11 October 2018 Thursday

Nurbani Fikri (no. 2014/2502, 11 October 2018)

The Facts

While the applicant had been working in the regional directorate of a public institution as a public official, she was temporarily assigned in the port authority under the same directorate. The applicant requested to return to her previous office three times due to her mother’s health problems. Upon these requests of the applicant who worked in the port authority for a certain period of time, the applicant was allowed to return to her previous office.

There, the applicant received a warning due to an incident that took place between her superior and her. One day after this incident, the applicant was again assigned in the same port authority. The incumbent court accepted the case filed by the applicant for cancellation of her assignment and therefore the process was cancelled. While the proceedings were continuing, the applicant’s mother died. Upon the appeal of the administration, the Council of State quashed the first instance decision. The court abided by the decision of the Council of State. The applicant’s subsequent request for the rectification of the decision, as well as, her appeal were dismissed, therefore she lodged an individual application.

In addition, upon being assigned in the port authority for the second time, the applicant brought an action for compensation against the administration and she was awarded 1,000 Turkish liras (TRY). The administration’s appeal was dismissed and the decision became final.

The Applicant’s Allegations

The applicant maintained that her right to respect for her family life was violated due to her assignment in a different district.

The Court’s Assessment

There must be a reasonable balance between the public interest in the appointment or transfer of public officials and the personal interest of the individual in terms of her/his right to respect for her/his family life. In case of a failure to strike such a balance, it must not be overlooked that the right to respect for family life will be impaired.

Within the scope of the margin of appreciation exercised for changing the place of duty of the public officials, the positive obligations imposed on the State by the right to respect for family life safeguarded by Article 20 of the Constitution must also be taken into consideration.

As a requirement of the positive obligations imposed on the State by the right to respect for family life, the legal and factual obstacles needed to be eliminated in order to facilitate the applicant to care for her sick mother who had been in need of care. This requirement does not necessarily mean that the applicant’s place of duty would never be changed under any circumstances.

At this point, the reasons put forth by the administration and the assessments of the inferior courts are of importance. In their decisions, the inferior courts are expected to take into consideration the gravity of the self-sacrifice on the individual’s part and to determine whether a fair balance has been struck between the requirements of the public interest and the protection of the individual’s fundamental rights.

One of the reasons for changing the applicant’s place of duty was the allegation that her certain behaviours or conducts towards her superior had not been compatible with her position as a public official. The action brought by the applicant for cancellation of her assignment was dismissed by the first instance court. While the applicant’s assignment in a different district despite her excuse concerning her mother’s health was considered lawful within the scope of the action brought for cancellation of the process, the same process was found unlawful in the action for compensation. However, the inferior court dealing with the applicant’s action for cancellation of her assignment made no assessment or explanation regarding the applicant’s excuse concerning her mother’s health status, nor did it provide sufficient justification as to the alleged violation of the applicant’s right to respect for her family life.

In addition, although the applicant submitted during the proceedings of the action for cancellation of her assignment that the action for compensation brought by her had been concluded in her favour, the court made no assessment to that effect in its reasoning.

It was understood that the decision of the inferior court lacked sufficient elements for striking a fail balance between the legal public interest pursued by the assignment process and the applicant’s right to respect for her family life. Accordingly, the positive obligations incumbent on the public authorities within the scope of the right to respect for family life were not fulfilled.

In addition, it was concluded that the amount of compensation awarded to the applicant was not sufficient to redress the anguish and distress suffered by her due to her inability to fulfil her obligation to care for her mother.

Consequently, the Constitutional Court found a violation of the applicant’s right to respect for her family life safeguarded by Article 20 of the Constitution and awarded compensation to her.