Case-Law Summary

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Ayyıldız Maden Mermer İnşaat ve İnşaat Malzemeleri Sanayi Ticaret Ltd. Şti
2020/35644

28 March 2024 (Plenary)

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

- Alleged violation of the said right due to failure to provide relevant and sufficient reasoning in dismissing the allegations capable of affecting the outcome of the case

- The applicant argued that his right to property had been violated due to the transfer of his immovable property to the State Treasury on the ground that the sale was a fictious transaction.

- In the present case, the civil court found that the sale of immovable property was realised based on the real value. Contrary to the finding of the lower court, the regional court of appeal concluded that the sale transaction cannot be conducted on an instalment basis as to prevailing commercial custom. Later, this decision was upheld by the Court of cassation.

- The Court considered that the regional court of appeal had failed to address the applicant’s claims during the proceedings that the liquidated company had performed no activities on the immovable property that could be construed as fictitious transaction; that the decisions of non-prosecution had been issued regarding the company partners; and that the process of purchasing the immovable property and the location of the payment, as well as instalment sale, were consistent with the requirements of business customs. Therefore, the Court concluded that the lower courts however failed to demonstrate, in its reasoned decision, how these commercial customs were ascertained.

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

Burhan Yaz (3)
2021/7919

29 May 2024

(Plenary)

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

-Alleged violation of the said right due to non-deduction of the entire period spent under house arrest from the prison sentence.

- In accordance with the relevant amendment, 45 days —half of the 90 days spent by the applicant under house arrest— were deducted from his sentence, which was challenged by the applicant.

- The Court notes that there is no statutory requirement entailing the deduction of the entire period spent under such a measure, and considering the effects and nature of the measure on the individual, different deduction ratio may be determined.

- According to the Court, house arrest has a less severe impact on fundamental rights and freedoms than detention (remand in custody) in that while individuals are required to stay at home, there are no restrictions on maintaining their social life with other residents or visitors, nor on using all kinds of individual or mass communication tools.

- Thus, counting two days spent under the impugned measure as one day for deduction purposes constitutes a proportionate approach.

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

Bayram Altın

2021/32528

29 May 2024

(Plenary)

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

- Alleged violation of the right to a reasoned decision due to the failure to address an allegation that could have affected the outcome of the proceedings.

- The applicant, despite successfully passing the street wardenship examination, was not appointed due to a negative security clearance investigation. His annulment action and subsequent appellate requests were dismissed, with the court citing his sibling’s criminal convictions, including theft, sexual abuse of a child, aggravated robbery, and violation of the inviolability of domicile.

- In appeals against non-appointment due to negative security clearance investigation, relevant courts are required to justify how the findings affect the applicant’s eligibility, assess direct or personal connections, and provide reasoned decisions to prevent arbitrariness.

- In the present case, the court dismissed the applicant’s challenge against the denial of his appointment, referring to his sibling’s imprisonment sentences. However, it failed to analyse how the sibling’s acts would affect the applicant’s ability to perform warden duties.

- Accordingly, it has been found that the incumbent court’s decision did not contain any reasoning in this respect, nor did the appellate authorities provide any evaluation based on the court’s decision. Considering the proceedings as a whole, it has been observed that the applicant’s right to a reasoned decision has been violated.

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

Press Release

Eşref Bingöl

2021/10332

18 July 2024

(Second Section)

Violations of the principles of equality of arms and adversarial proceedings safeguarded by Article 36 of the Constitution

- Alleged violation of the said principles due to the dismissal of the applicant’s request for the investigation of the facts that might mitigate or even set aside the criminal sentence imposed on him.

- The applicant, a bank official calling the complainant and informing him that the deductions and insurance fees related to the loan received by the latter would be refunded, was indicted for aggravated fraud for allegedly deriving profit from the complainant through his fraudulent acts.

- Both at the investigation and trial stage, the applicant requested the judicial authorities to obtain certain evidence to substantiate his allegation that he was not the perpetrator of the imputed act, but he was indeed a victim of fraud.

- At the end of the proceedings, the trial court sentenced him to imprisonment for the imputed offence. On appeal, his conviction was upheld and became final.

- In convicting the applicant, the trial court found his defence submissions “contrary to the ordinary course of life and intended to evade the criminal liability”.

- In support of his claim that the perpetrator of the said offence was another person, the applicant submitted to the law enforcement officers certain information and documents. He also requested the authorities to obtain the camera footages having a potential to shed light on the exact circumstances of his case.

- In consideration of the available evidence and requests, the incumbent chief public prosecutor’s office should have conducted sufficient inquiries into the identity and address of the alleged perpetrator at the investigation stage.

 Besides, the trial court dismissed the applicant’s requests on abstract grounds: thus, the applicant was put in a disadvantageous position vis-à-vis the prosecution.

- Consequently, the Court found violations of the principles of equality of arms and adversarial proceedings.

 E.2024/4

27 June 2024

(Plenary)

Annulment of the provision stipulating the imposition of statutory interest on certain receivables within the scope of expropriation

- The contested provision, Provisional Article 19 § 1 (4) of Law no. 2942, stipulates that statutory interest, under Law no. 3095, shall be applied to the instalment-based payments for the costs and compensations regarding properties subject to incomplete expropriation proceedings or those that have been used through confiscation without expropriation.

- It is argued that, despite the explicit constitutional provision requiring the application of highest interest rate to receivables related to expropriation, the disputed provision envisages that statutory interest shall apply to receivables concerning properties subject to incomplete expropriation proceedings or have been used through confiscation without formal expropriation. Therefore, the constitutional provision mandating the application of the highest interest rate for expropriation compensation applies uniformly, regardless of whether legal proceedings are still ongoing.

-The Court considers that the contested provision mandates the application of statutory interest to such receivables, contrary to the explicit provision in Article 46 § 4 of the Constitution, which requires the blanket application of highest interest rate for receivables from public in cases of instalment-based expropriation payments or unpaid expropriation compensations for any reason.

- In this respect, the Court has concluded that the contested provision violates Article 13 of the Constitution, which stipulates that any limitation must not contradict the provisions of the Constitution.

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

 E.2023/74

23 July 2024

(Plenary)

Annulment of the provision prescribing that the earthquake resistance of a building provided with a building registration certificate shall be within the legal responsibility of the owner

-The contested provision, Provisional Article 16 § 10 (3) of Law no. 3194, stipulates that the responsibility for the earthquake resistance of a building issued with a building registration certificate rests with the owner.

-It is argued that the state has a positive obligation to create a healthy and balanced environment and there is no legal regulation prescribing inspections to investigate whether a building issued with a registration certificate meets a specific standard that guarantees life and property safety. It is further maintained that despite the lack of such legal regulation, the contested provision places responsibility for the building’s earthquake resistance solely on the owner, which allegedly contradicts with the state's positive obligations.

- The Court considers that exempting the administration from liabilities arising from its failure to inspect whether buildings with a building registration certificate pose a danger to human life or are earthquake-resistant amounts to eliminating the administration’s constitutional obligations by a legislation.

- The Court has concluded that the contested provision assigns responsibility for a building's earthquake resistance to its owner when the structure violates zoning regulations and that it shields the administration from compensation claims in a field where its inspection duties remain valid.

- Therefore, the contested provision breaches the right to an effective remedy safeguarded under Article 40 in conjunction with the right to life safeguarded under Article 17.

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

 E.2023/181

27 June 2024

(Plenary)

Annulment of the phrase “…not exceeding one year” in Article 10 § 1 of the Law no. 2860 on Collection of Aid

- The contested provision stipulates that the permitted period for aid collection may be extended on reasonable grounds by the relevant authorities for a period not exceeding one year.

- It is maintained that the contested provision is unconstitutional since the time limit stipulated therein, which is allegedly disproportionate, is incompatible with the State’s obligations under the right to life as well as the right to protect and develop corporeal and spiritual existence. It is also claimed that the transfer to another organisation of the collected amount in case of a failure to reach the targeted amount within the given period is in breach of the right to life.

- The Court has observed that the aid collection process may be futile if the targeted amount could not be collected within the period determined by law. Moreover, the impugned provision does not allow for a new application to collect further aid to supplement the previous one.

- Therefore, the restriction imposed by the contested provision is disproportionate to the aim sought to be achieved.

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

E.2023/80

E.2024/96

23 July 2024

(Plenary)

Dismissal of the request for annulment of the provisions depriving those convicted of certain offences of practicing the professions of physician and veterinarian

- The contested provisions —Article 28 § 1 of the Law no. 1219 on the Practice of Medicine and Related Arts/Medicine Sciences, and Article 6 § 1 (a) of the Law no. 6343 on the Practice of Veterinarians and Organisation and Activities of the Turkish Veterinary Medical Association and its Chambers— envisage that those convicted of any offences committed against the constitutional order and its functioning shall be deprived of practicing the professions of physician and veterinarian.

- It is maintained that the contested provisions, by indefinitely preventing physicians and veterinarians convicted of offences committed against the constitutional order from practicing their professions, constitute a disproportionate interference with the right to respect for private life, which is unconstitutional.

- The Court has considered that although the individuals referred to in the contested provisions are deprived of the right to practice their professions, this deprivation is not indefinite, given the mechanism enabling the restitution of forfeited rights. According to this mechanism, the period during which an individual is deprived of a right is limited to three years, provided that other conditions are complied with.

- It has therefore been concluded that the contested provisions do not impose an excessive burden on the individuals concerned.

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

E.2024/71

23 July 2024

(Plenary)

Annulment of the provision seeking the consent of the Ministry for certain regulations to be issued by the Union of Chambers of Certified Public Accountants of Türkiye

- The contested provision, Article 50 § 2 of the Law no. 3568 on Certified Public Accountancy of Türkiye, stipulates that the regulations to be issued by the Union of Chambers of Certified Public Accountants of Türkiye (“the Union”) on certain matters related to working procedures and principles shall be submitted to the Ministry of Treasury and Finance (“the Ministry”) for approval before their publication in the Official Gazette.

- It is maintained that granting the Ministry the authority to approve the regulations to be issued by professional organisations is incompatible with the principle of autonomy of these organisations.

- Referring to one of its previous decisions on a similar matter, the Court has pointed out the autonomy of the administrative and decision-making bodies of professional organisations, relying on Article 135 of the Constitution.

- Considering that a professional organisation cannot issue a regulation unless the Ministry gives an approval in accordance with the contested provision, it has been concluded that the tutelage envisaged by the legislator renders the professional organisations’ authority to issue regulations —and thus their autonomy— ineffective.

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

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E.2023/109

30 May 2024

(Plenary)

Dismissal of the request for annulment of the phrase “…one year….” in the first sentence of Article 166 § 3 of the Turkish Civil Code no. 4721

- The contested provision envisages that in case of a joint request for divorce by the spouses or consent of either spouse to the other’s petition for divorce, the divorce may be granted only after one year of marriage, on the ground of the irretrievable breakdown of the marriage.

- It is maintained that the contested provision is unconstitutional for setting aside the parties’ will; hampering the enjoyment of fundamental rights and freedoms and the application of the equality principle; and giving rise to de jure continuation of the parties’ marriage, which does not exist de facto.

- The Court has observed that making the grant of divorce upon the parties’ consent contingent upon the expiry of at least one year after marriage aims at sustaining the institution of family, which is considered as the foundation of the Turkish society: pursuing a legitimate aim.

- Given the constitutional significance of the institution of family, the legislator has a wide margin of appreciation to set out the principles and procedures regarding divorce. The Court has held that seeking the condition of expiry of one-year after marriage for granting a divorce falls within the legislator’s margin of appreciation ands satisfies the criterion of necessity. Besides, those seeking divorce can also rely on other grounds enumerated in the law.

- The Court has accordingly concluded that the restriction imposed by the contested provision on the individuals’ right to respect for their private and family life does not place a disproportionate burden on them, thus being proportionate.

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

E.2024/78

24 September 2024

(Plenary)

Annulment of the phrase “associations and foundations in the public interest…” in Article 334 § 2 of the Code of Civil Procedure no. 6100

- The contested provision stipulates that associations and foundations in the public interest may be afforded legal aid only if their allegations or defences are justified and they are unable to partially or fully cover the necessary expenses without experiencing financial hardship, thus categorically excluding other legal persons from the possibility of obtaining legal aid.

- It is maintained that the provision is unconstitutional since it imposes a disproportionate restriction on the right of access to a court within the scope of the right to a fair trial.

- The Court considers that depriving legal persons other than foundations and associations in the public interest of legal aid, which would facilitate financially disadvantaged entities to raise their claims, submit their defence, initiate enforcement proceedings or request temporary legal protection, restricts their right of access to a court.

- Therefore, the Court has concluded that denial of legal aid to private legal persons other than foundations and associations in the public interest does not pursue a legitimate aim, and that the restriction on the right of access to a court by the impugned provision is disproportionate.

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

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Erdal Sonduk
2020/23093

15 February 2024 (Plenary)

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

-Alleged violation of the right to a fair hearing, as the witnesses on whose statements the applicant’s conviction was based had not actually been heard by the court panel that delivered the judgment.

- The applicant was convicted of the offence of usury, and the incumbent regional court of appeal dismissed his appeal on the merits. Consequently, his conviction became final. 

- The principle of immediacy entails that the judge has direct access to evidence suggested to shed light on the case and has full knowledge of the evidence without any intermediary.

- In cases where a judge may not be able to conclude a trial for valid reasons, such as health issues, resignation, transfer, retirement, or assignment to another court, it is necessary to consider whether the replacement of the judge has undermined the overall fairness of the proceedings, and whether compensatory safeguards have been afforded in this sense.

- In the present case, the applicant was convicted by the court panel that had not attended the hearings during which the witnesses were heard. The panel relied on the statements of witnesses by stating, inter alia, that the testimonies of the defence witnesses, being contrary to the ordinary course of life and intended to disguise the truth, were deemed unreliable.

- In making its assessments, the court panel referred to such impressions/conviction that could be gained through direct observation of the witnesses during their testimonies.

- The court panel, composition of which had been changed after hearing of the witnesses, convicted the applicant on the basis of impressions obtained merely by reading the transcripts, which fell foul of the principle of immediacy.

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

E.2023/200

9 May 2024

(Plenary)

Annulment of the phrase “…between the adoptive parent and the adoptee…” cited in sub-paragraph 1 of Article 278 § 3 (amended by Article 53 of Law no. 3494) of the Enforcement and Bankruptcy Law no. 2004, as amended by Article 114 of Law no. 538.

- The contested provision stipulates that certain onerous transactions (transaction for consideration) between specified relatives shall be deemed as donations. The phrase “...between the adoptive parent and the adoptee...” cited in the said provision constitutes the contested provision.

- It was maintained in brief that the contested provision was unconstitutional as it definitively classified onerous transactions between the adoptee and the adoptive parent as donations, without allowing the parties to present their claims, defences, or supporting evidence. It was further claimed that this imposed a disproportionate restriction on the rights to property and legal remedies.

- In its previous annulment decisions regarding provisions regulating different kinship relations, the Court determined that the right to property and legal remedies had been restricted. It underlined that such rights may only be restricted by law, in line with constitutional grounds for limitation, and in compliance with the principle of proportionality

- The relevant decisions concluded that the impugned phrases were precise and foreseeable regarding the nature, scope, and consequences of kinship relations. It was further determined that the provision aimed to prevent debtors from shielding assets from creditors and to facilitate debt collection, thereby pursuing a legitimate aim.

- With regard to proportionality, the Court observed that the contested provision categorically presumed transactions between the debtor and certain close relatives to be donations without further conditions, establishing an irrefutable presumption that precluded any contrary claim or proof.

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

Press Release

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Mohammad Atamleh
2020/9691

29 February 2024 (Plenary)

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

-Alleged violation of the said right on account of the administrative fine imposed on the applicant for his transporting gold coins overseas without fulfilling the notification and authorisation requirements.

- The applicant, who is a foreign national, engages in gold trading. Upon arrival in the country, he declared, before the Customs Directorate, the amount of foreign currency in dollars that he brought into the country and informed that he would use this foreign currency to purchase gold coins.

- When he was at the airport to leave the country, gold coins weighing 3,100 grams were found in his carry-on luggage. He was therefore subjected to an administrative fine corresponding to the value of 50 percent of the confiscated gold coins, which were ultimately returned to him.

- His challenge to the impugned fine and subsequent appeal request were dismissed.

- Despite the lack of proof that the gold coins in question were used in the commission of any offence or that their source was uncertain, the applicant was sentenced to an administrative fine amounting to 50 percent of the confiscated gold coins, since the relevant statutory provision stipulates a fixed rate.

- The Court has therefore found that the impugned interference with the right to property placed an excessive burden on the applicant vis-à-vis the respective public-interest purpose: the upset of the fair balance between the legitimate aim sought to be protected and the said right.

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

E.2020/88

27 December 2023

(Plenary)

Annulment of certain provisions of Presidential Decree no. 66 in terms of jurisdiction ratione materiae

- The contested provisions, Article 6/A (c) and (ç) of the Presidential Decree no. 14 on the Organisation of the Directorate of Communications added by Presidential Decree no. 66, stipulate that it is among the duties of the Department of Strategic Communication and Crisis Management, established within the Directorate of Communications (Directorate), to implement the necessary measures to ensure strategic communication and crisis management by analysing the factors of internal and external threats against the Republic of Türkiye, and to take actions against all kinds of manipulation and disinformation by determining psychological operations, propaganda and perception operations carried out against the Republic.

- It is argued that the duties assigned to the Directorate by the aforementioned provisions should be regulated by law since they are related to the freedom of information and the press, that fundamental rights and freedoms cannot be regulated by Presidential decrees, and that the general framework and principles regarding the said measures have not been determined.

- It is clear that the measures to be taken pursuant to the contested provisions are related to the freedom of expression and dissemination of thought as well as the freedom of the press, respectively safeguarded by Articles 26 and 28 of the Constitution.

- In principle, the regulations laid down in the aforementioned provisions are not allowed to be made by Presidential decrees.

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

E.2024/45

22 February 2024

(Plenary)

No ground for a decision on the request for the revocation of an action regarding loss of membership of Parliament

- The impugned action is the reading out of the decision issued by the Court of Cassation regarding Şerafettin Can Atalay, member of Parliament, at the 54^th Session of the General Assembly of the Grand National Assembly of Türkiye and the notification thereof to the General Assembly.

- The aforementioned action is requested to be revoked on the grounds that it amounts to an amendment to the internal regulations.

- Article 84 § 2 of the Constitution entails a final judicial sentence to acknowledge the loss of membership of Parliament.

- It appears that following the Constitutional Court’s judgment finding a violation, dated 25 October 2023, there is no finalised judgment regarding Şerafettin Can Atalay.

- The decision, subject of the said action, had no legal basis either in the Constitution or in the Turkish law.

- Thus, the action cannot be regarded as a legislative act falling under the scope of Article 84 § 2 of the Constitution.

- Consequently, there is no ground for the Court to render a decision on the matter.

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Gemak Gemi İnşaat Sanayi ve Ticaret A.Ş.
2020/11509

29 February 2024 (Plenary)

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

-Alleged violation of the said right due to the dismissal, as being time-barred, of the action brought by the applicant company against the accrual of real-estate tax and the appraisal commission decision forming a basis for the impugned accrual.

- For the immovable properties owned by the applicant company, the real-estate tax was calculated as 148,593.10 Turkish liras (TRY) for the tax year 2010, whereas the amount accrued in 2009 was TRY 18,519.72. Therefore, the applicant company filed an action against the appraisal commission decision whereby the real-estate tax-base for the tax year 2010 was determined.

- However, this action was dismissed by the incumbent court on grounds of lack of capacity to sue as the applicant company was not, by the date of the said decision, among the parties who were entitled to bring an action against the appraisal commission decision.

- In the meantime, conducting a constitutionality review of the respective provision forming a statutory basis for the dismissal of the applicant’s action, the Court annulled the contested provision in 2012, which did not, nevertheless, have a bearing on the applicant’s action regarding the 2010 tax year.

- However, the actions brought by the applicant with respect to the tax-base rates for the tax years 2011, 2012 and 2013, which were determined on the basis of the real-estate tax rate of 2010, were also dismissed, as the tax-base rate for the 2010 tax year had already become final.

- The Court has concluded that the interpretation made –as regards the time-limits for filing an action– by the inferior court on the basis of a situation which was not prevailing at the time when the applicant company filed its action and which could not be taken into consideration was unforeseeable in the particular circumstances of the present case and excessively hampered the applicant’s ability to access to a court, thus placing an excessive and disproportionate burden on it.

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

Yakup Güneş

2019/15907

19 March 2024

(Second Section)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

-Alleged violation of the said right due to the applicant’s disciplinary detention for denying to fulfil his obligation to testify as a witness.

- The applicant was already detained on remand for his alleged membership of a terrorist organisation, when he was requested to testify as a witness against two other persons suspected of the same offence.

- The right to remain silent and not to incriminate oneself, enshrined in Article 38 § 5 of the Constitution, ensures that no one is compelled to make self-incriminating statements or to submit such evidence.

- In the present case, the applicant’s statement as a witness might have been used against him in the course of the ongoing proceedings and even relied on for a new criminal charge.

-It is incompatible with the requirements of the right to remain silent and not to make self-incriminating statements that a witness is compelled to testify despite ongoing charges or trials against him/her or facing disciplinary detention.

- Considering that there was no legal obligation likely to be imposed on the applicant to testify as a witness before the prosecutor’s office, the impugned interference with his right to personal liberty and security was devoid of a legal basis.

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

E.2023/127

9 May 2024

(Plenary)

Annulment of the provision stipulating that the period spent in foreign service, exceeding three years regardless of the individual’s consent, shall not be taken into account for promotion

- The contested provision, Article 55 § 15 of the Police Organisation Law no. 3201, envisages that the period spent in foreign service -exceeding three years regardless of the individual’s consent- shall not be regarded as actual working time and shall not be taken into account for promotion to a higher rank.

- It is argued that while the entire service period of the police officers assigned in domestic service is taken into account in the promotion of rank, it is not the case for the officers assigned in foreign service, insofar as it concerns the period exceeding three years regardless of their consent, thus resulting in the prolongation of the period for the latter to get promotion.

- The Court considers that the impugned situation, caused by the contested provision, results in a delay in the promotion of the officers assigned in foreign service when compared to their peers, especially due to the reasons beyond the former’s control.

- In this respect, to provision imposes an excessive burden on the police officers assigned in foreign service and is not proportionate.

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

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Fadime Kolutek and Others
2017/25008

31 January 2024

 (Plenary)

Violations of the right to respect for private life and right to a fair trial, respectively safeguarded by Articles 20 and 36 of the Constitution

-Alleged violations of the said rights on respective grounds that the meeting of the applicant, a prisoner, with his lawyer had been monitored by the officers and that the appeal against the disciplinary punishment imposed relying on the minutes issued after the said meeting, had been dismissed.

- The measure entailing the monitoring of the applicant’s meeting with his lawyer was taken during a period when a state of emergency was declared nationwide.

- Considering the circumstances of the state of emergency, it may be reasonable to impose additional measures on the persons concerned, in accordance with the legitimate purposes, provided that there are objective and convincing grounds.

- In the circumstances of the present case, it has been observed that the monitoring decision was not issued by the public prosecutor and lacked any specific reasoning as regards the applicant.

- When considered from the standpoint of Article 15 of the Constitution, which allows for the suspension and limitation of the exercise of fundamental rights and freedoms during the state of emergency, the severity of the impugned measure was not found proportionate to the extent required by the exigencies of the situation.

- Besides, the use of the minutes issued by the officers at the penitentiary institution as decisive evidence in the disciplinary proceedings undermined the overall fairness of proceedings.

- Consequently, the Court has found violations of the right to respect for private life and right to a fair trial.

Türkiye Devrimci Kara, Hava ve Demiryolu Taşımacılığı İşçileri Sendikası
2020/34550

15 February 2024

 (Plenary)

Violation of the right to trade-union freedom safeguarded by Article 51 of the Constitution

- Alleged violation of the said right due to pending of the case despite legislative requirement for expeditious resolution.

- The applicant union, requested a determination of competence from the Ministry of Labour and Social Security, asserting that it had attained the requisite number to negotiate a collective labour agreement (CLA). The Ministry ruled negatively on this request. Subsequently, the applicant appealed this negative ruling, while another set of proceedings regarding the issue had been ongoing.

-The Court has concluded that the proceedings have been pending despite the statutory requirement for their expedient conclusion, and that this stance of the judicial authorities deprived, throughout the proceedings, the applicant and other employees of the opportunity to engage in union activities within the scope of CLA and of the union rights afforded by an agreement.

- Additionally, the Court has recognized that the failure to resolve such cases within a reasonable time has become systematic, thereby constituting a structural problem. Thus, the Court has considered that systematic reforms must be introduced to prevent future violations arising from prolonged adjudication of appeals against the determination of competence before the courts of instance.

-Consequently, the Court has found a violation of the right to trade-union freedom.

E.2022/21

14 March 2024

(Plenary)

Annulment of certain provisions of Law no. 7346, Law no. 7430 and Law no. 7439

A. Provision stipulating the continuation of the payment of pension to those working in certain institutions despite receiving retirement or old age pensions

- The contested provision applies to certain institutions listed therein.

- In consideration of the other institutions operating in similar fields but not listed in the provision, there appears difference in treatment in terms of the right to social security, in the absence of objective and reasonable grounds.

- Hence there is a violation of the principle of equality within the scope of the right to social security.

B. Provisions envisaging the determination by the board of trustees of the remuneration and allowances to be paid by the Foundation

- It is at the discretion of the legislator to consider the social benefit in the activities to be carried out by foundations established by law and to envisage the transfer of certain amount of public funds to these foundations.

- Besides, it is a requirement of the principle of democratic state to introduce statutory provisions safeguarding the use of the public funds, transferred on a regular basis, in the public interest.

- According to the contested provisions, where no basic rules and principles are specified, it is at the discretion of the boards of trustees to determine the said remuneration and allowances, which is in breach of the principle of democratic state.

C. Provision allowing for the transfer of funds from the municipal budget to a foundation to be used for the expenses of an institute that may carry out activities outside the territory of the Municipality

- As a rule, the relevant funds to be transferred must be used for the activities within the territory of the Municipality.

- In this sense, the contested provision is incompatible with the principle of financial autonomy of local governments.

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

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Şeyhmus Yılma
2018/37995

11 January 2024

 (Plenary)

Inadmissibility of the alleged violations of the right to property and right of access to a court respectively safeguarded by Articles 35 and 36 of the Constitution

-Alleged violation of the right to property due to the refusal to grant the applicant the salary which had accrued during the period between his dismissal from office and the rejection of his request for re-examination.

-Alleged violation of the right of access to a court within the scope of right to a fair trial due to the award of litigation costs and counsel’s fees against the applicant.

-In relation to the alleged violation of the right to property, the Court asserted that the applicant’s dismissal was part of an extraordinary measure prescribed by Decree-Law no. 667 and bore immediate legal consequences. Therefore, the Court concluded that the applicant had no legitimate expectation in this regard.

- Consequently, the Court declared inadmissible the alleged violation of the right to property for being incompatible ratione materiae.

- In relation to the alleged violation of the right of access to a court, the Court indicated that the possible obligation for the plaintiff to pay the other party’s litigation costs or counsel’s fees could, under certain circumstances, deter individuals from pursuing legal action or render this remedy ineffective. However, the contested amount in the present case did not prevent the applicant from bringing an action nor did it render the relevant legal remedy ineffective.

- Consequently, the Court declared inadmissible the alleged violation of the right of access to a court for being manifestly ill-founded.

Mehmethan Kamburoğlu

2019/27554

31 January 2024

(Plenary)

Violation of the presumption of innocence safeguarded by Articles 36 and 38 § 4 of the Constitution

- Alleged violation of the presumption of innocence on the grounds that the administrative court’s reasoned decision contained statements insinuating the applicant’s culpability by referring to criminal proceedings that had not resulted in a final conviction.

- The applicant, a specialist sergeant trainee, successfully passed the gendarmerie recruitment examination. However, his contract was terminated due to security clearance concerns, which resulted in an administrative appeal for annulment.

- In its annulment decision regarding the impugned act, the trial court noted that the applicant was accused of threat and intentional injury, resulting in a suspension of the pronouncement of the judgment (HAGB).

- The trial court found the applicant’s actions lawful, recognizing his legitimate expectation to remain in his post due to successful recruitment and training. However, upon appeal by the Gendarmerie General Command, the Regional Administrative Court quashed the judgment and dismissed the action. The applicant’s subsequent appeal was dismissed with final effect.

- The administrative court deemed the applicant guilty of the offences and convicted him, despite the issuance of the HAGB decision, due to the nature and gravity of the offences. This conclusion was reached even though the criminal proceedings had not led to a final conviction, and the termination of the applicant’s contract was not based on substantiated legal facts and circumstances.

- The administrative court failed to examine the facts and circumstances of the criminal proceedings, attributing criminal liability to the applicant without a final conviction. Accordingly, such a conclusion undermined the applicant’s innocence and rendered ineffective the HAGB decisions.

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

Press Release

E.2018/117

7 December 2023

(Plenary)

Annulment of certain provisions of Decree-Law no. 703

- Law no. 7142 authorises the Council of Ministers to issue decree-laws to ensure compliance with the constitutional amendments made by Law no. 6771.

- It is specified in the legislative intent of Law no. 7142 that since the parliamentary government system has been replaced by the Presidential government system through certain constitutional amendments, some arrangements are also required in the relevant laws. Thus, Decree-Law no. 703 has been issued in order to make amendments to certain laws and decree-laws to ensure compliance with constitutional amendments.

-The constitutionality review of decree-laws is intended to examine their compliance with not only the Constitution but also the empowering act on which they are based in terms of their subject, purpose, scope and principles.

- The repealed Article 91 of the Constitution prohibited the regulation of certain issues by decree-laws. Accordingly, the Turkish Grand National Assembly may empower the Council of Ministers to issue decree-laws on the matters that are not within the area prohibited to be regulated by decree-laws.

- In terms of a constitutionality review, a decree-law shall be annulled, in accordance with the aforementioned Article 91, if it is found not to comply with the empowering act or it concerns an issue that falls within a prohibited area.

- In its review of the contested provisions of Decree-Law no. 703, the Court has discovered that the said provisions are not covered by Law no. 7142, that some of them are incompatible with the purpose of Law no. 7142, and that some of them contain regulations on rights and freedoms falling outside the sphere of decree-laws.

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

E.2023/110

1 February 2024

(Plenary)

Annulment of the provision discharging asset management companies from the liability to pay certain fees indefinitely

- The contested provision stipulates that the transactions carried out by asset management companies and the papers issued in relation thereto shall be exempt from the fees to be paid in accordance with the Law no. 492 on Fees.

- It is argued that fee exemption granted to asset management companies for an indefinite period of time amounts to granting privileges to these companies, which is in breach of the

principle of equality before the law as well as the rule of law.

- The Court has analysed whether there is an objective and reasonable ground for the said difference in procedure implemented in favour of asset management companies.

- Such a significant advantage in favour of asset management companies results in a situation to the detriment of other enterprises. Hence an increase in the profit rates of the former by reducing their expenses.

- The Court has concluded that the persistent difference between asset management companies and other enterprises is not proportionate.

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

E.2024/10

4 April 2024

(Plenary)

Annulment of the provision necessitating the consent of the board of creditors for authorising certain transactions of the debtor in the concordat process

- The contested provision stipulates that if the debtor, who has been granted a delay during the concordat process, requests the incumbent court’s authorisation to carry out the relevant transactions in order to make certain disposals, the court would need the consent of the board of creditors.

- The provision is claimed to be incompatible with the principle of the independence of the courts.

- The Court considers that according to the contested provision, the courts enjoy no discretion to assess whether the creditors’ refusal to give consent is the most appropriate solution in the interests of the parties.

- It should be borne in mind that a fair balance between the parties can only be struck by ensuring the review of the decision issued by the board of creditors as well as granting the judge discretion.

- Depriving the courts of discretionary power would be incompatible with the positive obligations of the State.

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

Case

Decision

Case-Law Development

Related

Ahmet Özgan and Şule Özgan

2020/21347

İsmail Tuncel

2019/8609

21 December 2023

(Plenary)

Violation of the right of access to a court safeguarded by Article 36 of the Constitution

-Alleged violation of the said right due to the authorities’ failure to rely on the additional expert reports which calculated higher amounts of damages as well as the authorities’ failure to compensate the applicants’ actual damages in the respective proceedings in relation to traffic and work accidents.

As regards the applicants Ahmet Özgan and Şule Özgan

- Following the death of their relative in a traffic accident, the applicants brought an action for compensation against the insurance company and the owner of the vehicle.

- In the course of the proceedings, an expert report was issued to calculate the amount of pecuniary compensation to be awarded to the applicants.

- In the additional report issued upon the request of the defendant, the loss of financial support suffered by the applicants was calculated higher than the amount specified in the first report, and therefore, the applicants claimed the excess amount by bringing an additional action.

- The court refused to rely on the additional report and dismissed the applicants’ compensation claims, considering that the applicants’ failure to contest the first expert report constituted a procedurally vested right in favour of the other party.

- The failure to compensate the applicants’ actual damages on solely procedural grounds resulted in the deprivation of the rights afforded to them under the substantive law.

- Accordingly, the relevant procedural practice rendered ineffective the action brought by the applicants, thereby imposing a heavy and disproportionate burden on them.

-The impugned interference with the right of access to a court was disproportionate.

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

As regards the applicants Ahmet Özgan and Şule Özgan

- The applicant was injured in a mining accident, as a result of which he suffered a ruptured tendon in his left foot and an incision in his right hand.

- In the course of the proceedings, the first medical report issued in respect of the applicant determined the applicant’s degree of permanent incapacity for work as 14%.

- Another report that was subsequently issued upon the objection of the defendant employer determined the applicant’s disability rate as 19%.

- Despite the higher amount of the loss of financial support calculated in the additional report and the applicant's claims for the excess amounts through an additional action, the court refused to rely on the additional report and based its decision on the first report on solely procedural grounds.

- The impugned procedural practice rendered ineffective the action brought by the applicant to avail himself of the said right, thereby imposing a heavy and disproportionate burden on him.

- The interference with the right of access to a court was disproportionate.

- The determination of the rate of disability on the part of the persons in cases whereby compensation is sought for the damages arising from the loss of capacity for work due to work accidents is a technical issue requiring expertise.

- Therefore, in such a technical issue, an individual cannot be expected to precisely foresee the actual disability rate while bringing an action and to formulate/limit his claims accordingly.

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

Press Release

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E.2018/95

27 December 2023

(Plenary)

Annulment of the third paragraph added to Article 28 of Law no. 1219 on the Practice of Medicine and Related Arts/Medicine Sciences

- The contested provision envisages that the medical officers studying at medical faculties for and on behalf of the Ministry of National Defence and the Gendarmerie and Coast Guard Academy, who have been dismissed on the basis of a court decision or disciplinary board decision without completing the envisaged period of compulsory service, cannot perform the practice of medicine during the remaining period of compulsory service.

- It is argued that the ban on the exercise of the practice of medicine for a long period of time by military doctors, who have been dismissed from the military forces, lacked any reasonable ground, and that their inability to engage in professional activity for a long period may amount to a disproportionate punishment.

- The legislator has the discretion to prescribe a sanction –in case of military doctor’s failure to fulfil the obligation to perform compulsory service– and to indicate the respective terms and conditions. However, a reasonable balance must be struck between the right to labour and the legitimate aim sought to be attained.

- The contested provision precludes military doctors, who have been dismissed from military forces, from performing their profession as a freelancer or in private or public institutions. The ban is contingent upon the existence of a court decision or disciplinary board decision.

- The medical officers serving at the Turkish Armed Forces are under an obligation of performing compulsory service for a period of 15 years.

- Therefore, those who have been dismissed shortly after being recruited cannot perform their profession for a long period of time: thus placing an excessive burden on such officers.

- The contested provision was found to be not proportionate to the aim of maintaining public order.

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

E.2018/96

27 December 2023

(Plenary)

Annulment of the first sentence of Additional Article 1 § 1 of Law no. 5275 on the Execution of Sentences and Preventive Measures and Additional Article 21 of Decree-law no. 375

- The contested provisions, namely the first sentence of Additional Article 1 § 1 of Law no. no. 5275 on the Execution of Sentences and Preventive Measures and Additional Article 21 of Decree-law no. 375, were added to the legislative texts respectively by Articles 97 and 117 of Law no. 7079.

A. Provision requiring persons detained or convicted of terrorist offenses to attend hearings with specific clothing

- The contested provision provides for that in cases where those who are detained or convicted of offences falling under the scope of Anti-Terror Law no. 3713 are taken out of the penitentiary institution to attend the hearings, they shall be obliged to wear the clothes provided by the administration of the penitentiary institution: intended to ensure the order of the hearing.

- It is already stipulated in Articles 203 and 204 of the Code of Criminal Procedure no. 5271 that the presiding judge or the judge may order the removal of a detainee/convict disrupting the order of the hearing, on condition of not precluding the exercise of the right to defence.

- As is seen, Articles 203 and 204 of Code no. 5271 will apply to the cases where a detainee/convict wears clothing with symbols or writings intended to disrupt the order of the hearing: thus, the contested provision failed to fulfil the necessity criterion.

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

B. Provision entailing the exemption of the public officer who prevents the reinstated public employee from resuming work from paying public damage

- The contested provision stipulates that if the employment contract terminated by the public officer acting on behalf of the administration is found to have no valid reason or the employee whose reinstatement is decided is not reinstated by the public officer acting on behalf of the administration, the public officer refusing to carry out the reinstatement shall be exempted from public damage, if incurred.

- Such an exemption may lead to arbitrary practices by the public officers.

- Therefore, holding accountable the public officers who cause public damage due to their own negligence would have a deterrent effect against arbitrary and unlawful actions.

- The contested provision contravenes the principle of rule of law.

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

E.2023/116

22 February 2024

(Plenary)

Annulment of Article 166 § 4 of the Turkish Civil Code no. 4721

- The contested provision envisages that in cases where upon the elapse of three years following the finalisation of a decision whereby the action for divorce was dismissed, family unity cannot be ensured for any reason whatsoever, the divorce request of one of the spouses may be granted due to the complete breakdown of marriage.    

- It is argued that the period sought for the grant of divorce request is not fair in that the divorce can be carried out after a long period of time; and that such period leads to individuals to have an extramarital relationship, which is in breach of the right to improve and protect the individual’s corporeal and spiritual existence as well as the State’s obligation to protect the family.

- It has been observed that the contested provision, stipulating the elapse of three years for the possibility of obtaining divorce, is intended to protect and maintain the family institution, as the foundation of the Turkish society.

- It is within the legislator’s discretion to determine the conditions for deeming the marriage as completely breakdown due to the spouses’ failure to re-establish a common life. However, such conditions should not make it significantly difficult to obtain a divorce and should not force the parties to continue the marriage union for an unreasonable period of time.

- It should be also considered that the first condition, dismissal of a divorce action, also takes a certain period of time, as is also the case for the finalisation of the dismissal decision.

- Therefore, it has been concluded that in cases where the common life cannot be re-established, it is not possible for spouses to obtain a divorce decision within a reasonable period of time: placing an unbearable burden on those concerned.

- No reasonable and proportionate balance was struck between the right to respect for private life and the aim to protect the family.

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

E.2023/78

22 February 2024

(Plenary)

Annulment of certain amended provisions of Article 54 of Law no. 2547 and amended Article 7 § 5 of Law no. 7034

A. Provision Restricting Certain Activities such as distributing leaflets, hanging posters or banners inside the higher education institutions

- The contested provision stipulates that activities such as distributing leaflets, hanging posters or banners without permission in the higher education institutions shall be punished with a reprimand, imposing a restriction on the students’ freedom of expression.

- It is undoubted that actions such as distributing leaflets, hanging posters or banners are preferred for purposes of attracting attention and forming public opinion, as such methods allow individuals to reach large masses in a more striking way with less burden.

- However, making such actions subject to a disciplinary sanction in the absence of permission amounts to a categorical restriction of the freedom of expression and does not correspond to any pressing social need.

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

B. Provision imposing a disciplinary sanction for holding meetings at higher education institutions without permission

- The contested provision envisages that the holding of meetings at closed or open spaces within the higher education institutions without obtaining permission from the authorities shall be subject to disciplinary punishment of suspension from the higher education institution for a period of one week to one month.

- Article 34 § 1 of the Constitution, which reads “Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission”, clearly sets forth that the holding of meetings and demonstration marches cannot be subject to the condition of obtaining permission.

- It has been thus observed that the contested provision contravenes Article 13 of the Constitution, which provides for that the restrictions cannot be contrary to the letter of the Constitution.

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

C. Provision imposing a disciplinary sanction on university students for their criminal actions in the absence of a court decision

- The contested provision envisages that a student who has allegedly carried out activities on behalf of an organization or aided the organization without being a member of it shall be subjected to disciplinary sanction without any need for a final court decision.

- In cases where it is found out that a student has performed aforementioned activities, he/she shall be expelled from the higher education institution. These acts are already classified as offence in the legislation.

- However, the question of whether the student who will be subjected to a disciplinary sanction has indeed committed the said acts is ascertained not through a final decision to be issued by a court, but through an administrative act: in breach of the presumption of innocence.

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

D. Provision allowing a particular university to use forests free of charge

- The Turkish-Japanese University of Science and Technology (University) is a state university established by Law no. 7034.

- The contested provision stipulates that the University will not be charged any fee, including rent, for its use of forest land.

- The allocation of a forest land to a University explicitly pursues an aim in the public interest. However, such an allocation must be justified also by a “state of necessity”.

- As set forth in Article 169 § 1 of the Constitution, the State is obliged to enact the necessary legislation and take the measures required for the protection and extension of forests.

- Thus, it is not possible to allocate forests lands free of charge.

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

Case

Decision

Case-Law Development

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E.2021/28

18 January 2024

(Plenary)

Annulment of certain provisions of Law no. 7262 on the Prevention of Financing of the Proliferation of Weapons of Mass Destruction

A. Provision restricting the right to protection of personal data

- The contested provision envisages that the persons, institutions or organisations, from whom/which the Inspection and Cooperation Commission (“Commission”) seeks any information or document with respect to the implementation of Law no. 7262, cannot abstain from submitting such information and document by virtue of any other laws.

- It has been observed that the contested provision necessitates the submission of information and documents -in the form of personal data- to the Commission, without the relevant safeguards and basic principles as to the collection, use, and process of personal data being prescribed by law: thus, imposing a restriction on the right to protection of personal data and contravening Articles 13 and 20 of the Constitution.

- Nor does the contested provision contain any safeguard with respect to the protection of trade secret or any information acquired in the performance of certain professions entailing trust and confidentiality, which are also to be submitted to the Commission when requested, without any exception.

B. Provision entailing the unauthorised seizure of goods and property collected for charity and their subsequent transfer to the public treasury

- It should be, in the first place, ensured that in case of any irregularity in the charity process, any goods or money collected during this process be returned to the original possessor.

- However, if it is not possible to do so, then such goods or money may be transferred to public treasury, as a last resort.

- Accordingly, the Court has concluded that the contested provision imposes an unnecessary restriction on the right to property in the context of the principle of proportionality.

C. Provision empowering the Ministry of Interior and the local authorities to give instructions to other Ministries and Institutions

- It is envisaged in the contested provision that, reserving the provisions in the lex specialis laws, the associations and any form of facility or establishment operating under the associations shall be inspected by the respective ministries and institutions, upon any order by the Ministry of Interior (“Ministry”) or local authorities.

- Pursuant to Article 106 of the Constitution, there is no hierarchical order/relation or superiority/subordination among ministers and ministries. Therefore, the ministers and ministries are not entitled to give orders or instructions to one another.

- The Court has thus concluded that the contested provision, creating a hierarchical relationship between the Ministry/local authorities and the other ministries/institutions, contravenes Article 123 of the Constitution.

D. Provisions on the suspension from office of the persons holding office in the associations and their replacement

1. Provision on the suspension from office of those who are holding in any organ of the associations, other than the general assembly, as well as of these organs

- The contested provision envisages that in case of any prosecution initiated against persons holding office in any organ of an association, other than the general assembly, for certain offences laid down in Law no. 6415 and Code no. 5237, these persons or the organs where they hold office may be suspended from office by the Minister of Interior as a temporary precaution.

- The provision provides no time-limit for the duration of this precaution.

- Besides, the contested provision, enabling the suspension of the respective organs where such persons hold office, leads to the suspension from office of other officials against whom there is, indeed, no prosecution.

- The Court has thus concluded that the provision imposes a disproportionate restriction on the right to freedom of association. 

2. Provision allowing for the replacement of the organs/officials suspended from office through a court decision

- It is prescribed that in case of suspension from office of the officials having being subjected to criminal prosecution for committing any offence under Article 32 of Law no. 5523, a trustee shall be appointed to replace them through a court decision.

- The Court has recently noted in its decision no. E.2005/8 K. 2006/2 that if any member or official holding office in any organ of the association resigns for any reason, the procedure according to which the election/assignment process will be conducted shall be indicated in the charter of every association, as a natural requirement of the right to freedom of association.  

- Thus, the replacement of the suspended organs/officials through appointment by a court decision is not a more lenient means of interference to be applied as a last resort.

- Thus, the Court has concluded that the restriction imposed by the contested provision on the right to freedom of association does not meet a pressing social need.

E. Provision having a potential effect on the confidentiality between lawyer and client

- Professional secrets and information acquired during the exercise of the profession of lawyer are afforded privileged protection within the meaning of the right to respect for private life.

- The contested provision requires the self-employed lawyers to disclose professional secrets and information obtained during the exercise of their profession to the administration, without any additional safeguard or mechanism being prescribed.

- Thus, the Court has found that the contested provision imposes an excessive burden on the self-employed lawyers, and that the restriction on the right to respect for private life is disproportionate and incompatible with the requirements of a democratic society.

* Consequently, the above-cited provisions have been found unconstitutional and thus annulled.

E.2023/100

1 February 2024

(Plenary)

Annulment of the third sentence of Article 5 § 2 of Law no. 6237 on Ports Construction

- The contested provision provides that the organisations operating the facilities, the substantial repair of which will be undertaken by the Ministry of Transport and Infrastructure, shall be obliged to transfer an amount corresponding to 10% of their annual gross revenue to the state treasury, in return for the substantial repair.

- It is argued that the contested provision imposes a restriction on the right to property, that the notions “substantial repair” and “gross revenue” cited therein are vague in nature, and that no definite method for the calculation of the amount to be transferred to the state treasury is indicated.

- The Court has noted that, the contested provision intended for attaining the aim of ensuring the continued performance of the activities of the facilities transferred to the local administrations, necessitates an annual payment of 10% of the gross revenue so as to secure the cost of substantial repairs envisaged to be undertaken by the central administration.

- However, it is not taken into consideration that the substantial repair may not be necessary every year, and that the real cost of substantial repair may be less than the indicated rate.

- Nor does the contested provision provides any opportunity for sett-off in case of an overpayment.

- The Court has thus found that the contested provision imposes a disproportionate interference with the fiscal autonomy of local administrations, thus in breach of Article 127 of the Constitution.

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

E.2023/163

22 February 2024

(Plenary)

Annulment of Article 226 § 4 of Code of Criminal Procedure no. 5271

- The contested provision, where the procedures regarding the steps to be taken in case of any change in the characterisation of an offence during the proceedings are laid down, sets forth that the written notifications shall be made to defence counsel, if any, and that the defence counsel shall exercise the rights afforded to the accused person in the same way and to the same extent as the latter himself.

- It is argued that although the notion “written notification” is cited in the contested provision, there is no such indication in the paragraphs referred to in the provision; that there is no definite and precise explanation as to the scope of the rights afforded to the accused person, that the failure to ascertain the rights to be exercised by the defence counsel is contrary to the principle of legal certainty, and that the contested provision leads to the substitution of the legal assistance by the defence counsel with the accused person’s defence submissions.

- The trial court may change the legal characterisation of the offence, formerly attributed by the investigation authority, which is also entitled to make a subsequent change in the characterisation thereof during the proceedings.

- As a requirement of the principles of equality of arms and adversarial proceedings, the accused person is to be informed of such change for reformulating his defence submissions according to the recent classification of the offence.

- However, pursuant to the contested provision, the accused person’s case may be concluded even with a conviction decision through the defence made by the defence counsel upon a notification, without informing the accused person of the change in the legal characterisation of the offence he committed and the sentence imposed on him.  

- This procedure deprives the accused person of the opportunity to affect the outcome of the proceedings.

- The Court has accordingly concluded that the provision imposes a disproportionate restriction on the right to a fair trial. 

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

Case

Decision

Case-Law Development

Related

Fatih Özaltın and İbrahim Esinler

2019/17374

29 November 2023

(Plenary)

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

-Alleged violation of the right to respect for private life by imposing a five-year restriction on income-generating professional activities as a condition for professorial promotion.

-The applicants, Fatih Özaltın and İbrahim Esinler, associate professors at Hacettepe University, challenged the condition after facing obstacles in their promotion to professor due to their engagement in private medical practices.

-Initially, the Constitutional Court annulled a legal provision requiring medical academics to cease private practice, thus allowing the applicants to continue their professional activities. However, their promotion was blocked by another requirement.

-The Court ruled that imposing a five-year cessation of income-generating activities does not improve academic quality and has no legal basis under Law no. 2547 on Higher Education, thus violating the right to respect for private life.

-The Court found that the absence of a specific legislative provision regulating such a condition invalidates the interference with private professional activities and constitutes a violation of constitutional rights.

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

Press Release

Ahmet Kardam and Others

2019/29604

13 December 2023 (First Section)

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

 -Alleged violation of the right to respect for private life due to failure of public authorities to fulfil their positive obligations.

-The applicants alleged that their right to respect for private life had been violated due to the dismissal of their action for annulment against the EIA decision in favour of a power plant project.

-The Court observed that the subject matter of the dispute was related to the waste landfill area of the power plant and the surrounding olive grove.

-In relation to the waste landfill area of the plant, the inferior courts merely found that it had not been used and that the contracts had been concluded for the sale or the storage of the existing waste, but they failed to inquire into alternative ways of re-purposing waste and the environmental impact of manners of waste storage and whether measures and obligations had been regulated in this regard.

-In relation to the olive grove surrounding the plants, the trial court reached two different and contradicting conclusions, nor did it provide any grounds to eliminate this contradiction.

-Accordingly, the Court concluded that the incumbent public authorities failed to act with due diligence, to assess public and individual interests as required and to fulfil their positive obligations under the right to respect for private life.

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

Press Release

E.2020/52

27 December 2023

(Plenary)

Annulment of certain provisions of the Presidential Decree no. 1, regulating the authority of the Ministry of Industry and Technology

A. Provision enabling the Ministry of Industry and Technology to have third parties inspect the conformity of industrial products with relevant regulations

- The contested provision stipulates that the Ministry may have third parties inspect industrial products for compliance with administrative and technical regulations and Turkish standards.

- While it is laid down in Article 47 of the Constitution that real persons or legal entities may be involved in the provision of public services through private law contracts, the type of public services to be provided through such contracts must be determined by law. Thus, the said regulation cannot be made by a presidential decree.

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

B. Provision authorizing the Ministry to establish revolving fund enterprises

- The contested provision, in addition to authorising the Ministry to establish revolving fund enterprises, regulates the determination of the amount of the revolving fund, the addition of the profits to the capital, and the recording of these profits as income to the general budget.

- It has been observed that the revolving fund enterprises specified in the provision are directly related to public revenues and expenditures and that the incomes to be obtained are classified as public revenues.

- Considering that the income to be obtained as a result of the activities of the revolving fund enterprises is public revenue, the regulations regarding the establishment, capital structure and income-generating activities of the said enterprises should be made exclusively by law.

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

Case

Decision

Case-Law Development

Related

Ayşe Durucan Saygı and Others

2020/17478

29 November 2023

(Plenary)

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

- Alleged violation of the right to access to a court due to the failure to notify the action for annulment concerning the entire oral examination in which the applicants had passed successfully.

- The Trade Union of Office Civil Servants lodged an appeal for the annulment of the entire oral examination, which was dismissed by the administrative court. The Union’s appeal against the dismissal was rejected by the regional administrative court, which annulled the examination, and the Council of State dismissed defendant administration’s appellate request without examining it, on the grounds that the decision was final.

- In the present case, the applicants were deprived of the possibility of presenting their arguments on the merits of the dispute, on the matters which they considered to be capable of affecting the outcome of the case, as well as of submitting evidence to substantiate their claims.

- Accordingly, the Court has found that the burden of the failure to resolve the matters which can be remedied by legal provisions on the implementation of the notification procedure is entirely placed on the applicants and that the impugned interference with the applicants’ right to access to a court has been disproportionate.

- Consequently, the Court has found a violation of the right of access to a court within the scope of the right to a fair trial.

Press Release

Serdar Güzelçay and Others
2022/66987

21 December 2023 (Plenary)

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

-Alleged violation of the freedom of expression due to denial to deliver the books posted to certain persons in penitentiary institutions.

-The applicants, who were detainees or convicts in different penitentiary institutions, claimed that their freedom of expression had been violated due to denial to deliver the books posted to them.

-The Court assessed that the practice of preventing the delivery of non-periodical publications in prisons under the current system constitutes a structural problem.

-The Court found it essential to take administrative and legal measures in respect of the delivery of the non-periodicals to the prisoners and to establish effective procedures in order to ensure that the non-periodicals are provided to the prisoners through the use of uniform and fair mechanisms in compliance with the criteria set out by the Court.

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

Press Release

E.2022/129

8 November 2023

(Plenary)

Dismissal of the request for annulment of Article 217/A added to the Turkish Criminal Code no. 5237 by Article 29 of Law no. 7418

- It is envisaged in the contested provision that those who publicly disclose incorrect information regarding the internal and external security of the country, public order and public health, which potentially damages public welfare, for merely creating panic, fear or anxiety among the public shall be sentenced to imprisonment.

- It is argued that the contested provision amounts to manifest interference with the freedom of expression; that the term “incorrect information” is vague and may lead to unforeseeable consequences in the interpretation of the provision; and that besides, the Turkish legal system has other means capable of combatting misinformation.

- The Court has observed that the contested provision has been formulated in a sufficiently clear and precise manner, which excludes any doubts as to the nature and circumstances of the offence and the prescribed sanction: thus, the provision has been found to satisfy the requirement of lawfulness.

- Prescribing imprisonment for the imputed act would undoubtedly serve the purpose of preserving public welfare, thus preventing the disturbance of public order: it has a legitimate aim of maintaining public order and safety.

- Besides, those sentenced to imprisonment by virtue of that provision have the opportunity to lodge an appeal against the sentence. 

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

E.2019/72

28 December 2023

(Plenary)

Annulment of the Presidential Decree –as a whole– no. 34 on the Justice Academy of Türkiye  

- The contested Presidential Decree no. 34 lays down the principles and procedures as to the establishment, duties and powers of the Justice Academy of Türkiye.

- It is argued that the main objective of the Presidential Decree no. 34 concerns the training of the candidate judges and prosecutors as well as the in-service training of judges and candidates, which should have been regulated by law; and that these issues are not a matter falling under the realm of executive power and cannot be, therefore, regulated through a presidential decree.

- The Justice Academy established through Presidential Decree no. 34 is empowered to arrange in-service training of judges and prosecutors. As it is set forth in Article 140 of the Constitution that “in-service training” of judges and prosecutors shall be regulated by law, this matter can in no way be regulated by law.

- As to the prevocational training of candidate judges and prosecutors, it should be acknowledged that “qualifications of judges and prosecutors” laid down in Article 140 of the Constitution also cover the admission to the profession and candidacy period. Therefore, all processes regarding candidate judges and prosecutors are to be regulated by law pursuant to the independence of courts and tenure of judges.

- Besides, the judges and prosecutors who may be assigned or appointed to the Academy as an academic or rapporteur-judge are subject to the provisions laid down in Article 140 of the Constitution, despite undertaking an administrative duty. Therefore, such issues should have been also regulated by law.

- Consequently, taken as a whole, the Presidential Decree no. 34 has been found unconstitutional and thus annulled.

E.2022/93

18 January 2024

(Plenary)

Annulment of paragraph 3 added to Article 3 of the Presidential Decree no. 14 on the Organisation of the Directorate of Communications, Presidency of the Republic of Türkiye

- The contested provision envisages the establishment of the Presidential Communication Centre (CİMER), an official platform founded to enable Turkish citizens to contact the public institutions and organisations for submitting their requests, considerations and suggestions and to obtain result in an effective and rapid manner. The provision also sets forth that the principles and procedures as to the functioning of CİMER be determined through a regulation to be issued by the Presidency.

- It is argued that the contested provision falling within the realm of the right to legal remedies and the rights to petition and to information pertains to an issue that cannot be regulated through a presidential decree, as the statutory arrangements restricting fundamental rights and freedoms are to be introduced exclusively by law.

- The Court has noted that the rights to petition and to information are enshrined in Article 74 of the Constitution, thus afforded constitutional safeguard.

- As set forth in Article 104 of the Constitution, the fundamental rights, individual rights and duties included in the first and second chapters and the political rights and duties listed in the fourth chapter of the second part of the Constitution shall not be regulated by a presidential decree.

- The Court has observed that the duties and activities performed by CİMER falls into the scope of the rights to petition and to information enshrined in Article 74 of the Constitution: a matter that cannot be regulated through a presidential decree, but exclusively by law.

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

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M.S.

2020/15221

5 October 2023

(Second Section)

Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution

-Alleged violation of the said right due to the judicial review of detention without a hearing.

- The trial court held a hearing ex officio where it adjourned the future hearings for an indefinite period of time within the scope of the measures taken against the pandemic. During the subsequent proceedings, the court reviewed the applicant’s detention over the case file on different dates and insisted on the continuation of the applicant’s detention on remand.

- In the examination of the complaints regarding the duration of protection measures, the Court should not only take into consideration the periods specified by law, but it should also make a constitutional assessment as to whether the periods specified by law or the period in a given case is reasonable.

- During the impugned period, the applicant could not verbally raise, before the judge/court, his objections to challenge his detention on remand, his claims regarding the content or characterization of the evidence adduced against him, his statements against the opinions and assessments in favour of or against him, as well as his requests for release.

- Therefore, it has been concluded that the review of the applicant’s detention on remand for more than 2 months without holding a hearing did not comply with the principles of equality of arms and adversarial proceedings.

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

Press Release

E.2020/55

28 December 2023

(Plenary)

Dismissal of the request for annulment of certain provisions added to the Higher Education Law no. 2547; whereas annulment of certain provisions thereof

A. Provisions regulating the sanction of reprimand for lecturers

1. Provision regarding the imposition of reprimand on lecturers who verbally disrespects their supervisors

- The contested provision imposes a restriction on the freedom of expression. It is laid down in Article 26 of the Constitution that the said freedom may be restricted for certain purposes such as maintaining public order.

- It has been observed that the provision aims to ensure the order of the institution. Therefore, it pursues the legitimate aim of ensuring public order, which is a pressing social need in a democratic society.

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

2. Provision regarding the imposition of reprimand on lecturers who act contrary to the duty of care required by the nature of their profession

- Considering that lecturers may disrupt the order and negatively affect the functioning of higher education institutions, which aim to contribute to social development through scientific research and to train qualified workforce, it can be said that the restriction imposed by the contested provision meets a pressing social need.

- However, the provision also allows for a disciplinary sanction to be imposed for behaviours that are not related to the professional life of lecturers. In this regard, it has been concluded that the impugned restriction on the right to respect for private life is not compatible with the requirements of the democratic social order.

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

B. Provisions regulating the temporary suspension and revocation of the operating licence of foundation universities

- The contested provision stipulates that where it is determined, in accordance with the opinion of the Ministry of Treasury and Finance and the decision of the Council of Higher Education, that a foundation university cannot afford to pay its due and short-term debts with its annual education revenues or its assets, its operating license shall be suspended temporarily.

- The contested provision imposes such a heavy measure that it jeopardizes the future of the educational and training activities of these institutions. Besides, the aim pursued by the aforementioned provision may also be achieved through gradual measures. Therefore, the measure stipulated therein is unnecessary and disproportionate.

- Another contested provision stipulates that if it is determined by the guarantor university and approved by the Council of Higher Education that a foundation university, whose operating license has been temporarily suspended, does not own sufficient property for educational and training activities or will not be able to continue its activities with its existing assets, its operating license shall be revoked upon the decision of the President.

- Revocation of the operating license is an irreversible administrative act.

- A foundation university may be closed down only by law. In this sense, the impugned administrative act is in breach of constitutional safeguards.

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

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E.2023/104

11 October 2023

(Plenary)

Annulment of the first sentence of Additional Article 106 § 6 of the Law no. 2802 on Judges and Prosecutors

- The contested provision stipulates that members of the Court of Cassation and the Council of State shall be paid monthly additional compensation in an amount to be calculated on the basis of the indicator value of 40,000, while it is to be calculated on the basis of the indicator value of 15,000 for other judges and prosecutors.

- It is argued that the impugned provision may disrupt the working peace and harmonious and efficient work environment in the judicial institutions, thus precluding the independence of the judiciary.

- The members of the Court of Cassation and the Council of State do not differ from the judges and prosecutors holding office in the courts of first instance and courts of appeal in the common judicial branch in terms of the “tenure of judges” enshrined in the Constitution.

- Such a difference must be based on objective, reasonable and compelling reasons and must not disrupt the collaboration between judicial and administrative courts, which is a pre-requisite for ensuring the rule of law and effective functioning of the judicial service.

- As a matter of fact, in exercising its discretionary power, the legislator is bound by the principle of proportionality, which is also a requirement of the rule of law.

- The difference envisaged by the contested provision is both unreasonable and disproportionate.

- Therefore, the provision is contrary to the principle of equality in terms of the rule of law and right to property.

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

E.2022/90

30 November 2023

(Plenary)

Dismissal of the request for annulment of Additional Article 18 § 3 of the Fundamental Law on Healthcare Services no. 3359, taken in conjunction with Article 18 § 2 thereof, insofar as it concerns the phrase “Public institutions and organisations…”; whereas annulment of the same provision, insofar as it concerns the phrase “…state universities…”.

- It is envisaged in the contested provision that the Personal Liability Board (“the Board”) shall be authorised to decide, within one year, whether to recourse to the relevant person for the compensation already paid by the administration due to the medical procedures and practices related to the examination, diagnosis and treatment performed by physicians, dentists and other healthcare professionals serving in public institutions and organisations and state universities as well as determining the amount of recourse, taking into account whether the relevant person engaged in malpractice.

- It is maintained that the Board cannot be impartial, given its appointment procedure and composition, which is in breach of the right to a fair trial and right to an effective remedy of physicians and other healthcare professionals as well as aggrieved parties.

A. As regards the phrase “Public institutions and organisations…”

- The Constitution does not specify the authority to decide on recourse in terms of compensation liability on account of the negligent and wrongful acts on the part of public officials in the performance of their duties. Besides, it is laid down in Article 40 of the Constitution that the authority to decide on recourse shall be conferred upon the state.

- There is no constitutional barrier to authorise another authority to decide on recourse.

- In addition, the decisions of the Board shall be subject to judicial review.

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

B. As regards the phrase “…state universities…”

- As specified in Article 130 of the Constitution, the administrative autonomy shall not grant unlimited administrative authority to universities. It is also explicitly envisaged therein that the central administration shall supervise and inspect universities.

- The budget of universities shall be prepared by the universities themselves, and thus, the authority to take decisions on financial matters within constitutional boundaries rests with the universities. In the same vein, the state universities shall also be authorised to decide on the recourse of the compensation paid out of their own budget.

- Accordingly, the establishment of a Board authorised to take decisions that may have a bearing on the budget preparation authority of the universities that enjoy administrative and financial autonomy is incompatible with the limits of the tutelage of the central government.

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

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Halkın Kurtuluş Partisi (3)
2019/30833

27 September 2023 (Plenary)

Violation of the freedom of political organisation safeguarded by Article 68 of the Constitution

-Alleged violation of the freedom of political organisation due to the decision finding ipso facto dissolution of political party organisation.

- The applicant, a political party, claimed that its freedom of political organisation had been violated due to the decision ruling that the relevant organisations of the party had been ipso facto dissolved due to their failure to hold provincial and district congresses within the prescribed period.

-The Court has assessed that according to the Turkish Civil Code no. 4721, merely the legal representatives of political parties bearing legal and financial responsibility and the Chief Public Prosecutor’s Office at the Court of Cassation were entitled to seek, before a court, the ipso facto dissolution of a political party. However, in the present case the district governorships and provincial governorships made such a request.

-The Court has also indicated that the authorities failed to consider political parties as a whole together with their organisations.

-Accordingly, the decisions on the determination of the ipso facto dissolution in the present case failed to meet the criteria of lawfulness.

-Consequently, the Court found a violation of the freedom of political organisation.

Press Release

Nuriye Ayhan Altıner

2020/1327

4 October 2023

(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 right to protect and improve one’s corporeal and spiritual existence due to dismissal of a preventive measure request.

- The applicant complained that while she was serving as a neighbourhood representative during the organisation of a political party congress, she had been threatened in absentia by M.K. and R.T., members of the same political party. Upon the request of the Chief Public Prosecutor’s Office for the adoption of a preventive measure pursuant to Law no. 6284, the family court indicated a measure ordering M.K. and R.T. to refrain from threatening the applicant.

- Having examined the appeal, the Family Court (appeal authority) held that the court’s decision be quashed with final effect.

-In the present case, the family court failed to provide any concrete explanation, assessment or grounds as to whether the threats made by the male persons against the applicant, who was a woman, were due to her sex and whether the act constituted a violence against women.

- Accordingly, it is evident that the approach of the family court, which leads to the conclusion that circumstances other than domestic violence and stalking, or all acts of violence against women committed in the non-domestic context, should be excluded from the scope of Law no. 6284, is in breach of constitutional safeguards.

- The Court has concluded that the final decision failed to provide relevant and sufficient grounds as regards the applicant’s right to the protection of her corporeal and spiritual existence and the incumbent court had not acted in accordance with its positive obligations to adopt certain measures to protect the applicant as a victim of violence.

- Consequently, the Court found a violation of the right to protect and improve one’s corporeal and spiritual existence.

Press Release

E.2020/76

11 October 2023

(Plenary)

Annulment of certain provisions of the Law on regulations regarding publications on the internet and crimes committed through these publications

A. As regards the amendment of certain phrases included in Article 8 of Law no. 5651 by Article 4 of Law no. 7253

- It is laid down in the contested provisions that the phrase “…blocking of access…” included in the first sentence of Article 8 § 4 of Law no. 5651 shall be replaced by the phrase “…removal of the content and/or blocking of access…”; and the phrase “…to the access provider…” included in the first sentence of Article 8 § 11 thereof shall be replaced by the phrase “…to the relevant content, hosting and access provider…”.

- There is no constitutional barrier to taking various judicial or administrative measures regarding a criminal suspect, provided that the relevant measure is temporary and taken in connection with ongoing criminal proceedings.

- It has been observed that the measure envisaged by the contested provisions, which is “…removal of the content…”, has no connection with criminal proceedings and is of final nature. Therefore, it is in breach of the presumption of innocence.

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

B. As regards the amendments to Article 9 of Law no. 5651 by Article 5 of Law no. 7253

- It is laid down in the contested provisions that the phrase “…blocking of access…” included in Article 9 § 5 of Law no. 5651 shall be replaced by the phrase “…removal or content and/or blocking of access…”; the phrase “…blocking of access…” included in the first sentence of Article 9 § 9 thereof shall be replaced by the phrase “…removal or content and/or blocking of access…”, and Article 9 § 8 shall be amended; and the phrase “…the concerned …” included in Article 9 § 11 thereof shall be replaced by the phrase “…those responsible for content, hosting and service providers…”, and Article 9 § 10 shall be amended.

- The contested provisions impose a restriction on the freedom of expression by allowing for removal of the content of the publications on the internet and/or blocking of access to these publications, as well as a restriction on the freedom of the press in consideration of the fact that such a publication may fall under the scope of internet journalism.

- The impugned provisions do not propose a gradual interference regarding the restriction of the said contents, but impose a hindrance for an indefinite period of time that should be the last resort.

- Thus, the provisions do not provide procedural safeguards to prevent arbitrary actions on the part of the public authorities. Nor do they contain the safeguards to ensure a proportionate decision-making process in accordance with the requirements of the democratic social order.

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

E.2023/134

30 November 2023

(Plenary)

Annulment of the provision stipulating that damage assessment reports can only be challenged in conjunction with main procedures

- The contested provision stipulates that damage assessment reports prepared as a result of the examination of the state of the land where the disaster occurred as well as all structures and public facilities can only be challenged in conjunction with the main procedures.

- It is argued that the inability to bring a direct action against the damage assessment process is in breach of the right to property since the owner’s right on the impugned property would be restricted after the aforementioned process; and that since it is hardly possible to carry out the procedures of demolition and ownership for undamaged and slightly damaged structures, waiting for such procedures will not provide a legal benefit, which renders the right of access to a court ineffective.

- With the damage assessment reports, the structures on a given land is labelled regarding their technical compliance and earthquake resistance. Such reports, which function as a means of labelling in terms of the construction quality of the structures, affect the right to property of the owners.

- Besides, there is no legal remedy allowing for the examination of the lawfulness of damage assessment reports which might affect the economic value of the structure due to the damage status determined.

- Accordingly, inability to bring a direct action to challenge an administrative act affecting the value of the immovable property is unconstitutional.

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

E.2023/101

30 November 2023

(Plenary)

Annulment of Article 326 § 2 of the Code of Civil Procedures no. 6100 in so far as it concerns the phrase “…action for compensation on the ground of seizure without expropriation”

- The contested provision sets forth that in the actions for compensation on the ground of seizure without expropriation, if both parties are found partially successful at the end of the proceedings, the court shall order the payment of litigation costs on a percentage basis.

- It is argued that the provision infringes on the very essence of the right to property and renders this right dysfunctional.

- In the actions for compensation filed on the ground of seizure without expropriation, the finding of the complainant partially unsuccessful does not change the fact that the relevant administration manifestly acted in breach of the Constitution.

- In this sense, even in cases where such action for compensation filed by the complainant is partially dismissed, the complainant should be provided with the constitutional safeguard entailing the payment of actual compensation price for the seized property.

- However, as the complainant is held liable, pursuant to the contested provision, for the payment of certain ratio of the litigation costs in the actions partially accepted, he cannot obtain the actual compensation price for the seized property: contrary to the wording of Article 46 of the Constitution.

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

E.2023/129

30 November 2023

(Plenary)

Annulment of Article 144 § 4 of the Turkish Civil Aviation Code no. 2920, which was amended by Article 29 of Law no. 6758

- The contested provision sets forth that those who fail to obey the rules set by the Directorate General for Civil Aviation (administration) concerning the unmanned aerial vehicles as well as the measures to be taken by the administration so as to regulate the civil aviation shall be sentenced to an administrative fine.

- It is argued that the power to designate the elements of the acts, which are subject to an administrative fine, is indeed exercised by the legislative body, but the contested provision grants this power to the administration, which is in breach of the nullum crimen, nulla poena sine lege principle.

- The Court has observed that the provision does not exhaustively enumerate the rules to be imposed concerning the unmanned aerial aviation vehicles and the measures to be taken in this sense. Nor is there any such provision in Law no. 2920 or any other legislation.

- Involving no explanation as to the scope and nature of the acts envisaged to be subject to a sanction, the contested provision merely refers to rules and measures to be designated by an administrative authority and to the competent authority empowered to impose the sanction.

- Thus, this provision enables the introduction of rules by the administration, through secondary legislation, in the sphere of fundamental rights and freedoms.

- The Court has accordingly concluded that the contested provision offering no preventive measure against possible arbitrary practices by the administration contravenes the nullum crimen, nulla poena sine lege principle.

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

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Ali Kömürcü and Others
2019/2890

25 October 2023 (Plenary)

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

-Alleged violation of the right to property due to the ineffectiveness of the decision annulling the urgent expropriation procedure.

-The applicants claimed that their right to property had been violated due to the refusal to annul the decision on public-interest grounds and the expropriation decision, as well as to the registration of the immovable properties under the name of the administration despite the annulment of the Council of Ministers’ decision as to the application of the urgent expropriation procedure.

-The Court assessed that the failure of judicial courts to consider the decisions on the stay of execution rendered by the administrative courts against the urgent expropriation decisions as preliminary issue and the prolongation of the administrative proceedings deprived the institution of the stay of execution of the prospect of providing an effective redress. The Court also observed a structural problem in this matter.

-Therefore, the Court concluded that the interference with the right to property by way of the urgent expropriation procedure, which resulted in the deprivation of the property, did not meet the lawfulness criteria.

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

Press Release

Şerafettin Can Atalay

2023/99744

21 December 2023

(Plenary)

Violations of the right to individual application, right to stand for election and engage in political activities, and right to personal liberty and security, respectively safeguarded by Articles 148, 67 and 19 of the Constitution

- Alleged violation of the right to individual application due to denial of enforcement of the Court’s judgment finding a violation.

- The applicant, one of the defendants in the criminal case known to the public as the Gezi Park trial, had requested his release, since he had been elected as an MP, thereby being entitled to legislative immunity. The applicant’s request had been dismissed pending further examination on the merits. Upon the individual application lodged by him, the Court found violations of the applicant’s right to stand for election and engage in political activities, as well as his right to personal liberty and security.

- However, the Court of Cassation rendered a novel decision, which did not have a basis in Turkish law, stating that “the Court’s judgment would not be complied with”.

- According to the Court, failure to enforce its judgments contravenes Article 153 § 6 of the Constitution, which provides that the judgments of the Court shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies.

- Failure to enforce the Court’s judgments amounts to a flagrant and grave violation of the right to individual application which constitutes a special form of the right to an effective remedy. Such a failure would render the individual application mechanism ineffective.

- The Court is exclusively vested with the authority to adjudicate, in a final and binding manner, the cases regarding the constitutionality of the acts, actions and omissions of the public authorities. In this sense, once the Court concludes in a given individual application that a fundamental right or freedom has been violated, no other authority may examine or supervise whether the Court’s judgment complies with the Constitution or the law.

- Consequently, the Court found violations of the applicant’s right to individual application, right to stand for election and engage in political activities, as well as right to personal liberty and security.

Press Release