Case-Law Summary

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.