Münis Düşenkalkar Başvurusu

Münis Düşenkalkar Başvurusu

Münis Düşenkalkar, Application No: 2013/1244, 17 July 2014

A) Facts

The applicant, who has been working as an actress for the İstanbul Bakırköy Municipality Theatre based on a contractual relationship since 1990, complained both before the first instance court and the Constitutional Court that the proceedings on her claim for accumulated incentive premiums have not been examined and tried within a reasonable time –length over 7 years– and that the final decision, as well as being irrelevant of the concrete facts, lacked reasoning. She asserted that, by being treated differently from other people under same conditions, she has been denied her legal rights while working, whereas the said payment has been regularly made to other people working for other institutions under same kind of contracts and similar conditions. Therefore, she claimed that her conditions should be considered as forced labour and a violation should be found against the principle of equal treatment.

B) Judgment and Reasoning of the Court

The Constitutional Court stated at the outset that forced labour is prohibited under the Constitution but without providing a definition. The Court then referred to the following definition under Article 4 of the European Convention on Human Rights (ECHR) and the ILO Convention concerning Forced or Compulsory Labour: “All work or services to the performance of which one is forced under the threat of punishment or without his consent”. Thus, according to the Constitutional Court, threat of punishment and absence of consent are two prerequisites for forced labour. By referring to the case-law of the ECtHR, the Court enumerated two criteria for forced labour: Threat of punishment or being forced to labour without his/her consent; and the burdensome, tedious and distressing nature of the work. The Constitutional Court highlighted the fact that in the case at hand, the applicant has been working as an actress at a public institution under a contract and emphasized that the application is not about non-payment of the consideration for the applicant’s work or about the fact that she was required to forced labour. Thus, it found no violation of the prohibition of forced labour.

C) Significance of the Judgement

This is a leading judgment for determining the conditions of prohibition of forced labour and it has been repeatedly referred in other individual applications regarding the prohibition of forced labour and its requisites.