Case-Law Summary

Case

Decision

Case-Law Development

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Umut Çongar

2017/36905

21 October 2021

(Plenary)

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

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

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

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

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

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

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

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

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

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

Mustafa Altın

2018/10018

27 October 2021

(Plenary)

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

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

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

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

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

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

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

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

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

Hayat Abdulbari and Muhanned Ferdusi

2018/35788

6 October 2021

(First Section)

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

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

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

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

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

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

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

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

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

Press Release

Mehmet Al

2021/6664

6 October 2021

(First Section)

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

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

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

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

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

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

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

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

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

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

Mahmut Alkan

2018/7436

20 October 2021

(First Section)

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

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

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

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

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

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

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

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

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

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

Aydın Keskin

2019/4746

17 November 2021

(First Section)

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

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

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

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

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

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

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

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

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

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

Muhammet Serkan Şener

2016/13501

17 November 2021

(First Section)

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

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

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

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

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

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

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

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

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

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

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

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

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

Barış İnan (2)

2018/38006

17 November 2021

(First Section)

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

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

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

- His challenges were dismissed by the incumbent courts.

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

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

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

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

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

Adem Erdem

2018/13415

29 June 2021

(Second Section)

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

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

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

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

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

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

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

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

Kadir Kudin

2018/14509

8 September 2021

(Second Section)

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

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

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

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

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

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

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

Necla Yaşar

2020/35444

14 September 2021

(Second Section)

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

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

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

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

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

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

Cahide Demir

2018/25663

14 September 2021

(Second Section)

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

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

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

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

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

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

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

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

E.2018/93

10 October 2021

(Plenary)

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

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

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

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

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

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

E.2018/135

13 October 2021

(Plenary)

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

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

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

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

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

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

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

Case

Decision

Case-Law Development

Related

T.A.

2017/32972

29 September 2021

(Plenary)

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

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

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

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

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

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

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

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

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

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

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

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

Mehmet Alanç and Others

2017/15462

29 September 2021

(Plenary)

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

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

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

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

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

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

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

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

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

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

Vedat Oğuz

2018/35120

15 September 2021

(First Section)

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

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

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

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

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

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

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

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

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

Hilal Erdaş

2018/27658

6 October 2021

(First Section)

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

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

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

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

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

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

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

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

Press Release

E.2021/43

13 October 2021

(Plenary)

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

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

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

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

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

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

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

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

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

E.2020/91

13 October 2021

(Plenary)

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

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

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

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

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

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

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

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

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

E.2021/37

13 October 2021

(Plenary)

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

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

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

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

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

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

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

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

Case

Decision

Case-Law Development

Related

Erol Eşrefoğlu

2018/23111

Behzet Çakar and Others (2)

2019/2333

1 July 2021

(Plenary)

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

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

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

As regards the applicant Erol Eşrefoğlu

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

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

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

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

As regards the applicant Behzet Çakar

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

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

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

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

Ahmet Devlethan

2018/11772

20 October 2021

(First Section)

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

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

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

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

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

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

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

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

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

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Decision

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Nuriye Gülmen and Semih Özakça

2017/27678

15 September 2021

(First Section)

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

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

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

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

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

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

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

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

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

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

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

Metin Bekiroğlu and Özgür Atagün

2018/35266

15 September 2021

(First Section)

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

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

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

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

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

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

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

- Hence, the investigation process lacked effectiveness.

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

Case

Decision

Case-Law Development

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Mahir Engin Çelik and Sakine Esen Yılmaz

2016/8776

7 September 2021

(First Section)

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

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

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

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

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

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

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

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

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

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

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

Press Release

Ali Hizmetçi and Others

2017/18232

7 September 2021

(First Section)

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

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

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

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

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

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

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

Case

Decision

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

2018/3296

30 June 2021

(First Section)

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

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

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

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

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

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

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

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

- The State failed to fulfil its respective positive obligations.

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

B.Y.

2018/30296

7 September 2021

(First Section)

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

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

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

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

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

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

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

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

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

Ali Sadet and Others

2018/6838

8 June 2021

(Second Section)

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

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

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

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

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

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

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

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

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

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

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

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

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

İbrahim Moran

2016/14675

29 June 2021

(Second Section)

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

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

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

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

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

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

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

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

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

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

E.2020/9

3 June 2021

(Plenary)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2) The remainder of the impugned provision

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

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

Case

Decision

Case-Law Development

Related

Mustafa Karaca

2020/15967

20 May 2021

(Plenary)

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

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

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

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

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

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

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

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

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

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

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

H.K.

2019/42944

17 June 2021

(Plenary)

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

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

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

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

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

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

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

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

Erhan Urak

2016/10657

9 June 2021

(First Section)

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

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

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

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

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

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

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

Yusuf Özmen

2019/13637

30 June 2021

(First Section)

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

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

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

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

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

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

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

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

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

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

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

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

Özgür Sağlam

2016/9076

30 June 2021

(First Section)

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

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

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

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

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

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

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

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

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

Press Release

Ferit Kurt and Others

2018/9957

8 June 2021

(Second Section)

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

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

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

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

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

Kadri Pervane

2015/12115

8 June 2021

(Second Section)

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

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

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

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

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

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

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

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

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

Keleş Öztürk (2)

2018/23565

16 June 2021

(Second Section)

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

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

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

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

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

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

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

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

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

D.C.

2018/13863

16 June 2021

(Second Section)

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

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

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

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

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

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

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

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

Nuriye Arpa

2018/18505

16 June 2021

(Second Section)

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

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

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

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

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

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

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

Cafer Seçer

2018/30939

29 June 2021

(Second Section)

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

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

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

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

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

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

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

E.2016/144

3 June 2021

(Plenary)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

E.2020/18

3 June 2021

(Plenary)

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

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

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

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

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

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

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

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

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

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

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

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

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

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Mapfre Sigorta Anonim Şirketi

2018/5832

8 June 2021

(Second Section)

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

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

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

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

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

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

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

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

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

İsmail Sarıkabadayı and Others

2016/23696

8 June 2021

(Second Section)

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

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

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

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

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

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

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

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

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

Ümmü Tunç

2018/27524

16 June 2021

(Second Section)

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

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

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

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

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

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

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

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

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B.A.

2016/9123

18 May 2021

(Second Section)

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

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

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

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

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

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

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Kutbettin Turan and Others

2018/9004

26 May 2021

(First Section)

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

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

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

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

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

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

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

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

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

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

Nazmi Şengül

2019/34202

9 June 2021

(First Section)

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

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

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

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

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

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

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

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

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

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

Neriman Yonat

2018/33554

15 June 2021

(First Section)

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

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

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

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

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

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

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

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

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

Bülent Akbacı

2018/14389

13 April 2021

(Second Section)

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

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

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

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

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

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

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

Adem Aydın and Zübeyde Aydın

2018/1156

18 May 2021

(Second Section)

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

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

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

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

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

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

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

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

Oğuz Demirkaya

2018/15033

18 May 2021

(Second Section)

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

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

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

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

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

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

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

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

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

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Hamit Yakut

2014/6548

10 June 2021

(Plenary)

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

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

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

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

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

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

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

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

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

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

Hanifi Yaliçli

2014/5224

10 June 2021

(Plenary)

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

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

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

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

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

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

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

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

Murat Beydili

2019/14642

17 June 2021

(Plenary)

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

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

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

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

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

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

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

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

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

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

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

G.G.

2018/9416

9 June 2021

(First Section)

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

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

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

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

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

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

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

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

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

Sabahat Günindi

2018/15204

9 June 2021

(First Section)

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

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

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

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

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

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

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

Aylin Nazlıaka (2)

2018/24439

15 June 2021

(First Section)

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

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

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

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

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

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

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

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

E.2020/24

3 June 2021

(Plenary)

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

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

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

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

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

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

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Sadrettin Bilir

2018/12776

26 May 2021

(First Section)

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

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

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

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

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

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

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

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

E.2019/114

3 June 2021

(Plenary)

Annulment of the provisions restricting the freedom to leave the country

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

 A. Provision on issuance of special stamped passports to lawyers

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

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

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

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

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

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

B. Provisions restricting the freedom to leave the country

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

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

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

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

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

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Adnan Şen

2018/8903

15 April 2021

(Plenary)

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

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

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

- On appeal, the decision on conviction was upheld.

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

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

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

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

Press Release

Ömer Faruk Gergerlioğlu

2019/10634

1 July 2021

(Plenary)

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

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

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

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

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

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

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

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

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

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

B. Alleged Violation of the Freedom of Expression

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

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

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

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

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

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

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

Press Release

Hacı Yakışıklı and Others

2019/13768

26 May 2021

(First Section)

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

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

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

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

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

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

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

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

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

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

E.2018/112

31 March 2021

(Plenary)

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

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

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

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

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

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

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

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

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

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

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

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

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

E.2019/13

29 April 2021

(Plenary)

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

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

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

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

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

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

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

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

E.2021/1 (Miscellaneous)

3 June 2021

(Plenary)

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

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

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

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

- The Court, therefore, dismissed the relevant request.

Case

Decision

Case-Law Development

Related

Çelebi Kutlu

2017/38612

21 April 2021

(First Section)

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

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

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

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

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

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

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

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

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

Leyla Yücel

2017/31861

21 April 2021

(First Section)

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

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

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

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

- Upon the dismissal of her challenge by the Institution, the latter unsuccessfully brought an action before the labour court and requested the return of the paid amount plus legal interest. On appeal, the regional court of appeal dismissed the request insofar it related to legal interest but ordered, with final effect, the reimbursement of the paid amount by the applicant to the Institution. 

- The reasoning of the regional court of appeal was apparently consistent with the previous jurisprudence of the relevant chamber of the Court of Cassation. However, it was subsequently amended in favour of the applicant.

- The relevant statutory provisions were interpreted differently by the Institution and the judicial authorities: therefore, the impugned interference was not based on a law fulfilling the requirements of legal certainty and foreseeability.

Remzi Saldıray

2016/2377

24 February 2021

(Second Section)

Violation of the right to enforcement of a judgment within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to declaration of a final court decision null and void.

- Res judicata, that is the principle of the finality of judgments, is recognised as one of the general principles of international law.

- The obligation to enforce the judicial decisions without delay, as enshrined in the last paragraph of Article 138 of the Constitution, is also a requirement of the principle of res judicata, which is accepted as one of the general principles of law.

- The labour court’s dismissal of the applicant’s case by declaring null and void the assize court’s decision which formed the legal basis for the applicant’s receivable, deprived the applicant of his right to enforcement of a final court decision favourable to him.

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

Press Release

Tahir Gökatalay (4)

2018/24477

24 March 2021

(Second Section)

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

-Alleged violation of the prohibition of ill-treatment due to the authorities’ failure to conduct an effective investigation into the case where the applicant had been injured while being taken into custody.

- The impugned investigation lasted 4 years and 6 months until the date when the application was examined and was still pending.

- Regard being had to the criteria such as the difficulty in the resolution of the impugned legal issue, the nature of the material facts, the obstacles encountered during the collection of evidence and the number of parties, the subject matter of the case was not of a very complex nature.

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

E.2018/134

3 March 2021

(Plenary)

Annulment of the provision of Presidential Decree no. 14 allowing for certain arrangements regarding an issue regulated by a decree law

- Contested provision, third sentence of Article 21 § 3 of Presidential Decree no. 14 on the Organisation of the Directorate of Communications, stipulates that the procedures and principles regarding the contract to be signed, the amount of wages and all kinds of payments with respect to the personnel to be employed will be determined by the President.

- It is argued that the relevant issues are regulated in Additional Article 26 of Decree Law no. 357, and that no presidential decree can be issued on the matters explicitly regulated by law.

- Considering the Court’s case-law and practices regarding decree laws, they should be regarded as laws. Accordingly, no presidential decree should be issued on the impugned matter explicitly regulated by a decree law.

- The contested provision has been found in breach of Article 104 § 17 of the Constitution, and thus it has been annulled.

E.2018/127

18 March 2021

(Plenary)

Dismissal of the request for annulment of the provisions laid down in the Presidential Decree no. 10 embodying the principles and procedures as regards the content and publication of the Official Gazette

A. Article 2 of the Presidential Decree no. 10 insofar as it concerns “…. if deemed necessary…”

- As set forth in the contested provision, the Official Gazette shall be published via internet in every case, and it may be also published in printed form if deemed necessary.

- It is maintained that the contested provision renders access to the Official Gazette being limited merely to internet, which entails the risk of denial of access due to technical problems likely to arise.

- The contested provision is concerning a matter regarding executive power as the publication of the Official Gazette is a matter of administrative nature. Nor does it embody any regulation on the fundamental rights, individual rights and duties, as well as on the political rights and duties which cannot be regulated through a presidential decree.

- Nor is the provision concerning a matter needed to be regulated exclusively by law. Accordingly, it has been found constitutional insofar as it relates to the competence ratione materiae.

- As the Official Gazette is envisaged to be available in online version in all circumstances, the contested provision satisfies the accessibility requirement.

- Publication in printed form is limited for saving public resources and protecting environment: therefore, it pursues a legitimate aim.

- Accordingly, nor has it been found unconstitutional by its content.

B. Article 6 § 2 of the Presidential Decree no. 10 insofar as it concerns “… not found appropriate or…”

- It is stipulated therein that the regulations, communiqués and other regulatory administrative acts, which are issued by the ministries and public institutions & organisations and submitted for being published in the Official Gazette, shall be examined and returned if not found appropriate with the Presidential programmes as well as with the development plans and programmes.

- It is maintained that the return of the documents found inappropriate is contrary to the autonomous nature of universities; and that the notion of inappropriateness is not precise and the provision may therefore lead to arbitrary practices.

- The contested provision has been found constitutional insofar as it relates to the competence ratione materiae for fulfilling the respective criteria set forth above in heading A.

- The contested provision clearly states the scope and nature of the documents which may be subject to examination and returned.

- The scope and content of such examination are also determined, and the authority to make such examination is also designated.

- Therefore, the contested provision has not been found unconstitutional by its content.

E.2020/58

18 March 2021

(Plenary)

Annulment of Article 1 of the Presidential Decree no. 62 for being unconstitutional insofar as it relates to the competence ratione materiae

- The contested provision sets forth that the lecturers at the public universities, who are subject to Law no. 2914 on Higher Education Personnel, may also hold office as a councillor at the Central Bank of the Turkish Republic.

- It is maintained that the regulation concerning the lecturers to hold office at the Assembly of the Central Bank should have been made by law as no Presidential decree may be issued as regards the matters which are to be regulated exclusively by law (Article 104 § 17 of the Constitution).

- It is laid down in Article 130 § 9 of the Constitution that the relations of lecturers with public institutions and other organisations and their personal rights shall be regulated by law.

- The lecturers at the public universities are enabled, through the contested provision, to simultaneously hold two separate offices as stated above.

- It accordingly appears that the contested provision introduces an arrangement as regards the issues falling under Article 130 § 9 of the Constitution.

- Thus, it falls foul of Article 104 § 17 of the Constitution.

- It has been found unconstitutional and therefore annulled.

E.2020/35

31 March 2021

(Plenary)

Annulment of the provision requiring the court to make its decision in line with the sanction specified in the prosecutor’s written request

- Contested provision stipulates that upon the public prosecutor’s submission of a written request to the competent court, the latter shall make a decision in line with the sanction specified in the request, if certain conditions are met, otherwise it shall send the file to the chief public prosecutor’s office in order for the investigation to be concluded in accordance with the general provisions.

- It is maintained that the contested provision transfers the jurisdiction of the courts to the public prosecutors, that the court is forced to make a decision in line with the sanction specified in the public prosecutor’s request and thus was made dependent upon the determination and evaluation of the prosecutor, which is in breach of the principle of independence and impartiality of courts.

- The provision has been found in breach of the principles of the exercise of the judicial power by independent and impartial courts and the judge’s making a decision based on his personal conviction, and thus annulled for being unconstitutional.

E.2020/71

29 April 2021

(Plenary)

Annulment of the provision allowing for certain regulations related to the positions of faculty members through presidential decrees

- Contested provision, Article 1 of Presidential Decree no. 65, allows for certain regulations regarding the positions of faculty members.

- It is maintained that the contested provision goes beyond the powers of presidential decrees and that since it concerns academicians who perform fundamental and permanent public services, the provisions regarding such positions should be regulated by law.

- Pursuant to Article 104 § 7 of the Constitution, no presidential decree shall be issued on the matters which are stipulated in the Constitution to be regulated exclusively by law.

- It is also set forth in Article 130 § 9 of the Constitution that the duties, titles, financial affairs and personal rights of the teaching staff shall be regulated by law.

- It is obvious that the contested provision makes a regulation on a matter that should be regulated exclusively by law under Article 130.

- Consequently, the contested provision has been annulled for being unconstitutional.

E.2020/80

29 April 2021

(Plenary)

Annulment of the relevant provisions of the Opticianry Law no. 5193

A. Additional Article 1 § 2 added to Law no. 5193

-The contested provision envisages the issuance of regulation regarding the organisation, activities, organs of the Chambers and the Union, the duties of these organs, as well as the other respective acts and actions.

- It is maintained that the arrangement as regards the organs, duties, powers and organisation of the Chambers and the Union, which are in the form of a public institution by virtue of the relevant law, falls foul of the constitutional requirement of being established by law, and that the Union is empowered to introduce arrangements in this respect without a legal framework being set.

- As regards the issues which are not prescribed -in the Constitution- to be regulated by law, it is possible for the executive to make arrangements in detail upon establishing the general framework through a law.

- However, it is envisaged in the contested provision that the relevant issues be regulated through a regulation without the legal framework and basic principles thereof are being defined.

- It has been found unconstitutional and therefore annulled.

B. Third Sentence of Article 4 § 3 of Law no. 5193

- The contested provision envisages the application of discipline-related provision of Law no. 6643 on pharmacy officers, by analogy, to opticians.

- It is maintained that an application by analogy leads to uncertainty as these two professions have different characteristics.

- As required by the legal certainty principle, statutory arrangements must be clear, precise, comprehensible and objective for both individuals and the administration. They must also afford safeguards against the arbitrary practices of public authorities.

-Given the different nature of two professions, the contested provision leads to uncertainty. The relevant issues are not formulated in a foreseeable manner.

-  It has been found unconstitutional and therefore annulled.

E.2021/1

29 April 2021

(Plenary)

Dismissal of the request for annulment of the provision envisaging the stoppage of retirement pension of the paid-teachers lecturing at formal and non-formal educational institutions, albeit being a retired person, when they exceed the prescribed age-limit.

- As set forth in the contested provision, Article 30 § 4 (f) of Law no. 5335, those giving lectures, on payment, at formal and non-formal educational institutions of every kind and degree may continue receiving their retirement pensions on condition that they do not exceed the prescribed age-limit.

- It is maintained that the contested provision is compatible with the aims and duties of social state of law that is liable to remove economic obstacles.

- It appears that the provision is intended to ensure the employment primarily of the young and unemployed persons: it pursues the legitimate aim of resolving the unemployment problem.

- It does not completely eliminate the possibility of working in the relevant sector and provides those concerned with the opportunity to make a choice whether to lecture on condition of being deprived of their retirement pension they have been already entitled: striking reasonable balance between the pursued public interest and the right to labour, and thereby imposing no disproportionate restriction.

- Despite introducing an exception for those to lecture at universities (they shall not be deprived of their retirement pension), the contested provision is not found contrary to the principle of equality before the law, in consideration of the need for lecturers at universities.

- Besides, any person deprived of his retirement pension shall continue to receive it upon the termination of his professional relation with these institutions; therefore, imposing no excessive burden on those concerned due to such difference among those having the same legal status.

Case

Decision

Case-Law Development

Related

Fatma Kılıç and İbrahim Haldız

2017/37387

21 Nisan 2021

(First Section)

Violation of the right to

protect one’s corporeal and spiritual existence safeguarded by Article 17 of the Constitution

- Alleged violation of the said right due to the failure to compensate for the non-pecuniary damage caused by the traffic accident.

- In the impugned accident where the applicants sustained damages and underwent a long-term medical treatment, there was a fault on the part of the administration.

- Pursuant to the applicable relevant legislation, any damage sustained, either pecuniary or non-pecuniary in the particular circumstance of the case, should be compensated for.

- Although the incumbent judicial authorities calculated the pecuniary damages sustained by the applicants, they failed to make any assessment as to the non-pecuniary damages.

- While the authorities acknowledged the administration’s fault in the incident, they failed to redress the non-pecuniary damage sustained by the applicants, which was in breach of the Government’s positive obligation in terms of the protection of the individuals’ corporeal and spiritual existence.

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

Cahit Tamur and Others

2018/12010

24 February 2021

(Second Section)

Violation of the right to legal assistance within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to the failure to comply with the ECHR’s judgment.

- The applicants had been convicted of committing armed acts to disrupt the unity and integrity of the State.

- The applicants’ statements taken in the absence of legal assistance had been relied on in their conviction, which was found in breach of Article 6 of the Convention by the ECHR.

- Following the ECHR’s judgment, the applicants requested retrial; however, their request was dismissed by the assize court.

- Hence, the judicial authorities failed to comply the ECHR’s judgment.

- Consequently, the Court found a violation of the right to legal assistance within the scope of the right to a fair trial.

E.2019/36

4 March 2021

(Plenary)

Dismissal of the request for annulment of the provision necessitating the screening of the films, which were evaluated and classified by the Ministry beforehand, in accordance with the appropriate signs and inscriptions

- Contested provision, Article 7 § 2 of Law no. 5224, provides that the films, which were evaluated and classified beforehand by the Ministry of Culture and Tourism, shall be screened in accordance with the appropriate signs and inscriptions during the relevant events.

- It is argued that the impugned provision prevents the commercial circulation and screening of the films not approved and allowed by the relevant Ministry.

- It is enshrined in Article 13 of the Constitution that any restriction on fundamental rights and freedoms shall be prescribed by the law, comply with the reasons set forth in the Constitution, and shall not be contrary to the requirements of the democratic order of the society and the principle of proportionality.

- The evaluation and classification of the films is appropriate and necessary for the protection of public order as well as the family and children. Thus, there is a reasonable balance between the public interest and the individual interest as regards the freedoms of expression and art, and thereby the alleged restriction is not disproportionate.

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

E.2019/47

4 March 2021

(Plenary)

Annulment of the provisions entailing sanctions for those using measuring instruments (meters) with expired seals and yielding inaccurate measures 

- Contested provisions entail sanctions for those who use measuring instruments (meters) with expired seals (stamped for verification) and yielding inaccurate measures.

- It is maintained that the contested provisions may lead to unjust punishment of the subscribers and also enable relevant service providers to act arbitrarily and thereby impose certain charges on the subscribers while replacing the meters as their seals have been expired.

- The contested provisions were examined under Article 38 of the Constitution which sets forth that criminal liability is personal.

- They are indeed intended for ensuring the proper and accurate use of such meters, in pursuit of national economy and public interest.

- However, imposing an administrative sanction on the subscribers for merely using meters with expired seals or yielding inaccurate measures, albeit they have no liability or fault on account thereof, amounts to their punishment due to an act committed by any other person.

- In this sense, the subscribers themselves cannot be expected to realise or inspect such failures as it would require technical knowledge and know-how.

- The contested provisions have been annulled for being unconstitutional.

E.2020/82

18 March 2021

(Plenary)

Dismissal of the request for annulment of Article 104 § 1 of the Turkish Criminal Code no. 5237

- Contested provision prescribes the imposition of imprisonment sentence, for a period of 2-5 years, on those having sexual intercourse with minors aged 15-18 in the absence of any force, threat or deception, upon complaint of the victim.

- It is maintained that the act of sexual intercourse with minors is distinct from the other offences which are set forth in the same code and prosecution of which is conditional upon complaint; and that criminalisation of the sexual intercourse with minors aged 15-18 in the absence of any force, threat or deception falls foul of international conventions.

- The contested provision was examined from the standpoint of Articles 13, 20 and 38 of the Constitution.

- The Court reiterates that sexual acts and behaviours, as a part of person’s intimacy, fall under the right to respect for private life.

- The contested provision undoubtedly restricts this right; however, it may be subject to certain restrictions for the fulfilment of certain obligations incumbent on the State by virtue of the other constitutional rights.

- It is intended for protecting minors at certain age in line with Article 41 of the Constitution, which provides that the State shall take measures for the protection of the children against all kinds of abuse and violence: impugned restriction pursues a legitimate aim.

- Besides, the restriction imposed by the contested provision is not in breach of the proportionality principle as the prosecution of the impugned act is made conditional upon complaint and the sentence imposed accordingly may be appealed.

- Consequently, the Court has dismissed the request for its annulment.

Case

Decision

Case-Law Development

Related

Yeliz Erten

2020/99

11 March 2021

(Second Section)

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

- Alleged violation of the said right due to the dismissal of the applicant’s request for being allowed to contact by phone with her school-age children on any other appropriate day.

- The applicant and her husband, with three school-age children, were held in the same prison. The convicts were allowed to make telephone conversations only on weekdays.

- However, the Ministry of Justice sent a letter to the prison administrations where it was stated that these conversations might be held also at weekends, if found appropriate by the prison board, so as to ensure the continued contact with school-age children.

- The board did not, however, allow any phone conversations at weekends.

- The applicant’s request before the execution judge whereby she requested to be allowed to make phone conversations with her children at a proper time either on weekdays or at weekends was dismissed. The objection thereto was also dismissed by the incumbent assize court.

- The board’s report, which was relied on also by the execution judge, referred to the probability of security risks if the convicts were allowed to make phone conversations at weekends: however, there were no detailed information or plausible and objective grounds as to such security risks.

- Besides, the applicant’s request for contacting by phone with her children at any proper time on weekdays was not taken into consideration.

- The authorities’ failures to consider the children’s best interest, to act in a way that would ensure the maintenance of the family ties and to provide sufficient and concrete reasons to justify the dismissal of the applicant’s request.

Case

Decision

Case-Law Development

Related

Cafer Sezgin and Others

2018/20720

7 April 2021

(First Section)

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

- Alleged violation of the said right due to the revocation of the licenses granted for commercial and public transportation.

- By the decision of the relevant Municipal Council, 32 persons were granted an entitlement to make commercial and public transportation on a certain route designated by the municipality.

- Upon the establishment by the Court of Accounts that these licences were granted without a tender being made, the Municipal Council ordered the revocation of the licenses and re-assignment of such licences through a tender.

- The applicants’ actions for annulment of the Council’s decision were dismissed by the administrative court. Their subsequent appeals were also dismissed.

- The applicants’ entitlements were terminated by a unilateral decision and in the absence of any measure to afford redress for the possible damages to be suffered by the applicants.

- Unforeseeable and unreasonable burden was placed on the applicants.

- The impugned interference upset the fair balance to be struck between the applicants’ right to property and the public interest.  

E.2019/89

4 February 2021

(Plenary)

Annulment of the first and second sentences of Provisional Article 14 added to Law no. 2942 on Expropriation

- Alleged unconstitutionality as the contested provisions constitute a disproportionate interference with the right to property.

- The contested provisions set forth that in actions brought in respect of confiscations without expropriation (as to price- or compensation-related claims), the decisions rendered by the courts shall not be subject to execution process until they become final and that the pending execution processes shall be suspended until the submission of the finalised decisions.

- In the past, certain immovables were confiscated without expropriation and assigned to public service for various reasons, which referred to the term “confiscation without expropriation”.

- The contested provisions preclude the initiation of execution proceedings with respect to court decisions which have not become final yet and also allow for the suspension of the execution proceedings already initiated: the provisions therefore cause delay in providing those concerned a redress due to the interference with the right to property and restrict the rights to property as well as to a fair trial.

The contested provisions have been found unconstitutional and annulled.

E.2018/99

3 March 2020

(Plenary)

Annulment of Provisional Article 13 added to Law no. 2942 on Expropriation;

Dismissal of the request for annulment of Article 12 § 5 and 6 of Law no. 4749 on Public Finance and Debt Management in so far as they relate to the terms “… municipalities, provincial special administrations, …”

A. Provisional Article 13 of Law on Expropriation

- Alleged unconstitutionality as the contested provision constitutes an interference with the judicial process and falls foul of the principles of non-retroactivity of laws and legal certainty.

- The contested provision envisages the extended application of the provision, which sets forth that the owners of the immovables who can no longer use their property rights due to the expropriation for a dam construction shall primarily apply to the commissions under the Governor’s Office so as to bring a legal action, to the cases pending before the courts. It accordingly sets forth that the pending cases shall be dismissed on procedural grounds and subsequently referred to the relevant commissions by the incumbent courts.

- The contested provision introduces a statutory arrangement, which has been already stipulated in a Regulation, and is intended for the speedy resolution of the expropriation-related claims without the need for bringing an action.

- The owners are thereby made to apply to another commission, which is similar to the one already established pursuant to the Regulation: procrastination of the resolution process.

- The contested provision prescribes no measure which would afford a redress for the damages sustained.

- It places an extraordinary burden on individuals and constitutes a disproportionate restriction on the right to property.

- The contested provision has been found unconstitutional and annulled.

B. Provision Allowing for the Transfer of Cash Resources of Provincial Special Administrations and Municipalities to the Single Treasury Account

- Alleged unconstitutionality as the contested provision falls foul of the administrative and fiscal autonomy.

- The contested provision envisages the tracking of all public revenues including the cash resources of provincial administrations and municipalities through a single account, which aims at effective and efficient management of public resources.

- However, it does not impose any restriction on the municipalities’ and provincial special administrations’ decision to make use of their resources. This arrangement relates to the revenues, which have not been spent or turned into an investment and which have been deposited in a bank account by these authorities.

- Not in breach of the autonomous nature of local administrations.

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

Case

Decision

Case-Law Development

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Süleyman Kurtel

2016/1808

22 January 2021

(Plenary)

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

- Alleged violation of the said right due to the termination of the payment of the share of attorney fees and reclamation of the payments already made.

- The applicant was entitled to a share of the attorney fees, and undisputedly, the share of the attorney fees that had been paid to the applicant was then regarded as his property.

- Accordingly, the impugned process cannot be regulated by a decree law for its being related to the payment of the share of attorney fees that falls under the scope of the right to property.

- The criterion of legality primarily entails the existence of a formal law in terms of the limitation of fundamental rights and freedoms.

- The Court’s case-law regarding the interference with the right to property stipulates that no regulation limiting the right to property shall be made through decree laws even if the Grand National Assembly of Turkey grants an express authority to the Council of Ministers.

- Therefore, the termination of the payment of a share of attorney fees and the request for the return of the already paid amounts, plus the legal interest, were not based on a statutory provision.

Press Release

E.2020/15

24 December 2020

(Plenary)

Annulment of Additional Article 2 § 4 of Law no. 488 on Stamp Tax and Additional Article 1 § 4 of Law no. 492 on Fees, for being unconstitutional

- Alleged unconstitutionality as the provisions where the contested phrase “…at which foreign companies have also placed a bid…” are included lead to uncertainty for the bidders.

- The said provisions set forth that a tender which is put out by public institutions and organisations, allows for the participation of by both local and foreign companies, jointly or severally, and at which foreign companies have also placed a bid is an international tender. They also introduce tax and fee exemptions in terms of the public tenders of international nature. 

- The law-maker is entitled to introduce certain tax-related exemptions and privileges in certain circumstances. However, such regulations are to be sufficiently precise and foreseeable.

- A tender may be regarded as an international tender not only when it is accessible by both local and foreign bidders but also when foreign companies place a bid.

- However, the bidders do not know, at the time when they place their bids, the other bidders, whether any foreign company has placed a bid, and thereby whether the tender could be qualified as an international tender.

- Such an inability leads to an uncertainty for the bidders who could not foresee whether they are entitled to an exemption from stamp tax and fee as the tender in question is regarded as an international tender.

- The contested provisions are contrary to legal foreseeability and certainty.

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Semih Tekin

2018/34064

17 March 2021

(Plenary)

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

- Alleged violation of the said right due to the dismissal of the applicant’s action as regards his appointment process for being time-barred.

- The applicant, entitled to become a labour inspector at the Ministry of Labour and Social Security (the administration), applied to the latter as his appointment process had not been completed for so long.

- In its reply, the administration informed him that the relevant process was still pending and that he would be notified of the completion of the process.

- Not considering the administration’s reply as a final reply pursuant to Article 10 of Law no. 2577, the applicant awaited a final reply. Upon the expiry of six-month time-limit as from his application with the administration, the applicant brought an administrative action, which was however dismissed for being time-barred. His appeal request was also dismissed.

- He then applied to the administration for being afforded his personal and financial rights as his appointment had not be completed yet. It was, however, dismissed.

- The Council of State ultimately ordered the payment of the relevant amounts he had been deprived of, plus the incurred legal interest.

- Despite the clear provision in Article 10 of Law no. 2577 to the effect that the time-limit for bringing an action shall start running upon the expiry of six months during which a final reply is awaited, the inferior courts’ interpretation of the same provision in the present case was unforeseeable, thereby leading to the dismissal of the applicant’s action for being time-barred.  

- The impugned interference did not satisfy the lawfulness requirement.

Ali Yazıcı and Others

2018/20766

10 March 2021

(First Section)

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

- Alleged violation of the said right due to the depreciation of the expropriation price. 

- The applicants’ immovable was expropriated by the relevant municipality on 5 May 1986. The applicants brought a personal action against the municipality in 2004 for the non-payment of the expropriation price. It was dismissed by the first instance court. The first-instance decision, upheld by the Court of Cassation, was subsequently quashed during the process of the rectification of judgment.

- Thereafter, the first instance court determined the respective amounts to be paid to the applicants, but without taking into consideration the inflation rates despite the period of approximately 32 years having elapsed.

-  The depreciation resulting from the delay in the payment of the expropriation price, in respect of which no fault was attributable to the applicants, placed an excessive burden on them.

- The impugned interference was not proportionate.

- The Court also ordered a re-trial.

Hasan Kılıç

2018/22085

27 January 2021

(Second Section)

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

- Alleged violation of the right to life due to the failure to investigate the Administration’s fault as regards the suicide bomb attack that had occurred in front of the Ankara Train Station during a demonstration.  

- In the actions for compensation to be brought before the judicial and administrative courts in order to establish the legal responsibility in terms of the right to life, the requirements of reasonable promptness and due diligence must be fulfilled.

- In the same vein, it is incumbent on the Constitutional Court to examine whether the inferior courts made an examination as required by Article 17 of the Constitution in the proceedings concerning such incidents.

- The applicant, with reference to the findings and evaluations in the preliminary examination report, raised, also before the regional court of appeal, his allegations that the respondent administration had failed to take the life-protecting measures in the incident and that the intervention of the security forces after the explosions worsened the consequences of the attack.

- However, the regional court of appeal upheld the administrative court’s decision, stating that it complied with the procedure and the law, but without explicitly examining the applicant’s allegations.

- It has been concluded that the inferior courts failed to examine the applicant’s case with due diligence as required by Article 17 of the Constitution.

Press Release

E.2017/21

24 December 2020

(Plenary)

Annulment of the provision enabling the closure, with the approval of the relevant minister, of media outlets associated with organisations found established to pose a threat to the national security and confiscation of their properties

- Contested provision, Article 2 § 4 of Law no. 6755, regulates the closure,  upon the proposal of the commission to be established by the relevant Minister and with the approval of the Minister, of private radio and television outlets, newspapers and periodicals, publishing companies and distribution channels, which have been found to be a member of, or to have connection or contact with structures, organisations or groups that are found established to pose a threat to the national security or terrorist organisations, as well as the transfer of their all kinds of assets to the Treasury.

- It is claimed that since the impugned provision enables the closure of the relevant media outlets as well as the confiscation of their properties, it is in breach of the right to property. It is also claimed to limit the freedoms of expression, the press and information as well as right to publish periodicals and non-periodicals to an extent unnecessary in a democratic society, which is in breach of the principle of the State governed by the rule of law.

- In consideration of the threats and dangers giving rise to the declaration of the state of emergency, it should be accepted that the assessments to be made during the state of emergency may differ from those to be made in the ordinary period.

- General and abstract nature of the laws stems from the need to incorporate all solutions that may vary in the particular circumstances of each case within the relevant provision, in other words, to prevent any situation where the provision excludes a solution that may yield a proper result. Therefore, the contested provision is not unconstitutional in view of the principle that fundamental rights and freedoms shall be restricted by law.

- The provision intends to maintain the national security as well as public order and security. In this sense, it pursues a legitimate aim in constitutional terms.

- Pursuant to Article 28 of the Constitution, which entails a court decision for closing periodicals, the closure is a heavy sanction and a court decision is required even for temporary suspension.

- The contested provision serves the same purpose by regulating the direct and permanent closure of the said private radio and television outlets, as well as publishing companies and distribution channels; however, it ignores the means that would impose less restrictions on the freedoms of expression and the press.

- Undoubtedly, the direct closure constitutes the most severe interference with fundamental rights and freedoms among all the means that could achieve the same goal.

- The contested provision is also incompatible with the sub-principles of the principle of proportionality, which are necessity and proportionality in the narrower sense.

- The contested provision is also applicable during the state of emergency. In times of emergency, the Constitution stipulates certain conditions for derogating from the safeguards enshrined in the Constitutions in terms of fundamental rights and freedoms. In this regard, the conclusion that the contested provision is unconstitutional in the ordinary period does not have any bearing on its applicability, being limited to the state of emergency.

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

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Mehmet Osman Kavala (2)

2020/13893

29 December 2020

(Plenary)

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

- Alleged violation of the said right of the applicant for the alleged unlawfulness and unreasonable length of his detention on remand.

- The applicant was taken into custody within the scope of the investigation conducted into the coup attempt of July 15 and was then detained on remand by the magistrate judge for allegedly attempting to overthrow the constitutional order.

- Shortly afterwards, the applicant was again detained for obtaining confidential information held by the State, for political and military espionage purposes.

1. Alleged unlawfulness of the applicant’s detention on remand

- The prerequisite for detention is the existence of strong indication of guilt and of the plausible evidence to that end.

- The applicant was found to have had contact with a person who had allegedly spied against Turkey and had relations with the FETÖ/PDY that is the organisation behind the coup attempt. He was also found to have supported and financed some projects that might be identified with the ideology and claims of the PKK terrorist organisation.

-Besides, the offence of obtaining confidential information held by the State, for political and military espionage purposes concerned the objective to secure the information that must be kept confidential for reasons relating to the security or domestic or foreign political interests of the State.

-Regard being had to the nature and gravity of the imputed offence as well as the severity of the punishment prescribed by the law for such offences, the detention of the applicant was a proportionate measure.

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

2. Alleged unreasonable length of the applicant’s detention on remand

- There is a strong indication of the applicant’s having committed the imputed offences.

- Considering the grounds for detention relied on by the incumbent magistrate judges and assize courts as well as their considerations on the proportionality of the applicant’s detention on remand, the facts such as the risk of fleeing, risk of tampering with evidence, gravity of the offence, proportionality of the detention and insufficiency of the conditional bail came into play.

- The imputed offences are among the ones committed against the national security and classified among the gravest offences prescribed within the legal system. Besides, the investigations conducted into such offences are much more complex by their nature.

- The grounds underlying the applicant’s continued detention on remand were relevant and sufficient for justifying the deprivation of liberty.

- It has therefore been concluded that the length of the applicant’s detention on remand, 2 years and 10 months, has been reasonable.

- Consequently, the Court found no violation of the right to personal liberty and security regarding the alleged unreasonable length of detention.

Özlem Dalkıran

2017/35203

21 January 2021

(Plenary)

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

- Alleged violation of the said right to due to the failure to sufficiently demonstrate the existence of a strong indication of criminal guilt, a prerequisite for detention.

- The applicant, a well-known human rights activist, was taken into custody during a meeting held at a hotel in İstanbul and subsequently detained on remand.

- At the end of the criminal proceedings, the applicant was sentenced to 1 year and 13 months’ imprisonment for having knowingly and willingly provided assistance to a criminal organisation, while not being part of its hierarchical structure, on the basis of the case file as a whole, the statement of an anonymous witness, the contents of the relevant messages, HTS records and the identification reports.

- The investigation authorities failed to refute the applicant’s counter-arguments raised with respect to the allegations against her.

- The failure to sufficiently demonstrate the existence of a strong indication of criminal guilt, a prerequisite for detention, in view of the applicant’s defence submissions and the scope of the case file.  

- Violation of the relevant safeguards also from the standpoint of Article 15 of the Constitution, which allows for the suspension and restriction of fundamental rights and freedoms in times of a state of emergency.

Press Release

Yasin Agin and Others

2017/32534

Gülistan Atasoy and Others

2017/15845

21 January 2021

(Plenary)

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

- Alleged violation of the said right of the applicants, public officials, due to imposition of disciplinary punishment on them for their having attended certain meetings and demonstration marches.

As regards the application no. 2017/32534

- The applicants, teachers, were imposed disciplinary punishment for their allegedly having acted improperly as public officials, by attending a demonstration march that had been organised by the labour union of which they were member but banned by the governor’s office.

- The said demonstration march had indeed not dramatically interrupted the traffic flow.

- The judicial authorities failed to provide relevant and sufficient reasons to prove the alleged improper acts of the applicants as public officials as well as their adverse effects on the public service.

- The impugned disciplinary punishment imposed on the applicants did not serve a pressing social need and therefore was not necessary in a democratic society.

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

As regards the application no. 2017/15845

- The applicants, public officials, were imposed disciplinary punishment for their allegedly having acted improperly as public officials, by attending certain demonstration marches in protest against Gezi Park events.

- The administration and inferior courts found out that the said demonstrations had not been conducted peacefully and thus become unlawful. The applicants did not challenge this finding of the authorities.

- It is incumbent of the public officials to abstain from acting in a manner shaking the confidence in them as well as damaging the reputation of and confidence in the public institutions they are holding office.

- The disciplinary punishment imposed on the applicants served a pressing social need and did not impose an unfair burden on the applicant, given the legitimate aim of protecting the public order. Hence, the said punishment complied with the requirements of the democratic social order.

- Consequently, the Court found no violation of the right to hold meetings and demonstration marches.

Ali İpekli and Others

2017/30997

22 January 2021

(Plenary)

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

- Alleged violation of the said right of the applicants due to the alleged unlawfulness of their detention on remand for their membership of the PKK terrorist organisation.

As regards the applicants Kasım Oba, Ali İpekli and Doğan Erbaş

- Pursuant to Article 19 of the Constitution, detention on remand is justified only in the existence of strong indication of guilt that must be supported with plausible evidence.

- Given the photos and comments shared by the applicants on their social media accounts, which praised and incited to violence and made terrorist propaganda, there were strong indications of their having committed the imputed offence, which could justify their detention on remand.

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

As regards the other applicants

- The investigation authorities failed to sufficiently demonstrate the existence of strong indications that the applicants had committed the imputed offence.

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

Hatice Akgül

2018/35900

25 February 2021

(First Section)

Violation of the right to a trial within a reasonable time within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said right of the applicant due to the prolonged issuance of the reasoned decision in her favour.

- The case concerns the reinstatement proceedings initiated by the applicant challenging the termination of her employment contract.

- At the end of the impugned proceedings concluded in favour of the applicant, the decision was pronounced on 18 October 2017, whereas the reasoned decision was issued on 7 February 2019.

- The case is far from being complex in view of the criteria such as the difficulty in the resolution of the legal dispute, complexity of the material facts, challenges in collecting the evidence, and number of parties.

- It was stated in the labour court’s decision that the applicant might be reinstated only after the decision became final. Thus, the vital importance of the finalization of the decision for the applicant is apparent.

- The unjustified delay in the issuance of the reasoned decision resulted in the prolongation of the proceedings.

Mehmet Köktaş

2018/ 35775

10 March 2021

(First Section)

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

- Alleged violation of the said right due to the lack of an effective investigation into the suicide committed during military service.

- The applicant’s son (M.K.), a contracted infantryman, committed suicide by shooting himself in the head while being on watch duty and lost his life at a hospital where he was taken by a helicopter.

- At the end of the administrative investigation conducted at the command, it was concluded that there was no concrete finding that might give rise to his suicide; and that there was no fault attributable to any personnel.

- Accordingly, the chief public prosecutor’s office issued a decision of non-prosecution, stating that there was no criminal element in M.K.’s death.

- The applicant challenged the decision, alleging that his son could not have committed suicide. However, his challenge was dismissed by the incumbent magistrate judge.

-  After the incident, the public prosecutor and the incident scene investigation team could not be present at the incident scene as M.K.’s death took place at a command located at the zone of anti-terror operations. Thus, no detailed incident scene investigation could be conducted.

- Besides, no autopsy was performed. However, there was no information indicating that M.K.’s dead body could not be transferred to another city with a forensic medicine institution for security reasons.

- Despite the absence of any fingerprint on M.K.’s riffle as well as of gunshot residue on his balaclava mask and helmet, no criminal examination was performed so as to ascertain whether the cartridge had been fired from his riffle.

- Thus, the chief public prosecutor’s office failed to clarify the circumstances of M.K.’s death.

Yaşar Çetinbaş

2018/ 34564

10 March 2021

(First Section)

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

- Alleged violation of the said right due to the failure to compensate for the damage caused to the applicant’s immovable.

- A viaduct was constructed nearby the applicant’s registered immovable. The applicant then filed a request with three respective authorities and sought for the expropriation of his immovable or its exchange with another immovable. Having obtained no favourable reply, the applicant then brought an action for compensation against these authorities.

- His action was dismissed on the merits. He then appealed the decision, which had been issued allegedly on the basis of incomplete examination and erroneous legal assessment as his loss had not been determined by the experts. 

- The inferior courts failed to take into consideration the applicant’s allegations and ultimately concluded that there was no damage sustained by him due to the restriction imposed on his right to property.

- Provided with no opportunity to prove his losses before the courts, the applicant was deprived of the procedural safeguards inherent in the right to property.

- An excessive and extraordinary burden was placed on him.

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Ahmet Önder and Others

2018/23929

10 February 2021

(First Section)

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

- Alleged violation of the said right due to dismissal of the applicants’ request for rectification of the land register on procedural grounds for their failure to apply to the superior administrative authority as per the provisions of the Regulation on Land Registry.

- While it is enshrined in the Constitution that fundamental rights and freedom can only be restricted by law, the applicant’s right of bringing an action was not interfered with on the basis of law but in accordance with the provisions of the Regulation.

- Hence, dismissal of the applicants’ case had no legal basis and was therefore in breach of their right to access to a court.

Eyüp Toy and Saadet Toy

2017/34841

10 February 2021

(First Section)

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

- Alleged violation of the said right due to the lack of an effective investigation into the suicide committed by the applicants’ daughter (N.T.) despite the alleged degrading treatment inflicted on her by the school principals and teachers.

- N.T. committed suicide after her mobile phone had been taken away by one of her teacher and it had been revealed that she had messaged one of her schoolmates.

-The prosecutor’s office immediately initiated an investigation into N.T.’s suicide.

- The applicants also filed a criminal complaint with the prosecutor’s office and sought the punishment of those responsible, maintaining that their daughter had been subjected to emotional pressure by the school principals and the relevant teacher and committed suicide on account of the embarrassment and fear she had suffered.

- However, a decision of non-prosecution was issued due to the lack of any causal link between the impugned acts of these public officials and N.T.’s suicide.

- Failure to investigate whether the suspected teacher or principals had displayed attitudes towards N.T., which amounted to ill-treatment, and whether N.T. had been subjected to any degrading treatment.

Press Release

Abdullah Kaya and Others

2017/26740

16 December 2020

(Second Section)

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

- Alleged violation of the applicants’ right due to dismissal of the full remedy action they had brought for the authorities’ failure to enforce the court decision that was in their favour.

- The applicants’ case was dismissed as being time-barred.

- It is set forth in the Constitution and the relevant law that court decisions shall be enforced immediately.

- According to the authorities, the applicants should have applied to the administration before filing a full-remedy action; however, such a requirement is not prescribed by the law.

- The grounds relied on by the court in dismissing the action brought by the applicants lacked legal basis, which was in breach of their right to access to a court.

Tochukwu Gamaliah Ogu

2018/6183

13 January 2021

(Second Section)

Violations of both substantial and procedural aspects of the right to life safeguarded by Article 17 of the Constitution

- Alleged violation of the right to life due to the authorities’ failure to conduct an effective investigation into the incident where the applicant’s relative had been killed by a police officer.

- Although the applicant claimed that he was the brother of the deceased (a foreigner) and thus requested to intervene in the proceedings against the accused police officer, his request was rejected without any investigation conducted into the identity of the deceased.

- Besides, the investigation authorities failed to collect the evidence that might have clarified the incident, as well as they lacked independence and thus failed to conduct a rigorous and speedy investigation.

- The case is still pending despite the fourteen years having elapsed since the incident.

- The State has acted in breach of its substantial and procedural obligations in the present case where a person under its control was murdered by a public officer.

E.2018/115

30 December 2020

(Plenary)

Annulment of the Decree Law no. 702 concerning the Organization and Duties of the Nuclear Regulatory Authority and Making Amendments to Certain Laws

- Contested Decree Law regulates the principles regarding the organisation, duties, powers and responsibilities of the Nuclear Regulatory Authority (NRA) as well as the personal rights of its employees.

- The Decree Law, in its entirety, is claimed to be unconstitutional since the purpose of the Empowering Act on which the relevant Decree Law is based is to ensure adaptation to the amendments made to the Constitution, while the foundation of the NRA does not fall within this scope.

- It is clear that foundation of the NRA has no concern with any adaptation to the amendments made to the Constitution.

- Besides, the repealed Article 91 of the Constitution sets forth the issues to be regulated by decree laws.

- The Court has concluded that the provisions of the contested Decree Law cannot be considered to comply with the purpose and scope of the power granted by the repealed Article 91 of the Constitution to issue decree laws.

- It is considered that the annulment of the contested Decree Law shall be effective one year after the publication of the decision in the Official Gazette in order to prevent any violation of public interest due to the legal gap to occur.

E.2020/81

14 January 2021

(Plenary)

Annulment of the phrase “…adjudicated…” in Provisional Article 5 (d) of the Code of Criminal Procedure no. 5271 for being unconstitutional, whereas dismissal of the request for the annulment of the phrase “…finalised…” therein for not being unconstitutional, insofar as these phrases relate to “simplified trial procedure”

- Alleged unconstitutionality as the contested provision hinders the retrospective application of the simplified trial procedure, which introduces arrangements in favour of the offender, and leads to different practices in respect of the offenders committing the same offences on the very same date.

- The contested provision sets forth that the simplified trial procedure shall not apply to the cases that have been adjudicated or finalised by 1 January 2020.

1. Phrase “…adjudicated…” insofar as it relates to “simplified trial procedure”

- The Constitution explicitly prohibits the retrospective application of a given law -prescribing a more severe sentence- to the offences committed before its effective date.

- This prohibition, emanating from the principles of legal certainty and legal security, also entails the application of a subsequent law that is more favourable than the one in force on the date of the offence.

- In its recent decision (E.2020/16), the Court examined and ultimately annulled the same provision insofar it relates to the phrase “…proceeded to trial” in terms of the “simplified trial procedure”. The Court considered that the prevention of retrospective application of the provisions having a bearing, on the length of a given sentence, to the advantage of the offender falls foul of Article 38 of the Constitution.

- No ground to require the Court to depart from its conclusion in the decision no. E.2020/16.

- Therefore, the phrase “…adjudicated…” was found unconstitutional and thereby annulled insofar it relates to the phrase “simplified trial procedure”.

2. Phrase “…finalised…” insofar as it relates to “simplified trial procedure”

In cases where this procedure applies, the aim is to ensure the conclusion of the proceedings within the shortest time possible. Therefore, as the trial process ends with a finalised decision, simplified trial procedure cannot apply in finalised cases, which is not contrary to Article 38 of the Constitution.

- Nor does it fall foul of the principle of equality as an accused –as the person charged with an offence at the very beginning of the trial– is not in the same legal situation with a convict whose trial has been concluded by a finalised decision and whose sentence is now executed.

- Therefore, the phrase “…finalised…” was found constitutional, and the request for its annulment was dismissed.

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Cemal Günsel

2016/12900

21 January 2021

(Plenary)

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

- Alleged violation of the said freedom due to the relevant administration’s refusal to send the applicant’s letter for being inconvenient.

- The applicant, a convict, wished to send a letter along with a story -which he had written so as to participate in a story competition- by post to a person living in Belgium. However, the disciplinary board of the relevant penitentiary institution found the impugned text inconvenient and refused to send it.

- The applicant’s challenges against the refusal were dismissed by the incumbent magistrate judge and subsequently by the assize court.

- It is disputed between the applicant and the public authorities that whether the impugned interference constituted any violation and whether the impugned story legitimised terrorist acts, praised crimes and criminals and contained untrue and false information.

- The applicant failed to provide any explanation as to the content of the impugned story, as well as to assert that the administration and inferior courts made erroneous assessments.

- Nor did he substantiate that he had indeed wished to send it to participate in a story competition.

Hakan Aygün

2020/13412

12 January 2021

(First Section)

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

- Alleged violation of the said right due to unlawfulness of the applicant’s detention ordered on account of his certain posts in social media.

- The applicant was detained and indicted by the incumbent chief public prosecutor’s office for publicly inciting hatred and hostility and publicly degrading the religious values of a certain section of the society.

- The incumbent criminal court ordered his continued detention, and his challenge against this decision was dismissed.

- He was then released at the first hearing.

- The Court examined the applicant’s impugned posts to ascertain whether there was strong indication of the applicant’s guilt.

- It is evident that in his posts, the applicant used a tone otherizing certain sections of the society. However, they did not provoke hatred or hostility in one section of the public against another section with different characteristics based on social class, race, religion, sect or regional differences.

- The investigation authorities’ failure to demonstrate any imminent risk or a concrete damage caused by the impugned posts to the public order.

- The failure to sufficiently demonstrate the strong indication of guilt. 

Metin Duran

2018/33546

28 January 2021

(First Section)

Violation of the right to have adequate time and facilities for the preparation of defence under the right to a fair trial safeguarded by Article 36 of the Constitution

- Alleged violation of the said right due to the failure to notify the reasoned decision to the applicant.

- The applicant was convicted of sexual molestation by the criminal court, which suspended the pronouncement of the verdict. 

- The applicant’s lawyer submitted a petition so as to challenge the criminal court’s decision and also noted that he would submit the reasoned petition following the notification of the reasoned decision to them.

- However, the reasoned decision was never notified to them, whereas the decision was communicated to incumbent assize court that would conduct the appellate review. Their challenge was dismissed with final effect.

- He was thereby precluded from raising his arguments capable of ensuring his acquittal or mitigation of his sentence and thus from duly exercising his right to appellate review.

Mustafa Türkuz

2017/38496

13 October 2020

(Second Section)

Inadmissibility of the alleged violations of the rights to a reasoned decision as well as to a fair hearing

- Alleged violations of the said rights due to the recovery, from the applicant, of the compensation amount paid by the Ministry of Justice pursuant to a friendly settlement procedure.

- The applicant and two other public officers were convicted, at the end of the criminal investigation initiated in 2001, of having tortured and ill-treated the persons taken into custody for committing a theft at a gendarmerie station, by the assize court in 2013. The decision became final upon being upheld by the Court of Cassation in 2016.

- The victims lodged an application with the European Court of Human Rights (“the ECHR”) due to lack of an effective investigation as well as the excessive length of the proceedings against public officials.

- The proceedings before the ECHR were concluded with a friendly settlement reached in 2013 between the Ministry and the victims. The amount specified in the friendly settlement proposal was paid to the victims.

- The Ministry then filed an action for the recovery of the paid amount from the defendants including the applicant. The incumbent civil court ordered the recovery of the relevant amount from them. The applicant’s appellate request was dismissed with final effect.

- The inferior courts indicated the legal grounds and provided relevant and sufficient reasons in their decisions: inadmissibility of the alleged violation of the right to a reasoned decision.

- The payment made by the Ministry was not undoubtedly irrelevant to the applicant’s act leading to his conviction. Therefore, the first-instance decision did not contain any manifest arbitrariness or error of appreciation: inadmissibility of the alleged violation of the right to a fair hearing.  

A.G.

2018/6143

16 December 2020

(Second Section)

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

- Alleged violation of the said right due to the ban on the applicant’s entry to Turkey.

- The applicant, a Chechen national, lost one of his legs due to a bomb attack in his home country. He then arrived in Turkey together with his family in 2005. His spouse and children acquired Turkish nationality in 2014, and he was granted residence permit in 2015.

- In 2016, he was placed in administrative detention pending his deportation, and a ban on his entry to Turkey was imposed upon his interrogation at the airport.

- The incumbent administrative court annulled the applicant’s deportation. However, his action and subsequent appeal against the ban on entering the country were dismissed.

- As regards the ban on entering the country, the relevant administration merely pointed to the purpose of national security on the basis of intelligence information. The instant court also dismissed the case on the very same reason.

- Failure to make an assessment as to whether the applicant indeed posed a threat to the national security.

- No assessment as to the applicant’s requests and challenges with respect to his private life.

-Lack of sufficient grounds to justify the interference with the applicant’s right to respect for private life, as well as of a fair balance between the public interest and this right.

Şehmus Altuğrul

2017/38317

13 January 2021

(Second Section)

Violation of the right to education safeguarded by Article 42 of the Constitution

- Alleged violation of the said right due to the declaration of the applicant’s post-graduate education null and void.

- The applicant applied for an exam to attend a postgraduate education programme (without thesis) of a university. The exam, announced to be held on 21 January 2013, was however postponed to 22 January due to the disclosure of the exam questions on the internet before the exam.

- The applicant, successfully passing the exam, was enrolled in the programme.

- At the end of the action brought against the exam, the administrative court ordered a stay of execution. The administration (university) challenged the order but it was dismissed by the Regional Administrative Court.

- The university ensured the students including the applicant to complete the postgraduate programme. However, the administrative court annulled the impugned exam at a subsequent date.

- The applicant’s request for being awarded a diploma or a graduation certificate was rejected due to the annulment of the processes related to the postgraduate programme. His action was also dismissed by the incumbent administrative court. 

- It is a constitutional obligation incumbent on the administration to enforce the annulment decision. However, the administration is to find the best solution by also taking into consideration the reasoning of the decision. It should abstain from prejudicing the rights of the third parties.

- The applicant had no fault in the annulment of the exam.

- Lack of a fair balance between the public interest in the enforcement of the annulment decision and the individual interest of the applicant.   

E.2019/71

30 December 2020

(Plenary)

Annulment of the first (relevant phrases), second and third sentences of the amended Article 14 of the Presidential Decree no. 14 on the Organisation of the Directorate of Communications, for being unconstitutional

- Alleged unconstitutionality as the matters regulated through the Presidential Decree are already regulated by law and the authority afforded by the contested provisions are in breach of the autonomous and impartial nature of Anadolu Agency, a State-run news agency.

- The contested provision stipulates that the Directorate of Communications (“the Directorate”) has the authority to supervise the activities, budget, organisation and human resources management of Anadolu Ajansı Türk Anonim Şirketi (“the Anadolu Agency” or “Agency”), and the principles and procedures of the said supervision shall be determined by the Directorate; and that the contract to be signed by and between the Directorate and the Anadolu Agency shall set forth the procedures as to the appointment of the executives of the Agency.

- As regards the competence ratione materiae, it has been concluded that the contested provision does not address any issue, which has been explicitly regulated by law.

- As regards the content:

- First Sentence: It is concerning the Directorate’s supervisory power over the Agency’s budget as well as its activities, budget, organisation and human resources management. One of the issues in respect of which the Directorate has supervisory power over the Agency is the budget. Such a budgetary supervision by the central administration does not, in any aspect, have an adverse impact on the Agency’s autonomy and impartiality. However, the supervision of the Agency’s acts and activities by the Directorate, an executive unit operating under the Presidency, is both incompatible with the autonomous nature of the Agency and also likely to prejudice the impartiality of its broadcasts.

- Therefore, the Court has found the first sentence of the contested provision unconstitutional by its content and annulled it insofar as it relates to the phrases “… activities…” and “… organisation and human resources management…”, whereas found constitutional the remaining part of the first sentence and accordingly dismissed the request for annulment.

- Second Sentence: Vesting the Directorate with a regulatory authority with no definite boundaries, as to the supervision of the Anadolu Agency, without the basic principles and general framework being set has led to the delegation of the regulatory power, which is indeed conferred by the Constitution on the President, to the administration. Accordingly, the second sentence of the contested provision has been found unconstitutional by its content and therefore annulled.

-Third Sentence: It is set forth that the appointment procedures of the Agency executives shall be designated by the contract to be concluded by and between the Directorate and the Agency. Designation of the appointment procedures of the Agency executives through a contract renewed every year renders meaningless the autonomous nature of the Agency. Accordingly, the third sentence of the contested provision has been found unconstitutional by its content and therefore annulled.

E.2020/57

30 December 2020

(Plenary)

Annulment of the provision precluding workers, non-members of the contracting labour union, to benefit from the provisions of the collective labour agreement

- Contested provision stipulates that the requests to benefit from the collective labour agreement before the date of signature shall become effective by this date.

- It is maintained that the provision forces the workers to be a member of the labour union concluding the collective labour agreement.

- It has consequences in favour of the workers who are already members of the contracting union by the date of its signature, thereby granting an advantage to the said union vis-à-vis the others.

- It has been concluded that the restriction imposed by the contested provision undermines the pluralism that should exist in a democratic society, and unfairly distorts the competition among the unions, in favour of the contracting union.

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

E.2019/104

14 January 2021

(Plenary)

Annulment of the provision requiring the resignation of the insured employees in order for them to be entitled to old age pension.

- Contested provision requires the resignation of the insured employees in order for them to be entitled to old age pension.

- It is argued that the provision is in breach of the right and freedom of employment.

- The contested provision is intended to ensure the proper functioning of the social security system.

- However, granting the insured employee the status of passive insured employee and arranging the premium payments accordingly will not have a negative effect on the proper functioning of the social security system.

- Besides, the provision leads to the deprivation of the insured employee concerned of any income for a period of three months on account of the relevant procedures.

- Hence, the contested provision has been found unconstitutional and therefore annulled.

E.2019/77

14 January 2021

(Plenary)

Dismissal of the request for annulment of the provision granting financial support in order to encourage local authors and works

- Contested provision grants financial support to each author, limited to one work, for copyrighted works that are included in the repertoire and will be staged for the first time in order to encourage local authors and works.

- It is argued that such an issue which is to be regulated exclusively by law has been regulated by presidential decree.

- The said financial support shall be covered by the allocation of the General Directorate of State Theatres for capital expenditures, and thus regulated by budgetary laws. Therefore, the provision falls within the scope of the implementation of the budget.

- Pursuant to Article 64 of the Constitution, the State shall protect artistic activities and artists as well as take the necessary measures to protect, promote and support works of art and artists.

- The contested provision is not in breach of the aforementioned constitutional provision.

- The provision has been found constitutional and therefore the request for its annulment has been dismissed.

Case

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Cemal Taş and Others

2016/3316

29 December 2020

(Plenary)

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

- Alleged violation of the applicants’ right due to the failure to compensate for the loss in value of their property for being designated as military security zone.

-- Declaration of the impugned property as a military security zone had consequences such as the restriction of its use, imposition of a ban on its transfer and renting as well as imposition of a de facto construction ban due to its particular location.

- While construction permits were granted with respect to other properties located in the same region, the applicants were not only denied a construction permit for their property, but also a de facto construction ban was imposed regarding their property.

- Public authorities have discretionary power regarding the removal of annotation or expropriation of the property; however, they failed to take an action in favour of the applicants.

- The applicants had to bear an excessive and extraordinary burden, therefore, the said interference with their property was not proportionate.

Press Release

Beyza Kural Yılancı

2016/78497

12 January 2021

(First Section)

Violations of the prohibition of treatment incompatible with human dignity, safeguarded by Article 17 of the Constitution, as well as of the freedoms of expression and the press respectively safeguarded by Articles 26 and 28 thereof

- Alleged violations of the said prohibition and freedoms due to the applicant’s being subjected to police intervention and force during the demonstration she attended as a press member.

- The applicant, a journalist who was at the incident scene to follow and report the protest demonstration, was handcuffed behind her back and taken into custody by the police despite introducing herself as a press member.

- She was then released, and no criminal investigation was filed against her.

- She filed a criminal complaint against the police officers and submitted a CD, pertaining to the impugned incidents and recorded by the applicant herself.

- In the interim medical report issued, it was noted that there were redress on the applicant’s two fingers and sensitivity on both arms.

- At the end of the investigation, the prosecutor’s office issued a decision of non-prosecution, considering that the applicant had been released after she had been revealed to be a journalist and that the police officers complained of had not exceeded the limits of their powers on the use of force.

- Lack of an effective criminal investigation, capable of leading to the identification and, if necessary, punishment of those responsible for the treatment inflicted on the applicant, which was incompatible with human dignity.

-No plausible evidence to demonstrate that the impugned intervention, which precluded the applicant from performing her profession, was lawful or pursued a legitimate aim.

Press Release

Ebru Çıtlak and Fazilet Demirbaş

2017/37573

2 December 2020

(Second Section)

Violation of the right to enforcement of judgments safeguarded by Article 36 of the Constitution

- Alleged violation of the applicants’ right for declaration of a finalized court decision null and void by the civil enforcement court.

- The enforcement proceedings commenced by the applicants for collection of non-pecuniary damages and counsel fees awarded to them within the scope of previous criminal proceedings were rejected due to the Court of Cassation’s subsequent order to discontinue the relevant criminal proceedings.

- Pursuant to the relevant statutory provisions and case-law, discontinuance of the criminal proceedings would not affect the personal actions seeking redress for the damages sustained.

- Therefore, the criminal court’s decision insofar as it concerned the payment of damages and counsel fees still remained in force.

- Rendering a final court decision null and void by another court is against the wording and spirit of the Constitution.

Press Release

S.B.

2017/19758

2 December 2020

(Second Section)

Violation of the right to an effective remedy, safeguarded by Article 40 of the Constitution, in conjunction with Article 17 thereof

- Alleged violation of the said right due to the inferior courts’ failure to make an examination on the merits of the action the applicant brought for the annulment of the order -whereby he would be deported to the country entailing a risk to both his physical and spiritual integrity- for the refusal of his request for legal aid.

- The applicant, a Russian national of Chechen origin who entered Turkey legally in 2013 due to the oppressions in his own country, applied to the relevant security directorate to obtain a legal residence permit in 2015.

- However, he was taken into custody, and his deportation was ordered.

- He then brought an action before the incumbent administrative court for the annulment of the deportation order and requested to be granted legal aid.

- His request was dismissed by the administrative court due to the lack of a bilateral agreement on legal aid between Turkey and the Russian Federation.

- Both the first instance court and Council of State declared the applicant’s action and requests related to the appellate proceedings non-filed due to his failure to pay the relevant court fees and expenses.

- The first instance court’s failure to make an inquiry and assessment as to the justification of the applicant’s request for legal aid.

- During the appellate proceedings, nor was any examination made as to the legal aid.

- The applicant’s action was not accordingly examined on the merits. He was therefore deprived of the opportunity to obtain an effective remedy.

Press Release

E.2020/10

12 November 2020

(Plenary)

Annulment of the provision enabling the General Directorate of State Hydraulic Works to have private institutions and organizations perform the procedures for approval and acceptance of the projects on fish migration structures

- Contested provision enables the General Directorate of State Hydraulic Works, which is the authorized institution for approving, controlling and accepting the projects on fishways, fish elevators and other structures, to have the institutions and organizations it will determine perform the procedures for approval, control and acceptance of such projects.

- Article 128 of the Constitution provides that the fundamental and permanent functions required by the public services performed in accordance with principles of general administration shall be carried out by civil servants and other public officials.

- Given the nature of the procedures specified in the contested provision, which are fundamental and permanent functions that must be carried out according to the principles of general administration, they must be carried out by public officials.

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

Case

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Sabri Uhrağ

2017/34596

29 December 2020

(Plenary)

Violation of the right to an effective remedy safeguarded by Article 40 of the Constitution, in conjunction with the right to property safeguarded by Article 35 thereof

- Alleged violation of the said right to due to the statutory provision precluding an examination on the merits of the alleged violation of the right to property and the award of a redress.

- The applicant’s immovable, situated in a coal basin, entirely become uninhabitable for being damaged as a result of the collapses caused by the subsidence, which had resulted from the defective coal production.

- He brought a personal action against the Turkish Hard Coal Enterprise Institution (“the TTK”) and the operator, a private company. However, it was dismissed by the incumbent civil court, based on Article 3 of the Law no. 3303, which envisages that the registered owners of immovables cannot claim any right and compensation on account of damages caused by mining activities.

- The first-instance decision was upheld by the Court of Cassation, which also dismissed the applicant’s subsequent request for rectification of decision.

- Despite the general provisions under the Turkish Code of Obligations no. 6098, which allow for the redress of the damages that have resulted from mining activities, Article 3 of Law no. 3303 renders dysfunctional this legal avenue, which is available in theory, in so far it concerns the hard coal basin.

- Failure of both the first instance court and the Court of Cassation to discuss whether the impugned damage resulted from the faulty actions of the TTK or the company during the mining activities.

Press Release

Kadri Enis Berberoğlu (3)

2020/32949

21 January 2021

(Plenary)

Violations of the right to be elected and engage in political activities as well as right to personal liberty and security, respectively safeguarded by Articles 67 and 19 of the Constitution

- Alleged violations of the applicant’s rights for non-enforcement of the Court’s judgment and continued execution of his sentence.

- Pursuant to Article 153 of the Constitution, courts and other bodies exercising public power cannot refrain from enforcing or complying with the Courts’ judgments.

- Non-enforcement of the Court’s judgment and failure to redress the consequences of the violation clearly fall foul of the Constitution and are contrary to the will of the constitution-maker.

- The decisions of the inferior courts run contrary to the wording of the Constitution, and thus, the applicant’s continued placement in the penitentiary institution as a convict lacks a legal basis.

- The Court has specified certain obligatory procedures to be fulfilled by the incumbent court.

- In a country where the bodies, courts and individuals exercising public power act contrary to the law, a state governed by rule of law ceases to exist. The failure to enforce the judgments of the Court results in grave violations of the principle of rule of law.

- Maintaining the constitutional order is not incumbent solely on the Constitutional Court. Constitutional institutions, bodies exercising public power, natural or legal persons also have an obligation to protect the Constitution and abide by constitutional provisions.

- The relevant violation judgments of the Court should also be communicated to the relevant institutions, particularly the GNAT and the Council of Judges and Prosecutors.

Press Release

Ahmet Endes and Others

2018/19018

15 December 2020

(First Section)

Violations of both substantive and procedural aspects of the prohibition of torture as well as procedural aspect of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution

- Alleged violation of the prohibition of torture and ill-treatment due to the disproportionate use of force by the law-enforcement officers during a search conducted in the applicants’ residence as well as the authorities’ failure to conduct an effective investigation into the incident.

- It must be noted that the applicants were not suspects within the scope of the investigation where the search warrant was issued.

- The use of force resulted in certain fractures on the applicants’ bodies.

- Inconsistency between the decisions of the public prosecutor and the criminal court: While the public prosecutor accepted the use of proportionate force by the law-enforcement officers, the latter found disproportionate the impugned use of force.

- The public authorities’ failure to prove the proportionality of the use of force.

- In fact, the alleged use of force amounted to torture.

- Besides, the applicants were not allowed to participate in the investigation process.

- Hence, the investigation authorities lacked due diligence.

Celal Oraj Altunörgü

2018/ 31036

12 January 2021

(First Section)

No violations of the right to the protection of personal data and the freedom of communication respectively safeguarded by Articles 20 and 22 of the Constitution

- Alleged violations of the said right and freedom due to monitoring of the applicant’s corporate e-mail account by the employer and the termination of his employment contract based on these correspondences.

- The applicant was holding office in a private bank. His employment contract, where it is clearly envisaged that the corporate e-mail account assigned to him shall be used only for professional purposes and that the e-mail account may be monitored by the bank management without any prior notice, was terminated as it was found established that he had been engaged in commercial activities through his corporate e-mail account in breach of the working principles and procedures of the bank.

- The applicant unsuccessfully brought an action for his reinstatement. His subsequent appeal was also dismissed with final effect.

- Despite the applicant’s allegation that his corporate e-mail account was monitored without a prior notice and his consent, his employment contract embodies a provision allowing for the monitoring of his e-mail account without any prior notice.

- It is also explicitly noted in the employment contract that any breach of the obligations specified therein may give rise to the termination of the employment contract.

- The employer monitored and examined the applicant’s e-mails in so far as they were in support of the allegation and used these e-mails merely for substantiating its claims during the proceedings.

- The inferior court provided relevant and sufficient grounds in its decision.

-  Besides, the applicant could also effectively participate in the proceedings.

Press Release

E.2020/64

12 November 2020

Dismissal of the request for annulment of the provision stipulating the collection of all administrative fines for the return of the driving licence seized due to driving under the influence of alcohol, drugs or stimulants

- Contested provision sets forth that in order for getting back the seized driving licence, all administrative fines that were imposed under the same provision shall be collected.

- It was argued that such a restriction, namely the collection of all imposed fines, was disproportionate.

- The contested provision is applicable to those who drive under the influence of alcohol, drugs or stimulants.

- Such a regulation intents to ensure the traffic order and safety, which therefore pursues a legitimate aim and corresponds to a pressing social need.

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

Case

Decision

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Onur Arslan

2017/17652

15 December 2020

(First Section)

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

- Alleged violation of the said right due to the death of the applicant’s sister following an unlawful medical intervention, which had been performed under the State supervision and control, as well as due to the dismissal of the applicant’s action for a full remedy.

- The applicant’s sister lost her life after she had undergone an abortion operation, which had been unlawfully performed by a gynaecologist at a state hospital, in the twenty-fourth week of pregnancy.

- The gynaecologist was sentenced to 5 years’ imprisonment at the end of the criminal proceedings in 2018. In 2019 the incumbent court ordered the setting aside of the conviction decision as the gynaecologist had died, which was also upheld by the Court of Cassation.

-  The applicant’s claim for pecuniary and non-pecuniary damage was dismissed by the Ministry of Health for the lack of medical malpractice. His subsequent action for a full remedy was also dismissed.  

- The gynaecologist, a public officer, performed the operation at the state hospital, in company with the other staff, during a working day despite being on leave, without informing the hospital authorities of the process.

- Organisational failure attributable to the state hospital as the administration failed to duly fulfil its duty of supervision and control, which would ensure the medical staff to abstain from performing any criminal acts.

- Besides, the dismissal of the applicant’s claim for compensation was also incompatible with the principles for the protection of the right to life. 

Press Release

Osman Palçik

2018/25073

15 December 2020

(First Section)

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

- Alleged violation of the said freedom due to the applicant’s punishment on account of his criticisms against a politician who was being prosecuted.

- The applicant, a columnist in a local newspaper of a district, shared unfavourable posts against M.G. through his social media account.

- M.G., mayor of the same district, was being prosecuted on charges of bribery and corruption as well as of membership of a terrorist organisation. Ultimately, he was acquitted of the charges of bribery and corruption, and a decision of non-prosecution was issued in respect of his alleged membership.

- Upon M.G.’s complaint, the applicant was imposed a judicial fine for insulting the former.

- Whether a fair balance was struck the applicant’s freedom of expression and the complainant’s right to honour and reputation.

- Given the proceedings conducted against M.G., the applicant’s expressions against M.G. had indeed factual basis and were proportionate. Nor did they constitute an insult. 

- As a politician, M.G. should have shown more tolerance towards criticisms against him, compared to ordinary persons.

- Having expressed his opinions about the current issues of the district, the applicant made contribution to a debate of public interest.

- However, the court, convicting the applicant, failed to strike a fair balance between the respective rights of the applicant and the complainant. 

Case

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Esra Özkan Özakça

2017/32052

8 October 2020

(Plenary)

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

- Alleged violation of the applicant’s right due to the unlawfulness of the measure entailing the obligation not to leave residence (house arrest).

- The applicant’s husband, dismissed from public office while serving as a teacher through a Decree-law issued under the state of emergency, embarked on a sit-down strike and subsequently on a hunger strike.

- The applicant then joined her husband and went on a sit-down strike and subsequently on a hunger strike when the latter was detained on remand for his alleged membership of a terrorist organisation, namely the DHKP/C.

- The applicant was also subjected to an investigation for the very same offence and ultimately granted a conditional bail requiring her not to leave residence.

 - At the end of the criminal proceedings, the measure entailing the requirement not to leave residence was replaced with the measure requiring her to report to the police station for signature.

- Going on a sit-down or a hunger strike, which may be under certain circumstances regarded as a special aspect of the freedom of expression, should not be considered per se to constitute an offence, in the absence of any finding that these acts have been performed in relation with terrorism or for the purposes of praising, legitimising or encouraging the use of the terrorist organisation’s methods involving coercion, violence and threat.

- No document or finding in the investigation file to demonstrate that the applicant embarked on sit-down and hunger strikes for an organisational purpose or she had engaged in such acts as a stance in favour of the terrorist organisation.

Press Release

Şahin Alpay (3)

2018/10327

3 December 2020

(First Section)

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

- Alleged violation of the applicant’s right since although the Court had previously ordered that the violation and its consequences would be redressed through his release, the inferior court granted him conditional bail requiring him not to leave residence (house arrest).

- The applicant filed an individual application for the third time. In his previous two applications, the Court found a violation of the same right.

- The inferior courts insisted on their practices resulting in the applicant’s deprivation of liberty.

- Whether the measure entailing the obligation not to leave residence constitutes an interference with the right to personal liberty and security is at issue.

- In one of its recent judgments in another case, the Court concluded that given its nature and the way of its application, the impugned measure constituted an interference with the right to personal liberty and security.

- The incumbent courts failed to demonstrate the strong indication of the applicant’s guilt as a prerequisite for the measure entailing the obligation not to leave residence.

- The inferior courts failed to redress the violation and its consequences, which had previously been found by the Court.

Press Release

K.S.

2017/29420

3 December 2020

(First Section)

Violation of the right to an effective remedy safeguarded by Article 40 of the Constitution in conjunction with the prohibition of ill-treatment safeguarded by Article 17 thereof

- Alleged violation of the said right due to the applicant’s deportation to a country where there existed a risk of ill-treatment against him and the non-suspension of the deportation process pending the action brought against his deportation order.

- The applicant of Uzbek origin legally residing in Turkey with his family was placed in administrative detention, pursuant to Law no. 6458 on the Foreigners and International Protection, on suspicion of having a link with a terrorist organisation.

- The incumbent administration also ordered his deportation.

- Pending the administrative action brought by him for the stay of execution of his deportation order due to the risk of his being subjected to ill-treatment, at the end of which the deportation order was annulled with final effect, the applicant was deported to his country.

- Despite the annulment of the deportation order by the judicial authorities, the applicant was deported to his country as no interim measure to suspend his deportation had been taken.

- The administrative and judicial authorities’ failure to conduct a rigorous assessment as to the alleged risk of ill-treatment in case of deportation.

Rıdvan Batur

2018/17680

3 December 2020

(First Section)

Violations of the principles of equality of arms and of the adversarial proceedings inherent in the right to a fair trial

- Alleged violations of the said principles due to the failure to notify the information and documents relied on as a basis during the proceedings to the applicant.

- The applicant, having successfully passed the exam held by the relevant Ministry, was not appointed as a tax inspector. He filed an application with the Ministry to be informed of the reasons precluding his appointment but could not receive any concrete explanation.

- He then filed an action before the incumbent administrative court; however, it was dismissed. The applicant’s appeal request was also dismissed.

-The administrative court concluded mainly on the basis of the documents submitted by the relevant Ministry that the process whereby the applicant’s appointment had been denied was lawful.

- The applicant was not provided with practical and effective opportunities to examine, to comment on, and to challenge the documents forming the basis of the decision.

Barış Koç

2016/11722

15 September 2020

(Second Section)

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

- Alleged violation of the said freedom due to the applicant’s being imposed a disciplinary sanction on account of his petition submitted to his military superiors.

- The applicant, a military officer at the Turkish Armed Forces, submitted a petition to his superiors and sought for certain arrangements concerning the guard duty.

- Thereafter, the applicant, asked to submit his defence submissions on account of certain expressions in his petition, was given a disciplinary sanction (reprimand). His challenge for the annulment of this sanction was dismissed by the relevant command.

- Civil servants including the military officers are entitled to freedom of expression, like all other individuals of the society.

- The applicant was given a disciplinary sanction not for having submitted a petition but for his certain statements found to be in breach of the correspondence rules within the military and rules to be observed in addressing to superiors.

- The petition was not formulated in a harsh and impudent style.

- The sanction imposed on the applicant did not meet any pressing social need in a democratic society.

E.2019/100

22 October 2020

(Plenary)

Dismissal of the request for annulment of the contested phrase included in the second sentence of Article 5 § 4 (a) of Law no. 7143

- Pursuant to Article 5 of Tax Amnesty Law no. 7143, which embodies the contested provision, if any tax amount having accrued due to an increase in tax basis or tax is not paid within the time-limit and in the manner prescribed in the law, the due amount shall be collected, pursuant to Article 51 of Law no. 6183, plus the accrued default interest; and the relevant tax-payers shall not seek for the application of Article 5 of Law no. 7143.

- It is maintained that the contested provision makes the tax-payer failing to satisfy the payment conditions subjected to two separate sanctions; that therefore, the contested arrangement is not fair and proportionate and is also in breach of the principles of fairness as well as of equality in taxation.

- Given the provision in question, the Court has concluded that the restriction has been imposed through an accessible, precise and foreseeable provision of law.

- The tax administration is entitled, by virtue of the contested provision, to have recourse to two different processes at the same time in order to ensure the collection of the due amount of tax. However, it does not amount to a double taxation.

- Besides, there is an available legal remedy whereby those concerned may have recourse to in case of any dispute likely to derive from the application of the contested provision.

- Although the contested provision imposes a restriction on the right to property, necessary and sufficient safeguards have been afforded to avoid any excessive individual burden.