, and it was understood that the appeal request was within the time limit. After hearing the report prepared by the Examining Judge … for the case file, the file was examined, and the necessary discussions and considerations were made:
DECISION: Summary of the Plaintiff’s Claim:
The plaintiff’s attorney claimed that the employment contract of his client was terminated by the defendant employer without valid reason, and requested and sued for the determination of the invalidity of the termination, reinstatement to work, and a decision on wages and other rights for the period of unemployment, as well as compensation for failure to reinstate.
Summary of Defendant’s Response:
The defendant’s attorney argued that the court lacked jurisdiction, that the plaintiff’s employment contract was terminated as of July 19, 2016, following a decision resulting from a reassessment of the personnel structure, and that this decision was made due to changes in the country’s political and economic conditions prior to the termination, necessitating changes in the existing institutional structure and practices, and adapting the staff accordingly. The attorney further argued that the plaintiff had signed a release agreement and therefore could not file this lawsuit, requesting the dismissal of the case.
Summary of the Court’s Decision:
The First Instance Court ruled in favor of the plaintiff, accepting the case on the grounds that the employer failed to fulfill its burden of proof and could not demonstrate a valid reason stemming from the workplace and the nature of the work.
Appeal:
The defendant’s attorney filed an appeal against the First Instance Court’s decision.
Summary of the Regional Court of Appeal’s Decision:
The Regional Court of Appeal ruled that the decision regarding the restructuring of personnel following the July 15 coup attempt was an administrative decision. Considering the reasons that led to the declaration of the state of emergency and the justifications and purposes of the State of Emergency Decrees, this administrative decision cannot be subject to the principle of dismissal as a last resort. Furthermore, due to the subjective nature of opinion regarding membership, affiliation, contact, and connection with terrorist organizations, primarily FETÖ/PDY, the decision is not suitable for comparison with precedents or consistency review. Therefore, the dismissal based on this administrative decision was deemed to be based on a valid reason. Consequently, the appeal of the defendant’s attorney was accepted, the first instance court’s decision was overturned, and the case was dismissed.
Appeal Application:
The plaintiff’s attorney appealed the decision.
Reasoning:
The dispute between the parties concerns whether the termination of the employment contract was based on a valid reason, and the legal basis is Articles 18 et seq. of the Labor Law No. 4857.
According to Article 19 of Law No. 4857, an employer who wishes to terminate the employment contract of an employee falling within the scope of Article 18 of the same Law for a valid reason must make the termination notice in writing and state the reason for termination clearly and definitively. The written termination notice must also clearly and definitively state the reason for termination; this is a condition for its validity.
In the specific dispute, the plaintiff’s employment contract was terminated by the defendant employer on July 19, 2016, with the following statement: “Your indefinite-term employment contract, concluded with our organization on November 3, 2015, has been terminated as of July 19, 2016, following a decision resulting from a reassessment of the personnel structure, with your rights and entitlements being paid to you.” The employment contract was terminated with a notice of termination. However, the defendant employer, who bears the burden of proof, failed to provide objective, concrete evidence regarding the planned changes to the personnel structure and why the plaintiff employee, whose employment contract was terminated, could not be included in the planned structure. Although it was understood that the formal requirements of the termination were met, no evidence to prove the content was presented. Therefore, while the case should have been accepted, the Regional Court of Appeal’s relevant legal chamber’s decision to dismiss the case was erroneous.
CONCLUSION: For the reasons stated above, pursuant to Article 20, paragraph 3 of Law No. 4857, the Regional Court of Appeal’s judgment must be overturned and the following decision rendered.
CONCLUSION: For the reasons explained above;
1) The decision of the Gaziantep Regional Court of Appeals, 7th Civil Chamber, numbered 2017/178 and 2017/578, is hereby REVERSED and ANNULLED.
2) The termination by the employer is declared INVALID, and the plaintiff is ordered REINSTATED to their job at …
3) If the employer fails to reinstate the plaintiff within the legal timeframe despite the plaintiff’s application, the amount of compensation payable shall be determined as four months’ wages.
4) It is determined that the plaintiff shall be paid a maximum of four months’ wages and other entitlements accrued up to the finalization of this decision, should the employer apply for reinstatement within the legal timeframe.
5) From the court fee of 31.40 TL required as of the date of the decision, the 29.20 TL already paid in advance shall be deducted, and the remaining 2.20 TL court fee shall be collected from the defendant and recorded as revenue for the treasury. The 29.20 TL advance fee paid by the plaintiff shall be collected from the defendant and given to the plaintiff.
6) Since the plaintiff was represented by counsel, the attorney’s fee of 1,980.00 TL, according to the tariff in effect on the date of the decision, shall be collected from the defendant and given to the plaintiff.
7) The 232.50 TL litigation expenses incurred by the plaintiff shall be collected from the defendant and given to the plaintiff; the defendant’s litigation expenses shall remain with the plaintiff.
8) The file shall be sent to the Regional Court of Appeal that rendered the decision, and a copy of the decision shall be sent to the First Instance Court that rendered the decision.
9) Any unused balances from the advance payments made by the parties shall be returned to the relevant party. It was unanimously and definitively decided on September 25, 2017, that the advance appeal fee should be refunded to the relevant party upon request.