THE FACTS

 [9-67] The applicant holding office as a veterinarian in a public institution was given a written warning, by the institution director, to pay due diligence for maintaining peace within the institution. At a subsequent date, she was subject to disciplinary sanction, namely reprimand, for acting in breach of the principle of team-work, breaking peace and order at the institution and failing to behave respectfully toward her superiors. The action for annulment brought by the applicant against the disciplinary sanction was dismissed by the administrative court.

 After the completion of the procedures for changing her place of duty, she was then assigned to serve at different units within the same institution. The applicant, who was asked to present her defence submissions for being absent from work on account of her treatment, submitted her prescription to the administration. However, it was not found sufficient by the administration, and the institution director imposed disciplinary sanctions on her.

 Upon the letter sent by the institution director to the relevant Ministry for assignment of the applicant in other units of the Ministry, she was accordingly appointed to the Provincial Directorate under the Governor’s Office. The action brought for annulment of this decision was dismissed by the administrative court. She appealed against the administrative court’s decision; however, her appeal was also dismissed by the Regional Administrative Court.

 In the meantime, she submitted petitions to the Institution Directorate, the Prime Ministry Communication Centre (BIMER) as well as to the Ministry and maintained that she had been forced to work under inappropriate conditions, insulted and exposed to psychological harassment by the institution director.

 The report issued by the Governor’s Office upon the applicant’s request for an investigation against the institution director indicated that she was subjected to psychological harassment, and accordingly the Governor’s Office granted permission for initiating an investigation against the director.

 The incumbent chief public prosecutor’s office issued an indictment against the director and accused him of misconduct and threatening. However, he was acquitted by the relevant criminal court. The applicant’s action for damage was dismissed by the inferior court. Besides, her appeal against the dismissal decision was also rejected by the incumbent court.

 V. EXAMINATION AND GROUNDS

68. The Constitutional Court, at its session of 19 July 2018, examined the application and decided as follows:

A. The Applicant’s Allegations

69. The applicant maintained that:

 i. In 2012, she was unjustly displaced, as a compulsory appointment, from the institution where she had been appointed in 2007;

 ii. During the period she was working, she was ostracised, defamed and threatened by her workmates, notably the director of the institution. The units she was working were changed, and inquiries were conducted into her medical information;

 iii. She was tried to be intimidated through disciplinary penalties and warnings imposed arbitrarily;

 iv. She was made subjected to systematic and continuous psychological harassment, and therefore, her health deteriorated;

 v. The relevant administration failed to take necessary measures so as to prevent such acts, actions and omissions infringed her corporeal and spiritual integrity. Those responsible went unpunished.

 vi. Although the damage caused by a public officer on account of his negligence or fault in the exercise of public service should have been compensated for as constituting neglect of duty, the non-pecuniary damage she had suffered was not remedied;

 vii. Despite the administrative decisions proving that she had been subjected to psychological harassment and her applications with the relevant judicial authorities, she was not provided with an effective redress and means of protection. She accordingly alleged that the right to protect and improve her corporeal and spiritual existence as well as the right to work had been violated. She requested the Court to find a violation of the said rights as well as to award her compensation.

B. The Court’s Assessment

70. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). It has been considered that as the applicant’s complaints involve allegations as to her physical and mental integrity and fall under the scope of psychological harassment, they must be examined under Article 17 of the Constitution, given the previous judgments rendered by the Court (see Hüdayi Ercoşkun, no. 2013/6235, 10 March 2016, §§ 59 and 60; Sümeyye Örnek, no. 2014/11091, 7 June 2017, § 16; and Mehmet Bayrakcı, no. 2014/8715, 5 April 2018, § 50).

71. Article 17 §§ 1 and 3 of the Constitution, titled “Personal inviolability, corporeal and spiritual existence of the individual”, which forms the legal basis for the Court’s examination, reads as follows:

 “Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.

 …

 No one shall be subjected to torture or mal-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity.”

72. Article 40 § 3 of the Constitution, titled “Protection of fundamental rights and freedoms”, reads as follows:

 “Damages incurred to any person through unlawful acts by public officials shall be compensated for by the State as per the law. The state reserves the right of recourse to the official responsible.”

73. Article 125 § 7 of the Constitution, titled “Judicial review”, reads as follows:

 “The administration shall be liable to compensate for damages resulting from its actions and acts.”

74. Article 129 § 5 of the Constitution, titled “Duties and responsibilities, and guarantees in disciplinary proceedings”, reads as follows:

 “Compensation suits concerning damages arising from faults committed by public servants and other public officials in the exercise of their duties shall be filed only against the administration in accordance with the procedure and conditions prescribed by law, as long as the compensation is subrogated against them.”

75. In this context, it is specified in Article 17 § 1 of the Constitution that everyone has the right to protect and improve his/ her corporeal and spiritual existence. This right corresponds to the right to physical and moral integrity safeguarded within the scope of the right to respect for private life under Article 8 of the Convention (see Sevim Akat Eşki, no. 2013/2187, 19 December 2013, § 30).

76. The previous judgments of the Court set the principles as to the fundamental rights protected by Article 17 §§ 1 and 3 of the Constitution, as to the fact that an impugned act may fall into the scope of Article 17 § 3 of Constitution only when it has attained a minimum level of severity, and as to the circumstances needed to be taken into consideration in determining this level (see Şehnaz Ayhan, no. 2013/6229, 15 April 2014, §§ 21-26; Işıl Yaykır, no. 2013/2284, 15 April 2014, §§ 31-36; Emel Leloğlu, no. 2013/3512, 17 July 2014, §§ 26-31; Hüdayi Ercoşkun, §§ 84-88; and Hacer Kahraman, no. 2013/7935, 20 April 2016, §§ 51-56). In the light of the above-mentioned findings, it has been considered that given the way and method in which the treatments, forming the subject matter of the present case, had been inflicted on the applicant as well as their physical and mental effects, the application did not attain the minimum level of severity required to fall into the scope of Article 17 § 3 of the Constitution. Therefore, the applicant’s complaints were examined under Article 17 § 1 of the Constitution.

1. Admissibility

77. In its previous judgments, the Court notes that the civil remedy for compensation is an accessible and effective remedy offering a reasonable chance of redress for the similar kinds of alleged violations like in the present application (see Işıl Yaykır, § 44; Asılı Kırmızı Demirseren, no. 2013/5680, 15 April 2014, § 41; Gülşin Oral, no. 2013/6129, 16 September 2015, § 47; and Sümeyye Örnek, § 26). In the present case, it has been observed that the applicant brought an action for compensation which was unsuccessful; and that thereupon, she lodged an individual application. The Court accordingly concluded that despite the pending criminal proceedings, the available legal remedies had been exhausted.

78. The alleged violation of the applicant’s right to protect and improve her corporeal and spiritual existence must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

Mr. Serdar ÖZGÜLDÜR did not agree with this conclusion.

2. Merits

a. General Principles

79. In its previous judgments, the Court has provided explanatory assessments and set general principles as to the scope of the negative and positive obligations incumbent on the State, within the meaning of the protection of corporeal and spiritual existence of the individuals who are working, under Article 17 as well as Articles 5, 12, 49 and 56 of the Constitution, as to the commitments of the States parties to international conventions, notably the Revised European Social Charter and those signed within the framework of the International Labour Organisation (ILO), and as to the arrangements put into practice in this regard (see Mehmet Bayrakcı, §§ 61-88).

80. In these assessments, the Court has stressed that on condition of considering every present case on the basis of its particular circumstances, there must be certain elements to acknowledge that the acts, actions or omissions allegedly sustained by individuals at their workplaces have attained the level of psychological harassment. In this sense, according to the publications and reports issued by the ILO and the Ministry of Labour and Social Security, any given treatment may be qualified as psychological harassment in cases where:

 i. As regards the workplace, such treatments are inflicted by the directors and/or other employees at the workplace, or such treatments are tolerated;

 ii. These treatments are inflicted repetitively on a continuous basis, involve arbitrariness, are systematic and deliberate, and intended for intimidation and ostracism;

 iii. These treatments cause damage, or involve a serious risk, to the victim’s personality, professional life or health (see Mehmet Bayrakcı, § 69).

81. The gravity of the consequences resulting from such kind of treatments may vary by several factors such as the victim’s position, duration and frequency of the impugned treatments, the person(s) inflicting such treatments, as well as the victim’s sex, age and health status (see Aynur Özdemir and Others, no. 2013/2453, 24 March 2016, § 79; Hacer Kahraman, § 69; and Mehmet Bayrakcı, § 70).

82. In this regard, the positive obligations incumbent on the State, within the meaning of Article 17 § 1 of the Constitution, as regards the acts, actions or omissions posing a threat to the individuals’ spiritual integrity and qualified as psychological harassment by attaining an unbearable level of severity and gravity for their lives are mainly as follows:

 i. To take measures so as to prevent any behaviours and conducts, in the form of psychological harassment, towards employees;

 ii. To establish supervision mechanisms to effectively deal with the complaints;

 iii. To ensure the elimination of difficulties before the employees who must be granted privileges and the provision of facilitative opportunities for them;

 iv. To ensure establishment of legal framework that would enable the redress of pecuniary and non-pecuniary damages sustained by those who are subjected to deterrent and deliberate conducts and to ensure the punishment of those responsible within the legal framework if these conducts constitute an offence;

 v. Ensuring that in actions brought for compensation for the damages incurred, the victims be afforded effective procedural safeguards whereby they could defend their rights under fair conditions, and that the decisions rendered by the courts, in pursuit of the safeguards inherent in fundamental rights, at the end of the proceedings have relevant and sufficient grounds (see Mehmet Bayrakcı, § 71).

83. Lastly, as frequently emphasised in its previous judgment, the Court is of the opinion that it is primarily for the inferior courts to resolve the issues with respect to the interpretation of the legislation. In ascertaining whether any given acts, actions and omissions allegedly performed in a systematic and deliberate manner would be qualified as psychological harassment, the inferior courts that have direct access to the parties and evidence are undoubtedly in a better position than the Constitutional Court to assess the particular circumstances of a given case. Therefore, the Court’s role is confined to determining whether the relevant rules have been interpreted in accordance with the Constitution (see Aynur Özdemir and Others, § 81; Hacer Kahraman, § 70; and Mehmet Bayrakcı, § 72).

b. Application of Principles to the Present Case

84. The applicant maintained that the director of the relevant institution had performed unlawful disciplinary actions against her; that her defence submissions had been frequently taken; that the units where she had been working had been changed; that she had been threatened and defamed; that her medical information had been inquired; that she had been ostracised and she had been displaced to another workplace as a compulsory appointment; and that she had been subjected to psychological harassment. She also indicated that her physical and mental health had been adversely affected due to the acts by the director of the institution intimidating her as well as the administration’s failure to take necessary measures.

85. The impugned treatments inflicted on the applicant at her workplace and affecting her physical and mental integrity must be examined under the State’s positive obligations in line with the above-mentioned principles.

86. In the present case, it has been observed that the report of 9 April 2012, which was issued by the relevant Governor’s Office as a result of the preliminary inquiry conducted in respect of Y.K., director of the institution, in consideration of the applicant’s complaints, as well as the decision granting permission for investigation against Y.K., which was issued on 12 April 2012 by the Governor’s Office, include findings in support of her complaints. It is further indicated in the decision that the applicant’s units were changed many times; that the director of the institution was in search of her faults; that no oral communication was held with her, and all issues were notified to her in written; that in every case, a disciplinary investigation was instituted against her, and she was frequently asked to submit her defence submissions; and that in cases where her defence submissions were found inadequate, she should have been given a penalty; however, she was once again asked to defend herself. It is further noted that the medical reports where the applicant was diagnosed with complex anxiety and depressive disorder were submitted to the institution in the meanwhile; that the applicant was faced with unfavourable situations such as taking a sick leave, and that several administrative investigations were conducted on account thereof within the institution. In the reasoning part of the decision, it is clearly expressed that the applicant was subjected to psychological harassment by Y.K., director of the institution. Therefore, a criminal case was filed against Y.K. by the Erzurum Chief Public Prosecutor’s Office for misconduct in office and threatening.

87. Besides, at the end of the administrative investigation initiated upon the request of the director of the institution, the applicant whose continued performance at the same workplace had been found inconvenient was appointed to another institution operating under the Governor’s Office on 2 October 2012. In the action brought for annulment of this appointment, the incumbent administrative court did not find the change of the applicant’s place of work justified in legal terms but dismissed the action as it was not appropriate for the applicant and the director to work at the same institution. The action for compensation brought by the applicant was also dismissed as a permission for investigation against Y.K. had been granted by the administration and therefore, there was no fault attributable to the administration to the extent that would undermine the applicant’s honour and dignity.

88. It is undoubted that in assessing whether the acts, actions and omissions to which the applicant was subjected attained an unbearable level of severity and gravity in respect of their effects on her life, the process must be taken into consideration as a whole.

89. In cases where, as in the present case, the place of work or description of task of an employee is changed by the authorised persons or administrative boards and where a sanction is to be imposed, it is usual to institute administrative investigations. The administrative acts performed to that end are also in pursuance of the aim of public interest. However, in performing such kinds of administrative acts, the principle of impartiality must be observed, and any arbitrary conduct must be avoided. In cases to the contrary, the authorities or persons liable to review the lawfulness of the acts performed by the authorised persons or administrative boards are expected to take measures with a view to removing any possible unfavourable situation having occurred or likely to occur.

90. In the present case, it has been observed that the acts of frequently initiating investigations against the applicant, warning her in written on a continuous basis, taking her defence submissions frequently, and questioning the accuracy of the medical documents submitted by her although her health problems were known involve arbitrariness. As also found established by the administration, it has been concluded that the impugned acts and actions attaining the threshold to gain continuity and apparently performed for the purpose of intimidation in professional terms attained an unbearable level of severity and gravity for the effects on the applicant’s life.

91. The public authorities should not confine themselves to establishing the situations that amount to psychological harassment, but also take the effective measures so as to prevent the occurrence of such behaviours or to redress them. For instance, in the present case, to make proper changes in the applicant’s working conditions by considering the relevant public standards and not ignoring her request or to impose certain additional administrative sanctions on the public official complained of may be qualified as effective measures. Although an administrative investigation was conducted in line with the applicant’s complaints raised notably in 2010-2012 and subsequently a criminal case was filed against the public official allegedly subjecting the applicant to psychological harassment, the administration failed to show due diligence to take measures to prevent the repetition of such conducts. As a matter of fact, it appears that upon the request by the director of the institution, the applicant was subjected to a compulsory appointment.

92. On the other hand, it is set forth in the domestic law that in case of any damage sustained by individuals on account of the faults committed by public officials in exercising their powers, an action for compensation may be brought against the relevant administration which may subsequently subrogate the claim against the officials concerned. In the present case, it is clear that there is a neglect of duty attributable to the administration due to its failure to take effective measures on time despite the finding that the impugned acts and actions attained an unbearable level of severity and gravity for the applicant’s life; and that the damage sustained by the applicant must be redressed. However, in the decision dismissing the action for compensation, no fault was attributed to the administration, and it was noted that the applicant was entitled to bring an action for compensation, before the courts of ordinary jurisdiction, against the director of the institution.

93. It was also indicated therein that a criminal case was brought against the person allegedly committing psychological harassment, and he was tried. Although filing a criminal case is an important element for ensuring deterrence, it is not, in the present case, per se sufficient for the redress of the applicant’s pecuniary and non-pecuniary damages. Actions for compensation cover a group of unlawful acts and actions wider than that of the criminal acts considered to constitute an offence in criminal law and offer more prospect of redress to the victims within the scope of criminal liability. Given the fact that in the domestic legal system, the opportunity to submit a personal claim through the criminal proceedings has been removed and that the main aim of the liability to compensate is to offer redress for the damage suffered, it appears that in the present case, the action for compensation is undoubtedly the remedy that would offer redress within the context of the right to protect and improve the corporeal and spiritual existence. Upon resorting to effective judicial remedies, it is then expected that the pecuniary and non-pecuniary damages sustained by the applicant being subjected to psychological harassment be redressed in proportion to the fault attributed to the administration. In this sense, it has been concluded that in the present case, the dismissal decision issued by the incumbent administrative court at the end of the action for compensation brought by the applicant did not contain relevant and sufficient reasons to secure the safeguards inherent in the right to protect and improve the corporeal and spiritual existence and to offer redress for the damages sustained by the applicant.

94. Consequently, the Court has concluded that the positive obligations incumbent on the public authorities pursuant to the right to protect and improve the corporeal and spiritual existence were not fulfilled on the grounds that these authorities failed to take effective measures to prevent the occurrence of the impugned conducts, which amount to psychological harassment, although they attained the unbearable level of severity and gravity in terms of their effects on the applicant’s life; that the damages sustained by the applicant were not remedied; and that the conclusions reached by the inferior courts at the end of the proceedings were lacked of relevant and sufficient grounds.

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

Mr. Serdar ÖZGÜLDÜR did not agree with this conclusion.

Mr. Hicabi DURSUN, Mr. Hasan Tahsin GÖKCAN and Mr. Kadir ÖZKAYA agreed with the conclusion finding a violation but on a different ground.

3. Application of Article 50 of Code no. 6216

96. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

 “(1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled...

 (2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court which is responsible for holding the retrial shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

 97. In the Court’s judgment in the case of Mehmet Doğan ([Plenary], no. 2014/8875, 7 June 2018), the general principles as to how the consequences of a violation found would be redressed are laid down.

 98. In this judgment, it is noted that in order to determine the appropriate way of redress, the reason underlying the violation must be determined. Accordingly, in cases where the violation results from a court decision, the Court holds that a copy of the violation judgment be sent to the relevant inferior court for a retrial with a view to redressing the violation and its consequences, pursuant to Article 50 § 2 of Code no. 6216 and Article 79 § 1 (a) of the Internal Regulations of the Court (see Mehmet Doğan, §§ 57 and 58).

 99. In Mehmet Doğan judgment, the Court has provided explanations on the obligations incumbent on the inferior courts to conduct a retrial and the steps to be taken by them with a view to redressing the consequences of the violation. Accordingly, in cases where the Court orders a retrial in order to redress the found violation, the inferior court does not have any margin of appreciation in acknowledging the reason requiring a retrial and in annulling its former decision, which is different from the process of reopening of the proceedings set out in the relevant procedural laws. That is because in cases where a violation is found, the discretion to decide whether a retrial is required is accorded not to the inferior courts but to the Constitutional Court finding the violation. At this stage, the inferior court is obliged to take the necessary steps to redress the consequences of the violation, as indicated by the Constitutional Court in its violation judgment (see Mehmet Doğan, § 59).

 100. In this sense, the step to be primarily taken by the inferior court is to annul its former decision which is found to be in breach of a fundamental right or freedom or to have failed to redress a violation by administrative authorities of a fundamental right or freedom. Upon annulling its decision, the inferior court is to perform all necessary actions with a view to redressing the consequences of the violation found by the Constitutional Court. Within this framework, if a given violation results from a procedural action performed or a procedural omission committed during the proceedings, the said procedural process is to be performed anew in a way that would eliminate the violation (or if not performed yet, it is to be performed for the first time). On the other hand, in cases where the violation is found by the Constitutional Court to have resulted from the administrative act or action, or the outcome of the inferior court’s decision (but not from the procedural processes performed or failed to be performed by the inferior court), the inferior court is to redress the consequences of the found violation without performing any procedural action, but directly and, as much as possible, issuing -over the case-file- a decision contrary to its former decision (see Mehmet Doğan, § 60).

 101. The applicant requested the Court to find a violation and award her compensation.

 102. The Court found a violation as the administrative court’s decision dismissing the applicant’s action for compensation did not contain relevant and sufficient reasons that would secure the safeguards inherent in the right to protect and improve the corporeal and spiritual existence and that would redress the damages suffered by the applicant. Therefore, it has been observed that the violation found in the present case results from the inferior court’s decision.

 103. Accordingly, there is a legal interest in conducting a retrial to redress the consequences of the violation of the right to protect and improve the corporeal and spiritual existence. A retrial to be conducted accordingly is for ensuring the redress of the violation and its consequences pursuant to Article 50 § 2 of Code no. 6216. In this sense, the step to be taken by inferior courts is to primarily revoke the initial decision leading to violation and to ultimately issue a fresh decision in line with the Court’s violation judgment. Therefore, a copy of the judgment must be sent to the 1^st Chamber of the Erzurum Administrative Court for a retrial.

 104. On the other hand, the applicant’s claim for compensation must be rejected as it has been considered that ordering a retrial would constitute sufficient just satisfaction for the redress of the violation and consequences thereof.

 105. The court fee of 412.20 Turkish liras (“TRY”), which is calculated over the document in the case file, must be reimbursed to the applicant.

VI. JUDGMENT

The Constitutional Court UNANIMOUSLY held on 19 July 2018:

A. By MAJORITY and by dissenting opinion of Mr. Serdar ÖZGÜLDÜR, that the alleged violation of the right to protect and improve the corporeal and spiritual existence be DECLARED ADMISSIBLE;

B. By MAJORITY and by dissenting opinion of Mr. Serdar ÖZGÜLDÜR, that the right to protect and improve the corporeal and spiritual existence safeguarded by Article 17 of the Constitution was VIOLATED;

C. That a copy of the judgment be SENT to the 1^st Chamber of the Erzurum Administrative Court (E.2012/882, K.2013/1383) for a retrial in order to redress the consequences of the violation of the right to protect and improve the corporeal and spiritual existence;

D. That the applicant’s claims for compensation be REJECTED;

E. That the court fee of TRY 412.20 be REIMBURSED TO THE APPLICANT;

F. That the payments be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and

G. That a copy of the judgment be SENT to the Ministry of Justice.

DISSENTING OPINION OF JUSTICE SERDAR ÖZGÜLDÜR

 According to the decision issued by the 1^st Chamber of the Erzurum Administrative Court, no. E.2012/882, K.2013/1383 and dated 30 December 2013, which is the subject-matter of the present application, the applicant brought an action for compensation for the non-pecuniary damage she had sustained on account of the conducts -such as being subject to mobbing, wearing, intimidation, lack of self-confidence and etc.- allegedly displayed by the director and his staff at the relevant institution towards her. However, it was dismissed by the administrative court for the following reasons:

 “…By virtue of the decision of the Governor’s Office, a permission for investigation was granted, pursuant to Law no. 4483, for enabling the incumbent prosecutor’s office to conduct an investigation into the applicant’s allegations that the director of the institution, Y.K., had continuously shouted at, insulted and threatened her; that the director had displayed aggressive behaviours and conducts towards her; that she had been frequently asked to provide her defence submissions and thereby tried to be intimidated; that the complaints she had brought before the Prime Ministry Communication Centre (BIMER) had not been taken into consideration; and that she had been continuously subjected to mobbing by Y.K. at the workplace. It has been observed that a trial was conducted against the director of the institution. In such cases, in order for the court to award compensation for non-pecuniary damage pursuant to the principles of the administrative law, there must be a severe distress or suffering, or a damage to the victim’s honour and dignity, or a condition diminishing the victim’s ability to maintain her life or to earn, which is caused by an unlawful act or action performed by the administration. In the present case, a permission for investigation was granted, and thus the defendant administration ensured that Y.K., director of the institution, be subjected to a trial. In consideration of these issues, it has been concluded that there was no situation undermining the plaintiff’s honour and dignity, which was caused by any unlawful action of, or any action attributable to, the administration; and that therefore, the conditions sought, in the administrative law, for the payment of compensation for non-pecuniary damage by the defendant administration were not satisfied. Besides, it is possible to file a case, before a court exercising judicial jurisdiction, by the plaintiff against the director Y.K. for any damage if sustained on account of Y.K.’s personal behaviours, namely the act of mobbing. For these reasons, the administrative court found it appropriate to dismiss this action…”

 As is seen, in this decision, it was noted that in case of “any personal fault not related to the profession” committed by the relevant official of the administration, an action for compensation could be filed in the judicial jurisdiction; and that in the present case, there was no liability to compensate incumbent on the defendant administration.

 In the same vein, in its decision no. E.2015/448, K.2015/453 and dated 1 June 2015 in a different case, the Civil Chamber of the Court of Jurisdictional Disputes reached the following conclusions on this matter:

 “… The case concerns the compensation claim for the pecuniary and non-pecuniary damage sustained by the plaintiffs as A.D., gym teacher in a primary school affiliated to the Ministry of National Education, battered E.A. who had insulted A.D.’s son on 11 January 2013. In principle, an action for compensation for the damage occurring due to the exercise by a public official of his duties and powers may be brought, based on the principle of neglect of duty, merely before an administrative court against the administration, and if the administration is held liable, by the relevant court, to pay compensation, it may subrogate the compensation against the official concerned in accordance with the terms and conditions laid down in the relevant legislation. However, in cases where the impugned acts or actions performed by public officials during the exercise of their duties have caused by their severe personal fault and this fault does not amount to neglect of duty, there would be no causal link between the impugned acts or actions and the act of neglect of duty. Therefore, it would not be possible for the public official to enjoy the above-mentioned constitutional and legal protection, and an action against him due to his personal fault cannot be brought before an administrative court within the framework of Law no. 2577. In the light of this consideration, it has been concluded that although the criminal acts were performed by the plaintiff during the exercise of his public office, they could not be considered as a requisite of public service; that therefore, no causal link was found between the administration’s neglect of duty resulting from the plaintiff’s severe personal fault and the impugned incident; and that accordingly, the case must be heard by the courts exercising judicial jurisdiction within the scope of the provisions of private law governing the tortious acts. For these reasons, it has been held that the application filed by the 1^st Chamber of the Samsun Administrative Court be accepted, and the decision of lack of jurisdiction issued by the Ayancık Criminal Court be annulled. Conclusion: the competent authority to hear the case is the courts exercising judicial jurisdiction…”

 The reasoning part of the judgment of the General Assembly of Civil Chambers of the Court of Cassation, no. E.2017/4-1433, K.2018/49 and dated 17 January 2018, which was rendered in accordance with the above-mentioned decision of the Court of Jurisdictional Disputes is also explanatory in this respect:

“…The dispute brought before the General Assembly of the Civil Chambers upon reinstating the original decision concerns the questions whether the impugned acts and actions allegedly constituting mobbing resulted from the neglect of duty on the part of the defendant public official or his personal fault, and whether any liability could be attributed to the defendant… As regards the damages resulting from the criminal acts performed deliberately by the civil servant’s or public official’s own will or in contravention of the explicit provisions laid down in the laws, any objective causal link cannot be said to exist between the impugned act and the exercise of public duty. It is undoubted that such cases do not fall within the legal scope of Article 13 of the Civil Servants Law no. 657. That is because no link between the fault, which is easily separated from, and falls outside the scope of, the profession, and public duty is established, and the personal fault on the part of the relevant public official comes into play. At this point, it is of importance to clearly determine the scope and elements of the personal fault in making a distinction between misconduct in office and personal fault. As known, misconduct in office is in the form of a personal fault which cannot be separated from the office performed by the public official. Such personal fault is committed in association with the office and therefore by way of the duties, powers and means accorded by the administration to its agent. As regards the personal fault, the public official’s impugned act must involve deeds and faults which may be easily separated from the public office. In other words, in personal fault, the unlawful acts and actions performed by a public official acting on behalf of the administration, which cannot be attributed to the administration but rather directly to the official himself and which involve his personal liability, are at stake, and the public official has committed the impugned act causing damage in performing his public office but merely based on his personal fault. Both in theory and in judicial decisions, the acts and actions personally performed by the officials are not considered as an administrative act and action, and it is concluded that the authority to deal with the cases involving personal faults is the courts exercising judicial jurisdiction; and that the adversary party is the official himself… As a result, pursuant to Article 129 § 5 of the Constitution and Article 13 § 1 of the Civil Servants Law no. 657, the actions for compensation for the damages caused by the faulty acts performed by the civil servants and other public officials in exercising their powers may be brought against the relevant administration under the terms and conditions specified in the law and on condition that these damages be subrogated against the civil servants or public officials concerned. However, such actions to be brought against the administration are confined to the behaviours and conducts that have resulted from any misconduct in office and are in the form of administrative act and action. Notably in cases of tortious acts, the public official cannot avail himself of this safeguard enshrined in the Constitution and the private laws. In consideration of all these explanations and the mentioned statutory arrangements, it has been observed that the plaintiff claimed compensation for non-pecuniary damage sustained by him due to the defendant’s acts amounting to intimidation; however, the plaintiff’s claim was based not on the rector’s act associated with his profession but merely on his personal fault. Therefore, as it has been observed that the defendant’s act was not associated with his profession and was based on his personal fault and that there was no act in the form of a misconduct in office, the quashing decision, which indicated that the case must be dealt with by courts exercising judicial jurisdiction and which was also approved by the General Assembly of the Civil Chambers, should have been complied with. Therefore, the decision which does not comply with the quashing decision but instead reinstated the original decision is contrary to the procedure and law…”

In the light of the above-mentioned judicial decisions, the applicant’s case was examined. It has been accordingly concluded that the acts and behaviours of the applicant’s superior Y.K., which were qualified as “mobbing” by the applicant and also found established by the judicial decisions (issued by the criminal court and administrative court) in line with the relevant administrative reports, were not indeed associated with his profession and in the nature of “personal fault”, which could be completely separated from his profession; that therefore, the competent authority to deal with these claims were not the administrative courts but the courts exercising judicial jurisdiction as indicated by the 1^st Chamber of the Erzurum Administrative Court; that accordingly, the applicant should have brought an action seeking compensation against Y.K. before a court of judicial jurisdiction; and that failing to do so, the applicant then lodged an individual application with the Court, relying on the dismissal decision issued by the administrative court, which lacked jurisdiction to adjudicate the case. I therefore consider that in the present case, the applicant failed to exhaust the available legal remedies.

For these reasons, as I am of the opinion that the present application should have been declared inadmissible for non-exhaustion of available remedies, I do not agree with the conclusion finding a violation of Article 17 § 1 of the Constitution, which was reached by the majority proceeding with the examination on the merits of the case.

CONCURRING OPINION OF JUSTICES HİCABİ DURSUN AND KADİR ÖZKAYA

 1. The application concerns the alleged violation of the applicant’s right to protect and improve her corporeal and spiritual existence due to the psychological harassment she had been subjected to, following the dismissal of the action for compensation brought by her before the incumbent administrative court, seeking TRY 15,000 for the non-pecuniary damage sustained by her as she had been continuously subjected to intimidation by Y.K., director of the institution she was working, and by his staff, her self-confidence had been impaired, and they had attempted to cause damage to her professional life, which all amounted to psychological harassment.

 2. In brief, the applicant maintained that the right to protect and improve her corporeal and spiritual existence as well as the right to work had been violated for not being provided with an effective redress and protection although the administrative decisions found established that she had been subjected to psychological harassment and she had recourse to relevant judicial authorities.

 3. In the present case, the Court considered that given the way and method how the impugned treatment had been inflicted and notably their physical and mental effects, these treatments were not such as to reach the minimum threshold of severity required in order to fall within the scope of Article 17 § 3 of the Constitution; and that the application be accordingly examined under Article 17 § 1 thereof. The application involving the alleged violation of the right to protect and improve the corporeal and spiritual existence was declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility. We have also agreed with this conclusion.

 4. In its examination on the merits of the case, the Court’s majority took account of the process how the impugned incidents took place and considered all the impugned incidents as a whole. At the end of the examination whereby it was assessed whether the acts and actions inflicted on the applicant, in respect of the effects on the applicant’s life, had attained an unbearable level of severity and gravity, it was concluded that these acts and actions were of continuous nature and amounted to intimidation in professional terms; and that they attained an unbearable level of severity and gravity for the applicant with health problems. It was further noted that the public authorities failed to take effective measures so as to prevent the occurrence of the behaviours amounting to psychological harassment; that the damages sustained by the applicant were not remedied; and that the decisions issued by the inferior courts at the end of the proceedings did not contain relevant and sufficient grounds. The Court’s majority accordingly concluded that the positive obligations incumbent on the public authorities under the right to protect and improve the corporeal and spiritual existence had not been fulfilled and accordingly found a violation of the said right safeguarded by Article 17 of the Constitution.

 5. The subject matter of the applicant’s case is the dismissal decision issued by the incumbent administrative court in the action for compensation brought for TRY 15,000 for the non-pecuniary damage sustained by her for being subjected to psychological harassment by the director and staff of the institution on the grounds that for the administrative court to award non-pecuniary compensation, the person concerned must have suffered severe distress and anguish due to an unlawful act or action performed by the administration, her honour and dignity must have been undermined, and events restricting the ability to maintain her life and to earn must have taken place; that however, in the impugned case, a permission for investigation against Y.K., director of the institution, had been granted by the administration, and thereby, the director’s personal conducts and behaviours had been subject to trial; that therefore, there was no fault attributable to the administration, which undermined the applicant’s honour and dignity; and that an action for compensation might be brought before the relevant court exercising judicial jurisdiction in respect of the damages resulting from Y.K.’s personal behaviours.

 6. As is seen, in the present case, the impugned acts, actions and behaviours of Y.K., director of the institution, and the staff, which were qualified as psychological harassment by the applicant and in respect of which she brought an action for compensation, were not considered as an administrative act, conduct and behaviour performed and displayed in relation with the performance of public service, but rather as a personal act and action. Accordingly, the applicant’s request for compensation was dismissed mainly on this ground by the administrative court. In this decision, the administrative court did not elaborate on, and make an assessment as to, the question whether the impugned acts and actions had any effect on the applicant’s corporeal and spiritual existence and if any, how and to which extent such effect occurred.

 7. Therefore, in the present application, in examining the question whether there was a violation of the right to protect and improve the corporeal and spiritual existence safeguarded by Article 17 of the Constitution, it was sufficient to take into account the conclusion reached by the dismissal decision issued by the administrative court and the grounds relied on therein. Accordingly, any reasoning should have not been provided by the Court’s majority by considering and assessing further issues which were not dealt with by the inferior court. In other words, in the present case, in finding a violation of the right to protect and improve the corporeal and spiritual existence safeguarded by Article 17 of the Constitution, the Court should have confined its conclusion to the finding that although the acts and actions inflicted on the applicant were in the nature of administrative acts, behaviours and conducts displayed for the performance of public service, the inferior court reached a conclusion to the contrary. We consider that the Court should have left, to the inferior courts, the assessment as to the extent and the way of the effect caused by the impugned acts and actions on the applicant’s corporeal and spiritual existence.

 8. Therefore, we agree merely with the finding of a violation, which should have been found on the above-specified ground.

CONCURRING OPINION OF JUSTICE HASAN TAHSİN GÖKCAN WITH RESPECT TO THE RIGHT TO PRIVATE LIFE AND ITS SCOPE

 1. In the present case, the Court found a violation of the applicant’s right to protect and improve her corporeal and spiritual existence safeguarded by Article 17 § 1 of the Constitution due to her being subjected to psychological harassment. I agree with the finding of a violation; however, I consider that the application should have been examined under the right to respect for private life.

 2. I have previously expressed my assessments in this respect in the concurring opinion attached to the judgment in the case no. 2014/13327, which was published in the Official Gazette no. 30376 and dated 20 March 2018. Moreover, another concurring opinion of a similar content, which was formulated in an application examined under the right to honour and dignity (no. 18891), was published in the Official Gazette no. 30445 and dated 8 June 2018. Therefore, as regards the extent and scope of Article 8 of the Convention and Articles 17 and 20 of the Constitution as well as their places within the basic rights system prescribed by the Constitution, I want to make a reference to the above-mentioned opinions. I will provide brief information about the reasons why I have agreed with the Court’s majority on a different ground.

 3. In the present case, the Court considered that the application indeed fell into the scope of the right to respect for private life, which corresponded to Article 17 § 1 of the Constitution (see §§ 75-76). In cases where the extent of the interference with the applicant is more severe, the examination would be undoubtedly made under Article 17 § 3 of the Constitution, which is a specific norm. However, the approach adopted by the Court’s majority that the present application be examined within the scope of Article 17 § 1 not only narrowed the scope of the right to respect for private life enshrined in Article 20 of the Constitution but also restrained the right to protect and develop the existence, a personal right of general and basic nature, which is laid down in Article 17 § 1 of the Constitution to a specific field of private life.

 4. The majority has thereby acknowledged that Article 17 §§ 1 and 2 of the Constitution constitutes a part of Article 20 thereof, that is to say, is a specific aspect -laid down in Article 17- of the right to respect for private life. However, Article 17 also embodies the right to life (paragraphs 1 and 4) and the prohibition of torture and other forms of ill-treatment (paragraph 3). As a matter of fact, Article 17 of the Constitution is formulated so as to correspond to the right to life and the prohibition of torture and ill-treatment, which are respectively laid down in Articles 2 and 3 of the Convention, and accordingly worded as the individuals’ corporeal and spiritual existence and integrity so as to establish the link between the said right and prohibition. In this sense, the right to protect and improve the corporeal and spiritual existence and the right to physical integrity undoubtedly have a place in the basic rights system of the Constitution. However, insofar as there are special arrangements as to the private life in the Constitution (Articles 20, 21, 22), to render the first two paragraphs of Article 17 specific to private life does not comply with the systematic interpretation of the Constitution.

 5. On the other hand, would not it mean to ignore the relation between the rights concerning the individuals’ corporeal and spiritual existence as well as integrity and the other rights to consider that the former rights are related to private life? Is there no relation between the right to protect and improve the corporeal and spiritual existence and the other rights e.g. the freedom of religion and conscience, the right to personal freedom and security, the freedom of expression, the freedom of science and the arts, the right to property and the right to legal remedies? Which fundamental rights and freedoms do not relate to the right to protect and improve the corporeal and spiritual existence? In the individual applications lodged on the basis of special forms of rights -where the subject matter mainly concerns the spiritual existence-, should the examination be made not in terms of the rights laid down in Articles 24-36 of the Constitution, but rather under Article 17 § 1 of the Constitution? In fact, the rationale behind the reasoning of the judgment indicates that the individual applications be mainly examined within the scope of Article 17. Nor is there any reasonable explanation as to why such a distinction is made in terms of the issues related to the right to respect for private life, while there is no distinction in the other rights.

 6. As also noted in the other concurring opinions, Article 17 §§ 1 and 2 of the Constitution is a general and ideal norm vis-à-vis the fundamental rights that are specifically enshrined. However, even in cases where the subject matter of the given individual application concerns the physical integrity as well as the corporeal and spiritual existence, the issue must be examined under the relevant fundamental right. The first two paragraphs of Article 17 of the Constitution may be regarded as an auxiliary norm in such examination. Any interpretation to the contrary narrows the scope of the fundamental rights specifically enshrined and is also contrary to the constitutional systematics. I therefore consider that the present application should have been examined, and a violation should have been found, under the right to respect for private life enshrined in Article 20 § 1 of the Constitution.