Press Release No: Individual Application 29/17
06.10.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF RIGHT TO PROPERTY DUE TO LOW APPRAISAL

On 25 July 2017, the Plenary of the Constitutional Court found a violation of the right to property safeguarded by Article 35 of the Constitution in the individual application lodged by Yasemin Balcı (no. 2014/8881).

The Facts

The applicant took part in a total of 104 autopsy processes between 2 November 2001 and 20 June 2003 upon the request of the Public Prosecutor’s Office, by virtue of a contract between the university hospital where she served as a forensic expert and the Ministry of Justice. The autopsy fee was not set forth in the contract. The applicant’s request to be paid for the autopsies was implicitly rejected by the Public Prosecutor’s Office. Thereupon the applicant filed a case with the first instance court but she could not receive a favourable result. Following the applicant’s appeal, the Council of State quashed the judgment, and the first instance court awarded the applicant 265.83 Turkish liras (TRY). Upon finding the amount low, the applicant filed a case requesting to be paid TRY 15,600 based on the current values. Following, the Chief Public Prosecutor’s Office made an additional payment of TRY 499.31 to the applicant.

The applicant brought an action for damages before the same court for the remainder of the total amount she requested. However, her action was dismissed. The applicant’s appeal against this judgment was also rejected by the Regional Administrative Court.

The Applicant’s Allegations

The applicant complained about the insufficiency of the amount paid to her for the autopsies she had performed compulsorily, upon the request of the Chief Public Prosecutor’s Office, at the university hospital where she served as a forensic expert. In this respect, the applicant maintained that the prohibition of forced labour, as well as her right to property were violated.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

Carrying out autopsies by getting use of the personnel and infrastructure of the university hospital due to the need that arouse in the Forensic Medicine Branch Office is a type of social solidarity. In conducting the autopsies, the applicant was not asked to carry out a service outside of her expertise. In fact, these processes provided the applicant with some advantages in terms of contribution to her professional development and did not impose an excessive burden on her. In view of these considerations, the Constitutional Court concluded that the prohibition of forced labour safeguarded by Article 18 of the Constitution was not violated.

On the other hand, in the price schedule the Court demanded from the Forensic Medicine Institution, the autopsy fee is indicated as TRY 390. Although this price schedule is not absolutely binding, it gives an opinion about the financial value of the effort made by a forensic expert while performing autopsy. The applicant was paid a low price in comparison to the price schedule. Indeed, it also appears in the documents annexed to the applicant’s individual application that the she has been paid TRY 150/per autopsy for a portion of autopsies she performed, while she received only TRY 7.36 per autopsy for the rest. Accordingly, the amount of TRY 7.36 per autopsy awarded to the applicant was considerably lower than the average. There is no information or document in the case file as to the reason why the amount of the expert fee awarded to the applicant was too low.

Therefore, it has been concluded that the amount of the expert fee awarded to the applicant, which was considerably lower than the fee set forth in the mentioned price schedule, was not sufficient to cover the applicant’s efforts and work. Accordingly, the interference with the applicant’s right to property was not proportionate.

Consequently, the Constitutional Court found a violation of the applicant’s right to property safeguarded by Article 35 of the Constitution.

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

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