Events
The applicants, who started to work as assistant labour inspectors, were not appointed as labour inspectors although they were successful in the written and oral exams for labour inspector qualification. The applicants applied to the Presidency of the Labour Inspection Board with the request that they be appointed to the vacant labour inspector positions, but the applicants’ request was rejected, stating that the appointment process was ongoing. Thereupon, the applicants filed lawsuits before the administrative courts requesting the cancellation of these procedures and the payment of the monetary rights deprived from the date of entitlement to the title of labour inspector, together with legal interest. The administrative courts cancelled the procedures regarding the rejection of their requests for appointment as labour inspectors. The Administrative Courts also ordered the payment of the monetary rights deprived to the applicants together with legal interest, but reached different conclusions in terms of the date of calculation of the monetary rights. While some Administrative Courts decided that the applicants should be paid the monetary rights they were deprived of as of the date on which they deserved to be appointed as labour inspectors, some other Administrative Courts ruled that the monetary rights deprived should be calculated as of the date of application to the administration.
The Regional Administrative Court, which examined the parties’ request for appeal, rejected their request for appeal and corrected the paragraphs in the decisions that ruled that the monetary rights of the applicants should be calculated from the date they deserved to be appointed as labour inspectors, as the monetary rights should be calculated from the date of application to the administration.
Allegations
The applicants claimed that their right to property was violated due to the non-compensation of the monetary losses incurred due to the unlawful delay in their appointment from assistant labour inspector to labour inspector.
Assessment of the Court
In the concrete case, the unlawfulness of the delay in the appointment of the applicants as labour inspectors has been determined by the decisions of the Administrative Courts that have been subjected to appeal review. The unlawfulness of the delay in the appointment procedures showed that the interference with the applicants’ right to property lacked a legal basis. Therefore, it has been concluded that the violation of the right to property has been determined by the administrative courts and therefore, an examination has been made as to whether the violation has been remedied.
Although the cancellation of the administrative act and the completion of the appointment of the applicants alleviated their victimisation, it did not completely eliminate it. In order for the victimisation to be eliminated in real terms, the damages caused by the violation of the applicants’ right to property must also be compensated. It is understood that the applicants filed a full judgement lawsuit in order to remedy the violation of the right to property. Some administrative courts ruled that the monetary rights foreseen for this position should be paid to the applicants from the date the applicants were entitled to be appointed as labour inspectors. However, the regional administrative court corrected the date of calculation of the monetary rights as the date of the administrative application. According to the regional administrative court, the date of the administrative application should be taken as the date of the administrative application since it is not clear in the concrete case how long the period required for the completion of the appointment procedures is. Some administrative courts, inspired by this reasoning of the regional administrative court, have also decided to take the date of administrative application as the date of calculation of monetary rights.
This opinion of the regional administrative court has led to a contradiction within the decisions. In this context, the regional administrative court rejected the administration’s request for appeal without any additional justification. In the decisions of the administrative courts, it was determined that the administration delayed beyond what was reasonable in realising the appointment procedures. In fact, the decisions of the regional administrative court also stated that the applicants were not appointed as labour inspectors within a reasonable period of time. In this case, although it is accepted that the administration delayed in realising the appointment procedures, it is a serious contradiction and cannot be seen as a reasonable interpretation to accept that the monetary rights deprived should be calculated from the date of the administrative application by pointing out that it is not clear how long the reasonable period is in the section where the compensation request is evaluated.
On the other hand, the Regional Administrative Court’s interpretation imposed the requirement on the applicants, who fulfilled all their obligations and passed the exam, to apply to the administration for appointment. However, the legislation stipulates that assistant labour inspectors who successfully pass the qualification exam will be automatically appointed as inspectors by the administration. Moreover, the administration did not present any defence to the contrary. Therefore, the approach of the Regional Administrative Court has granted the administration a discretionary power that is not even foreseen in the legislation.
In a state of law, the administration is under the obligation to remedy the violations caused by its unlawful acts. Pursuant to the principle of restitutio in integrum (restitutio in integrum), the administration is obliged to restore the person as close as possible to the situation in which he or she would have been if the unlawful action had not been taken. In this respect, it cannot be said that the administration fully fulfilled its obligations to remedy the violation by appointing the applicants as labour inspectors. In order to be able to say that the violation has been fully remedied, the monetary loss of rights arising from the date on which the applicants would have been appointed as labour inspectors in the ordinary course of the administrative process if there had been no unlawful delay must also be compensated.
Article 5 of the Constitution also imposes a duty on the State to take deterrent measures to prevent violations of rights and freedoms. The interpretation of the regional administrative court prevents the applicants from being fully compensated for the losses incurred due to the interference with the applicants’ right to property, and also renders ineffective the deterrent feature of the compensation lawsuit against the establishment of unlawful transactions.
As a result, the full remedy of the violation identified through the cancellation of the transactions regarding the rejection of the request for appointment as labour inspector was prevented due to the contradictory interpretation of the regional administrative court and some administrative courts. In this case, it is accepted that the violation of the right to property continues.
The Constitutional Court decided that the right to property was violated for the reasons explained.
You can access our other article examples and petition examples by clicking