Events
While the applicant was performing his compulsory military service, the Gülhane Military Medical Academy Hospital (GATA) issued a report stating that he was “unfit for military service”. Upon the application of the applicant, the Turkish Armed Forces (TAF) Mehmetçik Foundation (Mehmetçik Foundation/Foundation) provided disabled veteran and disabled care assistance to the applicant since 1/4/1998. As a result of the re-evaluation made by the Foundation, the applicant’s care assistance was discontinued on 22/5/2014. The applicant filed a lawsuit at the civil court of first instance for the cancellation of this decision. The civil court of first instance requested a report from the Forensic Medicine Institution. In the report prepared by the Forensic Medicine Institution, it was stated that the psychotic disorder defined about the applicant usually starts between the ages of 15-25 in males, that many factors such as psychosocial stresses, genetic basis, biological factors can be determinative in the formation of the disease, and it was concluded that the applicant’s current illness could not be causally linked only to his military service. The civil court of first instance referred to this report and dismissed the case. The applicant appealed against this decision; the Court of Cassation upheld the decision of the civil court of first instance and rejected the request for correction of the judgement.
Allegations
The applicant claimed that his right to property was violated due to the cessation of the continuous aid provided by the Mehmetçikik Foundation.
Assessment of the Court
The method by which the present application will be examined depends on the status of the Mehmetçik Foundation and the nature of the relationship between the Foundation and the applicant. If the Mehmetçik Foundation is recognised as a private law legal entity not connected to the public sector, the relationship between it and the applicant will be considered as a private law relationship and the care assistance provided to the applicant as a receivable under the law of obligations, and accordingly, the application at hand will be examined within the scope of positive obligations. On the other hand, if the Mehmetçik Foundation is considered to be a part of the public power (a legal person associated with the public), the care assistance provided to the applicant will be considered as a social security receivable, and its interruption will be considered as an intervention of public power and the application will be examined within the framework of the negative obligations of the state.
First of all, it should be emphasised that the Mehmetçik Foundation is not a legal entity established by a special law or officially defined within the administrative organisation, but operates under the supervision of the General Directorate of Foundations within the framework of Laws No. 4721 and 5737, just like all other foundations. On the other hand, the property, receivables and personnel of the Mehmetçik Foundation are not accorded a different status from other foundations, and its property is not privileged from seizure. The Foundation has not been granted privileges such as ex officio enforcement authority and the presumption of legality of its transactions. In addition, there is no compulsory membership and compulsory membership fee system for the Foundation. In this respect, the Mehmetçik Foundation is no different from other foundations established under Laws No. 4721 and 5737.
Although the fact that its founders and executives are senior military officers may suggest that the Foundation does not have a structure independent from the public authority and therefore forms a part of the public power, it cannot be concluded that the Mehmetçik Foundation is a legal entity connected to the public based on this feature alone. In view of the fact that the Foundation is not equipped with the privileges of public power, it has been assessed that the fact that its managers are public officials does not reach a weight that would affect the quality of the Foundation. The fact that the managers are public officials will make sense if the Foundation is equipped with the privileges of public power. Otherwise, it will be necessary to accept that all associations and foundations whose founders and managers are public officials are legal entities participating in the use of public power. It should also be emphasised that the decisions of the Foundation and their execution are not subject to the approval of the official organs of the TAF.
On the other hand, it is impossible for persons occupying the positions listed in the foundation’s articles of association to be forced to serve as managers of the Mehmetçik Foundation unless they agree to do so. In this respect, it should be noted that there is no compulsory management practice based on the law.
Another factor to be taken into consideration is the nature of the Foundation’s activities. It is clear that the purpose of the Mehmetçik Foundation, which is expressed as providing social and economic support to the soldiers and conscripts who lost their lives or became disabled during their service in the Turkish Armed Forces, their spouses and children and their dependents, and educating their children, is for public benefit. The Foundation provides financial assistance to persons who die or become disabled during military service or to their relatives in this direction. It is an indisputable fact that providing social assistance to persons who are disabled while performing their military service or their relatives has a public benefit purpose.
Moreover, having a public benefit purpose is not sufficient for a social service to be characterised as a public service. The activities carried out by the private sector also meet the needs of the society to a greater or lesser extent, and in this respect, they serve the realisation of the public interest. Therefore, the existence of public benefit cannot be considered as the only criterion for being considered a public service.
In addition, it should also be noted that the financial resources of the Mehmetçik Foundation consist of donations and the revenues of its own properties and enterprises. In this sense, it should be emphasised that there is no transfer of resources from the public to the Mehmetçik Foundation. It is a fact that the Foundation benefits from some tax exemptions due to its status as a public benefit foundation. Since the tax exemption results in the Foundation’s earning in the amount of the immunised tax, it can be said that public resources are indirectly transferred to the Foundation with its status as a public benefit foundation. However, it should be kept in mind that this situation is valid for all public benefit foundations. Therefore, the status of public benefit foundation is not deemed sufficient to conclude that the Mehmetçik Foundation is a part of the public power.
In conclusion, it is not possible to conclude that the Mehmetçik Foundation is a part of public power, considering that its founders and executives are senior military officers and that it carries out activities of public benefit, but it is not equipped with public power, its activities are not defined as public service by law, its sources of income consist mainly of donations, and no share of public revenues is directly transferred to the Foundation.
Considering these explanations, it is understood that the care assistance provided to the applicant by the Mehmetçik Foundation is a debt relationship that should be evaluated within the framework of private law provisions. Therefore, the dispute regarding the discontinuation of the maintenance aid should be accepted as a dispute between two private law persons. In this case, it is obligatory to examine the present application within the scope of the positive obligations imposed on the state by the right to property. In the examination to be made in terms of positive obligations, first of all, it should be evaluated whether the applicant has been given the opportunity to effectively present his claims and defences. In this context, it is observed that the applicant did not face any obstacles in putting forward his claims and objections before the Court of First Instance and the Court of Cassation and that he was represented by a lawyer.
Secondly, the issue to be examined is whether the dispute arising from a private debt relationship has been resolved by applying the rules of law that meet the condition of foreseeability and certainty. It is understood that there is no ambiguity in the decision of the Board of Trustees that the care assistance decided by the Board of Trustees covers only the disabilities arising from military service. In this respect, it cannot be said that the rules of law were interpreted in an unpredictable manner in the concrete case.
Thirdly, it should be examined whether the interests of both parties are sufficiently balanced and whether an excessive and unusual burden is imposed individually against one of the parties.
In the event that the conditions set by private foundations for aid are contrary to the Constitution, the mandatory provisions of the laws and manifest injustice, it is natural that the judicial authorities may intervene in accordance with the positive obligations of the state. The authority of the judicial authorities to intervene extends even further, especially in the case of public benefit foundations and foundations whose revenues are largely made up of donations and similar aids. The status of public benefit foundation is recognised on the basis of the contribution of the foundation’s activities to the public and certain tax exemptions are granted to foundations that are granted this status. By granting tax exemption, the state indirectly transfers the amount of the tax waived to the foundation in question. In this respect, it should be accepted that the state has a wider authority to intervene in the determination of the conditions of the aid to be provided to third parties by foundations to which the state transfers some resources, albeit indirectly, and which are largely financed by public donations.
There is an objective and reasonable criterion for the Mehmetçik Foundation to condition the disabled veteran and disabled care assistance on the condition that the illness, accident or incident that caused the disability occurred during military service. For this reason, the condition that the illness, accident or incident causing the disability must have occurred during military service does not in itself contradict the guarantees in Article 35 of the Constitution.
However, in the concrete case, the discontinuation of the maintenance allowance more than 16 years after it was granted causes problems in terms of the principle of legal security. The condition that the illness, accident or incident leading to disability must have occurred during military service was present at the beginning, and the applicant was considered to have fulfilled this condition and was granted assistance. The termination of the aid after 16 years by stating that this assessment was erroneous – considering that there was no fraud or misleading of the applicant – is damaging to the sense of trust in the Foundation’s transactions. As it is a private foundation, the discretionary power of the Foundation is wider than that of public institutions providing social assistance or institutions affiliated with the public sector. On the other hand, considering the fact that its revenues are largely made up of donations made by the public, the obligation to avoid behaviours that undermine the sense of trust also applies to the Foundation.
In this context, the fact that the Foundation did not rely on any expert report when concluding that the applicant’s disability did not occur during his military service is a serious deficiency that opens the door to arbitrariness. Whether or not the applicant’s illness was caused by military service is a medical issue and concluding that the applicant’s illness did not occur during his military service without an assessment made by experts in the field cripples the integrity of the transaction. However, whether this leads to a violation of the right to property must be assessed by looking at the whole judgement.
When the report of the Forensic Medicine Institution is closely analysed, it is seen that the reasons for the emergence of psychotic disorder are listed in general and then an evaluation is made in relation to the applicant. It is understood that the report does not express a definite opinion that military service was not effective in the manifestation of this disorder in the applicant. Although the report states that other psychosocial stresses or genetic basis or biological factors may have influenced the applicant’s illness, it does not exclude the effect of military service. In this case, it cannot be concluded that the applicant was able to demonstrate that the conditions for the provision of care assistance were not fulfilled in the concrete case. The fact that the civil court of first instance rejected the lawsuit filed for the cessation of the care assistance provided to the applicant for approximately 16 years as of the date of the transaction, on the basis of a report containing vague statements, is incompatible with the principle of legal security and the positive obligations of the state.
As a result, it is concluded that the discontinuation of the assistance to the applicant, who could not be conclusively established that he did not meet the condition that the disease, accident or incident that caused the disability occurred during military service, led to an imbalance between the interests of the Foundation and the interests of the applicant.
The Constitutional Court decided that the right to property was violated for the reasons explained.
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