Individual Application 84/19

Press Release concerning the Judgment Finding a Violation of the Right to Protect the Applicant’s Corporeal and Spiritual Existence due to Dismissal of Her Request for Change of Workplace

On 17 July 2019, the Second Section of the Constitutional Court found a violation of the right to protect individual’s corporeal and spiritual existence safeguarded by Article 17 of the Constitution in the individual application lodged by K.Ş. (no. 2016/14613). 

The Facts

The applicant, a form teacher serving at the same public institution with her ex-husband, was battered and stabbed by the latter. Accordingly, several sets of criminal proceedings were brought against the ex-husband.

The incumbent family court granted a protection order sought by the applicant and indicated an interim measure, pursuant to the Law no. 6284 on the Protection of Family and Prevention of Violence against Women. The interim measures indicated in favour of the applicant were prolonged by the orders issued by the family courts on various dates.

The applicant also filed a request with the relevant Provincial Directorate of National Education for change of her workplace due to her life-safety concerns. The Ministry dismissed her request as no decision ordering an interim measure for the change of her workplace had been submitted before it.    

She then filed an application with the family court, seeking an order for the change of her workplace. However, the family court, noting that the request was of an administrative nature, rejected it. The applicant’s challenge against the family court’s decision was also dismissed.  

The Applicant’s Allegations

The applicant maintained that the right to protect her corporeal and spiritual existence had been violated due to the dismissal of the request for the change of her workplace although her life was endangered.

The Court’s Assessment

The right to protect an individual’s corporeal and spiritual existence, which is enshrined in the Constitution, imposes both positive and negative obligations on the State. These positive obligations necessitate taking measures for ensuring respect for rights.

In the present case, the Court made an examination as to the positive obligations incumbent on the public authorities within the scope of the right to protect the applicant’s corporeal and spiritual existence as her request for change of workplace –one of the protection measures laid down in Law no. 6284– had been dismissed.

With a view to adopting an effective and swift procedure for the protection of family and prevention of violence against women as well as to taking any person exposed to violence or facing such a risk under protection without any delay, the legislator has introduced and enacted the provisions of Law no. 6284.

As set out in the Law, the judge may order a change of the victim’s workplace as a preventive order, and such an interim measure indicated by the judge shall be applied by the competent authority or person by virtue of the relevant legislation provisions to which the victim is subject. 

It is clear that immediately after the applicant’s filing a complaint that she had been exposed to violence by her husband with whom she was on the verge of divorce, the incumbent family court ordered a protection measure; that these measures were prolonged by the orders issued on various dates; and that they were also in effect when the applicant requested change of her workplace as a preventive measure. This is because, it appears that by virtue of the decision –whereby the family court dismissed the applicant’s impugned request–, prolongation of the interim measure previously indicated in her favour was ordered.  

Moreover, the applicant demonstrated concrete indications of the existence of a real risk to her life safety.

On the other hand, the inferior court failed to provide any concrete explanation, assessment and ground as to the alleged serious risks to the applicant’s life safety, despite the ex-husband’s attitude towards her. It has been accordingly concluded that the grounds relied on by the court were neither sufficient nor relevant within the context of the right to protect the applicant’s corporeal and spiritual existence. 

It has been observed that the Ministry and the family court failed to act in accordance with their positive obligations to take protective measures for the applicant who was a victim of violence, despite the fact that she had brought her life-safety concerns based on concrete grounds primarily before her institution and subsequently before the incumbent judicial authorities. It cannot be therefore said that the positive obligations incumbent on the State under the right to protect the individual’s corporeal and spiritual existence had been duly fulfilled.

Consequently, the Court has found a violation of the applicant’s right to protect her corporeal and spiritual existence safeguarded by Article 17 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.