Press Release No: Individual Application 20/17
26.07.2017

PRESS RELEASE CONCERNING THE DECISION ON DISMISSAL OF REMZİYE DUMAN FROM PUBLIC OFFICE BY VIRTUE OF A DECREE-LAW

On 20 July 2017, the Second Section of the Constitutional Court declared inadmissible, for non-exhaustion of domestic remedies, the individual application of Remziye Duman (no. 2016/25923).

The Facts

Following the coup-attempt of 15 July, the competent bodies within the state declared a state of emergency due to the ongoing threat and decided to take measures against all terrorist organizations and illegal structures posing a threat to the democratic constitutional order and the individuals’ fundamental rights and freedoms and national security, notably the Fetullahist Terrorist Organization/the Parallel State Structure (the FETÖ/PDY).

Accordingly, the Decree-Law no. 672 on the Measures Taken under the State of Emergency Concerning the Public Officials, which was adopted on 15 August 2016 by the Council of Ministers convening under the chairmanship of the President (“the Decree-Law”), entered into force after being promulgated in the Official Gazette dated 1 September 2016 and (Repeated) no. 29818. The applicant, who was a social studies teacher, was dismissed from office by virtue of the Decree-Law.

After the applicant lodged an individual application, the Decree-Law on 685 concerning the Establishment of the Inquiry Commission on the State of Emergency Measures, which was adopted on 2 January 2017 by the Council of Ministers convening under the chairmanship of the President (“the Decree-Law”), entered into force after being promulgated in the Official Gazette dated 23 January 2017 and no. 29957.  Pursuant to Article 1 of the Decree-Law no. 685, the Inquiry Commission on the State of Emergency Measures (“the Commission”) was established in order to carry out an assessment of, and render a decision on, the applications related to certain acts and actions directly performed by virtue of the state of emergency decree-laws. Article 2 also sets out that the Commission shall have the authority to conduct an examination as to the measures concerning “dismissal or discharge from public office, profession or other organizations”.

The Applicant’s Allegations

The applicant maintained that her certain rights enshrined in the Constitution had been breached for being dismissed from her public office (teaching profession) pursuant to the Decree-Law no. 672 within the scope of the state of emergency and due to legal consequences thereof.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

The Constitutional Court primarily assessed the Provisional Article 1 § 3 of the Decree-Law no. 685 in which it is set out that with respect to those who previously lodged an application with, or filed an action before, a judicial authority for the matters which fall within the scope of duty of the Commission, their actions before the judicial authorities shall be transferred to the Commission for examination without seeking a new requirement for application. According to the Constitutional Court, this provision relates to the ordinary legal remedies. However, as the individual application mechanism is not an ordinary legal remedy, the individual applications previously lodged are outside the scope of the above-cited Provisional Article 1 § 3. Therefore, the present application must be examined not pursuant to this provision but according to the admissibility criteria of the individual application.  

The Constitutional Court made the following assessments in brief, with a view to determining as to whether the application has met the admissibility criteria:

The question as to whether the legal remedies have been exhausted is, in principle, assessed according to the existing circumstances prevailing on the date of individual application. However, in certain circumstances, the Constitutional Court may also decide that new legal remedies established after lodging an individual application must be exhausted. Especially in cases where a new remedy has already been established with a view to finding solutions for structural and systemic problems in a certain field, the subsidiarity principle may require that alleged violations of the relevant fundamental rights and freedoms must be examined primarily by the administrative and judicial authorities.  

In case of establishment of a new legal remedy after an individual application has been lodged, it is for the Constitutional Court to assess whether the legal remedy – in the way it was established – is a priori accessible or not and whether it is capable of affording reasonable prospect of success and sufficient redress for the alleged violations.

Given the applicant’s alleged violations, it has been concluded that examination of an individual application lodged without exhaustion of an available remedy appearing to be a priori accessible and capable of affording a reasonable prospect of success and sufficient redress for the alleged violations (the Commission) would be contrary to the subsidiarity nature of the individual application mechanism.

For these reasons, the application has been declared inadmissible for non-exhaustion of available remedies. 

Moreover, on 19 July 2017, the First Section of the Constitutional Court declared inadmissible the individual applications, which were lodged by Sait Orçan (no. 2016/29085) concerning dismissal from studentship directly through the state of emergency decree-laws and lodged by Ramazan Korkmaz (no. 2016/36550) concerning the closure of a private educational institution, for non-exhaustion of available remedies.

As the Constitutional Court does not consider the individual application mechanism to fall into the scope of the Provisional Article 1 § 3 of the Decree-Law no. 685, it shall not ex officio send to the Commission the above-mentioned individual applications and the other applications of similar nature, which would be found inadmissible for non-exhaustion of available remedies. Therefore, the applicants in respect of whom measures were directly taken through the state of emergency Decree-Laws and who have lodged an individual application with the Constitutional Court are required to apply to the Commission –if considered necessary by them– in accordance with the rules concerning the procedure of application before the Commission.

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

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