REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
SECOND SECTION
JUDGMENT
K.Ş.
(Application no. 2016/14613)
17 July 2019
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).
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.
10/9/2019
Individual Application 84/19
Press Release concerning the Judgment Finding a Violation of the Right to Protect the Applicant’s Corporeal and Spiritual Existence due to Dismissal of Her Request for Change of Workplace
On 17 July 2019, the Second Section of the Constitutional Court found a violation of the right to protect individual’s corporeal and spiritual existence safeguarded by Article 17 of the Constitution in the individual application lodged by K.Ş. (no. 2016/14613).
The Facts
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 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 before it.
The Applicant’s Allegations
The applicant maintained that the right to protect her corporeal and spiritual existence had been violated due to the dismissal of the request for the change of her workplace although her life was endangered.
The Court’s Assessment
The right to protect an individual’s corporeal and spiritual existence, which is enshrined in the Constitution, imposes both positive and negative obligations on the State. These positive obligations necessitate taking measures for ensuring respect for rights.
In the present case, the Court made an examination as to the positive obligations incumbent on the public authorities within the scope of the right to protect the applicant’s corporeal and spiritual existence as her request for change of workplace –one of the protection measures laid down in Law no. 6284– had been dismissed.
With a view to adopting an effective and swift procedure for the protection of family and prevention of violence against women as well as to taking any person exposed to violence or facing such a risk under protection without any delay, the legislator has introduced and enacted the provisions of Law no. 6284.
As set out in the Law, the judge may order a change of the victim’s workplace as a preventive order, and such an interim measure indicated by the judge shall be applied by the competent authority or person by virtue of the relevant legislation provisions to which the victim is subject.
It is clear that immediately after the applicant’s filing a complaint that she had been exposed to violence by her husband with whom she was on the verge of divorce, the incumbent family court ordered a protection measure; that these measures were prolonged by the orders issued on various dates; and that they were also in effect when the applicant requested change of her workplace as a preventive measure. This is because, it appears that by virtue of the decision –whereby the family court dismissed the applicant’s impugned request–, prolongation of the interim measure previously indicated in her favour was ordered.
Moreover, the applicant demonstrated concrete indications of the existence of a real risk to her life safety.
On the other hand, the inferior court failed to provide any concrete explanation, assessment and ground as to the alleged serious risks to the applicant’s life safety, despite the ex-husband’s attitude towards her. It has been accordingly concluded that the grounds relied on by the court were neither sufficient nor relevant within the context of the right to protect the applicant’s corporeal and spiritual existence.
It has been observed that the Ministry and the family court failed to act in accordance with their positive obligations to take protective measures for the applicant who was a victim of violence, despite the fact that she had brought her life-safety concerns based on concrete grounds primarily before her institution and subsequently before the incumbent judicial authorities. It cannot be therefore said that the positive obligations incumbent on the State under the right to protect the individual’s corporeal and spiritual existence had been duly fulfilled.
Consequently, the Court has found a violation of the applicant’s right to protect her corporeal and spiritual existence safeguarded by Article 17 of the Constitution.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.
