Individual Application 28/19
Press Release concerning the Judgment Finding a Violation of the Right to Respect for Family Life due to the Procrastination in the Proceedings
On 27 March 2019, the Plenary of the Constitutional Court found a violation of the right to respect for family life safeguarded by Article 20 of the Constitution in the individual application lodged by Murat Demir (no. 2015/7216).
The applicant and his wife started to live with two children in their capacity as a foster family in 2008 and 2009. The Provincial Directorate of Family and Social Policies (“the Directorate”) decided to remove the applicant’s foster family status upon the criminal investigation conducted into the obscenity and sexual assault allegedly committed by him. On 16 February 2013 the children were separated from the family and placed in a children’s home. Meanwhile, the incumbent criminal court acquitted the applicant by its decision of 27 June 2013.
On 15 April 2013 the applicant brought an administrative action for the nullity of the Directorate’s order removing his foster family status, indicating that he had been acquitted. The administrative court annulled the impugned act. However, on the defendant Directorate’s appeal, the Council of State quashed the decision taken by the administrative court. However, the latter court refused to comply with the quashing decision and reinstated its original decision. It accordingly ordered annulment of the impugned act.
By the decision of 5 November 2015, which was rendered the Plenary Civil Chambers of the Supreme Administrative Court, the administrative court’s decision was quashed as the action should have been dismissed for lack of jurisdiction. Thereafter, on 10 September 2015, the applicant filed an action before the relevant family court for restitution of his foster family status. However, a decision of lack of jurisdiction was rendered. On appeal, by its decision of 18 December 2018, the Court of Cassation upheld the decision of lack of jurisdiction taken by the family court, and the decision then became final.
The Applicant’s Allegations
The applicant maintained that his right to respect for family life had been violated due to the procrastination in the proceedings initiated for the nullity of the decision removing his foster family status.
The Court’s Assessment
In order for the right to respect for family life to be at stake, there must primarily exist close personal ties that may be considered to fall under the concept of family life. Such ties may be established either by blood or through legal means or, in exceptional circumstances, through factual means.
In this regard, family ties may be considered to be established also between the children and those who assume care and custody, and meet every needs, of these children despite having no blood or adoptive relationship, as in the foster care system.
In the present case, the children placed under protection had spent a significant part of their childhood in the applicant’s family. According to the interviews between the children and social care expert as well as their statements taken by the law enforcement officers, the children during this period saw the foster family as their parents and named the applicant as their father, which clearly indicate that they are attached to him. Therefore, a tie has been established between the children and the applicant as well as his wife.
To severe a child’s ties with his family that he has gained and got accustomed to through foster care system may fall foul of the child’s best interest. In such cases, if the judicial authorities fail to act promptly, the risk of irreparable damages to the child may probably arise. Therefore, any procrastination in the proceedings initiated for the resolution of a legal dispute of particular concern to the child’s future may be in breach of the State’s positive obligation.
The Court assessed the public authorities’ conducts within the impugned process from the standpoint of the procedural safeguards inherent in the right to respect for family life and examined whether the State fulfilled its positive obligations.
It appears that by the final decision rendered in the present case, the case-file was sent to the Court of Jurisdictional Disputes for the resolution of the jurisdictional dispute. As no decision on the dispute as to the lawfulness of the Directorate’s order has been rendered yet by the courts, any examination on the merits of the applicant’s allegations could not be conducted.
Therefore, it must be accepted that in the present case, there has been procrastination in the still-pending proceedings where even the judicial branch having jurisdiction over the case could not be ascertained in spite of elapse of a six-year period. It has been accordingly concluded that the applicant’s right to respect for family life was violated due to the procrastination in the proceedings initiated for the alleged unlawfulness of the Directorate’s order removing the foster family status as well as due to the failure to alleviate the legal uncertainty in the applicant’s reunion with the children by conducting the judicial process swiftly.
Consequently, the Court found a violation of the right to respect for family life safeguarded by Article 20 of the Constitution and awarded compensation to the applicant.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.