Case-Law Summary

 

Case

Decision

Case-Law Development

Related

I. Individual Application

Levon Berç Kuzukoğlu and Ohannes Garbis Balmumciyan

2014/17354

22 May 2019

 (Plenary)

Violation of the freedom of religion safeguarded by Article 24 of the Constitution

 

 

 

- Alleged violation of the applicants’ right due to dismissal of the request for election of Turkey’s Armenian Patriarch.

- The Governor’s Office dismissed the request as the patriarchate’s office was not vacant but notified that an election for a "general acting patriarch" could be held. Accordingly, it was held by the Turkey’s Armenian Clerical Committee. The applicants brought an administrative action, maintaining that the election should have been held by the Assembly of the Delegates mainly consisting of the Civilians.   

- In the Code of Regulations governing the election process, all circumstances when the patriarchate’s office shall be deemed vacant are listed not exhaustively; but instead the phrase “for various reasons” (esbab-ı saire) is stated therein: both the administration and administrative court failed to consider/interpret this phrase.

- Interference with the applicants’ freedom of religion due to dismissal of the request for election of Turkey’s Armenian Patriarch was not found to comply with the requirements of a democratic society.

Press Release

 

Birgün İletişim ve Yayıncılık Ticaret A.Ş.

2015/18936

22 May 2019

 (Plenary)

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

- Alleged violation of the applicant’s freedoms due to the order denying access to a piece of news published through a web-site of a national-scale newspaper.

- Access to the impugned news whereby images of a terrorist’s dead body dragged by an armoured vehicle were published was denied by virtue of the order issued by the Magistrate Judge.

- Failure to demonstrate the causal link between the content of the news and the reason for denial of access, as well as existence of any exigent situation.

- Failure to strike a balance between the freedom of expression and the democratic society’s legitimate right to protect itself against the activities of terrorist organisations.

- No relevant and sufficient reason to demonstrate that the impugned interference met a pressing social need and was thus compatible with the requirements of a democratic society.

 

 

Metin Birdal

2014/15440

22 May 2019

 (Plenary)

No violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

- Alleged violation of the applicant’s right as his previous participation in certain demonstrations were used as evidence in convicting him for his membership of a terrorist organization.

- The first instance court convicted him not due to his activities in these demonstrations but for his membership of a terrorist organization. His participations were referred to as one of the activities proving his membership and demonstrating the continuous nature of his acts.

- His participation was not the only evidence relied on by the instance court which also took into consideration, inter alia, phone records, intelligence information, police reports, notices, the applicant’s acts and roles in certain demonstrations.

- Impugned interference was found to meet a pressing social need as he posed a severe threat to the democratic life.

-A fair balance was struck between the society’s right to live in an environment free from terrorist acts and the applicant’s right in question: interference was compatible with requirements of a democratic society.   

 

Ahmet Parmaksız

2017/29263

22 May 2019

 (Plenary)

No violation of the freedom of organization safeguarded by Article 33 of the Constitution

- Alleged violation of the applicant’s right due to his having been imposed disciplinary punishment for labour union-related activities.

- The impugned activity of the applicant who was a public official - work stoppage for two days to protest the attacks of the ISIS terrorist organization against Kobane- was not directly related to his economic or social interests, but had a political aspect.

- A public official shall not be allowed not to go to work except for the cases set forth in the Law and the force majeure.

- Interference with the applicant’s freedom of organization was not disproportionate.

 

 

Y.T.

2016/22418

30 May 2019

(Plenary) 

Violation of the right to an effective remedy safeguarded by Article 40 of the Constitution

 

(Pilot judgment procedure)

- Alleged violation of the applicant’s right for lack of an effective legal remedy to challenge the decision ordering his deportation to a country where he would face the risk of ill-treatment.

- The applicant raised his allegations before the administrative judicial authorities to the effect that he would face the risk of ill-treatment in his country and he filed an individual application at the same time.

- The applicant maintained that he could not wait the outcome of the proceedings before the administrative court as he was under a constant risk of deportation at any stage of the proceedings.

- Problem stemmed from a legislative amendment, not from the practice of the administrative court or its misinterpretation of the legislation. The said amendment has not been compatible with the right to life, prohibition of ill-treatment and right to an effective remedy, which are safeguarded by the Constitution, as well as the relevant established case-law of the Constitutional Court.

-Pilot judgment procedure was adopted, as a structural problem prevailed. 

Press Release

Durmuş Fikri Sağlar

2015/2769

30 May 2019

 (Plenary) 

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

 

- Alleged violation of the right of the applicant, a well-known politician and author-journalist, due to dismissal of the action for compensation he had brought to challenge the expressions against his honour and dignity.

- The applicant is expected to be more tolerant to the criticisms against him.

- Inferior court succeeded to strike a balance between the freedom of expression and the right to protection of honour and dignity.

- Criticisms against the applicant could not be regarded as an attack to his personal rights.

- Manifestly ill-founded. 

 

Mehmet Ali Gündoğdu and Mustafa Demirsoy

2015/8147

8 May 2019

(First Section)

Violation of the freedom of expression safeguarded by Article 20 of the Constitution

- Alleged violation of the applicants’ freedom due to dismissal of the request for registry of their work of art which should have been qualified as a movie.

- The applicants’ request for registration of their work of art as a movie was dismissed by the Ministry as it was allegedly incompatible with public order and the other principles enshrined in the Constitution as well as with human dignity. The administrative action brought by them was also dismissed, and the decision became final after being upheld by the Council of State during the appellate process.

- Impugned work was found to include no element praising any terrorist organization, romanticizing, inciting or justifying violence but rather tries to introduce a different perspective to terrorist problem. Dialogues included therein were not considered as a terrorist propaganda but as a tragic and ironic expression of the sad events.

- The instance court’s failure to show the best interest inherent in the maintenance of public order and constitutional principles vis-à-vis the applicants’ freedom of expression, as well as to consider the work as a whole.

Press Release

Doğukan Bilir

2014/15736

29 May 2019

(First Section) 

Violation of the prohibition of torture safeguarded by Article 17 of the Constitution

-Alleged violation of the applicant’s right for his having been battered during the Gezi Park protests.

- The applicant had sustained injuries that could not be cured by a simple medical treatment as a result of the ill-treatment he had been inflicted by three persons, two of whom had been police officers.

- The criminal court imposed administrative fines and suspended the pronouncement of the judgment. The sanction was disproportionate to the prohibition of torture, therefore failed to provide a sufficient redress. The applicant’s victim status could not be removed. 

 

Abuzer Uzun

2016/61250

13 June 2019

(Second Section)

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

- Alleged violation of the applicant’s right for his having been denied to attend his brother’s funeral.

-  The applicant had been placed in pre-trial detention on suspicion of membership of the FETÖ/PDY terrorist organization. The penitentiary institution and the district police directorate considered that the applicant’s attendance to the funeral would cause no security problem; however, upon the district gendarmerie command’s comment, the prosecutor dismissed the applicant’s request.

- The reason for dismissal was not based on convincing information or documents.

- Failure to strike a fair balance between the general public interest and the applicant’s situation: Interference did not comply with the requirements of the order of the democratic society. 

 

 

 

 

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

Ahmet Hüsrev Altan

2016/23668

Ayşe Nazlı Ilıcak

2016/24616

Mehmet Murat Sabuncu

2016/50969

Akın Altay

2016/50970

Önder Çelik and Others

2016/50971

Ahmet Şık

2017/5375

Murat Aksoy

2016/30112

Ahmet Kadri Gürsel

2016/50978

Ali Bulaç

2017/6592

2-3 May 2019

 (Plenary)

No violations of the right to personal liberty and security safeguarded by Article 19 of the Constitution as well as the freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution (in the cases of Ahmet Hüsrev Altan, Ayşe Nazlı Ilıcak, Mehmet Murat Sabuncu, Akın Altay, Önder Çelik and Others)

Inadmissibility of the alleged violations of the same right and freedoms (in the case of Ahmet Şık)

Violations the same right and freedoms (in the cases of Murat Aksoy, Ahmet Kadri Gürsel and Ali Bulaç)

- Alleged violations of the former right due to unlawfulness of their detention and of the latter freedoms as the imputed acts indeed fell within the scope of these freedoms.

*No violation: Regard being had to the particular circumstances of each case, it was neither arbitrary not unfounded for the investigation authorities to consider that there existed a strong indication of guilt; the applicants’ detention had a legal basis; their detention was proportionate.

*Inadmissibility: Alleged violation of the said right and freedoms as the impugned news, articles and social media posts fell under the scope of the freedoms of expression and the press as well as involved no criminal element.

- Existence of evidence indicating strong suspicion of guilt; the applicant’s detention had factual basis and proportionate.

*Violation: Alleged violation of the said right and freedoms as the elements of the charges against them had not been proven and their detention had been ordered for their social media posts and articles.

 - Investigation authorities’ failure to prove that the applicants’ articles and posts did not fall within the scope of the freedom of expression.

- No indication of a strong suspicion of the applicants’ guilt.

- Detention, which is a severe measure if not satisfying the condition of lawfulness, cannot be regarded as a necessary and proportionate interference, in a democratic society, in terms of the freedoms of expression and the press. 

Press Release

 Mehmet Osman Kavala

2018/1073

22 May 2019

 (Plenary)

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

Inadmissibility of the alleged violation of the right to fair trial

*Alleged violation of the applicant’s former right as there was no concrete information as to the imputed offences and his detention was ordered in the absence of any criminal guilt and evidence proving his guilt.

-No violation: The applicant, a business man, was taken into custody within the scope of an investigation conducted into the acts of Gezi Park incidents and then detained for allegedly attempting to overthrow the constitutional order and the Government of the Republic of Turkey and to prevent it from performing its duties.

- Given the general circumstances of the Gezi Park incidents during which certain violent acts took place, particular circumstances of the present case and the detention order issued by the Magistrate Judge, the grounds for applicant’s detention had factual basis.

-His detention was found to be proportionate; and the Magistrate Judge’s conclusion that conditional bail would remain insufficient was considered neither arbitrary nor unfounded.  

*Alleged violation of his latter right due to the restriction order on the investigation file.

- Inadmissibility: The Magistrate Judge issued a restriction order on the investigation file; however, this restriction was no longer applicable as the indictment had been accepted by the relevant court. Besides, during his questioning and statement-taking process, the applicant was asked questions about the content of documents with restricted access and presented detailed defence submissions.

 

 

 

 İoanis Maditinos

2015/9880

8 May 2019

(First Section)

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

- Alleged violation of the applicant’s right due to non-recognition of his capacity as an heir for the lack of reciprocity between Turkey and Greece

- Certificate of inheritance of the applicant, who is no longer a Turkish nation for being deprived of Turkish citizenship, was revoked, and the immovable of which he is the only heir was assigned to the State Treasury.

- Non-recognition of his status as the only heir of the testator’s immovable located in İstanbul for lack of reciprocity between Turkey and Greece.

- The inferior court’s failure to provide reasonable and sufficient justification for revocation of the applicant’s certificate of inheritance in the absence of any explicit provision whereby Turkish citizens were not allowed, at the material time, to acquire property by inheritance in Greece: interference was devoid of a foreseeable legal basis.

Press Release

Ezgi Özen

2015/12753

8 May 2019

(First Section)

 

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

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

 

 

- Alleged violation of the prohibition of ill-treatment due to the use of disproportionate force by the police officers.

- Conflicting reports as to whether there had been a causal link between the alleged interference by the police and the applicant’s having suffered a miscarriage: lack of an effective investigation.

- In addition, lack of due diligence in the protection of the right to hold meetings and demonstration marches.

 

 

Edip Elma and Others

2015/14826

18 April 2019

(First Section)

Violation of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

- Alleged violation of the prohibition of ill-treatment for having been subject to verbal and physical ill-treatment by the police officers and for their having been left unpunished.

- The criminal court found that one of the applicants had been assaulted by the police officers. In this case, the Court needed no further assessment to conclude that the State had failed to fulfil its negative obligation.

- Failure to inflict punishment proportionate to the gravity of the offence.

- Imposition of fine on the police officers and suspension of the pronouncement of the judgment against them might erode the confidence in the judicial system and rule of law.

 

 

Güral Doğan

2015/7453

18 April 2019

(First Section)

No violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution

 

- Alleged violation of the applicant’s right due to imposition of administrative fine for attending a demonstration march.

- Traffic flow was stopped. Unreasonable effect on the rights of others, which cannot be regarded as a natural consequence of the right to hold meetings and demonstration marches.

- Interference served a pressing social need.

Press Release

M.E.

2018/696

9 May 2019

(Second Section)

 

 

Violations of the right to personal liberty and security as well as the right to a fair trial respectively safeguarded by Articles 19 and 36 of the Constitution

- Alleged violations of the former right due to inadequate amount of compensation awarded for custodial measure as well as the latter right due to the failure to consider the applicant’s claim for compensation for being subject to conditional bail.

- Amount of compensation awarded for his wrongful custody was low to the extent that would impair the essence of the right to compensation.

- In spite of being capable of altering the amount of compensation and thereby the outcome of the compensation action, the applicant’s claim for compensation for being subject to conditional bail was not discussed and taken into consideration by the inferior courts: violation of the right to a reasoned decision falling within the ambit of the right to a fair trial.

Press Release

İlker Deniz Yücel

2017/16589

28 May 2019

(Second Section)

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

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

 

 - Alleged violations of the rights of the applicant, a journalist, due to his detention on the basis of his journalistic activities, in the absence of a reasonable suspicion of guilt.

- Inferior court’s failure to prove that the interview made by the applicant had aimed at making terrorist propaganda. No indication of strong suspicion of guilt.

- Detention, which is a severe measure if not satisfying the condition of lawfulness, cannot be regarded as a necessary and proportionate interference, in a democratic society, in terms of the freedoms of expression and the press.

- Interference with the applicant’s said rights did not serve a pressing social need.

 

 

II. Constitutionality Review

E.2018/136

10 April 2019

(Plenary)

Annulment of the relevant provisions of Law no. 2308 whereby benefits and amounts against time-barred debts of stock corporations shall be transferred to the State.

- Contested provision envisaging transfer of time-barred dividend receivables to the State might lead to irreparable consequences in terms of the relevant corporations and their partners.

- It constitutes an interference with the right to property: the interference is unconstitutional as being disproportionate for placing an extra-ordinary and excessive burden on the owner. 

- Less severe means may be applied to achieve the same aim.

- Accordingly, Article 2, 3 and 4 of the same Law were also annulled for being no longer applicable upon the annulment of the above-mentioned provision.

 

 

 

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

Ünal Gökpınar

2018/9115

27 March 2019

(Plenary)

No violation of the principle of not to be tried or punished again for the same offence safeguarded by Article 36 of the Constitution

-Alleged violation of the said principle due imposition of punishments as a result of both administrative and judicial processes related to tax affairs.

- In accordance with this principle, an individual cannot be tired or punished again for the same offence. However, this principle is not absolute, and the same offence may have different consequences in different legal disciplines.

- The principle is applicable solely to criminal cases, therefore it does not constitute an obstacle to bringing a civil action or launching a disciplinary investigation for the same offence alongside the criminal investigation.

-Imposition of different sanctions for the same offence within the scope of different disciplines (in the present case, administrative and judicial processes) is not in breach of the said principle.

 

 

Recep Bekik and Others

2016/12936

27 March 2019

(Plenary)

 

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

 

 

- Alleged violation of the said freedom of the applicants who were prisoners, due to non-delivery arbitrarily and without any justification of the periodicals they had subscribed to or purchased.

- The criteria outlined by the Court in terms of accepting publications to penal institutions have not been implemented properly.

- Lack of uniform assessments as well as clear, guiding and consistent practices, capable of preventing arbitrariness, on the part of the courts in similar cases: ongoing structural problem in the current system when it comes to accepting publications to penal institutions.

- If no effective system is established, the structural problem will continue, thereby leading to the continuous violation of the freedom of expression.

 

 

 

 

Abdulkadir Yapuquan

2016/35009

2 May 2019

(Plenary)

 

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

- Alleged violation of the applicant’s right due to the unlawfulness of his detention in the Removal Centre; alleged unlawfulness of holding a foreigner in administrative detention for more than twelve months.

- Lack of legal grounds such as public order and public security justifying the administrative detention of the applicant: unlawful deprivation of liberty.

- Applicant applied to the Constitutional Court and the ECHR for his release, which demonstrated that he was not being held in the Removal Centre at his own request.

 

 

Türkiye İş Bankası

2016/2400

3 April 2019

(First Section)

 

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

- Alleged violation of the right to property due to collection of taxes on the contributions that were paid on behalf of the employees.

- The rule which provides that the contributions made to the Foundation shall be taxed was adopted in 2012; therefore, cannot be applicable to the period before 2012.

- Existence of and interference with the right to property on the basis of an unforeseeable legal provision.

 

 

Mehmet Geçgel

2014/4187

18 April 2019

(First Section)

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

- Alleged violation of the applicant’s right due to the rejection of his request for redress of his damages arising from terrorist events, due to his previous sentence which had indeed been suspended and thus had not been final.

- The administrative court dismissing the applicant’s request for compensation relied on a judgment that had not become final: manifestly erroneous assessment.

 

 

Mehmet Özhaseki

2015/4972

8 May 2019

(First Section)

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

- Alleged violation of the right of the applicant, a mayor, due to rejection of the action for compensation that he had brought due to certain allegations voiced by a politician against him at a public meeting, which according to him damaged his personal rights: manifestly ill-founded.

- Politicians, public figures and public officials may be subject to more severe criticisms due to their position and are expected to become more tolerant to criticisms.

- In parallel, politicians’ freedom of expression must be broader.

- Expression of thoughts about the events that occurred in a municipality is a natural result of a democratic political system.

 

 

Kemal Kılıçdaroğlu and the Republician People’s Party (CHP)

2014/12482

8 May 2019

(First Section)

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

- Alleged violation of the right of the applicants, main opposition party and its leader, due to the news published in a newspaper: manifestly ill founded.

- Politicians, public figures and public officials may be subject to more severe criticisms due to their position and are expected to become more tolerant to criticisms.

- Freedoms of expression and the press are of vital importance in a democratic society.

- The expressions in the impugned news did not exceed the limits of criticism.

- Democratic pluralism entails more tolerance on the part of politicians to criticisms against them.

-Fair balance struck between the freedoms of expression and the press and the individual’s right to protection of his moral integrity.

 

 

Nihat Zeybekçi

2015/5633

8 May 2019

(First Section)

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

- Alleged violation of the right of the applicant, member of parliament, due to the words used by a political party leader at a group meeting: manifestly ill-founded.

- Politicians, public figures and public officials may be subject to more severe criticisms due to their position and are expected to become more tolerant to criticisms.

- The applicant had the opportunity to respond to the unfavourable remarks against him.

- Fair balance struck between the defendant’s freedom of expression and the applicant’s right to protection of his honour and dignity.

 

 

Timur Demir

2018/33190

9 May 2019

(Second Section)

Inadmissibility of the alleged violation of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

- Alleged violation of the applicant’s right due to his being placed in a single room in the penitentiary institution: manifestly ill-founded.

- The alleged measure intends to prevent any cooperation to commit crimes and to maintain security and discipline in penitentiary institutions.

- He did not complain about the physical conditions which were completely favourable in terms of social facilities and the possibility of meeting his relatives.

- Detention conditions did not reach the minimum threshold of severity.

 

 

Sadettin Ekiz

2016/9364

9 May 2019

(Second Section)

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

- Alleged violation of the right of the applicant, property owner, due to collection of the counsel’s fee from him in the expropriation proceedings.

- Fair balance between the public interest pursued by the interference and the applicant’s right to property was disturbed to the detriment of the applicant.

- Judicial authorities’ obligation to conclude the proceedings at little cost: not fulfilled (disproportionate cost)

- Collection of the expenses from the applicant imposed an excessive burden on him.

- Proportionality assessment as regards the expenses is different in the expropriation cases from the other types of cases.

 

 

II. Constitutionality Review

E.2017/154

10 April 2019

(Plenary)

Dismissal of the request for annulment of the provision stipulating that the counsel fee shall be paid to the lawyer

- Contested provision stipulates that the counsel fee to be charged from the other party to the case by a court decision relying on the Minimum Attorneyship Fee Tariff shall be paid to the lawyer.

- It is disputed that in addition to the payment of an attorney fee to the lawyer by the client, the counsel fee that is subsequently awarded by the court in favour of the client (prevailing party) is also paid to the lawyer, which bestows a privilege upon the lawyers: allegedly in breach of the right to legal remedies as well as the principles of fair trial.

- The counsel fee that is specified in the provision is not the attorney fee arising from the agreement between the lawyer and the client, but a fee awarded by the court on the basis of the Minimum Attorneyship Fee Tariff.

-The contested provision does not prejudice the legality or scope of the attorney agreements signed by the parties on an equal basis with their free will.

 

 

 

 

 

 

E.2017/154

10 April 2019

(Plenary)

Dismissal of the request for annulment of the provision stipulating that no disciplinary punishment shall be imposed on the law enforcement officers in the absence of a disciplinary investigation

- Contested provision stipulates that where disciplinary supervisors consider that an inquiry is needed against one of their subordinates due to his undisciplined acts or inappropriate behaviours, then a disciplinary investigation will be launched.

- It was argued that the contested provision vested the disciplinary supervisors with the authority to impose disciplinary punishments even in the absence of a disciplinary investigation: allegedly in breach of Articles 10 and 129 of the Constitution (respectively, “equality before the law” and “disciplinary decisions shall not be exempt from judicial review”).

- The contested provision, read as a whole, stipulates that where a disciplinary supervisor considers that an inquiry is needed into a case, then he will launch a disciplinary investigation. On the other hand, where he considers that no inquiry is needed, then he will not take any action. Accordingly, it does not vest the disciplinary supervisors with such authority as alleged.

 

 

E.2019/9

11 April 2019

(Plenary)

Annulment of the provision precluding retroactive application of the law more favourable to the accused

- Contested provision, which is included in the Law no. 6750 on Pledge over Movable Properties in Commercial Transactions, stipulates that this Law shall not be applicable to the cases pending by the date of its entry into force.

- It was argued that the contested provision precluded the retroactive application of new legal provisions that were more favourable to those accused of the offences committed when the abolished law had been in force.

- Application of the less favourable law retroactively is prohibited by virtue of the principle of legal certainty and security; however, retroactive application of the more favourable law is a requirement of the principles of justice and fairness in conjunction with the rule of law.

- Application of the less favourable provisions included in the abolished law will result in an unpredictable punishment for the individuals

- Principle of legality of crimes and punishments is also at stake.

 

Press Release

E.2019/6

11 April 2019

(Plenary)

Annulment of the provisions allowing the reinstatement of the heads of professional organizations who resigned to stand for parliamentary and local elections

- Contested provisions stipulate that heads and board members of the Turkish Union of Chambers and Commodity Exchanges, as well as the heads and board members of professional organizations, who resigned to stand for parliamentary and local elections, can be reinstated, if they lose the elections.

- The union and organizations in question, established under respectively Law nos. 5174 and 5362, have public institution status.

- It was argued that the reinstatement had no reasonable ground and was not proportionate.

- Different practices, related to elections, between the heads of professional organizations governed by Law nos. 5174 and 5362 and those of other professional organizations with public institution status: Violations of the principle of equality, as well as right to be elected.

 

 

Case

Decision

Case-Law Development

Related

I. Individual Application

B.P.O

2015/19012

27 March 2019

(Plenary)

Violation of the right to protect an individual’s corporeal and spiritual existence safeguarded by Article 17 of the Constitution

No violation of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the former right for being subject to an intrusive body search by a woman police officer as the applicant −a national of Colombia− was suspected of transporting narcotic drug.

- Intrusive body search had no legal basis for being conducted without the knowledge and order of a public prosecutor: in breach of the constitutional right as the necessary conditions prescribed by law for this type of search were not satisfied.

- Alleged violation of the latter right for her conviction on the basis of illegally obtained evidence.

- The applicant convicted of importing narcotic drugs and psychotropic substances challenged not the whole evidence but the one obtained illegally.

- Examination as to whether the challenged evidence impaired the fairness of the proceedings as a whole: no impairment as not being the sole and decisive evidence.

- The other relevant criteria (equality of arms, adversarial proceedings, examination on the merits of the applicant’s allegations and sufficient justification) were also satisfied in the present case.

 

Hasan Akboğa

2016/10380

27 February 2019

(Plenary)

Violation of the right to personal liberty and security safeguarded by Article 19 § 9 of the Constitution

No violation of Article 19 § 3 of the Constitution

 

 

- Alleged violation of the applicant’s right due to his wrongful arrest and custody for his alleged membership of a terrorist organization.

- As concerns Article 19 § 3: no violation as the applicant’s arrest had a legal basis, a factual basis conforming suspicion of criminal guilt, was necessary given the risk of his fleeing based on the severity of the envisaged penalty for such offences, and was proportionate.

- As concerns Article 19 § 9: the applicant’s action for compensation brought upon the decision of non-prosecution was dismissed due to the non-fulfilment of the necessary conditions.

- However, if a decision of non-prosecution is issued following a person’s arrest, he may request the State to redress his pecuniary and non-pecuniary damages pursuant to Law no. 5271: the applicant’s case falls into the ambit of this provision.

 

Mustafa Demiraydın 2015/1051

21 March 2019

(First Section)

 

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

- Alleged violation of the applicant’s right due to imposition of an administrative fine as a result of participating in a press statement in a peaceful environment.

- Right to hold meetings and demonstration marches aims at protecting the rights of the individuals who express their opinions in a peaceful manner without resorting to violence.

- As a requirement of the pluralistic democracy, the State is expected to show patience and tolerance to the non-violent acts that do not pose a threat to the public order.

-Administrative fine: unnecessary in a democratic society.

- Failure to strike the fair balance between the measures taken and the applicants rights within the scope of Article 34.

 

A.D.

2014/19506

3 April 2019

(First Section)

 

Violation of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

- Alleged violation of the said prohibition due to the risk of applicant’s extradition to a third country if being deported to his/her country of nationality.

- In issuing a deportation order, public authorities are to take into account whether there is any risk of extradition of the person concerned to any country where he/she will be allegedly subject to ill-treatment. The receiving country’s being a member of the Council of Europe or a party to the European Convention on Human Rights does not per se eliminate the obligation to conduct an inquiry into the alleged ill-treatment.

- The Court’s violation in the present case does not amount to an acknowledgement of his allegations that in case of his/her deportation to his/her country of nationality, he/she would be extradited to the USA where he/she would be allegedly ill-treated.

- The Court ordered a re-trial and halted the applicant’s deportation until the conclusion of his/her re-trial.

 

 

Ayşe Çelik

2017/36722

9 May 2019

(Second Section)

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

- Alleged violation of the freedom at stake as the applicant did not intend to justify, or incite to, violence or hatred but indeed used peaceful expressions during a live TV show.

- Impugned interference was incompatible with the necessities of a democratic society: her expressions included no element praising or supporting terrorism, or directly or indirectly inciting to violence or an armed resistance, but concerned issues of public interest.


Press Release

İbrahim Sözer and Others

2016/10425

4 April 2019

(Second Section)

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

- Alleged violation of the applicants’ right due to the failure to expropriate for over 30 years their immovable allocated for public service and to redress the damages incurred.

- Although the administration decided to no longer expropriate their immovable, no amendment was made to the development plan: relevant restrictions such as construction ban remained in force.

- The public authorities’ failure to indemnify the applicants put an excessive and extraordinary burden on them, which upset the fair balance to be struck between their right to property and the public interest.

 

Eyüp Kurt

2015/6926

4 April 2019

(Second Section)

Violation of the right to protect corporeal and spiritual existence safeguarded by Article 17 of the Constitution

- Alleged violation the applicant’s right due to the proceedings conducted into his having been permanently disabled allegedly as a result of medical negligence.

- Lack of the medical records at the material time, which resulted in a failure to determine whether the doctor as well as the medical institution in question were responsible for the applicant’s disability: the applicant was at a disadvantage before the respondent administration.

- Inferior courts dismissed the applicant’s case in the absence of sufficient grounds based on concrete evidence: excessive burden on the applicant; unfair situation.

- The State’s failure to satisfy its positive obligations under the right to protect corporeal and spiritual existence.

Press Release

Hacı Ahmet Yaşartürk and Nurdane Yaşartürk

2014/850

4 April 2019

(Second Section)

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

- Alleged violation of the right to life due to death caused by a temporary village guard not fulfilling the criteria concerning military service and alleged violation of the right to be tried within a reasonable time for failure to conduct an effective criminal investigation.

- The procedural aspect of the positive obligation incumbent on the State within the scope of the right to life requires that in cases of unnatural death, an effective criminal investigation capable of identifying those responsible and, if necessary, punishing them must be conducted: not fulfilled in the present case.

- Investigation not concluded with reasonable speed.

- In addition to finding of a violation, the applicants were also awarded compensation.

 

II. Constitutionality Review

E.2018/156

10 April 2019

(Plenary)

Annulment of the provision concerning the increase to be applied to price of the expropriated property

- Contested provision stipulates that the increase in the price of the expropriated property shall not be higher than the half of the land’s determined price.

- One of the constitutional elements of the expropriation is “actual price”.

- As required by the right to property and the principle pf proportionality, the real value of the expropriated property must be paid to its owner.

- The limitation stipulated by the contested provision might prevent the determination of the real value of the property and hence its payment to its owner; fair balance between the public interest and the right to property is disturbed: unconstitutional.

 

Press Release

Case

Decision

Case-Law Development

Related

I. Individual Application

Çetin Doğan

2014/3494

27 February 2019

(Plenary)

Violation of the right to honour and reputation safeguarded by Article 17 of the Constitution

- Alleged violation of the applicant’s right due to the false news reported with respect to the applicant and the Turkish Armed Forces on the basis of imprecise information as well as fake and fabricated evidence.

- The State’s positive obligation to protect an individual’s honour and dignity, as a part of his spiritual entity, against third persons’ attacks: not fulfilled in the present case.

- The relevant media outlet’s failure to fulfil the duty and responsibility of imparting accurate and reliable information to the public.

- The inferior courts’ failure to make any assessment as to the applicant’s allegations.

- No relevant and sufficient reasons, in the first instance decision, to justify the impugned interference with the applicant’s right to honour and reputation.

 

Murat Demir

2015/7216

27 March 2019

(Plenary)

 

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

 

 

 

- Alleged violation of the applicant’s right due to procrastination of the proceedings initiated for the nullity of the decision removing his foster care status.

- The State’s positive obligation to prevent procrastination of any proceedings initiated for resolution of a legal dispute of a particular concern for the children: not fulfilled in the present case.

- Procrastination of the proceedings in spite of elapse of a six-year period led to legal uncertainty in the applicant’s reunion with the children.

Press Release

Hülya Kar

2015/20360

27 February 2019

(Plenary)

Inadmissibility

(Freedom of expression safeguarded by Article 26 of the Constitution)

- Alleged violation of the applicant’s freedom for being subject to a preventive measure (probation) in the course of an investigation conducted against her for disseminating terrorist propaganda.

- The factors which are taken into account by the Court in examining such applications and which were fulfilled in the present case:

*Whether the aims pursued could have been achieved by alternative means imposing a lesser restriction?

* Whether there was a balance between the aim pursued and the impugned preventive measure?

* Whether the suffering experienced by the applicant exceeded the inevitable level of suffering inherent in such measure?

* Whether this measure was foreseeable and relied on a precise legal arrangement as well as whether it was applied in respect of an individual suspected of having committed an offence?

 

 

Arbay Petrol Gıda Turizm Taşımacılık Sanayi Ticaret Ltd. Şti. ve Arbay Turizm Taşımacılık İthalat İhracat İnşaat ve Organizasyon Sanayi ve Ticaret Ltd. Şti.

2015/15100

27 February 2019

(Plenary)

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

- Alleged violation of the applicants’ right due to dismissal, without an examination on the merits, of the actions brought against the tax assessments made and penalties imposed on the basis of the adjustment statements submitted with a reservation.

- The applicants’ being subject to certain tax penalties and default interest on the basis of the statements submitted with a reservation constituted an interference with their right to property.

- The Court examined whether the impugned interference was proportionate.

- No examination on the merits of the actions. The applicants were therefore deprived of the opportunity to make the impugned taxation process subject to a judicial review.

- The failure to afford procedural safeguards inherent in the right to property imposed an excessive burden on the applicants: leading to the upset of the fair balance between the right to property and the public interest. Therefore, the interference was not proportional.

 

 

 

Kenan Gül

2015/17892

19 February 2019

(First Section)

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

- Alleged violation of the applicant’s freedom for being imposed a judicial fine as the applicant, a lawyer, insulted the opposing party in defending his client.

- A fair balance is to be struck between the opposing party’s right to protect honour and reputation and the applicant’s right to claim and defence as well as freedom of expression.

- The applicant’s expressions were found to be a part of the arguments submitted by him for protecting his client’s interests and to pursue an arguable aim in objective terms.

- The first instance court’s failure to demonstrate the existence of a pressing social need requiring it to impose a penalty on the applicant.

 

Fatma Nazlı Özkay

2016/8023

6 March 2019

(First Section)

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

- Alleged violation of the applicant’s right due to revocation, by a judicial decision, of her construction permit as her immovable was a historical monument required to be under preservation.

- Revocation of the applicant’s construction permit is undoubtedly an interference with her right to property: the question to be examined by the Court is whether the interference was proportionate.

- The impugned interference was found not to impose an excessive burden on her, given the public interest pursued: the fair balance was struck between her right to property and the public interest. Therefore, the interference was found proportional.

 

Abdullah Volkan Arslan

2016/14883

21 March 2019

(First Section)

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

- Alleged violation of the applicant’s right due to dismissal of his objection to the decision of the consumer arbitration committee as being time-barred.

- The receipt date of the notice was not taken as a basis.

- The grounds relied on by the incumbent court were not sufficient and admissible.

- Dismissal decision was not foreseeable, thereby eliminated the applicant’s possibility to use legal remedies.

- Burden imposed on the applicant by the dismissal decision was not proportionate to the legitimate aim pursued.

 

 

Ömer Faruk Eski

2016/1253

21 March 2019

(First Section)

 

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

- Alleged violation of the applicant’s right due to dismissal of the case as being time-barred.

- The applicant, officer in the Turkish Armed Forces, was injured during an operation in 2012. The report issued in 2014 stated that he would not be able to attend his office due to the trauma he had suffered.

- Claim for pecuniary and non-pecuniary damages by the applicant was dismissed as being time-barred.

- Statute of limitations for bringing an action starts to run from the date on which a causal link was established between the damage and the administrative act, even if it was long after the impugned incident.

- Disproportionate interference with the applicant’s right of access to a court.

 

 

 Mehmet Uçar

2015/7357

3 April 2019

(First Section)

 

Violation of the prohibition of treatment incompatible with human dignity safeguarded by Article 17 of the Constitution, in addition to its procedural aspect (lack of an effective investigation)

 

- Alleged violation of the applicant’s right due to illegal use of force by the police officers.

- Applicant got injured as a result of the use of force; interference constituted an ill-treatment.

- Requirement of conducting an effective investigation capable of identifying those responsible and punishing them if necessary: not fulfilled.

- In addition to finding a violation, the applicant was also awarded compensation.

 

 

Ö.T.

2015/16029

19 February 2019

(Second Section)

Violation of the right to protect corporeal and spiritual existence safeguarded by Article 17 of the Constitution

- Alleged violation of the applicant’s right due to dismissal of her request for preventive imprisonment of her husband committing violence against her.

-The Court’s examination as to whether the State’s positive obligation to establish an effective legal system was fulfilled and whether reasonable practical measures required by the administrative and legal legislation were taken.

- The inferior court’s failure to give relevant and sufficient reasons for dismissing the request.

- No legal interest to order a re-trial with a view to redressing the consequences of the violation.

Press Release

Hamit Aydemir

2015/17844

7 March 2019

(Second Section)

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

- Alleged violation of the right to property due to dismissal of the request of the applicant’s guardian for permission from the court to enjoy a legal right on behalf of the applicant, who was disabled, to facilitate his transport.

- The State’s principal duty to ensure the disabled persons to enjoy their fundamental rights and freedoms, thereby encouraging their full and effective participation in society on an equal basis with others.

- Lack of relevant and sufficient reasons in the probate authorities’ decisions and the failure to show due diligence in the protection of the disabled persons’ right to property.

-The State’s failure to fully and effectively satisfy its positive obligations in terms of the protection of the right to property.

 

 

Ruhi Abat

2014/4724

7 March 2019

(Second Section)

Inadmissibility

(Rights to personal liberty and security, to a fair trial and to an individual application)

- Alleged violations of the applicant’s rights due to his detention on remand in the absence of strong suspicion of guilt and to rejection of his request for release without any justification.

- Non-exhaustion of legal remedies (right to personal liberty and security)

- Incompatibility ratione personae (right to a fair trial): For an individual application to be declared admissible, it must be demonstrated that the applicant was directly affected by the violation.

- Manifestly ill-founded (right to an individual application): The applicant had the opportunity to lodge an individual application; Non-communication of the dismissal decision to the applicant did not hinder the applicant from filing an individual application. He could lodge an individual application since the date he became aware of the dismissal decision.

 

 

 Abdulkadir Akgün

2015/19791

20 March 2019

(Second Section)

Violation of the right to organize unions safeguarded by Article 51 of the Constitution

- Alleged violation of the applicant’s right due to his assignment to a different department on the sole ground of his being the provincial representative of a labour union.

- Right to organize unions under the freedom of association constitutes one of the main values of a democratic society.

- Any interference with the said right must serve a pressing social need and be proportionate: failure in the present case.

- The reasons relied on by the administration were not relevant and sufficient.

- Failure to comply with the requirements of the democratic order of the society.

 

II. Constitutionality Review

E. 2016/181

20 December 2018

(Plenary)

 

-Annulment of Provisional Article 10 added to Law no. 775 by Article 12 of Law no. 6745

-Annulment of Additional Article 1 added to Law no. 2942, except for its first paragraph, by Article 33 of the Law no. 6745

- Provisional Article 10 which sets out that in case of any failure in the accomplishment of the allocations, by the administration, of land or residence in a certain region before the entry into force of the Law, the amounts paid to that end shall be returned to the rights holders who shall claim no other right, amount or compensation: allegedly unconstitutional due to the interference with the actions brought by the right holders.

Imposing a disproportionate and unforeseeable burden on the right holders: leading to upset of the reasonable balance between the aims pursued and means for attaining it.

A disproportionate interference with the rights to property and to legal remedies.

- Additional Article 1 which prescribes five years for the implementation of development plans in respect of the immovables allocated for public services and governmental agencies and which lays down the procedure to be followed in case of any failure: allegedly unconstitutional for not pursing a legal interest and intending to hinder the rights likely to be obtained by right holders through a court decision.

The administration’s ability to expropriate depends on its having sufficient funds. Payment in instalments of the expropriation price by the administration is permitted in Article 46 of the Constitution in exceptional cases. However, in case of instalment, the interest rate to be charged is to be the highest rate prescribed for public receivables: not fulfilled in the present case.

- Leading to acquisition of immovables by the administration instead of expropriation: contrary to the principles of legal certainty and foreseeability.

 

E.2019/1

14 March 2019

(Plenary)

Annulment of Article 67 § 2 of the Highway Traffic no. 2918

- Contested provision provides that the vehicles used in breach of the regulations on the manoeuvres of vehicles, be banned from driving for a certain period of time, regardless of its driver.

- In cases where the driver is not the owner of the vehicle, the said penalty is in breach of the principles of individual criminal responsibility and rule of law, as well as the principles of justice and fairness, and therefore is unconstitutional.

 

E.2019/3

14 March 2019

(Plenary)

Dismissal of the Request for Annulment of Article 81 § 1 of the Military Service Law no. 1111

- Contested provision provides that age changes made at an age fit for military service without relying on the official hospital birth records shall not be taken into consideration in recruitment procedures.

- Alleged violations of the principles of rule of law and equality.

- The provision is constitutional: the request for annulment is dismissed.

- The provision aims at maintaining the order in terms of the national service without any disruptions.

- Individuals making age changes on different grounds do not have the same legal status.

- The binding nature of court decisions does not hinder the legislator’s authority to make general arrangements on condition of being in conformity with the Constitution.