Press Release No: Individual Application 13/16
23.03.2016

PRESS RELEASE CONCERNING THE DECISION OF MEHMET ENCU AND OTHERS ON THE DISMISSAL OF THE APPLICATION

On 24/2/2016, the Second Section of the Constitutional Court held with regard to the individual application lodged by Mehmet Encu and Others (application no. 2014/11864) that the application be dismissed as the deficiency could not be eliminated in time.

The Process of Individual Application

The applicants lodged an individual application for the alleged violations of the right to life and the prohibition of treatment incompatible with human dignity on account of the death of thirty four persons and injury of four persons, who had been among the first degree relatives of some of the applicants during the air operation held by the Turkish Armed Forces against the separatist terrorist organization within the boundaries of Iraq.

As a result of the preliminary examination, in terms of administrative aspect, of the application form and annexes thereto, it was established that there were deficiencies in the application. The applicants were notified for the elimination of the deficiencies established within a definite period of fifteen days.

Although the deficiencies established should have been eliminated by the applicants’ representatives, the relevant document was submitted after the expiry of the above-cited period. In the petition submitted with respect to the deficiencies eliminated upon the expiry of the definite period, any excuse was not specified for the failure of elimination of the deficiencies in time.   On the other hand, the applicants’ representative stated about one month after his reply to the elimination of the deficiencies in question that he could not submit his excuse inadvertently. The applicants’ representative alleged as an excuse the state of health supported by a medical report and his state of security in respect of the applicants whose power of attorney he could not submit. Any explanation was not made concerning the state of security which had been alleged as an excuse.

The applicants’ representative stated in his petition of 23/9/2014 that he could not complete the deficiencies in time and requested his excuse to be accepted.

The Court’s Assessment

In its examination, the Constitutional Court primarily emphasized the necessity that the individual applications must be lodged in accordance with the arrangements set out in the Law and in the Internal Regulation as required by Article 47 § 1 of the Law no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court.

In this respect, it is specified in Article 47 § 6 of the Law no. 6216 and Article 66 § 2 of the Internal Regulation of the Constitutional Court that the definite period of fifteen days granted for the elimination of the deficiencies may be exceeded only when the applicant has a “just excuse”. The Court states that “the just excuse” is accepted to be “force majeure” or “severe disease” pursuant to Article 64 of the International Regulation. Having noted that it is not possible to pre-determine which disease would be deemed to be severe and a just excuse, the Constitutional Court has reminded that it assesses the validity of the excuse put forth by means of taking into consideration the characteristics of the disease in each application; and that the applicant or his representative, who has put forth the excuse, must document that the disease suffered is severe to the extent which would pose an obstacle for lodging an application or replying to the notice of deficiency.    

The Constitutional Court stated that it could not be inferred from the relevant report that the disease put forth as a health excuse by the applicants’ representative is severe to the extent which would pose an obstacle for replying to the notice of deficiency within the meaning of Article 64 § 2 of the Internal Regulation.  It has been noted that in the report, there was no indication that the applicants’ representative was required to be hospitalized in a hospital or health institution; that nor did the applicant’s representative submit any information and/or document indicating that he had hospitalized and received inpatient treatment due to his disease; and that in fact, he did not assert a claim in this respect.  It has been therefore assessed that it is not possible to regard the health excuse put forth by the applicants’ representative as a severe one likely to be accepted as “just excuse”. On the other hand, the Constitutional Court has reminded that the applicants have thirty one representatives, who have signed the application form, other than their representatives putting forth the excuse.

The Constitutional Court has consequently decided to dismiss the application as the applicants failed to submit the necessary documents for examination of the application, without a just excuse, within the definite period as from the notification of the deficiencies. 

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

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