EXTENDED SUMMARY

International human rights treaties have a crucial function in labour relations, just as they do in other areas of law. Individuals are no longer subjects solely to the national law established by the legislative body of the state in which they are citizens; instead, they are also subjects of international human rights law that emerges through the collective will of states, aiming to provide stronger guarantees for individuals’ fundamental rights and freedoms, evolving according to the conditions of the day. In the 21st century, the unique significance of the position of the individual and the guarantee intended for the individual’s fundamental rights and freedoms in democratic societies inevitably influences national laws and, of course, the approach of national judges to disputes. In this context, a national judge assigned to resolve a dispute related to a worker’s fundamental rights and freedoms in the 21st century will not be content with evaluating the dispute solely following national legislation and precedents. Thus, Article 90/5 of the Turkish Constitution stipulates, “International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.” As seen, this article imposes a significant mission on the courts. On the other hand, the recognition of the right to individual application to the Constitutional Court serves the goal of providing a stronger guarantee for individuals’ fundamental rights and freedoms in the ‘common protection area’ of the Turkish Constitution and the European Convention on Human Rights (ECHR), in line with the case law of the European Court of Human Rights (ECtHR). The right to individual application also aims to reduce the number of cases and violation decisions against Türkiye on the international stage. As it can be seen by Article 148/3 of the Turkish Constitution, “Everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities. In order to make an application, ordinary legal remedies must be exhausted”. While the Constitutional Court undoubtedly plays a significant role in realizing this goal, resolving disputes related to the fundamental rights and freedoms of workers before the stage of individual application is also crucial. In this context, the decisions of the Court of Cassation, regional courts, and even first-instance courts play an important role. In its decision dated 19.10.2023, the Court of Cassation’s accurate application of Article 90/5 of the Constitution and its decision-making based on international norms and the case law of the European Court of Human Rights, ignoring the existence of a legal prohibition on the right to unionize in the national law, has prevented a probable violation decision against Türkiye by the ECtHR in the future. Indeed, following Article 90/5, the judge must not disregard the common values of democratic societies to which our country has committed to adhere and must consider the approach adopted in international human rights documents, including interpretations and precedents related to these documents, when dealing with the matter. As the relevant dispute shows, applying Article 90/5 by the Court of Cassation can establish the necessary assurance for fundamental rights and freedoms. However, if there is a clear conflict between national norms and international conventions, rather than attempting to override this provision in every dispute, a more appropriate solution would be for the Constitutional Court to resolve the inconsistency by annulling this provision. Furthermore, the primary responsibility for resolving the inconsistency between national norms and international norms by changing national legal rules and enacting regulations that align with international norms and jurisprudence lies with the legislator. It is evident that, as a matter of principle, the legislator should bring the relevant legislation in line with international human rights norms and the jurisprudence of the European Court of Human Rights. In this regard, following the recent decision by the Court of Cassation addressing the right to unionize, this study, in accordance with Article 90/5 of the Constitution, focuses on how the judge will apply international norms under what conditions and through what interpretative method, considering the case law of the European Court of Human Rights; the approach of the Constitutional Court and the Court of Cassation on the subject is also evaluated.