Press Release No: Individual Application 11/17
06.06.2017

PRESS RELEASE ON THE DECISION IN WHICH THE APPLICATION WAS FOUND MANIFESTLY ILL-FOUNDED FOR NON-EXISTENCE OF SUFFICIENT EVIDENCE INDICATING THAT THE APPLICANT DID NOT FACE WITH ANY SIGNIFICANT ADVERSE OUTCOMES

On 1 March 2017, the Plenary of the Constitutional Court held, with regard to the individual application lodged by Mustafa Tepeli (App. No: 2014/5831), that the application lodged with the allegation that the prohibition of ill-treatment guaranteed in Article 17 of the Constitution was violated be declared inadmissible for being manifestly ill-founded.

The Facts

A comment alleging that certain military officers including the applicant had not consented to the deduction of the cost of foods provided for them during their military exercise from their salary and that such ungenerous conducts of them were severely condemned by the personnel was posted in a blog.

The applicant applied to the Keşan Chief Public Prosecutor’s Office and requested that the person writing the above-mentioned comment which was addressing to him and was defamatory in nature be identified and punished. He also submitted his salary roll indicating that the cost of foods provided for him during the military exercise had been deducted from his salary.

In December 2013, the Keşan Chief Public Prosecutor’s Office issued a decision of non-prosecution in which it was specified that it was not possible to establish the full identifying information of the suspects and that the impugned comment was removed from the web-site.

The applicant’s objection to the decision of non-prosecution was dismissed by the Kırklareli Assize Court.  

The Applicant’s Allegations

The applicant maintained that his honour and reputation safeguarded in Article 17 of the Constitution and constituting a part of his personal identity and spiritual integrity were attacked by the third parties due to untrue allegations published in the blog and accordingly asserted that the safeguard afforded by the judicial authorities was insufficient.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this allegation:

According to the Constitutional Court’s case-law, if the applicant requests the punishment of the applicant but does not bring an action for compensation by alleging that there has been intervention with his honour and reputation, the application is declared inadmissible for non-exhaustion of domestic remedies. However, in the present action, it is not possible for the applicant to bring such an action as the public prosecutor indicated that it was not possible to establish the full identifying information of the suspect.

In the present application, the applicant complained of the fact that an unidentified person had posted hearsay information about him through a blog. Following the criminal complaint filed by the applicant before the public prosecutor’s office, the comment in question was removed from the blog. It has been revealed that the blog through which this comment was posted is a platform generally used by the military personnel and including posts addressing to a restricted group of persons. It is obvious that such incriminatory statements made, without any basis, by unidentified persons have no legal value.  As a matter of fact, neither a criminal investigation nor a disciplinary investigation was filed against the applicant, who was serving as a colonel in the Turkish Armed Forces at the relevant time, on account of these allegations. Moreover, even if it is accepted that the impugned comment is incriminatory and connotative in nature, it cannot have a significant bearing on the applicant’s personal life.

In the present incident, having regard to the difficulties experienced in the investigations conducted into offences committed through internet, the public prosecutor decided to discontinue the investigation concerning the applicant’s complaint which has not caused far-reaching impacts in the manner which may result in serious concerns with respect to the fundamental rights and freedoms safeguarded in the Constitution or which does not have a bearing on the social interest. Given the facts that there is no sufficient evidence indicating that the applicant faced with significant adverse outcomes and that the complaint is not related to a significant principal issue, it has been concluded that the non-continuation of the investigation has led to no explicit imbalance between the individual’s interests and general interests of the society, in respect of the positive obligations imposed on State by Article 17 § 1 of the Constitution.

Consequently, the Constitutional Court declared the application inadmissible for being manifestly ill-founded, without making any further examination as to the other admissibility criteria.

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

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