Press Release No: Individual Application 15/16
25.03.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF SIDDIKA DÜLEK AND OTHERS ON THE RIGHT TO LIFE UNDER ITS PROCEDURAL ASPECT

On 17/2/2016, the First Section of the Constitutional Court held with regard to the individual application lodged by Sıddıka Dülek and others (application no. 2013/2750) that there had been a breach of the right to life guaranteed in Article 17 of the Constitution under its procedural aspect.

The Facts

The applicants’ brother, Bayram Dülek, was found dead by being hanged in the ward toilet in the course of his military service during which the doctors issued a report indicating that he had been in tendency to commit suicide due to his psychological disorder called as dysthymic disorder. The applicants’ request for initiation of an administrative investigation for compensation of the pecuniary and non-pecuniary damage sustained by them due to the death of Bayram Dülek was dismissed. The full remedy action brought before the Supreme Military Administrative Court (“the SMAC”) was dismissed on the ground that there was no faulty liability or absolute liability attributable to the administration. In the application lodged with the European Court of Human Rights (“the ECtHR”), it was held that there had been a breach of the right to life. The applicant’s request for re-trial upon the judgment of the ECtHR was also dismissed by the SMAC. 

The Applicants’ Allegations

Having maintained that in the ECtHR’s judgment, the state was held responsible not only for the vulnerability of the recruiting system in the military but also the consequences thereof; that even the recruiting process was accepted as an administrative act, the continuation of undertaking risks pertaining to the right to life and its possible results as from the start date of the military service was at the same time an unfair practice; and that moreover, due diligence was not shown to the person concerned during the military service, the applicants accordingly alleged that there had been a breach of their rights enshrined in Articles 12, 17, 40 and 125 of the Constitution. 

The Court’s Assessment

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

It is, in principle, for the inferior courts to assess the evidence available in a case being dealt with and to interpret the legal rules. However, in cases where there is an alleged violation of the right to life, the question as to whether an investigation has been conducted with due diligence as required by Article 17 of the Constitution and the efficiency of this investigation are to be assessed by the Constitutional Court. In this scope, it must be examined as to whether the SMAC’s decision on dismissal of the request for re-trial fulfilled the requirements set out in Article 17 of the Constitution and the ECtHR’s judgments finding a violation.  Given the judgment rendered by the ECtHR concerning the impugned incident, it has been observed that that there is no evaluation indicating that the violation stemmed from not only the deficiencies in the recruiting system of the military; and that the justification given therein that “the recruiting of a person suffering from a disorder like dysthymia is sufficient for reaching the conclusion that there is deficiency in the legal arrangements” cannot be interpreted in a manner that the judgment finding a violation was rendered only on the basis of the deficiencies in the recruiting system.

It has been also observed that this justification was used in order to underline the futility of the examination as to whether the obligation to show diligence during the military service in respect of a person who had been recruited in breach of the guarantees set out in the legislation and who subsequently committed suicide had been fulfilled or not; that indeed, in the ECtHR’s judgment, the recruiting of a person who had been suffering from dysthymia and whose disorder had been known to the authorities and his continuation of the performance of the military service were shown as the ground for the violation found; and that the judgment did not only emphasize the recruiting process but also the continued performance of the military service.

Having regard to all of these issues, it has been assessed that although the recruiting of a person who must not be enlisted for military service due to his disease is considered to constitute a problem, finding no violation in the continued performance of the military service by such person and especially in his deprivation of precautions such as sick leave according to state and stage of his disorder in spite of being medically examined also in the course of the military service is incompatible with the ECtHR’s judgments; and that dismissal of the request for re-trial for considering that the violation stemmed only from the deficiencies in the recruiting process does not include an examination at a level and with diligence as required in Article 17 of the Constitution.    

Furthermore, the SMAC decided to dismiss the complaint that Bayram Dülek should not have been recruited without making an examination for being time-barred. Such allegation raised by the applicants were examined twice before the decision on dismissal of the request for re-trial, and at the end of both examinations, the action was decided to be dismissed on the ground that there had been no faulty liability or absolute liability on the part of the administration. However, this action was qualified as an action for compensation resulting from an act upon the ECtHR’s judgment finding a violation, and this complaint was dismissed without being subject to an examination for being lodged out of time. Such an interpretation of the SMAC is an unforeseeable and a very strict interpretation, which highly makes the appropriate and sufficient redress of the violation difficult, and renders the conclusions of the ECtHR’s judgment ineffective.

The Constitutional Court has consequently held that there was a breach of the right to life guaranteed in Article 17 of the Constitution under its procedural aspect.

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

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