04 June 2020 Thursday

Ferhat Kara [Plenary], no. 2018/15231, 4 June 2020

No violation of the right to a fair trial due to the applicant’s conviction based solely on Bylock data

The applicant, a prison guard at the time of the incidents, was dismissed from public office and subsequently sentenced to imprisonment for his membership of an armed terrorist organisation, namely the FETÖ/PDY, which was found established based solely on his use of ByLock communication program used by the FETÖ/PDY members. His appeal requests were also dismissed. Finding no violation in the present case, the Constitutional Court concluded , inter alia, that judicial authorities had made the necessary inquiries, examinations and assessments as to the authenticity or reliability of the relevant digital materials; and that the defence had been also provided, as required by the principles of equality of arms and adversarial proceedings, with the opportunity to challenge the authenticity, as well as to object to the use, of the evidence indicating that the applicant was a ByLock user.

04 June 2020 Thursday

M.T. [Plenary], no. 2018/10424, 4 June 2020

Inadmissibility of the alleged violation of the right to personal liberty and security

The applicant, an accountant in the administrative board of an association, was detained on remand and subsequently convicted for his membership of an armed terrorist organisation, namely the FETÖ/PDY. Having concluded that there was a strong indication of guilt on the applicant’s part in respect of the imputed offences, based on the findings of the law enforcement units, public authorities and judicial authorities on ByLock, the encryption techniques of this application, the statements of certain ByLock users, and the existence of other facts and evidence pointing to the relation with the FETÖ/PDY of a significant part of the persons determined to have used ByLock, the Court found inadmissible the alleged violation of the right to personal liberty and security, as being manifestly ill-founded.

07 November 2019 Thursday

Şükran İrge, no. 2016/8660, 7 November 2019

Violation of the right to respect for family life due to dismissal of the request for a suspension of execution for taking care of a baby

The applicant, a convict serving her sentence in a penitentiary institution with her two children, requested the chief public prosecutor’s office to be granted a suspension of execution of her sentence in order to take care of her baby. However, it was rejected. Her subsequent challenge was also dismissed by the incumbent court. Granting the applicant’s request for an interim measure, the Constitutional Court ordered the taking of necessary steps for the elimination of the threat to the physical and psychological integrity of both the applicant and her children. She was then transferred to another penitentiary institution fit for her and her children. Finding a violation, the Constitutional Court concluded, inter alia, that the child’s best interest had been disregarded.

17 July 2019 Wednesday

Semra Omak, no. 2015/19167, 17 July 2019

Violation of the right to personal liberty and security due to the disproportionate nature of a minor’s detention

 The applicant was the mother of E.N., a 15 year-old minor who was detained on remand for having committed a theft. The challenge against his detention was dismissed. At the end of the criminal proceedings, his continued detention was ordered. Shortly after this decision, he committed suicide at the juvenile wing of the prison. Finding a violation, the Constitutional Court concluded that the detention of the applicant’s son was not used as a measure of last resort, notably given his age and the availability of other measures.  

17 July 2019 Wednesday

K.Ş., no. 2016/14613, 17 July 2019

Violation of the right to protect the corporeal and spiritual existence due to dismissal of the request for change of workplace

The applicant, a form teacher serving at the same public institution with her ex-husband, was battered and stabbed by the latter against whom criminal proceedings were initiated. The applicant was then granted a protection order, and an interim measure was indicated and subsequently prolonged several times in her favour. However, her request for change of her workplace was rejected by the incumbent family court as it was an act of administrative nature. The applicant’s challenge was also dismissed.  Finding a violation, the Constitutional Court concluded that the relevant authorities  failed to act in accordance with their positive obligations to take measures so as to protect the applicant who was a victim of violence.

11 July 2019 Thursday

Mehmet Aksoy, no. 2014/5433, 11 July 2019

Violation of the freedom of expression due to the demolition of a monument

The applicant, a sculptor, constructed the impugned monument on the basis of the contract he executed with the relevant municipality upon obtaining the necessary approval. However, following its construction, the Municipal Council issued an order for the demolition of the said structure as new findings had been obtained. The applicant then obtained a decision on the stay of execution of the order. However, after it had been lifted, the demolition process was started. The applicant’s action for annulment of the demolition work was dismissed. The Council of State ultimately upheld the dismissal decision. Finding a violation, the Constitutional Court concluded that the relevant authorities failed to display the sensitivity required for the protection of a work of art, which had constituted a part of humanity’s intellectual heritage that was open to everyone’s access as it had become public.

20 June 2019 Thursday

Mohamed Kashet and Others, no. 2015/17659, 20 June 2019

Violation of the right to property due to the excessive nature of the imposed fines

During the exit controls carried out by the officials at the Free Zone Customs Office, a sum of cash money was found in the car which the applicants were in. The customs officers seized the money. Upon the applicants’ objection, the seized money was returned to them. On the other hand, they were imposed administrative fines for having committed misdemeanour. They challenged the imposed fines; however, their challenge was dismissed. Their subsequent appeal was also rejected. Finding a violation, the Constitutional Court concluded that the interference with the applicants’ right to property placed an excessive and extraordinary burden on the applicants.

30 May 2019 Thursday

Y.T., no. 2016/22418, 30 May 2019

Violation of the right to an effective remedy due to lack of an effective legal remedy to challenge the decision ordering the applicant’s deportation to a country where he would face the risk of ill-treatment

The applicant, having entered Turkey legally, married to a Turkish woman. During a routine control, the law enforcement officers found out that an exclusion order had been issued in respect of him. His placement in administrative detention for deportation was ordered. He requested before the administrative court the stay of execution, stating that he was a Turkish national and came to Turkey for having been subjected to torture. However, it was rejected and his case was dismissed as being time barred, without any assessment as regards the alleged ill-treatment. The Constitutional Court found a violation due to a lack of statutory guarantee which would eliminate the risk of deportation pending the outcome of a given case before the administrative court, which resulted from the new situation created by the legislative amendment.

30 May 2019 Thursday

Erol Kesgin [Plenary], no. 2015/11192, 30 May 2019

No violation of the right to property for holding the applicant responsible for his company’s debts to the public

The applicant received the payment order issued by the Provincial Directorate of the Social Security Institution for the social security contributions of the company where he was a shareholder and a Board member as well as for the incurred default interest. The applicant filed an action with the labour court for annulment of the payment order. Having an expert report obtained on the issue, the labour court dismissed the action relying on the expert report as a ground. On the applicant’s appeal, the first instance decision was upheld by the Court of Cassation. Finding no violation, the Constitutional Court concluded that the impugned interference with the right to property did not upset, to the applicant’s detriment, the fair balance to be struck between the public interest and the said right.

29 May 2019 Wednesday

Doğukan Bilir, no. 2014/15736, 29 May 2019

Violations of the substantive and procedural aspects of the prohibition of torture due to the failure to provide sufficient redress to the applicant

 The applicant, who was a university student at the material time, had been heavily beaten by police officers and a civil person at a demonstration he had participated in. He obtained a medical report from the military hospital, stating that he had been battered. At the end of the criminal proceedings, two police officers involved in the impugned incident were imposed judicial fines but the pronouncement of the said judgment was suspended. The applicant’s appeal against the suspension of the pronouncement of judgment was dismissed by the assize court. Finding a violation, the Constitutional Court concluded that decision on the suspension of the pronouncement of the judgment and the judicial fine imposed on the civilian perpetrator did not afford sufficient redress to the applicant.

22 May 2019 Wednesday

Levon Berç Kuzukoğlu and Ohannes Garbis Balmumciyan [Plenary], no. 2014/17354, 22 May 2019

Violation of the freedom of religion due to the rejection of the applicant’s request for holding an Election of the Patriarch of the Armenians of Turkey.

 The incumbent Patriarch of the Armenian community became incapacitated to fulfil his duties due to his illness. The applicants from the Civilian group applied to the Ministry of Interior to request elections to be held for a new patriarch as the seat of the Patriarch had become de facto vacant. On the other hand, the Spiritual group proposed to hold elections for a new spiritual leader under the name of “Co-patriarch of the Armenians of Turkey” to exercise full power the patriarch. Having examined the petitions submitted therewith and the existing legislation in this field, the İstanbul Governor’s Office decided that the competent bodies of the Patriarchate could elect a “Patriarchal Vicar-general” to perform the religious and charitable affairs of the Patriarchate and the community. Thereupon, a “patriarchal vicar-general” was elected by the Spiritual General Assembly of the Armenians of Turkey. Finding a violation, the Constitutional Court concluded that the administration explicitly decided under which circumstances the Armenian Patriarch would be elected; however, it was not authorised to do so, save for the case of meeting a pressing social need; and that nor did the administration demonstrate any pressing social need outweighing the Armenian customs and the Armenian community’s will.

08 May 2019 Wednesday

İoanis Maditinos, no. 2015/9880, 8 May 2019

Violation of the right to property for non-recognition of heirship due to lack of inter-state reciprocity

 The applicant, who was a Turkish national, was deprived of Turkish citizenship by virtue of a Cabinet Decree for voluntarily acquiring citizenship of a foreign state without any permission. The applicant, a Greek who is still residing in Athens, became the only heir of an immovable located in İstanbul. However, the incumbent civil court assigned the whole inheritance to the State Treasury as the applicant was no longer a Turkish nation. The applicant filed an application with the incumbent civil court to obtain a certificate of inheritance, which was accepted by the civil court. However, his certificate was revoked upon the action filed by the Treasury. The applicant’s subsequent challenges were dismissed. Finding a violation, the Constitutional Court concluded that the interference with the applicant’s right to property due to non-recognition of his capacity as an heir lacked any foreseeable legal basis.