Press Release No: Individual Application 2/17
10.03.2017

PRESS RELEASE ON THE JUDGMENT OF T.T.A. CONCERNING THE RIGHTS TO PROTECT INDIVIDUAL’S MATERIAL AND SPIRITUAL ENTITY, TO RESPECT FOR PRIVATE LIFE AND TO A TRIAL WITHIN A REASONABLE TIME

On 1 February 2017, the Second Section of the Constitutional Court held with regard to the individual application lodged by T.T.A (App. No: 2014/19081), that there had been a violation of the right to protect his material and spiritual entity guaranteed in Article 17§ 1 of the Constitution, the right to respect for private life and the right to protection of personal data guaranteed in Article 20 and the right to a trial within a reasonable time guaranteed in Article 36 of the Constitution.

The Facts

On 14 February 2005, the applicant started to work as a pipe profile manufacturing operator in a company operating in the field of plastic pipe and profile manufacturing. He was diagnosed with the human immunodeficiency virus (HIV) in December 2006.

The on-site doctor asked the Medical Faculty of the Ege University, where the applicant being suspended from work for six months in spite of being paid was receiving treatment, whether his situation constituted an impediment to work. In the response given it was noted that the health condition of the applicant did not constitute any obstacle to work at any job and he had no disabilities in respect thereof.

On 26 January 2009, the applicant left work by submitting a resignation letter, and signed a certificate of quittance declaring he had no receivables from the relevant workplace.

By his petition of 5 November 2009, the applicant filed an action of debt against the company he used to work before the 2nd Chamber of the Karşıyaka Labor Court (“the Labor Court”). The Labor Court qualified the action as an action for debt and compensation for non-pecuniary damage based on Article 5 of the Law No. 4857.

By the decision of the Labor Court dated 24 February 2011, it was noted that the applicant’s allegation that his private life had been violated was not substantiated and accordingly rejected his claim for non-pecuniary compensation. In terms of the compensation claimed for the prohibition of discrimination, the Labor Court indicated in its decision that it was found established that the applicant was paid his salary although he was not caused to work for five or six months, and that the applicant’s being precluded from performing his obligation to work and being suspended from work, as well as in employment relation the employer’s liability to pay salary, were discriminatory in nature. It was consequently held that the employer had contravened the obligation of equal treatment, and the compensation claimed was partially accepted.

The decision was quashed, upon the appeal of the parties, by the judgment of the 9th Civil Chamber of the Court of Cassation dated 1 October 2013, by considering that “the employer acted with the motive of protecting his other employees…”

Upon the retrial held following the quashing judgment, the Labor Court complied with the quashing judgment and dismissed the action with its decision of 20 March 2014.  

This decision was upheld by the 9th Civil Chamber of the Court of Cassation by its judgment of 24 September 2014.

The Applicant’s Allegations

The applicant alleged that he was primarily suspended from his workplace and subsequently dismissed from work wrongfully on the ground of his health condition and this situation constituted a discriminatory treatment. He also maintained that the grounds on which the judicial authorities relied in their decisions dismissing the action would pose an obstacle for him to find work, which may cause serious problems to be in breach of the right to life and the right to have access to treatment with respect to the treatment of his disease requiring a high cost. He accordingly alleged that his rights enshrined in the Articles 10, 17, 20, 35, 36, 40 and 49 of the Constitution were violated. He further maintained that in case of a public trial, his work life would end up permanently and he accordingly requested that his trial be held closed to the third parties due to his fear that his case, which was not common in nature, may attract attention of the public especially of the journalists. However, his request was rejected by the domestic court without any justification. He therefore alleged that Articles 20 and 36 of the Constitution were violated and there was a breach of his right to a fair trial as his trial was not concluded within a reasonable time.

The Court’s Assessment

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

a. Alleged violation of the right to respect for private life and the right to protect and develop material and spiritual entity assessed in conjunction with the principle of equality due to the dismissal of the action brought for receiving compensation for discrimination

Even if it may be asserted that the applicant was subject to a different treatment which was not shown to any of his workmates and which was more convenient and even advantageous for him given the fact that the applicant was paid his salary during the period he was not allowed to work and got his receivables when he left work, it must be in the first place recalled that the applicant, who requires a continuous and regular income to cover his lifelong treatment, lost his job by which he could obtain this income not due to the legal reasons stipulated in the Law No. 4857 but for suffering from HIV positive. Therefore, it turns out that the applicant was subject to a different treatment in a negative sense.

In their decisions, the Court of Cassation and the Labor Court focused on the “contagious” nature of the applicant’s disease and therefore considered that the only solution to prevent this risk from occurring was to suspend the applicant from work. However, in the relevant decisions, it was not taken in consideration whether the employer had the obligation to assess the opportunity to make the applicant work in another position that would not pose a risk to the other workers. Whereas according to witness statements, both the on-site doctor gave suggestions to the employer to employ the worker in another position and the Manager of the Staff and Financial Affairs informed the employer that the applicant may be tasked with performing sales calls in an outside position. It was also indicated in the report of the expert assigned by the court that the employer’s duty was to charge the work in another position which was not risky for his health condition. However, it appears that the employer failed to make an assessment as to whether there was such a position  at the workplace and if any, whether the applicant’s qualifications were sufficient for this position. Besides, it has been observed that in the decisions of the Court of Cassation and the Labor Court, no assessment as to the obligation to look for alternative positions at the workplace was done and no fair balance was therefore struck between the conflicting interest of the employer and the employee.

Consequently, it has been established in the first place that the applicant’s founded allegation that he was unjustly forced to leave work was not dealt with in the decisions of the first instance court and in the second place that there was no assessment, in these decisions, concerning the obligation to look for alternative positions at the workplace. It has been therefore concluded that the public authorities failed to fulfill their positive obligations in respect of the protection of the material and spiritual entity of the person and the right to respect for private life.

For the reasons mentioned above, the Constitutional Court has held that the applicant’s right to protect his material and spiritual entity guaranteed under Article 17 of the Constitution and his right to respect for private life guaranteed under Article 20 thereof were violated.

b. Alleged violation of the right to respect for private life due to the rejection of the applicant’s request for holding of his trial closed to the third parties

Considering that people with HIV infection are a weak group that has been exposed to prejudice and condemnation for a long time and that in case of being subject to exclusion, stigmatization and prejudice especially in the business life, its effects on people may be much more devastating, the applicant's request for confidentiality is of reasonable and defensible nature within the scope of the right to respect for private life.

Although it is stated by the Labor Court that the request for confidentiality is denied due to the nature of the complaint petition, the relevant statement is ambiguous and is far from explaining the concrete reasons why the confidentiality decision was not given. It appears that although same allegations were put forth at the appellate stage, any justification on this matters was not included in the appellate judgment. In this sense, it must be accepted that the decision and judgment in question did not include relevant and sufficient justification on the matter.

For the reasons mentioned above, the Constitutional Court held that the applicant’s right to protection of personal data, which is one of the elements of the right to respect for private life guaranteed under Article 20 of the Constitution, was violated.

c. Alleged violation of the right to a fair trial due to the unreasonable length of proceedings  

Given the pre-designated principles such as the complexity of the proceedings and the level of jurisdiction, the attitudes shown by the parties and the relevant authorities in the proceedings and the nature of the applicant’s benefit in expeditious conclusion of the proceedings and the judgments rendered by the Constitutional Court in similar applications, it has been concluded that the length of proceedings lasting for 4 years and 10 months in the present incident is not reasonable.

For the reasons stated above, the Constitutional Court held that the right to a trial within a reasonable time guaranteed under Article 36 of the Constitution was violated.

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

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