Case-Law Summary

                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Keskin Kalem Yayıncılık ve Ticaret A.Ş. and Others

2018/14884

27 October 2021

(Plenary)

Violations of the freedoms of expression and the press as well as right to an effective remedy, respectively safeguarded by Articles 26, 28 and 40 of the Constitution

- Alleged violations of the freedoms of expression and the press as well as right to an effective remedy due to denial of access to a series of news published on online news portals.

- The applicants challenged the court decision on blocking access to 129 news published on a number of news portals. Upon rejection of their appeals at all stages, they respectively lodged individual applications with the Court.

1. Alleged violations of the freedoms of expression and the press

- Apparently, blocking of access to the said news constituted an interference with the freedoms of expression and the press, safeguarded by Articles 26 and 28 of the Constitution.

- The news had been blocked for an indefinite period. Due to the application of such measures for an indefinite period in the absence of relevant and sufficient grounds, the impugned interference had been disproportionate.

- The inferior courts failed to comply with the constitutional principles.

- The relevant law underlying their decisions lacked basic guarantees regarding the protection of the freedoms of expression and the press. Thus, the violation in the present case resulted from the law.

- In a democratic state of law, regardless of the aim pursued, the restrictions imposed cannot be to the extent that will disproportionately prevent the exercise of freedom. Therefore, an applicable provision must contain certain safeguards against arbitrary and disproportionate interventions.

- Considering the fact that the inferior courts’ decisions point to the existence of a systematic problem directly caused by a statutory provision, it is obvious that the current system in our country needs to be reconsidered in order to prevent similar violations.

- Considering as a whole, the interference with the freedoms of expression and the press through the decisions on blocking access to the said news did not meet a pressing social need.

- Consequently, the Court found violations of the freedoms of expression and the press and held that the pilot judgment procedure be applied.

2. Alleged violation of the right to an effective remedy

- The fact that the ability of appealing against the decisions on blocking access is embodied in the law is not necessarily sufficient, and such a remedy should also offer a prospect of success in practice.

- Although the applicants were able to apply to the appeal authorities to challenge the court decisions, the relevant authorities failed to consider the claims raised and evidence adduced by the applicants. They also failed to balance the competing interests and did not evaluate whether the impugned interference had complied with the requirements of a democratic social as well as being proportionate

- Consequently, the Court found a violation of the right to an effective remedy and held that the pilot judgment procedure be applied.

 

Onur Can Taştan

2018/32475

 

Yağmur Erşan

2018/36451

 

27 October 2021

(Plenary)

 

Violation/No violation of the right to respect for private life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right for cancellation of the applicants’ passports.

- Pursuant to the legislative arrangements made during the state of emergency period, which prescribed that the passports possessed by those who were considered to have relation and connection with the terrorist organisation would be cancelled, the applicants’ passports were cancelled.

- The applicants’ respective challenges against the cancellation of their passports were rejected.

- The impugned interference would be in breach of the applicants’ right to respect for their private lives in ordinary period; however, whether it had been a proportionate measure during the state of emergency period should be considered.

- Article 15 of the Constitution, regulating the measures to be taken in times of emergency, allows -under certain circumstances- to take measures contrary to the safeguards enshrined in other constitutional provisions during such periods. However, this provision should not necessarily be interpreted as granting limitless powers to the public authorities.

- Accordingly, in the present cases, it should be determined whether the cancellation of the applicants’ passports had been a measure to the extent required by the exigencies of the situation.

1. As regards the applicant Onur Can Taştan

- There had been no criminal investigation or prosecution conducted against the applicant, nor had been there a court decision banning his travel abroad. Thus, the impugned measure was solely an administrative act.

- The grounds relied on by the administration cancelling the applicant’s passport had not been elaborated taking into account the applicant’s particular circumstances.

- The impugned interference had not been necessary or proportionate.

- Consequently, the Court found a violation of the right to respect for private life.

2. As regards the applicant Yağmur Erşan

- The measure applied with respect to the applicant had been based on the ongoing criminal investigation conducted against her, and it served the purpose of conducting the investigation process effectively.

- Such a measure that intended to prevent the applicant’s fleeing abroad should be considered legitimate under the state of emergency, since it had been required by the exigencies of the situation.

- Consequently, the Court found no violation of the right to respect for private life.

 

Muzaffer Düzenli

2017/31996

10 November 2021

(Plenary)

 

Inadmissibility of the alleged violation of the prohibition of ill-treatment safeguarded by Article 17 § 3 of the Constitution for being manifestly ill-founded

- Alleged violation of the said prohibition due to being placed in a single-occupancy cell and being allowed access to open air alone and for an hour daily.

- The applicant, detained on remand for attempting to overthrow the constitutional order following the coup attempt of 15 July 2016, was placed in an F Type High Security Closed Prison.

- At a subsequent date, he was taken from a cell accommodating three inmates to a single-occupancy cell within the scope of the measures taken with respect to him by the prison administration. His challenges to these measures were dismissed by the incumbent judicial bodies.

- The individual application with a request for an interim measure lodged by the applicant was dismissed by the Court as his placement in a single-occupancy cell did not pose a severe threat to his life or his physical or mental integrity.

- The single-occupancy cell where the applicant was placed is not in the form of a solitary confinement cell. The cell is compatible with the standards set out in the European Prison Rules issued by the Council of Europe.

- The applicant was also ensured to have several meetings with his family and lawyer. It cannot be therefore said that the applicant, who could always maintain contact with the family, outside world and the other inmates, was kept in isolation in any sense. 

- The condition and length of his detention did not attain the minimum level of severity required to constitute an ill-treatment. 

- Consequently, the Court found a violation of the prohibition of ill-treatment. 

 

Alper Tunga Kuru and Özcan Kaya Güvenç

2016/2486

17 November 2021

(First Section)

 

Violation of the procedural aspect of the prohibition of ill-treatment safeguarded by Article 17 § 3 of the Constitution

-  Alleged violation of the prohibition of ill-treatment due to the lack of an effective investigation into the incident where the applicants had been injured as a result of the use of force by police officers.

- At the material time when a press statement was being issued, the applicants were sitting in a cafe where they were subjected to the physical and verbal violence by the police officers entering the cafe.

- At the end of the investigation, a decision of non-prosecution was issued.

- In the Court’s view, existence of an arguable claim is a pre-requisite for conducting an effective investigation. In the circumstances of the case, given the letters of complaint as well as the medical reports submitted by the applicants, the alleged violation of ill-treatment constituted an arguable claim.

- The incumbent chief public prosecutor’s office failed to conduct a rigorous investigation into the incident, disregarding the points such as obtainment of footages or hearing witnesses; thus, failed to clarify the facts surrounding the incident.

- Consequently, the Court found a violation of the procedural aspect of the prohibition of ill-treatment.

 

Ahmet Gödeoğlu

2018/28616

17 November 2021

(First Section)

Violation of the right to respect for private life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right due to the applicant’s being banned for life from rights and powers granted to him by virtue of his profession as a doctor.

- A criminal complaint had been filed against the applicant, a doctor working in a private hospital, on the ground that he had not paid for the medical devices he had acquired through a financial leasing contract. At the end of the proceedings, he was sentenced to 10 months’ imprisonment as well as imposition of an administrative fine of 80 Turkish liras. His imprisonment sentence was then suspended, and it was later held that there was no ground for its execution. The decision became final with no appeal.

- Subsequently, the applicant’s employment certificate was annulled by the health directorate. The applicant unsuccessfully challenged this administrative act.

- The applicant lost his life after the individual application.

- The grounds relied on the by the inferior courts were neither relevant nor sufficient to justify the impugned interference which did not meet a pressing social need.

- Accordingly, it failed to comply with the requirements of a democratic society.

- Banning the applicant from performing his profession for life even in private sector imposed an excessive burden on the applicant. Thus, the impugned interference was disproportionate.

- Consequently, the Court found a violation of the right to respect for private life.

 

Hilmi Kocabey and Others

2018/27686

17 November 2021

(First Section)

 

Violations of the right to a reasoned decision and the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

-  Alleged violations of the said rights due to award of litigation costs and counsel fee against the applicants and the failure to address the alleged unconstitutionality that had a bearing on the merits of the case.

- Valuation Commissions appraised the unit values for lands on the basis of square-meter for the period of 2018.

- However, legal actions were brought for the revocation of the appraisal by these Commissions as the determined unit values were excessively high compared to those appraised in 2017. 

- Pending the actions, Provisional Article 23 was added to the Real Estate Tax Law, which stipulated that the increase in values considered to be so excessive cannot be over a certain ratio.

- The tax courts found it unnecessary to adjudicate the pending cases, taking into consideration the already-introduced statutory arrangement. The litigation costs and counsel fees were ordered to be covered by the parties.

- The applicants’ appellate requests were dismissed, with final effect, by the regional administrative court.

Alleged Violation of the Right to a Reasoned Decision

-  The complaint as to the alleged unconstitutionality of a provision applied to the pending disputes as soon as being put into force and leaving no margin of appreciation to administrative authorities and courts should be regarded as a substantive claim, which may give rise to the violation of the right to a reasoned decision.

- Although the inferior courts do not necessarily bring every alleged unconstitutionality before the Court for a review, they are to substantiate why they have not found it necessary to bring it before the Court.

- In the present case, the inferior courts failed to provide relevant and sufficient grounds in not addressing the alleged unconstitutionality of Provisional Article 23. 

- Consequently, the Court found a violation of the right to a reasoned decision.

Alleged Violation of the Right of Access to a Court

- The tax courts ordered that the litigation costs and counsel fees be covered by the applicants, as their actions became devoid of subject-matter upon the introduction of the statutory provision in question and therefore no assessment could be made as to the rightfulness of the parties to the actions.

-In the present case, it must be acknowledged that the introduction of Provisional Article 23 pointed out that the public authorities were unjust in so far as it concerned the increase of value over 50% of the unit values determined for 2017.

- Therefore, the award of litigation costs and counsel fees against the applicants had no legal basis.

- Consequently, the Court found a violation of the right of access to a court. 

 

Serap Sivri

2019/6198

23 October 2021

(First Section)

Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to the ineffectiveness of the investigation conducted against public officials for a railway accident resulting in the death of many persons.

- Among those who had lost their lives in the said accident were the applicant’s husband H.T., the latter’s sibling A.T. and A.T.’s children N.T. and M.T.

- At the end of the criminal proceedings, the machinists were convicted, while the chief conductor was acquitted. Following the subsequent complicated appeal process, the machinists were imposed judicial fine which was split into instalments and then suspended. Upon appeal, the Court of Cassation dropped the case due to expiry of the statute of limitations.

- Conducting an effective investigation is not an obligation of result but of means. Thus, the state is not necessarily obliged to complete any proceedings with a decision on conviction.

- The issue to be examined in the present case was whether the proceedings had been conducted with reasonable diligence and expedition.

- In the particular circumstances of the case, such a condition did not seem to have been fulfilled.

- Consequently, the Court found a violation of the procedural aspect of the right to life in so far as it related to H.T.

 

Sevda Ülger

2019/4821

23 November 2021

(First Section)

 

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right due to expropriation of the property replaced through unlawful parcelling.

- Undoubtedly, the expropriation of the property owned by the applicant constituted a violation of her right to property.

- The applicant’s deprival of her property lacked legal basis in that the zoning plan relating to her property had been revoked, and the amendments to the zoning plan had been annulled.

- Consequently, the Court found a violation of the right to property.

 

Yasemin Tekin

2019/25326

23 November 2021

(First Section)

 

Inadmissibility of the alleged violation of the right to education safeguarded by Article 42 of the Constitution as being manifestly ill-founded

- Alleged violation of the said right due to requirement of internship as a precondition for recognition of master’s degree received abroad.

- The legislator is vested with a wide margin of appreciation in restricting the right to education, and the interference with the applicant’s right to education served the legitimate aim of maintaining the quality of education at national scale.

- The impugned internship condition stipulated for accreditation was a proportionate measure. Besides, the applicant was provided access to the institution where she would be able to fulfil the relevant condition.

- Hence, the grounds relied on by the inferior courts were relevant and sufficient.

- The Court found inadmissible the alleged violation of the right to education as being manifestly ill-founded.

 

Cemal Azmi Kalyoncu

2018/5316

8 September 2021

(Second Section)

Inadmissibility of the alleged violation of the right to personal liberty and security as being manifestly ill-founded

- Alleged violation of the said right due to unlawfulness of the applicant’s detention on remand.

- In the aftermath of the coup attempt of July 15th, a number of investigations were launched against many suspects on account of their alleged relationship with the media organisation of the FETÖ/PDY terrorist organisation.

- At the end of the criminal proceedings, the applicant was sentenced to 6 years’ and 3 months’ imprisonment for membership of a terrorist organisation, in addition to the continuation of his detention on remand.

- Upon appeal, the Court of Cassation quashed the first instance decision.

- The incumbent court released the applicant, while deciding on further examination.

- Given the particular circumstances of the case, there was a strong indication of guilt on the part of the applicant.

- Thus, his detention on remand had had factual basis and had not been arbitrary.

- Regard being had to the difficult and complicated nature of the investigations related to the FETÖ/PDY terrorist organisation, as well as to the severity of the imputed offence, the applicant’s detention on remand had been a proportionate measure, and the mere application of conditional bail would remain insufficient.

- Consequently, the Court found inadmissible the alleged violation of the right to personal liberty and security.

 

Süleyman Çamur

2017/36487

8 September 2021

(Second Section)

 

No violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right due to the seizure measure imposed on the applicant’s assets for forcing him to appear before judicial authorities.

- The applicant resides in Brussels, Belgium.

- Within the scope of the investigation conducted, following the coup attempt of 15 July 2016, against certain person for their alleged membership of a terrorist organisation, the applicant’s detention in absentia was ordered, and a seizure measure was imposed on his assets as well as his claims in Turkey. His challenge was dismissed.

- It appears that the aim of the seizure measure was to ensure his appearance before the investigation and prosecution authorities. There was a public interest in ensuring a suspect or accused, who is a fugitive, to be brought before judicial authorities.

- The applicant did not raise a claim that any of his relatives was dependent on, and therefore deprived of, the seized assets: The impugned interference did not place an excessive burden on him, was proportionate and did not upset the fair balance between the public interest and the applicant’s personal interest.

- Consequently, the Court found no violation of the right to property.

 

Gülbiz Alkan

2018/33476

7 October 2021

(Second Section)

 

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom due to the termination of the applicant’s employment contract on account of her expressions towards the mayor’s spouse.

- A shelter where the applicant, a sociologist in the relevant municipality, was serving as a coordinator was closed down by the decision of the same municipality.

- The applicant sent an e-mail to the respondent mayor and also sent a letter to the mayor’s spouse who was a manager at the same municipality, asking for help for the revocation of the impugned decision.

- Her employment contract was thereafter terminated by the municipality. The action brought for her reinstatement was ultimately dismissed.

- It is obvious that the impugned expressions were not targeted at the addressee for insult, but were in the form of criticism towards a public activity being performed.

- The appeal court, ultimately dismissing the action, failed to demonstrate that the impugned expressions were capable of justifying the termination of the employment contract.

- Thus, it also failed to demonstrate that the interference with the applicant’s freedom of expression had met a pressing social need in a democratic society.

- Consequently, the Court found a violation of the freedom of expression.

Press Release

Elif Güneysu

2017/31733

7 October 2021

(Second Section)

No violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom due to the applicant’s appointment to another province on account of certain expressions posted via social media.

- The applicant holding office as a teacher was subjected to a disciplinary investigation for having posted certain expressions in favour of a terrorist organisation via her social media account. At the end of the investigation, she was appointed to another province.

- The applicant’s action for revocation of the impugned appointment was dismissed with no right of appeal.

- The applicant’s expressions should be assessed also in view of the qualifications of the profession of a teacher.

- One of the posts shared by the applicant explicitly glorified a member of the terrorist organisation who had been killed.

- Many of her other posts were related to the trench events and shared on the date when the events were taking place. Although these posts did not include any expression explicitly and directly justifying or glorifying terrorism and violence, the applicant as a public officer was expected to act meticulously while criticising the State’s counter-terrorism policies.

- In dismissing the applicant’s action, the inferior courts held that the continued performance of her profession in the same province might cause public unrest and adversely affect the performance of public service.

- Her appointment thus met a pressing social need in a democratic society, and the inferior courts provided relevant and sufficient grounds in their dismissal decisions.

- Consequently, the Court found no violation of the freedom of expression.

 

II. Constitutionality Review

E.2017/17

22 September 2021

(Plenary)

Annulment of the provision restricting the ability of imprisoners held for certain offences to go outside the penitentiary institution

- The impugned provision, additional sentence of Article 92 § 1 of Law no. 5275 on Execution of Sentences and Security Measures, provides that the chief public prosecutor’s office may restrict, on some grounds, the ability of imprisoners held for certain offences to go outside the penitentiary institution.

- It was argued that the impugned provision constituted a disproportionate and arbitrary interference, thus violating the right to education.

- Pursuant to the contested provision, in order for such a restriction to be effective, there must be written order issued by the competent authority.

- The provision may lead to a situation that may be interpreted as restricting as a whole the chance of going outside the penitentiary institution for any reason.

- Given this indefinite nature of the provision, it may be interpreted so broadly that it may even cover the cases of illness, natural disaster, fire, and etc., which would thus be in contravention of the state’s obligation to protect life as well as physical and spiritual existence of individuals.

- Consequently, the impugned provision has been found unconstitutional, and thus annulled.

 

                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Umut Çongar

2017/36905

21 October 2021

(Plenary)

Violation of the presumption of innocence safeguarded by Articles 36 and 38 of the Constitution

- Alleged violation of the presumption of innocence due to the reliance on the offence, which was previously committed by the applicant and sentence of which was already served, by the inferior courts in convicting him for another offence.

- The applicant had been sentenced to imprisonment for being a member of a terrorist organisation before the date of the incident giving rise to the present application.

- He had served his imprisonment sentence until being released conditionally.

- At a subsequent date, he was sentenced to imprisonment for having attended a meeting and demonstration march held upon a call by a terrorist organisation and distributed flags illustrated with a photo of the terrorist organisation leader to those attending the meeting, which amounted to the offences of disseminating propaganda of the terrorist organisation and committing an offence on behalf of the organisation without being a member of it. 

- On appeal, the Court of Cassation quashed the conviction due to the restriction of the applicant’s right to defence.

- At the end of the retrial, he was sentenced to imprisonment for his membership of the terrorist organisation. On appeal, the Court of Cassation upheld the conviction with a reduction in the length of the imprisonment sentence.

- It has been observed that the first instance court relied, as evidence, not only on the applicant’s attendance at a meeting of an illegal nature but also on his previous conviction for being a member of the said terrorist organisation.

- Such approach will lead to the punishment of those -who were convicted of membership of a terrorist organisation- automatically and anew for membership due to a new act already committed, regardless of whether it has indeed constituted an offence.

- Consequently, the Court found a violation of the presumption of innocence.

 

Mustafa Altın

2018/10018

27 October 2021

(Plenary)

 

Violations of the right to a fair trial and the right to property respectively safeguarded by Articles 36 and 35 of the Constitution

- Alleged violation of the said rights due to the revocation of a final judgment in favour of the applicant, which was upheld by the Court of Cassation, in a personal action and re-examination of the dispute on the merits.

- The applicant, working at a public bank on the basis of an employment contract, brought a personal action against the bank, seeking an extra payment (premium). In line with the finalised decision, the relevant amount was paid to the applicant.

- However, on the request by the defendant bank for an examination of an error of fact, the Court of Cassation quashed the finalised decision, which had been previously reviewed by it, so as to reveal whether the applicant had been already paid premium, as raised by the defendant bank.

- Upon the quashing of the decision by the Court of Cassation, the applicant was ordered, at the end of the retrial, to return the already-paid amount.

- However, according to the legislation in force at the material time, it was not possible to have a finalised court decision subject to an appellate review to the extent that would change the merits of the decision.

- Besides, the defendant bank had failed to assert during the proceedings that it had already paid the impugned premium and to submit the evidence in support thereof. Nor had it raised this consideration during the appellate examination before the Court of Cassation.

- The final and binding decision in favour of the applicant was quashed in the absence of any compelling and exceptional reason.

- Consequently, the Court found violations of the right to a fair trial and the right to property.

 

Hayat Abdulbari and Muhanned Ferdusi

2018/35788

6 October 2021

(First Section)

 

Violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

-  Alleged violation of the said right due to dismissal of the full remedy action concerning death incident, as time-barred.

- The relative of the applicants had died after the falling of a goalpost on his head on the public beach.

- At the end of the investigation launched into the incident, a decision of non-prosecution was issued in respect of those responsible for placing the goalpost.

- The applicants’ subsequent claims for compensation were rejected, and the applicants brought a full remedy action before the administrative court which dismissed the case as time-barred.

- In cases where the damage caused on account of the administrative nature of the said act or the causal link between them were established long after the act, the time-limit prescribed for bringing an action shall start to run after that date.

- Considering as a whole the circumstances, including the fact that the failure of the prosecutor’s office to communicate the decision of non-prosecution to the applicants had resulted in a delay in their being aware of the administrative nature of the impugned act, the Court evaluated that the acknowledgement to the effect that the statutory time-limit for bringing an action had started to run from the date of the impugned death made it extremely difficult for the applicants to bring an action.

- Such an interpretation resulted in the dismissal of the case as time-barred, thus constituting a disproportionate interference with the applicants’ right of access to a court.

- Consequently, the Court found a violation of the right of access to a court.

Press Release

Mehmet Al

2021/6664

6 October 2021

(First Section)

 

Inadmissibility of the alleged violation of the right to education as being manifestly ill-founded

- Alleged violation of the said right due to rejection of a detainee’s request for attending online university classes and exams.

- The applicant, a detainee in relation for the offence of attempting to overthrow the government or preventing it from performing its duties, was also a university student.

- Since the courses and exams were started to be conducted online due to the COVID-19 pandemic, he unsuccessfully submitted a request to the prison administration to attend his courses online.

- Pursuant to the applicable law, allowing the detainees to use internet for the sole purposes such as education and development is at the discretion of the administration.

- Thus, there is no positive obligation incumbent on the administration or the state to ensure the continuation of prisoners’ formal education.

- The conduct of online courses is among the temporary measures taken due to COVID-19.

- Besides, it would be difficult for the prison administration to provide appropriate places for each prisoner demanding to attend online courses, a special attention being paid to the risks posed by the ongoing pandemic.

- Hence, in the present case, there was no positive obligation to impose on the state.

- Consequently, the Court declared the alleged violation inadmissible as being manifestly ill founded.

 

Mahmut Alkan

2018/7436

20 October 2021

(First Section)

Inadmissibility of the alleged violation of the right to life safeguarded by Article 17 of the Constitution as being manifestly ill-founded

- Alleged violation of the said right due to the failure of the authorities to take the necessary measures to prevent a prisoner’s suicide.

- The applicant’s son had been detained within the scope of a criminal investigation. The latter committed suicide with a shoelace in his ward in the penitentiary institution.

- At the end of the investigation conducted into the incident, a decision of non-prosecution was issued. The applicant’s subsequent challenges were rejected.

- Within the scope of the State’s obligations under the right to life, it must prevent the individuals under its supervision against the risks likely to result from the acts of public authorities, other individuals and even the individual himself.

- Thus, the first issue to be examined was to establish whether the prison authorities had known or should have known the existence of a real risk that the applicant’s son might commit suicide.

- The deceased, who had been held in the institution for 25 hours, did not act in a way harming himself; therefore, the authorities could not be considered to have known or should have known the existence of such risk.

- In addition, within the scope of the investigation, the steps taken (such as examination of the decease, conducting an autopsy, crime scene investigation and taking the statements of witnesses) were capable of clarifying the incident and identifying those responsible.

- Accordingly, there had been no case endangering the independence and impartiality of the investigation.

- Consequently, the Court declared the alleged violation of the right to life inadmissible as being manifestly ill founded.

 

Aydın Keskin

2019/4746

17 November 2021

(First Section)

 

Violation of the procedural aspect of the right to life safeguarded by Article 17 § 1 of the Constitution

-  Alleged violation of the said right due to the lack of an effective investigation into the traffic accident leading to the death of the applicant’s spouse.

- The applicant’s spouse lost her life on account of a traffic accident. At the end of the ex-officio and immediate investigation into the accident, her cause of death was revealed to be head trauma and extensive loss of blood due to the injury to the right leg.

- The driver of the first car, M.E.N., hitting the deceased noted that he had hit her with the left mirror of his car, and another X-branded, white car with plate number 34 had subsequently passed over her.

- The law enforcement officers found established that during the said hours, 3 cars with the defined properties were at the accident scene; but as these persons were residing in another provinces and could not be reached, they could not be heard as a suspect.

- The applicant filed a criminal complaint against the drivers of both the first and second cars. Therefore, he requested the identification of the driver of the second car who had fled the accident scene.

- Relying on the report issued by the Forensic Medicine Institute where it was indicated that the main responsibility was on the part of the deceased, and M.E.N. had no fault in the accident, the chief public prosecutor’s office issued a decision of non-prosecution with respect to M.E.N. for causing death by gross negligence.

- However, the prosecutor’s office did not conduct an investigation to identify the driver of the second car, stating that it had been the deceased bearing main responsibility for the accident and it was a futile attempt to identify the driver who had passed over the deceased’s legs.

- The prosecutor’s office disregarded the finding that one of the causes giving rise to the impugned death was the severe loss of blood due to the injury to the right leg. 

- Consequently, the Court found a violation of the procedural aspect of the right to life.

 

Muhammet Serkan Şener

2016/13501

17 November 2021

(First Section)

No violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom due to the applicant’s appointment on account of his expressions in his social media account.

- The applicant, holding office as a teacher, shared certain posts through his social media account during the period when the Gezi Park events were taking place.

- Taking a screenshot of the impugned posts, the administration of the school where the applicant was serving initiated a disciplinary investigation.

- Imposed a disciplinary and administrative sanctions, the applicant was appointed to another school within the same province.

- He successfully brought an action for annulment of his appointment. However, on appeal, the regional administrative court quashed the first instance court and dismissed the action, with final effect, stating that the applicant’s appointment to another school had been in pursuance of public interest and requirements of the public service.

- It should be acknowledged that in case of any unfavourable bearings on the public service they provide, public officers may be subjected to certain restrictions not only in the professional sphere but also in the sphere of private life.

- They may be accordingly imposed a proportionate disciplinary sanction, provided that the administrative and judicial authorities submit relevant and sufficient grounds to demonstrate that a given act of the public officer has a bearing on his public service.

- Besides, the appointment of public officers for any reason whatsoever cannot be considered as an automatic punishment or does not automatically give rise to a violation of the constitutional rights.

- Nor did the Court observe that the impugned appointment had been performed in a way that would cause a punitive effect on the applicant’s life.

- As a matter of fact, the incumbent courts relied on the ground that his continued performance at the same school might have unfavourable bearings on both the applicant himself and his workmates.

- The impugned act was found to meet a pressing social need and be proportionate.

- Consequently, the Court found no violation of the freedom of expression.

 

Barış İnan (2)

2018/38006

17 November 2021

(First Section)

 

Inadmissibility of the alleged violation of the freedom of expression for being manifestly ill-founded

- Alleged violation of the said freedom due to being imposed a disciplinary sanction for chanting slogans at a penitentiary institution.

- The applicant, serving his imprisonment sentence as a convict for having committed a terrorist offence, was imposed a disciplinary sanction as 28 prisoners including him had chanted slogans at the penitentiary institution to protest a statutory arrangement that had been already introduced.

- His challenges were dismissed by the incumbent courts.

- Freedom of expression, which is of vital importance for the functioning of democracy, is not, however, an absolute right and may be subject to certain restrictions.

- In the present case, the impugned interference aimed at maintaining security and order at the penitentiary institution.

- Besides, as those chanting slogans were the prisoners convicted of terrorist offences, the impugned act could be qualified as a collective and systematic action that would contribute to the maintenance of allegiance to the terrorist organisation in question.

- The impugned disciplinary sanction was found to meet a pressing need and be proportionate.

- Consequently, the Court declared inadmissible the alleged violation of the freedom of expression.

 

Adem Erdem

2018/13415

29 June 2021

(Second Section)

 

Violation of the principle of equality of arms within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said principle due to dismissal of the reinstatement case upon the witness’ refusal to testify.

- The applicant had been forced to resign for his alleged membership of a terrorist organisation. - One of his colleagues had witnessed the resignation process; thus, the applicant requested that he be heard as a witness during the reinstatement proceedings before the court. However, the latter then refused to testify by submitting a petition to the court, fearing that it would negatively affect his interests in the workplace.

- Thereupon, the trial court dismissed the applicant’s case without making any assessment on the witness’ refusal to testify. The applicant’s subsequent challenges were also rejected.

- According to the Court, the trial court should have examined whether the witness relied on justified grounds.

- The applicant was put into disadvantageous situation vis a vis the defendant employer.

- The incumbent courts’ failure to strike a balance impaired the fairness of the proceedings as a whole.

- Consequently, the Court found a violation of the principle of equality of arms within the scope of the right to a fair trial.

 

Kadir Kudin

2018/14509

8 September 2021

(Second Section)

Violation of the right to life safeguarded by Article 17 of the Constitution in so far as concerns the obligation to conduct an effective investigation

- Alleged violation of the said right due to the death of the applicant’s relative on account of use of force by police officers and lack of an effective investigation.

- The applicant’s son, A.K., lost his life at a hospital after being exposed to extensive tear gas by police officers who were intervening in the demonstrations held to protest the events taking place in the Syrian town of Kobani.

- The chief public prosecutor’s office initiated an investigation into the incident at the end of which a decision of non-prosecution was rendered. The applicant’s challenge to this decision was also dismissed.

- There were various omissions during the investigation: the autopsy report was issued about 1,5 years after the incident; statements of the doctors, who -as asserted by the applicants- had stated that “the tear gas might affect the deceased’s heart and brain”- were not taken; the discrepancies between the two police reports were not elucidated; and the police officers involved in the incidents were not heard as either a witness or suspect.

- The investigation conducted into A.K.’s death was not capable of elucidating the circumstances surrounding the impugned death and identifying those responsible.

- Consequently, the Court found a violation of the right to life in so far as concerns the obligation to conduct an effective investigation.

 

Necla Yaşar

2020/35444

14 September 2021

(Second Section)

 

Violation of the right to a reasoned decision under the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to the appellate authority’s failure to separately and explicitly address the claims that might change the outcome of the decision.

- The applicant was imposed an administrative fine by the district security directorate for breaching the social distancing rule set within the scope of coronavirus pandemic.  

- Asserting that it was not the security directorate authorised to impose an administrative fine pursuant to the relevant legislation, the applicant challenged the fine. It was, however, dismissed. Her subsequent appeal was also dismissed by the magistrate judge.

- The judicial authorities failed to provide, in their decisions, separate and explicit explanations as to the applicant’s substantial claims that might have a bearing on the outcome of the proceedings.

- Consequently, the Court found a violation of the right to a reasoned decision under the right to a fair trial.

 

Cahide Demir

2018/25663

14 September 2021

(Second Section)

 

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right due to the refusal to revoke the mortgage placed on the immovable as a security of third person’s claim.

- A mortgage was placed on E.K.’s immovable as a security of the home loan he had received from a bank.

- Following the full payment of the loan by E.K., he requested the bank to lift the mortgage. It was not, however, lifted by the bank due to another debt to a third party which was secured against the same bank’s cheque.

- The applicant’s action for lifting of the mortgage was concluded in her favour. However, the regional court of appeal quashed the first instance decision and dismissed the action.

- Although, there were discrepancies, as to the scope of the mortgage, in the first and second pages of the relevant mortgage bond, it could not be construed to cover all debts to third parties. The scope of the mortgage was thereby extended.

- The applicant was therefore placed a disproportionate burden in breach of the positive obligations inherent in Article 35 of the Constitution. 

- Consequently, the Court found a violation of the right to property.

 

II. Constitutionality Review

E.2018/93

10 October 2021

(Plenary)

Dismissal of the request for annulment of the provision precluding the liability of those appointed as trustee arising from their duties and acts

- The impugned provision, amending second sentence of Article 20 § 1 of Law no. 6758, provides that those appointed as trustee shall not be held liable in legal, administrative, financial or criminal terms for their assigned duties and acts.

- It was argued that the relevant provision might lead to irresponsible acts on the part of the trustees concerned by providing them immunity in terms of their potential illegal acts, and that the state of emergency regime should not be interpreted as suspending the rule of law. Thus, the provision was claimed to be unconstitutional.

- According to the Court, it is undisputed that the contested provision does not cover unlawful, tortious or criminal acts, as well as that it does not prevent the conduct of judicial proceedings against those committing such acts.

- Hence, the provision falls within the discretion of the legislator and does not run contrary to the principle of rule of law.

- Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed.

 

E.2018/135

13 October 2021

(Plenary)

Annulment of the provision allowing for the return of a certain part of the value added tax paid by SporToto Organisation to a special account opened in the name of the same Organisation

- The request concerns the statutory provision added to Law Regulating Taxes, Funds and Shares on the Proceeds from Games of Chance.

- It is maintained that the return of a certain part of value added tax (VAT), already paid by the Organisation, to its special account for being used in the Organisation’s investment and management costs hinders the exercise of the budgetary right belonging to the Grand National Assembly of Turkey.

- VAT is among the taxes subject to principles enshrined in the Constitution.

- In principle, any tax cannot be allocated for the financing of public services from which the society does not collectively benefit.

- However, in the contested provision, a certain part of VAT paid by a tax-payer is envisaged to be returned to the same tax-payer for the financing of its expenses, which is in breach of the principle that taxes must be used for expenses incurred by all public.

- Consequently, the Court found the contested provision unconstitutional and thus annulled it.

 

                        

Case

Decision

Case-Law Development

Related

I. Individual Application

T.A.

2017/32972

29 September 2021

(Plenary)

Violation of the right to life safeguarded by Article 17 of the Constitution in so far as concerns the obligations to afford protection and to conduct an effective investigation

- Alleged violation of the said right due to the death of the applicant’s daughter for the public authorities’ failure to effectively implement the protective and preventive measures ordered so as to prevent the violence against women and lack of a criminal investigation against the public officers being negligent in the incident.

- The applicant’s daughter S.E., divorced from her husband V.A. in 2013, was subjected to insults and threats several times by V.A. after divorce.

- S.E. reported these incidents to law enforcement officers and filed criminal complaints against V.A. as a result of which an interim measure was ordered.

- The last interim measure ordered against V.A., in the form of a restraining order, was not however served on him.

- S.E.’s request for the termination of V.A.’s relation with their joint child as she had been in fear of her life was disregarded.

- On the day when the last interim measure expired, S.E. was killed by V.A. during the delivery of the joint child to the latter.

- V.A. was sentenced to imprisonment. No leave to initiate a criminal investigation against the public officers being allegedly negligent was granted. The applicant’s complaint was dismissed by the public authorities and the regional court of appeal.

- It is obvious that Law no. 6284 sets forth relevant principles and procedures with respect to measures to be taken for the protection of women, children and family members exposed to or potentially exposed to violence: the established legal system is sufficient.

- The public authorities were indeed aware of the imminent and real risk to S.E.’s life but failed to take and implement necessary measures to protect her.

- The procedure whereby leave is sought for an investigation against the responsible public officers should not be applied in a way that would give the impression that it would hinder the effective conduct of investigation or the public officers are exempted from criminal investigation.

-Accordingly, the Court found a violation of the right to life in so far as concerns the obligations to afford protection and to conduct an effective investigation.

 

Mehmet Alanç and Others

2017/15462

29 September 2021

(Plenary)

 

Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution as regards the applicant Mehmet Alanç; but no violation as regards the other applicants

- Alleged violation of the said right due to the imposition of a disciplinary sanction on the applicants for attending a meeting.

- The applicants, public officers and members of a union, attended a meeting where slogans were changed in favour of the terrorist organisation, PKK; banners with photos of members of the terrorist organisation were unfurled; and security officers were attacked.

- The applicants were imposed a disciplinary sanction of warning for having acted in breach of the dignity and reputation of public officers.

- The administrative and inferior courts dismissed the applicants’ action for revocation of the said sanction.

- The impugned meeting which was initially of a peaceful nature then turned into an activity involving violence where propaganda of the terrorist organisation was disseminated.

- In case of terrorism, all public officers are expected to act in compliance with the gravity of their profession and their duty to be loyal to the Constitution.

- The impugned meeting was an explicit attack and defiance against the Turkish Constitution, human rights, basic constitutional principles and fundamental values of the Turkish Republic.

- The disciplinary sanction imposed on Mehmet Alanç was found to be compatible with the requirements of a democratic society as he did not leave the meeting after it had turned to a terrorist propaganda.

- However, the sanctions imposed on three other applicants were found not to be compatible with the requirements of a democratic society and meet a pressing social need as they had left the meeting before it became devoid of its peaceful nature.

 

Vedat Oğuz

2018/35120

15 September 2021

(First Section)

 

Violation of the right to property safeguarded by Article 35 of the Constitution

-  Alleged violation of the said prohibition due to the withdrawal of a vehicle, sold by tender by enforcement office, without any refund for being a stolen property.

- The applicant brought an action before the civil court against the relevant department of the Ministry of Justice, seeking the redress of the damage sustained by him as the vehicle he had purchased from the enforcement office was revealed to have been stolen, as well as the deletion of the record of his ownership.

- The civil court ordered the defendants to reimburse to the applicant the sale price and the incurred costs.

- On appeal, the regional court of appeal quashed the first instance decision and dismissed the case with final effect, on the ground that any change in vehicle chassis number could be noticed only by experts and therefore, the enforcement office had no responsibility.

- Compulsory enforcement offices must take certain measures to protect the interests of all parties, namely creditor, debtor and those purchasing seized properties, as well as to protect the properties subject to execution.

- The public authorities failed to make every effort to protect the applicant’s right to property, and the relevant administration acted in breach of its “obligation to inspect and control”.

- The impugned measure placed an excessive burden on the applicant and was disproportionate.

- Accordingly, the Court found a violation of the right to property.

 

Hilal Erdaş

2018/27658

6 October 2021

(First Section)

 

Violation of the right to respect for family life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right on account of the court decision ordering the joint exercise of the custody of the child in common by the parents.

- In the present case, the parents divorced by mutual consent, and the custody of the child was entrusted to the father. At the end of the proceedings initiated by the applicant seeking the change of custody, it was held that the custody would be exercised jointly by the parents.

- The procedures and principles regarding the joint exercise of custody by the parents or the termination of such practice were not separately and explicitly regulated in the relevant legislation.

- The primary objective in cases related to custody and establishment of personal relationship is to determine what serves the best interest of the child by considering the claims of the parties as well as the available evidence. Indeed, a fair balance is to be struck between the parents’ interests and the child’s interests, in pursuance of the best interest of the child.

- Considering the proceedings as a whole, it has been observed that the applicant did not consent to the implementation of the joint custody procedure and explicitly raised an objection in this regard, and that the father did not apparently request the joint exercise of custody.

- It has been concluded that the judicial authorities failed to carry out the proceedings with due diligence paying regard to the guarantees set forth in the Constitution concerning the right to respect for family life as well as the principle of the best interest of the child.

- Consequently, the Court found a violation of the right to respect for family life.

Press Release

II. Constitutionality Review

E.2021/43

13 October 2021

(Plenary)

Dismissal of the request for the declaration null and void of the Law on Security Clearance Investigation and Archive Inquiry as well as of the request for its annulment as not being unconstitutional in form

- The request concerns the Law no. 7315 on Security Clearance Investigation and Archive Inquiry.

- It was maintained that Law no. 7315 was null and void and unconstitutional in form.

- Laws may be considered to be null and void only when there exist no compulsory conditions for their existence.

- On other hand, unlawfulness means that any given norm is not compatible with the principles and procedures prescribed by law.

- Therefore, in cases where any law or provision is found to be unconstitutional, it is not declared null and void but annulled.

- The constitutionality review of laws in form is confined merely to the question whether the requisite majority was obtained in the last ballot, as explicitly set forth in Article 148 of the Constitution.

- The Law no. 7315 was adopted in the Parliament by obtaining the requisite majority.

- Accordingly, the Court dismissed the request for declaration of Law no. 7315 null and void as well as the request for its annulment as not being unconstitutional in form.

 

E.2020/91

13 October 2021

(Plenary)

Dismissal of the request for the annulment of the contested provisions allowing for an increase in sentences prescribed for offences committed against health-care professionals and hindering the suspension of imprisonment sentence in case of such offences

- The contested provisions set forth that in case of intentional injury and insult committed against health-care professionals, the penalty to be imposed shall be increased by half, and that the suspension of imprisonment sentence, as envisaged in Article 51 of the Turkish Criminal Code, shall not apply to the offences of intentional injury, threat and insult committed against these professionals.  

- It was maintained that the increase of penalty by half amounted to a repeated punishment; granting such a privilege to health-care professionals was contrary to the principle of equality before the law; and the denial of suspension of imprisonment sentence would give rise to inequality between the health-care professionals and the officers in the same legal position with them.

- On condition of being bound by the Constitution, the law-maker has discretionary power to determine, inter alia, which acts would be criminalised and the aggravating and mitigating factors. However, in exercising this discretionary power, the law-maker must also observe the proportionality principle.

- The contested provisions aim at preventing the commission of such offences against health-care professionals.

- They do not make any distinction between the health-care professionals of private institutions and those of public institutions.

- However, it is obvious that they introduce arrangements merely in favour of the health-care professions although other public officers are in the same status with them.

- Whether there are any objective and reasonable basis to justify this privilege: the increase in the number of offences committed against health-care professionals was considered as an objective and reasonable basis.

- Accordingly, the Court found the contested provisions constitutional and thus dismissed the request for their annulment.

 

E.2021/37

13 October 2021

(Plenary)

 

Dismissal of the request for annulment of the provisions regulating the procedure for sending notice to the residential address

- The impugned provisions, namely Article 102 § 5 (3-5) of the Tax Procedure Law no. 213, stipulates that in cases where the taxpayer cannot be found in his residential address twice to receive the official notification, the postal officer places a note on the former’s door, stating that the notification document has been returned to the incumbent administration. Thus, if the notification was received on any day by the taxpayer within fifteen days, it would be deemed to have been made on that day, while if he did not receive the notification within the prescribed period, he would be considered to have received the notification on the fifteenth day.

- It is maintained that the contested provisions do not comply with the principles of legal security, certainty and foreseeability, infringing the Constitution.

- The Court considers otherwise, since the procedure to be followed so as to send notice has been regulated precisely and clearly beyond any doubt, thus making them certain, accessible and foreseeable.

- The impugned provisions pursue a legitimate aim within the scope of the Constitution.

- Besides, the disputes likely to arise from the application of the impugned provisions may be brought before the courts.

- Considering as a whole, a fair balance is struck between the public interest in the legitimate aim sought to be achieved through the provisions and the personal interest in terms of the right of access to a court.

- Consequently, the impugned provisions have been found constitutional, and therefore, the request for their annulment has been dismissed.

 

                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Erol Eşrefoğlu

2018/23111

 

Behzet Çakar and Others (2)

2019/2333

1 July 2021

(Plenary)

No Violation and Violation, in respective applications, of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the said right due the failure to enforce the Constitutional Court’s judgment finding a violation.

- The applicants, upon the finalisation of their sentences, applied to the Court. The latter, finding a violation, ordered retrial with regard to both applicants. However, the assize court dismissed the applicants’ request, thus finalising their sentences. Thereupon, they lodged an individual application again.

As regards the applicant Erol Eşrefoğlu

- The Court’s judgment finding a violation ordered retrial but contained no other type of redress or action, such as revocation of the trial court’s judgment.

- It is at the discretion of the inferior courts to suspend the execution of the imprisonment sentence during retrial.

- Accordingly, within the scope of Article 19 § 2 of the Constitution, the continued execution of the applicant’s sentence did not contravene the law.

- Consequently, the Court found no violation of the right to personal liberty and security.

As regards the applicant Behzet Çakar

- The Court’s judgment finding a violation ordered retrial as well as revoked the trial court’s judgment.

- In this regard, the inferior court should have complied with the Court’s judgment, thus revoking its previous judgment.

- However, it failed to stay the execution of the applicant’s sentence.

- Consequently, the Court found a violation of the right to personal liberty and security.

 

Ahmet Devlethan

2018/11772

20 October 2021

(First Section)

 

Violation of the right to respect for private life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right due to the applicant’s appointment by the administration.

- The applicant, a public officer at a Municipality, requested to be appointed as a director for having successfully passed the exam for promotion of the officers. However, it was dismissed. At the end of the proceedings he initiated, the court annulled the administration’s act. Thereafter, the applicant was appointed to the Development and Urban Planning Directorate.

- Six day after his appointment, he was appointed as a civil work director by the administration. The court, handling the applicant’s request for annulment of the administration’s act, decided in his favour. However, despite the court’s decision annulling the impugned appointment, he continued to serve as a civil work director until his temporary appointment to another position by the administration.

- The applicant then brought an action for annulment of his temporary appointment, which was annulled by the first instance court. On appeal by the administration, the appellate court revoked the first instance decision and dismissed the action with final effect, referring to the broader margin of appreciation afforded to the mayors in appointment of directors/managers.

- The administration failed to demonstrate concrete issues necessitating the applicant’s temporary appointment.

- Besides, the appellate authority, dismissing the applicant’s action, made no assessment as to the grounds relied on by the first instance court and the applicant’s claims and objections. It merely referred to the broad margin of appreciation afforded to the administration in this respect.

- The impugned interference was not compatible with the requirements of a democratic society.

- Accordingly, the Court found a violation of the right to respect for private life.

 

                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Nuriye Gülmen and Semih Özakça

2017/27678

15 September 2021

(First Section)

No violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the said right due to the alleged unlawfulness of detention ordered on the basis of the evidence previously examined.

- The applicants, an academic and a teacher, were dismissed from public service in accordance with a Decree Law issued during the state of emergency period declared in the aftermath of the coup attempt of July 15.

- Thereupon, the applicants first staged a sit-in for their reinstatement, and then went on hunger strike in protest against their dismissal.

- Having been taken into custody, they were released on conditional bail within the scope of the investigation launched. At the end of the investigation, the applicants were indicted for membership of a terrorist organisation as well as disseminating terrorist propaganda.

- Meanwhile, another investigation was launched against the applicants, and they were taken into custody again. Afterwards, they were detained on remand for membership of a terrorist organisation as well as contravening the Law no. 2911 on Meetings and Demonstration Marches. Another criminal case was initiated against the applicant, which was joined with the previous one. At the end of the proceedings, while the second applicant was acquitted, the first applicant was detained on remand. Appeal proceedings have been still pending.

- According to the Court, as regards the lawfulness of detention, there was a strong indication of the applicants’ having committed an offence in relation with the terrorist organisation.

- Subject matter the investigations and the offence underlying the applicants’ detention was their alleged membership of the terrorist organisation.

- Obviously, the second indictment was based on the applicants’ activities which they had performed after the first indictment had been issued. Thus, both accusations were based on different grounds.

- Regard being had to the gravity of the imputed offence, namely membership of a terrorist organisation, measures stricter than conditional bail were required. Therefore, the applicants’ detention on remand had been neither arbitrary nor unjustified.

- Consequently, the Court has found no violation of the right to personal liberty and security.

 

Metin Bekiroğlu and Özgür Atagün

2018/35266

15 September 2021

(First Section)

 

Violation of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to the lack of an effective investigation into the incident where the police fired at a public transportation vehicle carrying civilians.

- While the applicants had been going from Diyarbakır Province to Lice District by a public transportation vehicle, an armoured police vehicle had fired at the vehicle they had been in.

- At the end of the investigation launched into the incident, a decision of non-prosecution was issued.

- The relevant investigation was conducted for the offence of causing damage to property, not for the risk posed to the lives of the civilians in the vehicle.

- The reasoning of the decision of non-prosecution was unclear. The magistrate judge’s decision on extension of the investigation was also dismissed with no convincing explanation.

- The incumbent chief public prosecutor’s office failed to conduct a rigorous investigation capable of clarifying the incident and identifying those responsible.

- Hence, the investigation process lacked effectiveness.

- Consequently, the Court has found a violation of the right to life in so far as it is related to the obligation to conduct an effective investigation.

 

                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Mahir Engin Çelik and Sakine Esen Yılmaz

2016/8776

7 September 2021

(First Section)

Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

- Alleged violation of the said right due to imprisonment for inciting people to an illegal meeting.

- Provincial Organization of a political party notified the Governor’s Office that an open-air meeting would be held on 20 March 2012 for celebrating Newroz. The latter indicated that their request would be evaluated in accordance with the circular issued by the Ministry of Interior, which stated that the Newroz celebrations would be held only on 21 March 2012.

- The applicants, directors of a labour union, attended the press statement held on 19 March 2012. The applicants had been told that the necessary actions had been taken challenging the circular issued by the Ministry and that, therefore, the celebrations would be held on 20 March 2012 as previously determined.

- At the end of the event, while the applicants were preparing to distribute the invitation leaflets for the Newroz celebrations planned to be held on 20 March 2012, they were taken into custody by the security officers, and the leaflets were seized.

- Criminal proceedings were instituted against the applicants for inciting people to an illegal meeting and demonstration march on grounds of distributing the aforementioned leaflets. Hence, they were sentenced to 3 years and 4 months’ imprisonment.

- Any interference with the right to assembly can be justified only if it is convincingly demonstrated that it meets a pressing social need and is proportionate.

- In the present case, there is no doubt that the applicants had been aware of the circular. However, it could not be demonstrated, beyond any doubt, that they had been aware of the ban imposed by the Governor's Office.

- The inferior courts also failed to demonstrate the existence of a concrete and strong relationship between the leaflets the applicants had wanted to distribute and the violent acts that occurred on 20 March 2012.

- Thus, it has been concluded that the inferior courts failed to provide relevant and sufficient reasons to justify the applicant’s conviction in addition to the seizure of the invitation leaflets, as well as the existence of a fair balance between the competing interests.

- Consequently, the Court has found a violation of the right to hold meetings and demonstration marches.

Press Release

Ali Hizmetçi and Others

2017/18232

7 September 2021

(First Section)

 

Inadmissibility of the alleged violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

- Alleged violation of the said right due to the applicants ‘conviction for having participated in a demonstration protesting the Gezi Park events.

- The inferior court concluded that the demonstration had lost its peaceful nature, that the social life had been affected by violent acts, and that the public order had been disturbed. Accordingly, the demonstration that was no longer peaceful was regarded as illegal.

- The demonstrators, including the applicants, refused to disperse despite the several warnings made by police officers, and the violent acts increased. It was also found that the applicants had attacked the officers during the said events.

- The pronouncement of the judgment against the applicants was suspended, and they were released on probation for five years.

- A fair balance was struck between the protection of the public order as well as the rights of others and the right to hold meetings and demonstration marches.

- Consequently, the Court has found inadmissible the alleged violation of the right to hold meetings and demonstration marches.

 

                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Malaklar İnş. Taah. Gıd. Mad. San. ve Tic. A.Ş. (2)

2018/3296

30 June 2021

(First Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right for the failure to conclude the debt enforcement and bankruptcy proceedings initiated by the applicant for the collection of his receivable and the impossibility of its collection by any other means as the cooperative’s assets were regarded as assets belonging to the State.

- The applicant company having concretes for the construction of houses by a cooperative, following an earthquake taking place in a province, initiated debt enforcement proceedings against the said cooperative for the collection of the relevant amount.

- However, he could not obtain any result as cooperatives’ assets, rights and claims are in the form of an asset belonging to the State.

- The aim of the statutory provision which bans the levying of an attachment on the State’s assets is to prevent any interruption likely to occur in any public service and post which are to be provided uninterruptedly.   

- On the other hand, in fulfilling its positive obligations, the State must also take into consideration the interests of a creditor.

- In the present case, the debt was incurred by the applicant company due to the use of concretes provided by it during the construction of the said houses after an earthquake.

- The applicant company was thereby put under a responsibility that should have been undertaken by the society as a whole after a natural disaster. Nor could it effectively avail the procedural safeguards inherent in the right to property.

- The State failed to fulfil its respective positive obligations.

- Accordingly, the Court found a violation of the right to property.

 

B.Y.

2018/30296

7 September 2021

(First Section)

 

Violation of the right to the protection of personal data under the right to respect for private life safeguarded by Article 20 of the Constitution

-  Alleged violation of the said right due to the use of unlawfully obtained personal data during divorce proceedings.

- The applicant filed a criminal complaint against her spouse as the personal data submitted by the latter to the court during the divorce proceedings had been obtained via a spyware installed on the former’s mobile phone.

- The criminal court acquitted the applicant’s spouse as he had not disclosed such data through media, publication, internet or any other means but merely relied on it during the divorce proceedings. The regional court of appeal upheld the decision.

- The State is to take preventive measures so as to prevent the unlawful obtaining, processing and disclosure of personal data as well as to show deterrent judicial reactions to those who have performed such acts.

- Besides, its positive obligation to set up an effective judicial system necessitates the conduct of an effective criminal investigation and prosecution into such unlawful acts.

- In the present case, the inferior courts failed to make an assessment as to the way in which the applicant’s personal data had been obtained, the scope of obtained data and the question whether the impugned act had a legitimate aim.

- The inferior courts’ approach, which could lead to the impression that the spouses had no sphere of private life against each other, was obviously contrary to constitutional safeguards.

- Accordingly, the Court found a violation of the right to the protection of personal data.  

 

Ali Sadet and Others

2018/6838

8 June 2021

(Second Section)

 

Inadmissibility of the alleged violation of the right to life for its being manifestly ill-founded

- Alleged violation of the said right due to the imposition of judicial fine on a public officer who was charged with neglect of duty for failing to prevent the suicide bomb attack.

- Certain persons alleged to be a member of a terrorist organisation gathered at the yard of a municipal facility to make a press statement during which a person detonated the bombs on his body and caused several persons’ death and injury.

- The proceedings against those having involved in the bomb attack are still pending.

- On the other hand, the inspectors assigned by the Ministry of Interior requested the governor of the relevant province to grant permission for an investigation against the public officers A.Ç. and M.Y. as they had failed to take the necessary security measures.

- The governor granted permission for an investigation only against M.Y., who was ultimately imposed a judicial fine of 7,500 Turkish liras.

- The applicants maintained that the public officer, M.Y., neglected performing his duties for failing to take the necessary measures to prevent the suicide bomb attack although it had been allegedly known beforehand to the public authorities.

- However, the applicants did not adduce any concrete evidence to substantiate their allegations but merely made a reference to certain news articles.

- Indeed, these news articles contain no information concerning the relevant authorities’ prior knowledge of the impugned bomb attack as well as the failure to take the necessary measures.

- The applicants alleged that the suicide bomber had been wanted by the security officers as “a fugitive related to terrorism”. However, this was not due to the impugned attack or any suspicion thereof but to the risk of the suicide bomber’s fleeing abroad to join the terrorist organisation camps.

- Therefore, it cannot be said that the suicide bomber constituted a clear and imminent risk for the lives of the applicants’ relatives; and that this had been already known or should have been known to the public authorities.

- The imposition of judicial fine on M.Y., instead of an imprisonment, did not give rise to a violation of the procedural aspect of the right to life.

- Accordingly, the Court declared the alleged violation of the right to life inadmissible for being manifestly ill-founded.

 

İbrahim Moran

2016/14675

29 June 2021

(Second Section)

 

Violations of the liability to protect life and the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the said liability and right due to the failures to take measures so as to prevent the death of a prisoner, as well as to conduct an effective investigation into the incident.

- The applicant’s son, S.M., fell sick for being a drug dependence while he was in a prison. Following the check of his pulse and blood pressure at the prison’s infirmary, he was then taken to his ward.

- On the same day, after falling sick, his ward-mates tried to intervene with his sickness by pouring cold water on him. Despite the medical intervention by 112 emergency team arriving at the incident scene, S.M. lost his life.

- At the end of the criminal investigation conducted into the incident, a decision of non-prosecution was issued.

- Besides, at the end of the disciplinary investigation conducted by the prison administration against the officers in charge and S.M.’s ward-mates, the administration found no ground to impose any sanction on these persons.

- The prison administration was aware of S.M.’s drug dependence. Although his medical condition was checked through security cameras, he was not provided with an appropriate treatment and not taken to a health-care institution. 

- The applicant alleged that there were interruptions in the camera footage obtained from the prison and that there was no information that the officers had intervened with the incident on time and in an appropriate manner.

- These allegations were not addressed by the chief public prosecutor’s office which also failed to take into consideration the provision of no treatment for S.M., who had been diagnosed to be drug addicted while being placed in the prison: lack of an effective criminal investigation.

-Accordingly, the Court found violations of the liability to protect life and the procedural aspect of the right to life.

 

II. Constitutionality Review

E.2020/9

3 June 2021

(Plenary)

Review of the requests for annulment of certain provisions of the Law no. 6136 on Firearms, Knives and Other Tools

A. Provision concerning those allowed to carry arms by presidential decisions

- The impugned provision allows the public officials as well as the officials and members of the municipality, private administration and state economic enterprises to carry or hold at their residence or workplace firearms in accordance with a presidential decision

- It is claimed that the impugned provision is unconstitutional, since the authority set forth therein is open-ended, and the principles regarding the use of such an authority as well as its limits are not defined.

- The Constitution contains no regulation regarding the authority to possess and carry firearms. Thus, the authority to determine the procedures and principles regarding the permission to be granted for possessing and carrying firearms is at the discretion of the legislator.

- Besides, granting permission for possessing and carrying firearms has no concern with fundamental rights and freedoms.

- The impugned provision, which is at the discretion of the legislator, does not contradict the principle of a state governed by rule of law.

- Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed.

 

B. Provision enabling the governors to issue a certificate for possessing and carrying arms

- The impugned provision stipulates that those who have been granted a certificate by the governors in accordance with the principles to be determined in the regulation issued by the President may possess and carry firearms.

- The impugned provision is claimed to be unconstitutional in that the authority set forth therein, which is granted to the President, is open-ended, and the principles regarding the use of such an authority as well as its limits are not defined and might be used arbitrarily, which is in breach of the principle of a state governed by rule of law.

- It is clear that the issue set out in a regulation is not related to fundamental rights and freedoms and that it is not required to be prescribed exclusively by law.

- The authority to grant the gun licence as well as the principles to be taken into consideration in this regard is clearly set forth therein.

- In this respect, the general framework as well as the legal basis of the said regulation cannot be said to have not been specified in the Law. Nor can the provision be claimed to be indefinite.

- Thus, the fact that the legislator, having determined the legal framework concerning an issue not required to be prescribed exclusively by law, leaves the authority to regulate the specific issues within this framework to the administration is not contrary to the principles of legal certainty and non-transferability of legislative power.

- Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed

 

C. Phrase included in amended Article 7 § 1 (7) of Law no. 6136

- The impugned provision stipulates that among those who have served as village or neighbourhood headman or mayor for at least one term, the ones who have been dismissed from office as a result of an investigation and in accordance with a final court decision and who have been a member of or have a relation or connection with terrorist organisations or structures, formations or groups determined by the National Security Council (MGK) to have acted against the national security of the state should not be allowed to carry and possess firearms.

- The impugned provision is claimed to be unconstitutional in that the concepts specified therein are vague and unforeseeable; that pursuant to the Constitution, the MGK is not authorised to take an executive decision; and that granting such an authority to the MGK is in breach of the principle of equality, and contradicts the principle of legality of crimes and punishments as well as presumption of innocence.

 

1) Provision not allowing those determined by the MGK to possess firearms

- The legal nature of the MGK’s decisions is explicitly defined in Article 118 of the Constitution. Accordingly, the decisions to be taken by the MGK are of advisory nature and shall be submitted to the President.

- Implementation of the MGK’s decisions in the absence of another executive decision does not comply with the wording of the Constitution.

- Consequently, the impugned provision has been found unconstitutional, and therefore, it has been annulled.

 

2) The remainder of the impugned provision

- The impugned provision aims to prevent the threat and risk that might be posed to the public order and national security. In this regard, considering the public interest sought to be achieved by the provision, not allowing the persons specified therein to possess and carry firearms comply with the principle of a state governed by rule of law.

- Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed.

 
                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Mustafa Karaca

2020/15967

20 May 2021

(Plenary)

No violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the said right due to the applicant’s compulsory confinement ordered by the incumbent family court.

- The complainant, the applicant’s ex-girlfriend, filed a criminal complaint against the applicant for being subjected to blackmailing, sexual harassment, insult and threats through messages, photos and videos sent by the applicant to her.

- The incumbent civil court, acting as a family court, indicated an interim measure, aiming at preventing violence against women, for 6 months.

- Upon the complainant’s request, the civil court ordered the applicant’s compulsory confinement for 7 days as he had acted in breach of the interim measure.

- He was then placed in a penitentiary institution for 7 days after his challenge had been dismissed.

- In the present case, the compulsory confinement was ordered due to the applicant’s breach of the interim measure. Therefore, his confinement had a basis.

- The applicant was notified of the interim measure as well as the consequences of his failure to comply with the requirements stated therein.

- Compulsory confinement is a sanction which intends to secure the compliance with the requirements of an interim measure, thereby affording effective protection for the victim: the applicant’s confinement had a legitimate aim.

- There was no explicit error of assessment or any arbitrariness in the findings and conclusions of the inferior courts with respect to compulsory confinement.

- Accordingly, the Court found no violation of the right to personal liberty and security.

 

H.K.

2019/42944

17 June 2021

(Plenary)

 

Violation of the right to respect for private life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right due to the denial of the applicant’s request for changing his name.

- The applicant, a transgender man, brought an action against the Civil Registry Office, requesting the change of his name before undergoing gender reassignment surgery. However, the action brought by him was dismissed on the ground that he had not yet undergone a surgery.

- Pursuant to Article 27 of the Turkish Civil Code no. 4721, an action for changing one’s name must be based on reasonable grounds. The impugned provision stipulates no requirement for a gender reassignment surgery to change one’s name.

- The inferior courts required the applicant to undergo a gender reassignment surgery in order for him to be able to request the chance of his name.

-  Although the applicant had made the relevant request by explaining the reasons related to his social life, the incumbent courts failed to rely on relevant and sufficient grounds to dismiss his request.

- Hence, the state failed to fulfil its positive obligations concerning the right to respect for private life.

-Consequently, the Court found a violation of the right to respect for private life.

 

Erhan Urak

2016/10657

9 June 2021

(First Section)

 

No violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom due to the applicant’s conviction for disseminating terrorist propaganda during a number of meetings and demonstration marches.

- Terrorism is hostile to all values ​​of democratic society, especially the freedom of expression. Therefore, statements that legitimize, praise or incite terrorism, terror and violence cannot be considered to fall under the scope of freedom of expression.

- In the circumstances of the case, it was concluded that the applicant’s statements that praised the terrorist organisation and its leader incited the others to commit terrorist offences as well as resorting to the methods including the use of force, violence and threat. Accordingly, the impugned statements had an impact on national security and public order.

-  In the Court’s view, the applicant’s conviction corresponded to a pressing social need and was proportionate.

- In order for an interference with the freedom of expression to comply with the requirements of the order of a democratic society, the grounds relied on by the public authorities must be relevant and sufficient.

- Consequently, the Court found no violation of the freedom of expression.

 

Yusuf Özmen

2019/13637

30 June 2021

(First Section)

 

No violation of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

-  Alleged violation of the said prohibition due to the applicant’s detention and continued detention in disregard of his state of health.

- The applicant, detained on remand for his alleged membership of the FETÖ/PDY terrorist organisation, was sentenced to 8 years and 9 months’ imprisonment.

- His request for release due to his state of health was dismissed by the incumbent judge which ordered the applicant’s transfer to the health care facility for necessary treatment. He subsequently underwent an operation at a hospital.

- By virtue of the interim measure indicated by the Constitutional Court, he was hospitalised at a university hospital and received treatment. In its report, the Forensic Medicine Institute stated that the applicant’s state of health did not pose an obstacle to the continued execution of his imprisonment sentence at the penitentiary institution as long as he was put under regular medical controls.

-In reply to the applicant’s request, the European Court of Human Rights indicated an interim measure to secure his immediate hospitalisation and treatment in a university hospital. However, he refused to be hospitalised for feeling well. He requested to be released.

- The Court of Cassation ordered his release in 2019. However, he was placed in the penitentiary institution in 2021 for the execution of his imprisonment sentence, which had become final.

- His requests for being released, or the suspension of the execution of his sentence, or placement in house confinement were dismissed in line with the medical examinations and reports.

- Article 17 of the Constitution does not afford an absolute guarantee, for the persons suffering certain diseases including cancer, that they would not be detained. However, in cases where their diseases deteriorate or may deteriorate due to the detention conditions for which the authorities may be held responsible, it may lead to a breach of the said provision.

- In the present case, the applicant was provided with the necessary treatments and medical care both prior and subsequent to the Constitutional Court’s interim measure.

- The medical reports drawn up with respect to him did not clearly indicate that he could not be treated or his health would deteriorate due to his placement in the penitentiary institution.

- Accordingly, the Court found no violation of the prohibition of ill-treatment.

 

Özgür Sağlam

2016/9076

30 June 2021

(First Section)

Violation of the right to an effective remedy safeguarded by Article 40 of the Constitution, taken in conjunction with the right to life.

- Alleged violation of the applicant’s right due to the dismissal of his full remedy action.

- The applicant, who was detained on remand, lost his left eye during the operations conducted at the penitentiary institution in 2000.

- The proceedings conducted against the respective gendarmes for causing death and injury of several persons resulted in impunity.

- The proceedings initiated against 399 accused persons including the applicant were discontinued as time-barred, and the accused persons were acquitted.

- The ECHR awarded 25,000 euro in compensation for non-pecuniary damage to the applicant who was complaining of the lethal nature of the operation and ineffectiveness of the criminal proceedings.

- The administrative court also awarded compensation at the end of the full remedy action brought by the applicant. However, the Council of State quashed this decision.

- In the present case, the criminal proceedings conducted against the applicant did not elucidate the conditions under which he had been wounded and his acts strictly necessitating the use of force against him. Nor was it found established that he had actively taken a role in the rebellion by using a weapon together with the other rebellious detainees and convicts.

- Accordingly, the Court found a violation of the right to an effective remedy taken in conjunction with the right to life.

Press Release

Ferit Kurt and Others

2018/9957

8 June 2021

(Second Section)

 

Violations of the right to life and the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to death that occurred as a result of ill-treatment during custody and ineffectiveness of the criminal investigation conducted into the incident.

- The incumbent authorities failed to prove that the applicants’ relative had lost his life due to a reason not attributable to the state officials. Thus, substantive aspect of the right to life and prohibition of ill-treatment had been violated.

- The accused had benefited from the statute of limitations at the end of a period lasting more than twenty-five years, which was an indication of the fact that the judicial authorities failed to show due diligence in conducting the proceedings with reasonable speed.

- Consequently, the Court found violations of the right to life and prohibition of ill-treatment, and awarded 500,000 Turkish liras (TRY) to the applicants jointly.

 

Kadri Pervane

2015/12115

8 June 2021

(Second Section)

Inadmissibility of the alleged violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom due to the applicant’s conviction for disseminating propaganda on behalf of a terrorist organisation by means of playing loudly a song in the form of an anthem at a public bus.

- The applicant, driver of a public bus, played a piece of music containing expressions that constituted propaganda of the separatist terrorist organisation. A police officer, a passenger at the same bus, warned the applicant and asked him to turn off it due to the impugned expressions. As the applicant refused to do so, the police officer called the police emergency line.

- At the end of the criminal proceedings against the applicant, he was sentenced to 2 years’ imprisonment for the said offence. The decision was subsequently upheld by the Court of Cassation.

- The impugned anthem contains expressions which clearly mention the said terrorist organisation, clearly praise it and its armed members and also incite people to become a member of this organisation.

- The applicant in his capacity as a driver of a public bus led several persons on the bus to become aware of the impugned march.

- The grounds relied on by the first instance court to justify the applicant’s conviction were relevant and sufficient.

- The interference met a pressing social need and was also proportionate. Nor was it incompatible with the requirements of a democratic society.

- Accordingly, the Court found inadmissible the alleged violation of the freedom of expression for being manifestly ill-founded.

 

Keleş Öztürk (2)

2018/23565

16 June 2021

(Second Section)

Inadmissibility of the alleged violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom due to the imposition on the applicant of a disciplinary sanction on account of his expressions during a hearing.

- The applicant, a lawyer, attended a hearing as the counsel of the accused person. A judicial fine was subsequently imposed on him for insulting the officer in charge due to his certain expressions towards the public prosecutor during that hearing.

- The applicant then lodged an individual application with the Court, which found a violation of his freedom of expression for the imposition of this fine.

- Afterwards, he was also sentenced to a disciplinary sanction of warning by the Disciplinary Board of the İstanbul Bar Association. His challenge to this sanction was dismissed, and his action for annulment thereof was also rejected by the incumbent administrative court. The decision was ultimately upheld by the regional court of appeal.

- Lawyers are entitled to make criticisms about the functioning of the judiciary on condition of not exceeding certain limits. Setting such limits is necessary for the protection of all public officials including judges, prosecutors and justices of higher courts.

- In the present case, the expressions uttered by the applicant were intended not to perform the defence duties, but rather to offend the public prosecutor expressing his opinion. They were therefore considered prejudicial to the ethical rules and reputation of the profession.

- The State did not fail to fulfil its positive obligations within the context of the applicant’s freedom of expression.

- Accordingly, the Court found inadmissible the alleged violation of the freedom of expression for being manifestly ill-founded.

 

D.C.

2018/13863

16 June 2021

(Second Section)

No violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right due to confiscation of a ship owned by the applicant company for its having been used in relation to an offence.

- It was revealed only at the end of the proceedings before the inferior courts, which lasted approximately 3.5 years, that the applicant had not been aware of the fact that the ship had been involved in an offence.

- The impugned interference had been necessary and its duration had been reasonable.

- Besides, it is obvious that the applicant had sustained burden to a certain extent for its inability to use the ship in trade activities. However, the expert reports revealed that the ship was technically inadequate and its certificates had expired, and that it was not possible for it to operate at full capacity and all year for its age.

- In the circumstances of the case, given the imputed act and the duration of the impugned confiscation, it was concluded that the applicant had not been imposed an excessive burden as a result of denial of compensation.

- A fair balance was struck between the applicant’s interest in exercising its right to property and the public interest, as well as the impugned interference had been proportionate.

- Consequently, the Court found no violation of the right to property.

 

Nuriye Arpa

2018/18505

16 June 2021

(Second Section)

Violation of the prohibition of discrimination safeguarded by Article 10 of the Constitution in conjunction with the right to property safeguarded by Article 35

- Alleged violation of the said right due to the dismissal of the applicant’s request for housing support afforded to those affected by the dam project, for her not being qualified as a family.

- The Court previously acknowledged that the grounds for discrimination enumerated in Article 10 of the Constitution are not limited to those related to sex, race, religion and etc.

- Pursuant to the Settlement Law no. 5543, entitlement to housing support was conditioned upon being a family.

- The discrimination in the present case originated from the definition of family as set forth in Article 17 of Law no. 5543. However, the impugned provision was amended, and single individuals who had no siblings and lost her/his parents, like the applicant, was also defined as family, and thus the applicant was entitled to housing support.

- Accordingly, the discrimination inflicted upon the applicant had no objective and reasonable grounds.

- Consequently, the Court found a violation of the prohibition of discrimination in conjunction with the right to property.

 

Cafer Seçer

2018/30939

29 June 2021

(Second Section)

Inadmissibility of the alleged violation of the right to protection of one’s honour and dignity safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to certain statements used in the news published in two different national newspaper.

- The applicant’s appointment as a head of department at the Social Security Institution led to debates and was widely discussed in the national press.

- The impugned statements included in the newspapers, which had the potential of instigating a public debate, were considered not to constitute a defamation or ungrounded personal attack towards the applicant, but to be in the form of a criticism.

- Besides, the persons wielding public power are to tolerate criticism to a much wider extent than private individuals.

- The inferior courts established a fair balance between the defendants’ freedoms of expression as well as the press and the applicant’s right to the protection of his honour and dignity.

- Accordingly, the Court found inadmissible the alleged violation of the right to protection of honour and dignity for being manifestly ill-founded.

 

II. Constitutionality Review

E.2016/144

3 June 2021

(Plenary)

Dismissal of the requests for annulment of certain provisions regarding the term of office of the members of the Council of State and the Court of Cassation

A. Provisions limiting the term of office of the members of the Council of State and the Court of Cassation to twelve years

- It was claimed that the impugned provisions, which envisaged the election of members of the Council of State and the Court of Cassation for a period of twelve years and did not allow for the election of the relevant persons twice, were clearly in breach of the independence of the courts as well as the principles related to the tenure of judges and public prosecutors and profession of judge and public prosecutor; in breach of the principle of state governed by rule of law since the judiciary was weakened against other powers; and in breach of the principle of certainty, the principle of legal certainty and the Constitution due to the limitation of the term of office of the members of the high judiciary, which was a special status, by law.

- Provisions regarding the term of office of the members of the Council of State and the Court of Cassation shall not be in breach of the principles regarding the independence of the courts and tenure of judges.

- The Constitution contains no explicit provision regarding the term of office of the members of the Council of State and the Court of Cassation; therefore, the regulations as regards the determination of the said period were not required to be set forth in the Constitution.

- The impugned provisions were not of a nature to result in an influence on the judges by any organ, authority or person. Thus, they were not in breach of the principle of the independence of the courts. Nor did they contain a phrase as to the dismissal of the relevant members at the end of their term of office or their forced retirement before the age set forth in the Constitution.

- The provisions were not formulated observing special interests other than the public interest or in favour of or against certain persons.

- Thus, the impugned provisions were not found unconstitutional, and therefore, the request for their annulment was dismissed

B. Provisions terminating the term of office of the members of the Council of State and the Court of Cassation

- It was claimed that the impugned provisions completely eliminated the guarantees that enabled the judges to perform their duty independently; that the independence of the courts should also be evaluated in terms of personal rights and administrative guarantees; that since no regulation was contained in the Constitution regarding the term of office of the said members as well as  its termination, such a regulation would be in breach of the tenure of judges and the principle of legal certainty; and that while some of the members were entitled to re-election, some others were not granted such a right, which was in breach of the principle of equality.

- With the entry into force of the Regional Courts of Appeals, it was envisaged that the workload of the Council of State and the Court of Cassation would be reduced; therefore, there it was deemed necessary that the number of chambers and members of these institutions would be redetermined.

- It was understood that termination of the term of office of the relevant members was part of the radical change in the judicial system through the adoption of the three levels of jurisdiction.

- The main purpose of the impugned provisions was not the dismissal of the current members of the Council of State and the Court of Cassation and the election of others in their place. As a matter of fact, the majority of the members whose term of office had been terminated were re-elected as members of the Council of State and the Court of Cassation.

- It was clear that reducing the number of members of the Council of State and the Court of Cassation was a similar practice with the reduction of the number of chambers. Such a practice was related to the change in the judicial system and was due to the decrease in the workload of these high courts.

- It was also not contrary to the principles of the independence of the courts and the tenure of judge that the members whose term of office would terminate would continue their profession as judges.

- Thus, the impugned provisions were not found unconstitutional, and therefore, the request for their annulment was dismissed.

C. Provision stipulating the appeal of the decisions of the Board of Presidency of the Council of State before the Board of Presidents and not allowing for an appeal before another judicial authority against the decisions of the Board of Presidents

- It was claimed that the impugned provision was in breach of the right to a fair trial.

- Without prejudice to the main duties of the judges, the legislator may consider it more appropriate for the public interest that judges or the relevant bodies of the Council of State take decisions related to the performance some administrative tasks, especially other works necessary for the proper functioning of the judicial service, the institution is obliged to carry out.

- The impugned provision was not in breach of the principle of the state governed by the rule of law as well as the right to a fair trial.

- Thus, the impugned provision was not found unconstitutional, and therefore, the request for its annulment was dismissed.

 

E.2020/18

3 June 2021

(Plenary)

Annulment of the relevant phrases included in paragraph 3 added to Article 37 of Law no. 6755 on the Adoption, with Certain Amendments, of the Decree-Law on Measures to be Taken under the State of Emergency and Making Arrangements regarding Certain Institutions and Organisations

- The contested phrases, which were annulled by the Court for being found unconstitutional, are “… by the National Security Council…” and “…legal…” and “…financial…”.

- The contested provision sets forth that the public officers who have taken a decision,  executed such decisions or taken no step with respect to the applications concerning the social security rights of the persons -who have been dismissed from public office for their relation, link or connection with any structure, formation or groups considered by the National Security Council to conduct activities against the national security of the State and whose judicial or administrative investigations/prosecutions are still pending- shall not have any legal, administrative, financial and criminal liability on account of such decisions and acts.

* the expression “... by the National Security Council” in the contested provision

- It was contested that the National Security Council was granted the authority to take decisions of executive nature.

- The Court has noted that legal nature of the decisions taken by the National Security Council is clearly specified in Article 118 of the Constitution, which sets forth that such decisions are in the form of recommendations and shall be notified to the President.

- These decisions cannot be executed and cannot bear legal consequences in the absence of any other decision to be issued by the President. 

- Therefore, the contested phrase, which attributes legal consequences to the National Security Council’s decisions without an executive decision, is incompatible with the wording of the Constitution and is therefore unconstitutional.

* the expressions “… legal…” and “….financial…” in the contested provision

- The contested provision relieves the relevant public officers of any legal and financial liability. It aims at the elimination of the opportunity, on the part of the administration, to recourse the relevant liability to the relevant public officer.

- As specified in Article 129 of the Constitution, any pecuniary damage caused by a public officer shall be covered and compensated by the administration on condition of being subsequently received from the relevant officer.

- Therefore, relieving the public officers of such liability runs counter to the relevant constitutional provision.

- Accordingly, the contested provision, insofar as it contains the impugned expressions, has been found unconstitutional and therefore annulled.

 
                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Mapfre Sigorta Anonim Şirketi

2018/5832

8 June 2021

(Second Section)

Inadmissibility of the alleged violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right due to the applicant’s being deprived of the opportunity to obtain redress for the damage it had sustained.

- The applicant company, providing insurance coverage for the irons exported abroad, had to pay compensation to the relevant party as some of the carried materials had been rusted.

- The applicant company then initiated execution proceedings against the firm carrying the materials for being reimbursed.

- However, its request for execution proceedings was dismissed. Thereafter, it brought an action for the revocation of the dismissal. At the end of the proceedings, its action was dismissed as the parties had made an arbitration agreement which required the resolution of the dispute by arbitration.

- The applicant company maintained that since its action was dismissed for lack of jurisdiction about 7 years later, its claim became time-barred in the English law.

- The Court concluded that the applicant company had been in a position to foresee that the inferior courts might issue a decision of lack of jurisdiction due to the arbitration agreement previously signed by the parties.

- Nor did the applicant company apply to arbitration following the dismissal of his action due to lack of jurisdiction so as to prove that it did no longer have a claim due to the lapse of time.

- Accordingly, the Court declared the application inadmissible for being manifestly ill-founded.   

 

İsmail Sarıkabadayı and Others

2016/23696

8 June 2021

(Second Section)

 

Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

- Alleged violation of the said right due to the ban imposed by the administration on meetings, demonstration marches or similar activities for a certain period.

- In the neighbourhood where the applicants were residing, the construction of a temporary refuge centre was started in 2016 for providing a shelter for Syrian immigrants.

- The Governor’s Office banned, for a period of one month, any kind of activity to be conducted for the protest of the refuge centre, in consideration of the intelligence submitted by the gendarmerie and the request in this regard.

- This one-month ban was also extended for four times by the Governor’s Office which took into consideration the attack against security officers and injury of two officers during a previous protest and the explanations by the heads of PKK terrorist organisation.

- The applicants’ request for the stay of execution of the impugned ban was dismissed. Their appeal against the dismissal decision was also rejected by the regional court of appeal.

- Whether the danger likely to occur against public order and safety could justify the one-month ban all across the province and its extension for further four times: the grounds relied on by the administration did not suffice to justify the impugned ban. 

- No fair balance could be struck between the competing interests.

- Accordingly, the Court found a violation of the right to hold meetings and demonstration marches.

 

Ümmü Tunç

2018/27524

16 June 2021

(Second Section)

Violation of the procedural aspect of the right to life safeguarded by Article 17 § 1 of the Constitution

- Alleged violation of the said right due to the failure to conduct an effective criminal investigation into the death of the applicant’s wife.

- The applicant’s disabled wife, M.T., was found death by N.A. and H.S.A.. Thereupon, the chief public prosecutor’s office immediately initiated an ex officio investigation into her death.

- Accordingly, M.T.’s husband, her son, N.A., H.S.A., as well as M.K., suspected shovel operator with whom M.T. had been last seen, were questioned.

- At the end of the investigation, the chief public prosecutor’s office issued a decision of non-prosecution with respect to the suspected operator, M.K., for the imputed offence of causing death by negligence. The applicant’s appeal was dismissed.

- Despite the existence of wheel tracks and shoe prints at the incident scene during the crime scene investigation, as well as no difficulty in securing such evidence, the investigation authority failed to secure, and make an examination or assessment as to, these findings.

- The Court considered that the incumbent chief public prosecutor’s office failed to elucidate the circumstances surrounding M.T.’s death.

- Accordingly, the Court found a violation of the procedural aspect of the right to life.

 

                        

Case

Decision

Case-Law Development

Related

I. Individual Application

B.A.

2016/9123

18 May 2021

(Second Section)

Violation of the procedural aspect of the prohibition of ill-treatment safeguarded by Article 17 § 3 of the Constitution

- Alleged violation of the prohibition of ill-treatment due to the ineffectiveness of the investigation conducted into alleged sexual abuse and the acquittal of the accused at the end of the proceedings.

- The medical report issued in respect of the applicant proved the arguable nature of her claim.

- In the course of the proceedings, in addition other deficiencies, it took approximately three years to conduct a search at the suspects’ homes, which revealed that the investigation had not been conducted with due diligence.

- Obligation to investigate concerns the employment of appropriate means, regardless of the outcome of the investigation.

- Consequently, the Court found a violation of the procedural aspect of the prohibition of ill-treatment.

 

                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Kutbettin Turan and Others

2018/9004

26 May 2021

(First Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right for the authorities’ failure to compensate the damage sustained due to the building being unusable as a result of the collapse on the highway for which the administration was held responsible.

- The applicants claimed that they were unable to use or rent their property as a result of the administration’s service failure.

- While the said property was undisputedly in such a condition that they could not be rented out, the incumbent courts argued that the alleged damage was not substantiated.

- It is obvious that the disputed property could not be used after being evacuated, namely for 4 years and 8 months, since it had been sealed by the municipal authority, thus the applicants inevitably sustained material damage.

- The inferior courts failed to make an assessment as to whether there had been a service failure on the part of the administration as alleged by the applicants as well as the extent of the damage sustained.

- In this sense, the inferior courts decisions lacked sufficient and relevant grounds.

- Considering the administrative and judicial processes as a whole, it is apparent that the procedural safeguards concerning the protection of the right to property were not satisfied.

- The fair balance to be struck between the applicants' right to property and the public interest pursued by the alleged interference was upset to the detriment of the applicants, thus resulting in a disproportionate interference.

- Consequently, the Court found a violation of the right to property.

 

Nazmi Şengül

2019/34202

9 June 2021

(First Section)

No violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the said right due to the alleged unlawfulness of the applicant’s detention on remand.

- The applicant, a military judge, was taken into custody within the scope of an investigation conducted into the offences related to the Fetullahist Terrorist Organisation/Parallel State Structure (FETÖ/PDY) and detained on remand for attempting to overthrow the constitutional order.

- The trial court, relying on certain grounds, concluded that there was a strong suspicion of the applicant’s having committed the imputed offence.

- The Constitutional Court concluded in its many judgments that the similar grounds had constituted a strong indication of having committed an offence related to the FETÖ/PDY. In this regard, there is no reason to depart from its previous conclusions.

- The detention order issued by the assize court stated that there was a strong suspicion of guilt against the applicant. In this sense, the detention order was based on the risk of fleeing.

- Given the available evidence as a whole, the grounds for detention, notably the risk of fleeing, had factual basis.

- In addition, in view of the scope and nature of the investigations related to the FETÖ/PDY and the characteristics of the organisation, such investigations are much more difficult and complex than the other types of criminal investigations.

- In the circumstances of the case, the applicant’s detention on remand had been proportionate.

- Consequently, the Court found no violation of the applicant’s right to personal liberty and security.

 

Neriman Yonat

2018/33554

15 June 2021

(First Section)

Violation of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to the death of a baby placed in a nursery in the absence of protective measures and dismissal of the action for a full remedy brought for the impugned death.

- The applicant is the mother of the dead baby. She had left her baby in front of her house and then her husband had reported to the police that the baby had belonged to someone else. Thus, the baby was placed in the nursery.

- In the nursey, the baby was thrown out from the balcony by a 12/15-year old minor, H.A., suffering from mental retardation.

- The applicant was the indirect victim of the death incident.

- The administration had failed to take measures to prevent H.A. from entering the baby unit in the nursery, thus failing to fulfil their responsibilities.

- The courts of instance established the administration’s responsibility; however, they rejected the applicant’s request for non-pecuniary compensation regardless of her status as an indirect victim. In other words, the judicial process carried out by the courts of instance lacked effectiveness in spite of the positive obligations imposed on the state within the scope of the right to life.

- Although the applicant claimed that the pecuniary damage arising from the death of baby should also be compensated, she did not make such a request in her action for a full remedy. Accordingly, rejection of her request for pecuniary compensation was not arbitrary and therefore led to no violation.

- Consequently, the Court found a violation of the right to life.

 

Bülent Akbacı

2018/14389

13 April 2021

(Second Section)

 

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right due to the lengthy interim injunction imposed on the applicant’s property.

- While the public authorities enjoy a broad margin of appreciation in taking the necessary measures and restricting the enjoyment of a property for some justified reasons, they are also required to prevent any excessive burden to be imposed on the property owner.

- In this sense, the public authorities are also expected to consider the effects of the interim measure on the applicant’s right to property and to avoid any disproportionate interference in this regard.

- It is incumbent on the public authorities ordering the interim injunction to act immediately and diligently.

- In the circumstances of the present case, there was no doubt that the length of the interim injunction had been unreasonable, thereby imposing an excessive burden on the applicant.

- Consequently, the Court found a violation of the right to property.

 

Adem Aydın and Zübeyde Aydın

2018/1156

18 May 2021

(Second Section)

Violation of the procedural aspect of the right to protection of corporeal and spiritual existence safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to the rejection of the action for compensation brought after a stillbirth.

- The applicants’ baby was stillborn after the caesarean section performed at a private hospital.

- The applicants claimed that the action for compensation they had brought due to the stillbirth as a result of medical negligence and organisational failure was rejected without a sufficient examination being conducted.

- First of all, it should be noted that it is incumbent on the State to organise health services in both public and private health institutions.

- While the provincial directorate of health found negligence on the part of the hospital administration and the doctor who had performed the medical operation, the civil court relied on the report issued by the Forensic Medicine Institute indicating that the healthcare personnel had no negligence in the death incident, thereby rejecting the applicants’ claim for compensation.

- The judicial authorities failed to provide reasonable and sufficient grounds. In the same vein, the public authorities failed to satisfy their positive obligations.

- Consequently, the Court found a violation of the procedural aspect of the right to protection of corporeal and spiritual existence.

 

Oğuz Demirkaya

2018/15033

18 May 2021

(Second Section)

 

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom due to imprisonment for the expressions used in an internet newspaper.

- The trial court’s failure to examine and clarify the issues such as: whether there was a hostility between the applicant and the complainant; the reason for uttering the impugned expressions; whether there was a background to the expressions; and whether the applicant uttered the said expressions due to the complainant’s certain behaviours or for merely arbitrary reasons.

- Nor did the trial court consider the meaning referred to by the applicant using the impugned expressions and exactly which words affected the complainant.

- The court only concluded that the applicant’s expressions were rude and exceeded the limits of criticism, which therefore amounted to the offence of insult.

- Considering the abstract assessments of the court, a fair balance was not struck between the applicant's freedom of expression and the complainant's right to protection of honour and dignity.

- Besides, while the legal system afforded less strict measures, imposition of a heavy penalty on the applicant as well as his having been banned from public service constituted a disproportionate interference. Nor did the applicant’s imprisonment correspond to a pressing social need.

- The grounds relied on by the inferior courts cannot be considered relevant and sufficient to justify such an interference with the applicant’s freedom of expression.

- Consequently, the Court found a violation of the freedom of expression.

 

                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Hamit Yakut

2014/6548

10 June 2021

(Plenary)

Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution (pilot judgment procedure)

- Alleged violation of the said right due to the applicant’s conviction for committing an offence on behalf of a terrorist organisation without being a member of it.

- The applicant, participating in a demonstration held in front of a political party’s premises, was ultimately sentenced to 3 years and 9 months’ imprisonment on account of the above-mentioned offence. He was also sentenced to 6 months’ imprisonment for participating in an unlawful meeting and refusing to disperse despite the police warnings. However, the latter sentence was suspended. 

- His conviction for committing an offence on behalf of a terrorist organisation without being a member of it was upheld on appeal.

- Persons may have connection with a criminal syndicate and get involved in the threat posed by it without being a part of its hierarchical structure. Therefore, the law-maker has set forth, in Article 220 § 6 of the Turkish Criminal Code no. 5237, the offence of committing an offence on behalf of a terrorist organisation without being a member of it.

- The wording of this provision is so broad that it fails to offer sufficient protection against the arbitrary interferences by public authorities. 

- Besides, in cases where this offence overlaps with the exercise of fundamental rights as in the present application, it may have a strong deterrent effect on the exercise of these rights due to the broad interpretation of the concept of “on behalf of an organisation”.

- In the present case, as noted by the inferior courts, the applicant did neither inflict violence nor resist the police officers. He merely refused to disperse despite the police warnings.

- The imprisonment sentence of 3 years and 9 months imposed on him was so severe and grossly disproportionate to the conducts of persons having recourse to no violence.

- The applicant’s conviction due to this offence did not satisfy the lawfulness criterion.

 

Hanifi Yaliçli

2014/5224

10 June 2021

(Plenary)

 

No violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the applicant’s freedom of expression due to his imprisonment for aiding a terrorist organisation since he had allegedly organised a training meeting on behalf of the organisation.

- According to the Turkish legal system, the acts serving the aim of the terrorist organisation are categorised as aiding the terrorist organisation.

- The abstract nature of the relevant provision to a certain extent is not per se contrary to the principle of legal foreseeability. The fact that the concept of aid is not clearly defined does not render the impugned provision vague. Moreover, the supreme courts’ practices do not render it unclear.

- The first instance court’s conclusion that the applicant’s acts had constituted the offence of aiding a terrorist organisation was based on a detailed assessment.

- In the circumstances of the case, a fair balance was struck between the legitimate aims sought to be achieved by the alleged interference and the applicant’s freedom of expression.

- It has been concluded that the applicant posed a serious threat to the democratic life.

- Considering the grave consequences of terrorist offences for individuals, society and the state, the punishment imposed on the applicant had been proportionate.

 

Murat Beydili

2019/14642

17 June 2021

(Plenary)

 

Violation of the right to a fair hearing under the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to the erroneous interpretation of the statutory provisions in the full-remedy action brought for the redress of the non-pecuniary damage sustained on account of a terrorist incident.

- The applicant unsuccessfully applied to the Ministry of Interior and sought for the redress of the non-pecuniary damage he sustained as he had been forced to leave his home and his family and economic order had been impaired due to the curfew declared by the State in certain regions on account of the trench events. 

- The full-remedy action brought by him was rejected by the incumbent administrative court. His subsequent appeal was also dismissed.

- The administrative court, which indeed acknowledged that the applicant had sustained non-pecuniary damage due to the impugned incident, however held that the conditions sought for the redress of such damage by the State -pursuant to the doctrine of social risk-were not satisfied in the present case.

- As indicated in the jurisprudence of the Council of State, the liability based on social risk doctrine may come into play when:

- the damage is caused within the scope of operations conducted against terrorist acts and terrorism: the applicant sustained damage due to terrorist incidents.

- the aggrieved party must not have any involvement in such incidents: no finding by the court as to the applicant’s involvement in the impugned incidents.

- the alleged damage must be specific and extraordinary: the court referring to the measures taken by the State to secure the life and property of the residents concluded that the difficulties faced by the applicant were not specific to his case and of an extraordinary nature.

- However, such measures could not render the non-pecuniary damage sustained by the applicant unspecific and ordinary.

- Therefore, such interpretation by the inferior court rendered dysfunctional the procedural safeguards and impaired the fairness of the trial.

 

G.G.

2018/9416

9 June 2021

(First Section)

 

Violation of the right to respect for private life safeguarded by Article 20 of the Constitution

-  Alleged violation of the said right due to the applicant’s being deemed to have resigned from her public post.

- The applicant serving as a nurse in a public district hospital filed a criminal complaint against his ex-boyfriend, stating that she had been sexually assaulted.

- Given a medical leave for 10 days, the applicant failed to be present in the workplace, albeit the expiry of the relevant period.

- A disciplinary investigation was accordingly initiated against her. In the report drawn up at the end of this investigation, it was noted that she could be dismissed from public office pursuant to Law no. 657 on Civil Servants; and if dismissal was not found appropriate in consideration of the anguish and distress suffered by her, she could be instead appointed to another province.

- The applicant was deemed to have resigned from her public post pursuant to Article 94 of the Law no. 657. Her action for revocation of this administrative act was dismissed. On appeal, the Council of State upheld the first instance decision and also dismissed the subsequent request for rectification of the decision.

- The administration is granted a wide discretionary power in accepting the excuses put forward for the failure to continue performing public office. However, such discretion must be wielded in pursuit of public interest and for the purpose of ensuring the protection of fundamental rights and freedoms also in the professional life.

-Regard being had to the administrative decision and the proceedings in respect of the applicant, it has been concluded that the relevant authorities failed to consider the disciplinary-investigation report, where the option of appointment and observations as to the applicant’s psychological state were stated, as well as to discuss whether the public interest pursued could be achieved through a less severe interference.

- The impugned interference was not compatible with the requirements of a democratic society and proportionate.

 

Sabahat Günindi

2018/15204

9 June 2021

(First Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the applicant’s right due to the denial of compensation for a private-registered property determined to be located within the forest boundaries.

- Pursuant to Article 169 of the Constitution regarding the protection and development of forests, the ownership of state forests shall not be transferred. However, the disputed property had been registered as private property by the public authorities.

- Since it is incumbent on the state to create and keep the land registers, it is also responsible for any error in the said registers.

- The applicant should not be burdened with all the consequences of the erroneous acts of the administration.

- Hence, an excessive burden was placed on the applicant by the alleged interference, and the fair balance between the applicant's right to property and the public interest was upset to the detriment of the applicant.

- Therefore, the interference with the applicant’s right to property had been disproportionate.

 

Aylin Nazlıaka (2)

2018/24439

15 June 2021

(First Section)

 

Violation of the right to the protection of personal data under the right to respect for private life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right due to the disclosure of the applicant’s personal data via a social media account.

- A then metropolitan mayor published certain messages and documents with respect to the applicant, an MP, via a social networking site. These documents contained inter alia full address, subscription data of the applicant’s spouse, identity numbers and signatures of her relatives.

- The applicant brought an action for compensation against the mayor for the unlawful acquisition and disclosure of her personal data. However, it was dismissed by the relevant court as the impugned act fell into the scope of the mayor’s freedom of expression. On appeal, the first instance decision was upheld by the Court of Cassation.

- Pursuant to the positive obligation incumbent on it, the State is to protect all individuals under its jurisdiction against the risks which may result from the acts and actions of public authorities, other individuals as well as of the individual himself.

- Undoubtedly, information on identity, subscription and address of a person, signature as well as residence and workplace addresses are among personal data. In the present case, the applicant did not consent to the acquisition and disclosure of such information belonging to her.

- The inferior courts considered that the case fell into the scope of the freedom of expression, emphasising that the parties were politicians and the impugned messages amounted to criticism.

- The inferior courts’ failure to discuss how and in which scope the applicant’s personal data had been obtained and which legitimate aim was being pursued in their disclosure, as well as to address the applicant’s serious allegations that the acquired and disclosed information should have been considered as personal data and thus protected.

 

II. Constitutionality Review

E.2020/24

3 June 2021

(Plenary)

Annulment of the provisions set forth in the former Law no. 4045

- The contested provisions stipulate that the personnel to be recruited to the Ministry of National Defence, gendarmerie, penitentiary institutions and detention houses shall be subject to security investigation and archive research processes and that the procedures and principles in this regard as well as the authorities to conduct such processes shall be determined by a regulation.

- The contested provisions are claimed to be unconstitutional in that certain issues related to the security investigation and archive research processes are conditioned upon a regulation.

- They contain no specific information on how the collected personal data shall be processed, which authorities shall conduct the relevant processes, how and how long the collected data shall be stored, and whether the persons concerned shall be able to object to the said data.

- Lack of a law containing the guarantees and basic principles regarding the collection, use and processing of the personal data obtained as a result of security investigation and archive research processes run counter to Articles 13 and 20 of the Constitution.

- Consequently, the contested provisions have been found unconstitutional and therefore annulled.

 
                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Sadrettin Bilir

2018/12776

26 May 2021

(First Section)

Violations of both substantive and procedural aspects of the prohibition of inhuman or degrading treatment safeguarded by Article 17 of the Constitution

- Alleged violation of the applicant’s right for his being battered by police officers during his arrest and subsequently at the police station as well as lack of an effective investigation into his incident.

- The applicant, along with his two friends, was taken to the district security directorate on a criminal charge.

- In his petition, the applicant complained of the police officers for having been battered while being arrested and subjected to torture at the police station where he had been taken, which was supported by the forensic report issued with respect to the incident.

- The incumbent chief public prosecutor’s office issued a decision of non-prosecution. The applicant’s challenge to this decision was dismissed by the magistrate judge.

- On the other hand, the applicant and his two friends were acquitted by the assize court at the end of the proceedings.

- The police officers maintained that the applicant showed resistance during his arrest. However, it was not substantiated by any evidence such as a video footage or statements of impartial witnesses. Even if the police officers’ intervention was deemed necessary, it was however disproportionate as the applicant had suffered facial fractures. 

- The failure of the prosecutor’s office to conduct an effective investigation into the applicant’s allegations.

 

II. Constitutionality Review

E.2019/114

3 June 2021

(Plenary)

Annulment of the provisions restricting the freedom to leave the country

The contested provisions are included in Additional Article 7 of the Passport Law no. 5682.

 A. Provision on issuance of special stamped passports to lawyers

- The contested provision stipulates that the lawyers against whom there has been an ongoing investigation or prosecution for certain offences shall not be issued with a special stamped passport.

- It is claimed that the provision restricts the freedom of movement.

- In the Court’s view, the contested provision stipulates certain conditions for going abroad with a special stamped passport, and it does not impose any restriction of the freedom to leave the country.

- The impugned restriction is not of a continuous nature in that it is applicable only to the period when the investigation or prosecution process continues.

- A fair balance had been struck between the aim sought to be achieved and the means employed based on the contested provision.

- Accordingly, the request for the annulment of the provision has been dismissed.

B. Provisions restricting the freedom to leave the country

- The contested provision allows for issuance of a passport by the Ministry of Interior to those whose passports had been revoked for membership of or relation or connection with a structure, formation or group found to have posed threat to the national security as well as to those against whom an administrative action has been taken preventing the issuance of a passport on their behalf, provided that they fulfil the conditions set forth in the relevant provisions, according to the outcome of the investigations to be conducted by the law enforcement officers.

- Article 23 of the Constitution provides that a citizen’s freedom to leave the country may be restricted only by the decision of a judge based on a criminal investigation or prosecution.

- It is obvious that some of the grounds for restriction set forth in the contested provisions do not comply with the grounds stipulated in the Constitution and that they run contrary to the condition as to the existence of a decision rendered by a judge.

- Thus, the freedom to leave the country is restricted unconstitutionally.

- Consequently, the contested provisions have been annulled; the relevant decision will be effective after one year as from the date of its publication in the Official Gazette.

 
                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Adnan Şen

2018/8903

15 April 2021

(Plenary)

No violation of the nullum crimen, nulla poena sine lege principle safeguarded by Article 38 of the Constitution

- Alleged violation of the said principle as the interpretation by judicial bodies of the criminal act of membership of a terrorist organisation had lacked foreseeability and certain acts, which did not indeed constitute an offence, had been also relied on for conviction.

- The applicant, holding office as a chief of police, was dismissed from public office pursuant to the Decree-Law no. 670 on the Measures Taken under the State of Emergency. At the end of the proceedings conducted against him for his alleged connection with the FETÖ/PDY, he was sentenced to imprisonment.

- On appeal, the decision on conviction was upheld.

- He maintained that he had not been unaware of the criminal nature and purpose of the said organisation.

- In determining the criminal liability within the scope of the FETÖ/PDY-related proceedings, the inferior courts take into consideration the contribution provided by the suspects, without knowing its illegal nature, to this structure and its activities so as to facilitate its expansion and institutionalisation in the social and economic areas.

- The inferior court accordingly concluded that the applicant’s imputed act, his use of ByLock app., was of organisational nature and involved continuity, diversity and intensity.

- Therefore, the inferior court’s conclusion that the applicant was, for ByLock for organisational purposes, in a position to know this structure’s intent to commit offences, as well as the elements of the imputed offence of membership of an organisation was not unfounded. 

Press Release

Ömer Faruk Gergerlioğlu

2019/10634

1 July 2021

(Plenary)

 

Violations of the right to stand for elections and engage in political activities as well as freedom of expression, respectively safeguarded by Articles 67 and 26 of the Constitution

- Alleged violation of the said rights on the grounds that the proceedings against the applicant were continued even after he was entitled to parliamentary immunity after being elected as an MP and that he was charged with disseminating propaganda on behalf of a terrorist organisation on account of a post he had shared on his social media account.

A. Alleged Violation of the Right to Stand for Elections and Engage in Political Activities

- The basic framework of parliamentary immunity in the Turkish legal system is regulated in Article 83 § 2 of the Constitution where it is stipulated that MPs cannot be detained, interrogated, arrested or tried unless the GNAT decides otherwise. However, parliamentary immunity is not regulated in absolute terms under the Constitution.

- Considering the practice and tradition of the GNAT, the applicant, as an MP, cannot be reasonably expected to foresee during his term of office that the judicial authorities might conclude that he would not be entitled to parliamentary immunity, interfering with his freedom of expression.

- Certainty and foreseeability cannot be ensured through the interpretations of judicial authorities, rather than a regulation introduced by the legislator.

- The method employed the authorities for denial of the immunity does not include all procedural safeguards which set out the margin of discretion granted to the judicial authorities and which are necessary to prevent arbitrary acts.

- The relevant courts failed to interpret the constitutional provisions in favour of freedoms.

- As a result, the violation stemmed from the lack of a constitutional or legal regulation involving basic guarantees regarding the protection of parliamentary immunity and the right to stand for elections and engage in political activities, as well as ensuring certainty and foreseeability.

- Consequently, the Court has found a violation of the right to stand for elections and engage in political activities.

B. Alleged Violation of the Freedom of Expression

- Even if it is made by terrorist organizations or their members, expression of any opinion cannot be evaluated independently of its content, context and objective meaning and categorically excluded from the scope of freedom of expression.

- It should be underlined that the mere consideration that a statement was made by an illegal organization does not automatically justify any interference with the freedom of expression.

- The impugned news contained no statement that might be regarded as an incitement to violence and that might directly or indirectly lead to the risk of committing a terrorist offence.

- The applicant was sentenced to imprisonment on the sole ground that he had shared a news which had been previously published on a national news portal and which is still accessible.

- Accordingly, considering that the said news has not been the subject of any accusations since its publication, it has been understood that the grounds relied on by the courts in punishing the applicant were insubstantial.

- In this regard, it has been concluded that the interference with the applicant’s freedom of expression did not comply with the requirements of the order of a democratic society.

- Consequently, the Court has found a violation of the freedom of expression. 

Press Release

Hacı Yakışıklı and Others

2019/13768

26 May 2021

(First Section)

 

Violations of the freedoms of expression and the press safeguarded respectively by Articles 26 and 28 of the Constitution

-  Alleged violation of the said freedoms due to the award of compensation against the applicants for their publishing a news article in a national newspaper.

- The applicants, a reporter, newspaper owner and publisher, published a news article whereby they reported that a school girl was subjected to pressure at her high school, accompanied by a photo of the complainant (the teacher).

- The complainant, claiming that her personal rights had been infringed, unsuccessfully brought an action against the applicants. However, on appeal, the regional court of appeal awarded compensation against the applicants.

- In awarding compensation to the complainant, the regional court of appeal considered that the impugned statements, where the complainant was reported to demonstrate hostility against those wearing headscarf, were not under the scope of the right to criticise and freedom of expression; and that the complainant was presented as a person against religion and wearing headscarf.

- The issue of wearing headscarf at secondary and high schools was a highly controversial topic for the society at the relevant time.

- The expressions in the impugned news article may be considered offensive for the complainant. However, the complainant, as a public officer, should show more tolerance when exposed to criticism.

- The mere severe nature of an expression, its containing harsh criticisms against officials, its being formulated in a harsh language and even its unilateral, controversial and subjective nature do not remove it from the protection afforded by the freedom of expression.

- In awarding compensation against the applicants, the regional court of appeal failed to take into consider the conditions prevailing at the relevant time, the context of the impugned expressions and the factual basis.

- No fair balance between the applicants’ freedom of expression and the complainant’s right to honour and dignity.

 

II. Constitutionality Review

E.2018/112

31 March 2021

(Plenary)

Dismissal of the request for annulment of the contested provisions of Decree-Law no. 699 on Amendments to Law on Presidential Elections

A. Provisions concerning the submission of the minute issued by the Supreme Election Board with respect to the President, swearing-in ceremony and the prescribed time of the session

- The contested provisions envisage that the minute issued by the Supreme Election Board with respect to the President be submitted to the latter by the Turkish Parliamentary Speaker or Interim Speaker; that the swearing-in ceremony be held at the same session. It also regulates the prescribed time of the session.

- The Decree-Law including the contested provisions is issued by virtue of Law no. 7142, which empowers the Council of Minister to issue decree laws with a view to ensuring that certain laws and decree laws comply with the constitutional amendments introduced by Law no. 6771.

- The contested provisions do not contain any matter which cannot be regulated, as specified in the Constitution, through a decree-law (pursuant to the repealed Article 91 of the Constitution).

- They are not related to the method of the presidential election or the election process but to the aftermath of the elections, namely its formal and ceremonial process. Therefore, they are not related to an issue under the rights to elect, stand for elections and engage in political activities enshrined in Article 67 of the Constitution.

- They are also clear, comprehensible and foreseeable, thus in compliance with the principle of certainty.

- Accordingly, the request for their annulment has been dismissed as they are constitutional by their contents and under the repealed Article 91 of the Constitution.

B. Provision Specifying the Date of Swearing-in Ceremonies of the Vice President and Ministers

- The contested provision regulates the swearing-in ceremonies of the vice presidents and ministers, who shall be appointed and discharged from office by the President in the new government system introduced by the constitutional amendment.

- These officials are not elected persons, but appointed by the President. Therefore, their appointments and swearing-in ceremonies do not fall into the scope of the rights to elect, stand for elections and engage in political activities enshrined in Article 67 of the Constitution.

- They are also clear, comprehensible and foreseeable, thus in compliance with the principle of certainty.

- Accordingly, the request for its annulment has been dismissed as it is constitutional by its content and under the repealed Article 91 of the Constitution.

 

E.2019/13

29 April 2021

(Plenary)

 

Annulment of the first and second sentences of Additional Article 15 of Law no. 1219 on the Practice of Medicine and Related Arts

- The contested provision envisages that the physicians who are liable to perform compulsory public service but who are dismissed from, or are not appointed to, public office for being considered to be a member of, have a link or relation with structures or groups proven to perform acts and actions against national security may be entitled to perform their profession upon the expiry of a certain period of time following the decision ordering their dismissal or non-appointment. 

- It is maintained that the contested provision is not foreseeable, accessible and comprehensible. Nor does it comply with the equality and objectivity principle. Declaring persons guilty of certain offences through a decree-law issued under state of emergency or through a subjective security clearance investigation in the absence of any court decision is contrary to the presumption of innocence. It also falls foul of the rights to labour and to hold public office.

- The contested provision is intended to ensure labour peace between those fulfilling their compulsory public service and those who could not due to the above-mentioned security reasons by envisaging that the physicians subject to the contested provision may perform their professions only upon the expiry of the prescribed duration of compulsory public service (450 days): a legitimate aim in the constitutional context.

-  No fair balance between the public interest sought to be attained through the contested provision and the right to labour.

- Preventing the physicians, who are banned from public service, from performing their profession also in private sector for a long period of 450 days places an excessive burden on them.

- Such a long period may also deprive them of professional practice, skills and improvement, which may have undesirable effects also on public health: in breach of proportionality principle.

- The contested provision has been found unconstitutional and therefore annulled.

 

E.2021/1 (Miscellaneous)

3 June 2021

(Plenary)

Dismissal of the request for lifting of the additional measures imposed due to dismissal from office

- It is requested that the additional measures implemented against Alparslan Altan (the applicant), who was dismissed from his office as the Justice of the Constitutional Court, be reviewed in accordance with Article 41 of Law no. 7075 and provisional Article 4 of the Law no. 7075 on the Adoption, with Certain Amendments, of the Decree Law on the Establishment of the Inquiry Commission on the State of Emergency Measures, and then be lifted.

- Provisional Article 4 of Law no. 7075 is applicable to the additional measures specified in the laws introduced during the state of emergency period regarding the actions taken pursuant to decree laws within the scope of the state of emergency.

- The applicant’s dismissal from office is not an action taken pursuant to a decree law within the scope of the state of emergency; it was ordered by the Plenary of the Constitutional Court in accordance with Article 3 § 1 of the Decree Law no. 667 on the Measures to be Taken under the State of Emergency.

- The Court, therefore, dismissed the relevant request.

 
                        

Case

Decision

Case-Law Development

Related

I. Individual Application

Çelebi Kutlu

2017/38612

21 April 2021

(First Section)

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom for the applicant’s being ordered to pay compensation due to certain expressions.

- The applicant and some other members of a Cooperative lodged a criminal complaint against the Cooperative directors for embezzlement, misconduct in office and contravening the Cooperatives Law.

- At the end of the investigation, a decision of non-prosecution was issued.

- However, the Cooperative members including the applicant were ordered to pay non-pecuniary compensation to the directors due to certain expressions in the petition and uttered by them at a meeting.

- Their appeal request was dismissed by the Regional Court of Appeal.

- The applicant’s expressions were disturbing and offensive in nature. However, they were directed not against a certain person but generally against the directors and charged not certain persons, but rather the management as a whole, due to the Cooperative’s failure to take the necessary steps.

- No fair balance was struck between the applicant’s freedom of expression and the plaintiffs’ right to the protection of their honour and dignity.

- The impugned interference was incompatible with the requirements of a democratic society for failing to meet a pressing social need.

 

Leyla Yücel

2017/31861

21 April 2021

(First Section)

 

Violation of the right to property safeguarded by Article 35 of the Constitution

-  Alleged violation of the said freedom due to the revocation, and the order for the retroactive return, of survivor’s pension that the applicant was entitled due to her father’s death as she was entitled to another pension also as a widow after her husband’s death.

- In 2007, the applicant was granted, by the Social Security Institution (“the Institution”), a survivor’s pension on request after her husband’s death. She was granted another survivor’s pension in 2010 after her father’s death.

- In 2014, the Institution revoked her entitlement to survivor’s pension (upon her father’s death) as it had been erroneously granted, seeking the return of the total amount the applicant had already received.

- Upon the dismissal of her challenge by the Institution, the latter unsuccessfully brought an action before the labour court and requested the return of the paid amount plus legal interest. On appeal, the regional court of appeal dismissed the request insofar it related to legal interest but ordered, with final effect, the reimbursement of the paid amount by the applicant to the Institution. 

- The reasoning of the regional court of appeal was apparently consistent with the previous jurisprudence of the relevant chamber of the Court of Cassation. However, it was subsequently amended in favour of the applicant.

- The relevant statutory provisions were interpreted differently by the Institution and the judicial authorities: therefore, the impugned interference was not based on a law fulfilling the requirements of legal certainty and foreseeability.

 

Remzi Saldıray

2016/2377

24 February 2021

(Second Section)

 

Violation of the right to enforcement of a judgment within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to declaration of a final court decision null and void.

- Res judicata, that is the principle of the finality of judgments, is recognised as one of the general principles of international law.

- The obligation to enforce the judicial decisions without delay, as enshrined in the last paragraph of Article 138 of the Constitution, is also a requirement of the principle of res judicata, which is accepted as one of the general principles of law.

- The labour court’s dismissal of the applicant’s case by declaring null and void the assize court’s decision which formed the legal basis for the applicant’s receivable, deprived the applicant of his right to enforcement of a final court decision favourable to him.

- Consequently, the Court found a violation of the right to enforcement of a judgment.

Press Release

Tahir Gökatalay (4)

2018/24477

24 March 2021

(Second Section)

Violation of the procedural aspect of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

-Alleged violation of the prohibition of ill-treatment due to the authorities’ failure to conduct an effective investigation into the case where the applicant had been injured while being taken into custody.

- The impugned investigation lasted 4 years and 6 months until the date when the application was examined and was still pending.

- Regard being had to the criteria such as the difficulty in the resolution of the impugned legal issue, the nature of the material facts, the obstacles encountered during the collection of evidence and the number of parties, the subject matter of the case was not of a very complex nature.

- Consequently, the Court found a violation of the procedural aspect of the prohibition of ill-treatment.

 

II. Constitutionality Review

E.2018/134

3 March 2021

(Plenary)

Annulment of the provision of Presidential Decree no. 14 allowing for certain arrangements regarding an issue regulated by a decree law

- Contested provision, third sentence of Article 21 § 3 of Presidential Decree no. 14 on the Organisation of the Directorate of Communications, stipulates that the procedures and principles regarding the contract to be signed, the amount of wages and all kinds of payments with respect to the personnel to be employed will be determined by the President.

- It is argued that the relevant issues are regulated in Additional Article 26 of Decree Law no. 357, and that no presidential decree can be issued on the matters explicitly regulated by law.

- Considering the Court’s case-law and practices regarding decree laws, they should be regarded as laws. Accordingly, no presidential decree should be issued on the impugned matter explicitly regulated by a decree law.

- The contested provision has been found in breach of Article 104 § 17 of the Constitution, and thus it has been annulled.

 

E.2018/127

18 March 2021

(Plenary)

 

Dismissal of the request for annulment of the provisions laid down in the Presidential Decree no. 10 embodying the principles and procedures as regards the content and publication of the Official Gazette

A. Article 2 of the Presidential Decree no. 10 insofar as it concerns “…. if deemed necessary…”

- As set forth in the contested provision, the Official Gazette shall be published via internet in every case, and it may be also published in printed form if deemed necessary.

- It is maintained that the contested provision renders access to the Official Gazette being limited merely to internet, which entails the risk of denial of access due to technical problems likely to arise.

- The contested provision is concerning a matter regarding executive power as the publication of the Official Gazette is a matter of administrative nature. Nor does it embody any regulation on the fundamental rights, individual rights and duties, as well as on the political rights and duties which cannot be regulated through a presidential decree.

- Nor is the provision concerning a matter needed to be regulated exclusively by law. Accordingly, it has been found constitutional insofar as it relates to the competence ratione materiae.

- As the Official Gazette is envisaged to be available in online version in all circumstances, the contested provision satisfies the accessibility requirement.

- Publication in printed form is limited for saving public resources and protecting environment: therefore, it pursues a legitimate aim.

- Accordingly, nor has it been found unconstitutional by its content.

B. Article 6 § 2 of the Presidential Decree no. 10 insofar as it concerns “… not found appropriate or…”

- It is stipulated therein that the regulations, communiqués and other regulatory administrative acts, which are issued by the ministries and public institutions & organisations and submitted for being published in the Official Gazette, shall be examined and returned if not found appropriate with the Presidential programmes as well as with the development plans and programmes.

- It is maintained that the return of the documents found inappropriate is contrary to the autonomous nature of universities; and that the notion of inappropriateness is not precise and the provision may therefore lead to arbitrary practices.

- The contested provision has been found constitutional insofar as it relates to the competence ratione materiae for fulfilling the respective criteria set forth above in heading A.

- The contested provision clearly states the scope and nature of the documents which may be subject to examination and returned.

- The scope and content of such examination are also determined, and the authority to make such examination is also designated.

- Therefore, the contested provision has not been found unconstitutional by its content.

 

E.2020/58

18 March 2021

(Plenary)

Annulment of Article 1 of the Presidential Decree no. 62 for being unconstitutional insofar as it relates to the competence ratione materiae

- The contested provision sets forth that the lecturers at the public universities, who are subject to Law no. 2914 on Higher Education Personnel, may also hold office as a councillor at the Central Bank of the Turkish Republic.

- It is maintained that the regulation concerning the lecturers to hold office at the Assembly of the Central Bank should have been made by law as no Presidential decree may be issued as regards the matters which are to be regulated exclusively by law (Article 104 § 17 of the Constitution).

- It is laid down in Article 130 § 9 of the Constitution that the relations of lecturers with public institutions and other organisations and their personal rights shall be regulated by law.

- The lecturers at the public universities are enabled, through the contested provision, to simultaneously hold two separate offices as stated above.

- It accordingly appears that the contested provision introduces an arrangement as regards the issues falling under Article 130 § 9 of the Constitution.

- Thus, it falls foul of Article 104 § 17 of the Constitution.

- It has been found unconstitutional and therefore annulled.

 

E.2020/35

31 March 2021

(Plenary)

 

Annulment of the provision requiring the court to make its decision in line with the sanction specified in the prosecutor’s written request

- Contested provision stipulates that upon the public prosecutor’s submission of a written request to the competent court, the latter shall make a decision in line with the sanction specified in the request, if certain conditions are met, otherwise it shall send the file to the chief public prosecutor’s office in order for the investigation to be concluded in accordance with the general provisions.

- It is maintained that the contested provision transfers the jurisdiction of the courts to the public prosecutors, that the court is forced to make a decision in line with the sanction specified in the public prosecutor’s request and thus was made dependent upon the determination and evaluation of the prosecutor, which is in breach of the principle of independence and impartiality of courts.

- The provision has been found in breach of the principles of the exercise of the judicial power by independent and impartial courts and the judge’s making a decision based on his personal conviction, and thus annulled for being unconstitutional.

 

E.2020/71

29 April 2021

(Plenary)

 

Annulment of the provision allowing for certain regulations related to the positions of faculty members through presidential decrees

- Contested provision, Article 1 of Presidential Decree no. 65, allows for certain regulations regarding the positions of faculty members.

- It is maintained that the contested provision goes beyond the powers of presidential decrees and that since it concerns academicians who perform fundamental and permanent public services, the provisions regarding such positions should be regulated by law.

- Pursuant to Article 104 § 7 of the Constitution, no presidential decree shall be issued on the matters which are stipulated in the Constitution to be regulated exclusively by law.

- It is also set forth in Article 130 § 9 of the Constitution that the duties, titles, financial affairs and personal rights of the teaching staff shall be regulated by law.

- It is obvious that the contested provision makes a regulation on a matter that should be regulated exclusively by law under Article 130.

- Consequently, the contested provision has been annulled for being unconstitutional.

 

E.2020/80

29 April 2021

(Plenary)

Annulment of the relevant provisions of the Opticianry Law no. 5193

A. Additional Article 1 § 2 added to Law no. 5193

-The contested provision envisages the issuance of regulation regarding the organisation, activities, organs of the Chambers and the Union, the duties of these organs, as well as the other respective acts and actions.

- It is maintained that the arrangement as regards the organs, duties, powers and organisation of the Chambers and the Union, which are in the form of a public institution by virtue of the relevant law, falls foul of the constitutional requirement of being established by law, and that the Union is empowered to introduce arrangements in this respect without a legal framework being set.

- As regards the issues which are not prescribed -in the Constitution- to be regulated by law, it is possible for the executive to make arrangements in detail upon establishing the general framework through a law.

- However, it is envisaged in the contested provision that the relevant issues be regulated through a regulation without the legal framework and basic principles thereof are being defined.

- It has been found unconstitutional and therefore annulled.

B. Third Sentence of Article 4 § 3 of Law no. 5193

- The contested provision envisages the application of discipline-related provision of Law no. 6643 on pharmacy officers, by analogy, to opticians.

- It is maintained that an application by analogy leads to uncertainty as these two professions have different characteristics.

- As required by the legal certainty principle, statutory arrangements must be clear, precise, comprehensible and objective for both individuals and the administration. They must also afford safeguards against the arbitrary practices of public authorities.

-Given the different nature of two professions, the contested provision leads to uncertainty. The relevant issues are not formulated in a foreseeable manner.

-  It has been found unconstitutional and therefore annulled.

 

E.2021/1

29 April 2021

(Plenary)

Dismissal of the request for annulment of the provision envisaging the stoppage of retirement pension of the paid-teachers lecturing at formal and non-formal educational institutions, albeit being a retired person, when they exceed the prescribed age-limit.

- As set forth in the contested provision, Article 30 § 4 (f) of Law no. 5335, those giving lectures, on payment, at formal and non-formal educational institutions of every kind and degree may continue receiving their retirement pensions on condition that they do not exceed the prescribed age-limit.

- It is maintained that the contested provision is compatible with the aims and duties of social state of law that is liable to remove economic obstacles.

- It appears that the provision is intended to ensure the employment primarily of the young and unemployed persons: it pursues the legitimate aim of resolving the unemployment problem.

- It does not completely eliminate the possibility of working in the relevant sector and provides those concerned with the opportunity to make a choice whether to lecture on condition of being deprived of their retirement pension they have been already entitled: striking reasonable balance between the pursued public interest and the right to labour, and thereby imposing no disproportionate restriction.

- Despite introducing an exception for those to lecture at universities (they shall not be deprived of their retirement pension), the contested provision is not found contrary to the principle of equality before the law, in consideration of the need for lecturers at universities.

- Besides, any person deprived of his retirement pension shall continue to receive it upon the termination of his professional relation with these institutions; therefore, imposing no excessive burden on those concerned due to such difference among those having the same legal status.

 

 
                  

Case

Decision

Case-Law Development

Related

I. Individual Application

Fatma Kılıç and İbrahim Haldız

2017/37387

21 Nisan 2021

(First Section)

Violation of the right to

protect one’s corporeal and spiritual existence safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to the failure to compensate for the non-pecuniary damage caused by the traffic accident.

- In the impugned accident where the applicants sustained damages and underwent a long-term medical treatment, there was a fault on the part of the administration.

- Pursuant to the applicable relevant legislation, any damage sustained, either pecuniary or non-pecuniary in the particular circumstance of the case, should be compensated for.

- Although the incumbent judicial authorities calculated the pecuniary damages sustained by the applicants, they failed to make any assessment as to the non-pecuniary damages.

- While the authorities acknowledged the administration’s fault in the incident, they failed to redress the non-pecuniary damage sustained by the applicants, which was in breach of the Government’s positive obligation in terms of the protection of the individuals’ corporeal and spiritual existence.

- Consequently, the Court found a violation of the right to protect one’s corporeal and spiritual existence.

 

Cahit Tamur and Others

2018/12010

24 February 2021

(Second Section)

 

Violation of the right to legal assistance within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to the failure to comply with the ECHR’s judgment.

- The applicants had been convicted of committing armed acts to disrupt the unity and integrity of the State.

- The applicants’ statements taken in the absence of legal assistance had been relied on in their conviction, which was found in breach of Article 6 of the Convention by the ECHR.

- Following the ECHR’s judgment, the applicants requested retrial; however, their request was dismissed by the assize court.

- Hence, the judicial authorities failed to comply the ECHR’s judgment.

- Consequently, the Court found a violation of the right to legal assistance within the scope of the right to a fair trial.

 

II. Constitutionality Review

E.2019/36

4 March 2021

(Plenary)

Dismissal of the request for annulment of the provision necessitating the screening of the films, which were evaluated and classified by the Ministry beforehand, in accordance with the appropriate signs and inscriptions

- Contested provision, Article 7 § 2 of Law no. 5224, provides that the films, which were evaluated and classified beforehand by the Ministry of Culture and Tourism, shall be screened in accordance with the appropriate signs and inscriptions during the relevant events.

- It is argued that the impugned provision prevents the commercial circulation and screening of the films not approved and allowed by the relevant Ministry.

- It is enshrined in Article 13 of the Constitution that any restriction on fundamental rights and freedoms shall be prescribed by the law, comply with the reasons set forth in the Constitution, and shall not be contrary to the requirements of the democratic order of the society and the principle of proportionality.

- The evaluation and classification of the films is appropriate and necessary for the protection of public order as well as the family and children. Thus, there is a reasonable balance between the public interest and the individual interest as regards the freedoms of expression and art, and thereby the alleged restriction is not disproportionate.

- Consequently, the contested provision has been found constitutional, and thus the request for its annulment has been dismissed. 

 

E.2019/47

4 March 2021

(Plenary)

 

Annulment of the provisions entailing sanctions for those using measuring instruments (meters) with expired seals and yielding inaccurate measures 

- Contested provisions entail sanctions for those who use measuring instruments (meters) with expired seals (stamped for verification) and yielding inaccurate measures.

- It is maintained that the contested provisions may lead to unjust punishment of the subscribers and also enable relevant service providers to act arbitrarily and thereby impose certain charges on the subscribers while replacing the meters as their seals have been expired.

- The contested provisions were examined under Article 38 of the Constitution which sets forth that criminal liability is personal.

- They are indeed intended for ensuring the proper and accurate use of such meters, in pursuit of national economy and public interest.

- However, imposing an administrative sanction on the subscribers for merely using meters with expired seals or yielding inaccurate measures, albeit they have no liability or fault on account thereof, amounts to their punishment due to an act committed by any other person.

- In this sense, the subscribers themselves cannot be expected to realise or inspect such failures as it would require technical knowledge and know-how.

- The contested provisions have been annulled for being unconstitutional.

 

E.2020/82

18 March 2021

(Plenary)

Dismissal of the request for annulment of Article 104 § 1 of the Turkish Criminal Code no. 5237

- Contested provision prescribes the imposition of imprisonment sentence, for a period of 2-5 years, on those having sexual intercourse with minors aged 15-18 in the absence of any force, threat or deception, upon complaint of the victim.

- It is maintained that the act of sexual intercourse with minors is distinct from the other offences which are set forth in the same code and prosecution of which is conditional upon complaint; and that criminalisation of the sexual intercourse with minors aged 15-18 in the absence of any force, threat or deception falls foul of international conventions.

- The contested provision was examined from the standpoint of Articles 13, 20 and 38 of the Constitution.

- The Court reiterates that sexual acts and behaviours, as a part of person’s intimacy, fall under the right to respect for private life.

- The contested provision undoubtedly restricts this right; however, it may be subject to certain restrictions for the fulfilment of certain obligations incumbent on the State by virtue of the other constitutional rights.

- It is intended for protecting minors at certain age in line with Article 41 of the Constitution, which provides that the State shall take measures for the protection of the children against all kinds of abuse and violence: impugned restriction pursues a legitimate aim.

- Besides, the restriction imposed by the contested provision is not in breach of the proportionality principle as the prosecution of the impugned act is made conditional upon complaint and the sentence imposed accordingly may be appealed.

- Consequently, the Court has dismissed the request for its annulment.

 
                  

Case

Decision

Case-Law Development

Related

I. Individual Application

Yeliz Erten

2020/99

11 March 2021

(Second Section)

Violation of the right to respect for family life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right due to the dismissal of the applicant’s request for being allowed to contact by phone with her school-age children on any other appropriate day.

- The applicant and her husband, with three school-age children, were held in the same prison. The convicts were allowed to make telephone conversations only on weekdays.

- However, the Ministry of Justice sent a letter to the prison administrations where it was stated that these conversations might be held also at weekends, if found appropriate by the prison board, so as to ensure the continued contact with school-age children.

- The board did not, however, allow any phone conversations at weekends.

- The applicant’s request before the execution judge whereby she requested to be allowed to make phone conversations with her children at a proper time either on weekdays or at weekends was dismissed. The objection thereto was also dismissed by the incumbent assize court.

- The board’s report, which was relied on also by the execution judge, referred to the probability of security risks if the convicts were allowed to make phone conversations at weekends: however, there were no detailed information or plausible and objective grounds as to such security risks.

- Besides, the applicant’s request for contacting by phone with her children at any proper time on weekdays was not taken into consideration.

- The authorities’ failures to consider the children’s best interest, to act in a way that would ensure the maintenance of the family ties and to provide sufficient and concrete reasons to justify the dismissal of the applicant’s request.

 

                  

Case

Decision

Case-Law Development

Related

I. Individual Application

Cafer Sezgin and Others

2018/20720

7 April 2021

(First Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right due to the revocation of the licenses granted for commercial and public transportation.

- By the decision of the relevant Municipal Council, 32 persons were granted an entitlement to make commercial and public transportation on a certain route designated by the municipality.

- Upon the establishment by the Court of Accounts that these licences were granted without a tender being made, the Municipal Council ordered the revocation of the licenses and re-assignment of such licences through a tender.

- The applicants’ actions for annulment of the Council’s decision were dismissed by the administrative court. Their subsequent appeals were also dismissed.

- The applicants’ entitlements were terminated by a unilateral decision and in the absence of any measure to afford redress for the possible damages to be suffered by the applicants.

- Unforeseeable and unreasonable burden was placed on the applicants.

- The impugned interference upset the fair balance to be struck between the applicants’ right to property and the public interest.  

 

II. Constitutionality Review

E.2019/89

4 February 2021

(Plenary)

Annulment of the first and second sentences of Provisional Article 14 added to Law no. 2942 on Expropriation

- Alleged unconstitutionality as the contested provisions constitute a disproportionate interference with the right to property.

- The contested provisions set forth that in actions brought in respect of confiscations without expropriation (as to price- or compensation-related claims), the decisions rendered by the courts shall not be subject to execution process until they become final and that the pending execution processes shall be suspended until the submission of the finalised decisions.

- In the past, certain immovables were confiscated without expropriation and assigned to public service for various reasons, which referred to the term “confiscation without expropriation”.

- The contested provisions preclude the initiation of execution proceedings with respect to court decisions which have not become final yet and also allow for the suspension of the execution proceedings already initiated: the provisions therefore cause delay in providing those concerned a redress due to the interference with the right to property and restrict the rights to property as well as to a fair trial.

The contested provisions have been found unconstitutional and annulled.

 

E.2018/99

3 March 2020

(Plenary)

 

Annulment of Provisional Article 13 added to Law no. 2942 on Expropriation;

Dismissal of the request for annulment of Article 12 § 5 and 6 of Law no. 4749 on Public Finance and Debt Management in so far as they relate to the terms “… municipalities, provincial special administrations, …”

A. Provisional Article 13 of Law on Expropriation

- Alleged unconstitutionality as the contested provision constitutes an interference with the judicial process and falls foul of the principles of non-retroactivity of laws and legal certainty.

- The contested provision envisages the extended application of the provision, which sets forth that the owners of the immovables who can no longer use their property rights due to the expropriation for a dam construction shall primarily apply to the commissions under the Governor’s Office so as to bring a legal action, to the cases pending before the courts. It accordingly sets forth that the pending cases shall be dismissed on procedural grounds and subsequently referred to the relevant commissions by the incumbent courts.

- The contested provision introduces a statutory arrangement, which has been already stipulated in a Regulation, and is intended for the speedy resolution of the expropriation-related claims without the need for bringing an action.

- The owners are thereby made to apply to another commission, which is similar to the one already established pursuant to the Regulation: procrastination of the resolution process.

- The contested provision prescribes no measure which would afford a redress for the damages sustained.

- It places an extraordinary burden on individuals and constitutes a disproportionate restriction on the right to property.

- The contested provision has been found unconstitutional and annulled.

B. Provision Allowing for the Transfer of Cash Resources of Provincial Special Administrations and Municipalities to the Single Treasury Account

- Alleged unconstitutionality as the contested provision falls foul of the administrative and fiscal autonomy.

- The contested provision envisages the tracking of all public revenues including the cash resources of provincial administrations and municipalities through a single account, which aims at effective and efficient management of public resources.

- However, it does not impose any restriction on the municipalities’ and provincial special administrations’ decision to make use of their resources. This arrangement relates to the revenues, which have not been spent or turned into an investment and which have been deposited in a bank account by these authorities.

- Not in breach of the autonomous nature of local administrations.

- The contested provision has been found constitutional, and the request for its annulment has been dismissed. 

 
                 

Case

Decision

Case-Law Development

Related

I. Individual Application

Süleyman Kurtel

2016/1808

22 January 2021

(Plenary)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right due to the termination of the payment of the share of attorney fees and reclamation of the payments already made.

- The applicant was entitled to a share of the attorney fees, and undisputedly, the share of the attorney fees that had been paid to the applicant was then regarded as his property.

- Accordingly, the impugned process cannot be regulated by a decree law for its being related to the payment of the share of attorney fees that falls under the scope of the right to property.

- The criterion of legality primarily entails the existence of a formal law in terms of the limitation of fundamental rights and freedoms.

- The Court’s case-law regarding the interference with the right to property stipulates that no regulation limiting the right to property shall be made through decree laws even if the Grand National Assembly of Turkey grants an express authority to the Council of Ministers.

- Therefore, the termination of the payment of a share of attorney fees and the request for the return of the already paid amounts, plus the legal interest, were not based on a statutory provision.

Press Release

II. Constitutionality Review

E.2020/15

24 December 2020

(Plenary)

Annulment of Additional Article 2 § 4 of Law no. 488 on Stamp Tax and Additional Article 1 § 4 of Law no. 492 on Fees, for being unconstitutional

- Alleged unconstitutionality as the provisions where the contested phrase “…at which foreign companies have also placed a bid…” are included lead to uncertainty for the bidders.

- The said provisions set forth that a tender which is put out by public institutions and organisations, allows for the participation of by both local and foreign companies, jointly or severally, and at which foreign companies have also placed a bid is an international tender. They also introduce tax and fee exemptions in terms of the public tenders of international nature. 

- The law-maker is entitled to introduce certain tax-related exemptions and privileges in certain circumstances. However, such regulations are to be sufficiently precise and foreseeable.

- A tender may be regarded as an international tender not only when it is accessible by both local and foreign bidders but also when foreign companies place a bid.

- However, the bidders do not know, at the time when they place their bids, the other bidders, whether any foreign company has placed a bid, and thereby whether the tender could be qualified as an international tender.

- Such an inability leads to an uncertainty for the bidders who could not foresee whether they are entitled to an exemption from stamp tax and fee as the tender in question is regarded as an international tender.

- The contested provisions are contrary to legal foreseeability and certainty.

 
                 

Case

Decision

Case-Law Development

Related

I. Individual Application

Semih Tekin

2018/34064

17 March 2021

(Plenary)

Violation of the right of access to a court under the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to the dismissal of the applicant’s action as regards his appointment process for being time-barred.

- The applicant, entitled to become a labour inspector at the Ministry of Labour and Social Security (the administration), applied to the latter as his appointment process had not been completed for so long.

- In its reply, the administration informed him that the relevant process was still pending and that he would be notified of the completion of the process.

- Not considering the administration’s reply as a final reply pursuant to Article 10 of Law no. 2577, the applicant awaited a final reply. Upon the expiry of six-month time-limit as from his application with the administration, the applicant brought an administrative action, which was however dismissed for being time-barred. His appeal request was also dismissed.

- He then applied to the administration for being afforded his personal and financial rights as his appointment had not be completed yet. It was, however, dismissed.

- The Council of State ultimately ordered the payment of the relevant amounts he had been deprived of, plus the incurred legal interest.

- Despite the clear provision in Article 10 of Law no. 2577 to the effect that the time-limit for bringing an action shall start running upon the expiry of six months during which a final reply is awaited, the inferior courts’ interpretation of the same provision in the present case was unforeseeable, thereby leading to the dismissal of the applicant’s action for being time-barred.  

- The impugned interference did not satisfy the lawfulness requirement.

 

Ali Yazıcı and Others

2018/20766

10 March 2021

(First Section)

 

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right due to the depreciation of the expropriation price. 

- The applicants’ immovable was expropriated by the relevant municipality on 5 May 1986. The applicants brought a personal action against the municipality in 2004 for the non-payment of the expropriation price. It was dismissed by the first instance court. The first-instance decision, upheld by the Court of Cassation, was subsequently quashed during the process of the rectification of judgment.

- Thereafter, the first instance court determined the respective amounts to be paid to the applicants, but without taking into consideration the inflation rates despite the period of approximately 32 years having elapsed.

-  The depreciation resulting from the delay in the payment of the expropriation price, in respect of which no fault was attributable to the applicants, placed an excessive burden on them.

- The impugned interference was not proportionate.

- The Court also ordered a re-trial.

 

Hasan Kılıç

2018/22085

27 January 2021

(Second Section)

 

Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the right to life due to the failure to investigate the Administration’s fault as regards the suicide bomb attack that had occurred in front of the Ankara Train Station during a demonstration.  

- In the actions for compensation to be brought before the judicial and administrative courts in order to establish the legal responsibility in terms of the right to life, the requirements of reasonable promptness and due diligence must be fulfilled.

- In the same vein, it is incumbent on the Constitutional Court to examine whether the inferior courts made an examination as required by Article 17 of the Constitution in the proceedings concerning such incidents.

- The applicant, with reference to the findings and evaluations in the preliminary examination report, raised, also before the regional court of appeal, his allegations that the respondent administration had failed to take the life-protecting measures in the incident and that the intervention of the security forces after the explosions worsened the consequences of the attack.

- However, the regional court of appeal upheld the administrative court’s decision, stating that it complied with the procedure and the law, but without explicitly examining the applicant’s allegations.

- It has been concluded that the inferior courts failed to examine the applicant’s case with due diligence as required by Article 17 of the Constitution.

Press Release

II. Constitutionality Review

E.2017/21

24 December 2020

(Plenary)

Annulment of the provision enabling the closure, with the approval of the relevant minister, of media outlets associated with organisations found established to pose a threat to the national security and confiscation of their properties

- Contested provision, Article 2 § 4 of Law no. 6755, regulates the closure,  upon the proposal of the commission to be established by the relevant Minister and with the approval of the Minister, of private radio and television outlets, newspapers and periodicals, publishing companies and distribution channels, which have been found to be a member of, or to have connection or contact with structures, organisations or groups that are found established to pose a threat to the national security or terrorist organisations, as well as the transfer of their all kinds of assets to the Treasury.

- It is claimed that since the impugned provision enables the closure of the relevant media outlets as well as the confiscation of their properties, it is in breach of the right to property. It is also claimed to limit the freedoms of expression, the press and information as well as right to publish periodicals and non-periodicals to an extent unnecessary in a democratic society, which is in breach of the principle of the State governed by the rule of law.

- In consideration of the threats and dangers giving rise to the declaration of the state of emergency, it should be accepted that the assessments to be made during the state of emergency may differ from those to be made in the ordinary period.

- General and abstract nature of the laws stems from the need to incorporate all solutions that may vary in the particular circumstances of each case within the relevant provision, in other words, to prevent any situation where the provision excludes a solution that may yield a proper result. Therefore, the contested provision is not unconstitutional in view of the principle that fundamental rights and freedoms shall be restricted by law.

- The provision intends to maintain the national security as well as public order and security. In this sense, it pursues a legitimate aim in constitutional terms.

- Pursuant to Article 28 of the Constitution, which entails a court decision for closing periodicals, the closure is a heavy sanction and a court decision is required even for temporary suspension.

- The contested provision serves the same purpose by regulating the direct and permanent closure of the said private radio and television outlets, as well as publishing companies and distribution channels; however, it ignores the means that would impose less restrictions on the freedoms of expression and the press.

- Undoubtedly, the direct closure constitutes the most severe interference with fundamental rights and freedoms among all the means that could achieve the same goal.

- The contested provision is also incompatible with the sub-principles of the principle of proportionality, which are necessity and proportionality in the narrower sense.

- The contested provision is also applicable during the state of emergency. In times of emergency, the Constitution stipulates certain conditions for derogating from the safeguards enshrined in the Constitutions in terms of fundamental rights and freedoms. In this regard, the conclusion that the contested provision is unconstitutional in the ordinary period does not have any bearing on its applicability, being limited to the state of emergency.

- Consequently, the contested provision has been found unconstitutional and therefore annulled.

Press Release
                

Case

Decision

Case-Law Development

Related

I. Individual Application

Mehmet Osman Kavala (2)

2020/13893

29 December 2020

(Plenary)

No violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the said right of the applicant for the alleged unlawfulness and unreasonable length of his detention on remand.

- The applicant was taken into custody within the scope of the investigation conducted into the coup attempt of July 15 and was then detained on remand by the magistrate judge for allegedly attempting to overthrow the constitutional order.

- Shortly afterwards, the applicant was again detained for obtaining confidential information held by the State, for political and military espionage purposes.

1. Alleged unlawfulness of the applicant’s detention on remand

- The prerequisite for detention is the existence of strong indication of guilt and of the plausible evidence to that end.

- The applicant was found to have had contact with a person who had allegedly spied against Turkey and had relations with the FETÖ/PDY that is the organisation behind the coup attempt. He was also found to have supported and financed some projects that might be identified with the ideology and claims of the PKK terrorist organisation.

-Besides, the offence of obtaining confidential information held by the State, for political and military espionage purposes concerned the objective to secure the information that must be kept confidential for reasons relating to the security or domestic or foreign political interests of the State.

-Regard being had to the nature and gravity of the imputed offence as well as the severity of the punishment prescribed by the law for such offences, the detention of the applicant was a proportionate measure.

- Consequently, the Court found no violation of the right to personal liberty and security regarding the alleged unlawfulness of detention.

2. Alleged unreasonable length of the applicant’s detention on remand

- There is a strong indication of the applicant’s having committed the imputed offences.

- Considering the grounds for detention relied on by the incumbent magistrate judges and assize courts as well as their considerations on the proportionality of the applicant’s detention on remand, the facts such as the risk of fleeing, risk of tampering with evidence, gravity of the offence, proportionality of the detention and insufficiency of the conditional bail came into play.

- The imputed offences are among the ones committed against the national security and classified among the gravest offences prescribed within the legal system. Besides, the investigations conducted into such offences are much more complex by their nature.

- The grounds underlying the applicant’s continued detention on remand were relevant and sufficient for justifying the deprivation of liberty.

- It has therefore been concluded that the length of the applicant’s detention on remand, 2 years and 10 months, has been reasonable.

- Consequently, the Court found no violation of the right to personal liberty and security regarding the alleged unreasonable length of detention.

 

Özlem Dalkıran

2017/35203

21 January 2021

(Plenary)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the said right to due to the failure to sufficiently demonstrate the existence of a strong indication of criminal guilt, a prerequisite for detention.

- The applicant, a well-known human rights activist, was taken into custody during a meeting held at a hotel in İstanbul and subsequently detained on remand.

- At the end of the criminal proceedings, the applicant was sentenced to 1 year and 13 months’ imprisonment for having knowingly and willingly provided assistance to a criminal organisation, while not being part of its hierarchical structure, on the basis of the case file as a whole, the statement of an anonymous witness, the contents of the relevant messages, HTS records and the identification reports.

- The investigation authorities failed to refute the applicant’s counter-arguments raised with respect to the allegations against her.

- The failure to sufficiently demonstrate the existence of a strong indication of criminal guilt, a prerequisite for detention, in view of the applicant’s defence submissions and the scope of the case file.  

- Violation of the relevant safeguards also from the standpoint of Article 15 of the Constitution, which allows for the suspension and restriction of fundamental rights and freedoms in times of a state of emergency.

Press Release

Yasin Agin and Others

2017/32534

Gülistan Atasoy and Others

2017/15845

21 January 2021

(Plenary)

 

Violation/No violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

- Alleged violation of the said right of the applicants, public officials, due to imposition of disciplinary punishment on them for their having attended certain meetings and demonstration marches.

 

As regards the application no. 2017/32534

- The applicants, teachers, were imposed disciplinary punishment for their allegedly having acted improperly as public officials, by attending a demonstration march that had been organised by the labour union of which they were member but banned by the governor’s office.

- The said demonstration march had indeed not dramatically interrupted the traffic flow.

- The judicial authorities failed to provide relevant and sufficient reasons to prove the alleged improper acts of the applicants as public officials as well as their adverse effects on the public service.

- The impugned disciplinary punishment imposed on the applicants did not serve a pressing social need and therefore was not necessary in a democratic society.

- Consequently, the Court found a violation of the right to hold meetings and demonstration marches.

 

As regards the application no. 2017/15845

- The applicants, public officials, were imposed disciplinary punishment for their allegedly having acted improperly as public officials, by attending certain demonstration marches in protest against Gezi Park events.

- The administration and inferior courts found out that the said demonstrations had not been conducted peacefully and thus become unlawful. The applicants did not challenge this finding of the authorities.

- It is incumbent of the public officials to abstain from acting in a manner shaking the confidence in them as well as damaging the reputation of and confidence in the public institutions they are holding office.

- The disciplinary punishment imposed on the applicants served a pressing social need and did not impose an unfair burden on the applicant, given the legitimate aim of protecting the public order. Hence, the said punishment complied with the requirements of the democratic social order.

- Consequently, the Court found no violation of the right to hold meetings and demonstration marches.

 

Ali İpekli and Others

2017/30997

22 January 2021

(Plenary)

 

Violation/No violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the said right of the applicants due to the alleged unlawfulness of their detention on remand for their membership of the PKK terrorist organisation.

As regards the applicants Kasım Oba, Ali İpekli and Doğan Erbaş

- Pursuant to Article 19 of the Constitution, detention on remand is justified only in the existence of strong indication of guilt that must be supported with plausible evidence.

- Given the photos and comments shared by the applicants on their social media accounts, which praised and incited to violence and made terrorist propaganda, there were strong indications of their having committed the imputed offence, which could justify their detention on remand.

- Consequently, the Court found no violation of the right to personal liberty and security.

As regards the other applicants

- The investigation authorities failed to sufficiently demonstrate the existence of strong indications that the applicants had committed the imputed offence.

- Consequently, the Court found a violation of the right to personal liberty and security.

 

Hatice Akgül

2018/35900

25 February 2021

(First Section)

Violation of the right to a trial within a reasonable time within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said right of the applicant due to the prolonged issuance of the reasoned decision in her favour.

- The case concerns the reinstatement proceedings initiated by the applicant challenging the termination of her employment contract.

- At the end of the impugned proceedings concluded in favour of the applicant, the decision was pronounced on 18 October 2017, whereas the reasoned decision was issued on 7 February 2019.

- The case is far from being complex in view of the criteria such as the difficulty in the resolution of the legal dispute, complexity of the material facts, challenges in collecting the evidence, and number of parties.

- It was stated in the labour court’s decision that the applicant might be reinstated only after the decision became final. Thus, the vital importance of the finalization of the decision for the applicant is apparent.

- The unjustified delay in the issuance of the reasoned decision resulted in the prolongation of the proceedings.

Press Release

Mehmet Köktaş

2018/ 35775

10 March 2021

(First Section)

Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to the lack of an effective investigation into the suicide committed during military service.

- The applicant’s son (M.K.), a contracted infantryman, committed suicide by shooting himself in the head while being on watch duty and lost his life at a hospital where he was taken by a helicopter.

- At the end of the administrative investigation conducted at the command, it was concluded that there was no concrete finding that might give rise to his suicide; and that there was no fault attributable to any personnel.

- Accordingly, the chief public prosecutor’s office issued a decision of non-prosecution, stating that there was no criminal element in M.K.’s death.

- The applicant challenged the decision, alleging that his son could not have committed suicide. However, his challenge was dismissed by the incumbent magistrate judge.

-  After the incident, the public prosecutor and the incident scene investigation team could not be present at the incident scene as M.K.’s death took place at a command located at the zone of anti-terror operations. Thus, no detailed incident scene investigation could be conducted.

- Besides, no autopsy was performed. However, there was no information indicating that M.K.’s dead body could not be transferred to another city with a forensic medicine institution for security reasons.

- Despite the absence of any fingerprint on M.K.’s riffle as well as of gunshot residue on his balaclava mask and helmet, no criminal examination was performed so as to ascertain whether the cartridge had been fired from his riffle.

- Thus, the chief public prosecutor’s office failed to clarify the circumstances of M.K.’s death.

 

Yaşar Çetinbaş

2018/ 34564

10 March 2021

(First Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right due to the failure to compensate for the damage caused to the applicant’s immovable.

- A viaduct was constructed nearby the applicant’s registered immovable. The applicant then filed a request with three respective authorities and sought for the expropriation of his immovable or its exchange with another immovable. Having obtained no favourable reply, the applicant then brought an action for compensation against these authorities.

- His action was dismissed on the merits. He then appealed the decision, which had been issued allegedly on the basis of incomplete examination and erroneous legal assessment as his loss had not been determined by the experts. 

- The inferior courts failed to take into consideration the applicant’s allegations and ultimately concluded that there was no damage sustained by him due to the restriction imposed on his right to property.

- Provided with no opportunity to prove his losses before the courts, the applicant was deprived of the procedural safeguards inherent in the right to property.

- An excessive and extraordinary burden was placed on him.

 
                

Case

Decision

Case-Law Development

Related

I. Individual Application

Ahmet Önder and Others

2018/23929

10 February 2021

(First Section)

Violation of the right to access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution.

- Alleged violation of the said right due to dismissal of the applicants’ request for rectification of the land register on procedural grounds for their failure to apply to the superior administrative authority as per the provisions of the Regulation on Land Registry.

- While it is enshrined in the Constitution that fundamental rights and freedom can only be restricted by law, the applicant’s right of bringing an action was not interfered with on the basis of law but in accordance with the provisions of the Regulation.

- Hence, dismissal of the applicants’ case had no legal basis and was therefore in breach of their right to access to a court.

 

Eyüp Toy and Saadet Toy

2017/34841

10 February 2021

(First Section)

Violation of the procedural aspect of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to the lack of an effective investigation into the suicide committed by the applicants’ daughter (N.T.) despite the alleged degrading treatment inflicted on her by the school principals and teachers.

- N.T. committed suicide after her mobile phone had been taken away by one of her teacher and it had been revealed that she had messaged one of her schoolmates.

-The prosecutor’s office immediately initiated an investigation into N.T.’s suicide.

- The applicants also filed a criminal complaint with the prosecutor’s office and sought the punishment of those responsible, maintaining that their daughter had been subjected to emotional pressure by the school principals and the relevant teacher and committed suicide on account of the embarrassment and fear she had suffered.

- However, a decision of non-prosecution was issued due to the lack of any causal link between the impugned acts of these public officials and N.T.’s suicide.

- Failure to investigate whether the suspected teacher or principals had displayed attitudes towards N.T., which amounted to ill-treatment, and whether N.T. had been subjected to any degrading treatment.

Press Release

Abdullah Kaya and Others

2017/26740

16 December 2020

(Second Section)

 

Violation of the right to access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution.

- Alleged violation of the applicants’ right due to dismissal of the full remedy action they had brought for the authorities’ failure to enforce the court decision that was in their favour.

- The applicants’ case was dismissed as being time-barred.

- It is set forth in the Constitution and the relevant law that court decisions shall be enforced immediately.

- According to the authorities, the applicants should have applied to the administration before filing a full-remedy action; however, such a requirement is not prescribed by the law.

- The grounds relied on by the court in dismissing the action brought by the applicants lacked legal basis, which was in breach of their right to access to a court.

 

Tochukwu Gamaliah Ogu

2018/6183

13 January 2021

(Second Section)

 

Violations of both substantial and procedural aspects of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the right to life due to the authorities’ failure to conduct an effective investigation into the incident where the applicant’s relative had been killed by a police officer.

- Although the applicant claimed that he was the brother of the deceased (a foreigner) and thus requested to intervene in the proceedings against the accused police officer, his request was rejected without any investigation conducted into the identity of the deceased.

- Besides, the investigation authorities failed to collect the evidence that might have clarified the incident, as well as they lacked independence and thus failed to conduct a rigorous and speedy investigation.

- The case is still pending despite the fourteen years having elapsed since the incident.

- The State has acted in breach of its substantial and procedural obligations in the present case where a person under its control was murdered by a public officer.

 
II. Constitutionality Review

E.2018/115

30 December 2020

(Plenary)

Annulment of the Decree Law no. 702 concerning the Organization and Duties of the Nuclear Regulatory Authority and Making Amendments to Certain Laws

- Contested Decree Law regulates the principles regarding the organisation, duties, powers and responsibilities of the Nuclear Regulatory Authority (NRA) as well as the personal rights of its employees.

- The Decree Law, in its entirety, is claimed to be unconstitutional since the purpose of the Empowering Act on which the relevant Decree Law is based is to ensure adaptation to the amendments made to the Constitution, while the foundation of the NRA does not fall within this scope.

- It is clear that foundation of the NRA has no concern with any adaptation to the amendments made to the Constitution.

- Besides, the repealed Article 91 of the Constitution sets forth the issues to be regulated by decree laws.

- The Court has concluded that the provisions of the contested Decree Law cannot be considered to comply with the purpose and scope of the power granted by the repealed Article 91 of the Constitution to issue decree laws.

- It is considered that the annulment of the contested Decree Law shall be effective one year after the publication of the decision in the Official Gazette in order to prevent any violation of public interest due to the legal gap to occur.

 

E.2020/81

14 January 2021

(Plenary)

Annulment of the phrase “…adjudicated…” in Provisional Article 5 (d) of the Code of Criminal Procedure no. 5271 for being unconstitutional, whereas dismissal of the request for the annulment of the phrase “…finalised…” therein for not being unconstitutional, insofar as these phrases relate to “simplified trial procedure”

- Alleged unconstitutionality as the contested provision hinders the retrospective application of the simplified trial procedure, which introduces arrangements in favour of the offender, and leads to different practices in respect of the offenders committing the same offences on the very same date.

- The contested provision sets forth that the simplified trial procedure shall not apply to the cases that have been adjudicated or finalised by 1 January 2020.

1. Phrase “…adjudicated…” insofar as it relates to “simplified trial procedure”

- The Constitution explicitly prohibits the retrospective application of a given law -prescribing a more severe sentence- to the offences committed before its effective date.

- This prohibition, emanating from the principles of legal certainty and legal security, also entails the application of a subsequent law that is more favourable than the one in force on the date of the offence.

- In its recent decision (E.2020/16), the Court examined and ultimately annulled the same provision insofar it relates to the phrase “…proceeded to trial” in terms of the “simplified trial procedure”. The Court considered that the prevention of retrospective application of the provisions having a bearing, on the length of a given sentence, to the advantage of the offender falls foul of Article 38 of the Constitution.

- No ground to require the Court to depart from its conclusion in the decision no. E.2020/16.

- Therefore, the phrase “…adjudicated…” was found unconstitutional and thereby annulled insofar it relates to the phrase “simplified trial procedure”.

2. Phrase “…finalised…” insofar as it relates to “simplified trial procedure”

In cases where this procedure applies, the aim is to ensure the conclusion of the proceedings within the shortest time possible. Therefore, as the trial process ends with a finalised decision, simplified trial procedure cannot apply in finalised cases, which is not contrary to Article 38 of the Constitution.

- Nor does it fall foul of the principle of equality as an accused –as the person charged with an offence at the very beginning of the trial– is not in the same legal situation with a convict whose trial has been concluded by a finalised decision and whose sentence is now executed.

- Therefore, the phrase “…finalised…” was found constitutional, and the request for its annulment was dismissed.

 
                

Case

Decision

Case-Law Development

Related

I. Individual Application

Cemal Günsel

2016/12900

21 January 2021

(Plenary)

Inadmissibility of the alleged violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom due to the relevant administration’s refusal to send the applicant’s letter for being inconvenient.

- The applicant, a convict, wished to send a letter along with a story -which he had written so as to participate in a story competition- by post to a person living in Belgium. However, the disciplinary board of the relevant penitentiary institution found the impugned text inconvenient and refused to send it.

- The applicant’s challenges against the refusal were dismissed by the incumbent magistrate judge and subsequently by the assize court.

- It is disputed between the applicant and the public authorities that whether the impugned interference constituted any violation and whether the impugned story legitimised terrorist acts, praised crimes and criminals and contained untrue and false information.

- The applicant failed to provide any explanation as to the content of the impugned story, as well as to assert that the administration and inferior courts made erroneous assessments.

- Nor did he substantiate that he had indeed wished to send it to participate in a story competition.

 

Hakan Aygün

2020/13412

12 January 2021

(First Section)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the said right due to unlawfulness of the applicant’s detention ordered on account of his certain posts in social media.

- The applicant was detained and indicted by the incumbent chief public prosecutor’s office for publicly inciting hatred and hostility and publicly degrading the religious values of a certain section of the society.

- The incumbent criminal court ordered his continued detention, and his challenge against this decision was dismissed.

- He was then released at the first hearing.

- The Court examined the applicant’s impugned posts to ascertain whether there was strong indication of the applicant’s guilt.

- It is evident that in his posts, the applicant used a tone otherizing certain sections of the society. However, they did not provoke hatred or hostility in one section of the public against another section with different characteristics based on social class, race, religion, sect or regional differences.

- The investigation authorities’ failure to demonstrate any imminent risk or a concrete damage caused by the impugned posts to the public order.

- The failure to sufficiently demonstrate the strong indication of guilt. 

 

Metin Duran

2018/33546

28 January 2021

(First Section)

 

Violation of the right to have adequate time and facilities for the preparation of defence under the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to the failure to notify the reasoned decision to the applicant.

- The applicant was convicted of sexual molestation by the criminal court, which suspended the pronouncement of the verdict. 

- The applicant’s lawyer submitted a petition so as to challenge the criminal court’s decision and also noted that he would submit the reasoned petition following the notification of the reasoned decision to them.

- However, the reasoned decision was never notified to them, whereas the decision was communicated to incumbent assize court that would conduct the appellate review. Their challenge was dismissed with final effect.

- He was thereby precluded from raising his arguments capable of ensuring his acquittal or mitigation of his sentence and thus from duly exercising his right to appellate review.

 

Mustafa Türkuz

2017/38496

13 October 2020

(Second Section)

 

Inadmissibility of the alleged violations of the rights to a reasoned decision as well as to a fair hearing

- Alleged violations of the said rights due to the recovery, from the applicant, of the compensation amount paid by the Ministry of Justice pursuant to a friendly settlement procedure.

- The applicant and two other public officers were convicted, at the end of the criminal investigation initiated in 2001, of having tortured and ill-treated the persons taken into custody for committing a theft at a gendarmerie station, by the assize court in 2013. The decision became final upon being upheld by the Court of Cassation in 2016.

- The victims lodged an application with the European Court of Human Rights (“the ECHR”) due to lack of an effective investigation as well as the excessive length of the proceedings against public officials.

- The proceedings before the ECHR were concluded with a friendly settlement reached in 2013 between the Ministry and the victims. The amount specified in the friendly settlement proposal was paid to the victims.

- The Ministry then filed an action for the recovery of the paid amount from the defendants including the applicant. The incumbent civil court ordered the recovery of the relevant amount from them. The applicant’s appellate request was dismissed with final effect.

- The inferior courts indicated the legal grounds and provided relevant and sufficient reasons in their decisions: inadmissibility of the alleged violation of the right to a reasoned decision.

- The payment made by the Ministry was not undoubtedly irrelevant to the applicant’s act leading to his conviction. Therefore, the first-instance decision did not contain any manifest arbitrariness or error of appreciation: inadmissibility of the alleged violation of the right to a fair hearing.  

 

A.G.

2018/6143

16 December 2020

(Second Section)

 

Violation of the right to respect for family life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right due to the ban on the applicant’s entry to Turkey.

- The applicant, a Chechen national, lost one of his legs due to a bomb attack in his home country. He then arrived in Turkey together with his family in 2005. His spouse and children acquired Turkish nationality in 2014, and he was granted residence permit in 2015.

- In 2016, he was placed in administrative detention pending his deportation, and a ban on his entry to Turkey was imposed upon his interrogation at the airport.

- The incumbent administrative court annulled the applicant’s deportation. However, his action and subsequent appeal against the ban on entering the country were dismissed.

- As regards the ban on entering the country, the relevant administration merely pointed to the purpose of national security on the basis of intelligence information. The instant court also dismissed the case on the very same reason.

- Failure to make an assessment as to whether the applicant indeed posed a threat to the national security.

- No assessment as to the applicant’s requests and challenges with respect to his private life.

-Lack of sufficient grounds to justify the interference with the applicant’s right to respect for private life, as well as of a fair balance between the public interest and this right.

 

Şehmus Altuğrul

2017/38317

13 January 2021

(Second Section)

 

Violation of the right to education safeguarded by Article 42 of the Constitution

- Alleged violation of the said right due to the declaration of the applicant’s post-graduate education null and void.

- The applicant applied for an exam to attend a postgraduate education programme (without thesis) of a university. The exam, announced to be held on 21 January 2013, was however postponed to 22 January due to the disclosure of the exam questions on the internet before the exam.

- The applicant, successfully passing the exam, was enrolled in the programme.

- At the end of the action brought against the exam, the administrative court ordered a stay of execution. The administration (university) challenged the order but it was dismissed by the Regional Administrative Court.

- The university ensured the students including the applicant to complete the postgraduate programme. However, the administrative court annulled the impugned exam at a subsequent date.

- The applicant’s request for being awarded a diploma or a graduation certificate was rejected due to the annulment of the processes related to the postgraduate programme. His action was also dismissed by the incumbent administrative court. 

- It is a constitutional obligation incumbent on the administration to enforce the annulment decision. However, the administration is to find the best solution by also taking into consideration the reasoning of the decision. It should abstain from prejudicing the rights of the third parties.

- The applicant had no fault in the annulment of the exam.

- Lack of a fair balance between the public interest in the enforcement of the annulment decision and the individual interest of the applicant.   

 

II. Constitutionality Review

E.2019/71

30 December 2020

(Plenary)

Annulment of the first (relevant phrases), second and third sentences of the amended Article 14 of the Presidential Decree no. 14 on the Organisation of the Directorate of Communications, for being unconstitutional

- Alleged unconstitutionality as the matters regulated through the Presidential Decree are already regulated by law and the authority afforded by the contested provisions are in breach of the autonomous and impartial nature of Anadolu Agency, a State-run news agency.

- The contested provision stipulates that the Directorate of Communications (“the Directorate”) has the authority to supervise the activities, budget, organisation and human resources management of Anadolu Ajansı Türk Anonim Şirketi (“the Anadolu Agency” or “Agency”), and the principles and procedures of the said supervision shall be determined by the Directorate; and that the contract to be signed by and between the Directorate and the Anadolu Agency shall set forth the procedures as to the appointment of the executives of the Agency.

- As regards the competence ratione materiae, it has been concluded that the contested provision does not address any issue, which has been explicitly regulated by law.

- As regards the content:

- First Sentence: It is concerning the Directorate’s supervisory power over the Agency’s budget as well as its activities, budget, organisation and human resources management. One of the issues in respect of which the Directorate has supervisory power over the Agency is the budget. Such a budgetary supervision by the central administration does not, in any aspect, have an adverse impact on the Agency’s autonomy and impartiality. However, the supervision of the Agency’s acts and activities by the Directorate, an executive unit operating under the Presidency, is both incompatible with the autonomous nature of the Agency and also likely to prejudice the impartiality of its broadcasts.

- Therefore, the Court has found the first sentence of the contested provision unconstitutional by its content and annulled it insofar as it relates to the phrases “… activities…” and “… organisation and human resources management…”, whereas found constitutional the remaining part of the first sentence and accordingly dismissed the request for annulment.

- Second Sentence: Vesting the Directorate with a regulatory authority with no definite boundaries, as to the supervision of the Anadolu Agency, without the basic principles and general framework being set has led to the delegation of the regulatory power, which is indeed conferred by the Constitution on the President, to the administration. Accordingly, the second sentence of the contested provision has been found unconstitutional by its content and therefore annulled.

-Third Sentence: It is set forth that the appointment procedures of the Agency executives shall be designated by the contract to be concluded by and between the Directorate and the Agency. Designation of the appointment procedures of the Agency executives through a contract renewed every year renders meaningless the autonomous nature of the Agency. Accordingly, the third sentence of the contested provision has been found unconstitutional by its content and therefore annulled.

Press Release

E.2020/57

30 December 2020

(Plenary)

Annulment of the provision precluding workers, non-members of the contracting labour union, to benefit from the provisions of the collective labour agreement

- Contested provision stipulates that the requests to benefit from the collective labour agreement before the date of signature shall become effective by this date.

- It is maintained that the provision forces the workers to be a member of the labour union concluding the collective labour agreement.

- It has consequences in favour of the workers who are already members of the contracting union by the date of its signature, thereby granting an advantage to the said union vis-à-vis the others.

- It has been concluded that the restriction imposed by the contested provision undermines the pluralism that should exist in a democratic society, and unfairly distorts the competition among the unions, in favour of the contracting union.

- The contested provision has been found unconstitutional and therefore annulled.

 Press Release

E.2019/104

14 January 2021

(Plenary)

Annulment of the provision requiring the resignation of the insured employees in order for them to be entitled to old age pension.

- Contested provision requires the resignation of the insured employees in order for them to be entitled to old age pension.

- It is argued that the provision is in breach of the right and freedom of employment.

- The contested provision is intended to ensure the proper functioning of the social security system.

- However, granting the insured employee the status of passive insured employee and arranging the premium payments accordingly will not have a negative effect on the proper functioning of the social security system.

- Besides, the provision leads to the deprivation of the insured employee concerned of any income for a period of three months on account of the relevant procedures.

- Hence, the contested provision has been found unconstitutional and therefore annulled.

 

E.2019/77

14 January 2021

(Plenary)

Dismissal of the request for annulment of the provision granting financial support in order to encourage local authors and works

- Contested provision grants financial support to each author, limited to one work, for copyrighted works that are included in the repertoire and will be staged for the first time in order to encourage local authors and works.

- It is argued that such an issue which is to be regulated exclusively by law has been regulated by presidential decree.

- The said financial support shall be covered by the allocation of the General Directorate of State Theatres for capital expenditures, and thus regulated by budgetary laws. Therefore, the provision falls within the scope of the implementation of the budget.

- Pursuant to Article 64 of the Constitution, the State shall protect artistic activities and artists as well as take the necessary measures to protect, promote and support works of art and artists.

- The contested provision is not in breach of the aforementioned constitutional provision.

- The provision has been found constitutional and therefore the request for its annulment has been dismissed.

 
                

Case

Decision

Case-Law Development

Related

I. Individual Application

Cemal Taş and Others

2016/3316

29 December 2020

(Plenary)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the applicants’ right due to the failure to compensate for the loss in value of their property for being designated as military security zone.

-- Declaration of the impugned property as a military security zone had consequences such as the restriction of its use, imposition of a ban on its transfer and renting as well as imposition of a de facto construction ban due to its particular location.

- While construction permits were granted with respect to other properties located in the same region, the applicants were not only denied a construction permit for their property, but also a de facto construction ban was imposed regarding their property.

- Public authorities have discretionary power regarding the removal of annotation or expropriation of the property; however, they failed to take an action in favour of the applicants.

- The applicants had to bear an excessive and extraordinary burden, therefore, the said interference with their property was not proportionate.

Press Release

 

Beyza Kural Yılancı

2016/78497

12 January 2021

(First Section)

Violations of the prohibition of treatment incompatible with human dignity, safeguarded by Article 17 of the Constitution, as well as of the freedoms of expression and the press respectively safeguarded by Articles 26 and 28 thereof

- Alleged violations of the said prohibition and freedoms due to the applicant’s being subjected to police intervention and force during the demonstration she attended as a press member.

- The applicant, a journalist who was at the incident scene to follow and report the protest demonstration, was handcuffed behind her back and taken into custody by the police despite introducing herself as a press member.

- She was then released, and no criminal investigation was filed against her.

- She filed a criminal complaint against the police officers and submitted a CD, pertaining to the impugned incidents and recorded by the applicant herself.

- In the interim medical report issued, it was noted that there were redress on the applicant’s two fingers and sensitivity on both arms.

- At the end of the investigation, the prosecutor’s office issued a decision of non-prosecution, considering that the applicant had been released after she had been revealed to be a journalist and that the police officers complained of had not exceeded the limits of their powers on the use of force.

- Lack of an effective criminal investigation, capable of leading to the identification and, if necessary, punishment of those responsible for the treatment inflicted on the applicant, which was incompatible with human dignity.

-No plausible evidence to demonstrate that the impugned intervention, which precluded the applicant from performing her profession, was lawful or pursued a legitimate aim.

Press Release

Ebru Çıtlak and Fazilet Demirbaş

2017/37573

2 December 2020

(Second Section)

 

Violation of the right to enforcement of judgments safeguarded by Article 36 of the Constitution

- Alleged violation of the applicants’ right for declaration of a finalized court decision null and void by the civil enforcement court.

- The enforcement proceedings commenced by the applicants for collection of non-pecuniary damages and counsel fees awarded to them within the scope of previous criminal proceedings were rejected due to the Court of Cassation’s subsequent order to discontinue the relevant criminal proceedings.

- Pursuant to the relevant statutory provisions and case-law, discontinuance of the criminal proceedings would not affect the personal actions seeking redress for the damages sustained.

- Therefore, the criminal court’s decision insofar as it concerned the payment of damages and counsel fees still remained in force.

- Rendering a final court decision null and void by another court is against the wording and spirit of the Constitution.

Press Release

S.B.

2017/19758

2 December 2020

(Second Section)

 

Violation of the right to an effective remedy, safeguarded by Article 40 of the Constitution, in conjunction with Article 17 thereof

- Alleged violation of the said right due to the inferior courts’ failure to make an examination on the merits of the action the applicant brought for the annulment of the order -whereby he would be deported to the country entailing a risk to both his physical and spiritual integrity- for the refusal of his request for legal aid.

- The applicant, a Russian national of Chechen origin who entered Turkey legally in 2013 due to the oppressions in his own country, applied to the relevant security directorate to obtain a legal residence permit in 2015.

- However, he was taken into custody, and his deportation was ordered.

- He then brought an action before the incumbent administrative court for the annulment of the deportation order and requested to be granted legal aid.

- His request was dismissed by the administrative court due to the lack of a bilateral agreement on legal aid between Turkey and the Russian Federation.

- Both the first instance court and Council of State declared the applicant’s action and requests related to the appellate proceedings non-filed due to his failure to pay the relevant court fees and expenses.

- The first instance court’s failure to make an inquiry and assessment as to the justification of the applicant’s request for legal aid.

- During the appellate proceedings, nor was any examination made as to the legal aid.

- The applicant’s action was not accordingly examined on the merits. He was therefore deprived of the opportunity to obtain an effective remedy.

Press Release

II. Constitutionality Review

E.2020/10

12 November 2020

(Plenary)

Annulment of the provision enabling the General Directorate of State Hydraulic Works to have private institutions and organizations perform the procedures for approval and acceptance of the projects on fish migration structures

- Contested provision enables the General Directorate of State Hydraulic Works, which is the authorized institution for approving, controlling and accepting the projects on fishways, fish elevators and other structures, to have the institutions and organizations it will determine perform the procedures for approval, control and acceptance of such projects.

- Article 128 of the Constitution provides that the fundamental and permanent functions required by the public services performed in accordance with principles of general administration shall be carried out by civil servants and other public officials.

- Given the nature of the procedures specified in the contested provision, which are fundamental and permanent functions that must be carried out according to the principles of general administration, they must be carried out by public officials.

- Therefore, the contested provision has been found unconstitutional and annulled.

 
                

Case

Decision

Case-Law Development

Related

I. Individual Application

Sabri Uhrağ

2017/34596

29 December 2020

(Plenary)

Violation of the right to an effective remedy safeguarded by Article 40 of the Constitution, in conjunction with the right to property safeguarded by Article 35 thereof

- Alleged violation of the said right to due to the statutory provision precluding an examination on the merits of the alleged violation of the right to property and the award of a redress.

- The applicant’s immovable, situated in a coal basin, entirely become uninhabitable for being damaged as a result of the collapses caused by the subsidence, which had resulted from the defective coal production.

- He brought a personal action against the Turkish Hard Coal Enterprise Institution (“the TTK”) and the operator, a private company. However, it was dismissed by the incumbent civil court, based on Article 3 of the Law no. 3303, which envisages that the registered owners of immovables cannot claim any right and compensation on account of damages caused by mining activities.

- The first-instance decision was upheld by the Court of Cassation, which also dismissed the applicant’s subsequent request for rectification of decision.

- Despite the general provisions under the Turkish Code of Obligations no. 6098, which allow for the redress of the damages that have resulted from mining activities, Article 3 of Law no. 3303 renders dysfunctional this legal avenue, which is available in theory, in so far it concerns the hard coal basin.

- Failure of both the first instance court and the Court of Cassation to discuss whether the impugned damage resulted from the faulty actions of the TTK or the company during the mining activities.

Press Release

 

Kadri Enis Berberoğlu (3)

2020/32949

21 January 2021

(Plenary)

Violations of the right to be elected and engage in political activities as well as right to personal liberty and security, respectively safeguarded by Articles 67 and 19 of the Constitution

- Alleged violations of the applicant’s rights for non-enforcement of the Court’s judgment and continued execution of his sentence.

- Pursuant to Article 153 of the Constitution, courts and other bodies exercising public power cannot refrain from enforcing or complying with the Courts’ judgments.

- Non-enforcement of the Court’s judgment and failure to redress the consequences of the violation clearly fall foul of the Constitution and are contrary to the will of the constitution-maker.

- The decisions of the inferior courts run contrary to the wording of the Constitution, and thus, the applicant’s continued placement in the penitentiary institution as a convict lacks a legal basis.

- The Court has specified certain obligatory procedures to be fulfilled by the incumbent court.

- In a country where the bodies, courts and individuals exercising public power act contrary to the law, a state governed by rule of law ceases to exist. The failure to enforce the judgments of the Court results in grave violations of the principle of rule of law.

- Maintaining the constitutional order is not incumbent solely on the Constitutional Court. Constitutional institutions, bodies exercising public power, natural or legal persons also have an obligation to protect the Constitution and abide by constitutional provisions.

- The relevant violation judgments of the Court should also be communicated to the relevant institutions, particularly the GNAT and the Council of Judges and Prosecutors.

Press Release

Ahmet Endes and Others

2018/19018

15 December 2020

(First Section)

 

Violations of both substantive and procedural aspects of the prohibition of torture as well as procedural aspect of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

- Alleged violation of the prohibition of torture and ill-treatment due to the disproportionate use of force by the law-enforcement officers during a search conducted in the applicants’ residence as well as the authorities’ failure to conduct an effective investigation into the incident.

- It must be noted that the applicants were not suspects within the scope of the investigation where the search warrant was issued.

- The use of force resulted in certain fractures on the applicants’ bodies.

- Inconsistency between the decisions of the public prosecutor and the criminal court: While the public prosecutor accepted the use of proportionate force by the law-enforcement officers, the latter found disproportionate the impugned use of force.

- The public authorities’ failure to prove the proportionality of the use of force.

- In fact, the alleged use of force amounted to torture.

- Besides, the applicants were not allowed to participate in the investigation process.

- Hence, the investigation authorities lacked due diligence.

 

Celal Oraj Altunörgü

2018/ 31036

12 January 2021

(First Section)

 

No violations of the right to the protection of personal data and the freedom of communication respectively safeguarded by Articles 20 and 22 of the Constitution

- Alleged violations of the said right and freedom due to monitoring of the applicant’s corporate e-mail account by the employer and the termination of his employment contract based on these correspondences.

- The applicant was holding office in a private bank. His employment contract, where it is clearly envisaged that the corporate e-mail account assigned to him shall be used only for professional purposes and that the e-mail account may be monitored by the bank management without any prior notice, was terminated as it was found established that he had been engaged in commercial activities through his corporate e-mail account in breach of the working principles and procedures of the bank.

- The applicant unsuccessfully brought an action for his reinstatement. His subsequent appeal was also dismissed with final effect.

- Despite the applicant’s allegation that his corporate e-mail account was monitored without a prior notice and his consent, his employment contract embodies a provision allowing for the monitoring of his e-mail account without any prior notice.

- It is also explicitly noted in the employment contract that any breach of the obligations specified therein may give rise to the termination of the employment contract.

- The employer monitored and examined the applicant’s e-mails in so far as they were in support of the allegation and used these e-mails merely for substantiating its claims during the proceedings.

- The inferior court provided relevant and sufficient grounds in its decision.

-  Besides, the applicant could also effectively participate in the proceedings.

Press Release

II. Constitutionality Review

E.2020/64

12 November 2020

(Plenary)

Dismissal of the request for annulment of the provision stipulating the collection of all administrative fines for the return of the driving licence seized due to driving under the influence of alcohol, drugs or stimulants

- Contested provision sets forth that in order for getting back the seized driving licence, all administrative fines that were imposed under the same provision shall be collected.

- It was argued that such a restriction, namely the collection of all imposed fines, was disproportionate.

- The contested provision is applicable to those who drive under the influence of alcohol, drugs or stimulants.

- Such a regulation intents to ensure the traffic order and safety, which therefore pursues a legitimate aim and corresponds to a pressing social need.

- Therefore, the contested provision has been found constitutional, and thus, the request for its annulment has been dismissed.

 
                

Case

Decision

Case-Law Development

Related

I. Individual Application

Onur Arslan

2017/17652

15 December 2020

(First Section)

Violation of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to the death of the applicant’s sister following an unlawful medical intervention, which had been performed under the State supervision and control, as well as due to the dismissal of the applicant’s action for a full remedy.

- The applicant’s sister lost her life after she had undergone an abortion operation, which had been unlawfully performed by a gynaecologist at a state hospital, in the twenty-fourth week of pregnancy.

- The gynaecologist was sentenced to 5 years’ imprisonment at the end of the criminal proceedings in 2018. In 2019 the incumbent court ordered the setting aside of the conviction decision as the gynaecologist had died, which was also upheld by the Court of Cassation.

-  The applicant’s claim for pecuniary and non-pecuniary damage was dismissed by the Ministry of Health for the lack of medical malpractice. His subsequent action for a full remedy was also dismissed.  

- The gynaecologist, a public officer, performed the operation at the state hospital, in company with the other staff, during a working day despite being on leave, without informing the hospital authorities of the process.

- Organisational failure attributable to the state hospital as the administration failed to duly fulfil its duty of supervision and control, which would ensure the medical staff to abstain from performing any criminal acts.

- Besides, the dismissal of the applicant’s claim for compensation was also incompatible with the principles for the protection of the right to life. 

Press Release

Osman Palçik

2018/25073

15 December 2020

(First Section)

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom due to the applicant’s punishment on account of his criticisms against a politician who was being prosecuted.

- The applicant, a columnist in a local newspaper of a district, shared unfavourable posts against M.G. through his social media account.

- M.G., mayor of the same district, was being prosecuted on charges of bribery and corruption as well as of membership of a terrorist organisation. Ultimately, he was acquitted of the charges of bribery and corruption, and a decision of non-prosecution was issued in respect of his alleged membership.

- Upon M.G.’s complaint, the applicant was imposed a judicial fine for insulting the former.

- Whether a fair balance was struck the applicant’s freedom of expression and the complainant’s right to honour and reputation.

- Given the proceedings conducted against M.G., the applicant’s expressions against M.G. had indeed factual basis and were proportionate. Nor did they constitute an insult. 

- As a politician, M.G. should have shown more tolerance towards criticisms against him, compared to ordinary persons.

- Having expressed his opinions about the current issues of the district, the applicant made contribution to a debate of public interest.

- However, the court, convicting the applicant, failed to strike a fair balance between the respective rights of the applicant and the complainant. 

 

                

Case

Decision

Case-Law Development

Related

I. Individual Application

Esra Özkan Özakça

2017/32052

8 October 2020

(Plenary)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the applicant’s right due to the unlawfulness of the measure entailing the obligation not to leave residence (house arrest).

- The applicant’s husband, dismissed from public office while serving as a teacher through a Decree-law issued under the state of emergency, embarked on a sit-down strike and subsequently on a hunger strike.

- The applicant then joined her husband and went on a sit-down strike and subsequently on a hunger strike when the latter was detained on remand for his alleged membership of a terrorist organisation, namely the DHKP/C.

- The applicant was also subjected to an investigation for the very same offence and ultimately granted a conditional bail requiring her not to leave residence.

 - At the end of the criminal proceedings, the measure entailing the requirement not to leave residence was replaced with the measure requiring her to report to the police station for signature.

- Going on a sit-down or a hunger strike, which may be under certain circumstances regarded as a special aspect of the freedom of expression, should not be considered per se to constitute an offence, in the absence of any finding that these acts have been performed in relation with terrorism or for the purposes of praising, legitimising or encouraging the use of the terrorist organisation’s methods involving coercion, violence and threat.

- No document or finding in the investigation file to demonstrate that the applicant embarked on sit-down and hunger strikes for an organisational purpose or she had engaged in such acts as a stance in favour of the terrorist organisation.

Press Release

Şahin Alpay (3)

2018/10327

3 December 2020

(First Section)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the applicant’s right since although the Court had previously ordered that the violation and its consequences would be redressed through his release, the inferior court granted him conditional bail requiring him not to leave residence (house arrest).

- The applicant filed an individual application for the third time. In his previous two applications, the Court found a violation of the same right.

- The inferior courts insisted on their practices resulting in the applicant’s deprivation of liberty.

- Whether the measure entailing the obligation not to leave residence constitutes an interference with the right to personal liberty and security is at issue.

- In one of its recent judgments in another case, the Court concluded that given its nature and the way of its application, the impugned measure constituted an interference with the right to personal liberty and security.

- The incumbent courts failed to demonstrate the strong indication of the applicant’s guilt as a prerequisite for the measure entailing the obligation not to leave residence.

- The inferior courts failed to redress the violation and its consequences, which had previously been found by the Court.

Press Release

K.S.

2017/29420

3 December 2020

(First Section)

 

Violation of the right to an effective remedy safeguarded by Article 40 of the Constitution in conjunction with the prohibition of ill-treatment safeguarded by Article 17 thereof

- Alleged violation of the said right due to the applicant’s deportation to a country where there existed a risk of ill-treatment against him and the non-suspension of the deportation process pending the action brought against his deportation order.

- The applicant of Uzbek origin legally residing in Turkey with his family was placed in administrative detention, pursuant to Law no. 6458 on the Foreigners and International Protection, on suspicion of having a link with a terrorist organisation.

- The incumbent administration also ordered his deportation.

- Pending the administrative action brought by him for the stay of execution of his deportation order due to the risk of his being subjected to ill-treatment, at the end of which the deportation order was annulled with final effect, the applicant was deported to his country.

- Despite the annulment of the deportation order by the judicial authorities, the applicant was deported to his country as no interim measure to suspend his deportation had been taken.

- The administrative and judicial authorities’ failure to conduct a rigorous assessment as to the alleged risk of ill-treatment in case of deportation.

 

Rıdvan Batur

2018/17680

3 December 2020

(First Section)

Violations of the principles of equality of arms and of the adversarial proceedings inherent in the right to a fair trial

- Alleged violations of the said principles due to the failure to notify the information and documents relied on as a basis during the proceedings to the applicant.

- The applicant, having successfully passed the exam held by the relevant Ministry, was not appointed as a tax inspector. He filed an application with the Ministry to be informed of the reasons precluding his appointment but could not receive any concrete explanation.

- He then filed an action before the incumbent administrative court; however, it was dismissed. The applicant’s appeal request was also dismissed.

-The administrative court concluded mainly on the basis of the documents submitted by the relevant Ministry that the process whereby the applicant’s appointment had been denied was lawful.

- The applicant was not provided with practical and effective opportunities to examine, to comment on, and to challenge the documents forming the basis of the decision.

 

Barış Koç

2016/11722

15 September 2020

(Second Section)

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom due to the applicant’s being imposed a disciplinary sanction on account of his petition submitted to his military superiors.

- The applicant, a military officer at the Turkish Armed Forces, submitted a petition to his superiors and sought for certain arrangements concerning the guard duty.

- Thereafter, the applicant, asked to submit his defence submissions on account of certain expressions in his petition, was given a disciplinary sanction (reprimand). His challenge for the annulment of this sanction was dismissed by the relevant command.

- Civil servants including the military officers are entitled to freedom of expression, like all other individuals of the society.

- The applicant was given a disciplinary sanction not for having submitted a petition but for his certain statements found to be in breach of the correspondence rules within the military and rules to be observed in addressing to superiors.

- The petition was not formulated in a harsh and impudent style.

- The sanction imposed on the applicant did not meet any pressing social need in a democratic society.

 

II. Constitutionality Review

E.2019/100

22 October 2020

(Plenary)

Dismissal of the request for annulment of the contested phrase included in the second sentence of Article 5 § 4 (a) of Law no. 7143

- Pursuant to Article 5 of Tax Amnesty Law no. 7143, which embodies the contested provision, if any tax amount having accrued due to an increase in tax basis or tax is not paid within the time-limit and in the manner prescribed in the law, the due amount shall be collected, pursuant to Article 51 of Law no. 6183, plus the accrued default interest; and the relevant tax-payers shall not seek for the application of Article 5 of Law no. 7143.

- It is maintained that the contested provision makes the tax-payer failing to satisfy the payment conditions subjected to two separate sanctions; that therefore, the contested arrangement is not fair and proportionate and is also in breach of the principles of fairness as well as of equality in taxation.

- Given the provision in question, the Court has concluded that the restriction has been imposed through an accessible, precise and foreseeable provision of law.

- The tax administration is entitled, by virtue of the contested provision, to have recourse to two different processes at the same time in order to ensure the collection of the due amount of tax. However, it does not amount to a double taxation.

- Besides, there is an available legal remedy whereby those concerned may have recourse to in case of any dispute likely to derive from the application of the contested provision.

- Although the contested provision imposes a restriction on the right to property, necessary and sufficient safeguards have been afforded to avoid any excessive individual burden.

 

                

Case

Decision

Case-Law Development

Related

I. Individual Application

Abdullah Yaşa

2015/12486

5 November 2020

(Plenary)

Violation of the right to an effective remedy safeguarded by Article 40 of the Constitution

- Alleged violation of the applicant’s right for the administration’s failure to redress the non-pecuniary damage he had sustained due to his injury as a result of disproportionate use of force by the security forces.

- It was already found established by the ECHR that the prohibition of ill-treatment had been violated, and thus the applicant was awarded compensation.

- Existence of an explicit inconsistency between the ECHR’s judgment and the administrative court’s decision dismissing the applicant’s action for compensation, given their respective reasoning and conclusions.

- Article 46 § 1 of the Convention, which provides that the final judgments of the ECHR are binding for the Contracting Parties, comes into play.

- In cases where the ECHR has found a violation of any constitutional right, the individual concerned shall have a right to an effective remedy.

- In addition, there is a contradiction between the findings of the administrative court and those of the assize court.

Press Release

Candar Şafak Dönmez

2015/15672

5 November 2020

 (Plenary)

No violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom due to the lack of relevant and sufficient reasons to justify the applicant’s conviction.

- The applicant was sentenced to imprisonment severally for his membership of the TKP/ML–TIKKO (the Turkish Communist Party-Marxist Leninist - Turkish Workers and Peasants’ Liberation Army) and for having disseminated terrorist propaganda.

- Given the slogans chanted and the activities performed by him, he was proven to praise the members of the terrorist organisation, to support their violent activities and to glorify the deceased members of the organisation in the context of their organisational role.

- His impugned acts cannot be considered merely as an abstract danger.

- The impugned interference was found to meet a pressing social need, be proportionate and compatible with the requirements of a democratic society.

 

II. Constitutionality Review

E.2019/21

24 September 2020

(Plenary)

Annulment of the provisions on the revocation of demolition orders and administrative fines with respect to the unlicensed buildings situated in the Bosphorus Frontal View Area

- Contested provisions allow for the revocation of the demolition orders issued and administrative fines imposed with respect to the unlicensed buildings situated in the Bosphorus Frontal View Area, as well as for the official registration of the buildings constructed in contravention of Zoning Law.

- Alleged to be unconstitutional as they contradict the State’s duty to preserve the historical, cultural and natural assets and hinder the execution of the demolition orders issued with respect to the several unlicensed constructions situated in the Bosphorus Area, as well as the collection of the administrative fines imposed on account thereof.

- As clearly indicated in the Constitution, the State is under the obligation, inter alia, to take measures so as to improve the natural environment, to protect the environmental health as well as to secure the protection of historical, cultural and natural assets and wealth.

- The preservation of the Bosphorus coastline and the frontal view area, having several outstanding cultural and natural assets, is a concern not only to those living today but also to the next generations: involving a significant public interest.

- No reasonable balance between the competing interests.

Press Release

E.2019/7

15 October 2020

(Plenary)

Dismissal of the request for annulment of the provision stipulating that the uncollected administrative fines regarding the buildings with a building registration certificate shall be revoked.

- Contested provision sets forth that the uncollected administrative fines regarding the buildings with a building registration certificate shall be revoked.

- The provision is claimed to be unconstitutional since it puts those who have already paid the fines at a disadvantage when compared to those who have not made a payment yet, despite being in the same legal position and situation, which is allegedly in contradiction with the principle of equality.

- It is clear that the first group is at a disadvantage.

- However, the aim pursued by such a regulation is to reduce the workload of the judiciary and municipalities. Hence, it pursues a legitimate aim.

- Within the scope of the reconstruction peace, it is at the discretion of the legislator to revoke the already collected administrative fines, provided that it is not contrary to the constitutional rules and principles.

- Besides, the impugned rule is provisional.

- The contested provision is based on a reasonable and objective ground and is proportionate; therefore, it has been found constitutional, and the request for its annulment has been dismissed.

 

                

Case

Decision

Case-Law Development

Related

I. Individual Application

Mehmet Aypan

2016/4868

30 September 2020

(Second Section)

Violation of the right to protect the corporeal and spiritual existence safeguarded by Article 17 of the Constitution

- Alleged violation of the impugned right due to insufficient compensation awarded for visual loss caused during military service.

- The applicant, found medically fit for military service, was recruited in the Gendarmerie Training Command. Having complained of pain and visual loss in his one eye, the applicant was then referred to a hospital where he underwent a surgery for having eye infection.

- He was subsequently discharged from the army for being no longer fit for military service.

- He suffered a total loss of vision in his eye.

- In the action brought by him for compensation, the Supreme Military Administrative Court found neglect of duty on the part of the relevant administration for having recruited the applicant who had been indeed medically unfit for military service and accordingly awarded pecuniary and non-pecuniary compensation.

- The Court however observed a manifest disproportionality between the amount of non-pecuniary compensation awarded to, and the damage sustained by, the applicant and found the awarded amount so low that would impair the very essence of the right to compensation.

- Positive obligations incumbent on the State within the meaning of the right in question were not fulfilled in the present case.

Press Release

Public Services Employees Union of Turkey

2016/14475

30 September 2020

(Second Section)

Violation of the right to union safeguarded by Article 51 of the Constitution

- Alleged violation of the said right due to the refusal to grant leave for an investigation against an administrator allegedly exerting pressure on the unionised employees.

- As maintained by the applicant union, the Deputy Mayor ordered the unionised employees working in a municipality to immediately resign from the union and otherwise, their employment contracts would be terminated. 

- In this sense, the employment contract of the union’s representative at that workplace was terminated. However, the incumbent civil court ordered the reinstatement of the union’s representative to his post, stating that his employment contract had been terminated for union-related reasons, as in the cases of two other employees who had been also dismissed.

- The applicant union filed a criminal complaint before the incumbent prosecutor’s office against the Deputy Mayor for his having precluded the exercise of union-related rights. However, no leave was granted for an investigation.

- The way in which the public authorities conducted the investigation was not capable of having a deterrent effect to prevent unjustified interferences with the right to union.

Press Release

Majid Momtaz

2017/24261

30 September 2020

(Second Section)

No violation of the right to respect for family life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right due to the deportation order issued against the applicant. 

- The applicant, a foreign national married to a Turkish citizen with two children, was sentenced to imprisonment for forgery of official documents. He was then released on conditional bail. A decision ordering his deportation and administrative detention was issued due to his posing a threat to the public order.

- His action for annulment of the decision was dismissed by the administrative court. His request for an interim measure to stay the execution of the deportation order was also dismissed by the Court.

- The applicant’s failure to take the necessary steps to lawfully reside in Turkey despite living in the country for about 30 years and married to a Turkish citizen.

- His deportation order was overridden by the legitimate aim of maintaining public order and security.

- Nor did he submit any concrete information or document to show the serious obstacles to his living with his family outside Turkey.

 

II. Constitutionality Review

E.2020/60

1 October 2020

(Plenary)

Dismissal of the request for annulment of the provisions allowing for the establishment of several bar associations in the same province

- Contested provisions allow for the establishment of a bar association, with the presence of a minimum of two thousand lawyers, in the provinces with more than five thousand lawyers exercising the legal profession and accordingly set forth the relevant principles and procedures.

- It is argued inter alia that Article 135 of the Constitution cannot be interpreted in a way that would allow for the establishment of several public legal entities in a region so as to exercise the same profession; and that the establishment of more than one bar association in the same province would lead to an impression that the lawyers from the bar associations having a close relationship with the ruling party would be in a more advantageous position vis-à-vis the others before the judiciary.

- The Court notes that there is no constitutional restriction to the effect that there cannot be several professional organisations in the form of a public institution in the same region.

- Whether the enacted law is in pursuance of public interest: The Court found that the contested provisions do not pursue any aim other than that of the public interest.

- Besides, legal measures have been taken so as to prevent the bar associations from engaging in any activity that serve any aim other than those specified in the Constitution and Law.

Press Release

E.2018/124

15 October 2020

(Plenary)

Dismissal of the request for annulment of the contested provisions laid down in the Presidential Decree on the Presidency of Defence Industry

A. Contested provision empowering the Presidency of Defence Industry (“PDI”) to found its organisation abroad.

- It is argued that the PDI’s organisation abroad cannot be founded through a Presidential Decree.

- The contested provision is concerning a matter regarding executive power and does not embody any regulation on the fundamental rights, individual rights and duties, as well as on the political rights and duties which cannot be regulated through a presidential decree.

- Nor is the provision concerning a matter needed to be regulated exclusively by law. Accordingly, it has been found constitutional insofar as it relates to the competence ratione materiae.

- Nor has it been found unconstitutional by its content.

B. Contested Provision on the appointment procedure of the PDI’s personnel

- It is set forth therein that the personnel of the PDI shall be appointed upon the approval of the President; and that the President may delegate this authority to the Head of the PDI.

- It is argued that the principles and rules on the employment of the PDI’s personnel should have been regulated by law; and that as the employment by public institutions falls within the scope of the right to hold a public office, this issue cannot be regulated through a presidential decree.

- The contested provision merely designates the competent authority to appoint the PDI’s personnel and does not contain any arrangement as to the employment requirements. It is therefore not a matter falling under the scope of the right to hold a public office.

- Nor is there any provision of law explicitly regulating this matter.

- Accordingly, the contested provision has been found constitutional insofar as it relates to the competence ratione materiae.

- As the contested provision, which is to be clear, precise, comprehensible, enforceable and objective to the extent that would cause no hesitation and doubt for both individuals and the administration, involves no unclarity, it has been found constitutional by its content.

 

E.2020/14

15 October 2020

(Plenary)

Annulment of the contested phrase “… imprisonment for longer than 6 months” in Article 6 (E) of the Law no. 772 on the District Guards, the assistant law-enforcement officers (“Bekçi”)

-Contested provision stipulates that those who have been sentenced to imprisonment for longer 6 months are not eligible to serve as a district guard. 

- It is argued that the contested provision does not contain any distinction as to the nature and classification of the criminal act due to which imprisonment sentence is imposed, despite the general conditions sought for becoming a public officer, which only prohibits holding a public office in case of imprisonment due to a deliberate offence.

- It has been found unconstitutional and therefore annulled for serving no legitimate aim within the constitutional context.

 

E.2019/59

22 October 2020

(Plenary)

Annulment of the contested provision prohibiting the attachment of the movable and immovable properties of private schools until the end of the relevant school year

- Contested provision stipulates that the movable and immovable properties of the private schools operating under Law no. 5580 cannot be subject to attachment until the end of the relevant school year.

- It is argued that the failure to delimit the attachment prohibition with the movable and immovable properties used exclusively for educational activities imposes an excessive burden on the creditor; and that despite the opportunity to impose a temporary ban on sale and disposal of such properties, to prescribe an attachment prohibition falls foul of the principle of equality.

- Contested provision is indeed intended for ensuring the continued educational activities without any delay at schools within the scope of the constitutional right to education.

- However, no distinction is set as to the nature of the properties which cannot be se subject to attachment during the relevant school year and thereby the scope of such prohibition is extended to the properties of such individuals which are indeed related to any other field of business activity.

- It has been found unconstitutional and therefore annulled for upsetting the balance to be strike between a creditor and a debtor to the detriment of the former.

 

 

E.2020/1

22 October 2020

(Plenary)

Dismissal of the request for annulment of the contested provision setting an upper limit for the counsel fees to be distributed among the counsels

- Contested provision sets an upper limit for the counsel fees awarded in favour of the relevant administration and to be subsequently distributed among the counsels of the administration.

- It is argued that as the contested provision, containing an arrangement as to financial rights, cannot be regulated through a decree law; and that it is therefore unconstitutional.

- The upper limit prescribed therein is formulated in a clear, precise and computable way. Therefore, the contested provision is not found indefinite and unforeseeable.

- Besides, it is intended for ensuring fairness, as well as equity of income distribution, among the counsels holding office in the same department, thereby being in pursuance of the public interest.

 

                

Case

Decision

Case-Law Development

Related

I. Individual Application

Özkan Karataş and Others

2017/31774

14 October 2020

(First Section)

Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

- Alleged violation of the applicants’ right due to imposition of administration fines for their sit-in protest without permission during the state of emergency period.

- The aim sought to be achieved through the permission requirement put into effect during the state of emergency was to enable the authorities to prevent the incidents that might disturb public order and to take necessary measures in advance.

- In the circumstances of the case, the applicants’ failure to seek permission was not necessarily a required element for the administration to take measures.

- There was no evidence that the applicants had disturbed the public order due to their acts in the public area closed to traffic.

- The applicants' peaceful demonstration, in other words their just sitting on a bench for about seventy days, should have been tolerated in a democratic society.

- Punishment of the applicants, who had participated in a peaceful demonstration not interfering with daily life, traffic or the public services, through the imposition of administrative fines on account of their failure to seek permission cannot be regarded as a restriction proportionate to the aim pursued during the state of emergency.

Press Release

II. Constitutionality Review

E.2020/12

10 September 2020

(Plenary)

Annulment of the provision banning demonstration marches on intercity highways

- Contested provision stipulates that demonstration marches shall not be held on intercity highways.

- It was argued that in determining the place where a demonstration march would be held, the rights and freedoms of other individuals who would use that place should also be taken into consideration; however, the impugned provision imposed a categorical ban without such consideration.

- The right to hold meetings and demonstration marches, taken together with the freedom of expression, forms the basis of a democratic society.

- As pointed out in the previous judgments of the Court, meetings and demonstration marches inevitably have an adverse effect on the daily lives of others, which should be tolerated in a democratic society.

- However, unless there is a pressing need in a democratic society, individuals should be able to choose the place where they will hold a demonstration march.

-The contested provision categorically bans the organisation of demonstration marches on intercity highways, without referring to the extent of the potential disruption or hardship.

- The impugned restriction on the right to hold meetings and demonstration marches does not meet a pressing social need, nor does it comply with the requirements of the order of a democratic society.

- Consequently, the contested provision has been found unconstitutional and therefore annulled.

Press Release

E.2019/69

10 September 2020

(Plenary)

Dismissal of the request for annulment of the provision prescribing criminal sanction for disclosing the identities of child victims of crime in periodicals

- Contested provision prescribes criminal sanction for disclosing the identities or causing the recognition of minor victims of crime in periodicals.

- It was argued that the acts to be subject to criminal sanction pursuant to the contested provision was limited to the periodicals and would not constitute crime if committed through the mass media, and that the rights of those to be mentioned in the news would override the freedom of the press.

- Constitutional provisions allows for the restriction of the freedom of expression for the purpose of protecting the reputation or rights of others.

- The contested provision aims to protect the reputation and rights of child victims, thereby pursuing a legitimate aim. The said restriction also complies with the constitutional provision that requires the State to take measures to protect children against all kinds of abuse.

- Equality before the law does not necessarily mean that everyone shall be bound by the same rules. The particular circumstances may require different rules and practices for some individuals or communities.

- It is at the discretion of the legislator, within constitutional limits, to prescribe different types of sanctions for the same act committed through different means, which does not contravene the principle of equality.

- Consequently, the contested provision has been found constitutional and the request for its annulment has been dismissed.

 

E.2020/27

24 September 2020

(Plenary)

Dismissal of the request for annulment of the provision stipulating that the mayor may appeal the final decisions of municipal before the administrative courts

- Contested provision sets forth that the mayor may appeal the final decisions issued by the municipal council before the administrative courts.

- It was argued that in the cases to be filed by the mayor against the decisions of the municipal council, there is uncertainty about the person who will represent the municipality.

- One of the basic principles of the rule of law is certainty, which can also be achieved through the courts’ case-law, provided that it meets the requirements such as being accessible and foreseeable.

- It is foreseeable that the technical aspects of the said remedy, the general framework of which is set by the impugned provision, shall be determined by the administrative courts through the case-law.

- Thus, the contested provision is not uncertain.

- Consequently, the contested provision has been found constitutional and the request for its annulment has been dismissed.

 

E.2020/21

1 October 2020

(Plenary)

Annulment of the provision whereby the court decisions issued upon objection to an administrative fine are considered final

- Contested provision sets forth that the decisions issued by courts upon objection to administrative fines that have been imposed on construction inspection authorities shall be final.

- It was argued that the contested provision was unconstitutional as the administrative fines, subject-matter of the court decisions envisaged to be final in the contested provision, might be in excessive amounts and that these decisions therefore must be subject to appellate review.

- The right to appellate review of a decision is applicable to all proceedings either based on a criminal charge or concerning civil rights and obligations.

- The contested provision, which envisages that the court decisions issued upon objection to an administrative fine shall be final, constitutes a restriction on the right to appellate review of a decision by another court.

- The administrative fines in excessive amounts are in the form of severe sanctions, given their effect on the financial situation of the concerned individual; and that they therefore amount to a punishment.

- In this sense, the importance attached to the appellate review of such decisions, which may cause the relevant individual to face a severe penalty in financial terms, cannot be denied.

- The contested provision imposes a disproportionate restriction on the right to appellate review of a court decision.

- Consequently, the contested provision has been found unconstitutional and therefore annulled.

 

Press Release

                

Case

Decision

Case-Law Development

Related

I. Individual Application

Ayla Demir İşat

2018/24245

8 October 2020

(Plenary)

Violation of the right to respect for private life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right due to the termination of the applicant’s employment contract, based on breach of confidence.     

- The applicant, an employee serving at the Central Union of the Turkish Agricultural Credit Cooperatives, was dismissed from office -without notice and compensation- following the coup attempt, by virtue of the Decree-law no. 667.

- Her action for reinstatement in the relevant post was dismissed by the relevant court. Her challenge and subsequent appeal request were also rejected.

- The application was examined under the right to respect for private life as the impugned interference with the professional life had a severe effect on the applicant’s private life, which attained a certain level of gravity. 

- Reasons underlying the suspicion to the effect that she was in relation or connection with the FETÖ/PDY were not capable of proving the alleged breach of confidence.

- No plausible, relevant and sufficient grounds to justify that the impugned interference met a pressing social need.

Press Release

II. Constitutionality Review

E.2018/31

16 July 2020

(Plenary)

Dismissal of the request for annulment of the provision regarding the lack of responsibility of the civilians, who resisted the coup attempt of July 15, for their acts during such resistance

- Contested provision stipulates that those who contributed to the suppression of the coup attempt of 15 July 2016 and related terrorist activities, regardless of whether they had an official title or fulfilled an official duty, shall not have legal, administrative, financial or criminal responsibilities due to their acts.

- It is argued that the impugned provision has the characteristics of granting amnesty, therefore, a three-fifths majority is sought for its adoption by the Grand National Assembly of Turkey; and that it is unconstitutional as it limits many fundamental rights and freedoms disproportionately, notably the right to life and the prohibition of torture.

- As regards the formal examination of the impugned provision, it is observed that the provision is not related to an offence. In order for the applicability of amnesty, there must be an offence. Thus, a qualified majority is not required for the adoption of such provision.

- As regards the substantive examination of the impugned provision, it is observed that the provision does not impose an obstacle for trial. In the examination of the acts claimed to have been wrongful, it shall be considered whether the act in question was committed under the conditions stipulated by the provision, and if it is concluded otherwise, the criminal responsibility shall come to the fore.

- Consequently, the contested provision has not been found unconstitutional and thus the request for its annulment has been dismissed.

 

                

Case

Decision

Case-Law Development

Related

I. Individual Application

Hüseyin Sezer

2016/13566

and

Barış Baş

2016/14253

2 July 2020

(Plenary)

Violation of the presumption of innocence safeguarded by Articles 36 and 38 of the Constitution

- Alleged violation of the applicants’ presumption of innocence due to the administrative courts’ failure to consider the acquittal decisions issued in the criminal proceedings.

- The applicants were tried before the incumbent criminal courts due the offences imputed to them, and at the end of the criminal proceedings, they were acquitted.

- Due the same impugned acts, a disciplinary penalty was imposed on them. The actions brought by them for the revocation of their disciplinary penalties were dismissed as the incumbent administrative court found the penalties lawful.

- In cases where the acts subject-matter of the disciplinary and criminal proceedings are the same, the administrative courts dealing with the disputes concerning disciplinary investigations are expected to respect the conclusion reached by the criminal court and not to use expressions that would question the criminal court’s conclusion.

- In the present cases, the administrative court and the regional administrative court not only discussed the conclusion reached by the criminal court in its decision but also created the impression for those reading the decisions that the applicants had committed the imputed acts, which rendered the acquittal decisions dysfunctional and casted doubt on their innocence.

Press Release

S.A.

2017/40199

8 September 2020

(First Section)

 

Violation of the right to marry safeguarded by Articles 20 and 41 of the Constitution

- Alleged violation of the said right due to the failure to notify the divorce decree to the spouse abroad.

- The applicant was divorced from her Tanzanian husband on 21 February 2003.

- The civil court issued a writ to the Ministry of Justice (“the Ministry”), seeking the notification of the divorce decree to the defendant (ex-husband) who was in his country of origin.

- In 2016, the applicant was informed that although the request had been submitted several times to the relevant ministry of the respondent country, any reply had not been taken due to systemic problems in the country.

- The outcome of divorce proceedings could not be notified to the defendant for his not being in Turkey. Therefore, the applicant’s marital status could not be changed, despite 17 years having elapsed since the date of divorce decree, due to the non-completion of the finalisation process.

- Failure of the relevant authorities to apply the alternative legal means, namely notice by publication.

- The due diligence obligation was disregarded to the extent that would impair the very essence of the right to marry.

Press Release

Tahir Baykuşak

2016/31718

9 July 2020

(Second Section)

Violation of the prohibition of ill-treatment, safeguarded by Article 17 of the Constitution

- Alleged violation of the prohibition of ill-treatment due to the failure to prosecute the police officers allegedly battered the applicant during an identity check.

- The State’s obligation to protect the corporeal and spiritual existence of the individuals from any danger, threat and violence came into play.

- The investigation authorities’ failure to take statements of the witnesses.

- Given the consequences of the treatment of the law enforcement officers against the applicant, the minimum threshold of severity required by the Constitution had been exceeded.

- In addition, although it was stated in the first medical report issued in respect of the applicant that there was no sign of assault on his body, the subsequent report that was issued on the same day upon the applicant’s request proved otherwise.

- The investigation authorities failed to investigate the relevant doctor, either.

- Hence, the investigation into the incident lacked both thoroughness and effectiveness.

Press Release

                

Case

Decision

Case-Law Development

Related

I. Individual Application

Kadri Enis Berberoğlu

2018/30030

17 September 2020

(Plenary)

Violations of the right to be elected and engage in political activities as well as the right to personal liberty and security, respectively safeguarded by Articles 67 and 19 of the Constitution

- Alleged violations of the applicant’s rights for his having been held in detention on remand even after he was re-entitled to parliamentary immunity following his re-election as a Member of the Parliament.

- Pursuant to Article 83 § 4 of the Constitution, which stipulates that parliamentary immunity shall be granted throughout a legislative session and lifted at the end of the session, a re-elected MP shall be, as a rule, re-entitled to parliamentary immunity.

- Parliamentary immunity, as a constitutional institution, is a protection mechanism employed to ensure that MPs can freely participate in legislative activities without encountering any obstacle.

- An exception to a general rule –in the present case, Provisional Article 20– cannot be interpreted broadly, and its scope cannot be extended as well.

- The denial of the applicant’s re-entitlement to parliamentary immunity, despite his being re-elected as an MP, pursuant to the imperative provision of Article 83 § 4, which is a general rule, as considered to fall into the scope of Provisional Article 20 of the Constitution runs contrary to the wording of the relevant article as well as the will of the constitution-maker.

- The applicant was re-entitled to parliamentary immunity as of the date of his re-election as an MP at the general elections and therefore; his continued detention after the relevant date was incompatible with Article 83 of the Constitution.

- The applicant's request for release –relying on his parliamentary immunity– was not examined on the merits from 29 June 2018 until 20 September 2018, and his detention continued throughout this period. Thus, deprivation of the applicant's liberty between the aforementioned dates has been incompatible with Article 83 of the Constitution, where the guarantees related to parliamentary immunity are laid down.

Press Release

Arif Ali Cangı

2016/4060

17 September 2020

(Plenary)

 

Violation of the right to the protection of personal data under the right to respect for private life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right due to the disclosure of the applicant’s private information to a third party.

- The applicant, a lawyer, was the plaintiff in an action brought for the annulment of the impugned zoning plan. The intervening party of the said annulment proceedings requested information from the relevant Ministry to use during the proceedings.

- Information disclosed to the other party included the applicant’s personal data.

- Upon the dismissal by the relevant administration of his claim for non-pecuniary compensation, the applicant brought an action for compensation due to the disclosure of his personal data; but it was dismissed by the administrative court.

- Neither the administration nor the judicial authorities proved a public interest in the disclosure of the information about the applicant.

- Interference with the applicant’s right to the protection of his personal data lacked any legal basis.

- The collection and disclosure of such information in the absence of the applicant’s explicit consent did not meet a pressing social need and were incompatible with the requirements of a democratic society.

Press Release

Bestami Eroğlu

2018/23077

17 September 2020

(Plenary)

No violation of the right to the protection of personal data and the freedom of communication safeguarded by Articles 20 and 22 of the Constitution respectively

- Alleged violation of the said right and freedom due to the unlawful gathering of the applicant’s ByLock communication and personal data.

- The applicant was sentenced to imprisonment for his membership of the FETÖ/PDY terrorist organisation. The decision was upheld by the Court of Cassation.

- The impugned interference pursued the aims of revealing the activities of the said terrorist organisation and preventing the commission of offences.

- The use of intelligence methods is inevitable for the identification of the members of this clandestine organisation and uncovering of its activities.

-The applicant’s communications were intercepted and obtained pursuant to the relevant laws and by virtue of a court decision.

- Besides, the impugned interference was necessary in a democratic society and proportionate to the aims pursued.

 

E.Ü.

2016/13010

17 September 2020

(Plenary)

Violations of the right to the protection of personal data and the freedom of communication safeguarded by Articles 20 and 22 of the Constitution respectively

- Alleged violation of the said right and freedom due to the termination of the applicant’s employment contract on the basis of his correspondences through the e-mail address of the workplace.

- The applicant, a lawyer in a law office, was dismissed from office at the end of the administrative investigation during which his e-mail communications were monitored.

- The relevant court dismissed the applicant’s action for reinstatement, which was subsequently upheld by the Court of Cassation.

- In the present case, the applicant had not been explicitly informed of any possible monitoring of the communications through the official e-mail address of the workplace.

- Besides, the employer failed to demonstrate any legal basis and any compelling reasons to justify the impugned interference.

- Inferior courts failed to observe the relevant constitutional safeguards and conduct the proceedings diligently, thereby to fulfil the relevant positive obligations.

 

N.K.

2017/21761

22 July 2020

(First Section)

Violation of the right to an effective remedy, safeguarded by Article 40 of the Constitution, in conjunction with the prohibition of ill-treatment, safeguarded by Article 17 thereof

- Alleged violation of the said right for not being awarded compensation despite being detained in inappropriate conditions pending the execution of the deportation order, which was found unlawful through a court decision.

- The applicant was placed in administrative detention pending her deportation for prostitution. However, her deportation order was annulled by the administrative court, and she was then released from the foreigners’ removal centre where she had been placed in administrative detention for 62 days.

- She brought an action for compensation for being detained in inappropriate conditions. However, it was dismissed. Upon the appellate process, the regional administrative court awarded partial compensation to her.

- Although the applicant clearly complained of her detention conditions, neither the inferior court nor the appellate authority considered these allegations.

- They confined their examinations to the applicant’s allegedly unjust detention and failed to conduct an inquiry into the alleged violation of the prohibition of ill-treatment due to the impugned detention conditions.

- Therefore, no examination was conducted as to the question whether the applicant’s detention conditions were compatible with human dignity.

Press Release

II. Constitutionality Review

E.2020/44

17 July 2020

(Plenary)

 

Dismissal of the request for annulment of the Law no. 7242 on Amending the Law on the Execution of Sentences and Security Measures and Certain Laws as well as of the Amended Provisional Article 6 of the Law no. 5275 for not being unconstitutional

- Alleged unconstitutionality in form as the impugned statutory arrangement is in the form of a special blanket pardon, and adoption of laws concerning the grant of pardon requires a three-fifth majority of the Grand National Assembly of Turkey. However, this qualified majority was not sought in the adoption of the contested law.

- The contested provisions are mainly related to the remission of the sentences imposed in respect of certain offences.

- Whether the contested arrangement is indeed a parole: it has been concluded that it is not a parole as it does not introduce a change in the total length of the sentence and it only includes provisions as to the procedure of the execution of the imposed sentence. 

- Therefore, the contested law was adopted by maintaining the required quorum for meeting and decision specified in the relevant provision of the Constitution.

 

E.2019/40

17 July 2020

(Plenary)

Annulment of certain provisions authorizing the executive to determine the general conditions of the compulsory liability insurance

- Contested provisions do not regulate the scope of the liability of the insurance company arising from the compulsory liability insurance contract; instead they provide that this scope shall be determined by the general conditions, which are the regulatory act of the administration.

- According to the contested provisions, the liability of the insurance company to arise from the compulsory liability insurance contract shall be determined by the administration according to the general conditions which may always change.

- Thus, the main framework and basic principles regarding the determination of the scope of the debt are not determined by the law, and the administration is granted a broad discretionary power in this regard.

- Therefore, the provisions restricting the content of the contract are in breach of Articles 13 and 48 of the Constitution in terms of the criteria of legality.

- Besides, the contested provisions should be evaluated considering the balance between the interests of the parties to the contract.

- The contested provisions have been found unconstitutional and annulled.

 

             

Case

Decision

Case-Law Development

Related

I. Individual Application

Mehmet Ali Ayhan

2016/7967

22 July 2020

(First Section)

Violation of the right to legal assistance safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to the dismissal of the request for a retrial filed in accordance with the ECHR’s violation judgment.

- The applicant, who had not been provided with legal assistance at the investigation stage, was sentenced to aggravated life imprisonment. After the appellate review, the first instance decision became final.

- He then lodged an application with the ECHR, which found violations of the right to legal assistance due to his lack of legal assistance at the investigation stage, as well as of the right to a trial within reasonable time.

- Relying on the ECHR’s judgment, the applicant filed a request with the incumbent court for a stay of execution of his sentence and for a retrial.

-  Indeed, a retrial was conducted by the first instance court, which ultimately upheld the initial decision.

- It cannot be fully ascertained whether the applicant’s statements, obtained at the investigation stage in the absence of his defence counsel and forming the subject matter of the ECHR’s violation judgment, was relied on as a ground in his conviction ordered at the end of the re-trial.

- Failure to comply with the ECHR’s violation judgment.  

Press Release

B.A.Ş.

2017/28013

22 July 2020

(First Section)

 

Violation of the right of access to a court safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to the dismissal of the action for reimbursement of stamp fee as time-barred.

- The applicant, a company engaging in import business in the automotive sector, filed a request with the relevant administration for the reimbursement of the surplus amount of the stamp fee it had paid erroneously for the imported vehicles.

- His request was left unanswered, and he then brought an action before the administrative court.

- The action was dismissed as time-barred, and the applicant’s appeal request was also dismissed.

- As indicated by the inferior court, any surplus amount of stamp fee paid based on an incorrect declaration could be reimbursed by filing a request with the administration. However, this request be filed within 60 days, the period for bringing an action, running from the date of accrual (payment).  

- The inferior court’s interpretation as to the limitation period for bringing an action precluded the applicant from bringing an action and thereby placed an excessive burden on it; and that the burden borne by the applicant was not proportionate to the legitimate aims pursued.

Press Release

Mehmet Şimşek

2018/10953

22 July 2020

(First Section)

Inadmissibility of the alleged violation of the right to personal liberty and security as out of time.

- Alleged violation of the applicant’s right due to his allegedly unlawful and arbitrary detention.

- The applicant, detained on remand during the investigation initiated following the coup attempt of 15 July, was sentenced to imprisonment for his membership of the terrorist organisation, FETÖ/PDY.

- The regional court of appeal, examining his appellate request, ordered a rehearing of his case as well as his continued detention. The challenge against the continued detention was dismissed. Thereafter, he filed an individual application.

- A rehearing ordered by the regional court of appeal does not automatically lead to the annulment of the conviction decision, which would continue to remain in full force until the end of the rehearing.

- On the other hand, the allegations indicated in the application form concern the unlawfulness of his detention on remand.

- Therefore, the application was declared inadmissible as lodged out of time.

 

Onmed Tıbbi Ürünler Paz. ve Dış Tic. Ltd. Şti

2016/8342

17 June 2020

(Second Section)

Violation of the nullum crimen, nulla poena sine lege principle safeguarded by Article 38 of the Constitution

- Alleged violation the said principle, requiring the offences and corresponding penalties to be clearly defined by law, due to the decision issued without considering the new statutory arrangement, which was more favourable to the applicant.

- The applicant, a company engaging in purchase and sale of medical consumable materials, was imposed an administrative fine for having contravened the Law on the Protection of Competition. His action for the revocation of this fine was dismissed. His appellate request was also dismissed.

- Pending the proceedings, the criterion applied in the determination of the amount of administrative fines was changed by virtue of an amendment to the relevant law.

- Despite the applicant’s claim that the new provision was in its favour and must therefore be applied to its case, the Council of State failed to make any assessment in that regard.

 

             

Case

Decision

Case-Law Development

Related

I. Individual Application

Tamer Mahmutoğlu

2017/38953

23 July 2020

(Plenary)

Violation of the right to respect for private life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right due to the annulment of the applicant’s registration with the bar association for being dismissed from public office.

- The applicant, a bachelor of laws, was dismissed from his public office due to his involvement, relation or link with the FETÖ/PDY.

- He then filed a request with a Bar Association to enter on its registry; however, the Bar Association refused the request. Thereafter, he challenged the refusal before the Union of Turkish Bar Associations (“the TBB”). It accordingly annulled the Bar Association’s decision refusing the applicant’s request.

- After the TBB’s decision had been finalised, the Ministry of Justice brought an action for annulment before the incumbent administrative court, which annulled the TBB’s decision as those who had been dismissed from public office by virtue of the decree-laws issued under the state of emergency could not be allowed to register with the bar association as, and to use the title of, a lawyer.

- In the meantime, the applicant was acquitted at the end of the criminal proceedings.

- Whether the impugned interference had a legal basis: the relevant statutory arrangements set forth that those who have been dismissed from their public offices would no longer hold a public office and can no longer use their titles. The applicant did not get the title of lawyer by virtue of his public office. Besides, the profession of lawyer is, in principle, a self-employed profession which is not subject to an administrative hierarchy, and the self-employed lawyers do not practise for and on behalf of the State.

Press Release

M.B.

2018/37392

23 July 2020

(Plenary)

 

Violation of the right to fair proceedings within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to the unforeseeable interpretation of the relevant provisions in the action brought for the annulment of the applicant’s registration with the bar association.

- The applicant, holding office as a public prosecutor, was dismissed from his public office following the coup attempt of 15 July. Following his dismissal from public office, the applicant filed a request with a Bar Association to enter on its registry. The Bar Association accepted the request and subsequently, the TBB approved the bar association’s decision.

- After the TBB’s decision had been finalised, the Ministry of Justice brought an action for annulment before the incumbent administrative court, which ordered the stay of execution and also annulled the TBB’s decision. The appeals against the court’s decision were rejected.

- A decision of non-prosecution was issued at the end of the criminal investigation conducted against the applicant.

- The basic question to be resolved in this case is whether the applicant met the necessary conditions sought for practising as a lawyer. In the court’s annulment decision, the applicant was found not to have satisfied the necessary conditions.

- Despite being defined as a public service in the relevant law, the profession of self-employed lawyer is not undoubtedly a public service as the lawyers registered with a bar association, save for those practising this profession in public institutions and organisations, do not have any direct or indirect affiliation with the State.

- Any interpretation and practice which extends the scope of a given law restricting a right or freedom may give rise to the imposition of a restriction, which has not indeed introduced by the legislator, by administrative and judicial authorities.

- The broad and unforeseeable interpretation of the relevant provision of law rendered dysfunctional the procedural safeguards afforded to the applicant.

Press Release

Şeyhmus Terece

2017/26532

23 July 2020

(Plenary)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right due to the prolonged application of an interim injunction imposed on the applicant’s immovable.

- In an action brought in 1998 for the annulment and re-registration of the title-deeds of the immovable in question, the civil court imposed an interim injunction on the immovable so as to prevent their transfer to third parties.

- In the course of the first-instance and appeal proceedings, the interim injunction was not lifted until 2017: therefore, a restriction was imposed on the applicant’s right to property for 19 years, which cannot be considered reasonable.

- Nor is there any fault attributable to the applicant in this respect.  

 

R.G.

2017/31619

23 July 2020

(Plenary)

Violation of the right to protect and improve the corporeal and spiritual existence safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to the procrastination of the applicant’s request for termination of her pregnancy resulting from a criminal act.

- The applicant, who was under 18 at the time of the impugned events, became pregnant as a result of the sexual intercourses she had had by force and threat.

- Her family filed a request with the magistrate judge for the termination of the pregnancy. However, it dismissed the request on procedural grounds. Their other attempts to that end were also unsuccessful.  

- The approach adopted by the judicial authorities deprived the applicant of the opportunity to end her pregnancy and thereby placed an excessive burden on her.

- The impugned interference with the applicant’s right to protect and improve her corporeal and spiritual existence was not disproportionate.

Press Release

Murat Haliç

2017/24356

8 July 2020

(First Section)

 

Violation of the right to an effective remedy safeguarded by Article 40 of the Constitution

- Alleged violation of the said right due to the dismissal of the action for compensation brought by the applicant as the records obtained as a result of the interception of his communication had not been destroyed but rather made public.

- During an investigation conducted against the applicant, his telephone conversations were wiretapped and intercepted. At the end of the investigation, a decision of non-prosecution was issued and the destruction of the records of his intercepted communication was ordered.

- The applicant brought an action for compensation due to the relevant authorities’ failure to destroy the given records. However, it was dismissed for not satisfying the necessary conditions specified in the relevant Code in the absence of any relevant and sufficient grounds.

- Therefore, he was not afforded an effective legal remedy attended by minimum safeguards for the redress of the damage he had sustained within the meaning of the right to respect for private life and the freedom of communication.

Press Release

II. Constitutionality Review

E.2019/2

11 June 2020

(Plenary)

Dismissal of the request for annulment of the provisions in Article 86 of the Turkish Criminal Code no. 5237 as well as in Article 20 of the Law no. 6284 on the Protection of Family and Prevention of Violence against Women

A. Code no. 5237

- The contested provision sets forth that where an intentional injury is committed against a spouse or sibling, no criminal complaint shall be sought for prosecution, and the penalty to be imposed shall be increased by one half.

- It is maintained that this provision eliminates the possibility of forgiveness or conciliation, and deepens the conflicts, among family members.

- The provision intended for the effective protection of family, which is not contrary to the principles of justice and fairness, is not in breach of the principle of a state governed by the rule of law. It has an objective and reasonable basis. 

- Therefore, it is not contrary to Articles 2, 10 and 41 of the Constitution.

B. Law no. 6284

- The contested provision sets forth that the Ministry of Family, Labour and Social Services (“the Ministry”) may, if deems necessary, intervene in all criminal cases filed due to violence, or a risk of violence, against a spouse.

- It is maintained that this provision leads to problems in practice; that the Ministry may pursue the relevant cases by itself; and that the counsel’s fee may be awarded in favour of the intervening parties.

- The provision aims at effective protection of the victim of domestic violence and thereby of the family. Therefore, it pursues a legitimate aim in the public interest.

- Besides, the Ministry is not envisaged to intervene in all cases but only those deemed necessary by the Ministry itself.  An award of counsel’s fee in the favour of the intervening party also depends on the conviction decision to be issued at the end of the proceedings. The amount of this fee, specified in the contested provision, cannot be considered to impose an excessive burden on individuals.

- Therefore, it is not contrary to Articles 13, 35, 36 and 41 of the Constitution.

 

             

Case

Decision

Case-Law Development

Related

I. Individual Application

Hasan Ballı

2017/21825

2 June 2020

(Second Section)

Violation of the right to examine a witness under the right to a fair trial safeguarded by Article 36 of the Constitution  

- Alleged violation of the said right due to the applicant’s inability to examine, at the hearing, the witness whose statements constituted a main basis for his conviction.

- The applicant, a co-accused, was sentenced to imprisonment for plundering and depriving the complainant of his liberty. He appealed his conviction which was ultimately upheld.

- During the proceedings, S.K. a co-accused of the applicant -who was heard by the incumbent court through the Audio-Visual Information System (“SEGBİS”)- gave testimony against the applicant.

- The applicant was then afforded the opportunity to raise his challenges and defence submissions against S.K.’s testimony both in writing and orally, which may be considered as a reparatory opportunity.

- However, in his subsequent statements before the first instance court, the complainant H.B. noted that the applicant had not been present at the incident scene and among those who had committed the imputed offences. 

- Given the subsequent statement of the complainant, it has been concluded that the reparatory opportunity afforded to the applicant was not indeed capable of remedying the impugned restriction imposed on his right of defence.

- Therefore, the incumbent court’s reliance on the testimony of the witness, who had not been examined at the hearing, in convicting the applicant had undermined the overall fairness of the proceedings.

Press Release

Y.K.

2016/14347

2 June 2020

(Second Section)

 

Violations of both substantive and procedural aspects of the prohibition of torture safeguarded by Article 17 of the Constitution

- Alleged violation of the prohibition of torture for the applicant’s having been placed in a single room at the Foreigners’ Removal Centre for a prolonged period of time.

- The Foreigners’ Removal Centres are institutions adopting a human-oriented approach in ensuring the shelter and control of the foreigners to be deported. In that vein, the Centres are required to provide services based on the protection of the right to life of the individuals held there as well as the strengthening of them both socially and psychologically.

- The impugned interference, pursuing no legitimate aim and contravening the working principles of the Centres, may be regarded as torture given its nature and duration.

- As for the procedural aspect of the prohibition of torture, the judicial authorities failed to rely on a comprehensive, objective and impartial assessment of all findings obtained during the investigation process.

- Nor was there a rigorous investigation capable of clarifying the applicant’s allegations that his hands and feet had been handcuffed in an isolation room.

Press Release

             

Case

Decision

Case-Law Development

Related

I. Individual Application

Emin Arda Büyük

2017/28079

Berrin Baran Eker

2018/23568

2 July 2020

(Plenary)

Violation of the right to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the applicants’ right due to dismissal, without an examination on the merits, of their actions for reinstatement they had brought challenging the termination of their employment contracts.

- The right to a court, one of the guarantees of the right to a fair trial that is an indispensable right in a democratic society, requires that the substantial claims and defences related to the dispute at issue be examined, assessed and adjudicated by the incumbent judicial authority.

- In cases where the court, while settling a dispute before it, concludes the trial by relying on the claims and defence put forth by one of the parties but without discussing the substantial objections raised by the other party, then there has not been an actual trial, even if there is a formal decision.

- In the present cases, the incumbent courts failed to examine whether the conditions for valid termination had been fulfilled. In other words, the courts failed to fulfil their duty of addressing and adjudicating the material and legal matters of dispute, which constitutes the basis of their judicial function, and thus failed to perform an actual judicial activity.

- Therefore, the judicial remedy available to the applicants enabling them to challenge the termination of their employment contracts was accessible for them only in theory.

Press Release

C.A. (3)

2018/10286

2 July 2020

(Plenary)

 

No violation of the right to respect for private life safeguarded by Article 20 of the Constitution

- Alleged violation of the right of the applicant, a cleaning worker in the municipality, due to termination of her/his employment contract for breach of the trust relationship on account of being a member of an association having relations with the FETÖ/PDY.

- The applicant was imposed imprisonment sentence for membership of the FETÖ/PDY, and her/his appeal request is still pending.

- The applicant’s statements taken within the scope of the disciplinary investigation conducted against her/him created a serious, strong and objective suspicion of her/his having relation with the FETÖ/PDY.

- The administrative and judicial decisions stated that any relationship with the FETÖ/PDY was an indication of the weakness of loyalty to the State and essentially should be regarded as an element breaching the trust relationship.

- In addition, the relevant decisions of the courts contained relevant and sufficient grounds that the impugned interference had been proportionate and pursued a pressing social need.

- Thus, a fair balance was struck between the public interest and the applicant’s personal interest.

 

Millî Reasürans Türk Anonim Şirketi

2016/70

1 July 2020

(First Section)

No violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the right of the applicant company due to dismissal of its case challenging the tax accrual, despite its declaration of regret as well as submitting a petition for reservation.

- In order for an interference with the right to property to be constitutional, the said interference must be legal, proportionate and serve the public interest. In the present case, there is no doubt that the alleged tax collection served the public interest.

- The decision of the incumbent court, interpreting a legal provision in the particular circumstance of the case, did not impose an excessive or extraordinary burden on the applicant, and thus the said interference did not disturb the fair balance between the public interest and the applicant’s right to property.

 

II. Constitutionality Review

E.2020/16

25 June 2020

(Plenary)

Annulment of the provision hindering the application of simplified trial procedure to cases proceeded to trial by 1 January 2020

- Contested provision sets forth that the simplified trial procedure, which has a bearing on the length of sentence to the advantage of the offender in cases which are at the trial stage but have not been concluded yet by a decision, shall be applied being limited to the cases proceeded to trial after a given date. 

- It is maintained that the contested provision is unconstitutional as the legal arrangements concerning the simplified trial procedure, which embody a more favourable provision, must be applied to all cases.

- As a requisite of the legal certainty and legal security, Article 38 of the Constitution precludes the retrospective application of criminal law to the detriment of the offenders.

- In cases where a law enacted subsequent to the date of offence decriminalise the same act or prescribes a more lenient sentence for the same offence, the principle of application of a more favourable criminal law comes into play.

- Certain rules on trial procedures may have a bearing on the length of sentences prescribed for the criminal acts under prosecution. The prevention of retrospective application of the provisions having a bearing on the length of the relevant sentence to the advantage of the offender falls foul of the principle of nullum crimen, nulla poena sine lege.

- Therefore, the contested provision has been found unconstitutional and therefore annulled.

Press Release

E.2019/105

12 June 2020

(Plenary)

Dismissal of the request for annulment of certain provisions of the Presidential Decree no. 46

A. Provision on the Establishment of the Organisation Abroad of the Ministry of Health and Empowerment of the Ministry to Establish this Organisation

Contested Provisions

- The first provision, where it is set forth the Ministry of Health (“the Ministry”) shall be composed of central, provincial organisations as well as an organisation abroad, is contested insofar as it relates to the phrase “…as well as … abroad”.

- The second contested provision is concerning the empowerment of the Ministry to establish the organisation abroad through the Presidential Decree no. 1 upon being amended by the Presidential Decree no. 46.

- It is maintained that Article 106 § 11 of the Constitution allows for the establishment of merely the central and provincial organisations of the ministries through the presidential decrees. Besides, Article 123 § 3 of the Constitution prescribing that the public legal entities be established through presidential decrees cannot apply to the ministries.

- It is within the President’s discretionary power to decide whether there is a need to establish an organisation abroad of a given ministry pursuant to Article 106 § 1 of the Constitution. Therefore, the first contested provision is not contrary to this constitutional provision.

- As regard the second contested provision, the executive organ may leave the necessary actions to be taken pursuant to the decree-laws to the relevant administration after setting the general framework. This provision does not empower the Ministry to make direct arrangements concerning the organisation abroad, but to perform the necessary acts and actions within the scope of such arrangement.

- Therefore, the contested provisions have been found constitutional and the request for their annulment has been dismissed.

B. Provision Allowing the Health Institutes of Turkey (TÜSEB) to Award Scholarship

- The contested provision concerns the phrase “… and scholarship…” added to the Presidential Decree no. 4. In the provision, it is set forth that it is among the TÜSEB’s tasks to provide opportunities, to grant awards and to give scholarship so as to ensure training and improvement of the scientists and researchers.

- It is maintained that the contested provision is related to the budgetary right, and that the public expenditures are to be made on the basis of the public budget. However, this expenditure which is not specified in the budget act has been regulated through presidential decree without any legal basis.

- TÜSEB is a public legal entity established by virtue of a Presidential Decree. Pursuant to Article 123 § 3 of the Constitution, the duties and powers of this Institute established through presidential decree may also be regulated through a presidential decree.

- The issues required to be regulated by law according to Article 161 of the Constitution are limited, inter alia, to the processes and procedures as to the preparation, implementation and auditing of the central administration budget.

- In this sense, the contested provision is related to budget for embodying an arrangement as to the making of a public expenditure but does not directly touch on the legislator’s budgetary right.

- Besides, laws and presidential decrees must pursue the aim of securing public interest, embody general, objective and fair provisions and observe the fairness criteria.

- The contested provision has been found to be in pursuance of public interest given the favourable effects on the public health of raising and training scientists and researchers in the health sector.

- Therefore, the contested provision has been found constitutional and the request for its annulment has been dismissed.

 

             

Case

Decision

Case-Law Development

Related

I. Individual Application

Feride Kaya

2016/13985

9 June 2020

(First Section)

Violation of both substantive and procedural aspects of the prohibition of torture safeguarded by Article 17 of the Constitution

- Alleged violation of the applicant’s right for her having been subjected to ill-treatment in police custody and the authorities’ failure to conduct an effective investigation in this regard.

- The medical reports issued during the investigation process supported the applicant’s claims, which demonstrated that there were sufficient evidence to the effect that the applicant had been subjected to ill-treatment both psychologically and psychically under the supervision and responsibility of the State.

- Considering that the investigation was closed as being time-barred, without identification of the perpetrators, the public authorities failed to fulfil their obligation to make a plausible explanation regarding the alleged ill-treatment.

- In addition, given the gravity of the offence of ill-treatment, an investigation into such an act should be concluded speedily. However, in the present case, the investigation lasted about 13 years and was subsequently ended as being time-barred.

- Thus, the State also failed to fulfil its positive obligation.

 

Savaş Candemir and Others

2016/5116

18 June 2020

(First Section)

 

Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

- Alleged violation of the applicants’ right due to the imposition of administrative fines as they wanted to participate in a press statement during a demonstration.

- The applicants were charged with disobedience of an order, as they had failed to comply with the warning to disperse during a demonstration.

- In order for such an administrative sanction, there should be an order previously announced and applicable on the date of the alleged act, as well as the applicants’ conducts should be incompatible with the said order.

- Vagueness as to the existence of such an order that was actually applicable at the material time.

- Failure of the judge to provide a convincing justification as regards the applicants' acts requiring the imposition of an administrative fine.

- The applicants were imposed administrative fines on the sole basis of the public authorities’ interpretation; therefore, the said interference was unlawful.

 

Rabia Nur Yazıcı and Selma Kocapiçak

2016/9528

9 June 2020

(First Section)

Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to the failure to conduct an effective investigation into the deaths resulting from a flood.

- The applicants are the relatives of a father and his two children who lost their lives due to the flooding of the basement floor where they lived.

- During the criminal investigation into the incident, permission was sought for launching an investigation against the public officers who were allegedly responsible for the impugned incident. No permission was granted for some of these public officers. In respect of those who were subject to an investigation, a decision of non-prosecution was issued.

- The applicants then filed an action for compensation whereby the administrative court found the relevant administrations faulty and awarded compensation to the applicants. However, this decision was quashed by the Council of State which also dismissed the subsequent request for rectification of the decision. The case remitted to the administrative court is still pending.

- Whether the criminal investigation into the present case was conducted effectively: despite a court expert report where one of the relevant administrations was found 50% at fault, the investigation authority issued a decision of non-prosecution in respect of these public officers.

- Failure to conduct an effective investigation that would prevent impunity gave rise to a violation of the positive obligation to set up an effective judicial system.

 

Güven Bostan

2016/4293

1 July 2020

(First Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the said right due to the attachment of the applicant’s domicile against the tax debt, which was devoid of legal basis. 

- The applicant filed an action for revocation of the payment orders issued for the unpaid tax debts of the company where he is a shareholder. The orders which had not been duly issued were revoked, while the others were approved. He paid the relevant amounts indicated in the payment orders which were not revoked.

- However, the tax authority levied attachment on the applicant’s immovable as the amounts not revoked were not fully paid and had to be collected from the company. The applicant filed an action for annulment of the attachment process, and it was annulled by the administrative court.

- However, the first instance decision was quashed upon the administration’s appellate request. The applicant’s request for rectification of the decision was also dismissed.

- During his request for rectification of the decision, the applicant raised his claim that no attachment could be levied on his immovable for being a domicile. However, the regional administrative court dismissed the request, without making a reasoned assessment as to this claim.

- The procedural safeguards were not fulfilled; fair balance to be struck between the public interest underlying the impugned interference and the individual interest in the protection of the applicant’s right to property was upset to his detriment; and the impugned interference was not proportionate.

 

             

Case

Decision

Case-Law Development

Related

I. Individual Application

Muhsin Hükümdar

2016/69274

5 March 2020

(Plenary)

Violation of the  right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the applicant’s right due to the police officer’s practice inducing him to commit a misdemeanour.

- In the present case, a police officer entered the applicant’s shop in the guise of a customer and purchased alcoholic drinks at night during the hours when selling alcoholic drinks were legally forbidden. Thereupon, the police officer showed his identity and issued a report against the applicant. Hence, the applicant was imposed an administrative fine.

- In the Constitutional Court’s view, in cases where there is no suspicion of an individual’s having committed a crime before, creating an environment inducing the relevant person to commit a crime is unacceptable.

- Even in cases where there is a suspicion of crime, special investigation techniques to be applied must also have a legal basis.

- It is clear that the police officer took an active role in the misdemeanour alleged to have been committed by the applicant.

- The applicant was deprived of his right to a fair trial.

 

Yıldırım Turan

2017/10536

4 June 2020

(Plenary)

 

Inadmissibility of the alleged violation of the right to personal liberty and security for being manifestly ill-founded.

- Alleged violation of the said right due to the applicant’s detention in the absence of any concrete evidence and against the procedural safeguards afforded to members of the judiciary.

- The applicant was suspended, in the aftermath of the coup attempt of 15 July, from his office for having relation with the FETÖ/PDY and subsequently detained on remand for his membership of the said terrorist organisation. He was then released pending trial.

- It should be primarily noted that investigation/prosecution of, and applying preventive measures including detention in respect of, judges/prosecutors who are covered by the security of tenure granted for the judiciary are subject to permission/decision of an administrative body if the imputed offence is related to his profession (except for cases of flagrante delicto). However, if it is an individual offence, there is no statutory arrangement impeding such investigation/prosecution (and such measures) or making the relevant process subject to permission of any administrative authority.

- In its previous judgments in similar cases, the Court considered the membership of a terrorist organisation as an individual offence and as a case of flagrante delicto.

- Therefore, the act imputed to the applicant is an individual offence: therefore, no statutory obstacle rendering his detention unlawful.

- On the other hand, the ECHR, in one of its judgment which is not final yet, concluded that the applicant’s detention was unlawful as being contrary to the safeguards afforded to the members of the judiciary and found a violation under the Convention.

- The Court, notably in dealing with the individual applications before it, considers and adopts, to a significant extent, the ECHR’s case-law and the Convention. It also pays attention to render decisions in compliance with the ECHR’s case-law, as a requirement of its role to minimise the possible conflicts between the domestic law and international law.

- However, it should be indicated that it is for the Turkish authorities exercising public power and thereby for the domestic courts to interpret statutory provisions concerning detention of the members of the judiciary. The domestic courts are in a better position to interpret the domestic statutory provisions than the ECHR.

- Regard being had to the other factors in the prevent case, the Court found that the applicant’s detention also had both legal and factual basis.

 

Serkan Şeker

2017/15118

2 June 2020

(Second Section)

Violation of the right to a fair trial before an impartial tribunal safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to sitting of a judge dismissing the applicant’s complaint against a disciplinary sanction also on the bench of the court examining his challenge to the first instance decision.

- The applicant, who was detained, was placed in solitary confinement for 3 days, as a disciplinary sanction for defaming and insulting the public officers during a quarrel between the prisoners and the guardians. 

- In principle, the procedural safeguards inherent in the right to a fair trial must be afforded also during the appellate process. In this sense, for ensuring effectiveness of the appellate examination and giving no impression that such examination has not been conducted in accordance with the objective impartiality principles, the judge issuing the first instance decision in a given case must not sit on the bench of the appellate tribunal.

- However, failing to fulfil this principle is not per se sufficient to conclude that the appellate examination is ineffective and partial. Particular circumstances of each case must also be taken into consideration.

- In the present case, despite the clear statutory provision setting forth that in cases where a magistrate judge sits also on the bench of the assize court, which will examine the challenge against the decision issued by a bench composed of the same magistrate judge, he cannot take part in the appellate proceedings, the judge involved in the appellate examination of the applicant’s challenge, which impaired the objective impartiality. 

 

II. Constitutionality Review

E.2018/155

11 June 2020

(Plenary)

Annulment of the provision of Presidential Decree that prescribed an amendment to the Law

- Contested provision stipulates that certain departments, which were established with Presidential Decrees, shall be added to Schedule (1) annexed to Law no. 5018, and thus, the principles governing the budgeting and supervision processes of these departments shall be evaluated within the scope of the general budget.

- It is argued that the impugned amendment by the relevant Presidential Decree is related to an issue that is in fact regulated by law.

- Article 104 of the Constitution provides that the issues except for those related to executive power shall not be regulated by a presidential decree.

- The contested provision has been found unconstitutional on the ground of incompetence ratione materiae, and therefore it has been annulled.

Press Release

E.2018/88

11 June 2020

(Plenary)

Dismissal of the request for annulment of the provisions stipulating that that higher education institutions may require additional conditions in the appointment of associate professors and assistant professors

- Contested provisions stipulate that higher education institutions may require additional objective and reviewable conditions in the appointment of associate professors and assistant professors.

- It is argued that the contested provisions are unclear may result in discriminatory practices.

- According to Article 130 of the Constitution universities have scientific autonomy.

- Considering the dynamic structure of scientific and academic studies as well as the needs and conditions of each higher education institution, it may be necessary to determine new conditions, which cannot be foreseen before, in the appointment of academic staff.

- The impugned provisions also set forth certain criteria in terms of the use of such authority (e.g. the said conditions must be objective and reviewable). Besides, additional conditions determined by higher education institutions shall be subject to the approval of the Council of Higher Education.

- The contested provision has been found constitutional. Thus, the request for its annulment has been dismissed.

 

             

Case

Decision

Case-Law Development

Related

I. Individual Application

Bedrettin Morina

2017/40089

5 March 2020

(Plenary)

Violation of the prohibition of discrimination taken in conjunction with the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the prohibition of discrimination, taken in conjunction with the right to property, due to the applicant’s deprival of the opportunity to fill pension contribution gaps incurred for the period of service abroad prior to acquirement of Turkish citizenship.

- The applicant, subsequently acquiring Turkish citizenship, was entitled to old age pension from the Social Insurance Institution (“the SSI”) in 2009 by filling the pension contribution gaps incurred for the periods he worked abroad. However, his pension was cut, and he was ordered to return the paid amounts in 2015 by the SSI’s decision which indicated that he was not entitled to old age pension as the period of his service abroad could not be taken into consideration.

- Upon the appeal process, his case became final.

- Indifference treatment between natural-born citizens and naturalised citizens as those in the former category are afforded the opportunity to file pension contribution gaps while those in the latter category are not for the periods of service abroad prior to citizenship.

- In the present case, there was no objective and reasonable ground justifying such a difference in treatment by the type of acquirement of citizenship: placing an excessive burden on the applicant.

Press Release

Bünyamin Uçar

2017/32004

3 June 2020

(First Section)

 

Violation of the principles of equality of arms and adversarial trial safeguarded by Article 36 of the Constitution

- Alleged violation of the relevant principles due to the failure of the authorities to inform the applicant of the confidential information and documents used as evidence during the proceedings within the scope of the action for annulment brought by the applicant.

- The applicant had brought the impugned action for annulment, challenging his elimination due to the unfavourable result of the security investigation conducted in respect of him as part of the procedures for recruitment, although he had successfully passed the personnel recruitment examination.

- It is of great importance for the applicant to be aware of the content of the security investigation in order to be able to defend himself and make claims.

- Otherwise, he will be in a weak and disadvantaged position in the face of the administration's actions.

- It is clear that the applicant had been subjected to a procedure falling foul of the principles of equality of arms and adversarial trial.

 

             

Case

Decision

Case-Law Development

Related

I. Individual Application

Şehrivan Çoban

2017/22672

6 February 2020

(Plenary)

Violation of the right to be present at the hearing within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the applicant’s right due to the dismissal of her request to be present at the hearing and instead, her being provided with the opportunity to attend the hearing though the audio-visual information system.

- The parties' right to be present at the hearing not only ensures the effective exercise of the right to defence, but also renders the principles of equality of arms and adversarial proceedings operational.

- The authorities failed to consider alternative methods other than the audio-visual information system that should be among the last resorts. The particular circumstances hindering the applicant’s being present at the hearing were not indicated.

- As a result, the authorities failed to demonstrate in concrete terms that the dismissal of the applicant’s request to be present at the hearing, where an examination on the merits had been made, had really been necessary. As such, the impugned interference had not been necessary.

Press Release

M.T.

2018/10424

4 June 2020

(Plenary)

 

Inadmissibility of the alleged violation of the right to personal liberty and security as being manifestly ill-founded

- Alleged violation of the applicant’s right due to his unlawful detention on remand.

- The applicant was detained on remand for membership of the FETÖ/PDY within the scope of the investigation launched after the coup attempt of 15 July, and a criminal case was filed against him. At the end of the proceedings, he was convicted of membership of an armed terrorist organization.

- The charges against the applicant were mainly based on the fact that he had been using the application called ByLock, which was the most important ground for his detention on remand.

- It is specified in numerous court decisions that the ByLock –the covert digital communication platform of the FETÖ/PDY– was the most important application used by the organization in order not to be uncovered by ensuring the communication among its members privately.

- A number of investigations conducted into the ByLock application have demonstrated that it was not an ordinary communication programme but was used as a private and secret communication platform among the members of the FETÖ/PDY.

- Considering the results as a whole, it has been understood that the assessments made by the judicial authorities to the effect that the ByLock communication system, under the cover of a global application, had in fact been created to ensure organizational communication among the members of the FETÖ/PDY and the organizational communication was provided with great confidentiality through this program were based on very strong factual grounds as well as material/technical data.

- Therefore, regarding the use of the ByLock application as an organizational activity cannot be considered as an ill-founded or arbitrary approach. Hence, it was considered as a strong indication of guilt in terms of crimes related to the FETÖ/PDY.

 

Ferhat Kara

2018/15231

4 June 2020

(Plenary)

 

- No violation of the right to a fair hearing under the right to a fair trial safeguarded by Article 36 of the Constitution

- Inadmissibility

- Alleged violation of the applicant’s right as the digital data from ByLock had been obtained unlawfully and formed a basis for his conviction as a sole and decisive evidence.   

- The applicant, a guardian at the relevant time, was sentenced by the incumbent assize court to 7 years and 6 months’ imprisonment for his membership of an armed terrorist organization, namely the FETÖ/PDY, after the coup attempt of 15 July. In his conviction, the court relied on the applicant’s use of ByLock application.

- Whether the relevant digital data were obtained unlawfully: The National Intelligence Organization (“the MİT”) became aware of the use of ByLock application for organizational purposes while performing its duties under Law no. 2937. The MİT then reported this fact (digital materials) to the judicial authorities for necessary action. Therefore, the act by MİT –where it only reported a concrete data it had obtained on a legal basis while performing its intelligence activities in order to reveal the organizational acts and actions during the period when the FETÖ/PDY was perceived by the public authorities to pose a threat to the national security- cannot be construed to the effect that the MİT, an intelligence service, performed law-enforcement activities. The acts by the intelligence services to obtain and analyse information and evidence concerning terrorist organizations meet a pressing need in democratic societies.

- Therefore, the delivery, to the chief public prosecutor’s office, of the digital materials on ByLock communication system, which was obtained by the MİT within the framework of its statutory powers, and the technical report issued in this respect cannot be considered to constitute a manifest error of judgment or manifest arbitrariness. 

- Besides, the judicial authorities conducted all necessary examinations and inquiries as to the authenticity and reliability of the digital data. The defence was provided with the opportunity to challenge the authenticity of the evidence indicating that the applicant was a ByLock user.

- The court’s reliance on the applicant’s use of ByLock encrypted communication network, which was used by the FETÖ/PDY members to ensure confidentiality, in the applicant’s conviction cannot be considered as a manifest arbitrary act which completely rendered dysfunctional the procedural safeguards inherent in the right to a fair trial: inadmissibility for being manifestly ill-founded.

 

Eren Erdem

2019/9120

9 June 2020

(First Section)

 

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the impugned right of the applicant, a journalist, an author and the Republican People’s Party (CHP) 25th and 26th term MP for İstanbul, due to unlawfulness of his detention and the lack of reasoning for the risk of his fleeing.

- He was detained on the basis of strong suspicion that he had knowingly and wilfully aided the FETÖ/PDY armed terrorist organization. He was then sentenced to 4 years and 2 months’ imprisonment. He was subsequently released by the decision of the regional court of appeal.

- During the investigation launched against him in 2014, the investigation authorities did not find it necessary to order his detention or to apply any other measure.

- However, relying on the fact that the applicant was not nominated to stand as a 27th term MP as well as on a report sent to the police through an e-mail that he might flee abroad, the incumbent chief public prosecutor’s office requested issuance of an arrest warrant against him. Thereafter, a ban was imposed on his travelling abroad.

- The applicant, not being aware of the ban, unsuccessfully tried to travel to Germany with his family.

- The Court has observed that the report sent to the police by an unknown person cannot be regarded as a strong suspicion. Besides, there was no other concrete fact underlying the risk of his fleeing: therefore, his detention was found disproportionate.

 

Selahattin Demirtaş (3)

2017/38610

9 June 2020

(First Section)

 

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the said right of the applicant, an MP and also the co-chairperson of the Peoples’ Democratic Party (“the HDP”) at the time when his detention was ordered, due to the unreasonable length of his detention.

- He was detained on remand for his alleged membership of a terrorist organization and having publicly incited to commit an offence.

- The Constitutional Court, examining the applicant’s individual application, found his detention lawful.

- He then lodged an application with the ECHR which also found his detention lawful but concluded that the length of his detention exceeded reasonable time, which amounted to violations of the right to personal liberty and security, the right to free elections as well as of the prohibition that the rights and freedoms cannot be restricted for any purpose other than those prescribed under the Convention. His case is still pending before the Grand Chamber.

- Despite the assize court’s decision ordering his release, the applicant was not released who was convicted of another offence at the time of the decision.

- His detention was ordered anew within the scope of another investigation.

- Whether the length of his pre-trial detention has exceeded a reasonable time: The Court has observed on the basis of certain findings that there were strong indications of the applicant’s guilt.

- However, the incumbent courts failed to make an assessment as to the applicant’s allegations that his continued detention was unreasonable due to his capacities as an MP, co-chairperson of a political party and a presidential candidate.

- Dismissal of his requests for release and challenges against his continued detention based on stereotyped reasoning: therefore, his continued detention lacked relevant and sufficient reasoning.

Press Release

             

Case

Decision

Case-Law Development

Related

I. Individual Application

Senih Özay

2020/13969

9 June 2020

(First Section)

Inadmissibility for non-exhaustion of available remedies

- Alleged violations of certain constitutional rights and freedoms due to the Covid-19 lockdown measure ordered for those aged 65+.

- The applicant, who was among those covered by the circular issued by the Ministry of Inferior where a lockdown restriction was imposed for those aged 65+ and those suffering from chronic illnesses, directly lodged an individual application with the Court without resorting to any other judicial remedy.

- Whether there was any effective remedy capable of addressing the said allegation and finding a violation, if any.

- The applicant should have filed an administrative action for annulment, which is a remedy capable of establishing whether there was an interference with the applicant’s constitutional rights and, if any, whether it constituted a violation.  

- Besides, despite certain measures taken in judiciary, as a part of the fight against Covid-19, for slowing down, to a certain extent, the judicial services and ensuring their performance through different working methods, the judicial activities were never suspended.

- Accordingly, the consideration that the examination and adjudication of an administrative action, if filed, may be postponed due to the Covid-19 measures had no legal basis.

- The present application lodged without exhausting the available administrative remedy was therefore declared inadmissible.

 

             

Case

Decision

Case-Law Development

Related

I. Individual Application

Rıdvan Türan

2017/20669

10 March 2020

(First Section)

Violation of the freedom of communication safeguarded by Article 22 of the Constitution

- Alleged violation of the impugned freedom of the applicant, a prisoner, due to the penitentiary institution’s refusal to send his letter, for its allegedly inconvenient content.

- The relevant public authorities and inferior courts are obliged to justify with relevant and sufficient grounds that the impugned interference with fundamental rights and freedoms pursued a pressing social need and was proportionate. Otherwise, such interferences would not comply with the requirements of the democratic social order.

- The authorities’ failure to provide reasonable grounds for such interference.

-The impugned interference had not been necessary in a democratic society.

Press Release

             

Case

Decision

Case-Law Development

Related

I. Individual Application

Kemal Çakır and Others

2016/13846

5 Mart 2020

(Plenary)

Violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the applicants’ right due to dismissal, without an examination on the merits, of the action they had brought seeking the annulment of the decision whereby it was concluded that an environmental impact assessment was not required for the project according to which a wind power plant would be built in an area close to the neighbourhood where their properties were located, for their alleged lack of capacity to sue.

- The impugned decisions of the interior courts included a categorical approach that those who did not have a property in the project area would not be able to challenge against the impugned project under any circumstances, regardless of their subjective conditions such as the closeness of their properties to the project area as well as their intended use.

- Since such an approach made it impossible for the people, who were likely to be affected by the project, to bring an action, the said interference with the applicants' right of access to a court was disproportionate.

Press Release

Doğan Depişgen

2016/12233

11 March 2020

(Second Section)

 

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the applicant’s right due to the denial of the payment of his salary as a mukhtar for the period when he was held in detention.

- The applicant was acquitted at the end of the proceedings.

- The subsequent actions he brought claiming pecuniary and non-pecuniary damages were concluded in his favour, but his request for the payment of his unpaid salaries was rejected.

- The authorities failed to provide reasonable grounds in this respect.

- An excessive burden was imposed on the applicant.

- The fair balance between the protection of the right to property and the public interest pursued by the interference was disturbed to the detriment of the applicant. Hence, the impugned interference had been disproportionate.

 
II. Constitutionality Review

E.2018/125

E. 2019/31

E. 2019/78

22-23 January 2020

(Plenary)

- Dismissal of the request for annulment of the contested provisions included in the Presidential Decrees no. 1 and 8 for not being unconstitutional

- Annulment of the provision allowing for an advance payment in product and service procurements abroad

- The most significant feature of the presidential government system is, inter alia, to authorize the President to make arrangements through the “presidential decrees”.

- The President is authorized, by virtue of the Constitution, to issue presidential decrees; however, it is not an unlimited authority.

- Article 148 of the Constitution sets forth that the presidential decrees be subject to constitutionality review both in substance and in form.

- In Article 104 § 17 of the Constitution, it is set forth that the President may issue presidential decrees on the matters regarding executive power; and that the fundamental rights, individual rights and duties, and the political rights and duties shall not be regulated through a presidential decree. It is further specified that no presidential decree shall be issued on the matters which are stipulated, in the Constitution, to be regulated exclusively by law and which have been explicitly regulated by law. 

A. Provision stipulating that the Supreme Military Council (“the SMC”) secretariat services shall be conducted by the authority to be designated by the President.

- It is argued that empowering the President to assign the authority that would conduct the SMC secretariat services, without setting the basic principles on the performance of these services, is in breach of the Constitution.

- The contested provision does not allow for the establishment of an administrative structure or regulation of its duties and powers but vests the President with the power to designate the authority that would perform and conduct the SMC secretariat services. Nor is the provision concerning a matter needed to be regulated exclusively by law. Accordingly, it has been found constitutional insofar as it relates to the competence ratione materiae.

- The presidential decrees are also required to be clear, precise, comprehensible, enforceable and objective to the extent that would cause no hesitation and doubt for both individuals and the administration.

- As the contested provision, allowing for the performance of these services by an authority to be designated by the President, involves no unclarity, it has been found constitutional by its content.

B. Provision allowing for an advance payment in product and service procurements abroad.

- It is maintained that the contested provision is unconstitutional as it is intended for making an arrangement as to the matter which has been indeed regulated explicitly by law; and that the executive power has been exercised in breach of the principle of supremacy of the Constitution and the laws.

- In the review of the contested provision, it was firstly ascertained whether the relevant law was enforceable in the field covered by the presidential decree and subsequently determined whether the statutory arrangement was clear. 

- The terms and conditions of making an extra budgetary advance payment are in general laid down in Article 35 of Law no. 5018, which sets out the terms and conditions of extra budgetary advance payments.

- . It has been therefore concluded that the contested provision on the matter which has been explicitly regulated by law introduces an arrangement in breach of the relevant provision of the Constitution. Accordingly, it has been found unconstitutional insofar as they relate to the competence ratione materiae.

C. Provisions providing for the appointment of coordinator head doctor for the joint management of hospitals

- It is maintained that the provisions allowing for the appointment of a coordinator head doctor, in cases where there are several hospitals located within the same campus, for the joint management of these hospitals contain arrangements concerning a matter which is specified in Article 128 of the Constitution and which is to be regulated exclusively, and has been already regulated, by law.

- Article 106 § 11 of the Constitution provides for “The establishment, abolition, the duties and powers, the organizational structure of the ministries, and the establishment of their central and provincial organizations shall be regulated by the presidential decree”, thereby explicitly permitting to make arrangements, through the presidential decree, concerning the organizational structure of the ministries and the establishment of their central and provincial organizations. Accordingly, the contested provisions have been found constitutional insofar as they to the competence ratione materiae.

- Given the objective meaning of, and the aim pursued by, the contested provisions, it has been observed that they are designed to ensure the proper fulfilment of the duties and responsibilities concerning the management of the hospitals and thereby the effective performance of health-care services. Therefore, the contested provisions involve no aspect that would require the Court to conclude that they are intended for any purpose other than public interest. Accordingly, they have been found constitutional by their contents.

D. Provisions Stipulating that the members of the High Advisory Board of the Presidency and payments likely to be made to the members shall be designated by the President

- It is argued that the contested provisions are unconstitutional on the grounds, inter alia, that there is no clarity as to the qualifications, number and expertise of the Board members; and that the financial rights of the Board members should have been designated by law.

- Duty performed by the Board members is not in the form of a principal and permanent public service which is to be conducted in accordance with the general administrative principles within the meaning of Article 128 of the Constitution. Therefore, the designation of the Board members and the relevant payments cannot be considered as a matter needed to be regulated exclusively by law.

- Accordingly, the contested provisions have been found constitutional insofar as they relate to the competence ratione meteriae.

- The qualifications of the Board members are set forth in Article 4/A of the Presidential Decree.

- In consideration of the advisory nature of the Board, the number of the Board members having the necessary qualifications may vary by time and situation. It has been considered that the non-designation of the number of the Board members would not lead the individuals to foresee the relevant consequences of the contested provisions and render the provisions unclear, incomprehensible and unenforceable for the administration.

- It has been concluded that the contested provisions, taken together with the other provisions on the purpose of the Board’s establishment, qualifications of the members and their assignment procedure, do not lead to any unclarity.

- Accordingly, the contested provisions have been found constitutional by their contents.

Press Release

 E.2018/139

19 February 2019

(Plenary)

Annulment of the provision stipulating that in cases filed in order to benefit from premium incentive, the legal interest shall start running from the date of application to the administration prior to filing a case.

 

- Contested provision stipulates that in cases filed in order to benefit from premium incentive, the legal interest shall start running from the date of application to the administration prior to filing a case, and that the payments shall be made within three years.

- It is argued that the payment of the applicants’ receivables within three years will neither be lawful nor fair, as well as in view of the date of entry into force of the impugned provision, it will result in inequality between those who had brought or will bring an action in the same respect.

- It is clear that considering the date on which the legal interest shall start running and the three-year period prescribed for the payment, the contested provision restricts the right to property. It imposes a disproportionate burden on those concerned.

- The provision is found unconstitutional for being in breach of Articles 13, 35 and 36 of the Constitution and it is therefore annulled.

 

E.2018/122

19 February 2019

(Plenary)

Annulment of the Decree Law provision that is not based on the Empowering Act and Prescribes a Regulation on Fundamental Rights

- Contested provision stipulates that those who will be employed in public service on a contractual basis shall be required not to have been given imprisonment sentence for a period of more than 6 months.

- It is argued that while the impugned period is one year with regard to the public officials employed under the Civil Servants Law, it is six months with regard to the personnel to be employed in public service on a contractual basis under the relevant Decree Law, which is allegedly in breach of the principle of equality and therefore unconstitutional.

- Question of applicability of the repealed Article 91 of the Constitution, which regulated the legal regime of the decree laws: It is found applicable under certain circumstances.

- The contested provision stands for a regulation regarding the exercise of the right to enter public services. However, according to the repealed Article 91, the said issue cannot be regulated by a decree law.

- The provision is found unconstitutional for being in breach of the repealed Article 91 of the Constitution and it is therefore annulled.

 
             

Case

Decision

Case-Law Development

Related

I. Constitutionality Review

E.2018/163

19 February 2020

(Plenary)

Annulment of the provision stipulating that the units entrusted with conducting security investigation and archive research are authorized to access personal data

- Contested provision stipulates that the units entrusted with conducting security investigation and archive research are authorized to receive information and documents from the archives and electronic data processing centres of the ministries and public institutions as well as to access the records and court decisions.

- It is argued that the contested provision grants an unlimited opportunity to access the personal data of those wishing to enter public service, which may take away the concerned persons’ chance to enter public service or the dismissal of those who already hold public service positions. In this regard, it is claimed that the impugned provision imposes an unlimited restriction on the right to enter public service, in breach of the Constitution.

- Article 20 of the Constitution provides that everyone has the right to request the protection of his/her personal data.

- The data obtained through conducting security investigation and archive research are personal data. Thus, the contested provision restricts the right to request the protection of personal data.

- According to Article 20 of the Constitution, personal data can be processed only in cases envisaged by law or by the person’s explicit consent. The principles and procedures regarding the protection of personal data shall be laid down in law.

- The law where the contested provision is embodied provides no guarantee or regulation concerning the obtainment or processing of such data.

- Consequently, the provision is found unconstitutional as being in breach of Articles 13 and 20 of the Constitution and it is therefore annulled.

 

E.2018/91

19 February 2020

(Plenary)

 

Annulment of certain provisions of the Law no. 7072 on the Adoption, with Certain Amendments, of the Decree-Law on Making Certain Arrangements under the State of Emergency

A. Provision stipulating that the licence applications of media service providers which are reported by the General Directorate of Security and the National Intelligence Agency to have connections and relations with terrorist organizations shall be rejected.

- It is argued that the restriction imposed by the contested provision is disproportionate and that the procedures and principles regarding the said interference are not set forth in the law.

- Article 13 of the Constitution stipulates that any restriction on the freedoms of expression and the press shall be in conformity with the reasons mentioned in the relevant articles of the Constitution and be proportionate.

- It is observed that the relevant Law provides no legal guarantees preventing any arbitrariness in this respect; therefore, the contested provision imposes a disproportionate restriction on the freedom of expression and the press.

- The determination of the fact that the contested provision is unconstitutional in the ordinary period does not include any assessment as to whether it is constitutional under the state of emergency.

- Consequently, the Constitutional Court has found the contested provision in breach of Articles 13, 26 and 28 of the Constitution and therefore annulled it.

B. Provision stipulating that as regards the crimes committed in the virtual platform, the police shall be authorized to access the identity information of internet subscribers and to carry out researches in the virtual environment, as well as the access, location and content providers shall provide such requested information to the relevant law enforcement unit.

- It is argued that the relevant powers granted to the police officers by contested provision should in fact be enjoyed only by the public prosecutor according to the criminal procedure system.

- Article 20 of the Constitution safeguards the right to request the protection of personal data within the scope of the privacy of the private life. The identity information of internet subscribers constitutes personal data.

- The contested provision restricts the right to request the protection of personal data.

- Any restriction on the fundamental rights and freedoms must comply with the order of the democratic society as well as it must serve a pressing social need. The practice prescribed by the contested provision does not meet these criteria.

- The determination of the fact that the contested provision is unconstitutional in the ordinary period does not include any assessment as to whether it is constitutional under the state of emergency.

- Consequently, the Constitutional Court has found the contested provision in breach of Articles 13 and 20 of the Constitution and therefore annulled it.

C. Provision stipulating that security investigation and archive research shall be conducted in respect of the personnel to be hired on contractual basis.

- It is argued that it will result in arbitrariness where personal data is accessed through security investigation and archive research in the absence of legal regulations related to its obtainment, processing and use.

- The data obtained through conducting security investigation and archive research are personal data. Thus, the contested provision restricts the right to request the protection of personal data.

- According to Article 20 of the Constitution, personal data can be processed only in cases envisaged by law or by the person’s explicit consent. The principles and procedures regarding the protection of personal data shall be laid down in law.

- The law where the contested provision is embodied provides no guarantee or regulation concerning the obtainment or processing of such data.

- The determination of the fact that the contested provision is unconstitutional in the ordinary period does not include any assessment as to whether it is constitutional under the state of emergency.

- Consequently, the Constitutional Court has found the contested provision in breach of Articles 13 and 20 of the Constitution and therefore annulled it.

 
             

Case

Decision

Case-Law Development

Related

I. Individual Application

Emine Göksel

2016/10454

12 December 2019

(Plenary)

Violation of the right to respect for family life safeguarded by Article 20 of the Constitution

- Alleged violation of the impugned right of the applicant for dismissal of her challenge against the attachment order on their family residence that was imposed due to her husband’s debts.

- In cases where the attached house is a family residence, the concept “residential house” should be interpreted as a house suitable for the social and economic situation of the debtor and his family, not only the debtor.

- The positive obligations regarding the family residence, which are imposed on the State by the Constitution, are independent of the right to property.

- Considering that the debtor's spouse also has a legal interest in resorting to the jurisdiction to challenge the attachment of their family residence, she/he should have the opportunity to raise her/his rights arising from the assurance of the family residence as well as to assert them before the judicial authorities.

- The incumbent court’s narrow interpretation of the capacity for bringing an action did not comply with the guarantees enshrined in the Constitution.

Press Release

Erenkum İnş. Taah. Nak. Gıda Tur. San. ve Tic. Ltd. Şti.

2017/6462

27 February 2020

(First Section)

 

Inadmissibility

(right of access to a court)

- Alleged violation of the impugned right of the applicant, a company, due to the dismissal of its challenge against the traffic ticket as being time-barred.

- Examination of the application from the standpoint of the criterion of being devoid of constitutional and personal significance, which is one of the admissibility criteria.

- It is concluded that the application does not point to a general problem regarding the right of access to a court, nor is it important for the implementation and interpretation of the Constitution.

- Besides, the applicant failed to demonstrate how the dismissal of its challenge against the administrative fine caused harm to it.

Press Release

Mustafa Berberoğlu

2015/3324

26 February 2020

(Second Section)

Violation of the right of access to a court safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to dismissal of the action brought by a trade union on behalf of the applicant for lack of litigation capacity.

- The applicant, a trade-union representative at his workplace, was given disciplinary punishments by the institution where he was holding office and subsequently appointed to another office.

- As the applicant did not give an explicit authorisation to the trade union, the case brought by the latter was dismissed by the Council of State which also dismissed the request for rectification of the dismissal decision.

- In cases where an administrative action is dismissed for lack of litigation capacity, it is almost impossible to bring a fresh action, thereby constituting a particularly severe interference with the right of access to a court.

- Despite the existence of a less severe means of interference to achieve the pursued aim, resorting to a more severe means was also in breach of the principle of necessity.

Press Release

Yasin Akdeniz

2016/22178

26 February 2020

(Second Section)

No violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the said right as the applicant, who was detained for attempting to overthrow the constitutional order and his membership of the FETÖ/PDY terrorist organisation, could not effectively challenge his detention due to the restrictions on his meetings with his lawyer.

- The right to personal liberty and security is not among the core rights which cannot be interfered with, by virtue of Article 15 of the Constitution, in case of a state of emergency during which measures contrary to the safeguards prescribed for the ordinary period may be taken.

- The said restrictions have been found to be strictly required by the exigencies of the state of emergency.

-Besides, these restrictions are not applicable to all detainees and intended for maintaining constitutional order and public safety.

- Accordingly, the applicant’s membership of the FETÖ/PDY justified the monitoring of his meetings with his lawyer.

 
             

Case

Decision

Case-Law Development

Related

I. Individual Application

Deniz Karadeniz and Others

2014/18001

6 February 2020

(Plenary)

Violations of the prohibition of treatment incompatible with human dignity and the freedom of expression, respectively safeguarded by Articles 17 and 26 of the Constitution

 

 

- Alleged violations of the applicants’ rights for their having been battered and insulted by the police officers and for removal of the banner hung on the political party building.

- Use of tear gas in an indoor area constituted a disproportionate use of force.

- In addition, no effective criminal investigation was conducted against the police officers.

- Any interference with the freedom of expression that is of vital importance for the functioning of democracy must comply with the requirements of the order of the democratic society, and the public authorities must put forth relevant and sufficient reasons to justify the interference.

- The Constitutional Court has acknowledged in its many judgments that the freedom of expression should be interpreted broadly that it may allow for exaggeration and even provocation to some extent.

- The content of the banner hung by the applicants did not pose a threat to the public order.

- The impugned interference did not meet a pressing social need. Nor was it proportionate or necessary in a democratic society.

 

İhsanYalçın

2017/8171

9 January 2020

(First Section)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the applicant’s right due to his unlawful detention.

- The applicant was charged with the membership of the FETÖ/PDY terrorist organization.

- However, the authorities failed to provide strong indication of guilt substantiating the applicant’s detention.

- The applicant’s detention was unlawful also under Article 15 of the Constitution regulating the suspension of the exercise of fundamental rights and freedoms in cases of state of emergency, as the detention was not a kind of measure that was strictly required by the exigencies of the situation.

 

Ali Taştan

2017/5809

29 January 2020

(First Section)

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the impugned freedom of the applicant, an educationalist and unionist, due to his punishment for his expressions during an interview.

- The Ministry of National Education filed a criminal complaint against the applicant.

- The trial court made an abstract assessment regardless of the context of the applicant’s expressions and relied on only one word; it failed to consider the said interview as a whole.

- Failure on the part of the judicial authorities to strike a fair balance between the applicant’s freedom of expression and the complainant’s right to honour and dignity.

- It should be acceptable in a democratic society that the applicant, who closely follows educational debates that are especially of interest to the union of which he is a member, can freely express his criticisms on the issue.

- Besides, as a requirement of the democratic society, the public authorities should be more tolerant to the criticisms about their actions.

- In addition, the complainant authority used its wide range of opportunities to respond to the criticisms directed to it and could inform the public.

- The trial court failed to provide relevant and sufficient grounds to demonstrate that the punishment imposed on the applicant corresponded to a pressing social need.

 

Hüseyin Aydın and Others

2016/4177

27 February 2020

(First Section)

Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the applicants’ right due to the judicial authorities’ making a decision without taking into consideration the neglect of duty in a case where the applicants’ relative had also died as a result of the explosion of an armoury.

- Judicial authorities’ failure to examine and make an assessment as to whether there had been a neglect of duty on the part of the military administration.

- It is concluded that within the scope of the positive obligation to protect the right to life, the judicial process did not operate effectively.

 

İbrahim Kaya

2017/29474

28 January 2020

(Second Section)

 

Violation of the right to be provided with the necessary time and facilities to make defence under the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the applicant’s right due to submission of the case file to the regional court of appeal without communication of the reasoned decision to the applicant.

- The applicant was convicted of fraud. The decision was read to him at the hearing. He appealed against the decision, stating that he would later submit his reasons for appeal after the impugned decision would be communicated to him. However, without the communication of the decision to the applicant, the regional court of appeal dismissed his appeal on the merits.

- The applicant could not prepare a document pertaining to the detailed reasons for his appeal and thus could not submit any document to the regional court of appeal in this regard. Hence, he could not properly exercise his right to appeal.

 

Fenerbahçe Spor Kulübü Derneği

2017/4483

13 February 2020

(Second Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the impugned right of the applicant, a sports club, due to the administration’s getting a share of its revenue from the advertisement on its uniforms.

- Any interference with the right to property must have a clear, accessible and foreseeable legal basis.

- However, there was no legal provision ordering the applicant’s payment of the impugned amount. Therefore, imposition of a financial obligation in the absence of legal arrangement was in breach of the principle of legality

 

Melih Dalbudak

2016/16050

13 February 2020

(Second Section)

 

Violations of both substantive and procedural aspects of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the applicant’s right for his having sustained life-threatening injuries as a result of the use of disproportionate force by the police officers and for the authorities’ failure to conduct an effective criminal investigation into the incident.

- The applicant was injured with a gas cartridge fired by the police officers. The use of such a weapon must be the last resort. However, in the present case, the impugned use of force was not absolutely necessary.

- The investigation into the incident did not allow for an assessment as to whether the legislation regulating the use of force by the police officers provided safeguards against the arbitrary and excessive use of weapons as well as preventing individuals from unexpected accidents.

- In this respect, the police officers failed to take the necessary measures and resorted to the use of force in an uncontrolled manner.

- Besides, the investigation process lacked due diligence and reasonable promptness.

 

Mehmet Okyar

2017/38342

13 February 2020

(Second Section)

 

Violation of the right to a reasoned decision within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the applicant’s right for the trial court’s disregarding the Court of Accounts’ decision that was in his favour.

- The trial court failed to provide reasons for its decision that was contrary to that of the Court of Accounts.

- The principle of state of law is a basic principle required to be observed in the interpretation of the fundamental rights and freedoms enshrined in the Constitution. It also necessitates that the judicial authorities, as much as possible, refrain from making contradictory decisions regarding the same material or legal facts. Otherwise, the principle of state of law, as well as the people’s confidence in the law may be undermined.

 

II. Constitutionality Review

 

E.2018/159

24 December 2019

(Plenary)

Annulment of the provision stipulating that the executives who have been reinstated in their public services shall be appointed according to their titles prior to being an executive

- Contested provision stipulates that in cases where the people, who were dismissed from public service pursuant to Decree Law no. 677 while holding executive positions, have been reinstated, their titles prior to their executive positions shall be taken into consideration in their appointment.

- It is argued that the contested provision eliminates the public officials’ right to be reinstated in their positions prior to their dismissal in the absence of objective and concrete reasons, which is in breach of the principle of the protection of vested rights and the principle of legal certainty, and thus in breach of the Constitution.

- It is a requirement of the principle of legal certainty to ensure that the public officials shall not be dismissed, unless there is a legal and factual necessity.

- As a result of the applications with the Commission on Examination of the State of Emergency Procedures, in the event that the Commission renders a decision in favour of the individual concerned, then it means that he has no relation or connection with the terrorist organizations. However, in the presence of such a decision, failure to reinstate the public officials in their last positions will create the impression that the suspicions against them have not disappeared, which may adversely affect the individuals’ private and professional lives.

- Besides, the contested provision does not provide any guarantee to prevent such an impression, as well as it prescribes no a legal and factual necessity for preventing their appointment to their last positions.

- Accordingly, the impugned provision does not comply with the requirements of the order of the democratic society, and it also violates the principle of proportionality.

- The provision is found unconstitutional for being in breach of Articles 13 and 20 of the Constitution and it is therefore annulled.

 
             

Case

Decision

Case-Law Development

Related

I. Individual Application

UğurluGazetecilik Basın YayınMatbaacılıkReklamcılık Ltd. Şti. (3) 2016/5653

9 January 2020

(First Section)

Violations of the freedoms of expression and the press safeguarded respectively by Articles 26 and 28 of the Constitution

 

 

- Alleged violations of the impugned freedoms of the applicant, a publishing company as well as a newspaper, due to a decision of the Press Advertisement Associationordering the suspension of the publication ofadvertisements and official announcements.

- It is of vital importance in terms of the freedom of the press that such a decision hindering the economic opportunities of a newspaper should be the last resort.

- Failure of the Press Advertisement Association as well as the civil court to make a comprehensive assessment.

- Punishment of the applicant in such a way did not serve a pressing social need.

 

İhsanYalçın

2017/8171

9 January 2020

(First Section)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the applicant’s right due to his unlawful detention.

- The applicant was charged with the membership of the FETÖ/PDY terrorist organization.

- However, the authorities failed to provide strong indication of guilt substantiating the applicant’s detention.

- The applicant’s detention was unlawful also under Article 15 of the Constitution regulating the suspension of the exercise of fundamental rights and freedoms in cases of state of emergency, as the detention was not a kind of measure that was strictly required by the exigencies of the situation.

 

FarmasolTıbbiÜrünler San. ve Tic. A.Ş. (2) 2017/37300

 15 January 2020

(First Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the right due to non-reimbursement of the fee paid by the applicant company to file an objection despite the decision in its favour.

- The applicant was excluded from a tender by the tender commission. The relevant administration dismissed his complaint against its exclusion.

- The applicant then filed an objection with the relevant Authority by paying the relevant fee. Examining its objection, the Authority decided in favour of the applicant.

- However, the applicant was not reimbursed the fee it had paid.

- Receiving of the relevant fee indeed pursued the aim of public interest, but the impugned interference with the right to property placed an excessive burden on the applicant.

- Besides, the applicant’s interests were disregarded.

Press Release

FidanlarİnşaatTaahhütSanayiveTicaret Ltd. Şti.

2017/38836

15 January 2020

(First Section)

 

No violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the applicant’s right for imposition of an administrative fine of an excessive amount due to its failure to obtain an EIA report prior to starting a construction.

- Obtaining an EIA report prior to any construction activity is of great importance in terms of the protection of environment and the right to live in a healthy environment.

- The applicant, as a company operating in the construction industry and having carried out many projects, should have predicted that it would not be allowed to start a construction without obtaining an EIA report.

- Administrative fine resulting from the applicant’s own negligence.

- In addition, the applicant’s failure to submit any information or document substantiating its allegation that the amount of the fine was excessive.

- Fair balance was struck between the applicant’s right to property and the public interest, as well as the impugned interference was proportionate.

Press Release

Abdulkadir Yılmaz and Others

2016/13649

 29 January 2020

(First Section)

 

Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the applicants’ right as no permission was granted for initiating an investigation against certain public officers, the suspects of the mine explosion resulting in death and injury of several persons.

- The relevant expert report reveals that the public officers, who inspected the mine where the explosion took place from 2010 to the explosion date, had certain omissions which might have a bearing on the occurrence of the explosion.

- However, the Minister of Labour refused to grant permission to initiate an investigation against these officers.

- Discontinuation of the judicial process without allowing the investigation authorities to establish the criminal liability of the public officers was incompatible with the principles of an effective investigation.

- Besides, the failure to charge the persons who have put individuals’ lives at risk or to subject them to a trial may give rise to a violation of the right to life.

Press Release

II. Constitutionality Review

 

E.2018/74

24 December 2019

(Plenary)

Annulment of the provision hindering the right to file a case against the additional measures implemented with the state of emergency decree laws

- Contested provision stipulates that the additional measures set forth in the Decree-Laws adopted during the state of emergency cannot be challenged before the Inquiry Commission for State of Emergency Measures.

- Primary measures stipulated in the relevant decree-laws can be challenged. However, the additional measures are not always the essential consequences of or related to the primary measures. Some of them directly concern the fundamental rights and freedoms safeguarded by the Constitution.

- The contested provision prevents any assessment on the lawfulness of the said additional measures. Thus, such measures should be considered independently.

- The provision is found unconstitutional for being in breach of the right to an effective remedy under Article 40 of the Constitution.

 
             

Case

Decision

Case-Law Development

Related

I. Individual Application

Ahmet Gülen

2016/23168

16 January 2020

(Second Section)

Violation of the right to respect for family life safeguarded by Article 20 of the Constitution

 

 

 

- Alleged violation of the said right of a detainee whose request for having a contact visit with his child with Down syndrome was rejected.

- The public authorities should have taken into consideration the fact that the child who was 90 percent disabled and suffering from Down syndrome could not properly enjoyed his right to non-contact visit and that it would be to his best interest to be allowed to visit his imprisoned father under more special conditions.

- The authorities’ failure to put forth relevant and sufficient grounds for dismissal of the applicant’s request.

- The impugned interference had not been proportionate or necessary in a democratic society in terms of ensuring minimum family relationships.

Press Release 

Aslan Avcı Döküm Sanayi ve Ticaret A.Ş.

2017/39159

28 January 2020

(Second Section)

No violation of the right to property safeguarded by Article 35 of the Constitution

 

- Alleged violation of the said right due to the administrative fine imposed on the applicant for its failure to dispose of hazardous wastes.

- Disposal of hazardous wastes is of great importance for the protection of environment and for the right to enjoy a healthy environment.

- The impugned interference with the applicant’s right to property was intended to serve the public interest and to protect the environment.

- No factual obstacle to the disposal of the hazardous wastes.

- The applicant had the opportunity to effectively challenge the impugned interference which was through its own fault.

- No judicial or administrative sanction, other than the administrative fine, was imposed.

- The fair balance that had to be struck between the applicant’s right and the public interest was not upset, and the interference was proportionate.

 

             

Case

Decision

Case-Law Development

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I. Individual Application

Uğurlu Gazetecilik Basın Yayın Matbaacılık Reklamcılık Limited Şirketi 

(2016/12313)

26 December 2019 

(Plenary)  

No violations of the freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution 

 

 

 

- Alleged violations of the said freedoms of the applicant for the damages it had been ordered to pay due to the news allegedly referred to an issue that had already been reported as news previously and allegedly falling into the scope of journalistic activities. 

The allegations raised against the complainants, who are a politician and his wife, in the impugned news had not relied on credible evidence. 

The applicant’s failure to fulfil its obligation to make an extensive research before disseminating information. 

- Punishment imposed on the applicant was proportionate and complied with the requirements of the order of the democratic society. 
 

 

Erol Aksoy 

2016/11026 

12 December 2019 

(Plenary) 

Violation of the right to property  safeguarded by Article 35 of the Constitution 

 

- Alleged violation of the said right due to the non-execution of the court decisions ordering annulment of the sale by auction of the applicant’s media group.  

- An administrative act annulled by an administrative tribunal is deemed to have never been performed. The administration is not relived of its obligation to execute an annulment decision even under extraordinary circumstances where its execution is impossible either de jure or de facto.   

- In the present case, the court decisions annulling the impugned tender and sale were not executed in spite of having final and operative effect. 

- Public authorities’ failure to ensure the execution of these decisions. 

- Administration’s failure to demonstrate the existence of any de jure and de facto impossibility hindering the execution of the decisions as well as to offer an alternative solution to the applicant.  

Press Release 

 

Ayfer Demirel and Others 

2016/8011 

9 January 2020 

(First Section) 

Violation of the substantive aspect of the right to life safeguarded by Article 17 of the Constitution 

- Alleged violation of the said right of the applicants’ next-of-kin who had died as a result of the explosion of military ammunition at the age of 13 due to the failure of military authorities to take adequate measures. 

- As the place where the incident had occurred and the ammunition had been obtained was a military zone or close to there, the public authorities had an obligation to take reasonable and special security measures to ensure the protection of life. 

- However, the security measures taken had not been sufficient to the extent ensuring the protection of a minor at the age of 13. 

It should be noted that children, who naturally do not have ability to discern like adults, should be provided with special protection. 

 

Şehmus Altındağ and Others 

2014/4926 

9 January 2020 

(First Section) 

 

Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution 

- Alleged violation of the right of the applicants, demonstrators protesting the killing of some persons who were members of the PKK terrorist organization, on the ground that the police officers caused incidents of death and injury by use of arms unlawfully, as well as that the investigation authorities failed to conduct an effective and speedy investigation into the incident. 

- In order for a criminal investigation to be effective, the investigation authorities should act ex officio and immediately with a view to collecting all evidence capable of clarifying the incident and identifying those responsible. 

- Investigation authorities’ failure to act with due diligence. Despite the existence of tangible evidence on how the impugned incidents had occurred, a decision of non-prosecution had been issued, which demonstrated that the relevant evidence had not been subject to exhaustive, objective and impartial analysis

 

 

II. Constitutionality Review 

E.2018/89 

14 November 2019 

(Plenary) 

 

Dismissal of the request for annulment of the provisions stipulating that those who have connections and relations with terrorist organizations shall not be allowed to be notary, mediator or expert   

Contested provisions stipulate that those who have connections and relations with terrorist organizations shall not be allowed to be notary, mediator or expert. 

- It was claimed; that the contested provisions were unconstitutional on the grounds that the contents of the terms connection and relation were unclear and unpredictable; that they were not only applicable during the state of emergency, but were of continuous nature; that they constituted and interference with the right to enter public service; and that such an interference did not comply with the criteria regarding the restriction of fundamental rights and freedoms. 

The contested provisions are convenient and necessary for ensuring the legal certainty and public interest, given the nature of the mentioned professions. 

- As for the alleged lack of clarity and predictability regarding the contents of the terms connection and relation; the Court denies this allegation, as the said terms are of general nature and their contents are clear as well as predictable. 

- It is also possible that any dispute to arise out of the application of these provisions may be brought before the courts. In addition, there is no obstacle in entering these professions for those who have applied to the courts against the allegations to the effect that have connections and relations with terrorist organizations and hence received a judgment in their favour. 

- The Law where the impugned provisions are included also provides legal safeguards preventing any arbitrariness in their application. 

- Consequently, the reasonable balance between the public interest in ensuring the conduct of the public service in an accurate, impartial and safe manner and the individuals’ right to enter public service has been struck.  

 

E.2018/90 

14 November 2019 

(Plenary) 

 

Annulment of certain provisions of the Law no. 7071 on the Adoption, with Certain Amendments, of the Decree Law on Making Certain Arrangements under the State of Emergency 

A. Provision stipulating thatthe municipal services, which cannot be carried out properly due to disasters, mass migration and terrorism or due to the appointment of the mayor or deputy mayor to another service, may be transferred to another municipality upon the request of the governor or mayor. In such a case, the relevant request can be fulfilled with the permission of the Minister of the Interior, without the need for a council decision of the municipality the service of which is transferred to another municipality. 

- It was argued that the provision constituted an interference with the administrative and financial autonomy of municipalities. 

- Transfer of municipal service to another municipality without consulting to the council of the municipality in need of assistance is in breach of the autonomy of local administrations as well as the principle of local administration.  

- Provision found unconstitutional and annulled. 

B. Provision stipulating thatthe real and legal persons reported by the General Directorate of Security and theUndersecretariat of the National Intelligence Agency to have connections and relations with terrorist organizations cannot participate in public tenders. 

- It was argued; that such a prohibition would constitute an interference with the freedom of contract; that the contents of the terms connection and relation was unclear and unpredictable; and that imposition of such a measure in the absence of a main legal arrangement, but relying on sub-arrangements, would amount to the delegation of the legislative prerogative. 

- The announcement to be made by the General Directorate of Security and the Undersecretariat of the National Intelligence Agency must not necessarily be predicated upon the information and documents that may form a basis for the criminal investigation. The contested provision does not provide legal safeguards against any potential arbitrariness in this respect. 

- Provision found in breach of Articles 13 and 48 of the Constitution and annulled. 

C. Provisionallowingfor postponement of a legal strike or lockout in the sector of mass transportation service and banking services, for a period of 60 days. 

- It was argued; that the contested provision imposed an excessive and disproportionate restriction on the right to strike; that the executive organ was vested with an authority that could only been enjoyed by the judiciary; and that the right to strike could be restricted in vital or basic public services but the services set forth in the provision are not of that nature. 

- Any restriction on the right to strike that is important in terms of the functioning of democracy must pursue a pressing social need. 

- Mass transportation and banking services are not among the vital or basic public services. 

- The restriction prescribed in the impugned provision does not comply with the requirements of the order of the democratic society. 

-Provision found in breach of Articles 13 and 54 of the Constitution and annulled. 

D. Provisions imposing a restriction on the creditor’s right to make a claim from the debtor company; precluding the guarantor from raising certain pleas of claim; and envisaging that in cases where the company for which a trustee has been appointed is a guarantor, the creditor(s) may make a claim from the company only after applying to the debtor and the other guarantors. 

 - It was argued; that the contested provisions allowed for an unforeseeable interference with the right to property as well as for an unequal treatment in favour of the companies for which a trustee has been appointed; and that vesting the TMSF, an administrative body, with the authority to directly sell assets of real and legal persons constituted an arbitrary interference with the right to property.  

- The contested provisions were intended for attaining the aim of public interest. At this point, it would be ascertained whether the least severe means was chosen to attain this aim.  

- Unilateral alteration of the deeds, which were indeed guaranteed by the legal provisions in force at the relevant time, to the detriment of one party upset the fair balance between requirements of the protection of the individuals’ right to property and the aim of public interest sought to be attained and imposed an excessive burden on individuals. 

- Provisions found in breach of Articles 13 and 35 of the Constitution and annulled. 

 

E.2018/38 

24 December 2019 

(Plenary) 

 

Dismissal of the request for annulment of the provision stipulating that the Black Sea-Marmara Canal Project (Canal İstanbul) and similar waterway projects shall be included in the investments and services that can be carried out by public institutions and organization within the framework of the build-operate-transfer model 

- Contested provision stipulates that the Black Sea-Marmara Canal Project (Canal İstanbul) and similar waterway projects shall be included in the investments and services that can be carried out by public institutions and organization within the framework of the build-operate-transfer model. 

It was argued; that the project would have an adverse impact on the environment, nature and individuals’ lives; that there is no outweighing public interest in materialization of the project; and that it is incompatible with the international obligations on the protection of environment.  

- The contested provision only indicates the method to enable the performance of the project and does not include any expression and content which would preclude taking of necessary, effective and functional measures in order to protect the environment.  

- Nor does it remove, in any aspect, the obligation to act in line with constitutional principles and provisions concerning the protection of the environment.   

- Provision not found in breach of the Constitution, and the request for its annulment was rejected. 

 

        

Case

Decision

Case-Law Development

Related

I. Individual Application

Mustafa Özterzi

2016/14597

31 October 2019

(Plenary)

Violation of the right to personal liberty and security  safeguarded by Article 19 of the Constitution

 

 

 

- Alleged violation of the said right due to unlawfulness of the applicant’s arrest, custody and detention under an investigation conducted into the FETÖ/PDY.

- Detention of the applicant, a former judge, had a legal basis.

- Investigation authorities’ failure to demonstrate the existence of concrete facts as to the strong indication of the applicant’s guilt.

- The impugned interference is not justified by Article 15 of the Constitution allowing for suspension and restriction of the exercise of fundamental rights and freedoms in times of a state of emergency.

 

Rasül Kocatürk

2016/8080

26 December 2019

(Plenary)

Violation of the right to respect for private and family life  safeguarded by Article 20 of the Constitution

 

-Alleged violation of the said right due to dismissal of the request by the applicant, a convict held in a penitentiary institution, to attend his father’s funeral and to receive condolence visits.

- The prosecutor’s office dismissed the request as the funeral had already taken place and the staff shortage in the institution might cause security vulnerability.

- The applicant should have filed a challenge before the execution judge against the prosecutor’s dismissal decision. However, as his father’s funeral had taken place before the decision was served on him, this remedy would not secure an effective outcome for the applicant: no need for him to exhaust this remedy before lodging an individual application.  

- As provided for in Law no. 5275, the convicts are entitled to a compassionate leave in case of the death of their next-of-kin, which includes not only to attend the funeral but also to receive condolence visits.

- The authorities’ failure to prove that they had indeed responded with due care to ensure the applicant’s attendance in the funeral and that they had resorted alternative means to overcome the understaffing problem.

 

        

Case

Decision

Case-Law Development

Related

I. Individual Application

Wikimedia Foundation Inc. and Others

2017/22355

26 December 2019
(Plenary)

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

 

 

 

-Alleged violation of the said freedom as the blanket ban on access to Wikipedia constituted an interference not complying with the requirements of the democratic order of the society.

- Blocking of access to Wikipedia in Turkey has constituted an interference not only with the freedom to disseminate information and thoughts enjoyed by the applicant in its capacity as the content provider but also with the Turkish users’ right to receive information and thoughts.

- Inferior courts’ failure to prove the causal link between the impugned contents on the website and the reason underlying the restriction as well as to provide relevant and sufficient grounds to demonstrate that the impugned restriction was justified by a pressing need.

-The measure of blocking access has become permanent so as to clearly constitute a disproportionate interference with the said freedom.

Press Release

Betül Öztürk Gülhan and Sıla Koç

2016/12937

10 December 2019
(First Section)

Violations of the prohibition of treatment incompatible with human dignity and the right to hold meetings and demonstrations marches safeguarded respectively by Articles 17 and 34 of the Constitution

 

- Alleged violations of the said prohibition and the right due to the decision of non-prosecution issued at the end of the investigation conducted against the police officers who had intervened in the demonstration held in order to protest the Soma mine accident.

- Failure to demonstrate the necessity of the police intervention in the demonstrators.

- No sufficient diligence and endeavour by the investigation authority to identify the police officers who had sprayed the applicants with tear gas.

- The investigation authority’s failure to fully take necessary steps to clarify the incident and to conduct the investigation with due diligence: violation of the prohibition of treatment incompatible with human dignity.

- No finding to the effect that the applicants impaired the peaceful nature of the meeting.

- The administration’s failure to demonstrate that the applicants’ acts led to the disturbance of the public order or caused such a risk: violation of the right to hold meetings and demonstration marches.

Press Release

Yaşar İnce

2016/1750

10 December 2019
(First Section)

 

Violation of the right to respect for family life safeguarded by Article 20 of the Constitution

- Alleged violation of the said right due to dismissal of the applicant’s request for maintaining contact with his stepfather while serving his aggravated life imprisonment sentence.

- A reasonable balance is to be struck between the public interest in maintaining security and discipline at prisons and the individual interest in ensuring the prisoners to maintain their family relations.

- The Court has emphasized several times that even in the absence of blood relation or adoption, a family tie may be deemed to have been established, under certain circumstances, between the children and those taking care of them and meeting their needs.

- The impugned interference was not based on relevant and sufficient grounds. Nor was it proportionate and necessary in a democratic society.

 

Murat Yasan

2015/6802

8 January 2020
(Second Section)

Violations of the principles of equality of arms and adversarial proceedings inherent in the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violations of the said principles as the applicant was not notified of the expert report forming a basis for the impugned decision, which precluded him from duly putting forward his claims and challenges against the report.

- In dismissing the action brought by the applicant, the inferior court relied on an expert report which had not been previously served on him. Therefore, the applicant was deprived of practical and effective opportunities to examine, comment on and challenge the report.

- Nor were his subsequent challenges against the report discussed in the appeal process.

 

II. Constitutionality Review

 

E.2019/85

14 November 2019
(Plenary)

Dismissal of the request for annulment of the contested provision in the Turkish Criminal Code which allows for suspension of the running of prescription until the settlement of the dispute which is to be dealt with and resolved in another jurisdiction

- Alleged unconstitutionality as the contested provision has led to the prolongation of the proceedings due to faults not attributable to the parties involved, which is in breach of the right to a fair trial as well as contrary to the principle of equality and the prohibition of discrimination.

- The law-maker has a discretion in setting the prescription time-limits on condition of being compatible with the constitutional rules. 

- It should be noted that the prescription time-limits are set not only in favour of individuals but also in favour of the public in general.

- Despite the contested the provision, the criminal judge is also entitled to adjudicate the case without awaiting for the decision to be rendered on the same matter in another jurisdiction.

- Therefore, the provision was not found in breach of Articles 10, 36 and 41 of the Constitution.

 

      

Case

Decision

Case-Law Development

Related

I. Individual Application

Candaş Kat
2015/18467
19 November 2019
(First Section)

Violation of the right to an individual application safeguarded by Article 148 of the Constitution

 

 

 

- Alleged violation of the applicant’s right due to the seizure by the prison administration of the documents that he wanted to send to his lawyer by e-mail in order to lodge an individual application.

- Individual application is a constitutional right ensuring the protection of fundamental rights and freedoms. Therefore, administrative and judicial authorities are obliged to abstain from acting in a deterrent or obstructive manner in this respect.

- In the present case, no relevant and sufficient grounds were provided to demonstrate why these documents were found unrelated with individual application.

 

 

 

Hayko Bağdat
2016/256
28 November 2019
(First Section)

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

 

- Alleged violation of the applicant’s right for being convicted due to his social media post addressed to a politician.

- The Court has always stressed that the limits of criticism against politicians and publicly known persons are much wider.

- The fine imposed on the applicant would have a suppressive effect on his activities as an author and journalist.

- The interference with his freedom of expression with a view to protecting another person’s reputation and rights was not found compatible with the requirements of a democratic society.

 

Mehmet Salih Baltacı
2017/14768
27 November 2019
(Second Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation the said right for seizure of the vehicles belonging to a third person for allegedly having been used during an offence.

- The applicant whose vehicles had been used during the offence had not been aware of the said offence; he was a bona fide third party. The judicial authorities’ failure to make a reasonable assessment in this respect.

- The applicant was imposed an excessive and disproportionate burden.

- Failure to strike a fair balance between the applicant’s right to property and the public interest to the detriment of the applicant.

 

     

Case

Decision

Case-Law Development

Related

I. Individual Application

İbrahim Acar
2016/3140
7 November 2019
(First Section)

Violation of the procedural aspect of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

 

 

 

- Alleged violation of the applicant’s right since he was ordered to pay more than he earned as alimony payment.

- The court only relied on the information provided by the law enforcement officers regarding the economic conditions of the parties. Hence it reached a decision without having exact information about the applicant’s monthly income.

- The amount the applicant was ordered to pay was not proportionate.

- The public authorities’ failure to fulfil their positive obligations under the right to protect and improve the applicant’s corporeal and spiritual existence.

 

 

 

Ziya Özden
2016/67737
19 November 2019
(First Section)

Violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

 

- Alleged violation of the applicant’s right for rejection of his request not to be placed in a single cell in the penitentiary institution, without an examination by the execution judge.

- The decision ordering the applicant’s placement in a single cell was delivered by the Administrative and Supervisory Board of the Penitentiary Institution.

- The execution judge claimed that the said decision had been given upon the instruction of the Ministry of Justice and that it therefore refused to examine the applicant’s objection.

- However, the applicant’s objection was against the decision of the Administrative and Supervisory Board that was within the jurisdiction of the execution judge.

- The rejection by the execution judge of the objection submitted by the applicant, without any examination, had been unlawful.

 

     

Case

Decision

Case-Law Development

Related

I. Individual Application

Hasan Fırat
2015/9496
31 October 2019
(Plenary)

Violation of the procedural aspect of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

 

 

 

-Alleged violation of the said prohibition due to the injury sustained by the applicant as a result of police intervention in a demonstration.
- As required by procedural aspect of the positive obligation under the right to protect one’s corporeal and spiritual existence, the State has to conduct an official effective investigation capable of leading to identification and punishment, if necessary, of those responsible for any kind of physical and mental attacks.
- However, in the present case, a decision of non-prosecution was rendered, at the end of the investigation, without clarifying whether the applicant’s injury had been caused by intervention of police officers or third persons.
- The way in which the investigation was conducted also casted doubt on its independence and impartiality.

 

 

 

Aligül Alkaya and Others (2)
2016/12506
7 November 2019
(First Section)

Continued violation of the right to a fair hearing safeguarded by Article 36 of the Constitution

 

- Alleged violation of the applicants’ right to a fair hearing due to the non-enforcement of the Court’s judgment finding a violation.
- In case of an order for a retrial by the Court in conjunction with its violation judgment, the relevant inferior court has no discretionary power in assessing whether a ground requiring a retrial exists.
- Non-enforcement of a violation judgment rendered by the Court amounts to the continuation of the previously-found violation.
- In the first application lodged by the applicants, the Court found a violation of the right to a fair hearing in its entirety due to the inferior court’s failure to fulfil the requirements inherent in the rights to examine and cross-examine witnesses as well as to legal assistance.
- Due to the inferior court’s failure to accept the request for a retrial in accordance with the Court’s violation judgment, the violation found by the Court in its former judgment with respect to the applicants and the consequences thereof were not redressed.

Press Release

Şükran İrge
2016/8660
7 November 2019
(First Section)

Violation of the right to respect for family life safeguarded by Article 20 of the Constitution

 

- Alleged violation of the said right due to dismissal of the request for a suspension of execution filed by the applicant, a convict serving her sentence in a penitentiary institution with her two children.
- Her request was dismissed as she was to be considered as a dangerous convict: no sufficient ground so as to indicate why the applicant, convicted of aggravated theft, was categorized as a convict posing a threat.
- In the face of the public authorities acknowledgement that the ward’s capacity as well as physical condition of the penitentiary institution was unfit for children’s lives and development, the applicant’s baby was deprived of a sound environment fit for his age and needs.
- No balance was struck between the applicant’s placement in a penitentiary institution and the child’s best interest. Nor was any measure such as providing an appropriate environment for the child or transferring them to another institution with better conditions taken: non-fulfilment of the positive obligations

Press Release

Ali Ertan and Others
2016/6190
7 November 2019
(First Section)

Violation of the right of access to a court safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to dismissal, as being time-barred, of the action for compensation brought by the applicants, relatives of two lieutenant pilots who died as a result of a plane crash taking place due to the fire opened by a foreign State’s forces while serving in the Turkish Armed Forces.
- The Supreme Military Administrative Court found the applicants’ action time-barred, noting that the applicants had become aware of the deaths and the sustained damage at the date of the incident: but they had not been indeed aware of the administrative nature of the impugned act until the indictment was served on them.
- As the Court has recently pointed out, in cases where the administrative nature of act, or the damage it has caused, or the casual link between them, is found out or can be proven long after the incident, the prescribed time-limit for filing an action will start running only thereafter.
- Impugned interference placed a disproportionate

Press Release

Ahmet Haluk Altan
2015/14340

12 October 2019
(Second Section)

No violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the impugned freedom of the applicant, a lawyer, for his punishment due to his expressions in the petition he had submitted to the court in defence of his client.
- The impugned expressions of the applicant were addressed to the judge of the trial court.
- The parties of the case should abstain from behaviours and conducts targeting the personality of the judge as well as preventing the sound conduct of the proceedings.
- The applicants’ words against the judge had been offensive.
- A fair balance has been struck between the applicant’s freedom of expression and the complainant’s (judge) right to protection of honour and dignity.

 

Erbil Tuşalp
2015/2595

23 October 2019
(Second Section)

Violation of the freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution

- Alleged violation of the impugned freedom of the applicant, a journalist, for the sanction imposed on him on the ground that he had contributed to the dissemination of the expressions harming the complainant’s (Fetullah Gülen, leader of the FETÖ/PDY) honour.
- The impugned expressions were not related to the complainant’s private life but concerned the public interest.
- The courts’ failure to strike a fair balance between the applicant’s freedom of expression and the interests of the public and the complainant.
-Interference was unnecessary in a democratic.

 

Hasan Ercan
2015/54
12 November 2019
(Second Section)

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the said freedom due to the fine imposed on him on account of his expressions in a petition whereby he filed a complaint about a judge dealing with his uncle’s case.
- Right to petition is one of the most important means of the right to legal remedies and allows for sentencing of individuals claiming rights only under very exceptional circumstances.
- Even if the applicant’s criticism towards the judge is found to be very severe, it is not targeted at his private life or personal characteristics but concerns the decision rendered by him.
- The inferior court’s failure to strike a fair balance between the applicant’s freedom of expression and the complainant’s right to protection of honour and reputation.
- In imposing a fine, the inferior court failed to give relevant and sufficient grounds to justify that there was a pressing need.

 

II. Constitutionality Review

E.2019/70

16 October 2019
(Plenary)

Annulment of the provision stipulating that the broadcast of the enterprises failing to pay the channel and frequency usage fee shall be ceased by the Radio and Television Supreme Council (“the RTÜK”) within one month.

- Alleged unconstitutionality as there was no reasonable balance between the envisaged measure and the aim sought to be achieved.
- The impugned measure in the form of suspension of broadcast has restricted the freedom of expression and the press enjoyed by the relevant radio and television channels.
- Lack of a gradual method as a measure for receivables that will be subject to default interests in case of a delay or failure in their payment and may also be collected through enforcement.
- Restriction on freedom of the press must be subject to stricter criteria in that it also ensures the individuals’ freedom of information.
- The envisaged measure has not been mandatory in terms of the aim sought to be achieved by the contested provision and the reasonable balance between the public interest pursued by the restriction and the freedom of expression and the press could not be struck.
- The contested provision is in breach of Articles 13, 16 and 28 of the Constitution

Press Release

      

Case

Decision

Case-Law Development

Related

I. Individual Application

Mehmet Aksoy
2014/5433
11 July 2019
(Plenary)

Violation the freedom of expression safeguarded by Article 26 of the Constitution

 

 

 

-Alleged violation of the said freedom of the applicant, a sculptor, due to the demolition of the monument he had sculpted, in accordance with the decision of certain public authorities.
- An interference not complying with the conditions stipulated in Article 13 of the Constitution violates the freedom of expression.
- State’s failure to fulfil its positive obligations to protect a piece of art.
- Failure to demonstrate that the demolition of the monument had been necessary in a democratic society as well as being the last resort.
- Decisions of the administrative authorities and courts lacked relevant and sufficient grounds.

 

 

 

Binali Boran
2016/1235
24 October 2019
(First Section)

Violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

 

- Alleged violation of the applicant’s right for rejection of his appeal request, which he had submitted electronically via the National Judiciary Informatics System (UYAP), as being time-barred.
- Domestic law provides that a case can be filed via an electronic platform by using a secure electronic signature and that the deadline is the end of the day for the electronically-conducted processes.
- Although the applicant filed an appeal request via UYAP on 11 June 2015, the court staff proceeded with the request one day after the expiry of the statutory period (on 12 June 2015). Relying on the latter date, the Court of Cassation dismissed the applicant’s appeal request as being time-barred, which cannot be regarded as foreseeable.
- The impugned practice of the Court of Cassation eliminated the applicant’s opportunity to make use of the appeal remedy, thereby imposing a heavy burden on him.

Press Release 

Gülşen Polat and Kenan Polat
2015/4450
10 October 2019
(Second Section)

Violation of the right to life and the prohibition of torture, safeguarded by Article 17 of the Constitution

 

- Alleged violation of the said rights due to the death of the applicants’ son at a military penitentiary institution as a result of ill-treatment and lack of an effective investigation into the incident.
- It was found established by the inferior courts that the applicants’ son had lost his life due to the ill-treatment he had been inflicted at the military penitentiary institution. No reasonable explanation about the said acts under the State’s supervision and protection.
- The military prosecutor’s office acted ten days after the applicants’ son had been taken to hospital where he subsequently died: Failure to take his statement due to the delayed action.
- It was revealed by the chief public prosecutor’s office that similar ill-treatment incidents had occurred in the said military penitentiary institution previously.
-Proceedings unreasonably lasted 9 years and 7 months.

 


II. Constitutionality Review

E.2018/144
19 September 2019
(Plenary)

Dismissal of the request for annulment of the provision (added to the Tax Procedural Law) setting forth that an electronic notification shall be deemed to have been received by the addressee by the end of the fifth day following the date of delivery receipt.

- Allegedly unconstitutional for not providing an adequate and reasonable period for the addressee to enable him to use his relevant rights as well as for causing discrepancies, among those who became liable for taxes prior and subsequent to the impugned notification system, in terms of the notification methods.
- The contested provision primarily entails an obligation for the addressees to check their e-mail boxes at certain intervals. Setting a five-day time-limit to file an objection before administrative or judicial authorities does not impose an excessive burden regard being had to the today’s technological facilities and conditions as well as to the fact the prescribed term of five days shall not run in case of force majeure.
- Balance needed to be struck between those concerned and the public interest has been ensured.
- Restriction imposed on the right of access to a court is proportionate.
- No distinction which would lead to a difference in treatment in respect of prior and subsequent tax-payers: not in breach of the principle of equality.

 

 

E.2019/48
19 September 2019
(Plenary)

Annulment of the provisions setting forth that in case of any delay in overtime payment of the journalists, the amounts shall be payable plus a daily five-percentage for each delayed day.

- Allegedly unconstitutional for bestowing a manifest privilege on journalists, thereby undermining the principles of equality before the law, state of law and legal security.
- Undertaking significant duties such as informing public, journalists must be provided with certain safeguards in performing their duties.
- However, such arrangements must be proportionate: in the present case, the liability imposed on the employer to pay the overtime wage, in case of any delay, by applying a five-percentage default rate on a daily basis imposes an excessive burden on him.
- Contested provision also leads to a difference among the journalists and the other employees who are governed by other laws: such a difference may not breach the principle of equality only when it has an objective and reasonable basis and it is proportionate.
- The contested provision has an objective and reasonable basis but is not proportionate.

 

     

Case

Decision

Case-Law Development

Related

I. Individual Application

Tonguç Özkan and Others
2015/1261
26 September 2019
(First Section)

No violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

 

 

 

- Alleged violation of the applicants’ right due to the disciplinary punishment imposed on them for obstructing the train service.

- The applicants, employees of the Turkish State Railways, had been on a work stoppage.

- They had not been imposed the disciplinary punishment for their work stoppage act but their sitting in front of the train and preventing the train from moving thereby hindering the others’ rights.

- The disciplinary punishment imposed on the applicants served a pressing social need, namely the protection of the public order. The interference had been proportionate to the legitimate aim of protecting the public order.

 

Veysel Kaplan
2015/13524
26 September 2019
(First Section)

Violation of the freedom of association safeguarded by Article 33 of the Constitution

 

- Alleged violation of the applicant’s freedom of association due to the disciplinary punishment imposed on him for his refusal to listen to the teleconference speech of the Minister of Education, protesting it on behalf of the labour union of which he was the head.

- Freedom of association is a special aspect of freedom of expression.

- The applicant expressed his criticism of the Minister peacefully in accordance with the decision of the labour union.

- Lack of relevant and sufficient reasons to prove that the interference with the right to association served a pressing social need; disciplinary punishment was not necessary in a democratic society.

-Failure to strike a fair balance between the applicant’s freedom of association and the interests of those attending the meeting.

 

 

 

Hacı Karabulut
2017/14871
9 October 2019
(First Section)

Violation of the principles of adversarial proceedings and equality of arms within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

 

- Alleged violation of the applicant’s right to a fair trial due to non-communication of the objection letter of the Chief Public Prosecutor’s Office at the Court of Cassation to the applicant.

- Judgment was rendered against the applicant who had not been informed of the observations included in the objection letter and hence had had no chance to submit his counter-observations.

- Violations of the principles of adversarial proceedings and equality of arms.

 

Ahmet Urhan
2014/13961
9 October 2019
(First Section)

Violation of the freedom of association  safeguarded by Article 33 of the Constitution

- Alleged violation of the applicant’s freedom due to his conviction for membership of a terrorist organization on the ground of his link with an association established in accordance with the laws and maintaining its activities within a legal framework.

- The first instance court considered legal the association to which the applicant was affiliated; but, relying on a police report, it noted that the impugned association indeed conducted activities on behalf of a terrorist organization, the MLKP, and was operating directly in line with the latter’s goals: failure to indicate any relevant evidence demonstrating that the association had acted in line with the MLKP’s goals, as well as to reveal the link between the applicant’s activities falling into the ambit of his fundamental rights and the terrorist organization, thereby causing an unjust and deterrent effect on the freedom of association.

- Accordingly, the first instance court failed to provide relevant and sufficient ground to demonstrate that the use of the applicant’s impugned acts as evidence in his conviction had corresponded to a pressing social need: the impugned interference did not comply with the requirements of a democratic society.

Press Release

Mahin Parjani and Others
2015/19219
10 October 2019
(Second Section)

Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the impugned right due to the death incident that had occurred as a result of use of force by the security officers and failure to conduct an effective investigation into the incident.

- It is of vital importance that the investigation authorities act ex officio and without delay in cases of suspicious death.

-Insufficient and delayed analysis of the evidence that might shed light on the incident: Investigation was not conducted rigorously.

Press Release

S.S. Yeni Foça Asmadere Konut Yapı Kooperatifi
2015/14525
10 October 2019
(Second Section)

Violations of the right to property and the right of access to a court respectively safeguarded by Articles 35 and 36 of the Constitution

- Alleged violation of the impugned rights due to the failure to enforce the final judicial decision.

- The applicant that is a cooperative and the Treasury signed an agreement to exchange their properties. The applicant also made an additional payment to register the relevant property under its name.

- The exchange of the properties was subsequently annulled.

- The applicant was denied to obtain the reimbursement of the additional payment he had made as well as of the compensation awarded to him as a result of the title deed annulment action he had brought, which was in breach of its right to property.

- Failure to enforce a final judicial decision that was in favour of the applicant was in breach of the right of access to a court.

 

Ulvi Bacıoğlu
2015/3175
10 October 2019
(Second Section)

Violation of the procedural aspect of the freedom of communication safeguarded by Article 22 of the Constitution

- Alleged violation of the applicant’s freedom due to the lack of an effective and meticulous investigation into his complaint of unlawful interception of his communications.

- The applicant, becoming aware through a piece of news that his telephone lines were being tapped, filed a criminal complaint with the incumbent chief public prosecutor’s office for the identification and punishment of those responsible. However, a decision of non-prosecution was rendered at the end of the investigation.

- The investigation authority’s failure to seek to obtain information and documents having a key role in the investigation, and thereby to widen the scope of the investigation: non-fulfilment of the requirements inherent in the public authorities’ positive obligation to conduct an effective and meticulous investigation.

Press Release

II. Constitutionality Review

E.2018/105
19 September 2019

(Plenary)

Annulment of the provision added to the Higher Education Law, which provided that the graduates of the associate degree program of theology shall have the opportunity to complete their education with a view to obtaining bachelor’s degree at the faculty of theology or the faculties offering the same programme

- Alleged unconstitutionality as the contested provision was only applicable to the graduates of the associate degree program of theology, in breach of the principles of equality and social state of law.

- It was a privilege for the graduates of the associate degree program of theology in that while the graduates of other associate degree programs had to take an exam in order to complete their education with a view to obtaining bachelor’s degree, the graduates of the associate degree program of theology were accepted unconditionally.

- Contested provision was in breach of the principles of equality and justice.

- Incompatibility with Article 2 of the Constitution.

 

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

Ömer Faruk Eminağaoğlu
2015/7352

26 September 2019

(First Section)

No violation of the right to stand for elections safeguarded by Article 67 of the Constitution

 

 

 

- Alleged violation of the applicant’s right due to his inability to be reinstated in his office as a judge following his resignation in order to stand for parliamentary elections.
- The impugned interference was intended for ensuring the independence and impartiality of courts and judges, a constitutional principle.
- In order to observe this principle, the State is entitled to introduce measures which would preclude reinstatement of the judges resigned from their posts to stand for parliamentary elections.
- The impugned interference did not impose an excessive restriction on his right to stand for elections and was not proportionate to the legitimate aim of ensuring independence and impartiality of courts and judges.
- Compatible with the requirements of the democratic order of the society.

 

Nihal Uslukol
2016/73086
25 September 2019

(Second Section)

Violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

 

- Alleged violation of the impugned right due to dismissal of appeal as being time-barred; interference with the right of access to a court.
- The statutory period for appeal was ten days to run from the date on which the decision was pronounced or served on the applicant in accordance with the relevant Law. The matter is the date -namely the pronouncement of the decision or its notification to the applicant- to be taken as a basis for running of the time limit for appeal.
- The appellate authority’s interpretation as to the start of the appeal period had been unpredictable for the applicant and therefore imposed a heavy burden on her.
- The burden imposed on the applicant had been disproportionate to the legitimate aim pursued. - Hence, the said interference had not been proportionate.

 

 

Press Release

Ercan Toğrul
2016/71110
25 September 2019

(Second Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

 

- Alleged violation of the right due to the confiscation measure applied during a criminal investigation.
- The applicant, a chief police officer, was dismissed from office and sentenced to 6 years and 3 months’ imprisonment for being a member of an armed terrorist organization.
- Confiscation measure was also indicated in respect of his assets.
- The confiscation measure is still in force.
- The court, which convicted the applicant, did not order confiscation of his assets. Nor did it render any decision on the continuation or discontinuation of the impugned confiscation measure. Besides, no ground or legal basis justifying the measure was provided: the interference with his right to property was disproportionate.

Press Release

II. Constitutionality Review

E.2018/92
25 July 2019

(Plenary)

Dismissal of the request for annulment of the provision setting forth that the custody period shall be 7 days in times of emergency and shall be prolonged, if required by the exigencies of the situation, for a further 7 days

- Allegedly unconstitutional for constituting a disproportionate interference with the right to personal liberty and security safeguarded by the Constitution.
- The Court notes that the periods during which individuals may be deprived of their liberty, which are prescribed in the Constitution, may be extended during a state of emergency and in time of war; and that however, such arrangements cannot be in breach of the constitutional safeguards applicable during the state of emergency for the protection of fundamental rights and freedoms.
- Besides, given the extent of the coup attempt, the structure of the FETÖ/PDY, the number of investigations carried out in the aftermath of the coup attempt and especially dismissal of many police officers and judicial officers from office, the custody period to a maximum of 14 days, which is only applicable during the state of emergency for the proper conduct of investigations, is an appropriate and necessary measure.
- The judicial system also affords an effective remedy against custody and extension of custody, and certain guarantees have been provided in order to ensure that the custody periods are applied in a proper and proportionate manner.
- Hence, the contested provision is not unconstitutional.

Press Release

 

E.2017/18
25 July 2019

(Plenary)
- Dismissal of the request for annulment of the provisions which envisage that war colleges, military high schools and non-commissioned officers training schools be closed and the military cadets be transferred to appropriate schools

- Allegedly unconstitutional for being in breach of the right to education of the military cadets in question as well as for causing inequality between those already graduated from these schools and the ones transferred to other schools.
- Certain measures must be inevitably taken by the public authorities to effectively struggle against the FETÖ/PDY, to eliminate the coup threat and avoid its recurrence: one of these aims is the re-structuring of the military staff training system.
- Reasonable balance was struck between the public interest of maintaining and protecting national security, constitutional order and public safety and the right to education as the Ministry of National Education ensured the transfer of those concerned to the appropriate schools.
- No inequality between those already graduated from the schools that were closed and those transferred to other schools as they are not in the same legal position.

- Hence, the contested provision is not unconstitutional.
 

E.2016/205
24 July 2019

(Plenary)

Annulment of certain provisions of the Law no. 6749 on Amendment and
Acknowledgement of the Decree-Law on the Measures  Taken within the Scope of the State

of Emergency

A) Contested provision stipulates that the students, who had been enrolled in the higher education institutions that was closed within the scope of the state of emergency for their having had links with the FETÖ/PDY terrorist organization and subsequently placed by the Higher Education Council in other state or foundation universities, shall continue to pay the fees, which they had been required to pay to their previous universities until graduation, to the relevant universities in which they have been subsequently placed: annulled.
- It was claimed that the said provision constituted inequality and was in breach of Articles 10, 13 and 42 of the Constitution.
- In accordance with Article 13 of the Constitution, right to education may only be restricted to the extent required in a democratic society. The said restriction imposed by the contested provision has not pursued a pressing social need.
- Collection of the fees from the students who have been transferred from the closed foundation universities to the state universities is in breach of the principle of equality in terms of the right to education.

B) Contested provision stipulates that the officials who make decisions and fulfil their duties within the scope of Law no. 6749 shall not be subject to legal, administrative, financial or criminal liabilities: request for annulment is dismissed.
- It was claimed that the said provision ensured non-liability of the persons specified in the Law and was in breach of Articles 2 and 10 of the Constitution.
- Law no. 6749 aims at eliminating the threats and dangers underlying the state of emergency. Accordingly, the contested provision serves the same purpose.

- Use of the authorities or fulfilment of the duties prescribed by the laws or making decisions in this scope is lawful in our legal system. It means execution of the authorities granted by law.

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

Halk Radyo ve Televizyon Yayıncılık A.Ş.

2014/19270

11 July 2019

 (Plenary)

Violations of the freedoms of expression and the press safeguarded by Articles 26 and 28 of the Constitution

 

 

 

- Alleged violation of the applicant’s rights due to the broadcast ban imposed within the scope of an ongoing criminal investigation conducted against a number of former ministers.

- The Law in accordance with which the ban was imposed did not include any provision concerning the said ban.

- Failure to fulfil the criteria of “foreseeability” and “certainty”, thereby failure to meet the requirement of legality.

 

  

 

Mustafa Açay and E.A.

2016/66638

2016/78293

3 July 2019

(First Section)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

 

- Alleged violation of the right due to the unlawfulness of the applicants’ detention.  

- Their detention was ordered for allegedly having committed certain offences related to the FETÖ/PDY.

- The Court discussed whether there was strong indication of their guilt.

- The court ordering their detention relied on the orders whereby the applicants had been suspended from their offices and the ongoing threat resulting from the state of emergency prevailing throughout the country: However, the Court noted that the applicants’ suspension and/or dismissal from office cannot be per se considered as a strong indication of guilt.

- Nor were there any witness statements which demonstrated, directly and with concrete evidence, the applicants’ link or relation with the FETÖ/PDY.

- The Court also discussed whether the impugned detention was legitimate under Article 15 of the Constitution which allows for suspension and restriction of the exercise of fundamental rights and freedoms in times of a state of emergency: not justified for lack of a strong indication of the applicants’ guilt.

 Press Release

 

Hüseyin Yıldız and İmiş Yıldız

2014/5791

3 July 2019

(First Section)

Violation of the right to life safeguarded by Article 17 of the Constitution

 

- Alleged violation of the right as the applicants’ son had visual loss as a result of an operation conducted by security officers into the prison where their son was held.

- The criminal action is still pending for over 9 years, which has made it difficult to obtain evidence and thereby to clarify the way how the incident took place.

- Unreasonable prolongation of proceedings -notably in cases where the power to use force has been abused- may leave the impression that such acts are tolerated and promoted. 

- Public authorities’ failure to fulfil the obligation to plausibly demonstrate that the force used was absolutely necessary.

 

 

 

 

Ali Çerkezoğlu and Others

2015/1737

18 July 2019

(First Section)

Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

- Alleged violation of the right due to the decision of non-prosecution rendered at the end of an investigation conducted into the police intervention.

- The Court assessed whether the impugned intervention was compatible with the requirements of a democratic society:

- Necessary authorisation to hold the demonstration was received from the relevant administration.

- No finding demonstrating that the applicants acted contrary to their responsibilities or did not peacefully exercise their rights.

- Administration failed to demonstrate the applicants’ acts had disturbed public order or posed such a risk.

 

Semra Omak

2015/19167

17 July 2019

(Second Section)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the impugned right for the unlawful detention of the applicant’s child who had been detained for committing a theft and then killed himself in the penitentiary institution.

- According to the relevant Law, detention of children is a measure of last resort. However, in the present case, the applicant’s child had been detained –as the first measure– instead of conditional bail. Therefore, the said detention had not been a proportionate measure.

 

Press Release

 

 

 

K.Ş.

2016/14613

17 July 2019

(Second Section)

Violation of the right to protect individual’s corporeal and spiritual existence safeguarded by Article 17 of the Constitution

- Alleged violation of the right due to the dismissal of the applicant’s request for change of her workplace as her life was endangered.

- The applicant having being battered and stabbed by her ex-husband with whom she had served in the same school was granted a protection order by the incumbent family court.

- She further applied to the Ministry of National Education, seeking a change of her school. However, it was dismissed for her failure to submit a preventive protection order.

- Relevant law allows for a change of workplace by virtue of a judge’s order which must be fulfilled by the competent authorities.

- While the applicant asserted her life-safety concerns on the basis of concrete grounds, the inferior court failed to provide any concrete explanation, assessment and justification in dismissing her request.

Press Release

 Kenan Işık

2017/26291

17 July 2019

(Second Section)

No violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the applicant’s right due to the transfer of the Bank of which he had been a shareholder to the Savings Deposit Insurance Fund.

- The said interference served the public interest.

- In addition, it was subsequent to several procedures that the transfer decision was ultimately given.

- The applicant failed to prove that the impugned interference had been unnecessary.

- The fair balance between the interference with the applicant’s right to property and the public interest pursued was not disturbed.

 

 

Erdal İmrek

2015/4206

 

17 July 2019

 (Second Section)

Violations of the prohibition of treatment incompatible with human dignity, as well as the freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution

- Alleged violations of the rights due to the police intervention with the press members including the applicant (exposed to battery and tear gas) during a demonstration. 

- Violation of the prohibition of treatment incompatible with human dignity: Public authorities failed to demonstrate that the use of force by the police was inevitable and the force used was proportionate.

- Failure to take necessary steps capable of identifying the offender as well as to obtain evidence capable of leading to clarification of the incident and identification of those responsible.  

- Violation of the freedoms of expression and the press: Public authorities failed to demonstrate reasonable grounds justifying the press members’ preclusion from performing their journalistic activities. Besides, the press members including the applicant did neither resort to violence nor pose any threat during the demonstration. 

 

 

 

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

Zübeyde Füsun Üstel and Others

2018/17635

26 July 2019

 (Plenary)

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

 

 

 

- Alleged violation of the applicants’ right due to being convicted of disseminating terrorist propaganda for having signed a declaration issued by a group of academics seeking to end the curfews and clashes during the operations carried out within the scope of the fight against terrorism in the East and Southeast of Turkey between 2015 and 2016.  

- The Court is aware of concerns about the expressions and acts that might deteriorate the security situation in the region where the terrorist incidents have taken place. It is also aware of the fact that the impugned declaration was prepared unilaterally and from a certain perspective and that it included exaggerated comments, as well as some offensive and vicious expressions against the security forces. The Court’s consideration that this declaration should fall under the protection of the freedom of expression does not mean that it shares and supports the thoughts and ideas stated in the declaration.

- The expressions that are in no way supported by the Court may also fall within the scope of the freedom of expression. In assessing whether they fall under this scope, it must be considered whether the used expressions legitimize, praise or incite the violent and threatening methods of the terrorist organization.

- Interference imposed on the applicants could not be proven to be proportionate to the aim of maintaining public order inherent in the fight against the terrorist organization in question and terrorism.

- In cases where it is possible to address unjust attacks and criticisms of the opponents through different means -even if they appear to be highly unreasonable and irrelevant-, criminal proceedings must not be resorted to. 

Press Release

Elegance Hotel Turizm İşletmeleri A.Ş.

2015/19953

30 May 2019

 (Plenary)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the right due to the contribution accrued on behalf of the applicant, a company engaging in hotel management and accommodation services. 

- Undoubtedly, there is an interference with the applicant company’s right due to the accrued contribution. Such an interference may be in compliance with the Constitution if it has a precise, accessible and foreseeable legal basis.

- Such kind of financial obligations leading to an interference with the right to property must be based on law in form. Introduction of a financial obligation -which is not prescribed by law- through a regulation or similar regulatory administrative acts would be in breach of the requirement of being prescribed by law: the interference had no legal basis. 

 

S.M.

2016/6038

20 June 2019

 (Plenary)

Violation of the presumption of innocence safeguarded by Articles 36 and 38 of the Constitution

 

 

 

- Alleged violation of the right of the applicant -against whom an interim decision was issued for having disturbed individuals’ peace and quiet - on account of the expressions stated in the interim measure (he is described therein as “the party inflicting violence”).

- Although the phrase “the party inflicting violence” is specified in Law no. 6284, it must not be used in such interim decisions in a stereotyped way, and the incumbent court or the authorities concerned must act with due diligence in making an assessment on this point.

- Use of this phrase in the interim decision gives the impression that he committed the act in respect of which a decision of non-prosecution was indeed issued or he actually committed any other violent acts: violation of the presumption of innocence.

- There is no legal interest in conducting a re-trial as the impugned expressions do not have any consequential effect on the court decisions. 

- Removal of the expressions “the party inflicting violence” and “the party exposed to violence” from the impugned decisions will redress the violation. 

 

 

 

 

 

 

 

 

Sedat Şanlı

2018/6812

3 June 2019

 (Plenary)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the right of the applicant -whose house was demolished during the earthquake of 1975- due to the authorities’ failure to assign a permanent housing to him despite Law no. 7269 whereby he gained right-holder status.

- No inquiry was carried out in order to determine whether he was provided with a title deed in spite of 44 years having elapsed. Even if it is assumed that the applicant has been assigned a housing, it is uncertain whether its title deed was registered in his name.

- Procedural safeguards for the protection of the right to property have not been implemented. 

 

Tevfik İlker Akçam

2018/9074

3 July 2019

(First Section)

Violation of the prohibition of discrimination safeguarded by Article 10 of the Constitution in conjunction with the right to property

 

- Alleged violation of the right of the applicant, an attending physician, for not being provided with the payment of on-call duty fees although other staff performing the on-call duties were paid such fees.

- In examining the alleged discrimination within the context of the right to property, it must be primarily ascertained whether factors of similar situation and different treatment exist; whether individuals in the same or similar position have been treated differently in terms of the interference with the right to property; whether the different treatment had an objective and reasonable basis as well as was proportionate.

- Distinction as to on-call duty between attending physicians governed by Law no. 657 and those governed by Law no. 2547 has constituted a discriminatory treatment within the scope of the right to property.

- Discriminatory interference with no objective and reasonable ground placed an excessive burden on the applicant. 

 

 

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

Sırrı Süreyya Önder

2018/38143

3 October 2019

(Plenary)

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

 

 

 

- Alleged violation of the impugned right for the applicant’s conviction due to his conviction of disseminating terrorist propaganda on account of his remarks during a gathering.

- Regarding an expression as a terrorist propaganda without demonstrating that it had incited to violence, with an abstract reference to the fact that a perception had been tried to be created, cannot be accepted as a legal assessment. The first instance court made no explanation as to which remark of the applicant had led it to this conclusion.

- Considering the applicant’s entire speech as a whole, it has not been concluded that the applicant had supported the violent and threatening methods of the terrorist organization with a view to inciting others to commit the same offences.

- In fact, the impugned speech mainly concerned the demand for the successful conduct and termination of the ongoing resolution process at the material time.

- Failure of the first instance court to provide relevant and sufficient reasons to justify that the applicant’s conviction served a pressing social need.

Press Release

Naif Bal

2015/2465

 

11 September 2019

(First Section)

Violation of the prohibition of treatment incompatible with human dignity safeguarded by Article 17 of the Constitution

 

- Alleged violation of the right due to ineffectiveness of the investigation conducted against the guardians for causing bodily harm and the suspension of the pronouncement of the verdict.   

- The applicant, a convict in a penitentiary institution, was injured as a result of the quarrel with the guardians. He was sentenced to one year’s imprisonment for insulting public officer. On the other hand, five guardians involved in the incident were sentenced to a judicial fine for causing actual bodily harm, but the court decided to suspend the pronouncement of the verdict.

- The inferior court determined that the guardians exceeded the authority conferred upon them in use of force but failed to impose a penalty commensurate to their act. Therefore, the decision suspending the pronouncement of the verdict led to impunity for the guardians: breach of the procedural aspect of the prohibition of treatment incompatible with human dignity.

- Failure to provide adequate redress for the applicant: breach of the substantive aspect of the same prohibition.

 

 

Kudus-i Şerifte Kain Maryakop Ermeni Kilisesi Vakfı

2016/14982

19 September 2019

(Second Section)

Violation of the right of access to a court safeguarded by Article 36 of the Constitution

 

- Alleged violation of the impugned right due to dismissal, for the alleged lack of capacity to sue, of the action brought by the applicant against the administrative act whereby it had been granted the status of fused foundation.

- The right of access to a court is not absolute and may be subject to limitations. However, in accordance with the principle of proportionality, the said limitations must not make it impossible or extremely difficult to have access to a court.

- The action brought by the applicant was dismissed in the absence of adequate inquiry.

- The applicant was imposed a disproportionate burden. Hence, the said interference was not proportionate.

Press Release

Selman Tumur and Others

2015/18754

12 September 2019

(Second Section)

Violation of the right to life safeguarded by Article 17 of the Constitution

-Alleged violation of the impugned right due to the minor applicant’s having been injured seriously by touching the transformer plate and being exposed to electric shock, as well as due to the authorities’ failure to conduct an effective investigation into the incident.

- The public authorities must take into account children, mentally disabled persons and other persons in need of protection in their prediction of human conduct while carrying out hazardous activities and they must put into practice the appropriate administrative measures in due time.

- The State confined itself to ordering compensation against those responsible, which was not sufficient in the circumstances of the present case. Therefore, it failed to fulfil its obligation to provide an effective judicial protection.

Press Release

Aydın Sefa Akay

2016/24562

12 September 2019

(Second Section)

Inadmissibility of the alleged violation of the right to personal liberty and security safeguarded by Article 17 of the Constitution

- Alleged violation of the right due to unlawfulness of the applicant’s arrest, custody and detention.

- The applicant, a retired ambassador, was holding office as a judge at the UN International Residual Mechanism for Criminal Tribunals at the relevant time. He was detained and subsequently sentenced to 7 years and 6 month’s imprisonment for his membership to an armed terrorist organization, namely the FETÖ.

- He alleged to be detained on remand in breach of the safeguards inherent in diplomatic immunity he was entitled in his capacity as a judge.  

- The Court considered that the privilege, immunity, exemptions and opportunities provided for the judges taking office at the UN Mechanism were in force not before the States of their nationality but only before the State authorities where they took office. Therefore, alleged unlawfulness of his detention was unfounded.

- His detention had legal and factual basis. 

- Given severe nature of the sanction envisaged for the imputed offence as well as gravity of the offence, his detention was found proportionate by the inferior courts: This consideration was found neither arbitrary nor unfounded by the Court.

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

Halk Radyo ve Televizyon Yayıncılık A.Ş.

2014/19270

11 July 2019

 (Plenary)

Violations of the freedoms of expression and the press safeguarded by Articles 26 and 28 of the Constitution

 

 

 

- Alleged violation of the applicant’s rights due to the broadcast ban imposed within the scope of an ongoing criminal investigation conducted against a number of former ministers.

- The Law in accordance with which the ban was imposed did not include any provision concerning the said ban.

- Failure to fulfil the criteria of “foreseeability” and “certainty”, thereby failure to meet the requirement of legality.

 

  

 

Mustafa Açay and E.A.

2016/66638

2016/78293

3 July 2019

(First Section)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

 

- Alleged violation of the right due to the unlawfulness of the applicants’ detention.  

- Their detention was ordered for allegedly having committed certain offences related to the FETÖ/PDY.

- The Court discussed whether there was strong indication of their guilt.

- The court ordering their detention relied on the orders whereby the applicants had been suspended from their offices and the ongoing threat resulting from the state of emergency prevailing throughout the country: However, the Court noted that the applicants’ suspension and/or dismissal from office cannot be per se considered as a strong indication of guilt.

- Nor were there any witness statements which demonstrated, directly and with concrete evidence, the applicants’ link or relation with the FETÖ/PDY.

- The Court also discussed whether the impugned detention was legitimate under Article 15 of the Constitution which allows for suspension and restriction of the exercise of fundamental rights and freedoms in times of a state of emergency: not justified for lack of a strong indication of the applicants’ guilt.

 Press Release

 

Hüseyin Yıldız and İmiş Yıldız

2014/5791

3 July 2019

(First Section)

Violation of the right to life safeguarded by Article 17 of the Constitution

 

- Alleged violation of the right as the applicants’ son had visual loss as a result of an operation conducted by security officers into the prison where their son was held.

- The criminal action is still pending for over 9 years, which has made it difficult to obtain evidence and thereby to clarify the way how the incident took place.

- Unreasonable prolongation of proceedings -notably in cases where the power to use force has been abused- may leave the impression that such acts are tolerated and promoted. 

- Public authorities’ failure to fulfil the obligation to plausibly demonstrate that the force used was absolutely necessary.

 

 

 

 

Ali Çerkezoğlu and Others

2015/1737

18 July 2019

(First Section)

Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

- Alleged violation of the right due to the decision of non-prosecution rendered at the end of an investigation conducted into the police intervention.

- The Court assessed whether the impugned intervention was compatible with the requirements of a democratic society:

- Necessary authorisation to hold the demonstration was received from the relevant administration.

- No finding demonstrating that the applicants acted contrary to their responsibilities or did not peacefully exercise their rights.

- Administration failed to demonstrate the applicants’ acts had disturbed public order or posed such a risk.

 

Semra Omak

2015/19167

17 July 2019

(Second Section)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the impugned right for the unlawful detention of the applicant’s child who had been detained for committing a theft and then killed himself in the penitentiary institution.

- According to the relevant Law, detention of children is a measure of last resort. However, in the present case, the applicant’s child had been detained –as the first measure– instead of conditional bail. Therefore, the said detention had not been a proportionate measure.

 

Press Release

 

 

 

K.Ş.

2016/14613

17 July 2019

(Second Section)

Violation of the right to protect individual’s corporeal and spiritual existence safeguarded by Article 17 of the Constitution

- Alleged violation of the right due to the dismissal of the applicant’s request for change of her workplace as her life was endangered.

- The applicant having being battered and stabbed by her ex-husband with whom she had served in the same school was granted a protection order by the incumbent family court.

- She further applied to the Ministry of National Education, seeking a change of her school. However, it was dismissed for her failure to submit a preventive protection order.

- Relevant law allows for a change of workplace by virtue of a judge’s order which must be fulfilled by the competent authorities.

- While the applicant asserted her life-safety concerns on the basis of concrete grounds, the inferior court failed to provide any concrete explanation, assessment and justification in dismissing her request.

Press Release

 Kenan Işık

2017/26291

17 July 2019

(Second Section)

No violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the applicant’s right due to the transfer of the Bank of which he had been a shareholder to the Savings Deposit Insurance Fund.

- The said interference served the public interest.

- In addition, it was subsequent to several procedures that the transfer decision was ultimately given.

- The applicant failed to prove that the impugned interference had been unnecessary.

- The fair balance between the interference with the applicant’s right to property and the public interest pursued was not disturbed.

 

 

Erdal İmrek

2015/4206

 

17 July 2019

 (Second Section)

Violations of the prohibition of treatment incompatible with human dignity, as well as the freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution

- Alleged violations of the rights due to the police intervention with the press members including the applicant (exposed to battery and tear gas) during a demonstration. 

- Violation of the prohibition of treatment incompatible with human dignity: Public authorities failed to demonstrate that the use of force by the police was inevitable and the force used was proportionate.

- Failure to take necessary steps capable of identifying the offender as well as to obtain evidence capable of leading to clarification of the incident and identification of those responsible.  

- Violation of the freedoms of expression and the press: Public authorities failed to demonstrate reasonable grounds justifying the press members’ preclusion from performing their journalistic activities. Besides, the press members including the applicant did neither resort to violence nor pose any threat during the demonstration. 

 

 

 

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

Zübeyde Füsun Üstel and Others

2018/17635

26 July 2019

 (Plenary)

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

 

 

 

- Alleged violation of the applicants’ right due to being convicted of disseminating terrorist propaganda for having signed a declaration issued by a group of academics seeking to end the curfews and clashes during the operations carried out within the scope of the fight against terrorism in the East and Southeast of Turkey between 2015 and 2016.  

- The Court is aware of concerns about the expressions and acts that might deteriorate the security situation in the region where the terrorist incidents have taken place. It is also aware of the fact that the impugned declaration was prepared unilaterally and from a certain perspective and that it included exaggerated comments, as well as some offensive and vicious expressions against the security forces. The Court’s consideration that this declaration should fall under the protection of the freedom of expression does not mean that it shares and supports the thoughts and ideas stated in the declaration.

- The expressions that are in no way supported by the Court may also fall within the scope of the freedom of expression. In assessing whether they fall under this scope, it must be considered whether the used expressions legitimize, praise or incite the violent and threatening methods of the terrorist organization.

- Interference imposed on the applicants could not be proven to be proportionate to the aim of maintaining public order inherent in the fight against the terrorist organization in question and terrorism.

- In cases where it is possible to address unjust attacks and criticisms of the opponents through different means -even if they appear to be highly unreasonable and irrelevant-, criminal proceedings must not be resorted to. 

Press Release

Elegance Hotel Turizm İşletmeleri A.Ş.

2015/19953

30 May 2019

 (Plenary)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the right due to the contribution accrued on behalf of the applicant, a company engaging in hotel management and accommodation services. 

- Undoubtedly, there is an interference with the applicant company’s right due to the accrued contribution. Such an interference may be in compliance with the Constitution if it has a precise, accessible and foreseeable legal basis.

- Such kind of financial obligations leading to an interference with the right to property must be based on law in form. Introduction of a financial obligation -which is not prescribed by law- through a regulation or similar regulatory administrative acts would be in breach of the requirement of being prescribed by law: the interference had no legal basis. 

 

S.M.

2016/6038

20 June 2019

 (Plenary)

Violation of the presumption of innocence safeguarded by Articles 36 and 38 of the Constitution

 

 

 

- Alleged violation of the right of the applicant -against whom an interim decision was issued for having disturbed individuals’ peace and quiet - on account of the expressions stated in the interim measure (he is described therein as “the party inflicting violence”).

- Although the phrase “the party inflicting violence” is specified in Law no. 6284, it must not be used in such interim decisions in a stereotyped way, and the incumbent court or the authorities concerned must act with due diligence in making an assessment on this point.

- Use of this phrase in the interim decision gives the impression that he committed the act in respect of which a decision of non-prosecution was indeed issued or he actually committed any other violent acts: violation of the presumption of innocence.

- There is no legal interest in conducting a re-trial as the impugned expressions do not have any consequential effect on the court decisions. 

- Removal of the expressions “the party inflicting violence” and “the party exposed to violence” from the impugned decisions will redress the violation. 

 

 

 

 

 

 

 

 

Sedat Şanlı

2018/6812

3 June 2019

 (Plenary)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the right of the applicant -whose house was demolished during the earthquake of 1975- due to the authorities’ failure to assign a permanent housing to him despite Law no. 7269 whereby he gained right-holder status.

- No inquiry was carried out in order to determine whether he was provided with a title deed in spite of 44 years having elapsed. Even if it is assumed that the applicant has been assigned a housing, it is uncertain whether its title deed was registered in his name.

- Procedural safeguards for the protection of the right to property have not been implemented. 

 

Tevfik İlker Akçam

2018/9074

3 July 2019

(First Section)

Violation of the prohibition of discrimination safeguarded by Article 10 of the Constitution in conjunction with the right to property

 

- Alleged violation of the right of the applicant, an attending physician, for not being provided with the payment of on-call duty fees although other staff performing the on-call duties were paid such fees.

- In examining the alleged discrimination within the context of the right to property, it must be primarily ascertained whether factors of similar situation and different treatment exist; whether individuals in the same or similar position have been treated differently in terms of the interference with the right to property; whether the different treatment had an objective and reasonable basis as well as was proportionate.

- Distinction as to on-call duty between attending physicians governed by Law no. 657 and those governed by Law no. 2547 has constituted a discriminatory treatment within the scope of the right to property.

- Discriminatory interference with no objective and reasonable ground placed an excessive burden on the applicant. 

 

 

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

Erol Kesgin

2015/11192 

30 May 2019

 (Plenary)

No violation of the right to property safeguarded by Article 35 of the Constitution

 

 

 

- Alleged violation of the applicant’s right due to being held responsible for the public debt owed by the company where he is a member of the board of directors.

- Holding all members of the board –in spite of having no authority to sign and bind– for the company’s premium debts was found suitable and necessary to ensure complete and on time collection of such debt. 

- The applicant also had the opportunity to seek payment of the impugned amount, which he had to pay, from the company’s other shareholders in proportion to their shares as well as payment of the amount falling to his own share from the company itself.

- No individual and excessive burden was imposed on him; and the fair balance that had to be struck between the public interest and the applicant’s right to property was not upset to his detriment.

 

 

İbrahim Özden Kaboğlu

2015/18503 

30 May 2019

 (Plenary)

 

Violation of the right to honour and dignity safeguarded by Article 17 of the Constitution

 

 

 

- Alleged violation of the right of applicant, law professor and author, due to the rejection of his request for compensation on account of the statements against him in certain books and articles which tarnished his honour and professional reputation.

- The Court considered that the explicit mention of his name in the statements used against him which could be perceived as a direct and indirect call for violence could per se increase the risk of his being subject to the violence.

- Such attacks against the applicant, threats to his life or physical integrity, and humiliation against him would put pressure on his intellectual personality and would have a deterrent effect on his freedom of expression. 

 

 

 

 

 

 

 

Süleyman Başmeydan

2015/6164 

20 June 2019

 (Plenary)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the applicant’s right due to the enforcement of the confiscation order for pistachio trees despite a decision suspending pronouncement of the verdict.

- A confiscation order was issued for the trees as the applicant had planted them on a forestry zone, and the applicant was also convicted of having occupied and exploited such zones; however the incumbent court suspended pronouncement of the verdict. 

- Absence of a clear legal provision as to the stage when a confiscation order will be enforced in case of a decision suspending pronouncement of the verdict.

- In the present case, the confiscation measure was implemented on the finalization of the decision suspending the pronouncement of the verdict but without waiting for the final outcome of the proceedings: therefore, an individual and excessive burden was placed on the applicant.

- Necessity to make a legal arrangement to eliminate the uncertainty about the confiscation of a property in case of a decision suspending pronouncement of the verdict. 

 Press Release

Mehmet Bayrakcı

2014/6100 

20 June 2019

 (Plenary)

Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the applicant’s right due to long-term inaction of relevant authorities and procrastination of the investigation. 

- The applicant’s brother was killed in the Republic of South Africa where the latter had been residing. An investigation was initiated by the judicial authorities of South Africa, and suspects who were Turkish citizens were identified: the Turkish authorities asked information from South Africa as both the victim and the suspects were Turkish citizens.

- The present incident took place in 2002; an investigation was initiated in 2005; and a criminal case which has been still pending was filed in 2014: unreasonable length of proceedings lasting over nine years.

- The letter rogatory issued by the Turkish authorities in 2005 was replied by the South African judicial authorities in 2012: the failure to deliver, or delayed delivery of, information and documents by the South African authorities was not attributable to the Turkish public authorities; nevertheless the investigation could not be procrastinated merely on account of this failure.

- The public authorities’ failure to conduct an effective investigation: violation of the procedural obligation to conduct an effective investigation within the scope of the right to life.

  Press Release

Mohamed Kashet and Others

2015/17659 

20 June 2019

 (Plenary)

Violation of the right to property safeguarded by Article 15 of the Constitution

- Alleged violation of the applicants’ right due to the fine imposed severally on the applicants for having brought foreign exchange into Turkey in spite of the opportunity to transfer the relevant amount through a bank.

- The applicants maintained that bringing foreign exchange into the country was not forbidden, and therefore the administrative fines were unlawful. However, at the relevant time, inflow of foreign exchange was subject to notification procedure which was not fulfilled in the present case: therefore, the decisions imposing administrative fine were neither arbitrary nor unpredictable.

- Although the applicants’ own faults led to the impugned interference, administrative fines placed an individual and excessive burden on them as the total amount of fines was much higher than the amount of foreign exchange: impairment of the fair balance to be struck between the applicants’ right to property and the public interest involved in the interference.  

 

Ümit Balaban

2016/2821 

29 May 2019

(First Section)

Violation of the right to respect for family life safeguarded by Article 20 of the Constitution

- Alleged violation of the applicant’s right due to his inability to maintain contact with his daughter by telephone at weekends while being detained as a convicted prisoner.

- The applicant’s request for communicating with his daughter by telephone at weekends as she was at school as well as staying with her mother from whom the applicant had been divorced on weekdays was dismissed by the prison administration. His challenges were also dismissed by the incumbent Magistrate Judge and Assize Court.

- Ignorance of the applicant’s specific and exceptional circumstance by both the prison administration and relevant tribunals: significantly hindering the applicant from maintaining personal relationship and family tie with his daughter.

- Failure to take reasonable measures within the scope of the State’s positive obligations; and insufficiency of grounds relied on by judicial authorities.

 

 

 

H.G.

2017/14716 

29 May 2019

(First Section)

No violation of the right to a speedy review of appeal  safeguarded by Article 19 of the Constitution

- Alleged violation of the applicant’s right due to the failure to review the decision ordering the continuation of his detention within the time-limit prescribed by the law.

- The review process should be concluded within a reasonable time.

- In the present case, the applicant’s right to a speedy review of appeal would have been violated if it had been an ordinary period, but a state of emergency had been declared at the material time.

- Given the circumstances of the state of emergency, certain amendments were made to the procedural rules concerning investigation and prosecution processes, as well as Article 15 of the Constitution, suspension of the exercise of fundamental rights and freedoms, came to the fore.

- Accordingly, the time elapsed until the review of the applicant’s appeal was reasonable under the relevant circumstances.

 

 

 

 

 

 

 

II. Constitutionality Review

E.2017/33

10 April 2019

(Plenary)

A) Annulment of the provision stipulating that all acts listed in Law no. 657 shall be within the disciplinary responsibility of faculty members

 

B) Annulment of the provision granting authorization to the President of the Council of Higher Education to open a direct investigation against faculty members

- According to the Constitution, universities have scientific and administrative autonomy and have different status from the other public institutions; therefore, this difference should be paid regard also in the arrangements to be made with respect to the faculty members.

- Since the acts listed in Law No. 657 are mainly stipulated for civil servants, some of them do not comply with the scope and nature of the academic profession.

- The contested provision is in breach of Articles 2, 27 and 130 of the Constitution.

 

- As a requirement of their scientific autonomy, universities should be free to take administrative decisions related to their own functioning.

- The contested provision resulted in a failure to strike a balance between the State’s supervision and control authority on the universities, through the Council of Higher Education, and the universities’ scientific autonomy. Hence, the Council of Higher Education’s supervision authority over universities was reinterpreted as a hierarchical power over universities. Violation of Articles 130 and 131 of the Constitution. 

 

E.2018/70

E.2019/35

26 June 2019

(Plenary)

A) Annulment of the provision whereby planning, zoning and construction activities to be carried out in a certain area shall be exempted from restrictions and procedures specified in the legislation.

 

B) Annulment of the provision which allows non-application of the legislation entailing restrictive provisions about the construction on certain lands

- In the contested provisions, restrictions and procedures set out in the legislation shall not be applied in cases of planning, zoning and construction activities as well as other arrangements. However, the principles, rules and restrictions to be applied instead have not been contemplated: such exemption hinders implementation of Articles 43 and 56 of the Constitution concerning the protection of shores and environment as well as leads to legal uncertainty.

- Legal arrangements are to be in compliance with the principles enshrined in the Constitution. Provisions failing to fulfil this requirement are incompatible with the Constitution.

- Accordingly, the contested provisions have been found unconstitutional and therefore annulled.

 

E.2018/151

15 May 2019

(Plenary)

- Dismissal of the request for annulment of the provision whereby  different sanctions may be imposed in cases of sexual abuse of children given the gravity of the act

- In the contested provision, penalties are prescribed, in cases of sexual abuse of children, given various factors such as age of the victim, gravity of the act and etc., which leads to the arguments that the provision is contrary to the principle of legal certainty.

- The legislator’s intent is to determine proportionate and gradual punishments for the simple and aggravated forms of sexual assault given the nature of the offence, the way it was committed and the damage sustained by the victim: the contested provision is therefore appropriate to achieve the aim pursed and proportionate.

- In practice, the offence in question will be assessed in light of the particular circumstances of each concrete case: the provisions is not therefore contrary to the principles of legal certainty and lawfulness.

- Therefore, the contested provision is not in breach of Article 41 of the Constitution.

 
 

Case

Decision

Case-Law Development

Related

I. Individual Application

Levon Berç Kuzukoğlu and Ohannes Garbis Balmumciyan

2014/17354

22 May 2019

 (Plenary)

Violation of the freedom of religion safeguarded by Article 24 of the Constitution

 

 

 

- Alleged violation of the applicants’ right due to dismissal of the request for election of Turkey’s Armenian Patriarch.

- The Governor’s Office dismissed the request as the patriarchate’s office was not vacant but notified that an election for a "general acting patriarch" could be held. Accordingly, it was held by the Turkey’s Armenian Clerical Committee. The applicants brought an administrative action, maintaining that the election should have been held by the Assembly of the Delegates mainly consisting of the Civilians.   

- In the Code of Regulations governing the election process, all circumstances when the patriarchate’s office shall be deemed vacant are listed not exhaustively; but instead the phrase “for various reasons” (esbab-ı saire) is stated therein: both the administration and administrative court failed to consider/interpret this phrase.

- Interference with the applicants’ freedom of religion due to dismissal of the request for election of Turkey’s Armenian Patriarch was not found to comply with the requirements of a democratic society.

Press Release

 

Birgün İletişim ve Yayıncılık Ticaret A.Ş.

2015/18936

22 May 2019

 (Plenary)

Violations of the freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution

- Alleged violation of the applicant’s freedoms due to the order denying access to a piece of news published through a web-site of a national-scale newspaper.

- Access to the impugned news whereby images of a terrorist’s dead body dragged by an armoured vehicle were published was denied by virtue of the order issued by the Magistrate Judge.

- Failure to demonstrate the causal link between the content of the news and the reason for denial of access, as well as existence of any exigent situation.

- Failure to strike a balance between the freedom of expression and the democratic society’s legitimate right to protect itself against the activities of terrorist organisations.

- No relevant and sufficient reason to demonstrate that the impugned interference met a pressing social need and was thus compatible with the requirements of a democratic society.

 

 

Metin Birdal

2014/15440

22 May 2019

 (Plenary)

No violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

- Alleged violation of the applicant’s right as his previous participation in certain demonstrations were used as evidence in convicting him for his membership of a terrorist organization.

- The first instance court convicted him not due to his activities in these demonstrations but for his membership of a terrorist organization. His participations were referred to as one of the activities proving his membership and demonstrating the continuous nature of his acts.

- His participation was not the only evidence relied on by the instance court which also took into consideration, inter alia, phone records, intelligence information, police reports, notices, the applicant’s acts and roles in certain demonstrations.

- Impugned interference was found to meet a pressing social need as he posed a severe threat to the democratic life.

-A fair balance was struck between the society’s right to live in an environment free from terrorist acts and the applicant’s right in question: interference was compatible with requirements of a democratic society.   

 

Ahmet Parmaksız

2017/29263

22 May 2019

 (Plenary)

No violation of the freedom of organization safeguarded by Article 33 of the Constitution

- Alleged violation of the applicant’s right due to his having been imposed disciplinary punishment for labour union-related activities.

- The impugned activity of the applicant who was a public official - work stoppage for two days to protest the attacks of the ISIS terrorist organization against Kobane- was not directly related to his economic or social interests, but had a political aspect.

- A public official shall not be allowed not to go to work except for the cases set forth in the Law and the force majeure.

- Interference with the applicant’s freedom of organization was not disproportionate.

 

 

Y.T.

2016/22418

30 May 2019

(Plenary) 

Violation of the right to an effective remedy safeguarded by Article 40 of the Constitution

 

(Pilot judgment procedure)

- Alleged violation of the applicant’s right for lack of an effective legal remedy to challenge the decision ordering his deportation to a country where he would face the risk of ill-treatment.

- The applicant raised his allegations before the administrative judicial authorities to the effect that he would face the risk of ill-treatment in his country and he filed an individual application at the same time.

- The applicant maintained that he could not wait the outcome of the proceedings before the administrative court as he was under a constant risk of deportation at any stage of the proceedings.

- Problem stemmed from a legislative amendment, not from the practice of the administrative court or its misinterpretation of the legislation. The said amendment has not been compatible with the right to life, prohibition of ill-treatment and right to an effective remedy, which are safeguarded by the Constitution, as well as the relevant established case-law of the Constitutional Court.

-Pilot judgment procedure was adopted, as a structural problem prevailed. 

Press Release

Durmuş Fikri Sağlar

2015/2769

30 May 2019

 (Plenary) 

Inadmissibility of the alleged violation of the right to protection of honour and dignity safeguarded by Article 17 of the Constitution

 

- Alleged violation of the right of the applicant, a well-known politician and author-journalist, due to dismissal of the action for compensation he had brought to challenge the expressions against his honour and dignity.

- The applicant is expected to be more tolerant to the criticisms against him.

- Inferior court succeeded to strike a balance between the freedom of expression and the right to protection of honour and dignity.

- Criticisms against the applicant could not be regarded as an attack to his personal rights.

- Manifestly ill-founded. 

 

Mehmet Ali Gündoğdu and Mustafa Demirsoy

2015/8147

8 May 2019

(First Section)

Violation of the freedom of expression safeguarded by Article 20 of the Constitution

- Alleged violation of the applicants’ freedom due to dismissal of the request for registry of their work of art which should have been qualified as a movie.

- The applicants’ request for registration of their work of art as a movie was dismissed by the Ministry as it was allegedly incompatible with public order and the other principles enshrined in the Constitution as well as with human dignity. The administrative action brought by them was also dismissed, and the decision became final after being upheld by the Council of State during the appellate process.

- Impugned work was found to include no element praising any terrorist organization, romanticizing, inciting or justifying violence but rather tries to introduce a different perspective to terrorist problem. Dialogues included therein were not considered as a terrorist propaganda but as a tragic and ironic expression of the sad events.

- The instance court’s failure to show the best interest inherent in the maintenance of public order and constitutional principles vis-à-vis the applicants’ freedom of expression, as well as to consider the work as a whole.

Press Release

Doğukan Bilir

2014/15736

29 May 2019

(First Section) 

Violation of the prohibition of torture safeguarded by Article 17 of the Constitution

-Alleged violation of the applicant’s right for his having been battered during the Gezi Park protests.

- The applicant had sustained injuries that could not be cured by a simple medical treatment as a result of the ill-treatment he had been inflicted by three persons, two of whom had been police officers.

- The criminal court imposed administrative fines and suspended the pronouncement of the judgment. The sanction was disproportionate to the prohibition of torture, therefore failed to provide a sufficient redress. The applicant’s victim status could not be removed. 

 

Abuzer Uzun

2016/61250

13 June 2019

(Second Section)

Violation of the right to respect for private and family life safeguarded by Article 20 of the Constitution

- Alleged violation of the applicant’s right for his having been denied to attend his brother’s funeral.

-  The applicant had been placed in pre-trial detention on suspicion of membership of the FETÖ/PDY terrorist organization. The penitentiary institution and the district police directorate considered that the applicant’s attendance to the funeral would cause no security problem; however, upon the district gendarmerie command’s comment, the prosecutor dismissed the applicant’s request.

- The reason for dismissal was not based on convincing information or documents.

- Failure to strike a fair balance between the general public interest and the applicant’s situation: Interference did not comply with the requirements of the order of the democratic society. 

 

 

 

 

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

Ahmet Hüsrev Altan

2016/23668

Ayşe Nazlı Ilıcak

2016/24616

Mehmet Murat Sabuncu

2016/50969

Akın Altay

2016/50970

Önder Çelik and Others

2016/50971

Ahmet Şık

2017/5375

Murat Aksoy

2016/30112

Ahmet Kadri Gürsel

2016/50978

Ali Bulaç

2017/6592

2-3 May 2019

 (Plenary)

No violations of the right to personal liberty and security safeguarded by Article 19 of the Constitution as well as the freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution (in the cases of Ahmet Hüsrev Altan, Ayşe Nazlı Ilıcak, Mehmet Murat Sabuncu, Akın Altay, Önder Çelik and Others)

Inadmissibility of the alleged violations of the same right and freedoms (in the case of Ahmet Şık)

Violations the same right and freedoms (in the cases of Murat Aksoy, Ahmet Kadri Gürsel and Ali Bulaç)

- Alleged violations of the former right due to unlawfulness of their detention and of the latter freedoms as the imputed acts indeed fell within the scope of these freedoms.

*No violation: Regard being had to the particular circumstances of each case, it was neither arbitrary not unfounded for the investigation authorities to consider that there existed a strong indication of guilt; the applicants’ detention had a legal basis; their detention was proportionate.

*Inadmissibility: Alleged violation of the said right and freedoms as the impugned news, articles and social media posts fell under the scope of the freedoms of expression and the press as well as involved no criminal element.

- Existence of evidence indicating strong suspicion of guilt; the applicant’s detention had factual basis and proportionate.

*Violation: Alleged violation of the said right and freedoms as the elements of the charges against them had not been proven and their detention had been ordered for their social media posts and articles.

 - Investigation authorities’ failure to prove that the applicants’ articles and posts did not fall within the scope of the freedom of expression.

- No indication of a strong suspicion of the applicants’ guilt.

- Detention, which is a severe measure if not satisfying the condition of lawfulness, cannot be regarded as a necessary and proportionate interference, in a democratic society, in terms of the freedoms of expression and the press. 

Press Release

 Mehmet Osman Kavala

2018/1073

22 May 2019

 (Plenary)

No violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

Inadmissibility of the alleged violation of the right to fair trial

*Alleged violation of the applicant’s former right as there was no concrete information as to the imputed offences and his detention was ordered in the absence of any criminal guilt and evidence proving his guilt.

-No violation: The applicant, a business man, was taken into custody within the scope of an investigation conducted into the acts of Gezi Park incidents and then detained for allegedly attempting to overthrow the constitutional order and the Government of the Republic of Turkey and to prevent it from performing its duties.

- Given the general circumstances of the Gezi Park incidents during which certain violent acts took place, particular circumstances of the present case and the detention order issued by the Magistrate Judge, the grounds for applicant’s detention had factual basis.

-His detention was found to be proportionate; and the Magistrate Judge’s conclusion that conditional bail would remain insufficient was considered neither arbitrary nor unfounded.  

*Alleged violation of his latter right due to the restriction order on the investigation file.

- Inadmissibility: The Magistrate Judge issued a restriction order on the investigation file; however, this restriction was no longer applicable as the indictment had been accepted by the relevant court. Besides, during his questioning and statement-taking process, the applicant was asked questions about the content of documents with restricted access and presented detailed defence submissions.

 

 

 

 İoanis Maditinos

2015/9880

8 May 2019

(First Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the applicant’s right due to non-recognition of his capacity as an heir for the lack of reciprocity between Turkey and Greece

- Certificate of inheritance of the applicant, who is no longer a Turkish nation for being deprived of Turkish citizenship, was revoked, and the immovable of which he is the only heir was assigned to the State Treasury.

- Non-recognition of his status as the only heir of the testator’s immovable located in İstanbul for lack of reciprocity between Turkey and Greece.

- The inferior court’s failure to provide reasonable and sufficient justification for revocation of the applicant’s certificate of inheritance in the absence of any explicit provision whereby Turkish citizens were not allowed, at the material time, to acquire property by inheritance in Greece: interference was devoid of a foreseeable legal basis.

Press Release

Ezgi Özen

2015/12753

8 May 2019

(First Section)

 

Violation of the procedural aspect of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

 

 

- Alleged violation of the prohibition of ill-treatment due to the use of disproportionate force by the police officers.

- Conflicting reports as to whether there had been a causal link between the alleged interference by the police and the applicant’s having suffered a miscarriage: lack of an effective investigation.

- In addition, lack of due diligence in the protection of the right to hold meetings and demonstration marches.

 

 

Edip Elma and Others

2015/14826

18 April 2019

(First Section)

Violation of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

- Alleged violation of the prohibition of ill-treatment for having been subject to verbal and physical ill-treatment by the police officers and for their having been left unpunished.

- The criminal court found that one of the applicants had been assaulted by the police officers. In this case, the Court needed no further assessment to conclude that the State had failed to fulfil its negative obligation.

- Failure to inflict punishment proportionate to the gravity of the offence.

- Imposition of fine on the police officers and suspension of the pronouncement of the judgment against them might erode the confidence in the judicial system and rule of law.

 

 

Güral Doğan

2015/7453

18 April 2019

(First Section)

No violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

 

- Alleged violation of the applicant’s right due to imposition of administrative fine for attending a demonstration march.

- Traffic flow was stopped. Unreasonable effect on the rights of others, which cannot be regarded as a natural consequence of the right to hold meetings and demonstration marches.

- Interference served a pressing social need.

Press Release

M.E.

2018/696

9 May 2019

(Second Section)

 

 

Violations of the right to personal liberty and security as well as the right to a fair trial respectively safeguarded by Articles 19 and 36 of the Constitution

- Alleged violations of the former right due to inadequate amount of compensation awarded for custodial measure as well as the latter right due to the failure to consider the applicant’s claim for compensation for being subject to conditional bail.

- Amount of compensation awarded for his wrongful custody was low to the extent that would impair the essence of the right to compensation.

- In spite of being capable of altering the amount of compensation and thereby the outcome of the compensation action, the applicant’s claim for compensation for being subject to conditional bail was not discussed and taken into consideration by the inferior courts: violation of the right to a reasoned decision falling within the ambit of the right to a fair trial.

Press Release

İlker Deniz Yücel

2017/16589

28 May 2019

(Second Section)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

Violations of the freedoms of expression and the press safeguarded respectively by Articles 26 and 28 of the Constitution

 

 - Alleged violations of the rights of the applicant, a journalist, due to his detention on the basis of his journalistic activities, in the absence of a reasonable suspicion of guilt.

- Inferior court’s failure to prove that the interview made by the applicant had aimed at making terrorist propaganda. No indication of strong suspicion of guilt.

- Detention, which is a severe measure if not satisfying the condition of lawfulness, cannot be regarded as a necessary and proportionate interference, in a democratic society, in terms of the freedoms of expression and the press.

- Interference with the applicant’s said rights did not serve a pressing social need.

 

 

II. Constitutionality Review

E.2018/136

10 April 2019

(Plenary)

Annulment of the relevant provisions of Law no. 2308 whereby benefits and amounts against time-barred debts of stock corporations shall be transferred to the State.

- Contested provision envisaging transfer of time-barred dividend receivables to the State might lead to irreparable consequences in terms of the relevant corporations and their partners.

- It constitutes an interference with the right to property: the interference is unconstitutional as being disproportionate for placing an extra-ordinary and excessive burden on the owner. 

- Less severe means may be applied to achieve the same aim.

- Accordingly, Article 2, 3 and 4 of the same Law were also annulled for being no longer applicable upon the annulment of the above-mentioned provision.

 

 

 

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

Ünal Gökpınar

2018/9115

27 March 2019

(Plenary)

No violation of the principle of not to be tried or punished again for the same offence safeguarded by Article 36 of the Constitution

-Alleged violation of the said principle due imposition of punishments as a result of both administrative and judicial processes related to tax affairs.

- In accordance with this principle, an individual cannot be tired or punished again for the same offence. However, this principle is not absolute, and the same offence may have different consequences in different legal disciplines.

- The principle is applicable solely to criminal cases, therefore it does not constitute an obstacle to bringing a civil action or launching a disciplinary investigation for the same offence alongside the criminal investigation.

-Imposition of different sanctions for the same offence within the scope of different disciplines (in the present case, administrative and judicial processes) is not in breach of the said principle.

 

 

Recep Bekik and Others

2016/12936

27 March 2019

(Plenary)

 

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

 

 

- Alleged violation of the said freedom of the applicants who were prisoners, due to non-delivery arbitrarily and without any justification of the periodicals they had subscribed to or purchased.

- The criteria outlined by the Court in terms of accepting publications to penal institutions have not been implemented properly.

- Lack of uniform assessments as well as clear, guiding and consistent practices, capable of preventing arbitrariness, on the part of the courts in similar cases: ongoing structural problem in the current system when it comes to accepting publications to penal institutions.

- If no effective system is established, the structural problem will continue, thereby leading to the continuous violation of the freedom of expression.

 

 

 

 

Abdulkadir Yapuquan

2016/35009

2 May 2019

(Plenary)

 

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

- Alleged violation of the applicant’s right due to the unlawfulness of his detention in the Removal Centre; alleged unlawfulness of holding a foreigner in administrative detention for more than twelve months.

- Lack of legal grounds such as public order and public security justifying the administrative detention of the applicant: unlawful deprivation of liberty.

- Applicant applied to the Constitutional Court and the ECHR for his release, which demonstrated that he was not being held in the Removal Centre at his own request.

 

 

Türkiye İş Bankası

2016/2400

3 April 2019

(First Section)

 

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the right to property due to collection of taxes on the contributions that were paid on behalf of the employees.

- The rule which provides that the contributions made to the Foundation shall be taxed was adopted in 2012; therefore, cannot be applicable to the period before 2012.

- Existence of and interference with the right to property on the basis of an unforeseeable legal provision.

 

 

Mehmet Geçgel

2014/4187

18 April 2019

(First Section)

Violation of the right to a fair hearing safeguarded by Article 36 of the Constitution

- Alleged violation of the applicant’s right due to the rejection of his request for redress of his damages arising from terrorist events, due to his previous sentence which had indeed been suspended and thus had not been final.

- The administrative court dismissing the applicant’s request for compensation relied on a judgment that had not become final: manifestly erroneous assessment.

 

 

Mehmet Özhaseki

2015/4972

8 May 2019

(First Section)

Inadmissibility of the alleged violation of the right to protection of honour and dignity safeguarded by Article 17 of the Constitution

- Alleged violation of the right of the applicant, a mayor, due to rejection of the action for compensation that he had brought due to certain allegations voiced by a politician against him at a public meeting, which according to him damaged his personal rights: manifestly ill-founded.

- Politicians, public figures and public officials may be subject to more severe criticisms due to their position and are expected to become more tolerant to criticisms.

- In parallel, politicians’ freedom of expression must be broader.

- Expression of thoughts about the events that occurred in a municipality is a natural result of a democratic political system.

 

 

Kemal Kılıçdaroğlu and the Republician People’s Party (CHP)

2014/12482

8 May 2019

(First Section)

Inadmissibility of the alleged violation of the right to protection of honour and dignity safeguarded by Article 17 of the Constitution

- Alleged violation of the right of the applicants, main opposition party and its leader, due to the news published in a newspaper: manifestly ill founded.

- Politicians, public figures and public officials may be subject to more severe criticisms due to their position and are expected to become more tolerant to criticisms.

- Freedoms of expression and the press are of vital importance in a democratic society.

- The expressions in the impugned news did not exceed the limits of criticism.

- Democratic pluralism entails more tolerance on the part of politicians to criticisms against them.

-Fair balance struck between the freedoms of expression and the press and the individual’s right to protection of his moral integrity.

 

 

Nihat Zeybekçi

2015/5633

8 May 2019

(First Section)

Inadmissibility of the alleged violation of the right to protection of honour and dignity safeguarded by Article 17 of the Constitution

- Alleged violation of the right of the applicant, member of parliament, due to the words used by a political party leader at a group meeting: manifestly ill-founded.

- Politicians, public figures and public officials may be subject to more severe criticisms due to their position and are expected to become more tolerant to criticisms.

- The applicant had the opportunity to respond to the unfavourable remarks against him.

- Fair balance struck between the defendant’s freedom of expression and the applicant’s right to protection of his honour and dignity.

 

 

Timur Demir

2018/33190

9 May 2019

(Second Section)

Inadmissibility of the alleged violation of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

- Alleged violation of the applicant’s right due to his being placed in a single room in the penitentiary institution: manifestly ill-founded.

- The alleged measure intends to prevent any cooperation to commit crimes and to maintain security and discipline in penitentiary institutions.

- He did not complain about the physical conditions which were completely favourable in terms of social facilities and the possibility of meeting his relatives.

- Detention conditions did not reach the minimum threshold of severity.

 

 

Sadettin Ekiz

2016/9364

9 May 2019

(Second Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the right of the applicant, property owner, due to collection of the counsel’s fee from him in the expropriation proceedings.

- Fair balance between the public interest pursued by the interference and the applicant’s right to property was disturbed to the detriment of the applicant.

- Judicial authorities’ obligation to conclude the proceedings at little cost: not fulfilled (disproportionate cost)

- Collection of the expenses from the applicant imposed an excessive burden on him.

- Proportionality assessment as regards the expenses is different in the expropriation cases from the other types of cases.

 

 

II. Constitutionality Review

E.2017/154

10 April 2019

(Plenary)

Dismissal of the request for annulment of the provision stipulating that the counsel fee shall be paid to the lawyer

- Contested provision stipulates that the counsel fee to be charged from the other party to the case by a court decision relying on the Minimum Attorneyship Fee Tariff shall be paid to the lawyer.

- It is disputed that in addition to the payment of an attorney fee to the lawyer by the client, the counsel fee that is subsequently awarded by the court in favour of the client (prevailing party) is also paid to the lawyer, which bestows a privilege upon the lawyers: allegedly in breach of the right to legal remedies as well as the principles of fair trial.

- The counsel fee that is specified in the provision is not the attorney fee arising from the agreement between the lawyer and the client, but a fee awarded by the court on the basis of the Minimum Attorneyship Fee Tariff.

-The contested provision does not prejudice the legality or scope of the attorney agreements signed by the parties on an equal basis with their free will.

 

 

 

 

 

 

E.2017/154

10 April 2019

(Plenary)

Dismissal of the request for annulment of the provision stipulating that no disciplinary punishment shall be imposed on the law enforcement officers in the absence of a disciplinary investigation

- Contested provision stipulates that where disciplinary supervisors consider that an inquiry is needed against one of their subordinates due to his undisciplined acts or inappropriate behaviours, then a disciplinary investigation will be launched.

- It was argued that the contested provision vested the disciplinary supervisors with the authority to impose disciplinary punishments even in the absence of a disciplinary investigation: allegedly in breach of Articles 10 and 129 of the Constitution (respectively, “equality before the law” and “disciplinary decisions shall not be exempt from judicial review”).

- The contested provision, read as a whole, stipulates that where a disciplinary supervisor considers that an inquiry is needed into a case, then he will launch a disciplinary investigation. On the other hand, where he considers that no inquiry is needed, then he will not take any action. Accordingly, it does not vest the disciplinary supervisors with such authority as alleged.

 

 

E.2019/9

11 April 2019

(Plenary)

Annulment of the provision precluding retroactive application of the law more favourable to the accused

- Contested provision, which is included in the Law no. 6750 on Pledge over Movable Properties in Commercial Transactions, stipulates that this Law shall not be applicable to the cases pending by the date of its entry into force.

- It was argued that the contested provision precluded the retroactive application of new legal provisions that were more favourable to those accused of the offences committed when the abolished law had been in force.

- Application of the less favourable law retroactively is prohibited by virtue of the principle of legal certainty and security; however, retroactive application of the more favourable law is a requirement of the principles of justice and fairness in conjunction with the rule of law.

- Application of the less favourable provisions included in the abolished law will result in an unpredictable punishment for the individuals

- Principle of legality of crimes and punishments is also at stake.

 

Press Release

E.2019/6

11 April 2019

(Plenary)

Annulment of the provisions allowing the reinstatement of the heads of professional organizations who resigned to stand for parliamentary and local elections

- Contested provisions stipulate that heads and board members of the Turkish Union of Chambers and Commodity Exchanges, as well as the heads and board members of professional organizations, who resigned to stand for parliamentary and local elections, can be reinstated, if they lose the elections.

- The union and organizations in question, established under respectively Law nos. 5174 and 5362, have public institution status.

- It was argued that the reinstatement had no reasonable ground and was not proportionate.

- Different practices, related to elections, between the heads of professional organizations governed by Law nos. 5174 and 5362 and those of other professional organizations with public institution status: Violations of the principle of equality, as well as right to be elected.

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

B.P.O

2015/19012

27 March 2019

(Plenary)

Violation of the right to protect an individual’s corporeal and spiritual existence safeguarded by Article 17 of the Constitution

No violation of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the former right for being subject to an intrusive body search by a woman police officer as the applicant −a national of Colombia− was suspected of transporting narcotic drug.

- Intrusive body search had no legal basis for being conducted without the knowledge and order of a public prosecutor: in breach of the constitutional right as the necessary conditions prescribed by law for this type of search were not satisfied.

- Alleged violation of the latter right for her conviction on the basis of illegally obtained evidence.

- The applicant convicted of importing narcotic drugs and psychotropic substances challenged not the whole evidence but the one obtained illegally.

- Examination as to whether the challenged evidence impaired the fairness of the proceedings as a whole: no impairment as not being the sole and decisive evidence.

- The other relevant criteria (equality of arms, adversarial proceedings, examination on the merits of the applicant’s allegations and sufficient justification) were also satisfied in the present case.

 

Hasan Akboğa

2016/10380

27 February 2019

(Plenary)

Violation of the right to personal liberty and security safeguarded by Article 19 § 9 of the Constitution

No violation of Article 19 § 3 of the Constitution

 

 

- Alleged violation of the applicant’s right due to his wrongful arrest and custody for his alleged membership of a terrorist organization.

- As concerns Article 19 § 3: no violation as the applicant’s arrest had a legal basis, a factual basis conforming suspicion of criminal guilt, was necessary given the risk of his fleeing based on the severity of the envisaged penalty for such offences, and was proportionate.

- As concerns Article 19 § 9: the applicant’s action for compensation brought upon the decision of non-prosecution was dismissed due to the non-fulfilment of the necessary conditions.

- However, if a decision of non-prosecution is issued following a person’s arrest, he may request the State to redress his pecuniary and non-pecuniary damages pursuant to Law no. 5271: the applicant’s case falls into the ambit of this provision.

 

Mustafa Demiraydın 2015/1051

21 March 2019

(First Section)

 

Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

- Alleged violation of the applicant’s right due to imposition of an administrative fine as a result of participating in a press statement in a peaceful environment.

- Right to hold meetings and demonstration marches aims at protecting the rights of the individuals who express their opinions in a peaceful manner without resorting to violence.

- As a requirement of the pluralistic democracy, the State is expected to show patience and tolerance to the non-violent acts that do not pose a threat to the public order.

-Administrative fine: unnecessary in a democratic society.

- Failure to strike the fair balance between the measures taken and the applicants rights within the scope of Article 34.

 

A.D.

2014/19506

3 April 2019

(First Section)

 

Violation of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

- Alleged violation of the said prohibition due to the risk of applicant’s extradition to a third country if being deported to his/her country of nationality.

- In issuing a deportation order, public authorities are to take into account whether there is any risk of extradition of the person concerned to any country where he/she will be allegedly subject to ill-treatment. The receiving country’s being a member of the Council of Europe or a party to the European Convention on Human Rights does not per se eliminate the obligation to conduct an inquiry into the alleged ill-treatment.

- The Court’s violation in the present case does not amount to an acknowledgement of his allegations that in case of his/her deportation to his/her country of nationality, he/she would be extradited to the USA where he/she would be allegedly ill-treated.

- The Court ordered a re-trial and halted the applicant’s deportation until the conclusion of his/her re-trial.

 

 

Ayşe Çelik

2017/36722

9 May 2019

(Second Section)

Violation of the freedom of expression safeguarded by Article 26 of the Constitution

- Alleged violation of the freedom at stake as the applicant did not intend to justify, or incite to, violence or hatred but indeed used peaceful expressions during a live TV show.

- Impugned interference was incompatible with the necessities of a democratic society: her expressions included no element praising or supporting terrorism, or directly or indirectly inciting to violence or an armed resistance, but concerned issues of public interest.


Press Release

İbrahim Sözer and Others

2016/10425

4 April 2019

(Second Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the applicants’ right due to the failure to expropriate for over 30 years their immovable allocated for public service and to redress the damages incurred.

- Although the administration decided to no longer expropriate their immovable, no amendment was made to the development plan: relevant restrictions such as construction ban remained in force.

- The public authorities’ failure to indemnify the applicants put an excessive and extraordinary burden on them, which upset the fair balance to be struck between their right to property and the public interest.

 

Eyüp Kurt

2015/6926

4 April 2019

(Second Section)

Violation of the right to protect corporeal and spiritual existence safeguarded by Article 17 of the Constitution

- Alleged violation the applicant’s right due to the proceedings conducted into his having been permanently disabled allegedly as a result of medical negligence.

- Lack of the medical records at the material time, which resulted in a failure to determine whether the doctor as well as the medical institution in question were responsible for the applicant’s disability: the applicant was at a disadvantage before the respondent administration.

- Inferior courts dismissed the applicant’s case in the absence of sufficient grounds based on concrete evidence: excessive burden on the applicant; unfair situation.

- The State’s failure to satisfy its positive obligations under the right to protect corporeal and spiritual existence.

Press Release

Hacı Ahmet Yaşartürk and Nurdane Yaşartürk

2014/850

4 April 2019

(Second Section)

Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the right to life due to death caused by a temporary village guard not fulfilling the criteria concerning military service and alleged violation of the right to be tried within a reasonable time for failure to conduct an effective criminal investigation.

- The procedural aspect of the positive obligation incumbent on the State within the scope of the right to life requires that in cases of unnatural death, an effective criminal investigation capable of identifying those responsible and, if necessary, punishing them must be conducted: not fulfilled in the present case.

- Investigation not concluded with reasonable speed.

- In addition to finding of a violation, the applicants were also awarded compensation.

 

II. Constitutionality Review

E.2018/156

10 April 2019

(Plenary)

Annulment of the provision concerning the increase to be applied to price of the expropriated property

- Contested provision stipulates that the increase in the price of the expropriated property shall not be higher than the half of the land’s determined price.

- One of the constitutional elements of the expropriation is “actual price”.

- As required by the right to property and the principle pf proportionality, the real value of the expropriated property must be paid to its owner.

- The limitation stipulated by the contested provision might prevent the determination of the real value of the property and hence its payment to its owner; fair balance between the public interest and the right to property is disturbed: unconstitutional.

 

Press Release
 

Case

Decision

Case-Law Development

Related

I. Individual Application

Çetin Doğan

2014/3494

27 February 2019

(Plenary)

Violation of the right to honour and reputation safeguarded by Article 17 of the Constitution

- Alleged violation of the applicant’s right due to the false news reported with respect to the applicant and the Turkish Armed Forces on the basis of imprecise information as well as fake and fabricated evidence.

- The State’s positive obligation to protect an individual’s honour and dignity, as a part of his spiritual entity, against third persons’ attacks: not fulfilled in the present case.

- The relevant media outlet’s failure to fulfil the duty and responsibility of imparting accurate and reliable information to the public.

- The inferior courts’ failure to make any assessment as to the applicant’s allegations.

- No relevant and sufficient reasons, in the first instance decision, to justify the impugned interference with the applicant’s right to honour and reputation.

 

Murat Demir

2015/7216

27 March 2019

(Plenary)

 

Violation of the right to respect for family life safeguarded by Article 20 of the Constitution

 

 

 

- Alleged violation of the applicant’s right due to procrastination of the proceedings initiated for the nullity of the decision removing his foster care status.

- The State’s positive obligation to prevent procrastination of any proceedings initiated for resolution of a legal dispute of a particular concern for the children: not fulfilled in the present case.

- Procrastination of the proceedings in spite of elapse of a six-year period led to legal uncertainty in the applicant’s reunion with the children.

Press Release

Hülya Kar

2015/20360

27 February 2019

(Plenary)

Inadmissibility

(Freedom of expression safeguarded by Article 26 of the Constitution)

- Alleged violation of the applicant’s freedom for being subject to a preventive measure (probation) in the course of an investigation conducted against her for disseminating terrorist propaganda.

- The factors which are taken into account by the Court in examining such applications and which were fulfilled in the present case:

*Whether the aims pursued could have been achieved by alternative means imposing a lesser restriction?

* Whether there was a balance between the aim pursued and the impugned preventive measure?

* Whether the suffering experienced by the applicant exceeded the inevitable level of suffering inherent in such measure?

* Whether this measure was foreseeable and relied on a precise legal arrangement as well as whether it was applied in respect of an individual suspected of having committed an offence?

 

 

Arbay Petrol Gıda Turizm Taşımacılık Sanayi Ticaret Ltd. Şti. ve Arbay Turizm Taşımacılık İthalat İhracat İnşaat ve Organizasyon Sanayi ve Ticaret Ltd. Şti.

2015/15100

27 February 2019

(Plenary)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the applicants’ right due to dismissal, without an examination on the merits, of the actions brought against the tax assessments made and penalties imposed on the basis of the adjustment statements submitted with a reservation.

- The applicants’ being subject to certain tax penalties and default interest on the basis of the statements submitted with a reservation constituted an interference with their right to property.

- The Court examined whether the impugned interference was proportionate.

- No examination on the merits of the actions. The applicants were therefore deprived of the opportunity to make the impugned taxation process subject to a judicial review.

- The failure to afford procedural safeguards inherent in the right to property imposed an excessive burden on the applicants: leading to the upset of the fair balance between the right to property and the public interest. Therefore, the interference was not proportional.

 

 

 

Kenan Gül

2015/17892

19 February 2019

(First Section)

Violation of the freedom expression safeguarded by Article 26 of the Constitution

- Alleged violation of the applicant’s freedom for being imposed a judicial fine as the applicant, a lawyer, insulted the opposing party in defending his client.

- A fair balance is to be struck between the opposing party’s right to protect honour and reputation and the applicant’s right to claim and defence as well as freedom of expression.

- The applicant’s expressions were found to be a part of the arguments submitted by him for protecting his client’s interests and to pursue an arguable aim in objective terms.

- The first instance court’s failure to demonstrate the existence of a pressing social need requiring it to impose a penalty on the applicant.

 

Fatma Nazlı Özkay

2016/8023

6 March 2019

(First Section)

No violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the applicant’s right due to revocation, by a judicial decision, of her construction permit as her immovable was a historical monument required to be under preservation.

- Revocation of the applicant’s construction permit is undoubtedly an interference with her right to property: the question to be examined by the Court is whether the interference was proportionate.

- The impugned interference was found not to impose an excessive burden on her, given the public interest pursued: the fair balance was struck between her right to property and the public interest. Therefore, the interference was found proportional.

 

Abdullah Volkan Arslan

2016/14883

21 March 2019

(First Section)

Violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the applicant’s right due to dismissal of his objection to the decision of the consumer arbitration committee as being time-barred.

- The receipt date of the notice was not taken as a basis.

- The grounds relied on by the incumbent court were not sufficient and admissible.

- Dismissal decision was not foreseeable, thereby eliminated the applicant’s possibility to use legal remedies.

- Burden imposed on the applicant by the dismissal decision was not proportionate to the legitimate aim pursued.

 

 

Ömer Faruk Eski

2016/1253

21 March 2019

(First Section)

 

Violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the applicant’s right due to dismissal of the case as being time-barred.

- The applicant, officer in the Turkish Armed Forces, was injured during an operation in 2012. The report issued in 2014 stated that he would not be able to attend his office due to the trauma he had suffered.

- Claim for pecuniary and non-pecuniary damages by the applicant was dismissed as being time-barred.

- Statute of limitations for bringing an action starts to run from the date on which a causal link was established between the damage and the administrative act, even if it was long after the impugned incident.

- Disproportionate interference with the applicant’s right of access to a court.

 

 

 Mehmet Uçar

2015/7357

3 April 2019

(First Section)

 

Violation of the prohibition of treatment incompatible with human dignity safeguarded by Article 17 of the Constitution, in addition to its procedural aspect (lack of an effective investigation)

 

- Alleged violation of the applicant’s right due to illegal use of force by the police officers.

- Applicant got injured as a result of the use of force; interference constituted an ill-treatment.

- Requirement of conducting an effective investigation capable of identifying those responsible and punishing them if necessary: not fulfilled.

- In addition to finding a violation, the applicant was also awarded compensation.

 

 

Ö.T.

2015/16029

19 February 2019

(Second Section)

Violation of the right to protect corporeal and spiritual existence safeguarded by Article 17 of the Constitution

- Alleged violation of the applicant’s right due to dismissal of her request for preventive imprisonment of her husband committing violence against her.

-The Court’s examination as to whether the State’s positive obligation to establish an effective legal system was fulfilled and whether reasonable practical measures required by the administrative and legal legislation were taken.

- The inferior court’s failure to give relevant and sufficient reasons for dismissing the request.

- No legal interest to order a re-trial with a view to redressing the consequences of the violation.

Press Release

Hamit Aydemir

2015/17844

7 March 2019

(Second Section)

Violation of the right to property safeguarded by Article 35 of the Constitution

- Alleged violation of the right to property due to dismissal of the request of the applicant’s guardian for permission from the court to enjoy a legal right on behalf of the applicant, who was disabled, to facilitate his transport.

- The State’s principal duty to ensure the disabled persons to enjoy their fundamental rights and freedoms, thereby encouraging their full and effective participation in society on an equal basis with others.

- Lack of relevant and sufficient reasons in the probate authorities’ decisions and the failure to show due diligence in the protection of the disabled persons’ right to property.

-The State’s failure to fully and effectively satisfy its positive obligations in terms of the protection of the right to property.

 

 

Ruhi Abat

2014/4724

7 March 2019

(Second Section)

Inadmissibility

(Rights to personal liberty and security, to a fair trial and to an individual application)

- Alleged violations of the applicant’s rights due to his detention on remand in the absence of strong suspicion of guilt and to rejection of his request for release without any justification.

- Non-exhaustion of legal remedies (right to personal liberty and security)

- Incompatibility ratione personae (right to a fair trial): For an individual application to be declared admissible, it must be demonstrated that the applicant was directly affected by the violation.

- Manifestly ill-founded (right to an individual application): The applicant had the opportunity to lodge an individual application; Non-communication of the dismissal decision to the applicant did not hinder the applicant from filing an individual application. He could lodge an individual application since the date he became aware of the dismissal decision.

 

 

 Abdulkadir Akgün

2015/19791

20 March 2019

(Second Section)

Violation of the right to organize unions safeguarded by Article 51 of the Constitution

- Alleged violation of the applicant’s right due to his assignment to a different department on the sole ground of his being the provincial representative of a labour union.

- Right to organize unions under the freedom of association constitutes one of the main values of a democratic society.

- Any interference with the said right must serve a pressing social need and be proportionate: failure in the present case.

- The reasons relied on by the administration were not relevant and sufficient.

- Failure to comply with the requirements of the democratic order of the society.

 

II. Constitutionality Review

E. 2016/181

20 December 2018

(Plenary)

 

-Annulment of Provisional Article 10 added to Law no. 775 by Article 12 of Law no. 6745

-Annulment of Additional Article 1 added to Law no. 2942, except for its first paragraph, by Article 33 of the Law no. 6745

- Provisional Article 10 which sets out that in case of any failure in the accomplishment of the allocations, by the administration, of land or residence in a certain region before the entry into force of the Law, the amounts paid to that end shall be returned to the rights holders who shall claim no other right, amount or compensation: allegedly unconstitutional due to the interference with the actions brought by the right holders.

Imposing a disproportionate and unforeseeable burden on the right holders: leading to upset of the reasonable balance between the aims pursued and means for attaining it.

A disproportionate interference with the rights to property and to legal remedies.

- Additional Article 1 which prescribes five years for the implementation of development plans in respect of the immovables allocated for public services and governmental agencies and which lays down the procedure to be followed in case of any failure: allegedly unconstitutional for not pursing a legal interest and intending to hinder the rights likely to be obtained by right holders through a court decision.

The administration’s ability to expropriate depends on its having sufficient funds. Payment in instalments of the expropriation price by the administration is permitted in Article 46 of the Constitution in exceptional cases. However, in case of instalment, the interest rate to be charged is to be the highest rate prescribed for public receivables: not fulfilled in the present case.

- Leading to acquisition of immovables by the administration instead of expropriation: contrary to the principles of legal certainty and foreseeability.

 

E.2019/1

14 March 2019

(Plenary)

Annulment of Article 67 § 2 of the Highway Traffic no. 2918

- Contested provision provides that the vehicles used in breach of the regulations on the manoeuvres of vehicles, be banned from driving for a certain period of time, regardless of its driver.

- In cases where the driver is not the owner of the vehicle, the said penalty is in breach of the principles of individual criminal responsibility and rule of law, as well as the principles of justice and fairness, and therefore is unconstitutional.

 

E.2019/3

14 March 2019

(Plenary)

Dismissal of the Request for Annulment of Article 81 § 1 of the Military Service Law no. 1111

- Contested provision provides that age changes made at an age fit for military service without relying on the official hospital birth records shall not be taken into consideration in recruitment procedures.

- Alleged violations of the principles of rule of law and equality.

- The provision is constitutional: the request for annulment is dismissed.

- The provision aims at maintaining the order in terms of the national service without any disruptions.

- Individuals making age changes on different grounds do not have the same legal status.

- The binding nature of court decisions does not hinder the legislator’s authority to make general arrangements on condition of being in conformity with the Constitution.