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 applicant’s request, the Turkish Armed Forces (TSK) Mehmetçik Foundation (Mehmetçik Foundation/Foundation) provided the applicant with disabled veteran and disability care assistance starting from April 1, 1998. As a result of a reassessment by the Foundation, the applicant’s care assistance was terminated on May 22, 2014. The applicant filed a lawsuit in the civil court seeking the annulment of this decision. The civil court requested a report from the Forensic Medicine Institution. The report prepared by the Forensic Medicine Institution stated that the psychotic disorder diagnosed in the applicant usually begins between the ages of 15 and 25 in men, and that many factors such as psychosocial stress, genetic basis, and biological factors can be decisive in the development of the disease. It was concluded that no causal link could be established between the applicant’s current illness and his military service. The civil court of first instance dismissed the case, referring to this report. The applicant appealed this decision; the Court of Cassation upheld the civil court of first instance’s decision and rejected the request for a correction of the decision.
Claims
The applicant claimed that his property rights had been violated due to the discontinuation of the ongoing assistance provided by the Mehmetçik Foundation.
The Court’s Assessment
The question of how the application at hand should be examined can be determined based on the status of the Mehmetçik Foundation and the nature of the relationship between the Foundation and the applicant. If the Mehmetçik Foundation is considered a private legal entity not connected to the public, the relationship between it and the applicant will be considered a private law relationship, and the care assistance provided to the applicant will be considered a claim under the law of obligations. Accordingly, the application at hand will be examined within the scope of positive obligations. Conversely, if the Mehmetçik Foundation is considered part of the public authority (a legal entity connected to the public sector), the care assistance it provides to the applicant will be considered a social security claim, and its termination will be evaluated as an intervention by the public authority and examined within the framework of the state’s negative obligations.
It should first be emphasized that the Mehmetçik Foundation is not a legal entity established by a special law or officially defined within the administrative structure, but operates under the supervision of the General Directorate of Foundations within the framework of Laws No. 4721 and 5737, as is the case with all other foundations. On the other hand, the Mehmetçik Foundation’s assets, receivables, and personnel are not granted a different status from other foundations; its assets are not granted immunity from seizure. The foundation is not endowed with privileges such as ex officio enforcement authority and the presumption of legality of its transactions. Furthermore, there is no compulsory membership or compulsory contribution 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 administrators are high-ranking military officials may suggest that the Foundation does not have a structure independent of public authority and therefore forms part of public power, this characteristic alone does not lead to the conclusion that the Mehmetçik Foundation is a legal entity connected to the public. Given that the foundation is not endowed with public power privileges, it has been assessed that the fact that its administrators are public officials does not carry sufficient weight to affect the nature of the foundation. The fact that the administrators are public officials would only be meaningful if the Foundation were endowed with public authority privileges. Otherwise, it would be necessary to accept that all associations and foundations whose founders and administrators are public officials are legal entities participating in the exercise of public authority. Furthermore, it should be emphasized that the Foundation’s decisions and their implementation are not subject to the approval of the official bodies of the Turkish Armed Forces.
On the other hand, it is impossible to force individuals to serve as administrators at the Mehmetçik Foundation unless they are accepted for the positions listed in the foundation charter. In this regard, it should be noted that there is no mandatory administration based on the law.
Another factor to consider is the nature of the Foundation’s activities. It is clear that the Mehmetçik Foundation’s purpose, which is to provide social and economic support to non-commissioned officers and soldiers who lost their lives or became disabled while serving in the TSK, their spouses and children, and those they are responsible for, and to educate their children, is in the public interest. The Foundation provides certain financial assistance to persons who died or became disabled during military service or to their relatives in this regard. It is an indisputable fact that providing social assistance to persons who became disabled while performing military service or to their relatives serves the public interest.
Moreover, the mere fact that a social service is carried out for the public good is not sufficient for it to be classified as a public service. Activities carried out by the private sector also meet the needs of society to a greater or lesser extent and, in this respect, serve the public good. Therefore, the existence of public benefit cannot be seen as the sole criterion for classification as a public service.
In addition, it should be noted that the financial resources of the Mehmetçik Foundation generally consist of donations and income from its own property and businesses. In this sense, it should be particularly emphasized that there is no transfer of resources from the public sector to the Mehmetçik Foundation. It is true that the Foundation benefits from certain tax exemptions due to its status as a public benefit foundation. Since tax exemption results in the Foundation gaining income in the amount of tax exempted, it can be said that public resources are indirectly transferred to the Foundation through its status as a public benefit foundation. However, it should be kept in mind that this situation applies to all public benefit foundations. Therefore, the status of public benefit foundation was not considered sufficient to conclude that the Mehmetçik Foundation is part of the public power.
Consequently, considering that it is not vested with public power despite its founders and administrators being high-ranking military officials and engaging in activities that serve the public interest, that its activities are not defined as public services by law, that its revenue sources consist largely of donations, and that no share of public revenue is directly transferred to the Foundation, it is not possible to conclude that the Mehmetçik Foundation is part of public power.
In light of these explanations, it is understood that the maintenance assistance provided to the applicant by the Mehmetçik Foundation constitutes a debt relationship that must be assessed within the framework of private law provisions. Therefore, the dispute regarding the termination of maintenance assistance must be considered a dispute between two private law entities. In this case, it is imperative that the application at hand be examined within the scope of the positive obligations imposed on the state by the right to property. In the examination to be conducted in terms of positive obligations, it must first be assessed whether the applicant was given the opportunity to effectively present their claims and defenses. In this context, it is seen that the applicant did not encounter any obstacles in advancing their claims and objections before the court of first instance and the Court of Cassation and was able to be represented by a lawyer.
Secondly, the issue to be examined is whether the dispute arising from the private debt relationship was resolved by applying legal rules that ensure predictability and certainty. It is understood that there is no ambiguity in the decision of the Board of Trustees regarding the fact that the maintenance assistance decided by the Board of Trustees only covers disabilities arising from military service. Therefore, it cannot be said that the legal rules were interpreted in an unpredictable manner in this specific case.
Thirdly, it must be examined whether the interests of both parties were sufficiently balanced and whether an excessive and extraordinary burden was imposed on one of the parties individually.
It is natural that, if the conditions set by private foundations for assistance are contrary to the Constitution, the mandatory provisions of the law, and clearly to fairness, the judicial authorities may intervene in accordance with the positive obligations of the state. The intervention authority of judicial authorities is even broader, especially in the case of public benefit foundations and foundations whose income consists largely of donations and similar aid. Public benefit foundation status is granted by considering the contribution of the foundation’s activities to the public, and certain tax exemptions are also provided to foundations granted this status. By granting tax exemptions, the state indirectly transfers the amount of tax it waives to the foundation in question. In this respect, it should be accepted that the state indirectly transfers a certain amount of resources and that its authority to intervene in determining the conditions of assistance provided by foundations, which are largely financed by public donations, to third parties is broader.
The Mehmetçik Foundation’s requirement that disability and disabled care assistance be conditional upon the illness, accident, or event causing the disability occurring during military service is an objective and reasonable criterion. Therefore, the requirement that the illness, accident, or incident causing the disability must have occurred during military service as a condition for granting assistance for the care of veterans and persons with disabilities does not in itself constitute a violation of the guarantees in Article 35 of the Constitution.
However, in this specific case, the termination of care assistance after more than 16 years raises issues in terms of the principle of legal certainty. This is because the condition that the disability was caused by an illness, accident, or incident that occurred during military service was present from the outset, and assistance was granted to the applicant on the basis that this condition was met. Cutting off the assistance after 16 years on the grounds that this assessment was incorrect undermines confidence in the Foundation’s operations, especially considering that there was no fraud or deception on the part of the applicant. Due to its nature as a private foundation, the Foundation’s discretionary power is broader than that of public institutions or public-related institutions providing social assistance. However, considering that its income largely consists of donations from the public, the obligation to avoid behavior that undermines trust also applies to the Foundation.
In this context, the Foundation’s conclusion that the applicant’s disability did not occur during military service without relying on any expert report is a serious shortcoming that opens the door to arbitrariness. Whether the applicant’s illness stemmed from military service is a medical issue, and reaching the conclusion that the applicant’s illness did not occur during military service without an assessment by experts in the field undermines the validity of the process. However, whether this constitutes a violation of property rights must be assessed by looking at the trial as a whole.
A close examination of the Forensic Medicine Institution report shows that, after listing the general causes of psychotic disorders, an assessment is made regarding the applicant’s case. The report does not express a definitive opinion that military service was not a factor in the manifestation of this illness in the applicant. While the report indicates that other psychosocial stresses or genetic or biological factors may have contributed to the applicant’s disorder, it does not absolutely rule out the effect of military service. In this case, it cannot be concluded that the conditions for providing care assistance to the applicant have been established in the specific case. The civil court’s dismissal of the lawsuit seeking the termination of the care assistance provided to the applicant for approximately 16 years as of the date of the proceedings, based on a report containing ambiguous statements, is not in line with the principle of legal certainty and the positive obligations of the state.
Consequently, it has been concluded that the termination of the assistance provided to the applicant, for whom it cannot be definitively established that the illness, accident, or event causing the disability occurred during military service, creates an imbalance between the interests of the Foundation and those of the applicant.
The Constitutional Court ruled that the right to property had been violated based on the reasons stated.