Press Release No: Individual Application 11/16
22.03.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF ELİF MUTLU AND FERHAT MUTLU ON THE OBLIGATION TO CONDUCT EFFECTIVE INVESTIGATION AND THE RIGHT TO ACCESS TO COURT WITHIN THE SCOPE OF THE RIGHT TO LIFE

On 7/1/2016, the Second Section of the Constitutional Court held with regard to the individual application lodged by Elif Mutlu and Ferhat Mutlu (application no. 2013/3711) that there was a breach of the obligation to conduct an effective investigation guaranteed in Article 17 of the Constitution and the right to access to court guaranteed in Article 36 of the Constitution.

The Facts

C.M. who is the daughter of the applicant, Elif Mutlu, and the daughter of the other applicant, Ferhat Mutlu, was taken under protection on account of the death of her father and poor economic conditions of her mother, Elif Mutlu, and accommodated in an institution affiliated to the Social Services, the Directorate General of the Society for Protection of Children of the Prime Ministry (“the Society for Protection of Children). C.M. started to stay in different institutions of the Society for Protection of Children as from the date she was taken under protection and committed suicide by means of jumping off a balcony of the Bolu İzzet Baysal Orphanage for Girls, where she was lastly staying, on 4/4/1997. The applicants filed an action for compensation against the Society for Protection of Children before the 24th Chamber of the Ankara Civil Court of General Jurisdiction (“the Civil Court”) with the allegation that there had been service fault on the part of the administration in the death taking place. The Civil Court dismissed the action on the ground that the dispute was under the jurisdiction of the administrative procedure. The Sakarya Administrative Court decided to dismiss the action as there was no service fault on the part of the administration. Upon the appeal of the applicants, this decision was quashed by the Supreme Administrative Court. The 1st Chamber of the Sakarya Administrative Court (“the Court”) complied with the quashing judgment, continued the proceedings and requested an expert to draw up a report concerning the pecuniary damage claimed by the applicant Elif Mutlu. The expert concluded that the conditions of loss of support did not exist as the above-cited applicant was married and had three sons who could provide support for her. By its interlocutory decision of 28/9/2007, the court acknowledged that the applicant was in need of the support of her children who had died and noted that according to the additional expert report concerning the compensation for loss of support, the applicant had incurred a loss of support at the amount of 11,139.20 TRY due to the death taking place. Upon the additional expert report, the applicant Elif Mutlu stated that she had increased her claim to 11,139.20 TRY and requested to be awarded with the compensation at the above-mentioned amount plus any legal interest to be charged. The court awarded a total of 1,500.00 TRY - 1,000.00 TRY as pecuniary damage and 500.00 TRY as non-pecuniary damage - in favour of one of the applicants, Elif Mutlu,  and 500.00 TRY as non-pecuniary damage in favour of the other applicant, Ferhat Mutlu. This decision was upheld after being appealed by the applicants and the defendant administration.

The Applicants’ Allegations

The applicants maintained that their next-of-kin had been led to suicide on account of the wrong attitude of the officers of the dormitory where she had been staying in 1997; that the action for compensation concerning this incident had been concluded by a court which had not been competent and impartial and within an unreasonable time; that they had been subject to loss of right on the basis of certain formal rules which had not been included in the laws; and that they had been awarded with unfair compensations in spite of the expert report. They accordingly alleged that their rights enshrined in Articles 9, 36 and 58 of the Constitution had been violated.

 The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of the application:

With respect to the allegations that the action had not been effectively handled within the scope of Article 17 of the Constitution

It has been observed that the action heard before the judicial court concerning the compensation claims of the applicants was dismissed at the end of three years, without making an examination as to the merits, for being filed before the wrong authority; that there was a delay, which was partially caused by the applicants, in determination of the authority having jurisdiction over the action filed against the administration; that therefore, the action which should have been dealt with by an administrative court could only be started over three years after the date of the first action; and that there was responsibility on the part of the public authorities in conclusion of the first instance trial before the administrative court and the judicial reviews of the decisions rendered at the end of the proceedings before the administrative court in a total of 12 years, a period which cannot be deemed to be reasonable.

In the light to these findings, it is not possible to note that the procedure both before the judicial court and the administrative court was concluded with due diligence and speed. Having regard to the facts that the applicants had an interest in rapid and effective handling of their actions before the civil and administrative courts and did not have a substantial impact on the delay and to the limited number of the parties of the action in question and the non-complex nature of the impugned incident, the Constitutional Court has reached the conclusion that it is not possible to hold that the proceeding which could be concluded within over 15 years before the judicial and administrative procedure was reasonable; and that there was a lack of speedy examination  as required in Article 17 of the Constitution.

The Constitutional Court has consequently held that there was a breach of the obligation to conduct an effective investigation within the scope of the right to life guaranteed in Article 17 of the Constitution.

Alleged violation of the right to court within the scope of Article 36 of the Constitution

The applicant claimed compensation at the amount of 1,000.00 TRY due to the loss of support exposed to by her without prejudice to surplus rights.  In the expert report received within the scope of the proceedings, it was considered that the applicant be awarded 11,139.20 TRY as pecuniary damage. Thereupon, becoming aware that the amount of compensation she had entitled was more than the one she had requested, the applicant informed the Court that she wished to amend the amount of compensation requested by her as 11,139.20 TRY as specified in the expert report. The court dismissed the applicant’s request for amendment as there was prohibition of changing and extending the allegation and defence submissions in the administrative procedure and rendered its decision by relying on the amount specified in the petition for filing an action for compensation. It is obvious that the applicant’s being deprived of a certain amount of compensation as she could not make an increase in her request has constituted interference with her right to access to court. Article 16 § 4 of the Law no. 2577 constitutes the basis for this interference.

The essence of the right means the substantive core of the fundamental right and freedom at stake in case of being infringed and from this aspect provides an untouchable minimum guarantee for the individual in respect of each fundamental right. Within this framework, it must be accepted that restrictions which significantly hamper the enjoyment of the right, render the right unusable or remove the right in question would infringe upon the very essence of the right.   

Aim of the principle of proportionality is to prevent unnecessary restriction of the fundamental rights and freedoms. Pursuant to the judgments of the Constitutional Court, the principle of proportionality includes the elements of suitability which means that the means used for restriction is suitable for attaining the aim of restriction, the necessity which means that the restricting measure is necessary for attaining the aim of restriction and proportionality which prevents the disproportionate relation between the means and the aim and ensures that the restriction does not impose a disproportionate obligation. 

In the impugned proceedings, the applicant whose right to request an amendment was restricted could only receive 1,000.00 TRY of the pecuniary damage calculated by the expert as 11,139.20 TRY. It has been accordingly concluded that the trouble that the applicant, who was deprived of a significant part of compensation she was indeed entitled and understood to have poor financial situation, was obliged to suffer was disproportionate with the legitimate aim pursued; and that therefore the interference at stake was not proportionate.

The Constitutional Court has consequently held that there was a breach of the applicant’s right to access to court guaranteed in Article 36 of the Constitution.

The applicants did not submit any document to the Constitutional Court concerning the pecuniary damage alleged to be sustained by them. In order for the Constitutional Court to award pecuniary damage, a causal link must be established between the pecuniary damage alleged to be sustained by the applicants and the claim for compensation. Therefore, the applicants’ claim for pecuniary damage who had not submitted any document to the Constitutional Court was dismissed.

However, having regard to the non-pecuniary damage to the extent which could not be redressed by only finding a violation as the action brought concerning the death of the applicants’ next-of-kin had been concluded within a very long period of time, the Constitutional Court held that compensation at the amount of 35,000.00 TRY would be jointly awarded to the applicants.

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

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