Press Release No: Individual Application 18/16
05.04.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF REMEZAN ORAK AND OTHERS ON THE PROHIBITION OF DISCRIMINATION

On 3/2/2016, the Second Section of the Constitutional Court held with regard to the individual application lodged by Remezan ORAK and Others (application no. 2013/2229) that there had been a breach of the principle of equality (the principle of discrimination) guaranteed in Article 10 of the Constitution.

The Facts

The service contracts of the applicants were suspended by the Municipality, which was the employer, for the applicants’ taking part in the management of a trade union while working as a worker. The applicants requested to be reemployed upon termination of their tasks in the trade union. The Municipality decided to terminate the applicants’ service contracts by means of paying their severance allowance. The applicants filed a case by maintaining that the termination of their service contract had been unfair; that their service contracts had been terminated for trade-union grounds; and that the other trade-union members in the same status with them had been re-employed. In the letter submitted by the Municipality to the Court, it is noted that there were two persons alleged to be in the same position and re-employed upon the end of their office in the management of the trade union in 2011. The court rejected the requests. The decisions were upheld by the Court of Cassation.  

The Applicant’s Allegations

The applicants stated that although they had requested to be reinstated upon the termination of their office in the trade union, their contracts had been terminated for trade-union grounds. They also maintained that the dismissal of the cases filed by them in spite of a letter of termination by the first instance court as that there was no termination performed by the employer and the fact that their allegations concerning the re-employment of the other persons who were members of another trade union and were in the same position with them were not accepted to be a ground for a breach of equality by the inferior courts constituted a violation of their rights to a fair trial and to employment.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of the allegations:

Democracy will be reinforced in a social understanding in which the differences are perceived not as a threat but as a resource for enrichment. The assessment of the request for reinstatement according to the trade union of which the relevant persons are members is not acceptable in contemporary democratic societies. It is possible to accept that after having assessed the requests for reinstatement, the employer may reach a conclusion which excludes certain trade-union members for reasons other than being a member of a trade union and that such a conclusion reached may not be regarded as discrimination. However, such assessments must depend on objective criteria and concrete grounds. While the service contracts of the applicants who had requested to be reinstated were terminated, the persons who had been members of another trade union and in the same position were reinstated. There is no explanation and assessment indicating that such choice of the employer depends on objective criteria and grounds other than the membership of different trade unions. Although the applicants’ allegations of discrimination were set forth during the proceedings, the cases were concluded without this issue being dealt with. 

Consequently, it has been inferred that subjecting the applicants to a different treatment while making an assessment with respect to their request for reinstatement by taking into consideration the trade union of which they are members does not pursue “a legitimate aim”. Therefore, it has been held that there was a breach of the principle of equality (the prohibition of discrimination) guaranteed in Article 10 of the Constitution.

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

The Constitutional Court of the Republic of Turkey © 2015
Number of Visitors: