Remezan Orak and Others, Application No: 2013/2229, 3 February 2016

A) Facts

The service contracts of the applicants were suspended by the employer, İstanbul Metropolitan Municipality, for the applicants’ role in the management of the trade union named Municipality-Work. The applicants requested to be reinstated upon the termination of their tasks in the trade union. However, their service contracts were terminated by means of paying their severance allowance. The applicants filed a lawsuit and claimed that the termination of their contract was unfair, their contracts were terminated for trade-union grounds and that the other trade-union members had been reinstated. In the case before the 12th Labour Court of İstanbul, the respondent Municipality noted that only two persons alleged to be in the same position were reemployed. The first instance court rejected the requests, on the basis that the Law no. 2821 had not imposed an obligation to reinstate, and thus no termination of contract by the employer had come into question. The decision was upheld by the Court of Appeal and became final.

B) Judgment and Reasoning of the Court

According to the Constitutional Court, Article 11 of the ECHR does not include a right to reinstate following the termination of their trade union duties (§ 31). Any restriction on the right to trade union shall not be considered under Article 11, even an economic damage is caused by the relevant persons (§ 32). Pursuant to the Court, although the applicants’ requests such as notice pay or trade union compensation were not met, there was not a “significantly restrictive force” against using their right to trade union membership in the concrete case (§ 35). However, the Court found it appropriate that the difference in treatment faced by the applicant to be examined within the scope of Article 10 of the Constitution (§ 35).

The Court first stated that the fact that the prohibition of discrimination not having an independent function does not prevent it from subjecting to a broad interpretation (§ 41). According to the Court, even if the fundamental right and freedom is not violated, the discriminatory approach displayed on a matter related to that right may constitute a violation against Article 10 of the Constitution (§ 41).

According to the Court, the rule requiring the applicants to prove the matter of fact laying the basis of different treatment is not absolute (§ 43). It observed that the reinstatement of the two other union members having the same position as the applicants were also acknowledged by the court of instance. It also noted that, membership of a trade union, which at the same time functions as a civil society organization, may reflect the personal preferences on the basis of “political thought” or “philosophical belief” (§ 45). Therefore, it is not acceptable in contemporary democratic societies to assess the request for reinstatement according to the affiliated trade union. In order for a decision excluding certain union members to be seen as non-discriminatory, it must be based on objective criteria and concrete grounds (§ 46).

In the present case, there is no evidence indicating that the decision of the employer rejecting the request of the applicants, while reinstating the members of another trade union, was based on an objective reason other than the membership of different trade unions. The Court also observed that the claim of discrimination had not been discussed by the courts of instance (§ 47). It was concluded that the equality principle guaranteed under Article 10 of the Constitution was violated since no legitimate aim was pursued with this difference in treatment (§ 48).

C) Significance of the Judgment

This is the first judgement discussing the right to trade union membership in connection with the prohibition of discrimination. Furthermore, the Constitutional Court has established for the first time in the concept of an individual application that a union membership can be assessed within the category of “political thought” or “philosophical belief”. It is also striking that the Court noted the applicant’s burden to prove the fact underlying the different treatment is not absolute.