Press Release No: Individual Application 37/17
24.11.2017

PRESS RELEASE CONCERNING THE INADMISSIBILITY DECISION FINDING THAT DISPUTES RELATING TO THE EXERCISE OF THE POWER OF CONSCRIPTION DO NOT FALL INTO THE SCOPE OF THE RIGHT TO A FAIR TRIAL

On 18 October 2017, the Plenary of the Constitutional Court declared the individual application lodged by Yusuf Gürkan (no. 2014/11067) inadmissible as being incompatible ratione materiae without making any further examination as to the other admissibility criteria.

The Facts

Having completed compulsory military service, the applicant, who had been initially found eligible for military service in the medical examination, started serving as a contracted infantry at the Turkish Armed Forces (“the TAF”). Afterwards, the applicant was diagnosed with Familial Mediterranean Fever (37/B/5) by the Medical Board report. In this report, he was also found unfit for the military service and, therefore, not eligible to serve for the TAF. The applicant’s contract was terminated for health-related reason after this report had become final upon being approved by the Ministry of National Defence (“the Ministry”).

He stated that he was innately unfit for military service due to his disease. However, he had to perform military service on account of the relevant administration’s failure to provide him with sufficient medical examination and diagnose his disease. He then lodged an application for compensation with the relevant administration. As his application was implicitly rejected, he brought an action for damages before the Supreme Military Administrative Court (“the SMAC”).

The SMAC dismissed his action as being out of time. The applicant’s request for rectification of the decision was rejected by the SMAC.

The Applicant’s Allegations

The applicant maintained; that despite being unfit for the military service, he was made to perform compulsory military service due to inadequate medical examination, and that dismissal of his action for damages by the SMAC for being out of time constituted a breach of his right to access to a court.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

As set forth in Article 148 § 3 of the Constitution, an individual application may be lodged with the Constitutional Court in case of an alleged violation of rights which are under the joint protection of the Constitution and the European Convention on Human Rights (“the Convention”). In addition, regard being had to the legislative intention of the concept of “right to a fair trial” added to Article 36 of the Constitution in 2001, Article 6 of the Convention must be taken into consideration in determining the scope and content of this right.

The Convention does not safeguard the right to a fair trial in respect of all rights and obligations which an individual may claim to have. In Article 6 of the Convention enshrining the right to a fair trial, the scope of this right is set by indicating that the rights and principles of a fair trial shall be applicable in the adjudication of “disputes about civil rights and obligations” or of “any criminal charge”. Accordingly, an individual application may be lodged due to an alleged violation of the right to legal remedies only in case of any dispute about the individual’s civil rights and obligations or in case of a criminal charge against him. Therefore, the alleged violation of the right to a fair trial, except for those asserted under the above-mentioned circumstances, cannot form the subject-matter of an individual application as being out of the joint protection of the Constitution and the Convention.

It is obvious that the present dispute does not relate to a criminal charge. At this point, it must be primarily determined whether this dispute may be considered to fall into the scope of “civil rights and obligations” and, therefore, whether it is entitled to the protection of the right to a fair trial under the joint realm of the Constitution and the Convention.

It is perceivable that military service may have certain bearings on an individual’s corporal and spiritual entity or on his other rights protected in the domestic law. This is because military service by its very nature deprives the incumbent of certain civil rights. However, in an examination as to whether the dispute falls into the scope of “civil rights and obligations”, the criterion to be taken into consideration is “the subject-matter” of the case. In determining the subject-matter, the “essence” of the relevant dispute must be discussed. If the State’s “conscription order” or, in other words, its acts and actions with respect to the exercise of its power to conscript are to be dealt with in a case −even in actions for damages−, this dispute can in no way be considered to be within the scope of civil rights and obligations.

The basis of the present application is conscription of a person for compulsory military service despite actually being ineligible for such service due to health reasons.  The key issue to be discussed in resolution of his action is “the conscription order about the applicant”. Therefore, the very essence of the dispute relates to the State’s exercise of its power of conscription, which falls under its sovereign powers. In this respect, the dispute −which necessitates the discussion of “the conscription order” and, therefore, the State’s sovereign power− cannot be considered to fall into the scope of civil rights and obligations.

On the other hand, the applicant did not complain of any damage to his corporal and spiritual entity, except for those which are inherent in military service. Regard being had to all these assessments, it is concluded that the dispute concerning the obligation of military service, which does not fall into the scope of civil rights and obligations, is not under the joint protection of the Constitution and the Convention.   

Consequently, without further examination as to the other admissibility criteria, the Constitutional Court declares the application inadmissible as being incompatible ratione materiae.

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

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