Press Release No: Individual Application 22/17
02.08.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE RIGHT TO PROPERTY DUE TO THE FAILURE TO REIMBURSE THE DEPRECIATION IN THE RETIREMENT BONUS

On 25 July 2017, the Plenary of the Constitutional Court found a violation of the right to property for the payment of the retirement bonus after being depreciated, in the individual application lodged by Ferda Yeşiltepe (no. 2014/7621).

The Facts

The applicant was serving as a public officer at the General Directorate of Youth and Sports between 1968 and 1982 and at the Izmir Provincial Directorate of Youth and Sports between 1986 and 1988. During these periods, she was covered by the State Retirement Fund. She also worked in various private companies during the period between 1982 and 1986, and in 1988 when she was covered by the Social Insurance Institution (“the SII”). On 1 October 1988, the applicant was entitled to a pension by the SSI.  

By its decision dated 5 February 2009 and no. E.2005/40, K.2009/17, the Constitutional Court annulled the phrase “those who were retired while serving in the positions under the coverage of the State Retirement Fund and” specified in Article 12 of the Law on Unifying the Services under the Social Security Institutions, which is dated 24/5/1983 and no. 2829, for being in breach of Articles 2 and 10 of the Constitution. The applicant submitted a petition to the Social Security Institution (“the SSI”) on 22 June 2010 and requested to be granted retirement bonus for the periods when she was covered by the State Retirement Fund. By its letter of 20 July 2010, the SSI rejected her request.

On 21 February 2011, the applicant brought an action before the 16th Chamber of the Ankara Administrative Court and requested the revocation of the administrative act rejecting her request and the payment of the impugned retirement bonus, plus any legal interest. On 28 November 2012, the administrative court ordered the revocation of the administrative act in question. It also ordered the payment, by the defendant SSI to the applicant, of the retirement bonus to be calculated on the basis of the ratios applicable on the date of her entitlement to pension, plus any legal interest to accrue.

Upon being contested, the administrative court’s decision was upheld with a minor amendment to the counsel fee, by the decision of the 1st Board of the Ankara Regional Administrative Court (“the Board”) dated 24 December 2013. The SSI notified that the retirement bonus of TRY 2.27 calculated on the basis of applicable ratios and legal interest of TRY 0.54 accruing based on the date of her request, and the payment was made to the applicant on 8/3/2013.

The Applicant’s Allegations

The applicant primarily maintained that her right to request the execution of a judicial decision within the scope of the right to a fair trial was violated on the ground that the SSI failed to execute the decision of the Regional Administrative Court. Secondly, she alleged that her right to property was violated as her retirement bonus was not paid on the basis of ratios applicable at the date of payment. She was of the opinion that taking not the payment date but the date of her entitlement to a pension as a basis for the payment of the retirement bonus led to depreciation in the amount of her receivable.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

A. Alleged Violation of the Right to Request the Execution of a Judicial Decision

In the present case, the Constitutional Court found out that the decision of the Regional Administrative Court did not include any judgment and ground specifying that the retirement bonus would be paid by the ratios applicable at the payment date, which is to the contrary what the applicant stated. Accordingly, there was no indication of the fact that the court’s decision was deficiently or erroneously executed by the SSI. Consequently, the Constitutional Court declared the alleged violation of the right to request the execution of a judicial decision, which falls into the scope of the right to a fair trial, inadmissible for being manifestly ill-founded.

B. Alleged Violation of the Right to Property

In brief, the Constitutional Court made the following assessments:

With regard to the alleged interference with the applicant’s right to property due to the non-payment of her retirement bonus, the relevant courts ordered the payment of retirement bonus to the applicant by taking into account the annulment decisions rendered by the Constitutional Court. Besides, the SSI paid the retirement bonus awarded at the end of the proceedings. Accordingly, the circumstances leading to the applicant’s suffering have been eliminated. However, such a payment does not per se remove the applicant’s victim status, which can be removed only when the alleged violation is redressed in a timely manner and by also taking into account the period when the victim was deprived of her right.

In the individual application Hüseyin Remzi Polge (no. 2013/2166), the Constitutional Court noted that the applicant’s request for taking the ratios of the payment date as a basis in the calculation of his retirement bonus is devoid of any concrete ground; and that it is within the inferior court’s discretionary power to decide on the calculation method and procedures. However, this Court also stated therein that it is a requisite to assess whether the interference is proportionate or not by taking into account the applicant’s complaint that “the amount of his retirement bonus” was depreciated.

In the present case, the competent courts determined that the applicant was entitled to receive retirement bonus by 1 October 1988 when she was entitled to a pension. As a matter of fact, her bonus was calculated on the basis of the ratios applicable at that time. However, according to the data provided by the Central Bank, the amount to compensate the depreciation in the applicant’s receivable of TRY 2.27, which falls into the scope of her right to property, is TRY 10,369.73. However, the amount of interest paid to her is only TRY 0.54.  The increase in inflation until the payment date is 456.792%. Therefore, the interest payment made to the applicant does not compensate for the depreciation in the amount of the applicant’s receivable due to inflation.

Given the inflation rates during a period of 25 years from the date when the applicant was entitled to a retirement bonus to the date of actual payment, the payment which falls under the property right was made in the depreciated amount. Considering the amount of depreciation in question, the Constitutional Court reached the conclusion that the interference imposed a personally excessive and extraordinary burden on the applicant, which impaired, to the applicant’s detriment, the fair balance required to be struck between the public interest and the applicant’s right to property.

Consequently, the Constitutional Court found a violation of the right to property safeguarded by Article 35 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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