ABSTRACT

“The problem of direct implementation of supranational conventions: two conflicting Cassation Court judgments, labour law doctrine and a proposition”. 9th Chamber of the Court of Cassation adopted a contradictory approach about the problem of the direct implementation of ratified/supranational conventions and prioritizing the domestic law with its two different and contradictory judgments given within two years. In the first judgment, it affirmed the closure of the trade union established by judges and prosecutors. This conclusion was reached by the domestic law which prohibits establishing a trade union on the basis of “profession.” The main reason was the labour law doctrine which considers industrial trade unionism, imposed by the law, not against the ratified conventions and the principle of union pluralism. As for the second judgment, it reached a conclusion by applying the ratified conventions that secure this right rather than applying the law which repeals the right of annual paid leave. It directly implemented the supranational conventions by itself as a “superior standard”. However, in both of the judgments there was no comment on the Constitution rule which regulates the impacts of ratified conventions in the domestic law. In this article, these two judgments are evaluated and criticised. Especially, labour law doctrine and “dissident opinions” are both evaluated critically on occasion the Yargı-Sen judgment. The author proposes to the higher judicial bodies “to seek for a common solution” in order to prevent the similar contradictions both within and between each other and to reach judgments that are appropriate for the core of the constitutional rule as well as for the principles of “the Turkish Republic based on and respecting human rights” and “state of law”