Press Release No: Individual Application 59/23

Press Release concerning the Judgment Finding a Violation of the Right to a Reasoned Decision under the Right to a Fair Trial due to the Lack of Relevant and Sufficient Reasoning

On 14 June 2023, the Plenary of the Constitutional Court found a violation of the right to a reasoned decision under the right to a fair trial, safeguarded by Article 36 of the Constitution, in the individual application lodged by Aziz Bankur and Others (no. 2018/25145).

The Facts

A four-person team, including the applicants’ testators, police officers C.B. and S.S., as well as police officer V.B.E., was assigned to protect the division manager appointed to the security directorate whilst he was en route to the airport. The assignment letter indicated that the duty was to ‘ensure road safety in consideration of terrorist acts such as road blockades and mine attacks on the Muş-Bitlis highway’. En route to the airport, the official vehicle carrying the protection team collided with a truck, and police officers C.B., S.S. and V.B.E. were martyred on the spot.

The applicants’ testators were recognised as duty-disabled under the Law no. 2330 on Monetary Compensation and Monthly Pensions, and the applicants, as their heirs, were accordingly granted a monthly pension. The applicants, heirs of C.B. and S.S., petitioned the Social Security Institution, asserting that since their testators were martyred in the line of duty during an operation to prevent a possible terrorist act, their status as duty-disabled should have been considered to fall under the Anti-Terror Law no. 3713. These requests were, however, dismissed on the grounds that the deaths were not covered by Law no. 3713. The applicants filed separate actions against these dismissals, and the administrative courts annulled them for being unlawful. Nevertheless, on appeals by the Social Security Institution, the regional administrative court dismissed the action with final effect.

In the traffic accident at issue, V.B.E., the testator of F.E. and A.L.E., in addition to the applicants’ testator, was also martyred. As is the case for the applicants, the petition by F.E. and A.L.E. for their testator’s status of duty disability to be assessed under Law no. 3713 was denied by the Social Security Institution, leading them to file an action. Upon appeal against the administrative court’s annulment of the action, the regional administrative court dismissed the action due to lack of jurisdiction, concluding that the labour courts were competent to hear the case. Subsequent to this decision, F.E. and A.L.E. initiated a case in the labour court, which ruled that Law no. 3713 was applicable, as the accident occurred while the testator and three others were engaged in a counter-terrorism duty. The subsequent appeal on points of facts and law was dismissed by the regional court of appeal, with the Court of Cassation upholding the decision.

The Applicants’ Allegations

The applicants claimed that their right to a reasoned decision within the scope of the right to a fair trial had been violated due to the failure to address an allegation capable of affecting the outcome of the action for annulment regarding the duty disability.

The Court’s Assessment

The impugned dispute concerns whether the deaths that occurred as a result of a traffic accident during the execution of a duty aimed at preventing a possible terrorist attack should be considered to fall under Law no. 3713.

The Council of State, in its jurisprudence regarding incidents of a similar nature occurring in the execution of duties, has considered whether the events would occur independently of the activities aimed at preventing terrorist acts. It ruled that if the underlying cause of the traffic accident was in any way related to the prevention of terrorism, the incident could not be considered to fall outside the scope of Law no. 3713. In the same vein, the Court of Cassation decided that in consideration of the particular circumstances of every case, the provisions of Law no. 3713 should apply in cases of accidents occurring during the performance of duties related to the prevention, pursuit or neutralisation of terrorist incidents, including transfers of individuals in charge to place of duty. In this context, it has defined the scope of Law no. 3713 to cover even the preparatory stages of counter-terrorism efforts.

Having regard to the specific circumstances of the individual case, instance courts must present the findings of their inquiries in the reasoned decision, ensuring legal security and certainty while preventing arbitrary practices. In this sense, the existence of reasoning merely in the formal sense is not adequate, and the reasons relied on in the decision must also be relevant and sufficient, which necessitates courts to elucidate their evidence assessment, legal rule interpretation and application, the conclusion reached and the rationale behind the exercise of discretion. Therefore, in excluding the applicant’s case from Law no. 3713, the courts are to explicitly justify their reasoning. Accordingly, the expectation from the courts of instance is to explain why the incident was not considered to pursue the aim of preventing a terrorist act. In the present case, the regional administrative court failed to present relevant and sufficient reasoning as to why the incident did not fall under Law no. 3713 and to clarify why the incident should be considered independent of any counter-terrorism act.

Consequently, it has been observed that the regional administrative court’s decision lacked reasoning as to why the incident did not fall under the scope of Law no. 3713. In its decisions, the regional administrative court did not assess the purpose behind the testators’ assignment, nor did it explicitly present its own evaluation on why the accident did not serve the purpose of preventing terrorist acts. It merely referred to the aim of ensuring road safety during transfer to the airport, without considering the underlying reasons for the assignment or explaining why it did not rely on these reasons. In other words, the applicants’ allegations that the incident fell under the scope of Law no. 3713 were not clarified.

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

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