THE FACTS

 [8-35] The applicant, who is a transsexual person, requested to amend her sex in the civil register from female to male. After the two-year follow up by the Department of Mental Health and Disorders, it was reported that the applicant experienced a male gender identity and that the sex change was appropriate.

 The applicant, relying on this report, brought an action before the civil court seeking authorisation to undergo a gender reassignment surgery. The court dismissed the case on the ground that according to the medical board report, the applicant was not permanently sterilised and therefore the conditions for the sex change were not fulfilled. Upon appeal, the court’s decision was upheld. The applicant subsequently lodged an individual application with the Constitutional Court.

 In the meantime, upon referral by another civil court, the Constitutional Court annulled the law requiring sterilisation on the basis of which the applicant’s request had been dismissed.

 The applicant’s subsequent application to the civil court was accepted and the sex change was allowed.

 V. EXAMINATION AND GROUNDS

36. The Constitutional Court, at its session of 12 June 2018, examined the application and decided as follows:

A. The Applicant’s Allegations and the Ministry’s Observations

37. The applicant complained that the condition of being permanently devoid of reproductive capacity, which is laid down in Article 40 of the Turkish Civil Code no. 4721 and sought for the access to gender reassignment, forced the transgender persons to undergo sterilisation surgery. She maintained that although such a medical interference could be allowed only with the relevant person’s consent, the prescription of this process as a condition for gender reassignment rendered the interference involuntary; and that there were troubles faced during such kinds of medical surgeries due to the absence of a relevant legislation as to the sterilisation process pertaining to transgender persons. She alleged that the courts dismissed the requests for gender reassignment if transgender persons had the reproductive capacity; that the hospitals did not perform the sterilisation surgery without the court’s authorisation; and that the action brought by her for authorisation was dismissed only for not fulfilling the condition of sterilisation. She accordingly maintained that the right to protect and improve her corporeal and spiritual existence enshrined in Article 17 of the Constitution had been violated. She also noted that she was in a difficult situation as she could not change her identity card although she was going to marry.

38. The applicant requested the Court to keep her identity confidential in the documents accessible to the public.

39. In its observations, the Ministry stated that as the applicant brought Article 40 of Code no. 4721 before the Court through individual application, her application must be examined from the standpoint of the competence ratione materiae in consideration of the requirement that the legislative acts cannot be subject-matter of an individual application. Besides, as the applicant did not file a request for rectification of the judgment, the Ministry also stressed that an examination must be conducted with respect to the requirement of the exhaustion of legal remedies. Lastly, given the possibility that if the applicant filed a request with the local court anew, her request might be accepted in pursuance of the Court’s judgment no. E.2017/130 K.2017/165 and dated 29 November 2017, it was also underlined that the question whether the requirement of exhaustion of legal remedies had been satisfied be examined under the particular circumstances of the present case.

40. In her counter-statements against the Ministry’s observations, the applicant noted that her individual application was not related to the provision of law in question, but rather its implementation; and that therefore, her application must be declared admissible in terms of competence ratione materiae. She further maintained that the request for rectification of judgment was an optional remedy; and that as the Court’s judgment cited in the Ministry’s observations was rendered after she had lodged her application, she sustained non-pecuniary damage until that date, and her application must be examined on its merits and a violation must be found. On 8 January 2018, the applicant informed that the 1^st Chamber of the Şanlıurfa Civil Court allowed her to undergo a surgery, and she accordingly had a surgery to become devoid of reproductive capability; and that on 20 June 2018, she would undergo a gender reassignment surgery.

B. The Court’s Assessment

41. Article 17 §§ 1 and 2 of the Constitution, titled “Personal inviolability, corporeal and spiritual existence of the individual”, which would be relied on it the assessment of the applicant’s allegation, reads as follows:

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

 The corporeal integrity of the individual shall not be violated except under medical necessity and in cases prescribed by law and shall not be subjected to scientific or medical experiments without his/her consent.”

42. All legal interests involved within the realm of the private life are safeguarded under Article 8 of the Convention. However, it appears that these legal interests fall into the scope of various provisions of the Constitution. In this context, Article 17 § 1 of the Constitution sets out that everyone has the right to protect and improve his/her corporeal and spiritual existence. The right to protect and improve corporeal and spiritual existence corresponds to the right to respect for physical and mental integrity and right to self-fulfilment and to make decisions regarding himself, which are safeguarded under the right to respect for private life within the framework of Article 8 of the Convention. In addition, a special protection is afforded to the right to physical and mental integrity by virtue of Article 17 § 2 of the Constitution whereby it is provided for that the corporeal integrity of the individual shall not be violated except under medical necessity and in cases prescribed by law and shall not be subjected to scientific or medical experiments without his consent (see Halime Sare Aysal [Plenary], no. 2013/1789, 11 November 2015, § 47).

43. The notion of private life also encompasses the physical and spiritual self-determination, and the right in question protects individuals against the attacks of both the public authorities and private persons towards physical and spiritual integrity (see Halime Sare Aysal, § 48).

1. Admissibility

44. The applicant lodged an individual application upon the rejection of her request for gender reassignment and stated that she could not change her sex as the acceptance of such requests were conditioned upon being deprived of reproductive capacity under Article 40 of Code no. 4721, which was in breach of the right to protect and improve her corporeal and spiritual existence. In other words, the applicant did not request the annulment of the said provision of law by abstractly referring to its alleged unconstitutionality, but to the contrary filed an individual application, maintaining that the said provision gave rise to the violation of her fundamental right. Therefore, her complaint was found to fall within the competence of the Constitutional Court.

45. On the other hand, as regards the judgments rectification of which may be requested, it is for the applicants to assess whether this remedy is effective. If an applicant, as in the present case, does not consider effective the remedy of rectification of judgment, he may file an individual application within the prescribed period following the upholding decision issued at the end of the appeal process. Besides, even if the given applicant finds the opportunity to raise her complaint anew before the inferior courts due to the developments after lodging an individual application, the Court does not take these facts into consideration in its assessment as to the requirement of the exhaustion of legal remedies. In this sense, it must be accepted that the applicant exhausted the available legal remedies.

46. However, the legal facts occurring upon the lodging of individual application are of importance in making an assessment to determine whether the applicant still has victim status. In assessing the issue of victim status, the Court must consider whether the issues complained of by the applicant still exist and whether the probable effects of the impugned violation have been remedied (see Arman Mazman, no. 2013/1752, 26 June 2014, § 41).

47. In the present case, on 20 March 2014, the applicant applied to the relevant court with a request for gender reassignment for the first time, and her request was dismissed on 20 June 2014. Upon the finalisation of the decision, she filed an individual application. The applicant once again applied to the 1^st Chamber of the Şanlıurfa Civil Court on 12 December 2016 and sought authorisation for gender reassignment. In the meantime, on 29 November 2017, the Court found unconstitutional and accordingly annulled the requirement of being deprived of reproductive capacity, which was sought for gender re-assignment in Article 40 § 1 of Code no. 4721, the legal basis of the dismissal of the applicant’s first case before the inferior court. Upon this annulment, the applicant’s request was accepted, and she was granted authorisation. This decision became final on 7 February 2018.

48. Accordingly, it has been observed that the applicant undergone a gender re-assignment surgery within about 4 years, which undoubtedly has had direct effects on the applicant’s private life. Besides, the acceptance of the applicant’s second request by the court is irrespective of the alleged violation of the applicant’s fundamental rights and freedoms due to the first dismissal decision. Therefore, it has been concluded that the applicant continued to have victim status (see Y.Y. v. Turkey, §§ 53 and 54).

49. The application was declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

2. Merits

a. Existence of an Interference

50. The applicant complained of the dismissal of her request for undergoing a gender re-assignment surgery by the inferior courts for not being deprived of reproductive capacity. In this regard, it has been considered that as the applicant was forced to undergo a sterilisation surgery, which required her to waive the capacity to reproduce, during the gender re-assignment process started by her, the impugned first instance decision constituted an interference with her corporeal integrity. This dismissal decision constituted an interference also with gender identity and right to personal development.

b. Whether the Interference Constituted a Violation

51. Article 13 of the Constitution reads as follows:

 “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”

 52. The above-mentioned interference would constitute a violation of Article 17 of the Constitution unless it satisfies the requirements laid down in Article 13 of the Constitution. Therefore, it must be examined whether the interference in the present case was prescribed by law, pursued a legitimate aim, and was in compliance with the requirements of the democratic order of the society and the principle of proportionality, which are prescribed in Article 13 of the Constitution and applicable to the present case.

 i. Lawfulness

 53. In dismissing the applicant’s request for undergoing a gender re-assignment surgery, the inferior court relied on Article 40 of Code no. 4721. Her case was dismissed as the applicant did not satisfy the requirement of being permanently devoid of reproductive capacity as stated in the said provision. In this sense, it has been observed that the impugned interference had a legal basis.

 ii. Legitimate Aim

 54. It appears that considering the irreversible nature of, and risks entailed by, gender re-assignment surgeries, the law-maker makes the gender re-assignment process subject to certain rules and to review so as to prevent such surgeries from becoming an ordinary process by allowing them to be performed without any authorisation, to maintain public order as well as to ensure courts not to serve merely as an approving authority in the process of making a sex change in the civil register. In this sense, the law-maker has introduced the condition, for undergoing a gender re-assignment surgery, to obtain authorisation from the incumbent court in Article 40 § 1 of Code no. 40. It has been observed that the law-maker has also prescribed the requirement of being permanently devoid of reproductive capacity, along with the conditions laid down in the same paragraph, so as to obtain such an authorisation (see the Court’s judgment no. E.2017/130, K.2017/165, 29 November 2017, § 20).

 55. The said statutory arrangement pursues the aims not only of maintaining public order, but also of public health given the irreversible nature of, and risks posed to health by, gender re-assignment surgery. It has been accordingly concluded that the impugned interference and the statutory arrangement forming a basis for it pursued a legitimate aim within the meaning of Article 17 of the Constitution and Article 8 of the Convention.

 iii. Compliance with the Requirements of the Democratic Order of the Society and Proportionality

 (1) General Principles

 56. An interference having a legal basis and pursuing a legitimate aim will not constitute a violation only when it complies with the requirements laid down in Article 13 of the Constitution, i.e. being necessary in a democratic society, not infringing the very essence of the right and being proportionate.

 57. Contemporary democracies are the regimes whereby the fundamental rights and freedoms are ensured and safeguarded to the widest extent possible. The restrictions which infringe the very essence of fundamental rights and freedoms and which limit them to a great extent or render them completely dysfunctional cannot be considered to comply with the requirements of a democratic society. As the aim pursued by the State governed by rule of law is to ensure the exercise by individuals of fundamental rights and freedoms to the widest extent possible, the statutory arrangements are to be formulated with an approach where human being is ascribed with greatest importance. Therefore, not only the extent of the restrictions imposed but also of the conditions, reasons, method of such restrictions as well as available legal remedies prescribed against such restrictions must be assessed as a whole within the scope of the notion of “democratic society” (see Serap Tortuk, no. 2013/9660, 21 January 2015, § 46).

 58. The public authorities enjoy a margin of appreciation at two different stages in restricting a fundamental right. First, they may enjoy this margin of appreciation in choosing the aim of restriction, and second, in determining the necessity of the restriction, which has been imposed in order to attain the legitimate aim pursued. However, the margin of appreciation given to the public authorities is not unlimited, and arguments raised to justify the alleged interference must be suitable, necessary and proportionate (see Serap Tortuk, § 49).

 59. Such margin of appreciation has an extent specific to each case. The extent is reduced or expanded depending on the factors such as the nature of the right which is under protection or of the legal interest and its significance in respect of the person concerned (see Serap Tortuk, § 50).

 60. In cases where paramount rights or legal interests concerning the existence or identity of an individual are at stake, the margin of appreciation is narrower, and there must exist particularly serious reasons to justify such interferences (see Serap Tortuk, § 51).

 (2) Application of Principles to the Present Case

 61. The action brought by the applicant for being allowed to undergo a gender re-assignment surgery was dismissed for her not being deprived of reproductive capacity. The application concerns the applicant’s freedom to assign her gender identity within the scope of the right to self-determination and personal autonomy.

 62. In the Turkish legal system, the process of gender re-assignment consists of two stages. At the first stage, the given person needs to obtain authorisation from the incumbent court for gender re-assignment, and at the second stage, upon the gender re-assignment surgery performed in line with the court’s authorisation, sex marker in the civil register documents is changed, and thereby this change is legally recognised. In Article 40 § 1 of Code no. 4721, the conditions sought for allowing a gender re-assignment by courts are laid down. Accordingly, in order for the court to grant authorisation for gender re-assignment, the person wishing to undergo a gender re-assignment surgery must personally apply to the court, be over 18 years old, not be married, be a transsexual person, undergo such process as required for her mental health, as well as must be permanently devoid of reproductive capacity. It is also required that the last three conditions must be certified by a medical board report to be issued by a training and research hospital.

 63. Transsexual persons experience a gender identity that is inconsistent with their assigned sex. They may be either innately deprived of, or have, reproductive capacity. Transsexual persons who are innately deprived of this capacity or who subsequently lose it permanently may undergo gender re-assignment surgery by obtaining authorisation to that end from the incumbent court if the other conditions specified in Article 40 § 1 of the Law are also satisfied. On the other hand, the transsexual persons having reproductive capacity may be allowed by the court to undergo gender reassignment surgery if they are permanently deprived of reproductive capacity, along with the fulfilment of other conditions, which requires them to be subjected to a medical intervention (see the Court’s judgment no. E.2017/130, K.2017/165, 29 November 2017, §§ 22 and 23).

 64. In this case, the condition of being deprived of reproductive capacity, in other words, the condition of infertility, is set as a condition for undergoing the gender re-assignment surgery to change sex. Those who are innately fertile may voluntarily waive this capacity by undergoing a sterilisation process. Sterilisation surgeries, a medical intervention carried out so as to remove a man’s or woman’s ability to make a baby (reproductive capacity), may be performed only with the consent of the given adult. The applicant asserted that as the sterilisation process was made specific to the sex of either female or male, the transsexual persons are unable to undergo this process due to the legal gap in this sense. However, the applicant’s complaint is mainly related not to her inability to undergo sterilisation surgery, but rather to the violation of her right to respect for corporeal existence for having had to undergo such a medical intervention. Therefore, the question whether these processes were accessible for transsexual persons was not dealt with in this individual application examination of which was confined to the statutory provision whereby transsexual persons are to undergo a medical intervention prior to the gender re-assignment process, as well as to the necessity of such process.

 65. The interference caused, by the court decision and the statutory provision forming a basis for this decision, in order to achieve the above-cited legitimate aims could be considered necessary in a democratic society only if it has met a pressing social need. In this regard, the necessity of the impugned interference must be substantiated with relevant and sufficient reasons.

 66. In the present case, the applicant has psychologically experienced since her puberty ages as male and undergone hormone therapy to that end. The applicant behaving as a male in her social circle is called also with a male name. The applicant, who was about to marry, could not change her identity card for failing to obtain the necessary authorisation for the gender re-assignment surgery. It is also established by the medical report issued by a board of experts that despite of having female genital organs, the applicant has indeed experienced the male gender identity; that and she is a transsexual person. It has been accordingly concluded that she should change her assigned gender identity to male. Therefore, it has been observed that the applicant felt herself to belong to the opposite sex and led her life in this way for years; and that she was determined on this matter. Therefore, it could not be established how the statutory arrangement -intended for the protection of health given the irrevocable nature of, and the risks involved in, gender re-assignment surgeries- as well as of the impugned practice are of importance for those who are determined to change their sex.

 67. On the other hand, it is also stressed in the medical report that following the gender re-assignment surgery, the applicant would be deprived of the reproductive capacity of both sexes. Nevertheless, the authorisation sought by the applicant for undergoing a gender re-assignment surgery was not granted by the incumbent court for still having reproductive capacity.

 68. It is undoubted that once a transsexual person having reproductive capacity undergoes a gender re-assignment surgery in accordance with applicable medical methods, he/she will become permanently deprived of reproductive capacity as a natural consequence of this surgery (see the Court’s judgment no. E.2017/130, K.2017/165, 29 November 2017, § 24).

 69. The condition of being permanently deprived of reproductive capacity, which is laid down in Article 40 § 1 of Code no. 4721, apparently forces transsexual persons to undergo a medical intervention prior to the gender re-assignment surgery. Although it was undoubted that transsexual persons with reproductive capacity would become permanently deprived of this capacity following gender re-assignment surgery, it was indicated neither in the inferior courts’ reasoning nor in the statutory provision on which these courts relied why such a medical intervention -whereby these persons would waive their reproductive capacity before undergoing a gender re-assignment surgery- was necessary.

 70. On 29 October 2017, a date following the applicant’s individual application, the Court found the phrase “being permanently deprived of reproductive capacity” in Article 40 § 1 of Code no. 4721 in breach of Articles 13, 17 and 20 of the Constitution and therefore annulled it for imposing a disproportionate restriction on the grounds that it constituted an interference to which the person concerned should not have been subjected physically and mentally, and that no reasonable balance could be struck between this restriction imposed on the corporeal and spiritual existence as well as private life of the relevant person and the aim sought to be pursued. It has been accordingly concluded that the interference with the applicant’s right to protect her corporeal and spiritual existence could not be considered necessary in a democratic society.

 71. For these reasons, the Court found a violation of the right to protect and improve the corporeal and spiritual existence safeguarded by Article 17 of the Constitution.

 3. Application of Article 50 of Code no. 6216

 72. Article 50 §§ 1 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.”

 73. The applicant requested a retrial and claimed 10,000 Turkish liras (“TRY”) for the non-pecuniary damage suffered by her.

 74. It has been concluded that the applicant’s right to protect and improve her corporeal and spiritual existence was violated.

 75. The fresh proceedings instituted as regard the applicant’s complaint in the light of the developments taking place subsequent to her individual application were concluded in her favour. Therefore, there is no legal interest in conducting a retrial so as to eliminate the consequences of the violation.

 76. Regard being had to the fresh court decision issued in respect of the applicant, which was contrary to the court decision she complained of, after she had lodged an individual application, it has been concluded that merely the finding of a violation of the relevant fundamental rights and freedoms would constitute a sufficient redress. Therefore, the applicant’s claim for non-pecuniary compensation was dismissed.

 77. The total court expense of TRY 2,206.90 including the court fee of TRY 226.90 and the counsel fee of TRY 1,980, which is calculated over the documents in the case file, must be reimbursed to the applicant.

 VI. JUDGMENT

 For these reasons, the Constitutional Court UNANIMOUSLY held on 12 June 2018 that

 A. The applicant’s request for keeping her identity confidential in the documents accessible to the public be ACCEPTED given the distress experienced by her as a transsexual;

 B. The alleged violation of the right to protect and improve the corporeal and spiritual existence be DECLARED ADMISSIBLE;

 C. The right to protect and improve the corporeal and spiritual existence safeguarded by Article 17 of the Constitution be VIOLATED;

 D. The applicant’s claim for non-pecuniary compensation be DISMISSED;

 E. The total expense of TRY 2.206.90 including the court fee of TRY 226.90 and the counsel fee of TRY 1,980 be REIMBURSED to the applicant;

 F. 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;

 G. A copy of the judgment be SENT to the 3^rd Chamber of the Şanlıurfa Civil Court (file no. E.2014/264, K.2014/484);

 H. A copy of the judgment be SENT to the Ministry of Justice.