Case-Law Summary
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Mehmet Demircioğlu 2020/35797 14 September 2023 (Plenary) |
Violation of the right to stand for election safeguarded by Article 67 of the Constitution |
-Alleged violation of the right to stand for election due to non-reappointment after resigning for parliamentary candidacy. -The applicant, a former department head in the Ministry of Health and appointed to a personal adviser position following the enactment of Decree-Law no. 663 in 2011, resigned for parliamentary candidacy but wasn’t nominated. His personal rights as an employee were protected through differential compensation. Despite seeking reinstatement to his former position, he was appointed to an engineering role. -Following the abolition of personal advisory positions by Decree-Law no. 703, the applicant filed a lawsuit. The administrative court initially ruled in his favour, but the regional administrative court later quashed this decision. -The applicant claimed violation of his right to stand for election due to not being reappointed to his former adviser position. -In the present case, the Court identified a manifest error in the regional administrative court’s decision, amounting to undue interference with the right to stand for election. The decision failed to acknowledge the specific circumstances of the resignation and its impact on the right to stand for election and did not adequately justify the negative impact on the applicant’s situation as addressing a pressing social need. -The regional administrative court’s decision was deemed an impediment to political participation, constituting an interference with the right to stand for election. -Consequently, the Court has found a violation of the right to stand for election. |
|
|
Hakan Bilal Kutlualp 2019/19597 14 September 2023 (Plenary) |
Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the right to property due to the dismissal of the action for annulment of the expropriation process. - The area where the applicant's immovable property is also located is classified as an industrial area in the master plan and urban development plan. - In the letter addressed by the Anatolian Industrialists Collective Workplace Building Society (ASKOOP) to the Housing Development Administration of Türkiye (TOKİ), it was requested that the area covering the applicant's immovable property be expropriated, provided that all relevant expenses be covered by the ASKOOP. On this request, an order was issued for the expropriation of the area also covering the applicant's immovable property. - Accordingly, the immovable properties were sold and transferred to ASKOOP after the relevant area covering that of the applicant had been registered in the title deed in the name of the TOKİ. Upon the expropriation order, the TOKİ filed an action before the civil court against the applicant for the determination of expropriation price. - The decision whereby the expropriation price was determined was quashed by the Court of Cassation as the determined price was high. - On the other hand, the applicant’s action for the annulment of the expropriation process was dismissed by the incumbent court. - In the present case, it is apparent that the expropriation process was conducted through the TOKİ for the ASKOOP that is a private-law legal entity, as it was agreed before the expropriation process that the immovable properties to be expropriated would be transferred to the ASKOOP. - Although it appears that the expropriation process was conducted by the TOKİ, the impugned expropriation process revealed to be conducted for the ASKOOP falls foul of the safeguard inherent in Article 46 of the Constitution, according to which the State and public legal entities shall be empowered to expropriate in cases where the public interest so requires and in accordance with the principles and procedures prescribed by law. - Consequently, the Court has found a violation of the right to property. |
|
|
Türkiye Devrimci İşçi Sendikaları Konfederasyonu (DİSK) and Others 2016/14517 2016/14518 12 October 2023 (Plenary)
|
Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution |
- Alleged violations of the right to hold meetings and demonstration marches and the prohibition of ill-treatment due to the prevention of the demonstration march intended to be organised in Taksim Square on the occasion of the Labour Day. - In 2014 and 2015, on two different occasions, the applicants wished to organise a gathering in Taksim Square, İstanbul, on the occasion of the Labour Day, but the Governor’s Office rejected the applicants’ requests for reasons of public order and security. - The applicants, who had staged a march so as to observe the Labour Day, filed a criminal complaint alleging that they were injured by tear gas grenades, rubber bullets and pressurised water. - In the present case, it has been concluded that since Taksim Square is one of the constituent elements of the labour and trade union culture, any limitation imposed with respect thereto may also lead to the restriction of ideas and thoughts intended to be expressed. - In view of the importance attached to the gathering area in the particular circumstances of the case, the categorical prohibition of the freedom to choose a gathering area was considered constitutionally unacceptable. - Accordingly, the Court has found that that no relevant and sufficient reasons were adduced to demonstrate that the interference with the applicant’s right to hold meetings and demonstration marches, which is in the form of dispersing by use of force to the applicants wishing to observe Labour Day in 2014 and 2015 in Taksim Square, met a pressing social need and was necessary in a democratic society. - Consequently, the Court has found a violation of the right to hold meetings and demonstration marches. |
|
| II. Constitutionality Review | |||
|
E.2020/73 26 October 2023 (Plenary)
|
Annulment of the provision restricting the principle of public trial, whereas dismissal of the request for annulment of the provision entailing the appointment of a mediator before bringing an action in consumer-related disputes |
A. As regards the provision allowing for the restriction of the principle of public trial for reasons other than those specified in the Constitution - Article 141 of the Constitution allows for the restriction of the principle of public trial only in cases absolutely necessitated by public morals or public security or in the trial of minors. - Pursuant to the contested provision, which is Article 28 § 2 of the Code of Civil Procedure no. 6100, the existence of a superior interest worthy of protection may entail the restriction of the principle of public trial, which is not laid down in the Constitution as a special reason for restriction. Thus, the provision is contrary to the constitutional principle indicating that fundamental rights and freedoms can only be restricted for the reasons specified in the Constitution. - Consequently, the contested provision has been found unconstitutional and thus annulled. B. As regards the provision entailing the appointment of a mediator before bringing an action in consumer-related disputes - It is clear that the contested provision, which is the first sentence of Article 73 § A (1) of the Consumer Protection Law no. 6502, imposes a restriction on the right of access to a court. The impugned restriction serves the resolution of the disputes in a shorter period as well as conclusion of the judicial proceedings within a reasonable time, by reducing the workload of the judicial authorities. - Besides, the parties are allowed to terminate the mediation process any time, and they are entitled to apply to the court if the dispute cannot be resolved. - Considering that the mediation process shall be completed within a maximum of four weeks, the period spent in mediation cannot be said to make it significantly difficult for consumers to obtain their rights and receivables. In addition, the time to elapse until the said rights and receivables may be obtained is not unreasonably prolonged. - Accordingly, given the contested provision, the balance between the individuals and the public interest is struck, and the impugned restriction on the right of access to a court does not impose a disproportionate burden on individuals. - Consequently, the provision has been found constitutional, and therefore, the request for its annulment has been dismissed. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Ahmet Baş 2019/42746 17 May 2023 (Plenary) |
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 the award of unreasonably high amount of litigation costs against the applicant at the end of the proceedings he had initiated. - The applicant, requesting the dissolution of joint ownership with his father-in-law, claimed compensation for the part subsequently registered in his name but had been occupied by his father-in-law for years. Upon the death of the latter, five heirs intervened in the proceedings, some of whom proceeded with the assistance of their respective lawyers. At the end of the proceedings, the applicant was ordered to pay unreasonably high litigation costs. - Considering the economic situation of the applicant, the nature of the case, the judicial proceedings, and the scope of the impugned interference, it was concluded that the application bore both constitutional and personal importance. - It is set forth in the Minimum Attorneyship Fee Tariff as well as in the relevant judgments of the Court of Cassation that in cases regarding disputes involving more than one defendant, if the case is dismissed on common grounds, a single attorney’s fee shall be awarded, even if the parties are represented by separate lawyers. It is also stipulated therein that the relative attorney’s fee to be determined cannot exceed the value of the case that has been accepted or rejected. - It is also laid down in the Code of Civil Procedure no. 6100 that if either party is partially justified in the case, the litigation costs shall be allocated between the parties according to the percentage method. In the present case, it remains obscure whether the impugned litigation costs were allocated on the basis of this method. - Therefore, it was concluded that the trial court failed to demonstrate the legal basis for an interference with the applicant’s right of access to a court. - Consequently, the Court found a violation of the right of access to a court. |
|
|
Ozan Güven 2021/8967 27 September 2023 (Plenary) |
Violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the freedom of expression due to the award of compensation against the applicant on account of his social media post. - In 2016, a national newspaper reported that ten students in a dormitory had been molested by a teacher. This led to claims for financial support between a telecommunications company and a foundation. The applicant shared a post on social media about the matter, and the plaintiff company brought an action for non-pecuniary compensation. The court ordered the applicant to pay TRY 500 as compensation. The applicant’s subsequent appeal was dismissed by the regional court of appeal. - In the present case, it has been concluded that the statements were intended to put pressure on the plaintiff by addressing the foundation's financial support relationship rather than the plaintiff's commercial reputation. The plaintiff, operating in the telecommunications field, is also better equipped to respond to allegations made against it due to its favourable position in protecting its commercial reputation, making it more obligated to endure such criticisms. - Accordingly, the Court has found that incumbent courts failed to provide relevant and sufficient grounds for concluding that the interference with the applicant’s freedom of expression met a pressing social need and was compatible with the requirements of a democratic society. - Consequently, the Court found a violation of the freedom of expression. |
|
|
Özgür Boğatekin 14 June 2023 (Plenary)
|
Violations of freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution |
-Alleged violations of the freedoms of expression and the press due to imprisonment for the offence of defamation on the account of the statements made in the column. -The applicant published articles calling into question the lawfulness of the powers exercised by the authorities in district and of the behaviours of the district governor. The first instance court found that the allegations published on the newspaper were incorrect and the applicant’s lack of knowledge could not be regarded as a valid justification. Therefore, it sentenced the applicant to imprisonment. -The Court indicated that in order for the offence of defamation to be constituted, the perpetrator must accuse somebody knowing with certainty that the accused was innocent and must aim to initiate the commencement of investigation and prosecution or imposition of administrative sanctions against the accused person despite of his/her innocence. -In the same vein, the Court considered that the applicant cannot be expected to prove the existence of rumours about the projects in the same way as a prosecutor proves the veracity of a statement. -Therefore, the applicant, in his capacity as a journalist, did not aim to initiate an investigation against the district governor, but to call his particular acts and behaviours into question in the eyes of the public. In addition, the first instance court also failed to demonstrate with conclusive evidence and beyond a reasonable doubt that the applicant accused the claimant, knowing that the latter had not committed the alleged unlawful act. Thus, the impugned interference did not satisfy the lawfulness requirement laid down in Article 13 of the Constitution. - Consequently, the Court found violations of the freedom of expression and the press. |
|
| II. Constitutionality Review | |||
|
E.2022/3 28 September 2023 (Plenary)
|
Dismissal of the request for issuance of a warning decision against the Sağduyu (Common Sense) Party |
- The subject-matter of the request for the warning decision is paragraph 4, which was added to Article 1, entitled “Organisation”, of Annex (2) of the Party’s regulation. - It is argued that those who wish to become a member of a political party shall go through the membership registration process conducted before the district organisation of the political party, where the members concerned reside; that therefore, those who do not have any district organisation at their residence address cannot be registered as members before any other district organisation or central organisation of the party; and that the amendment in the Party’s regulation is contrary to the imperative provisions of the Political Parties Act (Law no. 2820). - In Article 1 § 4 of Annex (2) of the regulation of the Sağduyu Party, it is set forth that those wishing to become a party member may be registered in the central organisation until the establishment of the relevant district organisations; and that when the establishment process is completed, the membership registration shall be transferred to the relevant district organisation. - It is enshrined in Articles 42 and 60 of Law no. 2820 that when district organisations of political parties are established, the membership procedures shall be performed by these organisations. However, these provisions do not indicate that political parties cannot receive any membership registration until the establishment of district organisations: there is no clear, precise and foreseeable rule that precludes the registration of members by the political party until the establishment of their district organisations. - Besides, becoming a member of a political party is a right laid down in Article 68 § 1 of the Constitution. Therefore, the acknowledgment that the membership registration process may be conducted merely before the relevant district organisation falls foul of this constitutional provision. - Consequently, the Court dismissed the request for issuance of a warning decision. |
|
|
E.2018/120 11 October 2023 (Plenary)
|
Annulment of certain phrases in the Presidential Decree no. 3 |
- It is set forth in the contested provision that appointments may be made to the positions and offices, which are indicated in the List no. (II) of the Presidential Decree no. 3, upon the approval by the President. - It is maintained that it must be ascertained whether the positions and offices indicated in the List no. (II) are high-level public officials; that is because, if so, they should be directly appointed by the President, whereas the contested provision allows for such appointment by other authorities; and that the President’s power to appoint high-level public officials cannot be dependent on the recommendation of any other authority. A. As regards “Legal Advisors (Institutions Affiliated or Related to the Ministry)” and “Sports Advisors” in the List no. (II) of the Presidential Decree - Article 30 of Law no. 3289 on Youth and Sports Services explicitly points to those who are eligible for being appointed as a sport advisor. Therefore, in the absence of the contested provision, Law no. 3289 will apply as regards the authority to appoint the sports advisors and the appointment procedure: an issue explicitly regulated by law. - The appointment of legal advisors is already regulated in the Decree-law no. 399: an issue explicitly regulated by a decree-law. - No Presidential decree may be issued as to the matters that have been explicitly regulated by law. - Consequently, the provision has been found unconstitutional and thus annulled. B. As regards the Remaining Part of the List (II) of the Presidential Decree 1. As regards the Competence Ratione Materiae - It has been observed that the contested provision does not embody any regulation with respect to the rights and duties that cannot be regulated through a Presidential decree. Nor does it concern a matter which has been explicitly regulated by law. - Consequently, the contested provision has been found constitutional insofar as it relates to the competence ratione materiae. 2. As regards the Content - One of the basic principles adopted in the presidential government system is the direct appointment of high-level public officials by the President himself. - However, the Presidential Decree no. 3 covers the principles and procedures of the appointment of not only high-level public officials but also of all public institutions and organisations. The constitution-maker empowers the President to determine the principles and procedures as to the appointment of merely high-level public officials. With respect to the appointment procedure regarding public institutions and organisations in general, the appointment principles enshrined in Article 128 of the Constitution apply. - Besides, the President is solely authorised to appoint high-level public officials. Therefore, this appointment power cannot be made subject to the approval of any authority. Nor can it be dependent on the recommendation of any other authority. - Consequently, the contested provision has been found unconstitutional by its content and thus annulled. |
|
|
E.2023/71 26 October 2023 (Plenary) |
Annulment of the amendment to the phrase “…one-fourth….” as “…two-fifth…” included in Law no. 5362 |
- The contested provision sets forth that the general assemblies of the tradesmen and craftsmen professional organisations shall be convoked for extraordinary meetings by the board of directors upon the request by two-fifths of the members of the general assembly. - It is argued that the procedure for convoking the tradesmen and craftsmen professional organisations for extraordinary general assembly meetings has been made difficult, which hampers the members of professional organisations to participate in the management and freely express their views; and that the contested provision renders dysfunctional the principle of the administrative autonomy of institutions. - The capacity of the members of tradesmen and craftsmen professional organisations to convoke the general assembly for extraordinary meeting is a requisite of democratic State. - It is, of course, within the law-maker’s discretion to determine the ratio of quorum to convoke a meeting. However, the minimum ratio to be determined should not hamper the decision-making and supervision functions of the members of general assembly. - However, the contested provision renders dysfunctional the said functions of the general assembly members in case of divergence of opinion among those who are in the minority. - Consequently, the provision has been found unconstitutional and thus annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Ayhan Deniz and Others. 2019/10975 14 June 2023 (Plenary) |
Violations of the right to respect for private life and freedom of expression, respectively safeguarded by Articles 20 and 26 of the Constitution |
- Alleged violations of the right to respect for private life and freedom of expression due to the termination of employment contracts. -The applicants, who were employed in a company, shared some social media posts and inquiry reports were produced based on these reports. - The applicants brought separate declaratory actions, seeking their re-employment, which were dismissed by the labour court. Upon appeal by the applicants, the regional court of appeal annulled the first instance decisions and ordered the issuance of a fresh decision. The appeals against the impugned decisions were rejected by the Court of Cassation, which ultimately upheld them. - In the present case, it has been concluded that the incumbent courts failed to strike a balance of interests and did not examine sufficiently and comprehensively the nature of the disputed content and the context in which it had been used. - Accordingly, the Court has found that the inferior courts that ruled on the case had not exercised due diligence in respect of the constitutional safeguards on freedom of expression, that the State had not fulfilled its obligations with regard to the protection of constitutional safeguards, and that Article 18 of Law no. 4857 had been subjected to a broad interpretation. - Consequently, the Court found violations of the right to respect for private life and the freedom of expression. |
|
|
Şerife Alp 2018/25163 27 September 2023 (Plenary) |
No violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution |
- Alleged violation of the right in question due to the reliance by the inferior courts on the applicant’s certain activities as evidence for her conviction for the offence of membership of a terrorist organisation. - The applicant, acting mayor of a municipality, was sentenced for aiding a terrorist organisation. The Court of Cassation quashed the first instance decision, stating that the applicant’s activities taken as a whole constituted membership of a terrorist organisation. At the end of the proceedings, she was convicted for membership of the terrorist organisation. - According to the findings, the applicant involved in various activities whereby a terrorist organisation was supported and its violent acts were glorified for at least 21 times in a short period less than one year. Her position as the acting mayor at the relevant time did not automatically justify her support for the acts and activities referred to. - The first instance court explained in a plausible manner that the applicant’s activities had verified and validated the findings that she had intentionally and knowingly involved in the hierarchical structure of the said organisation. - Given the severe effects and outcomes of terrorist offences on individuals, the society and the State, the Court has considered that the sentence imposed on the applicant aimed to strike the requisite fair balance between the society’s right to live in an environment, free from any form of terrorism, and the applicant’s right to hold meetings and demonstration marches. - Consequently, the Court found no violation of the right to hold meetings and demonstration marches. |
|
| II. Constitutionality Review | |||
|
E.2023/113 26 July 2023 (Plenary)
|
Dismissal of the request for annulment of the decision of the GNAT envisaging the exclusion of the Speaker from the total number of members of the Bureau |
- The contested decision excludes the Speaker of the Grand National Assembly of Türkiye (GNAT) from the total number of members of the Bureau of the GNAT. - It is argued that the said decision may be characterised as an amendment to the Rules of Procedure, and that it violates the principles of administrative independence and allocation of powers. - The Court has reviewed the request from the standpoint of the independence of the Speaker of the Parliament. - Article 94 § 6 of the Constitution stipulates that the Speaker and vice-speakers of the GNAT cannot participate, within or outside the Assembly, in the activities of the political party or party group in which they are a member; nor in parliamentary debates, except in cases required by their duties; the Speaker and the vice-speaker who is presiding over the session shall not vote. - The aforementioned provision distinguishes the Speaker and vice-speakers from the members of the Bureau. The Speaker shall never vote, while the vice-speaker shall not vote only in the session she/he presides over. In this respect, a stricter constitutional regulation is already envisaged for the impartiality of the Speaker. - Consequently, the impugned decision has been found constitutional, and therefore, the request for its annulment has been dismissed. |
|
|
E.2022/96 11 October 2023 (Plenary)
|
Annulment of the provision stipulating the ex officio appointment of the secretary general and deputy secretaries general of the exporters’ associations and the Turkish Exporters Assembly by the Ministry of Trade |
- The contested provision stipulates that the Ministry of Trade may appoint the secretary general and deputy secretaries general of the exporters’ associations and the Turkish Exporters Assembly ex officio in certain circumstances. - It is argued that according to the impugned provision, the Ministry can appoint anyone it wishes ex officio, which may lead to arbitrariness; the qualifications of the person to be appointed are indefinite; there are no clear and objective criteria, prescribed by law, regarding the ex officio appointment procedure; and there may be discrimination among those who aspire to be the secretary general or deputy secretaries general, which impairs the essence of the right to elect and stand for election. - The appointment of the secretary general and deputy secretaries general by the Ministry instead of the exporters’ associations and the Turkish Exporters Assembly may be regarded as exercising the power of tutelage. Such a situation is acceptable only in exceptional cases of absolute necessity. The vacancies in executive positions does not constitute an absolute necessity requiring the Ministry to substitute itself for the professional organisations. - The provision amounts to a disproportionate interference with the autonomy of the professional organisations. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Mohamma Salem Pashto and Nazı Salem & Kemtaş Tekstil İnşaat Sanayi ve Ticaret A.Ş. 2019/26339 2020/22192
17 May 2023 (Plenary) |
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 right of access to a court due to the dismissal of the request for legal aid. -The applicants, citizens of the Islamic Republic of Afghanistan, requested legal aid with regard to the legal action they initiated following the death of their son in a stabbing attack. Their request was dismissed on the grounds that there was no agreement on legal aid between Afghanistan and Türkiye. - The housing estate built by the applicant, Kemtaş Tekstil İnşaat Sanayi ve Ticaret Anonim Şirketi, was demolished upon decisions taken by the relevant municipalities. The applicant lodged a pecuniary compensation action after demolition and sought rectification. He requested legal aid by declaring that he couldn't afford the fee for rectification. The court dismissed his request. 1. Application no. 2019/26339 - The condition of reciprocity laid down in Article 334 of Code no. 6100 categorically restricts the access of foreign nationals to legal aid and does not afford the judge any discretion to assess whether the foreign nationals who intend to bring an action are in fact unable to pay. This may lead to deprivation of the right to bring an action due to non-compliance with the condition of reciprocity. - In the present case, the court also did not examine whether the State was party to a treaty imposing an obligation on foreign nationals to benefit from legal aid. 2. Application no. 2020/22192 - Insolvent commercial companies are not entitled to bring actions without legal aid institutions. Individual assessments are therefore crucial to ensure that the legal system strikes a balance between benefits and burdens for all, as there is no regulation or practice for this purpose. - In the present case, it has been concluded that the said interference rendered the applicant’s access to the court extremely limited, and that the impugned interference, which imposed an excessive burden on the applicant, was not proportionate. - Accordingly, as regards both cases, the Court has found that the violation arose from the law and ruled that a copy of the judgment be communicated to the legislative branch so that similar violations can be prevented. -Article 90 of the Constitution provides that in case of a conflict between international agreements concerning fundamental rights and freedoms, the provisions of international agreements shall prevail. Therefore, it has been determined that there is legal interest in holding a retrial, and accordingly, the judgment has been remitted to the first instance court. - Consequently, the Court found violations of the right of access to a court in the applicants’ cases. |
|
|
Aziz Bankur and Others 2018/25145
14 June 2023 (Plenary) |
Violation of the right to a reasoned decision under the right to a fair trial safeguarded by Article 36 of the Constitution |
-Alleged violation of the right to a reasoned decision under the right to a fair trial due to the lack of relevant and sufficient reasoning. -The applicants sought recognition from the Social Security Institution for their testators (C.B. and S.S.) as duty-disabled under the Anti-Terror Law no. 3713, given that they were martyred during an operation to prevent terrorism. Initially, the Institution dismissed these requests. Subsequently, the applicants’ separate legal actions were annulled by the administrative courts for being unlawful. However, the regional administrative court, upon appeals by the Social Security Institution, dismissed the actions with final effect. -Following its review of the allegation, the Court has highlighted the importance of instance courts presenting their inquiry findings in their decisions. It has added that this practice ensures legal security and certainty, prevents arbitrary actions, and goes beyond mere formal reasoning. It has stressed that the reasons provided in the decision should be both relevant and sufficient. Additionally, courts should elaborate on their assessment of evidence, interpretation and application of the law, the conclusions they draw, and the rationale behind their discretion when explaining their decisions. -In the present case, the Court has observed that the regional administrative court’s decision lacked reasoning as to why the incident was not covered by Law no. 3713. The regional administrative court did not assess the purpose of the testators’ assignment or offer its own evaluation of why the accident did not serve the purpose of preventing terrorist acts. -Consequently, the Court has found a violation of the right to a reasoned decision under the right to a fair trial. |
|
|
Kenan Yıldırım 2017/28711
14 September 2023 (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 of the Constitution |
- Alleged violation of the said right due to deprival of the opportunity to employ legal mechanisms. - The applicant was unable to receive his receivables under the participation account agreement as the relevant Company was in the process of liquidation. - It is one of the positive obligations incumbent on the State to establish appropriate legal mechanisms enabling the collection of the creditor’s receivables and to ensure the effectiveness of these legal remedies and mechanisms. - In the present case, there was uncertainty as to when the ongoing liquidation process would end, and the commercial court carried out neither an inspection nor an examination regarding the liquidation process. - The said liquidation process, which had been in place more than twenty years, was unbearable and unforeseeable for the applicant. - Thus, although the applicant resorted to the enforcement proceedings as well as bringing an action to collect his receivables, he was deprived of the opportunity to employ legal mechanisms due to the uncompleted liquidation process ongoing for a considerable period of time. Thus, the relevant legal remedy, which was considered to be effective in theory, did not provide an effective solution in the present case. - Consequently, the Constitutional Court found a violation of the right to an effective remedy in conjunction with the right to property. |
|
|
Artı Media Gmbh
14 September 2023 (Plenary)
|
Violations of the freedom of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution |
-Alleged violations of the freedom of expression and the press due to a decision to block access to a website. -The applicant claimed that there had been violations of freedom of expression and the press due to the court’s decision to block access to a news article published on his website named Artı Gerçek under Article 8 § A of Law no. 5651. - The Court has drawn similarities between previous cases where it assessed whether the impugned interference under Article 9 of Law no. 5651, based on the need to protect personal rights in a prompt and effective manner, satisfied the lawfulness criteria and complied with the requirements of a democratic society, as well as the proportionality principle. In this judgment, the Court has also found that the public authorities failed to act diligently in their assessments in order to prevent arbitrary use of the term of terrorism and concluded that the restriction did not meet a pressing social need, that the impugned interference did not fulfil the requirements of democratic social order and rely on reasonable grounds. -Accordingly, in the present case, the Court has assessed that there were no grounds in the present case to depart from the assessments and the conclusion reached in its Keskin Kalem Yayıncılık ve Ticaret A.Ş. and Others judgment. It has concluded that the freedoms of expression and the press were violated, and that the impugned violations stemmed directly from the law, on the grounds that Article 8 § A of Law no. 5651 did not provide fundamental safeguards capable of preventing arbitrary acts of public authorities and of striking a fair balance between the freedom of expression and the legitimate interest in protecting the democratic society against the acts of terrorist organisations. - Consequently, the Court found violations of the freedom of expression and the press. |
|
|
Ö.K. 2018/27526
14 September 2023 (Plenary)
|
No violation of the right to property safeguarded by Article 35 of the Constitution |
-Alleged violation of the right to property due to the decisions on seizure of the company and appointment of a trustee. - The applicant and his brother took over registered share certificates of a company, of which founders were subject to an investigation for their alleged involvement in a terrorist organisation. - Subsequently, a precautionary seizure was ordered on all rights and claims as well as all other movable properties of the company. Besides, the Savings Deposit Insurance Fund (“Fund”) was appointed as trustee to the company. The challenge by the applicant and his brother to these measures was dismissed. - The Court has noted that the measures in the form of precautionary seizure and appointment of trustee become justified when concrete evidence demonstrates that the impugned revenues were derived from an offence related to the terrorist organisation’s activities or are intended for use in the commission of a terror-related offence: thus, the impugned measures were found necessary. - The Court has concluded that the public authorities did not make an error of judgment, nor did they act arbitrarily in deeming the transfer of the company’s shares by the applicant to be a sham. It has also noted that the impugned measures did not place an excessive burden on the applicant, nor did they upset the fair balance between the personal interest in protecting the right to property and the public interest in employing these measures, to the detriment of the applicant. - Consequently, the Court found no violation of the right to property. |
|
|
Nesrin Çetinkaya and Serhat Çetinkaya 2019/8563
8 June 2023 (Second Section)
|
Violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said freedom due to imposition of a warning as a disciplinary punishment for the expressions uttered by the applicants, lawyers, in the petition of complaint drafted by them on behalf of their clients and submitted to the TMA against a doctor who examined their client allegedly battered by police officers and issued a false medical report. - The applicants submitted the relevant petition on behalf of their clients, which fell under the scope of their duties as defence lawyers. In this regard, it should be noted that the statements uttered by the applicants were part of the arguments they put forward to protect their client’s interests. - The inferior courts failed to analyse the impugned expressions in the context they had been uttered. - The authorities failed to strike a fair balance between the applicants’ freedom of expression and the protection of the ethical principles of the legal profession and the right to protection of the doctor’s honour and dignity. - Consequently, the Constitutional Court found a violation of the freedom of expression. |
|
| II. Constitutionality Review | |||
|
E.2020/33
28 September 2023 (Plenary)
|
Annulment of Article 4 § 3 of Law no. 7198 on the Final Central Administration Accounts Act of 2018 |
- The contested provision envisages the grant of complementary subsidy for the expenditures of the administrations in the Lists (I), (II), and (III) enclosed with Law no. 5018, which exceed the initial subsidies granted in the Central Administration Budget Act of 2018. - It is argued that the contested provision renders inapplicable the provision of Act no. 5018 for the year 2018 and hinders the exercise of budgetary powers of the Parliament. - As set forth in Article 161 of the Constitution, the expenditure of the State and of public corporations, other than state economic enterprises, shall be determined by annual budgets. On the other hand, the central administration final accounts bills are intended to elucidate the use of subsidies granted in budget bills. Any issue to be regulated through acts or budget bills can, in no way, be regulated by final accounts bills. Nor can final accounts bills make any amendment to, or annulment in, any acts. - However, the contested provision grants budgetary rights to the public authorities. -Therefore, the Court has concluded that the grant of complementary subsidy through final accounts bills falls foul of the budgetary right enshrined in Article 161 of the Constitution. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Yıldız Ceylan Var 2020/10490 25 July 2023 (Plenary) |
Violation of the right to respect for family life safeguarded by Article 20 of the Constitution |
-Alleged violation of the right to respect for family life due to the absence of statutory regulations to protect individuals under exceptional circumstances. -The applicant requested to establish a legal parent-child relationship with B.V. who was married to her mother and has taken care of the applicant as a father for several years. The instance courts later dismissed the adoption decision of the incumbent family court on the grounds that the statutory requirement stipulating that the child should be at least eighteen years younger than the adoptive parent had not been met. -Having assessed the said provision, the Court found that this statutory regulation had envisaged a definite and blanket condition and lacked a statutory regulation prescribed for exceptional cases and that no margin of appreciation had been afforded to the implementers in cases of necessity. -The Court decided that the definitive nature of the statutory age difference required for the adoption procedures and the absence of exceptional circumstances provided in the legal regulations in this regard were in contravention of the positive obligations incumbent on the State to enact legal provisions within the framework of the right to respect for family life. - Consequently, the Court found a violation of the right to respect for family life. |
|
|
Şerafettin Can Atalay (2) 2023/53898 25 October 2023 (Plenary) |
Violations of the right to stand for elections and engage in political activities as well as the right to personal liberty and security |
- Alleged violations of the right to stand for elections and engage in political activities due to dismissal of the applicant’s request for a stay of proceedings, as well as of the right to personal liberty and security due to the dismissal of his request for release. - The applicant applied to the Court of Cassation for his release, citing his entitlement to parliamentary immunity by virtue of his election as an MP. While the individual application was under review, the Court of Cassation upheld the applicant’s conviction. - With regard to Article 14 of the Constitution and Article 67 § 3, it has been determined that ensuring certainty and foreseeability regarding which offences are encompassed by the phrase “cases subject to Article 14 of the Constitution” referred to in Article 83 § 2 of the Constitution is not achievable through interpretations by judicial authorities but requires regulation by the legislature. - In the present case, the constitutional provisions have not been interpreted by courts in favour of freedoms, nor does there exist a legal system with substantive and procedural safeguards that would encourage such an interpretation. -Accordingly, it has been concluded that there is no constitutional or legal framework that provides certainty, foreseeability, and fundamental safeguards for the protection of the right to stand for elections and engage in political activities. -Following his election as an MP, the applicant began to enjoy the protection of parliamentary immunity and, consequently, it has been concluded that the applicant’s continued detention despite his request for release is in breach of Article 83 of the Constitution. - Consequently, the Court has found violations of the right to stand for elections and engage in political activities, as well as the right to personal liberty and security. |
|
| II. Constitutionality Review | |||
|
E.2021/5 1 June 2023 (Plenary)
|
Annulment of certain provisions in Law no. 7256 |
A. Provision envisaging that an employee shall be deemed to have waived certain rights, which he became entitled to during the period of his informal employment - The contested provision envisages that the employees who have been employed informally shall be deemed to have waived their rights that they have gained during the period of their informal employment, save for the wages and wage-related rights. - This provision thus enables employers to relieve themselves of the previously incurred obligations that have not been performed yet. - Arrangements may be introduced in favour of the employer so as to promote and ensure the formal employment of employees, but employees must not be subject to a burden. - Employee receivables also fall into the scope of the right to property. Therefore, the depriving of employees of their certain rights will prevent the State from fulfilling its positive obligations to protect the right to property and to ensure the employees to be socially insured. - Besides, this would upset the fair balance to be struck between the employer’s interests and those of the employee, to the detriment of the latter. - Consequently, the contested provision has been found unconstitutional and thus annulled. B. Provisions involving arrangements concerning the allocation academic staff at the University of Health Sciences (University) and the contracts to be signed by the academics with hospitals 1. Provision on the determination of the qualifications and allocation of academic staff - The contested provision envisages that the qualifications and allocation of academic staff to be employed at the University of Health Sciences shall be, in accordance with the affiliation protocol, determined jointly by the University and the Ministry of Health, in consideration of the needs and qualifications of the training units of training and research hospitals that are jointly used. - The administrative autonomy attached to the universities entails that the universities themselves shall determine the qualifications and allocation of their academic staff. The joint determination by the University and the Ministry with respect to academic staff is in breach of the constitutional safeguards as to the administrative autonomy of universities. - By virtue of the contested provision, the Ministry has undertaken an effective and decisive role in the decision-making process of the University, which is in breach of both administrative autonomy and scientific autonomy. - Consequently, the contested provision has been found unconstitutional and thus annulled. 2. Provisions placing an obligation on the academics to make contracts with hospitals - The contested fourth sentence places an obligation on the academics of the University to sign a contract with the hospitals covered by the affiliation protocol signed between the University and the Ministry. - The contested provision entails the academics of the University to make a contract with another public agency other than their own universities. The academics, staff taking office at universities with a separate legal personality, are thus included within the hierarchy of central administration. This is contrary to scientific autonomy. - Besides, the provision does not contain any comprehensive information about the contract to be signed between the hospital and the academic, save for its duration, the nature of the service to be provided thereunder, performance-related traits and duration: lack of sufficient certainty and foreseeability regarding the tasks to be performed by the academics at the hospital. - The contested fifth sentence provides for that in case of termination or expiry of the contract, the academic may sign a new contract with the other hospitals covered by the affiliation protocol or be employed at units to be determined by the University. It does not however clearly indicate the situations under which the contract may be terminated: lack of legal certainty. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2023/37 26 July 2023 (Plenary)
|
Annulment of Article 286 § 1 of the Turkish Civil Code no. 4721, which precludes the mother from initiating civil proceedings for denial of paternity |
- The contested provision grants not the mother, but only the father and the child the opportunity to initiate civil proceedings for denial of paternity. - It is argued that the provision, which enables merely the father and the child to raise a claim for denial of paternity and deprives the mother of such right, contravenes the rule of law and principle of equality, as well as the right to legal remedies. - Those who are entitled to initiate civil proceedings for denial of paternity are exhaustively listed in Articles 286 and 291 of Law no. 4721. Accordingly, the mother is not among such persons. Thus, the mother is not entitled to resort to legal remedies for claiming that the father is not the biological father of her child. - Therefore, the contested provision, which precludes the mother from initiating civil proceedings for denial of paternity as the father is not her child’s biological father, is in breach of the right to legal remedies in conjunction with the right to respect of private life. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2023/3 26 July 2023 (Plenary) |
Annulment of Article 314 § 4 of the Turkish Civil Code no. 4721 |
- The contested provision stipulates that in cases where the minors lacking of discernment are adopted by the spouses together, the names of the adoptive parents shall be indicated in the civil registry. - It is argued that in respect of the paternity established through adoption, the adults and minors are not subject to an equal treatment, as in the cases where the spouses adopt an adult or any of the spouses adopt the other’s child or foster child, who is not a minor, the names of the adoptive parents shall not be indicated in the civil registry. - The contested provision, which allows for the indication of parental relation -a requisite of family ties established between the adopted child and adoptive parents- also in the civil registry only in limited circumstances is directly related to the right to respect for family and private life of both the adopted child and the adoptive parents. - The inability to indicate the names of adoptive parents in the civil registry precludes the concealment, from the third parties, of sentimental family ties established through adoption. - In this sense, the adoptive process may thus become known to the others in social circles where personal identifying information may be shared. It may impair the confidentiality of family ties established trough adoption process. - Nor is there any effective remedy whereby those concerned may raise a claim for the indication of the names of adoptive parents in their civil registry. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2023/43 26 July 2023 (Plenary)
|
Annulment of the phrase “In case of a reconciliation between the parties, no action for compensation may be brought for the very same offence, subject-matter of the investigation …” included in the fifth sentence of amended Article 253 § 19 of the Code of Criminal Procedure no. 5271 |
- The contested provision stipulates that in case of a reconciliation between the parties, no action for compensation may be brought for the very same offence, which is subject-matter of the criminal investigation. - It is argued that although the aggrieved party, who has withdrawn his complaint, is still entitled to bring an action for compensation unless he clearly waives his personal rights, the contested provision sets aside the right to bring an action for compensation in case of a reconciliation, which is in breach of the principle of equality. Besides, no balance has been struck between the public interest of reconciliation and personal interest of the aggrieved party. - Pursuant to 253 § 5 of the Code no. 5271, the nature of reconciliation and legal consequences of accepting or rejecting this process shall be notified to the person concerned: a safeguard for preventing the parties from reconciling without their informed consent about the subsequent inability to bring an action for compensation. - In cases where all consequences of a given offence may be foreseen and real damage may be determined during the reconciliation process, the inability of the person to bring an action for compensation would not lead to a problem in constitutional terms. - However, it is not always possible to know and foresee, during the reconciliation process, the damage sustained on account of the criminal act. Thus, for making no distinction with respect to actions to be brought in relation to the damages that cannot be reasonably determined or foreseen during the reconciliation process, the contested provision places an excessive burden on the parties concerned. - Accordingly, the Court has concluded that no reasonable balance has been struck between the aim of reducing the workload of the judiciary and the restriction imposed on the right to access to a court, being in breach of the principle of proportionality. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Keser Altıntaş 2023/18536 25 July 2023 (Plenary) |
Dismissal of the case regarding the alleged violation of the right to a trial within a reasonable time |
- Alleged violation of the right to a trial within a reasonable time due to the prolongation of the land title cancellation and registration proceedings. - The applicant brought an action requesting that the immovable property, which was classified as an undeclared road during the cadastral survey, be registered in his name. - Provisional Article 2 of Law no. 6384 specifies that individual applications pending before the Court as of 31 July 2018, when Provisional Article 2 entered into force, may be examined by the Compensation Commission. - Following the issuance of the Nevriye Kuruç judgment, Provisional Article 2 of Law no. 6384 was amended by Article 40 of Law no. 7445. However, this amendment has not established any administrative or judicial mechanism to be resorted to before filing an application with the Constitutional Court, and relevant applications remain subject to direct review by the Constitutional Court. - It has been concluded that these applications can be examined once an effective remedy has been established for applications alleging a violation of the right to a trial within a reasonable time. - Consequently, the Court has dismissed the case, as there has been no justification for continuing with its examination. |
|
| II. Constitutionality Review | |||
|
E.2020/42 18 May 2023 (Plenary)
|
Annulment of the phrase “… the entire increased value …” included in the first sentence of Additional Article 8 § 4 of the Turkish Development Law no. 3194 |
- The contested provision entails the collection of the entire increased value of the land the value of which has increased as a result of the amendment made to a given development plan upon the request of the property owners. - It is argued that there is no public interest in the collection of the aforementioned entire amount as the share of increase in value, which allegedly limits the right to property. - As regards development activities and planning, a fair balance should be struck between the public interest and the individual interest. - In this sense, the impugned provision upsets the fair balance sought between the public interest and the property owner’s right to property to the detriment of the latter, thus constituting a disproportionate limitation on the right to property. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2020/79 22 June 2023 (Plenary)
|
Decision on certain provisions regulating the simplified trial procedure |
A. As regards the provision preventing the conduct of simple trial procedure after the date of hearing has been set - The impugned provision aims to ensure the expeditious adjudication of the cases regarding the disputes that may be resolved without holding a hearing. In this sense, it serves the public interest in preventing unnecessary prolongation of the proceedings. - Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed. B. As regards the provision entailing the reduction by one-fourth of the final sentence imposed through the simplified trial procedure - The impugned reduction, which is at the discretion of the law-maker, is appropriate and necessary so as to achieve the purpose of expediting the proceedings. - Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed. C. As regards the provision stipulating that the court issuing the decision shall hold a hearing in cases of objection to the decisions rendered in accordance with the simple trial procedure - Assignment of the same judge, who has already expressed his opinions during the initial proceedings, for the subsequent proceedings to be carried out by means of holding a hearing would render the latter unnecessary. Moreover, such a situation may call into question the impartiality of the court as well as the independence of the judge. - The contested provision also entails a hearing to be held in any cases, regardless of the grounds for objection, which will adversely affect the expeditious conclusion of the proceedings that is the primary purpose of the simplified trial procedure. - Consequently, the impugned provision has been found unconstitutional and thus annulled. |
|
|
E.2023/36 26 July 2023 (Plenary) |
Annulment of the phrase “… the cases regarding the amounts exceeding one hundred Turkish liras …” included in Article 46 § 1 (b) of the Procedure of Administrative Justice Act no. 2577 |
- The contested provision stipulates that the decisions rendered by the regional administrative courts, the subject matter of which concerns the amounts exceeding 581,000 Turkish liras shall be subject to appellate review. - The contested provision is claimed to be unconstitutional in that the situation referred to therein does not comply with the right of access to a court, right to appellate review, principle of proportionality and principle of natural judge. - The provision falls foul of the legality requirement since it does not contain clear and precise information on the date to be taken as a basis for the applicable monetary limit to enable the appellate remedy. Besides, the cases the subject matter of which is below the monetary limit are not allowed to be appealed. Therefore, the provision imposes a disproportionate restriction on the right to appeal. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2023/32 26 July 2023 (Plenary)
|
Annulment of the phrase “… shall be suspended …” included in Article 8 § 8 of the Law no. 4733 on the Market of Tobacco, Tobacco Products and Alcohol |
- The contested provision stipulates that the certificates pertaining to the activities carried out under Law no. 4733 previously issued for those found to have committed certain acts under the Tax Procedure Law no. 213 and the Anti-Smuggling Law no. 5607 shall be suspended until the finalisation of the decision of non-prosecution or the court decision. - It is argued that the impugned suspension imposes a disproportionate restriction on the freedom of enterprise, and that the relevant sanction covering a long period of time in the absence of a court decision is disproportionate as well, which may be in breach of the presumption of innocence. - The Court considers that application of the said measure in the absence of a court decision runs contrary to the presumption of innocence. - In addition, the impugned suspension measure imposes a restriction on the freedom of enterprise since it prevents the ability to perform transactions regarding commercial and professional activities for a certain period of time. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Fuat Fettahoğlu 2019/33972 17 May 2023 (Plenary) |
Violation of the nullum crimen, nulla poena sine lege principle safeguarded by Article 38 of the Constitution |
- Alleged violation of the said principle due to the broad interpretation of a criminal norm relied on against the applicant. - The applicant, chairman of a company engaging in foreign trade, was subject to criminal proceedings on the basis of intelligence reports indicating that some of the imported products were genetically modified organisms. At the end of the proceedings, the applicant was convicted and the said products were confiscated. - It has been considered that the evaluation of the paddy product contaminated with genetically modified organisms as genetically modified organisms and their products was an expansive and unpredictable interpretation that deviated from the very essence of the legal regulation. - Consequently, the Court found a violation of the nullum crimen, nulla poena sine lege principle. |
|
|
Çetin Sağır and Others 2021/8864 24 May 2023 (Second Section)
|
No violation of the freedom of expression safeguarded by Article 26 of the Constitution |
-Alleged violation of the freedom of expression due to the imposition of disciplinary sanctions on the applicants -detained for or convicted of terrorist offences- since they had gone on hunger strike in the penitentiary institution to protest the holding in isolation of the leader of the terrorist organisation. -According to the Court, the applicants’ act had constituted the offence of propagating on behalf of the terrorist organization; therefore, the disciplinary sanctions were lawful and reasonable for restoring order in the penitentiary institution. - The Court also considered that the impugned sanctions met a pressing social need, were proportionate and the impugned interference was not contrary to the requirements of the order of a democratic society. - Consequently, the Court found no violation of the freedom of expression. |
|
| II. Constitutionality Review | |||
|
E.2022/100 22 February 2023 (Plenary)
|
Dismissal of the request for annulment of the amended first sentence of Article 177 § 2 of Law no. 1136 on Attorneys, whereas annulment of the phrase “…40% …. equally among the bar associations operating in a given province, and the remaining part…” in the sixth sentence added to Article 180 § 4 of Law no. 1136 |
A. Provision on the execution of legal aid services in provinces with more than one bar association by the number of bar associations instead of a single office - Article 77 of the Law no. 1136 allows for the establishment of more than one bar association in a province with more than five thousand lawyers on condition of the registration of a minimum of two thousand attorneys. - There is no statutory provision that requires the legal aid services to be provided by a single office in provinces with more than one bar association. Accordingly, in provinces with several bar associations, it is at the discretion of the legislator to provide legal aid services by a single office or by the offices established by each bar association: no conflict with Article 135 of the Constitution. - Besides, in Article 181 § 1 of the Law, it is stated that the offices shall report their activities to the board of directors with a report to be prepared at the end of each year, and a copy of the report shall be sent to the Union of Turkish Bar Association by the bar association: the existence of necessary mechanisms to prevent the offices from engaging in practices that may cause uncertainty in the provision of legal aid services. - Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed. B. Provision regarding the equal distribution of forty percent of the point calculated on the basis of population in provinces with several bar associations among the bar associations in that province - The current expenses of the offices regarding legal aid services are not directly related to the number of members of the bar association to which they are affiliated. Accordingly, it is at the discretion of the legislator to stipulate provisions that allow such expenses to be met in provinces where there is more than one bar association. - The equal distribution of forty percent of the points calculated according to the population of the province (following the allocation of five basic points equally to the bar associations in provinces with several bar associations as a basis for the distribution of the legal aid allowance) may cause the bar associations with more members to face financial difficulties in providing legal aid services. - Accordingly, the Court has concluded that in provinces with several bar associations, a reasonable balance cannot be achieved in terms of the distribution of legal aid allowance between the bar associations with fewer members and the bar associations with more members. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2022/36 4 May 2023 (Plenary)
|
Annulment of the Presidential Decree provision as regards the creation of positions within the Council of Judges and Public Prosecutors |
- The contested provision stipulates that the positions of Board inspector and rapporteur judge shall be created for the central organisation of the Council of Judges and Public Prosecutors (CJP) and that these positions shall be added to the CJP Section of the Schedule (II) annexed to the Presidential Decree no. (2). - It is argued that the provisions regarding the creation of positions of public officials should be regulated by law, that the said Presidential decree has been issued on a matter that should be regulated exclusively by law, that the authority to issue a Presidential decree has been exercised unconstitutionally, and that the executive has been vested with a general, unlimited and indefinite regulatory power, which are incompatible with the principles of inalienability of the legislative power, the binding nature and supremacy of the Constitution and the separation of powers. - The creation and cancellation of the positions of public officials exercising judicial power have a bearing upon the exercise of judicial power. Given that the impugned issue does not solely concern the executive power, it cannot be regulated by Presidential decrees. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2022/110 22 June 2023 (Plenary) |
Annulment of the amendment to Provisional Article 3 of Law no. 5378 on Persons with Disabilities |
- The contested provision envisages the granting, of additional period for a maximum of 8 years upon the expiry of the period set out in the first paragraph, to the relevant municipalities and public institutions and organisations as well as owners of any facilities rendering public service, open areas and public transport vehicles so as to remedy the deficiencies found during the inspection. - It is argued that the extension of the period specified in the relevant provision is contrary to the State’s positive obligation to take measures for the protection and ensuring the social integration of the disabled persons, infringes the principles of social state and equality; and that such an extension is also in breach, inter alia, of the right to life and the right to protect and improve one’s corporeal and spiritual existence. - Articles 2 and 3 of Law no. 5378 entail that any public and open areas and public transport vehicles be revised to be accessible to the disabled persons and accordingly indicate a certain time-limit for the completion of such revisions. This time-limit, which was primarily determined as “2 years”, was then changed as “3 years” and subsequently as “4 years”. It was ultimately extended from 4 to 8 years through the contested provision. - The Court has noted that the extension, for several times, of the time-limit allocated to customise the relevant facilities with the needs of disabled persons would have an unfavourable bearing on the disabled persons in so far as it relates to the opportunity to participate in social life and take part in working life. - It has thus considered that the impugned extension of the time-limit is in breach of the State’s positive obligation to protect the disabled persons and to take the necessary measures for ensuring their social integration. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2022/109 13 July 2023 (Plenary)
|
Dismissal of the request for annulment of certain provisions of the Law no. 6563 on the Regulation of Electronic Commerce |
A. As regards the first sentence and sub-paragraph (a) of Additional Article 2 § 1 of Law no. 6563 - The contested provisions impose a limitation on the freedom of enterprise by restricting electronic commerce intermediary service providers engaging in economic and commercial activities in terms of carrying out certain activities in electronic commerce marketplaces where they provide intermediary services. - The impugned restriction entails that these goods cannot be put up in the electronic commerce marketplace under the control of the electronic commerce intermediary service provider. - It has been considered that although the impugned provisions have constituted a restriction on the freedom of private enterprise, this situation has not imposed an unreasonable burden on those concerned, and therefore a reasonable balance has been struck between the public interest pursued by the impugned provision and the individual interest as regards the freedom of private enterprise. - Consequently, the impugned provisions have been found constitutional, and therefore, the request for their annulment has been dismissed. B. As regards the phrase “… net trading volume” included in the first and third sentences of Additional Article 4 § 4 of Law no. 6563 - The contested provision clearly lays down the conditions under which electronic commerce intermediary service providers shall pay the license fee, the period when the fee shall be collected, as well as the calculation procedures regarding the fee. - It has been considered that the concept “… net trading volume” has been defined precisely, and its general framework as well as the relevant basic principles have been determined. Thus, the impugned provisions are clear, accessible and foreseeable, avoiding any arbitrariness and fulfilling the legality criterion. - Consequently, the impugned provisions have been found constitutional, and therefore, the request for their annulment has been dismissed. |
|
|
E.2022/47 13 July 2023 (Plenary)
|
Annulment of certain provisions of the Teaching Profession Law no. 7354, whereas dismissal of the request for annulment of some other provisions included therein |
A. As regards Article 3 § 4 of Law no. 7354 and the phrase “… by the Ministry of National Education …” included in Article 4 § 1 thereof - The aforementioned Article 3 § 4 regulates the career steps for the teaching profession clearly and explicitly. In this sense, the contested provision cannot be claimed to be ambiguous and unforeseeable; therefore, it does not run contrary to the legality criterion. It also serves the public interest. - The aforementioned Article 4 § 1, including the phrase “… by the Ministry of National Education”, shall grant the administration the regulatory power. Thus, in consideration of the fact that the legislator, drawing a legal framework regarding the qualifications to be sought in teacher candidates, grants the administration the authority to regulate the courses to be taught by teacher candidates with respective qualifications, there appears no contradiction with the principles of certainty and inalienability of legislative power. - Consequently, the impugned provisions have been found constitutional, and therefore, the request for their annulment has been dismissed. B. As regards Article 5 § 6 of Law no. 7354 - The contested provision envisages that a regulation shall be issued to determine the procedures and principles regarding teacher candidates. - It has been concluded that the provision is incompatible with the principle entailing the restriction of fundamental rights and freedoms by law. - Consequently, the impugned provision has been found unconstitutional and thus annulled. C. As regards Article 6 § 1 (b), the first sentence of Article 6 § 2, and Article 6 § 8 of Law no. 7354 - The contested provisions do not include clear and precise phrases on the basic principles, scope and nature of the minimum studies required in regard to the professional development areas, which are among the conditions for advancing in terms of the teaching career steps. - It is set forth in the Constitution that any matter related to the personal affairs of public officials shall be regulated exclusively by law. - It has been observed that according to the contested provisions, an unlimited, indefinite and wide area shall be arranged by a regulation, in the absence of a legal framework and of basic principles determined on a matter regarding the personal affairs of public officials. - Thus, the impugned provisions are incompatible with the principle envisaging the limitation of fundamental rights and freedoms by law. - Consequently, the impugned provisions have been found unconstitutional and thus annulled.
|
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Ford Otomotiv Sanayi Anonim Şirketi 2019/40991 20 June 2023 (Plenary) |
Violation of the right to respect for home, safeguarded by Article 21 of the Constitution |
- Alleged violation of the said right due to a search conducted at the workplace without an order by a judge. - The applicant is a joint-stock company operating in the automotive market. The Competition Board (the Board) decided to conduct a preliminary investigation to determine whether the applicant had violated the Act no. 4054 on the Protection of Competition. - The authorised competition experts carried out an on-site inspection in the applicant's premises. The Board conducted an investigation against undertakings, including the applicant, following a preliminary report. The Competition Authority's rapporteurs concluded that entrepreneurs, including the applicant, committed acts contrary to Article 4 of Act no. 4054. The report of the Competition Authority recommended that administrative fines be imposed on the impugned entrepreneurs. - The Board decided that an administrative fine be imposed on the applicant. - The applicant brought an action before the 13th Chamber of the Council of State (the Chamber) for annulment of the administrative fine and of the regulation under which the impugned fine was prescribed. The Chamber dismissed the impugned action. - The applicant’s subsequent appeal was dismissed by the Plenary Session of the Chambers for Administrative Cases of the Council of State (İDDK), on the grounds that the Chamber’s decision was in compliance with the procedure and the law. - Areas such as the workplace are considered as home. The inspection conducted at the applicant's workplace is in breach of the right to respect for home, as documents were obtained from the computers of company officials. - Article 15 of Act no. 4054 allows for on-site inspections by competition experts regardless of a court decision. However, inspections carried out by an order of the Board is not limited to cases where delay is prejudicial. Article 21 § 1 of the Constitution stipulates that a written order of an authorised agency may be sufficient only in cases where delay is prejudicial. This provision is contrary to Article 21 of the Constitution, as it does not restrict the possibility of carrying out on-site inspections upon an order of the Board to cases where delay is prejudicial. -The on-site inspection was carried out without a judicial decision, as the applicant did not seek to prevent it. However, this procedure violated the safeguard stipulated in Article 21 § 1 (2) of the Constitution. - It has been concluded that the violation occurred due to the lack of provisions in Law no. 4054 regarding the authority to conduct on-site inspections, as required by the safeguards established in Article 21 § 1 of the Constitution. - Consequently, the Court found a violation of the right to respect for home. |
|
| II. Constitutionality Review | |||
|
E.2023/5 9 March 2023 (Plenary)
|
Annulment of Article 29 § 4 of Law no. 7068 on the Adoption of Decree-Law on General Disciplinary Provisions of Law Enforcement Officers |
- The contested provision stipulates that in case of the revocation of a disciplinary sanction through a court decision, the competent disciplinary board or the authorised officer shall make a re-assessment of the case following the notification of the revocation decision. - It is argued that the contested provision, which allows for the imposition anew of a disciplinary sanction upon a revocation decision issued due to the erroneous classification of a disciplinary offence or a formal defect, does not prescribe a definite period of time for the imposition of such a sanction. - In terms of disciplinary law, the statutory period of limitation for imposing a disciplinary sanction covers the period running from the date when a disciplinary offence is committed until the imposition of a sanction. In cases where the disciplinary sanction is revoked through a court decision, a new disciplinary sanction shall be imposed which must be subject to a separate period of limitation. - However, the contested provision does not prescribe a definite period of time in allowing for imposition anew of a disciplinary sanction so as to prevent impunity of the officials committing disciplinary offences, which leads to the risk of being sanctioned for an indefinite period of time. - The Court has therefore concluded that the contested provision, which fails to entail measures so as to prevent public authorities from acting arbitrarily and falls foul of the legal foreseeability and certainty principles, is in breach of principle of the rule of law. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2022/152 5 April 2023 (Plenary)
|
Annulment of Article 6 § 4 (a) of Law no. 6191 on Contracted Sergeants and Privates |
- The contested provision stipulates that the contracted sergeants and privates, who are found to no longer be eligible -through a report to be issued by their hierarchical superiors on the basis of any kind of information and documents- for holding office at the Turkish Armed Forces for lack of discipline and immoral behaviour. - It is argued that the contested provision is unconstitutional as the Law no. 6191 allows for the termination of the contracts of these officers in the absence of the procedural safeguards laid down in Law no. 6413, where the acts and behaviours that entail disciplinary sanctions are listed and where the principles pertaining to the investigatory procedure, defence submissions and sanctions are set forth. - The contracted sergeants and privates are classified as other public officers who undertake tasks and duties of primary and permanent nature but are not public officers or workers. The Court has thus considered that the contested provision falls under the right to hold a public service safeguarded by Article 70 of the Constitution. - In this sense, any statutory arrangement limiting this right must be precise, accessible and foreseeable to the extent that would not lead to any arbitrariness. - However, the phrase “lack of discipline” is not definite enough to certainly deduce which acts and circumstances would fall thereunder. Therefore, the Court has observed that the acts constituting lack of discipline, which lead to the termination of the contract, are not objective and have no definite boundaries and framework. - On the other hand, the immoral behaviours giving rise to such termination must be of nature and severity that would preclude the performance of any service in the Turkish Armed Forces. Hence, the phrase “immoral behaviours” cannot be said to be completely ambiguous and uncertain. - Therefore, the contested provision, save for the phrase “lack of discipline”, is found to be certain, accessible and foreseeable, thus meeting the lawfulness requirement. - Besides, the contested provision does not necessitate the taking of defence submissions, thus the conduct of an investigation, before the termination of the contracts of the private sergeants and privates. - Consequently, it has been found unconstitutional and thus annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Ford Otomotiv Sanayi Anonim Şirketi 2019/40991 20 June 2023 (Plenary) |
Violation of the right to respect for home, safeguarded by Article 21 of the Constitution |
- Alleged violation of the said right due to a search conducted at the workplace without an order by a judge. - The applicant is a joint-stock company operating in the automotive market. The Competition Board (the Board) decided to conduct a preliminary investigation to determine whether the applicant had violated the Act no. 4054 on the Protection of Competition. - The authorised competition experts carried out an on-site inspection in the applicant's premises. The Board conducted an investigation against undertakings, including the applicant, following a preliminary report. The Competition Authority's rapporteurs concluded that entrepreneurs, including the applicant, committed acts contrary to Article 4 of Act no. 4054. The report of the Competition Authority recommended that administrative fines be imposed on the impugned entrepreneurs. - The Board decided that an administrative fine be imposed on the applicant. - The applicant brought an action before the 13th Chamber of the Council of State (the Chamber) for annulment of the administrative fine and of the regulation under which the impugned fine was prescribed. The Chamber dismissed the impugned action. - The applicant’s subsequent appeal was dismissed by the Plenary Session of the Chambers for Administrative Cases of the Council of State (İDDK), on the grounds that the Chamber’s decision was in compliance with the procedure and the law. - Areas such as the workplace are considered as home. The inspection conducted at the applicant's workplace is in breach of the right to respect for home, as documents were obtained from the computers of company officials. - Article 15 of Act no. 4054 allows for on-site inspections by competition experts regardless of a court decision. However, inspections carried out by an order of the Board is not limited to cases where delay is prejudicial. Article 21 § 1 of the Constitution stipulates that a written order of an authorised agency may be sufficient only in cases where delay is prejudicial. This provision is contrary to Article 21 of the Constitution, as it does not restrict the possibility of carrying out on-site inspections upon an order of the Board to cases where delay is prejudicial. -The on-site inspection was carried out without a judicial decision, as the applicant did not seek to prevent it. However, this procedure violated the safeguard stipulated in Article 21 § 1 (2) of the Constitution. - It has been concluded that the violation occurred due to the lack of provisions in Law no. 4054 regarding the authority to conduct on-site inspections, as required by the safeguards established in Article 21 § 1 of the Constitution. - Consequently, the Court found a violation of the right to respect for home. |
|
| II. Constitutionality Review | |||
|
E.2023/5 9 March 2023 (Plenary)
|
Annulment of Article 29 § 4 of Law no. 7068 on the Adoption of Decree-Law on General Disciplinary Provisions of Law Enforcement Officers |
- The contested provision stipulates that in case of the revocation of a disciplinary sanction through a court decision, the competent disciplinary board or the authorised officer shall make a re-assessment of the case following the notification of the revocation decision. - It is argued that the contested provision, which allows for the imposition anew of a disciplinary sanction upon a revocation decision issued due to the erroneous classification of a disciplinary offence or a formal defect, does not prescribe a definite period of time for the imposition of such a sanction. - In terms of disciplinary law, the statutory period of limitation for imposing a disciplinary sanction covers the period running from the date when a disciplinary offence is committed until the imposition of a sanction. In cases where the disciplinary sanction is revoked through a court decision, a new disciplinary sanction shall be imposed which must be subject to a separate period of limitation. - However, the contested provision does not prescribe a definite period of time in allowing for imposition anew of a disciplinary sanction so as to prevent impunity of the officials committing disciplinary offences, which leads to the risk of being sanctioned for an indefinite period of time. - The Court has therefore concluded that the contested provision, which fails to entail measures so as to prevent public authorities from acting arbitrarily and falls foul of the legal foreseeability and certainty principles, is in breach of principle of the rule of law. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2022/152 5 April 2023 (Plenary)
|
Annulment of Article 6 § 4 (a) of Law no. 6191 on Contracted Sergeants and Privates |
- The contested provision stipulates that the contracted sergeants and privates, who are found to no longer be eligible -through a report to be issued by their hierarchical superiors on the basis of any kind of information and documents- for holding office at the Turkish Armed Forces for lack of discipline and immoral behaviour. - It is argued that the contested provision is unconstitutional as the Law no. 6191 allows for the termination of the contracts of these officers in the absence of the procedural safeguards laid down in Law no. 6413, where the acts and behaviours that entail disciplinary sanctions are listed and where the principles pertaining to the investigatory procedure, defence submissions and sanctions are set forth. - The contracted sergeants and privates are classified as other public officers who undertake tasks and duties of primary and permanent nature but are not public officers or workers. The Court has thus considered that the contested provision falls under the right to hold a public service safeguarded by Article 70 of the Constitution. - In this sense, any statutory arrangement limiting this right must be precise, accessible and foreseeable to the extent that would not lead to any arbitrariness. - However, the phrase “lack of discipline” is not definite enough to certainly deduce which acts and circumstances would fall thereunder. Therefore, the Court has observed that the acts constituting lack of discipline, which lead to the termination of the contract, are not objective and have no definite boundaries and framework. - On the other hand, the immoral behaviours giving rise to such termination must be of nature and severity that would preclude the performance of any service in the Turkish Armed Forces. Hence, the phrase “immoral behaviours” cannot be said to be completely ambiguous and uncertain. - Therefore, the contested provision, save for the phrase “lack of discipline”, is found to be certain, accessible and foreseeable, thus meeting the lawfulness requirement. - Besides, the contested provision does not necessitate the taking of defence submissions, thus the conduct of an investigation, before the termination of the contracts of the private sergeants and privates. - Consequently, it has been found unconstitutional and thus annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Tayfun Cengiz (2) 2018/466 27 October 2022 (Plenary) |
Violations of the principles of equality of arms and adversarial proceedings under the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violations of the said principles by reason of the weakening of procedural safeguards in the applicant’s action for compensation for non-pecuniary damage caused by the terrorist attack. - Some non-governmental organisations decided to hold a rally for peace, labour and democracy in Ankara on Saturday, 10 October 2015, between 12 pm and 4 pm, after obtaining the necessary legal permits. On that day, as the crowd gathered in front of Ankara Railway Station to prepare for the rally, two explosions occurred one after the other at around 10:04 am, killing many people and injuring many others. - The applicant claimed that the administration was guilty of dereliction of duty by failing to take sufficient measures on the day of the incident, despite the information received prior to the bombing, and that his mental integrity had been destroyed by his presence at the scene of the incident and the events he had witnessed, and brought a full remedy action for non-pecuniary damages. - The court dismissed the case, and the applicant’s subsequent appeal was rejected by the Regional Administrative Court. - In the present case, the Court made some enquiries as to whether the applicant had been present at the scene of the incident and reached a conclusion based on the information provided by the administrative authorities. - The Court also asked the administration to determine whether the applicant had been present at the scene of the incident by analysing data such as photographs, videos, official minutes, hospital, police and prosecution records, footage from MOBESE surveillance cameras and HTS records, but the administration indicated that there was no record of the applicant’s name and injury in the investigation initiated into the incident. - In this context, it has been considered that the public authorities failed to sufficiently investigate whether the applicant had been present at the scene of the incident. - The overall assessment of the judicial process reveals certain shortcomings. In particular, it has been observed that the judicial authorities did not thoroughly investigate and examine the claims of the applicant seeking compensation. In addition, relevant evidence that could have influenced the outcome of the case was disregarded during the assessment. The court’s failure to investigate and examine the applicant’s allegations, which could have influenced the final judgment, and its prioritisation of the administration’s version of events, placed the applicant at a disadvantage in relation to the respondent administration. The Regional Administrative Court, to which the applicant appealed, was unable to remedy this procedural defect. As a result, the overall fairness of the judicial process was compromised. - Consequently, the Court found a violation of the principles of equality of arms and adversarial proceedings. |
|
|
Ziynet Benli 2019/23977 15 February 2023 (Plenary)
|
Violations of right of access to a court and the right to a trial within a reasonable time falling under the right to a fair trial |
- Alleged violation of the said rights due to the dismissal of the applicant’s request for rectification of the claim for compensation and the unreasonable length of the proceedings. - The applicant’s spouse, O.B., died as a result of a fire breaking out at the shopping mall where he had been working. The action for compensation brought by the applicant was joined to that of O.B.’s next-of-kin. - The labour court dismissed the claim for pecuniary damages, on the basis of the expert reports obtained, since the pecuniary damages had been reimbursed by the relevant institution, but accepted the claim for non-pecuniary damages. - On appeal, the decision of the labour court was ultimately quashed by the Court of Cassation due to the discrepancy between the expert reports. - In the meantime, the applicant submitted a petition to the court, seeking a rectification for an increase in the amount of claim for pecuniary damages. Her request was accepted by the labour court. - This decision was, however, quashed by the Court of Cassation in accordance with the decision of the Court of Cassation General Assembly on the Unification of Case Law, on the ground that a claim could not be rectified following a quashing decision. - Thereupon, the labour court awarded compensation for pecuniary and non-pecuniary damages, taking into consideration the amounts originally claimed before the request for rectification. This decision, which was appealed, was ultimately upheld by the Court of Cassation. A. Alleged violation of the right of access to a court - There is no explicit or implicit provision in the relevant legislation that excludes the possibility of rectification upon quashing. The general provisions excluding the possibility of rectification after quashing are established through jurisprudence. - Despite the existence of no explicit obstacle in the legislation to the submission of a request for rectification in cases where an investigation is conducted upon a quashing decision pursuant to the very same decision, the categorical interpretations excluding the rectification following a quashing decision in every case without any exception are unforeseeable, and these interpretations fall contrary to the requirement of legality in constitutional terms. - Consequently, the Court found a violation of the right of access to a court falling under the right to a fair trial. B. Alleged violation of the right to a trial within a reasonable time - In assessing whether the overall duration of proceedings before the labour courts is reasonable, the courts take into account various factors such as the complexity of the proceedings, the number of levels of jurisdiction involved, the attitude of the parties and relevant authorities during the proceedings, as well as the applicant’s interest in the speedy conclusion of the proceedings. - Consequently, the Court found a violation of the right to a trial within a reasonable time falling under the right to a fair trial. |
|
|
Deniz Yavuncu and Others 2018/5126 23 February 2023 (Plenary)
|
Violations of the freedom of expression and right to hold meetings and demonstration marches safeguarded by Articles 26 and 34 of the Constitution |
- Alleged violations of freedom of expression and the right to hold meetings and demonstration marches due to the applicant’s conviction for committing an offense on behalf of a terrorist organization without being a member of it on grounds of their participation in a demonstration march and statements of opinion. - The applicants were tried in different criminal proceedings for statements of opinions. As a result, they received sanctions of varying severity for committing offenses on behalf of the terrorist organization. -Referring to Hamit Yakut application, a similar application, the Court reiterated its finding that Article 220 § (6) of Law no. 5237 was not, in its content, purpose, and scope, certain, and it failed to afford protection to the applicants against arbitrary interferences. It considered this provision unlawful as well. -Applying a pilot judgment procedure to resolve structural problems, the Court previously had decided to suspend the examinations of similar applications such as the present one. However, during the prescribed period, there has been no statutory amendment to the said provision. -In this respect, the Court did not depart from the principles set out and the conclusion reached in its Hamit Yakut judgment. -Accordingly, the Court has concluded that the interference with the freedom of expression and the right to hold meetings and demonstration marches, which stemmed from the implementation of Article 220 § (6) of Law no. 5237 did not comply with the lawfulness requirement. -Consequently, the Court found violations of the freedom of expression and the right to hold meetings and demonstration marches. |
|
|
Meltem Radyo ve Televizyon Yayıncılık A.Ş. 2018/13551 23 February 2023 (Plenary)
|
No violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said freedom due to sanction imposed on publications inciting attitudes endangering general health and involving covert commercial communication. -An inspection against the applicant’s television channel with Meltem TV logo was initiated by the Radio and Television High Council (RTÜK) due to Dr. M.E.’s various statements in relation to the treatment of diseases with plant-based supplement products. -The report of the inspection found that statements also were of nature undermining public trust in doctors and hospitals and had the potential effects of alienating people from real treatment methods and negatively impacting general health. The report also considered that the program had included covert commercial communication. -As a result, the applicant was issued a warning and sentenced to an administrative fine. After exhausting legal remedies, the applicant applied to the Court. -The Court found the interference of warning sanction issued for acts endangering the general health appropriate. In relation to covert commercial communication, the Court referred to a similar application and reiterated its finding that it was neither arbitrary nor unsubstantiated for the instance court to reach the conclusion that there had been an advertisement in the said program. - Consequently, the Court found no violation of the freedom of expression. |
|
|
Ayhan Orhanlı 2019/7991 23 February 2023 (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 right of access to a court by reason of the dismissal of the applicant’s action challenging the cancellation by Decree-Law no. 675 on the Measures to Be Taken under the State of Emergency (Decree-Law no. 675) of the recruitment activities of officer candidates whose appointment had not been approved, instead of referring it to the Inquiry Commission on the State of Emergency Measures (“the Inquiry Commission”). - The applicant, who was a contracted staff member, did not hold any position in the Turkish Armed Forces (TAF) prior to the training for “Basic Military Service for Officers and Gaining an Understanding of Being an Officer”. - Following the attempted coup of 15 July 2016, the applicant was sent on leave with an order that appeared to cover all those in a similar situation. He was dismissed from the TAF by Decree-Law no. 675. - On learning that he would not be appointed under Decree-Law no. 675, the applicant brought an action for annulment. - The administrative court dismissed the case without examining it, on the grounds that there was in fact no action that could be the subject of administrative proceedings. - The Regional Administrative Court dismissed the applicant’s appeal on points of facts and law. The Council of State also dismissed the applicant’s appeal on points of law. - The applicant requested that the case be referred to the Inquiry Commission. - In the present case, since the action against the applicant was taken directly by Decree-Law no. 675, the applicant did not have the opportunity to have the legality of that action directly reviewed by the administrative courts. Indeed, the court dismissed the case without examining it on that ground. However, it appears that there was no examination of whether the action was within the competence of the Inquiry Commission. However, it is imperative that individuals enjoy procedural safeguards that allow them to challenge any disproportionate or arbitrary interference, even during a state of emergency. - Pursuant to Article 2 2 of the Law no. 7075, the actions (procedures) concerning the legal status of natural persons, which are directly regulated by the emergency decree-laws and which are not covered by the first paragraph of the same Article, shall fall within the competence of the Inquiry Commission. - It has been therefore concluded that the interference in the form of the dismissal of the applicant’s complaint following the cancellation of his recruitment by virtue of the Emergency Decree-Law and the non-reinstatement of his appointment without examination and subsequent referral to the Inquiry Commission was not to the extent required by the situation provided for in Article 15 of the Constitution, which governs the suspension and limitation of the exercise of fundamental rights and freedoms during a state of emergency. - Consequently, the Court found a violation of the right of access to a court under the right to a fair trial. |
|
|
Murat Albayrak 2020/16168 8 March 2023 (Plenary)
|
No violation of the right to a fair hearing 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 method employed to obtain the records relating to the interception of telecommunications. - The chief public prosecutor’s office launched an investigation to identify the members of the clandestine military structure of the Fetullahist Terrorist Organisation/Parallel State Structure (“FETÖ/PDY”), at the end of which it concluded that the applicant had committed the imputed offence, as he had been positioned within the said structure. - In the present case, the conclusion reached by the judicial authorities that the applicant had been positioned in the said structure of the FETÖ/PDY was based primarily on the HTS records relating to payphones, as well as on the analyses and evaluations carried out by the law enforcement authorities. - It has been evaluated that the obtaining of the HTS records relating to the communications via payphones from the Information Technologies and Communication Authority, in accordance with the judge’s decision, and the technical analysis of these records by the law enforcement authorities so as to identify persons likely to be suspects, did not constitute a practice involving a manifest error of judgment or manifest arbitrariness. - The judicial authorities have carried out the necessary investigations, analyses and assessments regarding the authenticity or reliability of the HTS data obtained. - There was no violation with regard to the allegedly unlawful method by which the HTS data relating to the GSM line used by the applicant, which had been accessed in accordance with the decisions on the interception of telecommunications, was obtained. - Consequently, the Constitutional Court found no violation of the right to a fair hearing within the scope of the right to a fair trial. |
|
|
Ayşe Fahriye Tosun 2021/17663 Cihangir Akyol 2021/33759 30 May 2023 (Plenary)
|
No violation of the right to a fair hearing 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 action the applicants had brought for the annulment of their request to carry out their profession freely after their work shifts. - The applicants, university professors, applied for a licence to practise in order to be able to freely exercise their profession after their work shifts. The Directorate of Health dismissed the impugned application on the grounds that the applicants were faculty members and were subject to the Higher Education Law no. 2547. -The actions brought by the applicants were dismissed by the inferior courts. The applicants’ appeal on points of law and fact and subsequent appeal on points of law were also dismissed. - The working principles and procedures of faculty members are laid down in Article entitled “Working principles” of Law no. 2547, and this provision constitutes the ground for dismissal of the applicants’ request for issuance of a license. - The same provision also stipulates that Article 28 of the Civil Servants Law no. 657, which prohibits civil servants from engaging in commercial and other gainful occupations, shall prevail in cases where there is no applicable provision laid down in Law no. 2547. - With reference to Law no. 2547 and the annulment decision of the Constitutional Court dated 7 November 2014, the inferior courts held that it was in compliance with the law to dismiss the requests of the applicants who held the title of associate professor or professor on 18 January 2014, when Law no. 6514 entered into force, but who were not included among those who had been practising privately prior to that date. - In the present case, it was understood that the administration complied with the Law on Practice of Medicine and Medical Sciences no. 1219, the Law on Healthcare Services no. 3359, and other relevant legal regulations when determining the procedure to be followed. - No manifest arbitrariness or manifest error of judgment in the view of the inferior courts was found on the basis of the provisions of Law no. 2547 and the grounds stated in the Constitutional Court's judgment. - Therefore, the fact that the request of the applicants was dismissed pursuant to Law no. 2547, and Article 28 of Law No. 657 referred to therein, did not prejudice the fairness of the proceedings. - Consequently, the Court found no violation of the right to a fair hearing. |
|
|
Mutia Canan Karatay (3) 2020/4999 1 June 2023 (First Section) |
Violation of freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said right due to the imposition of a disciplinary sanction on account of her medical statements presented in a television programme. - The applicant, a physician and one of the most renowned academics and scientists in Türkiye, stated during a television broadcast that pharmaceutical companies were acting in pursuance of commercial interests and that happiness could be achieved not with medications, but with a healthy diet. - As a consequence of the impugned statements, the applicant was subjected to a disciplinary investigation, at the end of which a disciplinary fine was imposed on her by the decision rendered by the Honour Board of the Istanbul Medical Chamber. - The High Board of Discipline of the Turkish Medical Association (TMA) upheld the impugned decision. The appeal lodged by the applicant against this decision was dismissed, with final effect, by the administrative court. - The requirement to prove having pertinent expertise in order to express an opinion restricts freedom of expression to the extent that would render it meaningless. Moreover, it is not for the judicial authorities to substitute themselves for a scientist and determine the form of expression to be used in a particular situation. - The consideration that the reference made by the applicant, to her books, in which she provides more technical explanations and attempts to ground her views, is a self-advertisement amounts to an indirect restriction of freedom of expression, since it goes beyond the aim pursued by the prohibition on advertising for physicians. - It has been thus concluded that the interference with the freedom of expression safeguarded by the Constitution by imposing a disciplinary sanction on the applicant did not correspond to a pressing social need and was not proportionate. - Consequently, the Court found a violation of freedom of expression. |
|
| II. Constitutionality Review | |||
|
E.2020/59 23 March 2023 (Plenary)
|
Annulment of certain provisions of the Bazaar and Neighbourhood Guards Law no. 7245 |
A. Article 6 § 1 (b), (ç) and (g) of the Law, regulating the Duties and Authorities of the Bazaar and Neighbourhood Guards - The contested provisions stipulate that the bazaar and neighbourhood guards shall have the duty and authority to have the owners of properties such as residences, workplaces and vehicles within their duty areas complete the measures regarding the protection of the said properties, to take preventive measures until the arrival of the law enforcement officers in order to prevent demonstrations, marches and disturbances that may disrupt the public order, as well as to prevent those who disturb the peace of the public. - It is argued that the contested provisions contain vague expressions. - It has been observed that the phrases included therein such as the measures to be completed; the nature, severity and limits of the acts and situations that may disturb the public order; and the scope of the duties and authorities regarding preventive measures, are not clear. - Consequently, the contested provisions have been found unconstitutional and thus annulled. B. The First Sentence of Article 7 § 6 of the Law, Enabling the Bazaar and Neighbourhood Guards to Take the Necessary Measures Including External Search by Hand - The contested provision stipulates that in case of a reasonable suspicion that the person stopped by the bazaar and neighbourhood guard carries a weapon or other dangerous items, the guard may take the necessary measures, including external search by hand, in order to prevent any harm likely to occur. - It is argued that the criteria required for the restriction of the right to privacy are not laid down in the contested provision. - It has been considered that the external search of persons and their belongings by hand must not be conceived as body search, and its limits must be determined based on the objective criteria. In this regard, the impugned provision is indefinite. - Consequently, the contested provision has been found unconstitutional and thus annulled. C. The Second Sentence of Article 12 § 1 of the Law, Enabling the Extension of the Working Hours of the Bazaar and Neighbourhood Guards - The contested provision stipulates that the working hours of the bazaar and neighbourhood guards, which is determined as forty hours per week, can be increased in cases necessitated by the security and public order. - It is argued that the phrase “… in cases necessitated by the security and public order …” is vague. - The impugned provision imposes a restriction on the right to rest. Besides, the upper limit of the working hours is not specified. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2023/44 5 April 2023 (Plenary)
|
Annulment of the phrase “…the administrative fines that have been already collected are non-refundable” laid down in the second sentence of Provisional Article 4 of Law no. 7420 Amending the Income Tax Law and Certain Laws and Decree-Laws |
- The contested provision sets forth that the administrative fines, which have been imposed from 11 March 2020 to the effective date of Provisional Article 4 so as to prevent the spread of Covid-19 in the country but have not been served on the addressees yet, shall not be served; that administrative fines which have been already served on the addressees shall not be collected; and that no administrative fine shall be imposed on account of such misdemeanours committed before the effective date of the said provision. The contested provision also lays down that “…administrative fines that have been already collected are non-refundable”. - It is argued that the contested provision is contrary to the principles of legal security and foreseeability; and that it is also in breach of equality principle for causing difference in treatment among those who have been subjected to an administrative fine for the very same reason. - It appears that those who have been subjected to an administrative fine are in a relatively similar situation. Therefore, any statutory arrangement that is more favourable merely to some of the individuals who are in a relatively similar situation must have an objective and reasonable ground, as well as must be proportionate: however, there is no objective and reasonable ground to justify the difference in treatment. - Besides, the Court has also taken into account its previous judgment in the case of Mustafa Karakuş (no. 2020/34781, 17 January 2023) in which it held that the administrative fines imposed under Law no. 1593 with a view to preventing the spread of Covid-19 in the country had run contrary to the principle of nullum crimen, nulla poena sine lege. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Wısam Sulaıman Dawood Eaqadah 2021/2831 15 February 2023 (Plenary) |
Inadmissibility of the alleged violations of prohibition of ill-treatment and right to an effective remedy |
- Alleged violations of the said prohibition due to the deportation order issued against him, as well as of the right to an effective remedy, in conjunction with his freedom of residence, as the deportation order fell contrary to the procedural safeguards. - The applicant, who is a citizen of Iraq, began to live in Türkiye with his family after obtaining a residence permit. - Following an investigation against a number of individuals including the applicant for membership of an armed terrorist organization, the governor’s office ordered the applicant’s deportation as well as his administrative detention. His residence permit was revoked due to the restriction (tahdit kaydı) and deportation orders issued in respect of him. - The applicant then brought an action before the administrative court, seeking the annulment of the deportation order. His action was, however, dismissed by the administrative court with no right of appeal. A. Alleged Violation of the Prohibition of Ill-Treatment - In case of an allegation that the foreigner will be subjected to ill-treatment in the receiving country, the administrative and judicial authorities must scrutinize whether a real risk of violation exists in relation to the said country. Nevertheless, the State does not have a duty to scrutinize each deportation procedure. In order for such an obligation to emerge, there must be an arguable claim raised by the applicant. - In the present case, the applicant failed to substantiate his alleged risk of being subjected to ill-treatment in case of his deportation to his home country. Nor were his allegations severe and sufficient for an examination. - Consequently, the Constitutional Court declared the alleged violation of the prohibition of ill-treatment inadmissible for being manifestly ill-founded. B. Alleged Violation of the Right to an Effective Remedy in conjunction with the Freedom of Residence - Following the finding of the applicant’s name in the list concerning the terrorist organization members, it was not inappropriate or unsubstantiated for public authorities to establish a link between the applicant and the terrorist organization. Therefore, the impugned deportation had a legal basis. - In this sense, the allegations put forward by the applicant before the administrative court were confined to the fact that he had not committed an illegal act and there had been no evidence put forward against him during the criminal investigation process. - The administrative court, finding lawful the assessment of the public authorities to the effect that the applicant had posed a threat to public security, did not act in breach of the safeguard of a review of the impugned situation. - Consequently, the Constitutional Court declared inadmissible the alleged violation of the right to an effective remedy, in conjunction with freedom of residence, for being manifestly ill-founded. |
|
|
Ümran Özkan 2019/13338 8 March 2023 (Plenary)
|
Inadmissibility of the alleged violation of the right to a fair trial |
- Alleged violation of the said right with regard to the action for annulment brought by the applicant for her not being appointed due to the unfavourable outcome of the security investigation and archive research conducted with respect to her. - The applicant, who was entitled to be employed as a computer engineer, could not be appointed since the security clearance investigation carried out against her yielded negative results. The action for annulment brought by her was dismissed by the administrative court. Her subsequent appeal was also dismissed by the regional administrative court with no right of appeal. - The applicant, represented by a lawyer, had herself become aware of the reasoning of the final judgment through the National Judiciary Informatics System (UYAP). The said judgment was served on her lawyer on a subsequent date. - Her lawyer lodged an individual application with the Court, taking the date when the judgment had been served on him as a basis for the prescribed period of 30 days to lodge an individual application. - In the present case, the time-limit prescribed for individual application started to run from the date when the applicant herself become aware of the reasoning of the final judgment through the UYAP. Therefore, she failed to lodge her application within the prescribed period. Nor did she submit any excuse in this regard. - Consequently, the Court found the application inadmissible as time-barred. |
|
| II. Constitutionality Review | |||
|
E.2019/88 13 December 2022 (Plenary)
|
Dismissal of the request for annulment of Article 6 § 2 of Law no. 7174 on Cappadocia Area in so far as it relates to “special provincial administration” and “public vocational organisations”, whereas annulment of Article 8 § 3 of the same Law. |
A. As regards Article 6 § 2 - The contested provision stipulates that the power to increase the contribution rate to be deducted from the budgets of municipalities and certain other organisations laid down in the Law, which will be appropriated as revenue to the administration, from one-hundredth to two-hundredth shall be exercised by the President. - It is argued that the power entrusted to the President is in breach of the financial autonomy of the municipalities operating in Cappadocia Area; that allowing for an increase up to one hundred percent is not proportionate and is contrary to international law. - The Chairman’s Office of Cappadocia Area (Chairman’s Office), which is entrusted with duties and powers pursuant to Article 4 of the Presidential Decree-Law no. 38, has duties and powers overlapping with those of the municipalities and organisations. In other words, the Chairman’s Office authorised with respect to Cappadocia Area is empowered to meet several local needs. - Besides, the Chairman’s Office will clearly increase the significance of the activities in the Area in the tourism sector, thus facilitating the activities of the relevant chambers of commerce and industry as well as their members, and increasing their income. - Therefore, the contested provision allowing for an increase by the President up to one hundred percent has a legitimate purpose, in consideration of the contribution to be made by the Chairman’s Office in meeting needs of local and common needs of the Area and in conducting the occupational activities. - It cannot be also said that such an increase in the deduction of the budgets of these municipalities and organisations will significantly hamper the exercise of their duties and powers. The contested provision is not therefore in breach of the principle of financial autonomy. - Consequently, the contested provision has been found constitutional, and therefore, the request for its annulment has been dismissed. B. As regards Article 8 § 3 - The contested provision stipulates that the acts and actions contrary to the measures intended for the protection and maintenance of historical, cultural and natural assets of Cappadocia, as well as the amount of administrative fines to be imposed in case of any breach shall be determined through a regulation to be issued by the administration. - It is argued that the acts and actions that are subject to a sanction must be determined through not regulations, but laws. - The Court has observed that the relevant law does not embody any provision regarding such acts and actions. Nor does it have any provision concerning the administrative fines to be imposed in case of commission of these acts and actions. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Sina Aziz Manastırı ve Başpiskoposluğu (Tur-u Sina Manastırı) 2018/26955 14 December 2022 (Plenary) |
Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the said right due to the rejection of the request for return of the church premises, granted with the status of fused foundation, to the Foundation. - It is claimed that the immovable property in dispute, which was found to have been used by the community until 1977, was granted with the status of fused foundation as a result of the unilateral action taken by the administration, and that the applicant’s request for return of the said property was rejected based on the impugned administrative action. - The judicial authorities failed to provide relevant and sufficient reasons regarding the lawfulness of the said interference. - Consequently, the Constitutional Court found a violation of the right to property. |
|
|
Çetin Doğan (3) 2021/30714 15 February 2023 (Plenary) Ahmet Çörekçi 2021/30753 Cevat Temel Özkaynak 2021/32082 26 January 2023 (Plenary)
|
No violations of the nullum crimen, nulla poena sine lege principle safeguarded by Article 38 of the Constitution, and right to a fair hearing, principle of natural judge and non bis in idem principle safeguarded by Article 36 of the Constitution |
- Alleged violations of the said rights and principles for grounds such as being punished for an act that did not constitute an offence, use of unlawfully obtained evidence as a basis for conviction, and not being brought before the Supreme Criminal Tribunal. - An investigation was launched against the applicants, retired military officers, by the chief public prosecutor’s office in 2011 for the acts they had committed during the 28 February period. At the end of the proceedings, the applicants were sentenced to imprisonment with no right of appeal. A. Alleged violation of the nullum crimen, nulla poena sine lege principle - It is for the first instance courts to determine the scope of criminal responsibilities and, accordingly, to assess whether the constituent elements of the offence were made out, and to define the corresponding punishment. - The Court found it established, in the particular circumstances of the case, that the constituent elements of the offence had been made out. - Consequently, the Constitutional Court found no violation of the nullum crimen, nulla poena sine lege principle. B. Alleged violation of the right to a fair hearing - The applicants, relying on an expert report, substantiated their allegation that the CD no. 5 was forged. - The first instance court had specified that the documents that had been undoubtedly authentic and reliable shall be used as evidence. - The said CD had not been the sole and decisive evidence relied on for the applicants’ imprisonment. - Consequently, the Constitutional Court found no violation of the right to a fair hearing. C. Alleged violation of the principle of natural judge - It is laid down in Article 148 § 7 of the Constitution that the Chief of General Staff, the commanders of the Land, Naval and Air Forces shall be tried as well in the Supreme Criminal Tribunal for offences regarding their duties. This provision also embodies the principle of natural judge. - The trial court stated that in order for an offence to be defined as the one committed regarding duty, there must be a causal link between the imputed act and the duty, the said act must be related to the duty and must be committed by taking advantage of the opportunities provided by the duty. - It was observed that the interpretation made by the trial courts and the Court of Cassation, which stated that the imputed offence was not related to the duty, did not violate the principle of natural judge. - Consequently, the Constitutional Court found no violation of the principle of natural judge. D. Alleged violation of the non bis in idem principle - In the present case, the statements of witnesses and complainants, as well as, documents received from relevant institutions and digital documents, which were obtained following the decision of non-prosecution were new evidence. - It was considered that the second set of proceedings initiated for the acts subject to the decision of non-prosecution was based on the discovery of new evidence, which constituted an exception to the aforementioned principle. - Consequently, the Constitutional Court found no violation of the non bis in idem principle. |
|
|
Muharrem Çimen 2016/5002 23 March 2023 (Plenary) |
Violation of the right to union safeguarded by Article 51 of the Constitution |
- Alleged violation of the said right due to the termination of the applicant’s employment contract for his participation in a slowdown strike. - The strike was a short and peaceful activity aimed at expressing disputes regarding the collective labour agreement. - Besides, the employer failed to demonstrate that the applicant’s conduct went beyond the purpose of seeking his democratic rights. In addition, the applicant was imposed an extremely heavy sanction as a result of which he lost his job. - Hence, the interference with the applicant’s right to union would have a chilling effect on the exercise of the right to union. - The State did not fulfil its positive obligations, since the incumbent courts failed to conduct an effective judicial review. - Consequently, the Constitutional Court found a violation of the right to union. |
|
|
İlyas Bulcay 2020/24527 9 February 2023 (Second Section)
|
Violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said freedom for imposition of an administrative fine due to social media posting that may incite violence in sports competitions. - The incumbent public authorities failed to demonstrate that the applicant’s posting had encouraged the fans to take to the streets, incited violence or posed a threat to the security and order in sports competitions. - Therefore, the authorities failed to rely on relevant and sufficient grounds to prove that the administrative fine imposed on the applicant regarding his social media posting corresponded to a pressing social need. - The interference with the applicant’s freedom of expression was not proportionate to the legitimate aim pursued. Thus, it did not comply with the requirements of a democratic social order. - Consequently, the Constitutional Court found a violation of the freedom of expression. |
|
| II. Constitutionality Review | |||
|
E.2018/83 30 November 2022 (Plenary)
|
Dismissal of the request for annulment of Article 6 of the Law no. 7089 on the Adoption of the Decree-Law on Taking Certain Measures under State of Emergency |
- The contested provision stipulates that the medals awarded, under the Law no. 2933 on Medals and Orders, to those found to have connections and relations with terrorist organizations or structures, formations or groups decided by the National Security Council (MGK) to carry out activities against the national security of the State, who are listed in Annex 7, shall be withdrawn. - It is argued that the contested provision is unconstitutional since it envisages a disciplinary sanction, which is one of the transactions that should be regulated by law. - It has been concluded that Article 40 of the Constitution affords effective, reasonable and accessible administrative and judicial remedies to challenge the measure envisaged in the contested provision. Therefore, the State has fulfilled its obligation to provide effective administrative and judicial remedies to those subjected to the said measure. - Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed. |
|
|
E.2022/97 25 January 2023 (Plenary)
|
Annulment of the second sentence of Additional Article 33 § 3 of the Law no. 657 on Civil Servants |
- The contested provision stipulates that those who perform on-call duty shall be made payment for only up to 120 hours per month for the on-call duty, and that if the personnel are required to perform on-call duty beyond this period, no payment shall be made. Thus, no limit is set for the length of the on-call duty. - While it is important that emergency health services are provided without interruption, these services should not preclude the health professionals’ right to rest. - In cases where on-call duty is strictly necessary, redress of the consequences of the violation of the right to rest by making a payment will strike the balance between the public interest in the uninterrupted continuation of health services and the health professionals’ interest in the enjoyment of the right to rest. - As such, it has been considered that the contested provision imposes a disproportionate burden on healthcare professionals. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2022/142 16 February 2023 (Plenary)
|
Annulment of the second sentence of Article 50 § 2 of Law no. 3568 on Certified Public Accountancy and Sworn-in Certified Public Accountancy |
- The contested provision stipulates that the approval of the Ministry of Treasury and Finance (the Ministry) shall be required for the disciplinary regulations to be issued by the Union of Chambers of Certified Public Accountants and Sworn-in Certified Public Accountants of Türkiye. - It is argued that the granting of approval authority to the Ministry is incompatible with the principle of autonomy of professional organizations, which is unconstitutional. - According to the Court, in consideration of the fact that the relevant professional organisation cannot issue a regulation in the absence of the Ministry’s approval, the contested provision renders the former’s authority to issue regulations and thus its autonomy meaningless. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2022/155 22 February 2023 (Plenary)
|
Annulment of the first sentence of Article 187 of the Turkish Civil Code no. 4721 and dated 22 November 2001 |
- The contested provision stipulates that the married woman cannot bear her maiden name alone after marriage. - It is argued that whereas the married man is entitled to bear his surname acquired by birth during his lifetime, the married woman cannot enjoy the very same right, which is in breach of the equality principle. In spite of the Court’s judgments finding a violation in this regard, the contested provision is still applied by the administration for not being amended yet, which falls foul of the binding nature of the Court’s decisions and judgments. - The Court has concluded that woman and man are in a comparably similar situation as regards their entitlement to bear the surname prior to marriage also after getting married; and that although man is entitled to bear his own surname alone after getting married, the contested provision stipulates that woman shall be allowed to bear her maiden name after marriage only in front of her husband’s surname: difference in treatment on ground of sex between spouses who are in a comparably similar situation. - It has also observed that the aims of ensuring order and convenience in records of civil registry as well as of maintaining and strengthening family ties cannot be considered as a reasonable justification for the difference in treatment resulting from the contested provision. - It has accordingly concluded that the impugned difference in treatment between woman and man as regards their entitlement to bear their own surname prior to marriage alone also after marriage falls foul of the equality principle. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2022/145 22 March 2023 (Plenary)
|
Annulment of Article 247 § 3 of the Code of Criminal Procedures no. 5271, whereas dismissal of the request for annulment of Article 248 § 5 thereof. |
A. As regards Article 247 § 3 - The contested provision stipulates that the investigation and prosecution stages, from the acceptance of indictment and finalisation of the verdict rendered, may be conducted against an accused person being a fugitive. The only exception to this provision is that the fugitive accused person, who has not been interrogated yet, cannot be convicted. - It is argued that the conduct of proceedings in the absence of the accused person restricts the right to be present at the hearing and thus the right to a fair trial; and that the contested provision allows for issuing a decision of no need for imposing a penalty or a decision on the application of security measure in respect of the fugitive accused person who has not been interrogated, which imposes a disproportionate restriction on the right to a fair trial and also falls foul of the presumption of innocence. - The Court has noted that the aim pursued by the contested provision which enables the conduct of the proceedings in the absence of the accused person –including the cases at the end of which any verdict other than conviction is reached without the accused person being interrogated- is to conclude the proceedings with the least cost and within the shortest time possible. - The Court has also observed that as set forth in the contested person, in the absence of the accused person being a fugitive, it is found established that he has committed the impugned act specified in the indictment; but no penalty is imposed at the end of proceedings: he is no longer innocent; and that in cases where a security measure is ordered pursuant to the contested provision, the accused person is also subject to a sanction. - It has accordingly concluded that the conclusion of the proceedings with respect to an accused person being a fugitive without being interrogated constituted a disproportionate restriction on the right to a fair trial, in the absence of an opportunity to raise a challenge before the first-instance, appeal or cassation courts. - Consequently, the contested provision has been found unconstitutional and thus annulled. B. As regards Article 248 § 5 - The contested provision allows for issuing of a decision ordering detention in absentia of the fugitives who are abroad. - It is argued that the contested provision impairs the very essence of the right to personal liberty and security and cannot be considered proportionate to the aim of making the fugitive be present at the trial. - The Court has noted that the provision is intended for preventing the fugitives from obscuring or altering the evidence or making them be present at the trial: thus, the provision pursues the legitimate aim of conducting the judicial process in a sounder manner. - Besides, the contested provision clearly and precisely sets forth the conditions and circumstances in which the personal liberty and security of fugitives may be restricted; thus, it is precise, accessible and foreseeable. - It is also laid down in the provision that the fugitive whose detention is ordered in absentia shall be brought before a competent judge: it does not place an excessive burden on the right to personal liberty and security. - Consequently, the Court has found the contested provision constitutional and thus dismissed the request for its annulment. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Yunis Karataş 2021/34231 26 January 2023 (Plenary) |
Violation of the nullum crimen, nulla poena sine lege principle safeguarded by Article 38 of the Constitution |
- Alleged violation of the said principle due to the applicant’s conviction without eligibility for parole. - The applicant, convicted of the offence of having attempted to alter the constitutional order, was sentenced to capital punishment, which was ultimately commuted to aggravated life imprisonment. - Arguing that he had not committed any offence on behalf of an organisation, the applicant raised an objection before the incumbent magistrate judge and claimed that the provisions related to parole should have been applied in his case. However, his objection was dismissed. - The matter in the present case is whether the provisions on parole can be applied in case of an aggravated life imprisonment to which the applicant was sentenced. - The Court has noted that in ascertaining whether these provisions may be applied in such cases, what is important is not whether the act committed is a terrorist act, but whether the perpetrator is a terror offender. - A person may be considered as a terror offender when he is a member of the organisations defined in the relevant legislation or commits offences on behalf of these organisations even if he is not a member thereof. - In the present case, it reveals from the decision convicting the applicant that he was not a member of any organisation or he did not commit any offence on behalf of them. - For the existence of an organisation, there must be also a hierarchical structure, and the acts performed on behalf of the organisation must be of continuing nature. In the present case, no hierarchical link could be established among the applicant’s co-offenders. Besides, they had conspired to commit merely a single criminal act. - In dismissing the applicant’s objection, the magistrate judge failed to make such assessments and to make any explanations in this regard. - Consequently, the Court found a violation of the nullum crimen, nulla poena sine lege principle. |
|
|
Yaman Akdeniz (2) 2016/6815 15 February 2023 (Plenary)
|
Violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said freedom due to refusal of the applicant’s request to obtain information on the statistics with respect to the court orders issued to block access to websites. - The applicant, an academic at the faculty of law, is also the founder of a non-governmental organisation and a website. - He applied to the Information and Communication Authority (Authority) for being provided with statistical information on the court orders issued to block access to websites. His request was dismissed by the Authority. His subsequent objection against this dismissal was also rejected by the incumbent Council. - His action for annulment of the impugned dismissal was also rejected by the incumbent administrative court. On appeal, the Council of State upheld the administrative court’s decision. - The Court has noted that in consideration of the applicant’s position as an academic holding office in the fields of internet law and human rights, his acts and activities must be afforded protection comparable to that provided by the freedom of the press. - In the present case, the applicant’s request to obtain certain information did not cause a significant workload for the relevant Authority. Nor could it be argued that the requested information was not even in the possession of the Authority. - The Court has concluded that the information, which was likely to contribute to the public debate on the court orders issued to block access to websites, was necessary for the studies and activities conducted by the applicant with respect to the violations of freedom of expression in online space. - Consequently, the Court found a violation of the freedom of expression. |
|
|
Emre Kunt 2019/5577 8 March 2023 (Plenary) |
Violation of the right to legal assistance under the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violation of the said right due to the applicant’s inability to communicate and consult with his legal counsel appointed ex officio. - The applicant was detained on remand for, and ultimately convicted of, his membership of the Fetullahist Terrorist Organisation / Parallel State Structure (FETÖ/PDY). - During his trial, the applicant maintained that despite his being held in the penitentiary institutions located in Uşak and İzmir provinces, the incumbent chief public prosecutor’s office and court appointed defence counsels registered in the bar association of another province. - Despite his request for appointment of a new defence counsel registered in the bar association in close proximity to the penitentiary institution where he was held, the incumbent court neither took into consideration this request nor resorted to an alternative method to eliminate the setback resulting from the applicant’s inability to properly communicate and consult with his legal counsel. - The Court has thus observed that the applicant was not provided with the opportunity to effectively avail himself of legal assistance. - Consequently, the Court found a violation of the right to legal assistance. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
İdris Taniş (2) 2018/21866 14 December 2022 (Plenary) |
Violations of the right to respect for private life and the nullum crimen, nulla poena sine lege principle respectively safeguarded by Articles 20 and 38 of the Constitution |
- Alleged violations of the said right and principle for imposition of an administrative fine due to the applicant’s, a lawyer, not passing his bag through the X-Ray device at the entrance of the courthouse. 1. Alleged violation of the right to respect for private life - It is laid down in Article 32 of the Misdemeanour Law no. 5326 that administrative sanctions shall be imposed by administrative units authorised by law. However, there is no statutory regulation authorising the chief public prosecutor's office to impose an administrative sanction in case of failure to obey an order. - Besides, in the present case, the elements sought for the committal of the said misdemeanour were not identified. - Hence, the imposition of the said fine based on the interpretation of the public authorities did not meet the requirement of legality. - Consequently, the Constitutional Court found a violation of the right to respect for private life. 2. Alleged violation of the nullum crimen, nulla poena sine lege principle - The findings reached by the Court, which resulted in the violation of the right to respect for private life, also apply to the nullum crimen, nulla poena sine lege principle. - Consequently, the Constitutional Court found a violation of the nullum crimen, nulla poena sine lege principle. |
|
|
Kenan Kalkan 2018/36174 15 February 2023 (Plenary)
|
No violation of the right to a fair hearing within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violation of the said right for the elimination of the ongoing disagreement between the chambers of the Court of Cassation on the determination of the number of workers. - In the present case, the impugned matter arose from the determination of whether the defendant employer employed thirty or more workers as of the date of termination of the applicant’s contract of employment. However, in this regard there was a disagreement between the chambers of the Court of Cassation. - The contested difference in the case-law applicable when the applicant’s contract of employment had been terminated was then eliminated by unification of the conflicting case-law and adoption of the one that was against the applicant. - Consequently, the Constitutional Court found no violation of the right to a fair hearing within the scope of the right to a fair trial. |
|
|
Şerafettin Can Atalay 2021/9387 19 January 2023 (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 denial of the permission to use the venue preferred for the meeting on the grounds that it was not one of the venues designated by the local authority. - According to the Court, any restriction imposed by public authorities in this regard must comply with the requirements of the democratic social order in the particular circumstances of the case. - Pursuant to Article 6 of the Law no. 2911 on Meetings and Demonstrations, meetings and demonstration marches can be held anywhere. Accordingly, all public spaces must be open and available for meetings. The predetermination, by the administration, of the places where meetings and demonstration marches can be held cannot be interpreted as the denial of such events in other places. - The governor failed to make an assessment considering the content, manner, purpose, duration, number of participants, whether the impugned meeting posed a security risk, whether it would make daily life extremely and unbearably difficult, and whether an alternative venue would render the right to assembly ineffective. - It was therefore concluded that the interference with the applicant’s right to hold meetings and demonstration marches did not serve a pressing social need, nor did it comply with the requirements of the democratic social order. - Consequently, the Constitutional Court found a violation of the right to hold meetings and demonstration marches. |
|
| II. Constitutionality Review | |||
|
E.2018/123 9 November 2022 (Plenary)
|
Annulment of certain provisions of the Presidential decree no. (4), whereas dismissal of the request for annulment of the remaining provisions |
A. Provision stipulating the determination of the duties and authorities of the personnel of the Disaster and Emergency Management Presidency (AFAD) by a regulation to be issued by the latter - The Presidential decree embodying the contested provision does not include any regulation on the duties and authorities, appointment, working procedures and principles of the personnel and other issues related to them. Thus, the general framework and basic provisions in respect thereof were not determined by the Presidential decree, but through a regulation. - Consequently, the contested provision has been found unconstitutional, and therefore annulled. B. Provision regulating the qualifications of the personnel to be assigned in organizations abroad - It is laid down in Article 128 § 2 of the Constitution that the qualifications, appointment, duties and authorities, rights and responsibilities, salaries and allowances of public servants and other public officials, and other matters related to their status shall be regulated by law. - From this standpoint, it has been observed that the contested provision concerns an issue to be regulated by law. - Consequently, the contested provision has been found unconstitutional, and therefore annulled. C. Provision authorising the Department of Application and Data Management to collect any information, data and statistics - It is clear that the information and data to be collected shall also cover the personal data of taxpayers. No regulation can be made by Presidential decrees regarding the right to protection of personal data enshrined in Article 20 of the Constitution In this respect, the contested provision concerns a regulation regarding personal data and cannot be regulated by Presidential decrees. - Consequently, the contested provision has been found unconstitutional, and therefore annulled. D. Provision on the broadcasting of the President's statements and activities - According to the provisions determining the procedures and principles regarding the broadcasting of presidential declarations, TRT (Turkish Radio and Television Association) shall be obliged to make this broadcast. - Regulations regarding the duties and powers of TRT, which was established by a Presidential decree, may also be made by Presidential decrees. Thus, the contested provision is not related to an issue to be exclusively regulated by law. - Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed. E. Provision entailing periodic performance evaluation in determining rights and obligations as well as personal rights of public officials - The contested provision stipulates that the contracted personnel shall be subjected to performance evaluation annually, as a result of which, it shall be decided whether to extend or terminate their contracts. In this regard, the provision imposes a restriction on the freedom of labour and contract. - It appears that the impugned provision introduces a regulation regarding the restriction of fundamental rights and freedoms, which must be regulated exclusively by law in accordance with Article 13 of the Constitution. - Consequently, the contested provision has been found unconstitutional, and therefore annulled. F. Provision enabling the President to receive information directly from the Chief of General Staff, Force Commanders and their subsidiaries as well as to give them orders, and ensuring their fulfilment - The contested provision pertains to the issues as regards the President’s duty and power to determine the defence policy and take the necessary measures, and therefore, falls within the scope of the issues to be regulated by Presidential decrees under Article 106 of the Constitution. - The provision concerns an issue regarding executive power within the scope of Article 104 of the Constitution, and contains no regulation on rights and duties that cannot be regulated by Presidential decrees. - Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Narin Kurt 2018/2540 1 December 2022 (Plenary) |
Violations of both substantive and procedural aspects of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right for the failure to conduct an effective investigation into the death of the applicant’s husband due to the use of force by the police. - The incumbent assize court concluded that the use of weapon had been in breach of the right to life enshrined in Article 17 of the Constitution. Thus, the necessity and proportionality of the impugned use of force needed no examination by the Court. - The accused had been sentenced to 1 year and 8 months’ imprisonment, which was later converted to fine. - The relevant imprisonment sentence, which was later converted to fine, imposed for the death caused by the use of weapon by a police officer was neither relevant nor sufficient in terms of the protection of life by preventing similar violations. - As a result, the applicant still had the victim status, and the impugned punishment had no chilling effect on further similar violations. - Consequently, the Constitutional Court found violations of both substantive and procedural aspects of the right to life. |
|
|
Asya Göres and Others 2018/15851 1 December 2022 (Plenary)
|
Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right for the failure to conduct an effective investigation into the death of the applicants’ relative. - The deceased had been killed by a commander. The applicants filed an application with the European Court of Human Rights (ECHR), pending the domestic investigation process. The latter found violations of both substantive and procedural aspects of the right to life. - The applicants submitted the relevant ECHR judgment to the trial court that acquitted the accused at the end of the proceedings, which was subsequently upheld by the Court of Cassation. - In consideration of the ECHR judgment, there is no legal interest in re-examining the alleged violation of the substantive aspect as well as the procedural aspect of the right to life as far as it concerns the proceedings before the ECHR judgment. Therefore, the examination has been confined to the procedural aspect of the right to life regarding the obligation to conduct an effective investigation in terms of the proceedings after the ECHR judgment. - In spite of the deficiencies specified in the relevant judgment concerning the investigation process, the incumbent authorities failed to take the necessary actions such as taking statements of all witnesses and carrying out examinations on the equipment used during the incident as well as on the remains found at the scene. - Consequently, the Constitutional Court found a violation of the procedural aspect of the right to life. |
|
|
İ.D. and Others 2016/14513 28 December 2022 (Plenary)
|
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 for denial of the request for blocking access to the internet content. - The applicants claimed that the impugned content was in breach of their personal rights; therefore, the rejection of their request violated their right to protection of honour and dignity within the context of their right to an effective remedy. - In addition to the opportunities provided by the internet in the exercise of fundamental rights and freedoms, it may also create interference with fundamental rights and freedoms, as well as individuals’ private lives and moral integrity. - The Court has emphasized that although the State does not have a positive obligation to carry out adversarial proceedings in all cases due to the difficulties inherent in the internet environment, it must put into practice a judicial system and an effective judicial review mechanism enabling the individuals to make their defence, to adduce evidence substantiating their defence, to be heard by a court and to be subject to adversarial proceedings. - The statutory instruments in force failed to afford an effective protection mechanism against the violations of personal rights. - Consequently, the Constitutional Court found a violation of the right to an effective remedy in conjunction with the right to protection of honour and dignity. |
|
|
Senem Esen 2020/14769 19 January 2023 (First 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 for the failure to appoint a lawyer during the criminal proceedings. - The applicant was not explicitly reminded of his right to legal assistance during the proceedings. - Although the applicant defended himself at the hearings in the absence of a lawyer, he stated after the conviction that he could not financially afford a lawyer and claimed that he should have been provided with legal assistance. Therefore, it is obvious that the applicant did not waive his right to legal assistance. - Consequently, the Constitutional Court found a violation of the right to legal assistance within the scope of the right to a fair trial. |
|
|
Elkin Turizm Tarım Temizlik İnşaat Gıda Yemek Hayvancılık Otomotiv İthalat İhracat Ltd. Şti. 2020/6926 31 January 2023 (Second 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 due to the prolonged issuance of the reasoned decision in an action for annulment of objection arising from the commercial service contract. - One of the most important conditions to be fulfilled in order for the applicant to benefit from the consequences of the action it had brought was the issuance of the reasoned decision, which was incumbent on the trial court, regardless of the applicant’s request, conduct and responsibility. - In the present case, it took the authorities more than one year to issue the reasoned decision. Hence, the impugned delay in the issuance of the reasoned decision resulted in the prolongation of the proceedings. - Consequently, the Constitutional Court found a violation of the right to a trial within a reasonable time. |
|
| II. Constitutionality Review | |||
|
E.2022/59 28 September 2022 (Plenary)
|
Annulment of the first paragraph of the Provisional Article 34 added to the Tax Procedural Law no. 213 insofar as it relates to the phrases “…execution…” and “….prosecution…” |
- The contested provision enables those having committed tax evasion to be entitled to a remission of sentence conditional upon the payment of taxes and other debts accrued, and the bringing of no action before tax courts or a waiver from action if already brought, and no recourse to legal remedies or a waiver therefrom. - Those who have committed tax evasion are also subjected to criminal investigation and prosecution at the end of which they may be sentenced to imprisonment. - The contested provision enables those to avail themselves of effective remorse during the investigation and prosecution stages, as well as of a pardon during the execution stage. - It is argued that the contested provision goes beyond the scope and purpose of the effective remorse institution and leads to discrimination between those having brought an action and those having brought no action; and that in case where a person having waived of his right to bring an action against taxes and penalties is acquitted at the end of the proceedings, he shall no longer bring an action on the basis of his acquittal. - On account of the condition of bringing no action in terms of the taxes and other amounts that have been already paid for taking advantage of the effective remorse and pardon; in case of an acquittal granted -as it has been found established that the imputed act has not been committed by the accused-, it becomes evident that the tax offence has not been committed by the respective person, the taxes considered to have accrued did not indeed accrue; and that therefore, the respective person has paid the relevant taxes and amounts that should not have been paid by him. - This places an excessive burden on individuals. On the other hand, the public interest sought to be pursued is to reduce the workload of the judiciary: upset of the fair balance between the means employed and the aim sought to be achieved. - Besides, an acquittal granted by a criminal court, at the end of the proceedings concerning tax evasion, -as it has been found established that the imputed act has not been committed by the accused- must be taken into consideration by the public authorities. Otherwise, it will be in breach of the presumption of innocence set forth in Article 38 of the Constitution. - Consequently, the contested provision has been found unconstitutional and thus annulled. |
|
|
E.2018/85 26 October 2022 (Plenary) |
Annulment of the phrase “…and the spouses and children of the persons…”, whereas dismissal of the request for annulment of the phrase “…including the collection of data through telecommunication…”, which are included in the Law no. 7091 on the Adoption of the Decree-Law on Taking Certain Measures under State of Emergency |
-The contested provisions stipulate that any kind of information and documents, including data collected through telecommunication but save for those considered as secret information under Banking Law no. 5411, related to the spouse and children of the persons who are subjected to an inquiry and investigation within the framework of the Decree-Law no. 667, as well as the data collected through telecommunication, with respect to those subjected to an inquiry and investigation under Articles 3 and 4 of the same Decree-Law, shall be delivered to the competent board, commission and other relevant authorities. - It is argued that the provisions are unconstitutional as they entail the disclosure of information regarding not only those against whom an investigation is conducted but also their spouses and children; such information may contain several personal data; and it may lead to delivery of any kind of information regarding the data collected through telecommunication to the investigation authorities in the absence of an order issued by the judge. 1. The phrase “…and the spouses and children of the persons…” - The data collected through telecommunication are in the nature of personal data. The contested provision allows for the disclosure of not only such kind of data but also any kind of information and documents concerning the spouses and children of the respective persons. - It amounts to a restriction of the right to the protection of personal data and freedom of communication, which may be wholly or partially suspended and even derogated under state of emergency. However, the measures to be taken in this regard must be to the extent required by the exigencies of the situation. - The Court notes that there is no inquiry or investigation conducted with respect to the persons whose information shall be disclosed to the competent authorities. They are only the spouses or children of those who are subjected to an inquiry or investigation. This mere fact cannot justify the disclosure of their data, almost all of which are personal nature, to the authorities. - Therefore, the restriction imposed through the contested provision goes beyond the extent required by the exigencies of the situation. - Consequently, the contested provision has been found unconstitutional and thus annulled. 2. The phrase “…including the collection of data through telecommunication…” - It is possible to impose certain restrictions, which go beyond the exigencies of the ordinary period, on the freedom of communication and the right to protection of personal data for the purpose of punishing the members of terrorist organisations and lustrating those who are not a member of any terrorist organisation but have a relation therewith from public office. - Therefore, the collection of data through telecommunication with respect those who are subjected to an inquiry and investigation and the disclosure of such data to the competent authorities are among the measures that may be taken under the state of emergency. - Besides, the disclosure of such data to the competent authorities is not conditional upon the issuance of an order by a judge, which is not in breach of the special safeguard laid down in Article 22 of the Constitution. That is because, such data are limited to the telephone numbers (calling and called parties), duration of calls, HTS records and etc. and do not include interception and recording of communication. - Therefore, the impugned measure does not go beyond the extent required by the exigencies of the situation. - Consequently, the Court has found the contested provision constitutional and thus dismissed the request for its annulment. |
|
|
E.2020/72 13 December 2022 (Plenary) |
Dismissal of the request for annulment of the provision setting aside the power of the Chief of General Staff to conduct disciplinary proceedings |
- Article 7 § 3 of the Disciplinary Act of the Turkish Armed Forces no. 6413 was abolished. The contested provision thus set aside the power conferred upon the Chief of General Staff to conduct disciplinary proceedings against the staff of the Turkish Armed Forces, if he deems necessary. - It is argued that the removal of the power of the Chief of General Staff, who is a disciplinary superior, concerning disciplinary proceedings will prevent him from using the statutory power conferred upon him, which will tarnish the hierarchical structure of the Turkish Armed Force. - As there is no constitutional provision concerning the position, duties and powers of the Chief of General Staff within the disciplinary order of the Turkish Armed Forces, it is for the law-maker to ascertain such issues on condition of being in conformity with the constitutional provisions. - The Chief of General Staff was entitled to conduct disciplinary proceedings with respect to all staff of the Military Service Commands and their subordinate units. The contested provision set aside this power. However, he is still entitled to conduct disciplinary proceedings with respect to the staff operating under the General Staff. - The impugned severance results from the procedure envisaging that the General Staff and all Military Service Commands shall independently and directly operate under the Ministry of National Defence. Therefore, the Chief of General Staff is no longer the highest and common hierarchical superior of the Armed Forces. - The Court has accordingly observed that the contested provision does not prevent the Chief of General Staff from giving orders and instructions to the forces in his command and thus duly performing his mission as a commander. Nor does it tarnish the title of the Chief of General Staff, set forth in the Constitution, as the commander of the Armed Forces. - Consequently, the Court has found the contested provision constitutional and thus dismissed the request for its annulment. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Umut Deniz Yorulmaz 2019/19019 20 December 2022 (First Section) |
Violation of the right to education safeguarded by Article 42 of the Constitution |
- Alleged violation of the said right for imposition of a disciplinary punishment for the applicant’s words and behaviours towards the rector of the university where he was a student, which resulted in his suspension from school. - The applicant’s statements were related to the issues of public interest, and they cannot be said to be offensive or indecent. - However, the inferior court concluded that the impugned expressions were of a nature that damaged the honour and dignity of individuals, but it did not specify which words were of the said nature and for which reasons the applicant would not be able to be covered by the protection of freedom of expression. - Imposing disciplinary punishments on university students, the incumbent administration and courts are strictly required to indicate the possible and actual negative effects of the alleged action on the order of the educational institution. - In the present case, the incumbent authorities failed to demonstrate which pressing social need the disciplinary punishment served. Besides, the grounds relied on by the courts were neither relevant nor sufficient to justify the interference with the applicant’s right to education. - Consequently, the Constitutional Court found a violation of the right to education. |
|
| II. Constitutionality Review | |||
|
E.2018/78 13 October 2022 (Plenary)
|
Annulment of certain provisions of the Law no. 7083 on Adoption of the Decree Law on Taking of Certain Measures under State of Emergency for being unconstitutional, whereas dismissal of the request for annulment of the remaining provisions |
A. Provisions concerning the Institutions Closed due to Activities against National Security and the Transfer of Their Immovables to the Treasury - The contested provisions stipulate that the associations and media outlets found to have connections and relations with terrorist organizations or structures, formations or groups decided by the National Security Council (MGK) to carry out activities against the national security of the state, have been closed. It is also specified therein that the immovables in their possession shall be transferred to the Treasury; and that no claim shall be made to the Treasury to cover any debts of the closed institutions and organisations. - It is argued that the contested provisions are not necessary and proportionate for the purpose of eliminating the threat to public order, nor are they compatible with the requirements of the state of emergency; that the said measures may be characterised as individual administrative actions; that the sanctions stated therein have been imposed on institutions and organizations in the absence of an administrative or judicial investigation and of a final court decision; that the closure of media outlets are in breach of the freedom of expression, freedom of the press, the right of publication and the protection of press equipment; that the closure of associations violates the freedom of association; and that the transfer of the assets of associations and media outlets to the Treasury is in breach of the right to property and the prohibition of confiscation. 1. Provisions concerning the Closure of Certain Institutions - Any restriction on fundamental rights and freedoms should be to the extent required by the exigencies of the situation within the scope of Article 15 of the Constitution. In this sense, any arbitrary interference shall be prevented. - The Court has concluded that the impugned provisions do not impose any restriction on the freedom of association and freedom of expression and the press, exceeding the extent required by the exigencies of the situation for the purpose of protecting national security and the democratic constitutional order. - Consequently, the contested provisions have been found constitutional, and thus the request for their annulment has been dismissed. 2. Provisions concerning the Transfer of the Immovables of the Closed Institutions to the Treasury - The Court has concluded that the contested provisions do not impose an excessive restriction on the right to property for the purpose of protecting national security and democratic constitutional order, considering the conditions leading to the state of emergency. - Consequently, the contested provisions have been found constitutional, and thus the request for their annulment has been dismissed. 3. Provisions Envisaging that No Claim shall be Made to the Treasury to Cover Debts of the Closed Institutions and Organisations - The Court has concluded that the regulation, which precludes the right to claim the rights and receivables acquired in accordance with the legislation in force at the material time, imposes a disproportionate restriction on the right to property. - Consequently, the contested provisions have been found unconstitutional, and thus annulled. B. Provision Hindering the Right to Claim Compensation by the Closed Institutions - The contested provision stipulates that the institutions and organizations closed in accordance with the decree laws issued during the state of emergency cannot claim compensation for the said closure under any circumstances. - It is argued that the contested provision is unconstitutional since it precludes the right to legal remedies, which is in breach of the principle of the rule of law, and that it also violates the right to a fair trial. - According to the Court, the contested provision precludes the right of access to a court as well as the right to an effective remedy. - Consequently, the contested provision has been found unconstitutional, and thus annulled. |
|
|
E.2018/76 26 October 2022 (Plenary) |
Annulment of certain provisions of the Law no. 7081 on Adoption of the Decree Law on Taking of Certain Measures under State of Emergency for being unconstitutional, whereas dismissal of the request for annulment of the remaining provisions |
A. Provisions concerning Those Studying Abroad - The contested provision stipulates that out of the students subject to Law no. 1416, those who have been found to be a member of, have connection or relation with, the FETÖ/PDY and are enumerated in List no. 2 annexed to the Law shall be deemed to lose their status as students. This measure shall also cover the discontinuation of the scholarship awarded to those studying abroad. It shall prevent the recognition of equivalence of their study within the country and the utilisation of the rights inherent in the academic titles and degrees they have acquired within the scope of their study abroad. - It is argued that these provisions are neither compulsory for nor proportionate to the aim of eliminating the threat against public order; that they are in the nature of an individual administrative act and cause to impose sanction on the relevant persons without any administrative or judicial investigation being performed and in the absence of a court decision. 1. Provision Envisaging the Discontinuation of Student Status - The Court has concluded that the discontinuation of the student status of those enumerated in the List no. 2 as well as of the scholarship granted to them -through an extraordinary method with a view to combating the FETÖ/PDY, a clear and immediate threat to the democratic order of the State,- does not constitute a restriction going beyond the extent strictly required by the exigencies of the situation, notably in consideration of the conditions leading to the declaration of the state of emergency and the administrative and judicial remedies made available for the individualisation of the impugned sanctions. - Therefore, the Constitutional Court has found constitutional and thus dismissed the request for annulment of the contested provision. 2. Provisions Preventing the Equivalency Process and Use of the Academic Titles - The recognition of the study of those who are studying abroad by the state bodies is necessary for these students to take advantage of their study within the country. - The Court has therefore assessed that the non-recognition of the equivalency and the use of academic titles and degrees they have acquired while studying abroad constitutes a restriction on their right to education and right to respect for private life, which goes beyond the extent strictly required by the exigencies of the situation. - Therefore, the Court has annulled the contested provisions for being unconstitutional. B. Provision Prohibiting the Re-Employment or Re-Appointment of the Relevant Employees in the Public Sector - The contested provision envisages the employees whose employment contracts have been terminated for having shown disloyalty to the State shall, in no way, be re-employed or directly or indirectly re-appointed in the public sector. - It is argued that the contested provision is of a permanent nature and will not be applied only during the state of emergency; and that such a comprehensive prohibition will infringe the freedom of labour and enterprise as well as the right to hold a public office. - The Court has observed that the contested provision covers not only the enterprises and associations where the State or public legal entities have a direct or indirect involvement, but also incorporated companies which are subject to private law and in which the public only has a share. Therefore, it does not make any distinction between the companies operating in strategically important sectors and the other ones and introduces a blanket prohibition with respect to all legal entities with a public share. - The Court has therefore concluded that it does not meet the requirement of necessity in so far it relates to the maintenance of national security and public order as well as the continued performance of the public service. - Therefore, the Court has annulled the contested provisions for being unconstitutional. C. Provision Envisaging the Annulment of the Authorisation Certificate of Persons Operating in the Area of Occupational Health and Safety - The contested provision envisages the annulment of the authorisation certificates of all relevant persons, institutions or organisations operating in the area of occupational health and safety. -It is argued that the contested provision is a statutory arrangement going beyond the extent strictly required by the state of emergency and constitutes a disproportionate restriction on the right to labour and freedom of contract. - The Court has observed that the contested provision does not make any distinction with respect to the works and workplaces that have strategic importance for the maintenance of national security and public order but covers all persons, institutions and organisations. - The Court has therefore concluded that it does not therefore meet the requirement of necessity in so far it relates to the maintenance of national security and public order and also constitutes a disproportionate restriction on the right to labour and freedom of contract. - Therefore, the Court has annulled the contested provision for being unconstitutional. |
|
|
E.2022/125 13 December 2022 (Plenary) |
Annulment of the provision added to Article 10 § 2 of Law no. 5766 and preventing the disclaimer and return of stamp duty imposed for the period when the relevant contract is no longer enforceable |
- The contested provision stipulates that even in cases where the public procurement contract becomes unenforceable due to -upon the signing of the contract- the cancellation of the tender or any change in the bidder undertaking the contract, the stamp duty incurred in relation to the contract shall not be disclaimed or returned. - It is argued that the contested provision imposes a disproportionate restriction on the right to property and is not precise and foreseeable. - The Court has observed that the said provision stipulates, in a clear and precise manner, in which circumstances and what kind of taxes cannot be disclaimed or returned. Therefore, it is precise, accessible and foreseeable. - The contested provision imposes financial obligations on the persons for the funding of public services. It thus purses a legitimate aim in the public interest. - However, as set forth in Article 19 of the Tax Procedural Law no. 213, any tax may accrue only when the relevant act or procedure, which is subject to taxation, is completed. - The contested provision allows for the accrual of stamp duty even the relevant contract is no longer enforceable. It also leads to the re-imposition of stamp duty with respect to the same work when a new contract is signed for the continued performance of the relevant work. - Therefore, the Court has concluded that the provision preventing any disclaimer or return of stamp duty imposes an excessive burden on the persons and disproportionate. - Therefore, the Court annulled the contested provision for being unconstitutional. |
|
|
E.2022/98 13 December 2022 (Plenary) |
Dismissal of the request for annulment of the Presidential Decree no. 104 |
- It is argued that in a state of law, it is one of the general principles of law that any official act, such as Presidential decrees, shall be reasoned. Otherwise, Presidential decrees issued without justification shall be in breach of the principles of legal certainty and security. In this sense, the contested Presidential decree is claimed to be in breach of Article 2 of the Constitution in form. - Reviewing the constitutionality of Presidential decrees in form, it should be examined whether the Presidential decree has been issued by the President. From this standpoint, it has been observed that the contested Presidential decree was issued by the President. - The Court’s authority to review the constitutionality of Presidential decrees in form does not cover the review of its being reasoned or not. - Consequently, the Court has found the impugned Presidential decree constitutional, and thus dismissed the request for its annulment. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Umut Deniz Yorulmaz 2019/19019 20 December 2022 (First Section) |
Violation of the right to education safeguarded by Article 42 of the Constitution |
- Alleged violation of the said right for imposition of a disciplinary punishment for the applicant’s words and behaviours towards the rector of the university where he was a student, which resulted in his suspension from school. - The applicant’s statements were related to the issues of public interest, and they cannot be said to be offensive or indecent. - However, the inferior court concluded that the impugned expressions were of a nature that damaged the honour and dignity of individuals, but it did not specify which words were of the said nature and for which reasons the applicant would not be able to be covered by the protection of freedom of expression. - Imposing disciplinary punishments on university students, the incumbent administration and courts are strictly required to indicate the possible and actual negative effects of the alleged action on the order of the educational institution. - In the present case, the incumbent authorities failed to demonstrate which pressing social need the disciplinary punishment served. Besides, the grounds relied on by the courts were neither relevant nor sufficient to justify the interference with the applicant’s right to education. - Consequently, the Constitutional Court found a violation of the right to education. |
|
| II. Constitutionality Review | |||
|
E.2018/78 13 October 2022 (Plenary)
|
Annulment of certain provisions of the Law no. 7083 on Adoption of the Decree Law on Taking of Certain Measures under State of Emergency for being unconstitutional, whereas dismissal of the request for annulment of the remaining provisions |
A. Provisions concerning the Institutions Closed due to Activities against National Security and the Transfer of Their Immovables to the Treasury - The contested provisions stipulate that the associations and media outlets found to have connections and relations with terrorist organizations or structures, formations or groups decided by the National Security Council (MGK) to carry out activities against the national security of the state, have been closed. It is also specified therein that the immovables in their possession shall be transferred to the Treasury; and that no claim shall be made to the Treasury to cover any debts of the closed institutions and organisations. - It is argued that the contested provisions are not necessary and proportionate for the purpose of eliminating the threat to public order, nor are they compatible with the requirements of the state of emergency; that the said measures may be characterised as individual administrative actions; that the sanctions stated therein have been imposed on institutions and organizations in the absence of an administrative or judicial investigation and of a final court decision; that the closure of media outlets are in breach of the freedom of expression, freedom of the press, the right of publication and the protection of press equipment; that the closure of associations violates the freedom of association; and that the transfer of the assets of associations and media outlets to the Treasury is in breach of the right to property and the prohibition of confiscation. 1. Provisions concerning the Closure of Certain Institutions - Any restriction on fundamental rights and freedoms should be to the extent required by the exigencies of the situation within the scope of Article 15 of the Constitution. In this sense, any arbitrary interference shall be prevented. - The Court has concluded that the impugned provisions do not impose any restriction on the freedom of association and freedom of expression and the press, exceeding the extent required by the exigencies of the situation for the purpose of protecting national security and the democratic constitutional order. - Consequently, the contested provisions have been found constitutional, and thus the request for their annulment has been dismissed. 2. Provisions concerning the Transfer of the Immovables of the Closed Institutions to the Treasury - The Court has concluded that the contested provisions do not impose an excessive restriction on the right to property for the purpose of protecting national security and democratic constitutional order, considering the conditions leading to the state of emergency. - Consequently, the contested provisions have been found constitutional, and thus the request for their annulment has been dismissed. 3. Provisions Envisaging that No Claim shall be Made to the Treasury to Cover Debts of the Closed Institutions and Organisations - The Court has concluded that the regulation, which precludes the right to claim the rights and receivables acquired in accordance with the legislation in force at the material time, imposes a disproportionate restriction on the right to property. - Consequently, the contested provisions have been found unconstitutional, and thus annulled. B. Provision Hindering the Right to Claim Compensation by the Closed Institutions - The contested provision stipulates that the institutions and organizations closed in accordance with the decree laws issued during the state of emergency cannot claim compensation for the said closure under any circumstances. - It is argued that the contested provision is unconstitutional since it precludes the right to legal remedies, which is in breach of the principle of the rule of law, and that it also violates the right to a fair trial. - According to the Court, the contested provision precludes the right of access to a court as well as the right to an effective remedy. - Consequently, the contested provision has been found unconstitutional, and thus annulled. |
|
|
E.2018/76 26 October 2022 (Plenary) |
Annulment of certain provisions of the Law no. 7081 on Adoption of the Decree Law on Taking of Certain Measures under State of Emergency for being unconstitutional, whereas dismissal of the request for annulment of the remaining provisions |
A. Provisions concerning Those Studying Abroad - The contested provision stipulates that out of the students subject to Law no. 1416, those who have been found to be a member of, have connection or relation with, the FETÖ/PDY and are enumerated in List no. 2 annexed to the Law shall be deemed to lose their status as students. This measure shall also cover the discontinuation of the scholarship awarded to those studying abroad. It shall prevent the recognition of equivalence of their study within the country and the utilisation of the rights inherent in the academic titles and degrees they have acquired within the scope of their study abroad. - It is argued that these provisions are neither compulsory for nor proportionate to the aim of eliminating the threat against public order; that they are in the nature of an individual administrative act and cause to impose sanction on the relevant persons without any administrative or judicial investigation being performed and in the absence of a court decision. 1. Provision Envisaging the Discontinuation of Student Status - The Court has concluded that the discontinuation of the student status of those enumerated in the List no. 2 as well as of the scholarship granted to them -through an extraordinary method with a view to combating the FETÖ/PDY, a clear and immediate threat to the democratic order of the State,- does not constitute a restriction going beyond the extent strictly required by the exigencies of the situation, notably in consideration of the conditions leading to the declaration of the state of emergency and the administrative and judicial remedies made available for the individualisation of the impugned sanctions. - Therefore, the Constitutional Court has found constitutional and thus dismissed the request for annulment of the contested provision. 2. Provisions Preventing the Equivalency Process and Use of the Academic Titles - The recognition of the study of those who are studying abroad by the state bodies is necessary for these students to take advantage of their study within the country. - The Court has therefore assessed that the non-recognition of the equivalency and the use of academic titles and degrees they have acquired while studying abroad constitutes a restriction on their right to education and right to respect for private life, which goes beyond the extent strictly required by the exigencies of the situation. - Therefore, the Court has annulled the contested provisions for being unconstitutional. B. Provision Prohibiting the Re-Employment or Re-Appointment of the Relevant Employees in the Public Sector - The contested provision envisages the employees whose employment contracts have been terminated for having shown disloyalty to the State shall, in no way, be re-employed or directly or indirectly re-appointed in the public sector. - It is argued that the contested provision is of a permanent nature and will not be applied only during the state of emergency; and that such a comprehensive prohibition will infringe the freedom of labour and enterprise as well as the right to hold a public office. - The Court has observed that the contested provision covers not only the enterprises and associations where the State or public legal entities have a direct or indirect involvement, but also incorporated companies which are subject to private law and in which the public only has a share. Therefore, it does not make any distinction between the companies operating in strategically important sectors and the other ones and introduces a blanket prohibition with respect to all legal entities with a public share. - The Court has therefore concluded that it does not meet the requirement of necessity in so far it relates to the maintenance of national security and public order as well as the continued performance of the public service. - Therefore, the Court has annulled the contested provisions for being unconstitutional. C. Provision Envisaging the Annulment of the Authorisation Certificate of Persons Operating in the Area of Occupational Health and Safety - The contested provision envisages the annulment of the authorisation certificates of all relevant persons, institutions or organisations operating in the area of occupational health and safety. -It is argued that the contested provision is a statutory arrangement going beyond the extent strictly required by the state of emergency and constitutes a disproportionate restriction on the right to labour and freedom of contract. - The Court has observed that the contested provision does not make any distinction with respect to the works and workplaces that have strategic importance for the maintenance of national security and public order but covers all persons, institutions and organisations. - The Court has therefore concluded that it does not therefore meet the requirement of necessity in so far it relates to the maintenance of national security and public order and also constitutes a disproportionate restriction on the right to labour and freedom of contract. - Therefore, the Court has annulled the contested provision for being unconstitutional. |
|
|
E.2022/125 13 December 2022 (Plenary) |
Annulment of the provision added to Article 10 § 2 of Law no. 5766 and preventing the disclaimer and return of stamp duty imposed for the period when the relevant contract is no longer enforceable |
- The contested provision stipulates that even in cases where the public procurement contract becomes unenforceable due to -upon the signing of the contract- the cancellation of the tender or any change in the bidder undertaking the contract, the stamp duty incurred in relation to the contract shall not be disclaimed or returned. - It is argued that the contested provision imposes a disproportionate restriction on the right to property and is not precise and foreseeable. - The Court has observed that the said provision stipulates, in a clear and precise manner, in which circumstances and what kind of taxes cannot be disclaimed or returned. Therefore, it is precise, accessible and foreseeable. - The contested provision imposes financial obligations on the persons for the funding of public services. It thus purses a legitimate aim in the public interest. - However, as set forth in Article 19 of the Tax Procedural Law no. 213, any tax may accrue only when the relevant act or procedure, which is subject to taxation, is completed. - The contested provision allows for the accrual of stamp duty even the relevant contract is no longer enforceable. It also leads to the re-imposition of stamp duty with respect to the same work when a new contract is signed for the continued performance of the relevant work. - Therefore, the Court has concluded that the provision preventing any disclaimer or return of stamp duty imposes an excessive burden on the persons and disproportionate. - Therefore, the Court annulled the contested provision for being unconstitutional. |
|
|
E.2022/98 13 December 2022 (Plenary) |
Dismissal of the request for annulment of the Presidential Decree no. 104 |
- It is argued that in a state of law, it is one of the general principles of law that any official act, such as Presidential decrees, shall be reasoned. Otherwise, Presidential decrees issued without justification shall be in breach of the principles of legal certainty and security. In this sense, the contested Presidential decree is claimed to be in breach of Article 2 of the Constitution in form. - Reviewing the constitutionality of Presidential decrees in form, it should be examined whether the Presidential decree has been issued by the President. From this standpoint, it has been observed that the contested Presidential decree was issued by the President. - The Court’s authority to review the constitutionality of Presidential decrees in form does not cover the review of its being reasoned or not. - Consequently, the Court has found the impugned Presidential decree constitutional, and thus dismissed the request for its annulment. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
E.Y. 2018/10482 14 December 2022 (Plenary) |
Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution |
- Alleged violation of the said right for the unlawfulness of the conditional bail measure. - The applicant had been detained on remand for allegedly attending an illegal demonstration. At the end of the proceedings, he was released under an undertaking not to leave his place of residence. - Pursuant to Article 19 of the Constitution, detention on remand can be ordered on the condition that there is a risk of fleeing or tampering with evidence. Likewise, the measure obligating the suspect not to leave his residence, which is an alternative measure to detention, can be imposed only on the said conditions. - In the present case, it was stated by the first instance court that there was no suspicion of fleeing. Nor was there a risk of tampering with evidence. - Therefore, it was concluded that the conditional bail measure imposed had not pursued a legitimate aim. - Consequently, the Constitutional Court found a violation of the right to personal liberty and security. |
|
| II. Constitutionality Review | |||
|
E.2021/82 29 December 2022 (Plenary)
|
Annulment of the provisions regulating the principles regarding the calculation of the amount of compensations for loss of value, deprivation of support and permanent disability. |
- The contested provisions regulate the principles regarding the calculation of the amount of compensations for deprivation of support, for permanent disability and for loss of value of the motor vehicle to be covered by the compulsory financial liability insurance. - It is claimed that the principles regarding the determination of relevant compensations are far from covering the actual damages sustained by third parties within the scope of their rights to life and property, and that a balance should be struck between the interests of the person operating the motor vehicle arising from operating it and the interests of third parties in the compensation of their damages sustained due to the operation of the motor vehicle. - In cases where parties suffer loss of value, deprivation of support and/or permanent disability due to the operation of a motor vehicle, the scope of the financial liability of the operator and other persons likely to be responsible for the accident shall be determined in accordance with the Turkish Code of Obligations no. 6098 (Law no. 6098). Th7 actual amount of the damage suffered shall be calculated through court decisions on the basis of the aforementioned Law. - On the other hand, the compensations to be paid within the scope of the compulsory financial liability insurance shall be determined in accordance with the contested provisions. - Thus, the scope of the financial liability of the operator and others likely to be responsible, which is calculated under Law no. 6098, and that of the insurance company calculated according to the contested provisions may differ. Hence, there will be a risk that the actual amount of the damage may not be compensated. - Consequently, the contested provisions have been found unconstitutional, and therefore annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Demet Demirel and Others 2019/12998 1 December 2022 (Plenary) |
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 financial losses incurred due to the unlawful delay in the applicants’ appointment as labour inspectors despite their having passed the inspector qualification exams. - The incumbent administrative courts already found it established that the unlawful delay in the applicants’ appointment had been in breach of the latter’s right to property. However, such a finding failed to fully redress the applicants’ losses. - In order for the applicants not to have victim status any longer, their financial losses should have been redressed. - Consequently, the Constitutional Court found a violation of the right to property. |
|
|
Esra Saraç Arslan 2019/10514 Özlem Yıldırım 2022/73725 28 December 2022 (Plenary)
|
Violations of the principles of equality of arms and adversarial proceedings safeguarded by Article 36 of the Constitution Inadmissibility as manifestly ill-founded |
- Alleged violation of the right to a fair trial for imprisonment based on ByLock evidence. As regards the applicant Esra Saraç Arslan - The sole evidence relied on for the applicant’s conviction of membership of a terrorist organisation, namely FETÖ/PDY, was her allegedly being a ByLock application user. - Although the applicant had claimed that she had not used the said application and requested that the relevant technical data be examined by an expert, her request was dismissed by the judicial authorities. - Consequently, the Constitutional Court found violations of the principles of equality of arms as well as adversarial proceedings. As regards the applicant Özlem Yıldırım - The trial court relied, inter alia, on the applicant’s having used the ByLock application for internal communication within the terrorist organisation, as the decisive evidence. - Considering the contents of the messages and e-mails exchanged through the ByLock application that was exclusively used by the members of the FETÖ/PDY for the purposes of internal communication to ensure privacy, the judicial authorities’ decision was not arbitrary. - Consequently, the Constitutional Court found the application inadmissible as manifestly ill-founded. |
|
|
Hatice Deniz Aktaş and Eğitim ve Bilim Emekçileri Sendikası 2019/18481 23 November 2022 (Second Section) |
No violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said right due to imposition of disciplinary punishment for the posts shared on social media. - The posts shared by the applicant, a public teacher, called for resistance against security forces during the anti-terrorism security operations, which incited violence. Therefore, she was dismissed from public office. - A teacher is not only a public official working in schools, but she/he is also expected to be a good model with her/his actions and discourses within the society, so she/he must pay more attention to her/his behaviours and expressions. - Accordingly, given the applicant’s status as a teacher, the potential impact of her statements, and their nature inciting and legitimising violence, it was concluded that the disciplinary punishment imposed on her met a pressing social need and was proportionate. - Consequently, the Constitutional Court found no violation of the freedom of expression. |
|
| II. Constitutionality Review | |||
|
E.2022/87 13 October 2022 (Plenary)
|
Annulment of certain provisions of the Higher Education Law, regarding disciplinary proceedings. |
- The contested provisions regulate the principles regarding the right of defence during disciplinary proceedings. - It is claimed that the impugned provisions unconstitutionally restricted the right of defence. - It is laid down in Article 129 § 2 of the Constitution that public servants, other public officials and members of public professional organisations or their higher bodies shall not be subjected to disciplinary punishments without being granted the right of defence. - The contested provisions fail to ensure the provision of sufficient information on the charges underlying the disciplinary proceedings, and they also leave it to the discretion of the incumbent authorities whether the proceedings may be renewed. - In consideration of Article 129 § 2 of the Constitution whereby no discretion is granted in terms of ensuring the exercise of right of defence, the contested provisions do not ensure the exercise of the relevant right before the conclusion of the disciplinary proceedings. - Consequently, the contested provision has been found unconstitutional, and therefore annulled. |
|
|
E.2022/75 26 October 2022 (Plenary) |
Dismissal of the request for annulment of the provision stipulating that the provisions regarding witnesses shall apply when the victim is heard as a witness |
- The contested provision entails the application of witness-related provisions in cases where the victim is heard as a witness. Accordingly, where the witness is a relative of the accused, he may refrain from testifying. - It is claimed that the impugned provision may impede the discovery of the material fact, which is unconstitutional. - It is set forth in Article 38 of the Constitution that no one shall be compelled to make a statement that would incriminate himself or his legal next of kin, or to present such incriminating evidence. - Thus, pursuant to Article 38, the kinship of the witness overrides the public interest even if the material fact is at stake. Besides, refraining from testifying is not necessitated by law and may be waived. - Consequently, the impugned provision has been found constitutional, and therefore, the request for its annulment has been dismissed. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Osman Baydemir 2 2018/1878 27 October 2022 (Plenary) |
Inadmissibility of the alleged violation of the freedom of expression for lack of jurisdiction ratione materiae |
- Alleged violation of the said freedom due to the disciplinary punishment imposed on account of the expressions uttered by the applicant, an MP. - The impugned disciplinary punishment was imposed by the Plenary of the Grand National Assembly of Türkiye (the Parliament) by a majority vote. Thus, it was a parliamentary decision. - Parliamentary decisions are legislative acts of the Parliament other than laws. Judicial review of the said legislative acts are regulated separately in the Constitution, and the Constitutional Court is exclusively vested with the authority to perform such review. In other words, the constitution-maker has determined which legislative acts may be subject to judicial review, and has also authorized the body to perform the review. - It is set forth in Article 45 § 3 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court that the acts, which have been excluded from judicial review by the Constitution, cannot be subject to individual application. - The contested disciplinary punishment was not one of the parliamentary decisions that could be constitutionally subject to judicial review; therefore, it has been concluded that the present application concerns an action excluded from judicial review. - Consequently, the Constitutional Court found inadmissible the alleged violation of the freedom of expression for lack of jurisdiction ratione materiae. |
|
|
Hulusi Yılmaz 2017/17428 1 December 2022 (Plenary)
|
Violation of the right to an effective remedy safeguarded by Article 40 of the Convention in conjunction with the right to property safeguarded by Article 35 thereof |
- Alleged violation of the said right due to the authorities’ failure to compensate for the damage caused to the applicant’s building and its annexes as a result of mining activities. - The relevant statutory provision has been found to have precluded the examination of the merits of the alleged violation of the right to property as well as an award of redress, which has resulted in the violation of the right to an effective remedy in conjunction with the right to property. - In order for all consequences of the violation to be fully redressed, the statutory provision leading to the violation should be annulled, or it should be amended in a way preventing new violations, or the ambiguity therein should be removed. - In the present case, the situation existing before the breach should be restored, to the fullest extent possible, with a view to making reparation for the violation’s consequences. - In consideration of the particular circumstances of the case, application to the Court seeking the annulment of the unconstitutional provision might be an effective remedy. - Consequently, the Court has concluded that there is a legal interest in retrial, considering that it may redress the violation of the right to an effective remedy in conjunction with the right to property, as well as its consequences. |
|
|
Ali Ocak and Saime Sebla Arcan Tatlav 2019/18583 19 October 2022 (Second Section) |
Violation of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right due to the ineffectiveness of the investigation conducted into the incident where several persons were injured as a result of the use of force by the law enforcement officers. As regards the applicant Ali Ocak - Although the applicant claimed that he had been injured by the disproportionate use of force by the law enforcement officers, he had not received a medical report on the date of incident, and he applied to the prosecutor’s office 16 days later. - The applicant failed to adduce plausible evidence to substantiate his allegations, thus they were not arguable. - Consequently, the Court found inadmissible the alleged violation of the prohibition of ill-treatment. As regards the applicant Saime Sebla Arcan Tatlav - The applicant had been injured severely and it could not be treated with a simple medical intervention. In such cases where the use of force was not strictly necessary and proportionate, the treatment inflicted upon the individual would amount to torture. - There had also been certain deficiencies during the investigation process. - The footages submitted by the applicant were not examined by the prosecutor’s office. - Stating that there was no evidence or indication requiring the initiation of criminal proceedings, the authorities issued a decision of non-prosecution. - Consequently, the Court found violations of both substantive and procedural aspects of the prohibition of ill-treatment. |
|
|
Dilan Dursun 2015/18831 2 November 2022 (Second Section) |
Violations of the right to life (both substantive and procedural aspects) and the right to hold meetings and demonstration marches, respectively safeguarded by Articles 17 and 34 of the Constitution |
- Alleged violations of the said rights for the injury caused by the tear gas canister fired by the law enforcement officers. - The use of force by the law enforcement officers was not absolutely necessary in the particular circumstances of the case. Moreover, the severity of the injury sustained by the applicant clearly indicated that the public force used had been disproportionate. Therefore, the substantive aspect of the right to life was violated. - The incumbent authorities’ failure to conclude the proceedings despite 9 years having elapsed and their failure to identify the perpetrator did not comply with their obligation to conduct an effective investigation. Therefore, the procedural aspect of the right to life was also violated. - The applicant’s being subject to disproportionate use of force had a chilling effect on the exercise of the right to hold meetings and demonstration marches. - Consequently, the Court found violations of the right to life and the right to hold meetings and demonstration marches. |
|
|
R.E. 2018/36513 23 November 2022 (Second Section)
|
Violation of the right to protect and improve one’s corporeal and spiritual existence safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right for the expressions used in the performance assessment report issued in respect of the applicant, which allegedly tarnished the applicant’s honour and dignity. - Despite the applicant’s allegations to that end, the incumbent courts failed to examine the impugned expressions and they also failed to provide reasons addressing these allegations in their decisions, which was in breach of the judicial authorities’ positive obligations. - Consequently, the Court found a violation of the right to protect and improve one’s corporeal and spiritual existence. |
|
| II. Constitutionality Review | |||
|
E.2022/103 30 November 2022 (Plenary)
|
Annulment of the provision stipulating that a certain part of the revenues from sports competitions shall be allocated to the provincial directorates of sports |
- The contested provision stipulates that the practices, procedures and principles regarding the allocation of the revenues from sports competitions to the provincial directorates of sports and the competing clubs shall be determined by a regulation. - It is claimed that the impugned revenues fall into the scope of the right to property since they concern a financial obligation; therefore, the relevant procedures and principles should be determined by law. However, according to the contested provision, such issues shall be set forth by a regulation, which is unconstitutional. - The statutory framework regarding the calculation of the share to be taken from the competition revenues has not been established. Besides, the lower and upper limits of the share to be allocated to the administration have not been determined. Thus, all details have been envisaged to be set forth by a regulation, which is neither clear nor foreseeable. Accordingly, the principle of legality has not been respected. - Consequently, the contested provision has been found unconstitutional, and therefore annulled. |
|