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On 17 July 2019, the Second
Section of the Constitutional Court found a violation of the right to protect
one’s corporeal and spiritual existence safeguarded by Article 17 of the
Constitution in the individual application lodged by K.Ş. (no.
2016/14613).
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THE FACTS
[8-24] The applicant, a form
teacher serving at the same public institution with her ex-husband, was battered
and stabbed by the latter. Accordingly, several sets of criminal proceedings
were brought against the ex-husband.
The incumbent family court
granted a protection order sought by the applicant and indicated an interim
measure, pursuant to the Law no. 6284 on the Protection of Family and
Prevention of Violence against Women. The interim measures indicated in favour
of the applicant were prolonged by the orders issued by the family courts on
various dates.
The applicant also filed a
request with the relevant Provincial Directorate of National Education for
change of her workplace due to her life-safety concerns. The Ministry dismissed
her request as no decision ordering an interim measure for the change of her
workplace had been submitted to it.
She then filed an application
with the family court, seeking an order for the change of her workplace.
However, the family court, noting that the request was of an administrative
nature, rejected it. The applicant’s challenge against the family court’s decision
was also dismissed.
The applicant filed an
individual application with the Constitutional Court on 16 August 2016.
V. EXAMINATION AND GROUNDS
25. The Constitutional
Court, at its session of 17 July 2019, examined the application and decided as
follows.
A. The Applicant's
Allegations and the Ministry's Observations
26. Having expressed that
her life was at risk, the applicant alleged that in spite of many acts of
violence perpetrated by the applicant's ex-husband including injury by knife
and the explicit provisions of Law no. 6284, the refusal of her request for a
change of workplace on the ground that it was of an "administrative
nature" had been in breach of the right to life and the right to protect
the corporeal and spiritual existence. The applicant alleged that the principle
of equality and the right to a fair trial were violated on the ground that even
though the 7th Chamber of the İzmir Family Court had granted another
person's request for a change of workplace, her request was rejected.
27. In the Ministry's
opinion, it was stated that the legal system set up under Law No. 6284 was
sufficient and that it must be assessed whether reasonable measures were taken
to the extent required by the particular circumstances of the case in the
present application.
B. The Court's Assessment
28. Article 17 § 1 of the
Constitution, titled "Personal inviolability, corporeal and spiritual
existence of the individual" to be taken as a basis in the assessment of
the alleged violations, is as follows:
“Everyone has the right to life and the right to protect
and improve his/her corporeal and spiritual existence.”
29. The relevant part of
Article 5 of the Constitution reads as follows:
"The fundamental aims and duties of the State are …
to strive for the removal of political, economic, and social obstacles which
restrict the fundamental rights and freedoms of the individual in a manner
incompatible with the principles of justice and of the social state governed by
rule of law; and to provide the conditions required for the development of the
individual's material and spiritual existence."
30. 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).
31. Article 17 § 1 of the
Constitution sets forth that everyone has the right to protect and improve her
corporeal and spiritual existence. This provision corresponds to the right to
protection of physical and mental integrity guaranteed under Article 8 of the
European Convention for Human Rights within the scope of respect for private
life.
32. The applicant's
allegations concern the fact that she was not protected against threats to her
bodily integrity. Although the applicant alleged that the principle of equality
had also been violated, it has been observed that the applicant based the
alleged violation exclusively on the outcome of the decision rendered by the
family court. Having regard to the previous decisions of the Constitutional
Court on similar issues, all the complaints of the applicant were examined
within the scope of the right to protect the corporeal and spiritual existence
enshrined inArticle 17 § 1 of the Constitution (see Eylem Çetin Demir,
no. 2014/2302, 9 November 2017, § 28; A.Z.Ö., no. 2014/546, 19 December
2017, § 60; and Ö.T., no. 2015/16029, 19 February 2019, § 25).
1. Admissibility
33. The alleged violation of
the right to protect the corporeal and spiritual existence must be declared
admissible for not being manifestly ill-founded and there being no other
grounds for its inadmissibility.
2. Merits
a. General Principles
34. The right to life and
the right to protect and improve one’s corporeal and spiritual existence are
safeguarded under Article 17 of the Constitution. Taken in conjunction with
Article 5 of the Constitution, the right to protect the corporeal and spiritual
existence imposes positive and negative obligations on the State (see Serpil
Kerimoğlu and Others, no. 2012/752, 17 September 2013, §§ 50-51).
35. The positive obligations
in question require that measures be taken to ensure respect for the rights
even in the field of interpersonal relations (see Marcus Frank Cerny
[Plenary], no. 2013/5126, 2 July 2015, §§ 36 and 40).
36. The relevant positive
obligation of the State includes the liability to set up effective mechanisms,
to introduce legal procedures providing the necessary procedural safeguards
within this framework, and thereby to ensure that the judicial and administrative
authorities render effective and equitable decisions with regard to disputes
between the individuals and the administration or private persons (see Semra
Özel Üner no. 2014/12009, 26 October 2016, § 36; and Ö.T., § 29).
b. Application of
Principles to the Case
37. In the present case, an
examination must be carried out on the positive obligations of the public
authorities within the context of the right to protect the corporeal and
spiritual existence due to the refusal of the applicant's request for the
change of her workplace, which is one of the protective measures set forth in
Law no. 6284.
38. In this regard, within
the particular circumstances of the present case, it must be examined in the
first place whether the State fulfilled its positive obligation to set up an
effective legal system in respect to the above-mentioned fundamental rights.
39. For the purposes of
adopting an effective and immediate method to protect the family and to prevent
violence against women, and protecting without delay those subjected to
violence or those at the risk of being subjected to violence, the legislator
enacted and put into effect the provisions of Law No. 6284 in accordance with
the standards set forth by the international conventions to which Turkey is a party.
It has been observed that under Law no. 6284, the procedures, principles, and
sanctions with respect to the measures to be implemented in order to protect
women, children and family members who have been subjected to, or are at the
risk of, violence and to prevent violence against these persons are laid down.
Accordingly, it has been held that the necessary legal infrastructure has been
established within the framework of the State's obligation to protect; and that
the legal system set up to protect those who are exposed to violence or who are
at the risk of violence is not inadequate (in the same vein, see Semra Özel
Üner, § 39; A.Z.Ö., § 76; and Ö.T., § 32).
40. The issue to be examined
in the second place is whether reasonable practical measures were taken within
the scope of the current administrative and legal legislation to the extent
required by the present case.
41. In Article 4 § (1) of
Law no. 6284, it is set forth that the judge may order the change of the
victim's workplace within the scope of protective measures. Article 10 § (7) of
Law no. 6284 provides that an interim measure on change of workplace delivered
by a judge shall be implemented by the competent authority or person in
accordance with the relevant legislation provisions to which the person
concerned is subject. In accordance with the Implementation Regulation, an
interim measure ordered by a judge within this scope is notified to the
workplace of the person under protection so that it is implemented by way of
taking into account the most favourable conditions for this person. The
decision is implemented by the competent institution or person. If an interim
measure on the change of workplace is lifted, the relevant decision is notified
to the workplace. In such a case, in order to protect the victim of violence,
when necessary, the judge may decide on the change of the workplace within or
outside the province.
42. In the present case, it
is clear that after the applicant filed an application with the relevant
authority, stating that she was subjected to violence by her husband with whom
she was in the process of divorce, the family court ordered protective
measures; that the duration of these measures was extended by decisions issued
on various dates; and that the said protective measures were also in effect at
the time when the applicant requested a change of her workplace as a measure.
As a matter of fact, the 7th Chamber of the İzmir Family Court,
which rejected the applicant's request to change the workplace as a measure, ruled
on the continuation of the protective measures previously ordered.
43. On the other hand, the
applicant demonstrated, on concrete grounds, her allegations that her life was
in danger, stating that her ex-husband also used the route she used every day
to go to the school where she worked; that the bank branch from which she
withdrew her salary, the district education directorate and the places that she
needed to go in order to continue her life were very close to the workplace of
her husband; and that therefore she was constantly in fear. It has been
understood that the applicant first submitted the request for her workplace
change to the administration where she worked; that the administration rejected
this request as there was no protective measure order; and that following the
rejection, the applicant was injured by being stabbed by her husband.
44. In the present case, in
spite of the explicit provisions stipulating that the victim's workplace may be
changed as a measure, which are laid down in Article 4 § (1) and Article 10 §
(7) of Law no. 6284as well as of the relevant leading decisions of family
courts, which were presented by the applicant, it has been understood that no
concrete explanation, assessment or justification was provided as to the serious
life risks against the applicant given the behaviours of her divorced husband
towards her; and that the applicant's request was rejected by the 7th
Chamber of the İzmir Family Court on the ground that it was of an
"administrative nature". Accordingly, it has been held that the
grounds provided in the decision were not relevant and adequate in the context
of the applicant's right to protect her corporeal and spiritual existence. It
has been understood that even though the applicant first informed the institution
where she worked that her life was at risk and then brought this complaint
before the judicial authorities on concrete grounds, the Ministry of National
Education and the 7th Chamber of the İzmir Family Court failed to
act in accordance with their positive obligations to take measures in order to
protect the applicant who was a victim of violence. In this case, it cannot be
concluded that the positive obligations of the State within the meaning of the
right to protect the corporeal and spiritual existence were duly fulfilled.
45. Consequently, the Court
has found a violation of the right to protect the applicant’s corporeal and
spiritual existence safeguarded by Article 17 of the Constitution.
3. Application of Article
50 of Code no. 6216
46. Article 50 §§ 1 and 2 of
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 judgment finding a violation has been rendered, what is required for
the resolution of the violation and the consequences thereof shall be ruled on...
(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."
47. In the judgment of Mehmet
Doğan (see [Plenary], no. 2014/8875, 7 June 2018), the Constitutional Court
has set forth the general principles as to the determination of how to
eliminate the violation in the event of finding a violation.
48. In brief, it was
emphasized in the judgment of Mehmet Doğan that the source of the
violation must first be determined in order to determine the appropriate way of
redress. Accordingly, in cases where a court decision leads to a violation, as
a rule, it is decided that a copy of the judgment be sent to the relevant court
for retrial in order to eliminate the violation and its consequences in
accordance with Article 50 § (2) of Code no. 6216 and Article 79 (1) (a) of the
Internal Rules of Court of the Constitutional Court (see Mehmet Doğan,
§§ 57, 58).
49. In the judgment of Mehmet
Doğan, the Constitutional Court has provided explanations regarding the
obligations of the inferior courts tasked with retrial and what should be done
by inferior courts to eliminate the consequences of the violation. In cases
where the Court orders a retrial in order to eliminate the violation found,
inferior courts do not enjoy a discretionary power in terms of the acceptance
of the existence of the grounds for retrial and the annulment of the previous
decision, unlike the re-opening of the proceedings regulated under the relevant
procedural laws. As a matter of fact, in cases where a violation is found by
the Court, it is not the inferior courts but the Constitutional Court which
finds the violation enjoys the discretion regarding the necessity of retrial.
The inferior court is obliged to take the necessary actions to eliminate the
consequences of the violation in accordance with the Court’s judgment finding a
violation delivered (see Mehmet Doğan, § 59).
50. In this context, the
inferior court must first annul the decision which is found to be in breach of
a fundamental right or freedom or has failed to eliminate the violation of a
fundamental right or freedom committed by the administrative authorities. Subsequent
to the annulment of the decision, the inferior court must take the necessary
actions in order to eliminate the consequences of the violation found in the
judgment of the Constitutional Court. Within this framework, in the event that
the violation stems from a procedural act performed during the trial or from a
procedural deficiency, the procedural act in question has to be performed again
(or for the first time if it has not been performed yet) in such a way that
eliminates the violation of the right in question. On the other hand, in cases
where the Constitutional Court determines that the violation is caused by the
administrative act or action itself or the outcome of the decision of the
inferior court (rather than the procedural actions taken or not taken by the
inferior court), the inferior court must eliminate the consequences of the
violation by directly rendering a decision to the contrary, on the basis of the
case file as far as possible without taking any procedural action (see Mehmet
Doğan, § 60).
51. The applicant requested
the Court to find a violation and to award her 10,000 Turkish liras (“TRY”) in
compensation for non-pecuniary damages.
52. In the present
application, it has been concluded that the right to protect the applicant’s
corporeal and spiritual existence was violated on account of the failure of the
inferior courts to provide relevant and adequate grounds. Thus, it has been
held that the violation stemmed from court decisions. Moreover, it has been
held that the violation also stemmed from the action of the administration on
account of the fact that the applicant's request for the change of her
workplace, whereby she advanced on concrete grounds that her life was at risk,
was rejected by the Ministry of National Education.
53. As there is a legal
interest in conducting a retrial in order to eliminate the consequences of the
violation of the right to protect the applicant's corporeal and spiritual
existence, a copy of the judgment must be remitted to the 7th
Chamber of the İzmir Family Court for retrial. Moreover, a copy of the judgment
must be sent to the Ministry of National Education.
54. Furthermore, within the
context of the present case, ordering a retrial does not thoroughly compensate
for all the damages sustained by the applicant during the proceedings that led
to the violation. Hence, in order to eliminate the violation with all of its
consequences within the framework of the restitution rule, the applicant must
be paid a net amount of TRY 10,000 in respect of the non-pecuniary damages that
she sustained due to the violation of the said right which cannot be adequately
compensated by merely the finding of a violation and retrial.
55. The total court expense
of TRY 2,714.50, including the court fee of TRY 239.50 and the counsel fee of
TRY 2,475 calculated on the basis of the case file, must be paid to the
applicant.
VI. JUDGMENT
For these reasons, the
Constitutional Court UNANIMOUSLY held on 17 July 2019 that
A. The applicant's request
for confidentiality as to her identity in the documents accessible to the
public be ACCEPTED;
B. The alleged violation of
the right to protect the applicant’s corporeal and spiritual existence be
DECLARED ADMISSIBLE;
C. The right to protect her
corporeal and spiritual existence safeguarded by Article 17 of the Constitution
WAS VIOLATED;
D. A copy of the judgment be
SENT to the 7th Chamber of the İzmir Family Court for retrial in
order to eliminate the consequences of the right to protect the corporeal and
spiritual existence (as regards the decision no. E.2016/135, K.2016/134 and
dated 31 May 2016);
E. A net amount of TRY
10,000 be PAID to the applicant in compensation for non-pecuniary damages;
F. The payment be made
within four months as from the date when the applicant applies 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
the four-month time limit to the payment date;
G. The total court expense
of TRY 2,714.50 including the court fee of TRY 239.50 and the counsel fee of
TRY 2,475 be REIMBURSED to the applicant;
H. A copy of the judgment be
SENT to the Ministry of National Education;
I. A copy of the judgment be
SENT to the Ministry of Justice.
