Case-Law Summary
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| I. Individual Application | |||
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B.A.Y. 2019/19788 5 July 2022 (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 rejection of the applicant’s request for being registered with the bar as a lawyer. - The applicant, a former judge of the Council of State, had been dismissed from office for his relation with the Fetullahist Terrorist Organisation. Thereupon, he requested to be registered with the bar as a lawyer, which was accepted by the Turkish Bar Association (Association), but rejected by the administrative court with final effect. - According to the Court’s assessment, the applicant’s request could be rejected by neither the bar nor the Association on the ground that there was an ongoing investigation against him. Any decision to the contrary would be devoid of legal basis. - At the date when the Association accepted the applicant’s request, no prosecution had been initiated against him; however, the court disregarded this situation and made its decision relying on a subsequent one, which hindered the discretionary power afforded to the professional organisations. - Hence, the court’s making a direct decision on a matter falling within the discretionary power of professional organizations lacked a legal basis. - In the absence of a finalised conviction of or a criminal prosecution for the offences preventing the applicant from practising as a lawyer, it was unlawful for the court to dismiss the impugned administrative act relying on a criminal investigation as well as a subsequent prosecution process. - Consequently, the Constitutional Court found a violation of the right to respect for private life. |
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Gökhan Yiğit Koç and Others 2019/25727 28 July 2022 (Plenary)
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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 fatal injury sustained as a result of the police’s failure to respond to the call for immediate help on time as well as the authorities’ failure to conduct a rigorous examination within the scope of the subsequent full remedy action. - The inferior courts failed to provide relevant and sufficient justification regarding the police officers’ alleged failure to arrive at the scene as soon as possible in order to prevent the knife attack and to ensure that the necessary measures were taken to protect the right to life. Thus, they could not sufficiently clarify the incident. - Considering the above finding regarding the procedural aspect of the right to life, the alleged violation of the substantive aspect of the right to life could not be examined at this stage. - Consequently, the Court found a violation of the procedural aspect of the right to life. |
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Kemal Kılıç 2019/16400 28 July 2022 (Plenary) |
Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the said right due to the discontinuation of the permanent financial assistance provided by the Mehmetçik Foundation (the Foundation). - While the applicant had been performing his compulsory military service, the military hospital issued a report stating that he was "unfit for military service". Afterwards, upon his application, the applicant was entitled to a financial assistance provided by the Foundation to disabled veterans and other military disabled persons, which he received for 16 years. Then, as a result of the re-evaluation made by the Foundation, the financial assistance provided to the applicant was discontinued. - In the course of the subsequent proceedings, it was argued that no causal link could be established between the applicant's disorder and his military service. The applicant unsuccessfully challenged the judicial decision against him. - The Foundation was not a public legal entity. In this sense, it should be noted that its financial resources consisted of donations and the revenues of its own properties and enterprises. Thus, it would receive no resource from the public. Given these explanations, the private law provisions shall be applicable to the dispute between two private persons. Accordingly, the State’s positive obligations under the right to property were at stake. - In the present case, the discontinuation of the impugned financial assistance after 16 years had elapsed prejudiced the principle of legal certainty. As a matter of fact, the requirements prescribed for entitlement to such assistance had been available at the very beginning, and the applicant was evaluated to have met these requirements, thereby being entitled to the said assistance. However, the discontinuation of the assistance on the ground that it had been an erroneous evaluation might damage the confidence in the Foundation’s transactions. - The civil court’s dismissal of the applicant’s case by relying on a report containing ambiguous statements run counter to principle of legal certainty as well as the State’s positive obligations. - Consequently, the Constitutional Court found a violation of the right to property. |
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Şaban Kurt 2018/25857 14 September 2022 (First Section) |
Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the said right due to the allegedly unlawful publication of a processed work. - The applicant had taken over the printing, reproduction and distribution rights of the work created by processing the poems of Mehmet Akif Ersoy, a famous poet, for a period of 99 years starting from 1997. A bookstore holding the financial rights of another work consisting of some poems of Mehmet Akif Ersoy since 1943 brought an action for compensation against the applicant, which was concluded with a decision ordering the latter to pay a sum of compensation. - In the present case, the impugned work was created by processing the poems of Mehmet Akif Ersoy after the expiration of the 50-year protection period in accordance with the law which was in force in 1987. The main issue to be examined was whether the said work would be considered illegal for the reason that the protection period of the work was in fact increased to 70 in accordance with a law that entered into force in 1995. - The impugned work was created in 1987 and made available to the public as of the said date. Therefore, it was lawfully made public before 1995. In this case, it is clear that the impugned work fell within the scope of the protection of the previous law dated 1952 whereby the financial rights set thereforth were characterised as property for the author or the person who had taken over it. - Although the protection period of Mehmet Akif Ersoy's poems was extended until 2007 as a result of the amendment made by the law dated 1995, this did not automatically exclude the works from the protection of the law dated 1952. - Thus, the interpretation to the effect that the applicant's rights had expired was not compatible with the principle of rule of law. Therefore, it was obvious that the statutory provisions applied to the dispute were not interpreted in the light of the principle of rule of law and respecting the principle of foreseeability. - Hence, an excessive and extraordinary burden was imposed on the applicant. - Consequently, the Constitutional Court found a violation of the right to property. |
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Leyla Güven 2018/26689 7 April 2022 (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 the applicant’s second detention order issued following her being elected as an MP. - The applicant, an MP at the relevant time, was detained on remand for establishing and managing an armed terrorist organisation. - The other legal actions that had been already brought against the applicant were also joined. - Pending her detention on remand, the applicant was elected as an MP during the general elections. Her release was then ordered on her request; however, her detention was once again ordered upon the objection by the incumbent chief public prosecutor’s office. - The applicant was released by the court on 25 January 2019. - She lost her status as an MP after the final conviction decision whereby she was sentenced to 6 years and 3 months’ imprisonment was read out at the Plenary of the Grand National Assembly of Turkey. - She was ultimately convicted of the offences of establishing or managing an armed terrorist organisation and disseminating its propaganda while acquitted of the other imputed offences. * The First Detention Order - The applicant’s impugned expressions, which were uttered during a time when intense terrorist events were taking place in one part of the country, namely the trench events, and which were upholding the acts and attacks of the PKK terrorist organisation, were considered by the inferior courts as a strong indication of criminal guilt in connection with terrorism. The inferior courts’ consideration cannot be said to be unfounded. - The grounds relied on to justify the applicant’s first detention had factual basis. Besides, the inferior courts’ assessments that detention was a proportionate measure and the conditional bail would remain insufficient in the applicant’s case were neither arbitrary nor unfounded. - Consequently, the Court found no violation of the right to liberty and security in so far it concerned the first detention order. * The Second Detention Order Issued After the Applicant’s Election as an MP - The parliamentary immunity is a temporary guarantee applied merely during the term of office of an MP, which is enshrined in Article 83 of the Constitution. - There are certain exceptions to the parliamentary immunity: The Parliament may lift the parliamentary immunity of an MP on the allegation that he/she committed an office prior to or subsequent to the elections. Besides, the case of discovery in flagrante delicto, as well as the cases subject to Article 14 of the Constitution (as long as an investigation has been initiated before the election) are exceptions to the parliamentary immunity. - In the applicant’s case, the offence imputed to the applicant, being a head of the terrorist organisation, was considered to fall into the scope of the cases subject to Article 14. - However, Article 14 of the Constitution does not make an exhaustive definition of these cases. Nor has the law-maker made any regulation so as to exactly specify these offences. - The inferior courts in the present case failed to interpret both Articles 83 and 14 of the Constitution in pursuance of democracy and through a rights-based approach. - Therefore, the applicant’s detention ordered for the second time despite her being elected as an MP was incompatible with Article 83 of the Constitution regulating the parliamentary immunity. - Consequently, the Court found a violation of the right to liberty and security in so far it concerned the second detention order. |
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Kübra Yıldız and Others 2018/32734 28 July 2022 (Plenary)
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Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the said right due to the award of an inadequate easement compensation for the instalment of a power line through the applicants’ lands without expropriation, as well as the award of litigation costs and attorney’s fees against the applicants. - A power line was installed through the immovable possessed by the applicants for two times without an expropriation and easement being performed. The applicants brought an action for compensation against the Turkish Electricity Distribution Corporation. - On appeal, the regional court of appeal awarded compensation in favour of the applicants whereas awarded attorney’s fee and litigation costs against them. - The applicants claimed that the easement compensation awarded to them was inadequate and did not correspond to the real amount of the loss in value of their property. - The regional court of appeal failed to provide relevant sufficient grounds to demonstrate that the awarded compensation corresponded to the real amount of the loss in value of the applicants’ property. - Besides, in Article 29 of Law no. 2942 on Expropriation, it is set forth that the litigation costs in the actions for determination of the expropriation amount shall be covered by the administration performing the expropriation. - As a matter of fact, the awarding of the attorney’s fee and litigation costs against the applicants also rendered dysfunctional the compensation awarded in favour of them. - Consequently, the Court found a violation of the right to property. |
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Burcu Demirkaya and Yücel Demirkaya (2) 2020/8844 26 July 2022 (First Section) |
Violation of the substantive and procedural aspect of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right due to the deaths resulting from a train accident. - In 2004, 38 people lost their lives and over 80 people got injured due to the accident during which a passenger train derailed. Among those losing their lives is the applicants’ mother, F.Y.. - Following the accident, a criminal investigation was initiated against the head and assistant drivers and chief conductor of the train. At the end of the proceedings, the drivers were convicted and the chief conductor was acquitted. - At the end of all stages before the inferior courts lasting for approximately 15 years and 5 months, the Court of Cassation ordered the discontinuation of the criminal cases against the drivers for being time-barred. - Making legal and administrative arrangements of deterrent nature against the threats and dangers that may be directed towards the right to life is one of the significant elements of the State’s positive obligation. - In the present case, the competent authorities failed to take the necessary and sufficient measures so as to eliminate any possible risks to the individuals’ lives and physical integrity: violation of the substantive aspect of the right to life. - In the present case, no criminal case was filed against the public officials considered to be at fault for failing to taking the necessary steps and conducting the inspections for the safe drive of the train. Besides, the proceedings conducted with respect to two drivers, whose fault and responsibility were found established by all courts that involved in the proceedings, was discontinued for being time-barred. - The judicial system failed to play a deterrent effect for the prevention of violations of the right to life: violation of the procedural aspect of the right to life. - Consequently, the Court found a violation of the right to life under its substantive and procedural aspect. |
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Zülküf Kılıç 2018/27032 14 September 2022 (First Section) |
Violation of the right to protect and improve one’s corporeal and spiritual existence safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right for being subjected to psychological harassment. - The applicant was an academic at a public university at the relevant time. Between 2011 and 2013, 9 different disciplinary penalties were imposed on him. These disciplinary penalties were revoked either by the Higher Education Council or the inferior courts. He was also subjected to several other attitudes of such nature. - During that period, the applicant was diagnosed to suffer from some psychological disorders. - The applicant brought an action for compensation against those responsible. However, it was dismissed by the incumbent court. - The public authorities should not only reveal the circumstances leading to psychological harassment but also rapidly take the effective measures so as to prevent its occurrence or afford redress. - The inferior court’s decision to dismiss the applicant’s action for compensation did not provide the relevant and sufficient grounds in a way that would entail the safeguards inherent in the right to protect and improve one’s corporeal and spiritual existence and afford redress for the damage sustained by the applicant. - Thus, the public authorities failed to fulfil their positive obligations. - Consequently, the Court found a violation of the right to protect and improve one’s corporeal and spiritual existence. |
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Ali Karakılıç and Others 2019/2549 21 September 2022 (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 afford the necessary protection during the medical intervention with respect to the children who had been wounded during a fire and subsequently lost their lives. - A fire broke out when two siblings were alone at home. Their initial treatment was made at a public hospital. For their further treatment, they had to be transferred to another hospital with appropriate equipment. However, there was no such hospital in the relevant province. - Then, the family ensured the transfer of two siblings to another province where there was a private hospital providing hyperbaric oxygen therapy. - The siblings unfortunately lost their lives. - The applicants then brought a full remedy action against the health-care staff involving in their relatives’ treatment, including the Ministry of Health, maintaining inter alia that their relatives died as they had not been provided with the necessary treatment, as well as the faulty/improper/negligent medical service provided to them and the conditions of their transfer by an ambulance to another province also had a bearing on their death. - The incumbent inferior court obtained an expert report issued by the Forensic Medicine Institute. - It appears that this report found sufficient and relied on by the inferior court indeed makes an assessment merely with respect to one of the siblings and also merely the treatment process conducted in the first province. - Therefore, the relevant public authorities failed to conduct an in-depth, diligent and rapid examination to the extent required by Article 17 of the Constitution. - Consequently, the Court found a violation of the procedural aspect of the right to life. |
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| II. Constitutionality Review | |||
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E.2022/61 8 September 2022 (Plenary) |
Annulment of the first sentence of Article 28 § 1 (a) and the first sentence of Article 32 of Law no. 492 on Fees in so far as it relates to the phrase “actions for compensation which are brought on account of seizure without expropriation and complainant of which is exempted from fee” |
- The contested provisions envisage that as regards the actions for compensation brought due to the seizure without expropriation, the one-fourth of the relative decision fee shall be paid in advance, and the remaining amount shall be paid within one month as from the communication of the decision; and that unless the relevant amounts are paid, the subsequent procedures shall not be performed. - It is inter alia maintained that with respect to actions where the complainant is exempted from fees, the collection of relative fees in advance is not related to any matter of public interest; and that the return of the fee already paid in the same amount and the adjudication of the actions within a long period of time are also in breach of the right to property. - In principle, in the actions for compensation lodged due to the seizure without expropriation, the complainant is to pay the relative decision fee. The exemption of the complainant from fee is not a ground to absolve him from paying the relative decision fee. - In cases where the action is dismissed, the complainant is liable to pay the fixed decision fee. But in cases where the action is accepted partially or wholly, the complainant is entitled to a refund of the complete amount he has already paid. - The contested provisions are sufficiently clear, precise and foreseeable: thus, meeting the legality condition. - The collection of decision fees in every action is intended to prevent the judicial authorities from dealing with unnecessary and unfounded claims: in pursuance of the aim of public interest. - However, the seizure without expropriation, cannot be regarded, in the constitutional context, as a substitute for the expropriation. Therefore, when a person -whose immovable has been seized by the administration in breach of all principles and procedures laid down in the Constitution- brings an action against the administration for being paid the value of his immovable, he must not face with any further liabilities that aggravate the situation. - Consequently, the impugned provisions have been found unconstitutional and thus annulled. |
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E.2021/118 8 September 2022 (Plenary)
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Annulment of Article 193 § 2 of the Code of Criminal Procedure no. 5271, which was added by Article 28 of Law no. 5353 |
- The contested provision envisages that in cases where it is concluded that a decision, other than conviction, will be issued on the basis of the evidence collected, the proceedings may be discontinued without his being heard and in his absentia. - It is maintained that the contested provision enables the issuance of decisions finding no ground to impose a sentence; ordering the application of a security measure; dismissing, or ordering the discontinuation of, the case; and that the decisions finding no ground to impose a sentence or ordering the application of a security measure are decisions issued when it is certainly established that the criminal act or offence has been committed. Therefore, the discontinuation of the proceedings in the absence of the accused is contrary to the right to a fair trial and the presumption of innocence. - The provision aims at concluding the cases with the minimum cost and in a swift manner. It does not make any distinction with respect to the decisions, other than conviction, and makes a regulation covering all types of the decisions. - It should be noted that in order for the decisions finding no ground to impose a sentence or ordering the application of a security measure to be taken, it must be proven that the imputed offence has been committed by the accused. - Therefore, despite not bearing the same consequence with that of the conviction, these two types of decisions also place a legal responsibility on the accused. - Thus, the contested provision, enabling the discontinuation of the proceedings without the accused being heard, places a disproportionate restriction on the right to a fair trial. - Consequently, the impugned provision has been found unconstitutional and thus annulled. |
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Tevfik Ayhan 2019/17968 29 June 2022 (First Section) |
Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the said right due to the imposition, of taxes and fines incurred for the infringement of tax liabilities of a company that was closed down by virtue of a decree-law during the state of emergency, on the legal representative of the company. - The applicant was the chairman of the board of directors of the company under which educational institutions, student dormitories and private teaching institutions were operating. The institutions affiliated to the company were all closed down by Article 2 of the Decree-law no. 667 adopted under the state of emergency. All assets and properties of these institutions were transferred to the State Treasury free of charge. Legal-entity status of the company was also terminated. - The taxes and fines, which were incurred by the company before the date it was closed down, were imposed on the applicant, in his capacity as the legal representative of that company, due to the termination of the legal-entity status of the company. - The actions brought by the applicant against the impugned transaction were partially rejected, and partially concluded in his favour, by the incumbent tax courts. His subsequent appellate requests were rejected with final effect. - The principle of legality of taxation entails that the tax-payer be explicitly indicated in the law. However, there is no statutory provision as to the tax-payer who shall be subject to any taxes and fines to be imposed in case of any infringement of tax-related obligation of a company that has been removed from the trade registry. Nor is there any statutory arrangement indicating that in such case, it shall be the legal representative of the given company who will be subject to such taxes and fines: thus, no legal basis for the imposition of the taxes and fines on the applicant. - In the judicial practice, there was, at the relevant time, a divergence on the matter between the case-law of two chambers of the Council of State. This divergence was then eliminated through a statutory amendment, which enables the imposition, on the company’s legal representative, of any taxes and fines -pertaining to the period before the termination of the legal-entity status- of the companies of which legal-entity status has been terminated on any grounds other than liquidation. - However, this amendment was enacted on 21 Mart 2018 and can in no way be applied to the practices performed before that date pursuant to the rule of law principle. - It has been thus concluded that the impugned interference with the right to property was not based on a law that was sufficiently clear, precise and foreseeable. - Consequently, the Court found a violation of the right to property. |
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Emin Koramaz 2019/1112 29 June 2022 (First Section)
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Violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said freedom due to the imposition of an administrative fine on the applicant on account of his views and opinions published on a web-site. - The applicant, the then chairman of the board of directors of the Union of Chambers of Turkish Engineers and Architects (TMMOB), was subject to an administrative fine due to certain contents published on the TMMOB’s web-site and including views and opinions on the elections. - His challenge to the administrative fine was rejected, with final effect, by the incumbent magistrate judge. -The decision imposing administrative fine on the applicant referred to Article 1/D of the Supreme Election Board’s Resolution no. 109, which sets forth that election propaganda may be disseminated by political parties through press and internet. - The magistrate judge examining the applicant’s challenge provide no further explanation in this respect and confined its assessment to the finding that the administrative sanction imposed on the applicant was compatible with the procedure and the law. - It has been considered that the Resolution no. 109, forming a basis for the impugned administrative fine, concerns the principles and procedures to be followed by the political parties, main actors of elections, and does not contain any restraining provision with respect to any persons and entities other than political parties. - Therefore, the impugned interference was not prescribed by law. - Consequently, the Court found a violation of the freedom of expression. |
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Hasan Mor 2019/20996 25 May 2022 (Second Section) |
Violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said freedom due to the imposition of a disciplinary sanction on the applicant, a lecturer at a university, for discussing political issues during the course. - The applicant, a lecturer at a faculty of law at the relevant time, was subject to a disciplinary sanction as he had breached the pre-determined principles and procedures as to the teaching of the course due to his certain expressions concerning political issues. - The disciplinary sanction, to which the applicant challenged, was initially annulled by the first instance court. However, upon appeal, the regional administrative court revoked the first instance decision and rejected, with final effect, the applicant’s case. - The State has an obligation to abstain from any unnecessary interference with the freedom of expression of those engaging in teaching activities. - In case of any such interference, the State must demonstrate that the impugned measure met a pressing need and was proportionate. - According to the Court, the course of international law is closely associated with political issues, and in this sense, it is extremely difficult to exclude the course from expressions related to politics. However, it should be noted that the close link between international law and politics will not automatically render every comments of political nature as a part of the given course. - In the present case, the applicant’s impugned expressions were not clearly and precisely cited, and the finding that these expressions had been unrelated to the given course was reached on the basis of certain students’ statements which were of highly general nature. - Therefore, the impugned interference was found not to meet an overriding social need and be proportionate. - Consequently, the Court found a violation of the freedom of expression. |
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Cebrail Padak 2019/41543 15 June 2022 (Second Section) |
Violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said freedom due to the imposition of a disciplinary sanction on the applicant for his hanging a banner up, without permission, at the university campus. - The applicant, a university student, was subject to warning, as a disciplinary sanction, by the university administration as he had hanged a banner up without permission. - The disciplinary sanction, to which the applicant challenged, was initially annulled by the first instance court. However, upon appeal by the university, the regional administrative court revoked the first instance decision and rejected, with final effect, the applicant’s case. - The punishment of the students at universities merely on the ground that their conducts in contravention of certain statutory provisions may pose an abstract threat entails a risk of exerting pressure on several constitutional rights and freedoms notably the freedom of expression. - Therefore, in imposing a sanction due to an expression of thought at a university, it should be demonstrated that the impugned expression has caused, to a certain extent, risk or damage under the particular circumstances of the given case. - However, in the present case, the relevant administration and inferior courts confined their examination to the ascertainment of whether the impugned act had been performed by the applicant. No sufficient and relevant justification was provided to demonstrate that the imposition of a disciplinary sanction met a pressing social need. - Therefore, the impugned interference was found to be incompatible with the requirements of a democratic society. - Consequently, the Court found a violation of the freedom of expression. |
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Emrullah Yılmaz 2019/37252 15 June 2022 (Second Section) |
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 for the dismissal of the applicant’s administrative application for the redress of the losses he had incurred due to his inability to make use of his immovable as the alleged damage amounted to a possible loss. - At the district where the applicant’s house was located, a curfew was declared in 2015 by the District Governor’s Office on account of the “trench events” taking place in the region. The curfew was ultimately lifted in 2019. - The applicant applied to the Governor’s Office, seeking the redress, with a reference to Law no. 5233 on Compensation of Losses Resulting from Terrorist Acts and Measures Taken against Terrorism, of the loss of income he had incurred as he could not rent out his house. The Damage Assessment Commission rejected his request as the damage and loss of income underlying his compensation request were in the form of possible damage. His action, dismissed by the incumbent administrative court, was also dismissed, with final effect, by the regional administrative court, upon appeal. - There is no dispute that the applicant could not make use of his immovable during the curfew. The administrative court dismissed the case as the alleged damage was in the form of possible damage and could not be redressed under Law no. 5233. - In the present case, there was in theory an effective remedy whereby the applicant could raise the alleged violation of the right to property and obtain compensation in this respect. - It was then examined whether this remedy available in theory offered a prospect of success also in practice. - The dismissal of the request for compensation does not per se constitute a violation of the right to an effective remedy. The duty incumbent on the relevant administrative and judicial bodies is to deal with the merits of the complaint in question and conclude the process with relevant and sufficient ground. - In the applicant’s case, the compensation remedy provided under Article Law no. 5233 had no prospect of success due to its interpretation by the administrative court in an unforeseeable manner and based on a manifest error of assessment. - Consequently, the Court found a violation of the right to an effective remedy in conjunction with the right to property. |
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Özgür Uyanık and Ruşen Bayar 2020/9524 2020/33709 15 June 2022 (Second Section) |
Violations of the right to legal assistance in conjunction with the right to a fair hearing under the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violations of the right to legal assistance due to the dismissal of the request for retrial filed on the basis of the ECHR’s judgments finding a violation. - The applicants were sentenced to life imprisonment for having attempted to overthrow the constitutional order by force (Özgür Uyanık) and having attempted to separate a certain part of the State’s territory from the State administration. Their sentences became final upon the appellate examination of the Court of Cassation. - The applicants lodged applications with the European Court of Human Rights (ECHR), which found violations of the right to legal assistance under the right to a fair trial in the applicants’ cases. - Their subsequent requests for retrial on the basis of the ECHR’s judgment were dismissed. Their challenges were also rejected by the incumbent court. - It should be examined whether the violations of the right to legal assistance have been eliminated in the applicants’ cases. 1. Application no. 2020/9524 - In the present case, the applicant’s confessions obtained at the investigation stage in the absence of a defence counsel were, inter alia, relied on as evidence in his conviction. - The applicant’s request for retrial was dismissed by the incumbent court following an examination based on the case file. The court ordered the extraction of the applicant’s confessions from the reasoning of the conviction decision and concluded that the remaining evidence was already sufficient to prove the offence. 2. Application no. 2020/33709 - In the present case, in convicting the applicant, the incumbent court made a reference to his statements taken by the police officers at the investigation stage in the absence of a defence counsel. - The applicant’s request for retrial was dismissed by the relevant court following an examination based on the case file. The court ordered the extraction of the applicant’s statements from the reasoning of the conviction decision and stated that there was no need to make a change in the conviction decision. - Accordingly, as regards both cases, the Court has found that the inferior courts’ assessments were not compatible with the ECHR’s judgment and did not involve an examination to the extent required by Article 36 of the Constitution; and that the violations found by the ECHR and also acknowledged by the Government through the unilateral declaration could not be eliminated. - Consequently, the Court found violations of the right to legal assistance in the applicants’ cases. |
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Yeni Gün Haber Ajansı Basın ve Yayıncılık A.Ş. and Others 2016/5903 10 March 2022 (Plenary) |
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 suspension of the applicants’ right to publish official announcements and advertisements for various periods of time. - The applicants, publishers of the relevant national newspapers at the material time, were imposed the sanction whereby their right to publish official announcements and advertisements was suspended for various periods of time. Their challenge to this sanction was rejected. - It is beyond doubt that the impugned sanction amount to an interference with their freedoms of expression and the press. - The Court has concluded that the relevant national authorities should have strictly applied the balancing criteria and considered the impugned interference as a measure of last resort. However, the authorities adjudicated the cases without conducting any such assessment. - It has been further considered that as such decisions imposing a sanction in the absence of any relevant and sufficient grounds had a chilling effect on those concerned, the impugned interference with the freedoms of expression and the press cannot be regarded as proportionate. - Consequently, the Constitutional Court found violations of the freedoms of expression and the press and decided on the application of the pilot judgment procedure so as to solve this systematic problem. |
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Binali Camgöz and Others 2019/36978 26 May 2022 (First Section)
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Violation of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right due to the unnecessary and disproportionate use of force by the law enforcement officers, which resulted in the death of the applicants’ relative, and the denial of permission for investigation into the incident. - On the date of the incident, it was reported to the police that the applicants’ relative, who was 14 years old, had been using drugs in a park. Thereupon, two police officers arriving at the park sprayed pepper gas on the former. Unfortunately, the applicant’s relative affected by the tear gas lost his life at the hospital where he was taken immediately. - The child, being in a vulnerable position, should have been neutralised through less strict intervention means. Hence, the use of tear gas by the police officers amounted to a disproportionate use of force. - The district governorship refused to grant permission for investigation. The applicants unsuccessfully challenged the relevant decision before the regional administrative court. the latter provided no reasons for dismissing the applicants’ claim. - Consequently, the Constitutional Court found violations of both substantive and procedural aspects of the right to life. |
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Şehap Korkmaz and Others 2017/7592 26 May 2022 (First Section) |
Violation of the prohibition of torture safeguarded by Article 17 of the Constitution |
- Alleged violation of the prohibition of torture for a demonstrator’s being battered to death by police officers and civilians. - The applicants are the parents and siblings of Ali İsmail Korkmaz, a university student who had lost his life due to brain haemorrhage during the Gezi Park events that occurred in 2013, as a result of the intervention by the police and a number of civilians. - Recourse to force may be considered legitimate so long as it is inevitable, its limits are definite and it is proportionate. Otherwise, it will amount to ill-treatment. - In the present case, it was acknowledged by the trial court that the accused police officer had committed the offence of intentional injury by abusing the power granted to him by virtue of his public office. However, the pronouncement of the judgment rendered in respect of the accused was suspended. - According to the Court, the provisions governing the criminal sanctions must be proportionate and fair. The principle of proportionality requires the existence of a reasonable relationship between the protection of the victim and the punishment of the perpetrator. - The suspension of the pronouncement of judgment may result in the perpetrators of ill-treatment being completely exempted from punishment. Therefore, such an institution remains incapable of ensuring deterrence in terms of the prevention of similar violations. - The competent authorities should not enjoy their discretion to mitigate the consequences of the act of ill-treatment when determining the imposable sanctions. - The suspension of the pronouncement of judgment may also give the impression that public officials involved in the acts of ill-treatment are tolerated, thus undermining the trust and confidence in the rule of law and justice. - Consequently, the Court found a violation of the prohibition of torture. |
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Deniz Şah (2) 2018/29836 14 April 2022 (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 for the failure to conduct an effective investigation into the alleged exposure to violence by the prison officers. - The applicant, a prisoner, was allegedly subjected to physical violence by the prison officers. Thereupon, he claimed that the footages be examined and a medical report be issued in respect of him. After the prison administration informed the chief public prosecutor’s office that no evidence or findings were reached substantiating the applicant’s allegations, the latter issued a decision of non-prosecution. - Although the chief public prosecutor’s office launched an investigation upon the applicant’s complaint, it failed to take his detailed statements, refused to hear the witnesses and made no efforts to receive a medical report in respect of the applicant. - In addition, the chief public prosecutor’s office did not conduct the investigation by itself, but merely relied on the inquiry conducted by the prison administration, which run counter to the principle entailing the conduct of investigation by impartial and independent authorities. - Thus, the public authorities failed to conduct an effective investigation to clarify the incident. - Consequently, the Court found a violation of the procedural aspect of the prohibition of ill-treatment. |
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Kadri Eroğul 2019/976 11 May 2022 (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 for sharing a post on social media concerning the oppression faced by subcontracted workers and targeting the managers. - The applicant is also the president of an association operating on behalf of subcontracted workers employed in public institutions. In this sense, the applicant may express his opinions, not only in his capacity as a subcontracted worker but also as the president of an association, thus covering also the public issues. - The applicant’s expressions were not targeted at a specific person. - Besides, the Court has many times acknowledged that freedom of expression also covers possible recourse to a degree of exaggeration, or even provocation. Thus, it is unnecessary to depart from the Court’s previous considerations. - The inferior courts failed to provide objective and convincing justifications for termination of the applicant’s employment contract, which constituted an extremely heavy interference that should be the last resort. - Consequently, the Court found a violation of the freedom of expression. |
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Şükran İzgi 2018/32994 25 May 2022 (Second Section) |
Violation of the right to respect for private life safeguarded by Article 20 of the Constitution |
- Alleged violation of the said right for the establishment of a wholesale market for fish and fishery products in the adjacent area. - Pursuant to Article 20 of the Constitution whereby the right to respect for private life is safeguarded, it is incumbent on the public authorities to protect and improve the environment and to take the necessary measures in this regard. - It should be demonstrated on the basis of objective and scientific data that the applicant has reasonable worries in terms of the environmental disturbance. The extent of its effects should also be elaborated. - The applicant’s claim for an environmental impact assessment report to be issued was disregarded by the courts. The latter also failed to make an assessment as to the necessity of such a report despite the statutory provisions. Thus, the applicant’s allegations regarding the environmental disturbance were not dealt with diligently. - Hence, the public authorities failed to fulfil their positive obligations within the scope of the applicant’s right to respect for her private life. - Consequently, the Court found a violation of the right to respect for private life. |
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Bilal Güvendi and Şevket Güvendi 2018/1571 4 July 2022 (Second Section)
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Violation of the right to protect and improve one’s corporeal and spiritual existence safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right for medical negligence. - The first applicant is a baby diagnosed with a congenital disorder who subsequently underwent a medical operation. After the operation, the baby was unable to use his right hand well due to an act of medical malpractice. - The full remedy action brought by the second applicant, the father, against the Ministry of Health for the alleged medical malpractice and gross negligence was dismissed. In consequence of the applicants’ subsequent appeal, the regional administrative court awarded the applicants 50,000 Turkish liras (TRY) for non-pecuniary damages. The applicants’ other claims regarding pecuniary damages were rejected. - Given the inferior court’s findings and considerations that the impugned negligence had occurred due to the administration’s failure to take the necessary measures, the mere award of non-pecuniary damages was not sufficient for redressing the violation and its consequences. - The state failed to fulfil its positive obligations in the present case. - Consequently, the Court found a violation of the right to protect and improve one’s corporeal and spiritual existence. |
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| II. Constitutionality Review | |||
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E.2021/85 and E.2020/94 1 June 2022 (Plenary) |
Annulment of the Presidential decree provisions concerning the Price Stability Committee and the Industrialisation Executive Committee |
- The contested provisions, included in two separate Presidential decrees, regulate procedures and principles regarding the issues such as establishment, duties and powers of the Price Stability Committee and the Industrialisation Executive Committee. - It is claimed that the impugned provisions concern the matters explicitly regulated by law, and that the aforementioned issues shall not be regulated by Presidential decrees. - It is laid down in Article 104 of the Constitution that no Presidential decree shall be issued on the matters which are stipulated in the Constitution to be regulated exclusively by law. - The issues covered by the contested provisions are not among those prescribed by the Constitution to be regulated by Presidential decrees. - Consequently, the contested provisions have been found unconstitutional ratione materiae, and therefore annulled. |
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E.2021/123 1 June 2022 (Plenary) |
Dismissal of the request for annulment of the third sentence of Article 67 § 2 of Highway Traffic Law no. 2918 |
- The contested provision envisages the disqualification from traffic for a term of 60 days in case of steering of the vehicle, intentionally and knowingly in the absence of any necessity, contrary to the turning rules by way of setting the parking brake or through any other methods. - It is maintained inter alia that the sanctions prescribed for this act are not proportionate, and that as the disqualification of the vehicle from traffic precludes its use, the contested provision is also in breach of the right to property. - It is apparent that the relevant unlawful acts and corresponding sanctions are set forth in a clear and precise manner in the contested provision. - The contested provision is intended for ensuring a safer traffic flow by way of precluding the driving of the vehicle contrary to manoeuvre rules. Given the chilling effect of this sanction on the driver breaching the manoeuvre rules shall be disqualified from traffic for 60 days, it has been considered that the contested provision is suitable and necessary for the aim sought to be attained. - It has been also concluded that the sanction laid down in the provision is proportionate as the balance needed to be struck between the interest pursued –that is to say, the decrease in life losses and in the loss to the country’s economy by way of ensuring traffic safety and reducing traffic accidents– and the nature and gravity of the sanctions prescribed in the contested provision. - Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed. |
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E.2022/62 20 July 2022 (Plenary)
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Annulment of certain notions included in the second sentence of amended subparagraph 6 of Article 13/A of Law no. 2803 on the Organization, Duties and Powers of the Gendarmerie |
- The contested provision envisages that the academics and the military staff at the Gendarmerie General Command and Coast Guard Command be subject to the same statutory regulations in terms of disciplinary affairs. - It is maintained that the contested provision is unconstitutional as the disciplinary provisions applied with respect to the military staff would not be applicable in respect of academics as the positions held by these persons are of different nature. - The contested provision enables the application of the disciplinary provisions embodied in Law no. 657 on Civil Servants also with respect to the civilian academics holding office at the Academies of Gendarmerie General Command and Coast Guard Command. - However, as the acts laid down in the contested provision address the military staff serving at the Security Command organisations as well as the civil servants, some of these acts are not in keeping with the scope and nature of the profession of academics both in terms of the content as well as the notions and wording thereof. - It is clearly uncertain how the contested provision intended to apply with respect to military officers, who serve under working conditions based on hierarchy and with definite boundaries, will be applied with respect to the civilian academics, who are regulated in the Constitution under a separate heading by the very nature of their profession and considered to be in a different position in view of the autonomy in science. - Accordingly, rendering the academics and military staff at the Gendarmerie General Command and Coast Guard Command subject to the same statutory regulations in terms of disciplinary affairs is found to fall foul of the autonomy in science, principle enshrined in the Constitution for higher education institution. - Consequently, the contested provision has been found unconstitutional and thus annulled in so far as it relates to the notions “…discipline…” and “…and…”. |
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E.2022/48 20 July 2022 (Plenary) |
Annulment of the provisions envisaging that the decision rendered by the regional administrative courts dismissing the appellate request due to the statute of limitation shall be final. |
- The contested provisions envisage that in case of a failure to submit an appellate request within the statutory time limit, the decision rendered by the regional administrative courts dismissing the appellate request shall be final. - It is claimed that denial to examine the case file may result in a situation whereby the applicant is deprived of the chance to submit his reasonable claims and evidence to justify the impugned delay, such as the irregularities within the communication process or force majeure. - In cases where a decision on fundamental rights and freedoms is rendered by the highest court having jurisdiction in the relevant branch of judiciary, the inability to appeal it may not constitute a constitutional matter in terms of the right to an effective remedy. However, if the said decision is not rendered by the highest court, the lack of an effective remedy to challenge it shall not be put into this category. - Otherwise, the individuals would be imposed an excessive burden on account of the restriction on their right of access to a court. - Hence, the contested provisions hinder the legal remedies to challenge the decisions which have not been rendered by the highest court operating in the relevant branch of judiciary (Council of State). Thus, they fall foul of the right to an effective remedy, safeguarded by Article 40 of the Constitution, in conjunction with the right of access to a court safeguarded by Article 36 thereof. - Consequently, the contested provisions have been found unconstitutional, and therefore annulled. |
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Hüseyin El and Nazlı Şirin El 2014/15345 7 April 2022 (Plenary) |
Violation of the parents’ right to respect for their religious and philosophical beliefs in education and training safeguarded by Article 24 of the Constitution |
- Alleged violation of the said right due to the lack of an opportunity for an exemption from attendance at religious culture and ethics classes. - The applicant (Hüseyin El) requested the exemption of her daughter (Nazlı Şirin El), a student at the 4th grade of a primary school at the relevant time, from attendance at religious culture and ethics classes, which was, however, rejected by the school with reference to the relevant letter issued by the Ministry of National Education, Directorate General for Primary Education. - The applicant, having the word “Islam” removed from their identity cards, brought an action for the stay of execution of the rejection of his request. However, his action was ultimately dismissed. - The Court confined its assessment in this case to the curriculum of religious culture and ethics classes, which came into effect in 2011-2012 school year and thus in force when the applicant’s daughter was studying at primary and secondary schools, as well as which was also dealt with by the ECHR in its judgment Mansur Yalçın and Others v. Türkiye. - In this sense, the Court noted that until the 2018-2019 school year, the Turkish educational system had not offered the parents an opportunity for the exemption of their children from religious culture and ethics classes or an alternative in this sense. - Consequently, the curriculum of religious culture and ethics classes until the 2018-2019 school year was found to be in keeping with the standards of the mandatory religious culture and ethics classes, which should include impartial and introductory information on religions, but to go beyond the extent of the teaching of religious culture and amount to the teaching of merely the Islamic religion and a specific interpretation thereof. - Besides, the educational system did not, at the relevant time, offer any appropriate alternatives for the applicant, who did not wish her daughter to attend at the religious culture and ethics classes. - Consequently, the Constitutional Court found a violation of the applicant’s right to respect for religious and philosophical beliefs in education and training. |
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Seyid Narin 2018/20156 18 May 2022 (Plenary)
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No violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said freedom due to conviction of membership of a terrorist organisation for attending a press release as an audience. - The applicant, a mayor, had attended a press release announcing the self-governance of a terrorist organisation, namely PKK. Besides, the relevant statement had been issued during a period when the clashes between the security forces and PKK had accelerated. The violent acts also increased immediately after the press release, which resulted in the death of many security forces and civilians. - In view of all the considerations, it was found established that the impugned press release had incited to violence. - Although the applicant, as a politician, should have considered that his participation in the press release would increase the impact of it on the society, he acted in accordance with the instructions of a terrorist organisation. -Thus, the applicant had attended and supported the press release even though he was aware of the results of the press release that clearly defended the terrorist organisation’s methods containing force, violence or threats. - Accordingly, the applicant’s conviction served a pressing social need as well as being proportionate, and it complied with the requirements of a democratic social order. - Consequently, the Court found no violation of the freedom of expression. |
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Samet Çelikçapa 2018/14878 26 May 2022 (First Section) |
Violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said freedom due to the imposition of a disciplinary sanction on the applicant for his expressions in the petition he submitted to the administration. - The applicant, a public officer who had been temporarily assigned to the relevant district security directorate, submitted a petition to the governor’s office, seeking compensation for pecuniary and non-pecuniary damages that he had sustained due to his temporary assignment. - He was then subject to a disciplinary sanction by the administration due to his certain expressions in the petition. His action for the revocation of the disciplinary sanction and subsequent appellate requests were all rejected. - The Court considered whether the expressions used in, and the wording of, the impugned petition had impaired institutional discipline. - The applicant used the impugned expressions merely in support of his compensation claim. Besides, he used these expressions only in the petition and did not make public them. - The disciplinary sanction was not found to be necessary in a democratic society. - Consequently, the Constitutional Court found a violation of the freedom of expression. |
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Abdulcebbar Tekin and Others 2018/561 14 April 2022 (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 disciplinary sanctions imposed on the applicants who had explained the significance of native language during the course upon the call of their trade union. - The applicants, who were a teacher, attended the activity of “discussing a subject so as to stress the meaning and significance of native language during the course” in line with the decision taken by the relevant trade union of which they were a member. - They were then imposed disciplinary sanctions under the Civil Servants Law as the impugned activity could not be regarded as part of trade-union activity but amounted to a protest of educational activities. - They brought actions for the revocation of the disciplinary sanctions; however, their actions were dismissed with final effect at the appellate stage. - As is the case for the other public officials, teachers are free to express their thoughts and opinions. However, by the very nature of their duty, they are capable of influencing minors and directly transferring information to them. - Therefore, States set, through a curriculum designated for the educational policies, a framework regarding the information, understanding and thoughts to be conveyed to the students. - In the present case, the applicants discussed an issue, which was not indeed included in the curriculum, in breach of the policies and principles adopted by the State in this field. - Moreover, the disciplinary sanctions imposed on them did not impede or make difficult, to a significant extent, the applicants’ participation in democracy and right to freely express their opinions. - Consequently, the Constitutional Court found no violation of the freedom of expression. |
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İlknur Uyan 2019/14617 14 April 2022 (Second Section) |
Violation of the right to education safeguarded by Article 42 of the Constitution |
- Alleged violation of the said right for suspension from school as a disciplinary sanction for using expressions tarnishing the honour and reputation of the rector. - The degree of the admissible interference with students’ freedom of expression shall be less as the degree of education increases. Therefore, the applicant, a university student, should be subject to less interference in terms of her freedom of expression. - In universities, which are considered as the cradle of free thoughts and critical minds, more tolerance should be shown to university students who have different ideas. Such thoughts should enjoy the strict protection of freedom of expression. - Social and political pluralism shall be ensured through the peaceful and free expression of ideas. - It should be borne in mind that the limits of the acceptable criticism raised against public authorities are much wider than those of private individuals. - Public authorities may use different means to respond and react to criticisms directed at them, such as refuting the allegations against them, providing correct information in challenge of the expressions they consider to be incorrect, and submitting counter evidence to defend themselves. - The Court, in its many judgments, has affirmed that offensive expressions against state officials or a part of society are among the requirements of pluralism, tolerance and open-mindedness, which are essential for a democratic society. - It should be acknowledged that freedom of expression should be interpreted broadly, allowing for, to a certain extent, exaggeration and even incitement. - In the present case, the trial courts failed to provide relevant and sufficient reasons to justify the interference with the applicant’s right to education. - Consequently, the Court found a violation of the right to education. |
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| II. Constitutionality Review | |||
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E.2021/119 21 April 2022 (Plenary) |
Annulment of Article 58 § 5 of Law no. 6183 on the Collection of Debts due to the State |
- The contested provision envisages that in cases where the debtor raises an objection to his debt to the State and his objection is rejected, the amount of debt in question shall be collected plus an additional 10%. - It is maintained inter alia that the contested provision placed an excessive burden on the debtors, which constituted a disproportionate interference with the right to legal remedies. - As the contested provision clearly and precisely sets the necessary framework regarding the collection of public debts, it is found to be sufficiently precise, accessible and foreseeable, thus meeting the lawfulness requirement. - It is inferred that the contested provision is intended for preventing the procrastination of the collection of public debts by way of making difficult to bring unjustifiable actions. - However, unless a decision ordering the stay of execution is issued, to bring an action against a payment order will not cease the collection processes: therefore, such an action does not indeed have a delaying and impeding effect on the collection of public debts. - Therefore, the contested provision is not appropriate to attain the purpose of preventing any procrastination in the collection of public debts. - It thus imposes a disproportionate restriction on the right to property as well as the right to legal remedies. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
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E.2021/19 21 April 2022 (Plenary) |
Annulment of Article 1 of Law no. 221 on the Real Estates Allocated for Public Service by the Public Legal Persons or Institutions, as well as of the remaining relevant provisions |
- The contested Articles 1 and 2 of Law no. 221 envisage that the private immovable properties, on which certain facilities and structures were built and thus allocated to public service before 9 October 1956 but which were not subject to any legal process for the purpose of expropriation, shall be deemed to have been expropriated ex lege, without seeking any further requirement. - It was maintained that the de facto allocation of private properties to public services would not set aside the right to property, and that the de facto allocation process amounted to the seizure of an immovable property without completion of expropriation procedures. - In the Turkish legal system, the administrations may make use of the immovable properties in private ownership, which are necessary for the performance of public services, by way of expropriation. However, this process, which terminates the individuals’ right to property unilaterally, must be constitutional and thus comply with the principles set forth in Article 46 of the Constitution. - The contested provisions are found to pursue a legitimate aim in the constitutional context. - It has been, however, observed that the property owners are enabled to claim the value of their immovable property within 2 years as from 13 January 1961 the effective date of the Law; and that the value that the owner may claim is designated as the market value of the immovable property at the time when it was allocated to public services, that is to say, corresponding to a date prior to 9 October 1956. - Therefore, the contested provision, Article 1, fails to meet the necessary constitutional requirements. - Consequently, the contested provision has been found unconstitutional and thus annulled. - The remaining provisions, which could no longer be applicable due to the annulment of Article 1, have been automatically annulled without being subject to constitutionality review. |
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E.2021/128 1 June 2022 (Plenary)
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Dismissal of the request for annulment of the provision setting the oil sales price |
- The contested provision, Article 10 of the Petroleum Market Law no. 5015, envisages that the oil sales price shall be determined on the basis of transportation costs, tolls and the quality of the crude oil. - It is argued that the factors envisaged for determining the oil sales price has caused an increase in costs, that such issues which should be freely agreed between the contracting parties have been determined by law, and that therefore, the balance of interests between the parties has been upset in favour of the producer and to the detriment of the refinery. - The contested provision aims at ensuring the sound and proper functioning of the oil market as well as supporting domestic production. Thus, the impugned restriction on the right to property and freedom of contract pursues a legitimate aim, and is proportionate. - A fair balance has been struck between the public interest and the right to property and freedom of contract. - Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed. |
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E.2022/43 21 June 2022 (Plenary) |
Annulment of the provision stipulating that the reasons for termination of the contracts of family physicians and family health professionals shall be set forth by a regulation |
- The contested provision stipulates that the reasons for termination of the contracts of family physicians and family health professionals shall be set forth by a regulation to be issued by the President. - It is claimed that family physicians and family health professionals have the status of public officials; therefore, their rights and obligations should be regulated by law, and the details relating thereto should be laid down in a regulation. However, according to the contested provision, all the issues shall be set forth by a regulation, which is unconstitutional. - The provision does not provide a clear and certain information on which acts of those concerned will result in the termination of their contracts. Hence, it is not certain, accessible or foreseeable, and therefore, fails to comply with the lawfulness requirement within the scope of Articles 70 and 49 of the Constitution. - As for the examination from the standpoint of the principle of nondelegation of legislative power enshrined in Article 7 of the Constitution, it has been observed that the contested provision, containing no general principles, granted the executive an unlimited, indefinite and wide regulatory power. Thus, it also falls foul of the aforementioned principle. - Consequently, the contested provision has been found unconstitutional, and thus annulled. The relevant decision will be effective after nine months as from the date of its publication in the Official Gazette. |
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E.2021/127 30 June 2022 (Plenary) |
Annulment of the provisions stipulating that the decisions rendered in cases of confiscation without expropriation shall not be executed, unless they are finalised. |
- The contested provision stipulates that the decisions delivered in cases regarding price and compensation which have been brought by the right holders due to confiscation without expropriation shall not be executed, unless they are finalised. - It is argued that the requirement that the decisions shall be final in order for them to be executed results in a delay in the collection of receivables, imposes an excessive burden on the owner, is not proportionate, and upsets the fair balance to be struck between the public interest and the individual interest to the detriment of the owner. - The impugned requirement delays and obstructs the redress of the damages sustained by the right holders due to unlawful transactions. The delay in the payment of receivables and compensation to the owners, whose property rights have already been unlawfully interfered with, imposes an excessive burden on them. - The failure to strike the fair balance between public interest and individual interest causes a disproportionate limitation on the right to property and the right to a fair trial. - Consequently, the contested provisions have been found unconstitutional and thus annulled. |
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E.2022/22 20 July 2022 (Plenary)
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Annulment of Provisional Article 30 § 1 added to Law no. 4046 on Privatisation Practices by Article 1 of Law no. 7350, as well as of the remaining relevant provisions |
- The contested Provisional Article envisages that the contract term of the harbours that have been subject to privatisation for a period not longer than 49 years shall be extended without a tender. - It was maintained that the extension of contract terms without a tender would cause economic damage to the State and deprive the other persons, who are not already a party to these contracts, of the opportunity to participate in a tender and enter into a contract. - The contested provision falls foul of the principles of free competition and equality. - It has been thus found to place a disproportionate restriction on the freedom of contract. - Consequently, the contested provision has been found unconstitutional and thus annulled. - The remaining provisions, which could no longer be applicable due to the annulment of the Provisional Article, have been automatically annulled without being subject to constitutionality review. |
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Nevriye Kuruç 2021/58970 5 July 2022 (Plenary) |
Violations of the right to a trial within a reasonable time and right to an effective remedy, respectively safeguarded by Articles 36 and 40 of the Constitution (Pilot Judgment) |
- Alleged violations of the right to a trial within a reasonable time for the lengthy proceedings regarding the personal action brought by the applicant based on her labour contract, and of the right to an effective legal remedy for the lack of an effective legal remedy enabling her to challenge the allegedly unreasonable length of the proceedings. 1. Alleged violation of the right to a trial within a reasonable time - In consideration of the criteria such as the complexity of the case, the difficulty in collecting the evidence and the number of parties involved in the proceedings, it has been concluded that the case has not been of a complex nature. Thus, the length of the proceedings which lasted more than 7 years has not been reasonable. - Hence, the Court found a violation of the right to a trial within a reasonable time. 2. Alleged violation of the right to an effective legal remedy - Right to an effective legal remedy guaranteed under Article 40 of the Constitution does not afford an independent protection and is one of the complementary rights safeguarding the exercise of the fundamental rights and freedoms as well as the legal remedies. In the present case, the impugned right is taken in conjunction with the right to a trial within a reasonable time safeguarded by Article 36 of the Constitution. - A legal remedy to be available under Article 40 should, in both theory and practice, be capable of preventing the violation, ending the violation if it continues, and affording a reasonable redress for the violation ended. - It is requisite that in order for redressing the damages caused by the violation, an appropriate remedy of redress should be put into practice. - Given the number of applications received and the violation judgments rendered by the Court, it has been concluded that there has been a structural problem leading to the violation of the right to a trial within a reasonable time. In order for redressing the damages that may arise due to the violation of the right to a trial within a reasonable time, in spite of all the measures taken to overcome this structural problem, an effective legal remedy to be exhausted before lodging an individual application should established, pursuant to Article 40 of the Constitution. - Thus, a copy of the judgment would be sent to the Grand National Assembly of Turkey for resolution of the impugned problem. - It has been concluded that the examination of the applications concerning the alleged violation of the right to a trial within a reasonable time be suspended for four months from the publication of the judgment in the Official Gazette. - Consequently, the Court found a violation of the right to an effective legal remedy and ordered that the pilot judgment procedure would be initiated. |
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Özcan Zengin 2020/4244 23 February 2022 (Second Section)
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No violation of the right to education safeguarded by Article 42 of the Constitution |
- Alleged violation of the said right for denial of the request for equivalence of a bachelor's degree obtained from a university abroad and recognized by the Council of Higher Education. - The Council of Higher Education concluded that the period when the applicant stayed in the country where he graduated from the faculty of law, which was 69 days, was insufficient in terms of being considered to have studied law. - The program attended by the applicant was a formal education program, and it is stipulated in the applicable Regulation that the passports used during the education may be requested. Therefore, the relevant statutory regulation was foreseeable. - It has been concluded that the denial of the applicant’s request was proportionate. The grounds relied on by the inferior court were relevant and sufficient for the interference with the applicant’s right to education. - Consequently, the Court found no violation of the right to education. |
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| II. Constitutionality Review | |||
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E.2022/3 (Miscellaneous) 1 June 2022 (Plenary) |
Review of the request for stopping the use of the expression “nation (millet)” that is included in a political party’s name by an alliance of political parties |
- It is claimed that the use of the expression “nation (millet)” included in the name of a political party, called the Nation Party (Millet Partisi), also by an alliance of political parties, has caused misunderstandings and confusion among the people. For fear of misleading the voters, it is requested that the use of the relevant expression by the alliance not be allowed. - It is set forth in the Law no. 2820 on Political Parties that the name of a political party as listed in its record file shall not be used by another political party; however, it may be used in a way not leading to any confusion. - Besides, pursuant to the applicable statutory provisions, if the political parties that decide to participate in the elections by forming an alliance determine an alliance title within seven days at the latest before the election, then their title shall be legally valid. - Since there has not been an election process yet, as well as the title of “Nation Alliance” does not exist in legal terms, the present application cannot be examined. - Consequently, the Court has concluded that there has been no ground for a decision. |
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E.2022/19 1 June 2022 (Plenary) |
Annulment of the provision hindering the payment of attorney fee to the personnel covered by Decree-law no. 375 |
- The contested provision stipulates that the personnel covered by Decree-law no. 375 shall not receive attorney fee. - It is claimed that the provision includes a regulation concerning financial rights, and that therefore, it does not fall within the scope of the empowering act and is contrary to the repealed Article 91 of the Constitution. - Decree-laws must comply with both the empowering act on which they are based and the Constitution, by their subject, purpose, scope and principles. - The impugned provision cannot be regarded to fall within the scope of the power to issue decree-laws under the repealed Article 91 of the Constitution. - Consequently, the contested provision has been found unconstitutional, and therefore annulled. |
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E.2021/42 21 April 2022 (Plenary) |
Annulment of the provision entailing a favourable result of the security clearance investigation for recruitment as a private security guard |
- The contested provision stipulates that the security clearance investigation to be conducted in respect of those willing to be a private security guard shall be concluded in a favourable manner. - The contested provision is claimed to be unconstitutional in that certain issues related to the security investigation process as well as the basic principles and the guarantees to be provided as regards the processing of the collected data are not stipulated by law, but rather set forth in a regulation. - It contains no specific information on such issues as the type and extent of the data to be collected, the manner in which it shall be processed, and the authorities to conduct the relevant processes. - It is laid down in Article 20 of the Constitution that personal data can be processed only in cases envisaged by law or by the person’s explicit consent. It is also prescribed by Article 13 thereof that fundamental rights and freedoms may be restricted only by law. In accordance with these constitutional provisions, a statutory regulation on the limitation of the right to protection of personal data shall not exist only in form, but it shall also be clear, assessible and foreseeable, avoiding any arbitrariness. - The lack of a provision containing the guarantees and basic principles regarding the collection, use and processing of the personal data obtained as a result of security clearance investigation runs counter to Articles 13 and 20 of the Constitution. - Consequently, the contested provision has been found unconstitutional and therefore annulled. |
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E.2022/13 1 June 2022 (Plenary)
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Annulment of the provision obligating the owner of the vehicle to reimburse the total of administrative fines in case of a failure to identify the shipper |
- It is stipulated in the contested provision that in cases where the maximum load capacity for vehicles is exceeded, the total of the administrative fines to be imposed on the owner of the vehicle and the shipper respectively shall be collected from the owner. - It is claimed that the provision is in breach of the principle of not to be tried or punished twice for the same offence (ne bis in idem) and upsets the fair balance to be struck between the public interest and the individual’s rights and freedoms, thus also falling foul of the principle of proportionality. - Pursuant to Article 38 § 7 of the Constitution, criminal liability shall be personal. Therefore, no one shall be punished for an act not committed by himself. - Hence, the provision does not comply with the principle of personality of criminal liability. - Consequently, the contested provision has been found unconstitutional and therefore annulled. |
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E.2022/14 1 June 2022 (Plenary) |
Annulment of the provision stipulating that the stay of execution shall not be ordered in tax refund cases unless a certain amount is deposited as security |
- The contested provision stipulates that the stay of execution shall not be granted in tax refund cases unless 50% of the actual tax amount in dispute is deposited as security. - The provision is claimed to be unconstitutional since it eliminates the discretionary power vested upon the courts, and it also deprives those who are unable to afford such a deposit of the opportunity to benefit from a stay of execution, which is in breach of the right to legal remedies. - It is set forth in Article 125 § 1 of the Constitution that recourse to judicial review shall be available against all acts of the administration. Otherwise, an effective judicial review would be at stake. - Stay of execution is an institution that is not only a constituent element of the right to legal remedies as a means promoting the effectiveness of judicial review, but it also ensures the public interest and public order. - It is further indicated in Article 125 § 5 of the Constitution that “a justified decision regarding the stay of execution of an administrative act may be issued, should its implementation result in damages which are difficult or impossible to compensate for and, at the same time, the act is clearly unlawful”. - In cases where the claimant cannot afford to deposit 50% of the actual tax amount as security, and thus being deprived of the opportunity to avail of a stay of execution, the notion “… should its implementation result in damages which are difficult or impossible to compensate for …” would be rendered ineffective. - Obviously, the contested provision impairs the effectiveness of the institution of stay of execution. - Consequently, the contested provision has been found unconstitutional, and therefore annulled. |
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E.2022/15 1 June 2022 (Plenary) |
Dismissal of the request for annulment of the provisions stipulating that the spouse of the employer, who works unpaid in the latter’s workplace, shall not be insured |
- It is set forth in the contested provisions that the spouse of the employer, who works unpaid in the latter’s workplace, shall not be covered by an insurance policy. - It is argued that while another person working unpaid is entitled to insurance, the spouse of the employer working unpaid is not entitled to it, which allegedly constitutes an inequal treatment. - In the Court’s view, the impugned provisions are clear, assessible and foreseeable, which therefore avoid any arbitrariness. - No grounds for restriction are laid down in Article 60 of the Constitution regarding the right to social security. However, it should necessarily be accepted that restrictions may be inherent in any right by its very nature. - Pursuant to Article 185 of the Turkish Civil Code no. 4721, those married have to, inter alia, live together and help each other. From this standpoint, a person’s working unpaid in her/his spouse’s workplace may be regarded as an aspect of the obligation to help each other within the union of marriage. Therefore, there is a reasonable ground for the difference in treatment vis a vis the other unpaid employees. - On the other hand, the spouse working unpaid may be subject to voluntary insurance, thereby receiving health benefits. In this sense, the contested provisions are proportionate. - Consequently, the impugned provisions have been found constitutional, and therefore, the request for their annulment has been dismissed. |
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E.2022/7 21 June 2022 (Plenary)
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Annulment of the provision prescribing 10 years for retrial, in so far as it relates to the finalised violation judgments of the ECHR |
- The contested provision envisages that regardless of whether the retrial has been ordered on the basis of the European Court of Human Right’s finalised violation judgment, the time-limit prescribed for retrial shall not exceed 10 years starting from the finalisation of the judgment subject to the request for a retrial. - The impugned provision is claimed to be unconstitutional for infringing upon the right to a fair trial, since the grounds for retrial such as the ECHR’s violation judgment vis a vis the other grounds should be separated. It is further maintained that the ground for retrial based on the ECHR’s violation judgment is aware of on the relevant date, while the other grounds are already available during the domestic proceedings. Thus, the applicability of 10-year time limit in both cases is not fair. - Effective protection of fundamental rights and freedoms enshrined in the European Convention on Human Rights is conditional upon, inter alia, the duly execution of the violation judgments rendered by the ECHR. In cases of a violation found by the ECHR, the aim is to redress the violation and its consequences and restore the situation prevailing prior to the breach. In this sense, one of the means for restoration is retrial. - In consideration of the fact that the time-limit prescribed in the impugned provision may be exceeded due to the reasons beyond the relevant authorities’ control, such as the - Consequently, the contested provision has been found unconstitutional, and therefore annulled. |
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Müyesser Uğur 2020/18546 7 April 2022 (Plenary) |
No violations of the right to personal liberty and security safeguarded by Article 19 of the Constitution and the freedoms of expression and the press safeguarded respectively by Articles 26 and 28 thereof |
- Alleged violation of the said right and freedoms due to the applicant’s detention on remand. - The applicant, a journalist, was found to be in touch with a military officer who provided the former with certain classified information about the State’s security and political interests, as well as to subsequently make public such information. - The applicant was then detained on remand not for obtaining such classified information but for disclosing it. - She was then sentenced, for the acquisition of classified information, to imprisonment of one year, one month and ten days -which was suspended- and also to imprisonment of two years and six months for the disclosure of such information. - She was not detained on remand for her acquisition of the classified information. - The applicant is an experienced journalist writing articles regarding the Turkish Armed Forces. Therefore, she is in a position to realise that the information obtained by her was confidential and that the acquisition or disclosure of such information will lead to imposition of a criminal sanction under the Turkish Criminal Code no. 5237. - The information obtained and disclosed by the applicant might pose a threat to national security, which overrides the values inherent in the freedom of the press: her detention was found proportionate. - There was plausible evidence that she had committed the imputed offences. - Consequently, the Constitutional Court found no violations of the right to personal liberty and security, as well as of the freedoms of expression and the press. |
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A.S. 2018/31431 3 March 2022 (First Section)
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- 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 refusal of the applicant’s request for acquiring Turkish citizenship. - The applicant, a foreign national, applied to the Ministry of Internal Affairs (“Administration”) for acquiring Turkish citizenship. It was however dismissed by the Administration in line with the investigation report issued by the Provincial Security Directorate, stating that the applicant’s life style was not in keeping with the Turkish customary rules. - The applicant’s action for annulment of the refusal was dismissed by the administrative court. His subsequent appeal was also dismissed before the Regional Administrative Court. - The statutory condition of not committing any act offending good morals, which is among the requirements to be fulfilled for becoming a Turkish citizen, is of an abstract nature and must be therefore assessed under the particular circumstances of a given case. - The investigation report issued regarding the applicant referred to his extramarital affair with a married Turkish woman for 13 years, which was found -by the relevant judicial authorities- contrary to the national and moral values of the Turkish society. - The relevant authorities only took into consideration the applicant’s extramarital affair but failed to inquire whether he had performed any act disturbing the public order. - The interference with the applicant’s right to respect for private life lacked relevant and sufficient justification and was contrary to the requirements of a democratic society. - Consequently, the Constitutional Court found a violation of the right to respect for private life. |
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Nihat Hançeroğlu 2018/17821 10 May 2022 (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 lack of a holistic environmental assessment regarding a hydroelectric power plant project. - Upon the request of a company engaging in electricity generation for the conduct of an environmental impact assessment (EIA) concerning a regulator and hydroelectric power plant, the Ministry of Environment and Urbanisation (Administration) issued an EIA-favourable decision. - The applicant brought an action for annulment of, inter alia, the EIA-favourable decision and certain administrative acts regarding the project. However, the incumbent administrative court did not annul the EIA-favourable decision while ordering the annulment of certain administrative acts. The applicant’s appeal was also dismissed by the Council of State. - He maintained that the pond planned to be built was not cited in the EIA-report, which was not also addressed by the inferior courts. - EIA is intended to preserve environment and environmental assets. It offers options as to a given project to be implemented and demonstrates the favourable and unfavourable aspects thereof so as to ensure the decision-makers to give a sound and reasonable decision in this sense. - The applicant’s substantial allegations were disregarded by the inferior courts. - Public authorities’ failures to handle the disputed matter with due diligence, to make an assessment as to the public and individual interests in the light of the particular circumstances of the present case, and to fulfil their positive obligations inherent in the right to respect for private life. - Consequently, the Constitutional Court found a violation of the right to respect for private life. |
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E.2022/10 1 June 2022 (Plenary) |
Annulment of the phrases “…warning…” and “…and to perform additional service” in the amended Article 1 of the Turkish Armed Forces Disciplinary Law no. 6413 |
- The contested provisions envisage that no action for annulment may be filed against the disciplinary sanctions, namely warning and performing additional services, which are imposed on military officers. - It is maintained that the exclusion from judicial review of these disciplinary sanctions, which may give rise to the termination of the contracts of the relevant military officers, was contrary to the rule of law principle, the right to legal remedies, as well as to the principles that administrative acts cannot be excluded from judicial review and that an effective remedy must be provided against disciplinary sanctions through judicial review. - It is set forth in Article 129 §§ 3 and 4 of the Constitution that disciplinary decisions shall not be exempt from judicial review, and that provisions concerning the members of the armed forces, judges and prosecutors are reserved. - It is concluded that the contested provisions are intended for instilling and maintaining discipline in the Turkish Armed Forces: they pursue a legitimate aim. - They are found both appropriate and necessary for attaining the pursued aim of instilling and maintaining discipline as they will increase the efficiency of the disciplinary sanctions. - Although there is no obstacle to bringing a legal action against the dismissal from Turkish Armed Forces or the termination of contract, which may result from such disciplinary sanctions, this judicial review indeed becomes a formality. - It has been therefore concluded that the contested provisions place an excessive burden on the military officers and upset the fair balance required to be struck between the public interest of instilling and maintaining discipline and the right to legal remedies. - Consequently, the Constitutional Court annulled the contested provisions for being unconstitutional. |
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Hicret Aksoy 2021/2107 13 April 2022 (First Section) |
Violation of the right to compensation safeguarded by Article 19 § 9 of the Constitution in conjunction with Article 19 § 3 thereof. |
- Alleged violation of the right to personal liberty and security due to insufficient amount of compensation awarded to the applicant for her unjust custody and detention. - The applicant’s husband was taken into custody and subsequently detained on remand within the scope of the investigations conducted against the Fetullahist Terrorist Organisation / Parallel State Structure (FETÖ/PDY). Upon the order for a home search and the seizure of digital materials of the households, the applicant’s cell phone and SIM card were seized. - An investigation was then initiated against the applicant for having allegedly downloaded and used ByLock application. Her placement in custody was ordered for 7 days. - Although she contested the order as she had a 14-month baby in need of her care, her continued placement in custody was ordered. - The applicant was detained on remand for her membership of the said terrorist organisation. She unsuccessfully challenged her detention. - At the end of the proceedings, she was acquitted of the imputed offence. Upon the finalisation of her acquittal, she brought an action for pecuniary and non-pecuniary compensation due to her unjust placement in custody and detention as well as the seizure of her digital materials. - The applicant finding the awarded amounts insufficient filed an appeal, which was dismissed on the merits with final effect. - The applicant’s placement in custody and her detention ordered within the scope of a criminal investigation had a legal basis. - The Court has on many occasions acknowledged that the download and use of ByLock application could be considered, by investigation authorities, as a strong indication of criminal guilt. - Given the characteristics of the said terrorist organisation, it is apparent that the impugned investigation was more complicated than the other criminal investigations: the applicant’s placement in custody pursued a legitimate aim in constitutional terms. - The applicant’s statements that she had a baby in need of her care and as her husband was detained on remand, there was no other person to whom she could entrust her baby were not taken into consideration: her placement in custody was therefore disproportionate. - Despite the unlawfulness of her placement in custody and detention, the inferior court failed to award an appropriate amount in compensation for the pecuniary and non-pecuniary damage she had sustained. - Consequently, the Court found a violation of the right to compensation in conjunction with the right to personal liberty and security. |
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Nazila Adıgozalzade and Ferid Adıgozalzade 2019/8334 16 March 2022 (Second Section)
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Violation of the prohibition of discrimination safeguarded by Article 10 of the Constitution in conjunction with the right to property safeguarded by Article 35 thereof |
- Alleged violation of the said right due to the applicants’ inability to receive severance payment for being subject to different treatment on the basis of their nationality. - The applicants, citizens of Azerbaijan Republic, started to hold office at a university as a foreign non-tenured lecturer in 1996 and 1992 respectively. However, their contracts were terminated in 2017 as there was no longer any need for their service. - The university did not make any severance payment to the applicants. Upon the actions brought by the applicants, the administrative courts awarded them severance payment. - Upon appeal by the relevant university, the regional administrative court dismissed the applicants’ actions as the decree of the Council of Ministers no. 83/7148 -where the monetary issues regarding these lecturers are regulated- did not include any provision enabling the foreign lecturers to receive severance payment. - It is undoubted that the applicants were deprived of severance payment merely on account of their being foreign citizens. - The inferior courts’ failure to justify the impugned different treatment. -In the absence of an explicit statutory provision which precludes the applicants’ entitlement to severance payment, the inferior courts’ failure to interpret the provisions of a secondary legislation (the decree of the Council of Ministers in the present case) in consideration of the constitutional safeguards. - Consequently, the Court found a violation of the prohibition of discrimination in conjunction with the right to property. |
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Ali Oğuz (2) 2019/2285 15 March 2022 (First Section) |
Violation of the right to a fair hearing in conjunction with the right to legal counsel falling under the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violation of the right to a fair hearing in conjunction with the right to legal counsel due to the non-execution of the violation judgment rendered by the Court. - The applicant was sentenced to life imprisonment for having attempted to overthrow the constitutional order through force in his capacity as a head of an armed terrorist organisation. This decision was upheld by the Court of Cassation. - Lodging an individual application, the applicant maintained that his trial was not fair and that he was convicted on the basis of his statements which had been taken under pressure and in the absence of a lawyer. In his case, the Court found a violation of the right to a fair hearing. - The incumbent assize court, upon the violation judgment, dismissed the request for a retrial without holding a hearing. - The applicant’s challenge to this dismissal was also rejected with final effect. - The interpretation by the assize court was at odds with the Court’s previous violation judgment. - Despite the necessity to hold a hearing given the nature of the violation found by the Court, the request for a retrial was dismissed over the case-file. - The inferior courts’ failure to redress the violation previously found by the Court in the applicant’s case and the consequences thereof. - Consequently, the Court found a violation of the right to a fair hearing. |
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Necla Kara and Others 2018/5075 15 March 2022 (First Section)
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Violations of both the substantive and procedural aspects of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right due to the discontinuation of the proceedings and the suspension of the pronouncement of the judgment ordered in respect of the public officers found to have responsibility in an explosion taking place at a building. - The explosion taking place at an apartment where explosive substances (squib, torch and etc.) were generated led to the death of 21 persons including the applicants’ relatives, injury of 115 persons as well as resulted in extensive material damage. - The workplace where the explosion took place had been inspected shortly before the explosion by the municipal officers, who issued a warning for the workplace to obtain a licence. Thus, it is apparent that the relevant authorities knew the existence of the real and imminent risk, which could lead to severe consequences endangering human lives. - The authorities’ failure to take any step to cease the activities performed at the workplace without a license and to eliminate the probable risks: violation of the substantive aspect of the right to life. - The procedural aspect of the positive obligations incumbent on the State within the meaning of the right to life entails the clarification of the circumstances surrounding an impugned death, the conduct of an effective investigation capable of identifying those who are responsible, and the imposition of appropriate punishments commensurate with the criminal acts committed. - The suspension of the pronouncement of the judgment ordered in respect of the accused officers was contrary to the requirement that those responsible be imposed appropriate punishments commensurate with the acts they had committed, thus resulting in impunity: violation of the procedural aspect of the right to life. - Consequently, the Court found a violation of the right to life under both its substantive and procedural aspects. |
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Mutia Canan Karatay (2) 2018/6707 31 March 2022 (First Section)
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Violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said freedom due to the disciplinary penalty whereby the applicant was suspended from her professional activity for 15 days on account of her explanations regarding a medical issue. - The applicant, a cardiologist and internist as well as a well-known academic and scientist in Turkey, was imposed a disciplinary penalty requiring her temporary suspension from professional activity due to her certain statements regarding a medical issue as she had inter alia made medical assessments on issues outside of her field of specialisation and caused damage to public health through her statements that were of unscientific nature. - Her action for annulment of the disciplinary penalty and subsequent appeal request were dismissed by the incumbent courts. - It cannot be said that every statement of scientists and academics are absolutely true. However, it should be acknowledged that the wide range of alternative opinions and thoughts on a particular issue is extremely important for both individuals and the society. - The inferior courts’ failure to demonstrate the risk posed by the applicant’s statements to maternal and child health. - The impugned interference with the applicant’s freedom of expression did not meet a pressing social need. Nor was it proportionate. - Consequently, the Court found a violation of the freedom of expression. |
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İbrahim Yaşar 2016/9350 19 October 2021 (Second Section)
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No violations of both procedural and substantive aspects of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right due to the alleged use of disproportionate force resulting in the death of the applicant’s sons in the course of a terrorist operation. - The police, having been reported that there would be a terrorist bombing, launched a terrorist operation. During the operation, the security forces had to resort to the use of armed force, which resulted in the death of three persons, two of whom were the applicant’s sons. - At the end of the investigation launched into the incident, a decision of non-prosecution was issued. - While the applicant claimed that the security forces had fired at his sons without a warning, the incident report proved to the otherwise. It was found established that the suspects had opened fire on the security forces despite the latter’s warning. - Hence, the security forces had to use force for legitimate self-defence. In addition, they had to protect the lives of third persons against the bombing allegedly planned by the suspects. - In the circumstances of the case, the investigation launched immediately after the incident by the chief public prosecutor’s office was conducted independently, rigorously and expeditiously, and the applicant was provided with the opportunity to actively participate in the proceedings from the very beginning. Thus, the investigation was effective. - Consequently, the Court found no violations of both procedural and substantive aspects of the right to life. |
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İbrahim Manav 2019/2755 29 December 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 use of immovable properties, which were abandoned by the applicants free of charge for being assigned as a public green space and road, beyond the intended purpose. - The applicants donated their immovables for public use. As the immovables were not used for the intended purpose, the applicants brought an action for compensation, which was dismissed by the incumbent court. Their appellate request was also dismissed by the Court of Cassation, which also rejected their request for rectification of the decision. - Whether the impugned interference was proportionate; whether a fair balance was struck between the public interest and the individuals’ rights and freedoms; and whether the impugned measure placed an excessive and disproportionate burden on the applicants. - It is clear that the immovables were not used for intended purpose, which was also found established by the expert reports obtained by the inferior courts. - The inferior courts’ decisions did not involve sufficient and relevant grounds that would address the applicants’ claims and objections likely to have a bearing on the outcome of the case. - The procedural safeguards inherent in the right to property were not fulfilled in the applicants’ case. - The fair balance to be struck between the applicants’ right to property and the public interest was upset to the detriment of the applicants. - Consequently, the Court found a violation of the right to property. |
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Mehmet Salim Erdal 2019/11893 2 March 2022 (Second Section)
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Violation of the freedom of organisation safeguarded by Article 33 of the Constitution |
- Alleged violation of the said freedom due to the imposition of administrative fine for operating as a travel agency without a licence. - Members of an association, among which was the applicant, organised a tour for sportive purposes. However, in the course of an inspection carried out during the said activity, it was found out that the association did not have a travel agency operation licence. Therefore, it was imposed an administrative fine, which was unsuccessfully appealed by the applicant. - Any restriction on the right to organisation should correspond to a pressing social need such as the maintenance of public order as well as being an exception. - In the present case, the said tour organised by the association was considered as a commercial activity by the public authorities. However, the latter failed to make a plausible explanation as regards the grounds underlying the administrative fine. - In the Court’s view, the impugned measure did not correspond to a pressing social need, nor did it comply with the requirements of the democratic social order. - Consequently, the Court found a violation of the freedom of organisation. |
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E.2019/96 24 February 2022 (Plenary) |
Review of Presidential Decree provisions regulating personal data and the Treasury’s being a shareholder of companies |
A. Provision authorising the Financial Crimes Investigating Board (the MASAK) to request from public institutions and organisations as well as real and legal persons and unincorporated institutions any data and document - It is claimed that granting the MASAK such an authorisation, regardless of certain statutory rules, are in breach of the principles of rule of law and foreseeability. It is further maintained that the issues related to personal data within the scope of Article 20 of the Constitution shall not be regulated by Presidential Decrees. - The Court acknowledges that the right to protection of personal data is safeguarded by Article 20 of the Constitution. It is also stipulated thereof that no regulation in this regard shall be made through Presidential Decrees. - The phrase “any data and document” included in the contested provision also covers the personal data; therefore, it is of a nature that cannot be regulated by Presidential Decrees. - Consequently, the impugned provision has been found unconstitutional ratione materiae, and thus annulled; the relevant decision will be effective after nine months as from the date of its publication in the Official Gazette.
B. Provision enabling the Ministry of Treasury and Finance to become a shareholder of domestic and foreign companies - It is maintained that the issues relating to the right to property shall not be regulated by Presidential Decrees. It is further argued that the impugned provision enables nationalisation through the decision of the President, and that it is neither definite nor foreseeable for its not embodying basic principles for being a shareholder of companies. - The contested provision is not related to a matter that is stipulated in the Constitution to be regulated exclusively by law; thus, it is constitutional ratione materiae. - In addition, the provision, which provides that the said procedure set forth therein shall be performed in accordance with the domestic private law in cases of domestic companies and the international private law as well as the legislation of a given country in cases of foreign companies, has been formulated in a definite and explicit manner. - Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed.
C. Provision regulating the duties and powers of public officials - It is claimed that Presidential Decrees cannot be issued as regards the issues that should be regulated exclusively by law; that the contested provision regulates an issue falling within the authority of the legislature; and that it enables an arrangement through a Regulation without the general principles and framework being determined, which falls foul of the principle of legal certainty. - The contested provision contains a regulation on an issue to be regulated exclusively by law under Article 128 of the Constitution, thus is in breach of Article 104 § 17 of the Constitution. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
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Ümmügülsüm Şalgar 2016/12847 21 October 2021 (Plenary) |
Violation of the right to a reasoned decision within the scope of the right to a fair trial safeguarded by Article 36 the Constitution |
- Alleged violation of the said right due to dismissal of the appellate request without any reason being stated. - Having successfully passed the exam for being a police officer, the applicant the vocational training. - As a result of the security clearance investigation conducted against the applicant during the training period, it was found that her husband had been imposed a punishment the pronouncement of which was suspended. - Thereupon, the applicant’s right to be a candidate student was terminated. - The applicant’s challenge before the administrative court was rejected, and the decision was upheld by the Council of State. - The action taken against the applicant, namely her dismissal from the police vocational training centre, was based on a provision included in the repealed Regulation. - In its many judgments, the Court has considered that suspension of the pronouncement of judgment should not necessarily be interpreted as a final conviction. - The alleged unlawfulness as well as unconstitutionality of the aforementioned provision amounted to an arguable claim. - Neither the incumbent inferior courts nor the appellate court provided plausible explanation in their decisions regarding the applicant’s claims, which rendered the proceedings unfair. - Consequently, the Court found a violation of the right to a reasoned decision within the scope of the right to a fair trial. |
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Cüneyt Durmaz (2) 2016/35468 15 December 2021 (Plenary)
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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 in conjunction with the prohibition of ill-treatment due to insufficient conditions of detention on remand. - The applicant, a former commissioner of audits, was dismissed and taken into custody for 9 days within the scope investigations conducted into the FETÖ/PDY terrorist organisation; afterwards, he was detained and sent to the closed prison. - Complaining about the inadequate conditions while remanded in custody, the applicant brought an action for full-remedy against the Ministry of Interior, which was dismissed by the administrative court for lack of jurisdiction. The applicant’s subsequent appeal was rejected, and the decision became final. - According to the pertinent case-law of the Court, the complaints regarding inadequate conditions of detention fall into the jurisdiction of administrative jurisdiction authorities. - In the present case, the administrative court failed to comply with the Court’s case-law. - Consequently, the Court found a violation of the right to an effective remedy. |
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Göksal Çetin and İsmail Temel 2018/13305 15 December 2021 (Plenary)
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Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the said right due to the exercise of the pre-emption right by the Municipality regarding the property of which it became a shareholder after the court decision rendered following de jure confiscation. - The objective in granting the right of pre-emption to the joint owners is to provide the shareholders with the opportunity to exclude foreigners from the joint ownership, to avoid being a shareholder with people they do not want, and also to liquidate the no longer effective relationship of joint ownership. - In the present case, however, on the date when the Municipality was entitled to pre-emption, the property in question was qualified as public area in the zoning plan. Thus, the aforementioned objectives were not applicable on the relevant date. - Since the Municipality was registered as a shareholder one day after the sale of property, the applicants were not able to foresee that the former would be entitled to pre-emption. - In addition, the Municipality gained a great advantage through its entitlement to pre-emption by exercising its authority to make a change in the zoning plan, which was to the detriment of the applicants. - Consequently, the Court found a violation of the right to property. |
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Burcu Reis 2016/5824 28 December 2021 (First Section)
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Violation of the prohibition of discrimination safeguarded by Article 10 of the Constitution in conjunction with the right to respect for family life safeguarded by Article 20 thereof |
- Alleged violation the prohibition of discrimination for provision of only a certain part of the women working in the same workplace with nursery service. - Pursuant to the relevant legislation applicable at the material time, nursery services must be provided in workplaces where more than 150 women were employed. Thus, the women employers were legally entitled to such opportunity. - Apparently, the applicant had not been provided with nursery service, thereby being subject to discrimination by her employer. - The protection afforded through the prohibition of discrimination aims at preventing any different treatment among the individuals on arbitrary and unreasonable grounds. Any different treatment based on the aforesaid grounds automatically amounts to discrimination. - In the present case, the employer failed to provide an objective and reasonable ground for the impugned difference in treatment. - Consequently, the Court found a violation of the prohibition of discrimination. |
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Rabia Aydın and Şerife Aksu 2018/37136 28 December 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 non-enforcement of a court decision ordering the registration of an immovable property based on the pre-emption right. - The applicants are the co-owners of the immovable property (parcel no. 434). Upon the sale of the adjacent immovable (parcel no. 435), the applicants and the owner of the other adjacent immovable (parcel no. 436) brought an action, seeking the revocation of title deed and registration of the sold immovable property in their names. - Pending the action brought by A.S., owner of the other immovable property, the civil court indicated an interim measure on 7 September 2016 so as to preclude the sale and transfer of the said immovable to any third party. - At the end of the applicants’ action adjudicated on 7 March 2017 before the same court but by another judge, registration of the immovable in the applicants’ names was ordered. - The applicants requested the land registry office to register the immovable in their names. However, this request was dismissed as the civil court instructed the land registry office not to do so on account of the interim measure previously indicated on behalf of A.S.. - The pending action brought by A.S. was adjudicated by the civil court, which ultimately ordered the registration of the immovable in the name of A.S.. - The applicants’ action for revocation of the registration and subsequent appeal were dismissed. - Despite the land registry office’s hesitation in enforcing the decision ordering registration in the applicants’ names due to the interim measure previously indicated by the civil court, interim measures are intended for the preclusion of sale and transfer of an immovable but do not pose an obstacle to the enforcement of court decisions. - Besides, a judicial body cannot instruct any administration not to enforce a decision issued by that judicial body itself or another judicial body in the absence of any legal ground. - Any court decision, if considered unlawful, may not be enforced only through methods specified in the relevant procedural laws. Any other interference in this sense falls foul of Article 138 of the Constitution pointing to the binding nature of court decisions and the necessity requiring their enforcement without delay. - Consequently, the Court found a violation of the right to property. |
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Meral Danış Beştaş (5) 2014/1474 16 November 2021 (Second Section)
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No violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said freedom due to the decision suspending the proceedings conducted against the applicant for having attended an event. - The applicant was the member of the Central Executive Board of the Democratic Society Party, which was operating at the material time. - A criminal case was initiated against the applicant as she had attended a tree planting ceremony held within the scope of the festival of Lice Municipality for committing an offence on behalf of a terrorist organisation and disseminating its propaganda. - At the end of the trial, the assize court decided not to sentence the applicant for committing an offence on behalf of the said terrorist organisation without being a member of it but suspended the proceedings on probation for 3 years for the offence of disseminating terrorist propaganda. The applicant’s challenge was dismissed. - The applicant’s assertions that she had not known the meaning attributed to the place and date of the tree planting event (the place was the home where the organisation’s initial foundation was declared, and the date was the anniversary of its foundation) were disregarded by the assize court for her being a political actor. - The Court considers that the applicant’s impugned act amounts to praise of terrorism through historical and spatial symbols. - Despite the deterrence effect that the suspension of proceedings may have on the applicant, it is indeed a sanction which is more lenient than imprisonment or fine. - The interference with the applicant’s freedom of expression was found to meet a pressing social need and proportionate. - Consequently, the Court found no violation of the freedom of expression. |
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D.D.T. 2019/5735 24 November 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 seizure of the applicant’s mobile phone which could not be proven to have been used in the commission of an offence. - B.M.D. was taken into police custody while delivering narcotic substance to a police informer. A search was conducted at his home where there were also B.B. and the applicant. - The applicant’s mobile phone and SIM card were seized. The incumbent judge ordered an inspection on the phone and SIM card. - The applicant was sentenced to 8 months’ imprisonment for possession of narcotic substances but the pronouncement of her sentence was suspended. The assize court also ordered the seizure of the material that was the evidence of the said offence as well as the applicant’s mobile phone. - The applicant’s challenge was dismissed. - The statutory provision relied on by the court in ordering the impugned seizure indeed allows for the seizure of any material which has been used in the commission of an offence, or allocated for its commission, or obtained from the offence. - The court failed to provide an explanation as to whether an inspection had been conducted on the applicant’s phone and if conducted, as to the consequences thereof. - Nor was there any assessment that the applicant’s mobile phone had been used in the commission of the said offence. - Therefore, the interference with her right to property lacked any legal basis. - Consequently, the Court found a violation of the right to property. |
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Gazi Muhammed 2018/37732 24 November 2021 (Second Section)
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Violations of the rights to property and to an effective remedy safeguarded respectively by Articles 35 and 40 of the Constitution |
- Alleged violations of the said rights due to the prolonged return by the authorities of the applicant’s vehicle to him in breach of the principle of lawfulness. - The applicant’s vehicle was stopped and searched by the law enforcement officers upon a denunciation concerning a suspect of terrorist offence. - As it was revealed that the vehicle had been rented and its owner was not within the vehicle, the prosecutor instructed the law enforcement officers to identity the owner and deliver the vehicle to him. - The vehicle, taken to the depository parking lot, was returned to the applicant 89 days later. - The applicant’s action for damage as well as subsequent full-remedy action were dismissed due to the absence of any fault, omission or negligence attributable to the administration. Alleged Violation of the Right to Property - The applicant’s vehicle was taken to the depository parking lot in the absence of any seizure decision issued by the competent authorities. - The unreasonable delay in the identification of the owner of the vehicle, which was not used in the commission of, or obtained from, an offence, constituted an interference with the right to property falling foul of the principle of lawfulness. - Consequently, the Court found a violation of the right to property. Alleged Violation of the Right to an Effective Remedy in conjunction with the Right to Property - It is the administration that is responsible for the identification of the real owner of the vehicle. Delays in certain cases may be considered reasonable; however, in the present case, it is evident that the owner should have been identified easily through the vehicle registration document showing the owner’s identifying information. - The public authorities’ passive conduct placed an excessive burden on the applicant. He had been also deprived of an effective remedy affording minimum guarantees for the redress of the damage sustained. - Consequently, the Court found a violation of the right to effective remedies. |
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Mehmet Arslan 2019/791 24 November 2021 (Second Section)
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No 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 allegedly unlawful use of force during the body search performed before admission to the penitentiary institution. - The applicant claimed that he had been subject to strip search, without submitting any detail in this regard. - It has been found established that the applicant had resisted the officers during the impugned search process. Therefore, the latter had had to resort to the use of force to break the applicant’s resistance. In the meantime, the applicant had been slightly injured. The said process had been conducted while the applicant had been partially undressed. - Considering as a whole, the use of force by the officers had been proportionate. - Consequently, the Court found no violation of the prohibition of ill-treatment. |
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E.2018/81 24 June 2021 (Plenary) |
Annulment of certain provisions of the Law no. 7086 on Adoption of the Decree Law on Taking of Certain Measures under State of Emergency, whereas dismissal of the request for annulment of another provision included therein |
- The contested provisions envisage that those who are found to have membership, relation or link with terrorist organisations or any structure, formation or group decided to commit acts against the national security of the State and whose names are indicated in the List no. 1 be dismissed from public office without any further action, that they be deprived of their status as a public officer, and that their passports be revoked. - It is maintained inter alia that such measures are applied in the absence of an objective, impartial and transparent investigation, that such persons are dismissed from public office without being afforded the opportunity to exercise their right to defence, that the notions “membership, relation or link” are vague and unforeseeable, that imposing a sanction on these persons for their alleged membership, relation or link with such organisations and formations, in the absence of a finalised court decision, is in breach of the presumption of innocence, and that the Inquiry Commission on the State of Emergency Measures, subsequently established to supervise the expediency of such measures, failed to afford an effective supervisory mechanism.
As regards the notions “membership, relation or …” included in the first sentence of Article 1 § 1 of Law no. 7086 - Pursuant to the contested provisions, those included in the List no.1 have been dismissed from public office for their membership, relation or link with the said organisations, structures and formations. - The contested provision was examined under Article 15 of the Constitution for regarding a measure taken under state of emergency. - As the provision contains notions which may declare persons guilty in the absence of a finalised court decision, it is found to be in breach of the presumption of innocence which is, as set forth in the Constitution, among the inviolable rights and freedoms even under a state of emergency. - Consequently, the Court found the contested provision unconstitutional and thus annulled it.
As regards the remaining part of Article 1 § 1 of the same Law, the notion “… and/or status as a public officer…” and the List no. 1 attached thereto - It is evident that the measures allowing for the dismissal from public office or deprival of status as a public officer are intended for eliminating the threats or dangers underlying the declaration of state of emergency. - The measures have been applied merely with respect to those whose names are indicated in the List. Therefore, they do not have a general impact binding on everyone. - The contested provisions were examined under Article 15 of the Constitution for regarding a measure taken under state of emergency. - In ordinary times, these provisions restrict the right to respect for private life for allowing for dismissal from public office. However, this right is not among the core rights that cannot be restricted or suspended, partially or wholly, even during a state of emergency. - Besides, this right is not restricted beyond the extent that is necessary for attaining the aims of maintaining national security and democratic constitutional order. - Consequently, the impugned provisions have been found constitutional, and therefore, the request for their annulment has been dismissed.
As regards the fourth and fifth sentences of Article 1 § 2 of the same Law -The contested provisions impose a restriction on the relevant persons’ freedom to go abroad through an administrative act whereby their passports may be revoked in the absence of a court decision. - The contested provisions were examined under Article 15 of the Constitution for regarding a measure taken under state of emergency. - In ordinary periods, these provisions run contrary to the safeguards inherent in the freedom of movement enshrined in Article 23 § 3 of the Constitution. - However, this freedom is not among the core rights that cannot be restricted or suspended, partially or wholly, even during a state of emergency. - It was examined whether the impugned restriction was to the extent required by the exigencies of the situation. - Those who have been dismissed from public office and whose passports have been revoked on the basis of the contested provisions are not provided with an effective supervisory mechanism to apply against the impugned measure. - Therefore, the contested provisions introduce a restriction going beyond the extent required by the exigencies of the situation. - Consequently, the Court found the contested provisions unconstitutional and thus annulled them. |
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Ömer Kılınç 2018/30695 29 September 2021 (Plenary) |
No violation of the right of access to a court safeguarded by Article 36 the Constitution |
- Alleged violation of the said right due to the revocation of the appointment of non-commissioned officer candidates by decree law issued under the state of emergency. - Apparently, there was no ordinary judicial remedy to be used for the annulment of the action performed in accordance with a decree law. Therefore, the applicant was completely deprived of any prospect of having access to a court, which rendered the impugned interference disproportionate. - However, the said interference was also examined from the standpoint of Article 15 of the Constitution, whereby the suspension and restriction of fundamental rights and freedoms was allowed during the state of emergency. - In the circumstances of the case, the aim pursued by the impugned measure had been to eliminate threats and risks. - Besides, no discrimination had been made among the individuals in the same situation with the applicant and the impugned measure was applied in respect of all candidates. In addition, the applicant had not been deprived of the relevant opportunity forever, and he was appointed as a non-commissioned officer after approximately one year. - Accordingly, the alleged interference had constituted a proportionate measure in the particular circumstances of the case. - Consequently, the Court found no violation of the right of access to a court. |
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Fatma Akın and Mehmet Eren 2017/26636 10 November 2021 (Plenary)
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Violations of both substantive and procedural aspects of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right due to ineffectiveness of the criminal proceedings conducted into death and bodily harm caused by security forces. - The first applicant’s husband and the second applicant had been wounded by soldiers who had fired at them for considering that they had been terrorists. The first applicant’s husband had lost his life at the hospital. - At the end of the criminal proceedings conducted against the accused for reckless death and injury, no sentence was imposed. The applicants’ subsequent appeals were rejected with final effect. - The security forces had failed to take the necessary measures to protect the life of third parties. - The judicial authorities failed to receive additional reports, nor did they conduct a crime scene investigation. Thus, there were certain deficiencies hindering the effectiveness of criminal proceedings. - Furthermore, the proceedings lasted 5 years and 3 months, which was not justified in the circumstances of the case. - Consequently, the Court found violations of both substantive and procedural aspects of the prohibition of ill-treatment. |
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Yahya Çevik 2018/15454 17 November 2021 (First Section)
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Inadmissibility of the alleged violations of the right to a fair trial and the freedom of movement for incompetence ratione materiae |
- Alleged violations of the right to a fair trial as well as the freedom of movement respectively for dismissal of the applicant’s claim for compensation and granting of conditional bail. - The applicant, having been taken into custody within the scope of a criminal investigation, was then released on conditional bail by the magistrate judge. At the end of the subsequent proceedings, the conditional bail was lifted, and the applicant was acquitted. - Thereupon, the applicant claimed pecuniary and non-pecuniary compensation for his having been taken into custody as well as for the granting of conditional bail. However, the amount requested by the applicant was not awarded to him. - The pertinent law contains no regulation prescribing compensation in cases related to the granting of conditional bail. - As for the freedom of movement, it is safeguarded by both Article 23 of the Constitution and Article 2 of Protocol no. 4 to the European Convention of Human Rights; however, Turkey has not ratified the Protocol no. 4. - In order for a right or freedom to be examined through individual application, it must fall under the joint protection realm of the Constitution and the Convention, which is accordingly not a case for the freedom of movement. - Consequently, the Court found inadmissible the alleged violations of the right to a fair trial and the freedom of movement, for incompetence ratione materiae. |
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Abeer Ahmed Nasser Al Radaei 2018/15219 16 November 2021 (Second Section)
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Inadmissibility of the alleged violations of the right to education and the principle of equality as being manifestly ill-founded |
- Alleged violations of the right to education as well as the principle of equality due to deportation of a foreign student for his having acted against the national security. - The applicant, a Yemeni national, was a university student in Turkey. While he was a 3rd grade student, he applied to the Immigration Authority, requesting the extension of his residence permit. In the meantime, it was found out that there was a record against him indicating that he had been involved in activities against the national security. - At the end of the proceedings, the applicant’s university registration was deleted, and his deportation was ordered. The applicant unsuccessfully appealed against the said measures. - It is enshrined in Article 42 of the Constitution that regardless of being a citizen or a foreigner, everyone enjoys the right to education. Nevertheless, it should not necessarily be interpreted as not allowing the deportation of foreigners during the term of education. - Deportation of a foreigner, in pursuance of a legitimate aim, does not constitute a direct interference with the right to education. - As for the applicant’s allegation that he had been subjected do discrimination when compared with the Turkish citizens, it should be borne in mind that deportation is a measure that is applicable only to foreigners, not Turkish citizens. - Consequently, the Court found inadmissible the alleged violations of the right to education and the principle of equality as being manifestly ill-founded. |
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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. |
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Onur Can Taştan 2018/32475
Yağmur Erşan 2018/36451
27 October 2021 (Plenary)
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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. |
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Muzaffer Düzenli 2017/31996 10 November 2021 (Plenary)
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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. |
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Alper Tunga Kuru and Özcan Kaya Güvenç 2016/2486 17 November 2021 (First Section)
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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. |
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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. |
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Hilmi Kocabey and Others 2018/27686 17 November 2021 (First Section)
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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. |
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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. |
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Sevda Ülger 2019/4821 23 November 2021 (First Section)
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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. |
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Yasemin Tekin 2019/25326 23 November 2021 (First Section)
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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. |
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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. |
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Süleyman Çamur 2017/36487 8 September 2021 (Second Section)
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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. |
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Gülbiz Alkan 2018/33476 7 October 2021 (Second Section)
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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. |
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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. |
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| II. Constitutionality Review | |||
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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. |
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