Press Release Nr: Individual Application 15/15

(Click for full text of judgment)

The First Section of the Constitutional Court in its meeting on 9/9/2015 held in its judgment on individual application of İlker Başer and others (App. No: 2013/1943) that the procedural aspect of the applicant’s right to life secured under Article 17 of the Constitution was violated due to unreasonable length of trial proceedings in the action brought by the applicant claiming that his right to life and the right to protect the individual’s material and spiritual entity were violated as his disorder could not be diagnosed during pregnancy.


The medical controls during Meliha Başer’s pregnancy were conducted by a healthcare facility in Ankara and she gave birth to İlker Başer on 5/11/2002. Upon observing that the baby displayed abnormal behaviors during the postpartum period, it was diagnosed that the baby was born with a birth defect called “agenesis of the corpus callosum”.

The action brought by the applicants for pecuniary and non-pecuniary damages against the Ministry of Health and the physician before the Civil Court of First Instance was dismissed. Thereupon, the applicants brought a full remedy action against the Ministry of Health and the Administrative Court awarded the applicants pecuniary damage of TRY 360,000 and non-pecuniary damage of TRY 25,000 on the grounds that tests and treatments performed in the hospital were not carried out with due diligence and care and that there was deficiency in delivery of the medical service.


The applicants stated that the pregnancy could have been terminated if the physician had made the right diagnosis when the fact that the birth defect, “agenesis of the corpus callosum”, could continue developing until 20th week of pregnancy and dimension of the defect were taken into consideration; however, as this diagnosis was not made due to the physician’s negligence, the baby was born with a birth defect and they alleged that the right to life and the right to protect the individual’s material and spiritual entity were violated. They also alleged that their right to a fair trial was violated by stating that the decision rendered in respect of the actions for pecuniary and non-pecuniary damages they brought thereupon includes contradictions; that the judgment of the Court of Cassation is unreasoned; that their request for holding a hearing was not taken into account; and that the case was concluded within a period of more than 7 years.

The Court's Assessment

In the Constitutional Court’s opinion, in pursuance of the right to life enshrined in Article 17 of the Constitution, the State has a negative obligation not to intentionally and unlawfully end the life of any individual within its jurisdiction as well as a positive obligation to protect the right to life of all individuals within its jurisdiction against the risks likely to result from acts of public officials, other individuals or the individual himself / herself. These obligations may be, under certain circumstances that must be separately considered for each case, attributed to the state even if any death has not occurred in the relevant case. In this respect, where the state has not taken measures likely to prevent an individual’s life from undergoing a direct risk or from being exposed to third parties’ acts which could potentially cause his death or to any fatal disease, the obligations to protect the individual’s life and, in conjunction thereof, to conduct an effective investigation into the acts and negligence alleged to have led to this incident may arise in respect of the state even if there is no loss of life.

The Constitutional Court notes in principal, with regards to the allegations of violation caused by medical negligence, that the relevant party could no longer claim to have victim status in respect of the constitution if the administrative authorities and first instance courts find a violation by means of taking any action or decision in favour of the applicants and this violation is indemnified in an appropriate and sufficient manner by the decision taken. On condition that these two requirements are fulfilled, there would be no need for examination by the Constitutional Court due to the subsidiary nature of the individual application mechanism. The Court concluded that, in the present case, the applicants had at their disposal an administrative remedy which finds a violation in respect of the complaints concerning the obligation to protect life and awards a reasonable amount of compensation paying regard to the principles it has determined. Thereby, the applicants’ victim status has been removed.

The applicants’ complaint that their trial proceedings were not finalized within a reasonable time period, which they allege within the scope of right to a fair trial, was reviewed by the Constitutional Court under the scope of the obligation to conduct an effective investigation as required by Article 17 of the Constitution. The Constitutional Court noted, in respect of the alleged violations caused by medical negligence, that being aware of the negligent acts performed at the health institutions of great importance as it enables these institutions and the medical personnel to eliminate their potential deficits and to prevent recurrence of similar negligent acts. Therefore, conducting speedy investigations into and trials concerning such kinds of incidents is extremely important for all individuals receiving medical services.

The Constitutional Court therefore held that the period of proceedings, as a whole, which lasted for approximately ten years before civil and administrative judiciary was excessively long and during the proceedings, speedy and sufficient examinations were not carried out as required by Article 17 of the Constitution by taking to account the applicants’ interest in finalization of the proceedings before civil and administrative courts in a speedy and efficient manner, the applicants’ having no substantial role in the delay taking place and not very complex nature of the action brought.

Taking the established case-law of the Court into consideration, the rest of the complaints maintained by the applicants within the scope of right to a fair trial were found to be manifestly ill-founded.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2015
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