Tayfun Cengiz, Application No: 2013/8463, 18 September 2014

A) Facts

The applicant, who is a member of Eğitim-Sen (Education and Science Workers’ Union), did not come to work in obedience to his union’s decision for a warning strike on 28 and 29 March 2012. The District Directorate of National Education of Tarsus punished him with a warning penalty on the ground of “absenteeism without excuse”. The applicant raised an objection to the Governor of Mersin with no avail. He then brought an action to the administrative court demanding the annulment of the penalty, but the 1st Administrative Court of Mersin dismissed the case. The applicant appealed to the Regional Administrative Court of Adana, but the said court approved the first instance judgment. The applicant’s request for correction was refused.

B) Judgment and Reasoning of the Court

The Constitutional Court stated that the right to organize union regulated under Article 51 of the Constitution requires the freedom of workers to collectively organize for the protection of their individual and common interests. According to the Court, this right is deemed not as an independent right, but as a manifest or form of the freedom of association.

The Court asserted that the penalty given to the applicant for joining a country-wide union action constituted an intervention in the applicant’s right to join unions. After determining the lawful character of the intervention within the meaning of Article 26 and Article 125 of the Code of Public Servants, the Constitutional Court reminded the reasoning of the first instance court stating that the aim of the intervention was to maintain the public order and protect the rights and freedoms of other citizens. The Constitutional Court considered that the intervention had a legitimate purpose, and went on to evaluate the criteria for determining the necessity of the intervention. The Court stated that the rationale behind the punishment and the reasoning of the first instance court could be deemed convincing, in other words relevant and sufficient, provided that there was a proportional balance between the restriction of the applicant’s right to join and organize unions and the public interest intended with the disciplinary sanction. Additionally, the Court highlighted the fact that the said union action was country-wide organized and notified by the union in advance, and noted that according to the consistent practice of administration and case-law of the administrative courts, absenteeism in line with a union action was deemed as an excused absence. Whereas the imposed penalty was not heavy, the Court underlined that it could have deterred other union members from participating in strikes and protests. For these reasons, the disciplinary warning sanction was not deemed to meet a social need and thus not necessary in a democratic society.

C) Significance of the Judgement

In this judgement, the Constitutional Court considers that the right to join and organize unions as a special form or manifest of the freedom of assembly. Accordingly, this leading judgment is much referred to in its case-law. The Court decided “the determination of the violation has provided sufficient satisfaction in terms of the applicant, in relation to the applicant’s right to trade union, it should be decided that his request for compensation due to the intervention made in his right to trade union be dismissed”, thus it did not award any damages.