REVIEW ON THE DECISION OF THE CONSTITUTIONAL COURT DATED 02.03.2023 AND APPLICATION NUMBER 2017/37627

The Constitutional Court (“CC”), with its decision dated 02.03.2023 and numbered 2017/37627, concluded that the applicant’s right to the protection and development of the material and moral existence of the person regulated in Article 17[1] of the Constitution and the right to the protection and development of the material and moral existence of the person regulated in Article 17[1] of the Constitution and the prohibition of discrimination guaranteed in Article 10[2] of the Constitution were violated by concluding that there was no objective and justifiable reason for the treatment against the applicant’s inability to use a bank loan due to his visual disability and being kept waiting at the bank branch for a long time.

Subject and Grounds of Application

The applicant went to the bank branch to use the loan after being informed by the bank that he had a credit limit, and the branch personnel stated that the applicant had to sign the contract by writing “I received a copy by hand” on the contract issued in order to complete the loan transactions. Although the applicant stated that he could not do this because he was visually impaired and that these deficiencies could be eliminated by different methods such as visually impaired alphabet, camera recording, etc., he was kept waiting in the bank branch for more than two hours, and as a result of this period, he had to leave the bank branch without being able to use the loan. The applicant filed a lawsuit for non-pecuniary damages against the bank at the Civil Court of First Instance due to the aforementioned incident and the Court partially accepted the lawsuit and decided that the defendant bank should pay the non-pecuniary damages to the applicant.

Following the appeal of the decision rendered by the Court of First Instance by the bank, the Regional Court of First Instance, which examined the bank’s appeal application, decided to accept the appeal application and dismiss the case definitively. In the decision, it was emphasised that due to the applicant’s visual impairment, there was a hesitation at the point of printing the sentence “I received a copy of the contract by hand.”, a solution was sought for the applicant to be able to use the loan, and the applicant was directed to internet banking. In addition, it was stated that there was no unkind behaviour of the bank personnel in the nature of an unjust act that would require moral damages, there was a delay based on hesitation regarding the text that should be written on the contract, and as a result, the applicant was not discriminated against.

As a result of the decisions, the applicant applied to the Constitutional Court with the allegation that he was kept waiting for a long time in the private bank where he went to use a loan, due to the fact that he could not determine how to sign his signature due to his visual impairment, and therefore his prohibition of discrimination was violated in connection with the right to the protection and development of his material and moral existence.

Constitutional Court’s Review and Conclusion

The Constitutional Court, in its assessment of the allegation of violation of the prohibition of discrimination in connection with the right to the protection and development of one’s material and moral existence:

The applicant was in a similar situation with other individuals who wanted to use the loan, except that the applicant was visually impaired, in this direction, the fact that the applicant could not use the loan due to his visual impairment constituted different treatment, thus creating a difference between bank customers with similar situations on the basis of disability in terms of loan utilisation,
It was not demonstrated by the respondent bank that there was an objective and justifiable basis for the different treatment that the applicant was subjected to because he was visually impaired, that the state has a positive obligation to ensure that persons with disabilities can live on an equal basis with other individuals, taking into account their special needs, and that these issues are guaranteed by national and international regulations,
In the reasoning of the decision rendered by the Regional Court of Appeal, the refusal to grant a loan to the applicant was based on the hesitation experienced by the bank staff in terms of the technical procedures to be carried out due to the applicant’s visual impairment, therefore, the special needs of the visually impaired applicant were not taken into account, and due care was not taken by both the bank and the Regional Court of Appeal in terms of the effective implementation of an alternative measure that takes into account the applicant’s situation regarding the bank transaction in question,
The Constitutional Court concluded that there was no objective and justifiable reason for the treatment of the applicant on the basis of his visual impairment in terms of not being able to use a bank loan and being kept waiting at the bank branch for a long time.

For the reasons explained above, the Constitutional Court decided that the prohibition of discrimination in connection with the right to the protection and development of the material and moral existence of the person was violated.

Considering the level of civilisation that the society has reached today and the developing technological possibilities, although it can be criticised that especially disabled individuals cannot make their voices heard before the Constitutional Court in order to receive services under equal conditions, and that the necessary actions are not taken by institutions and organisations at the first point of contact, it is hoped that with such appropriate decisions, the processes will be improved and brought to a level to be carried out as they should be.

[1] Inviolability of the person, material and spiritual existence

Article 17 – Everyone has the right to life, to the protection and improvement of his material and spiritual existence.

Except in cases of medical necessity and in cases prescribed by law, the bodily integrity of the person shall be inviolable; he shall not be subjected to scientific and medical experiments without his consent.

No one shall be subjected to torture or cruelty; no one shall be subjected to punishment or treatment incompatible with human dignity.

The provisions of the first paragraph shall not apply to acts of killing in cases of self-defence, in the execution of arrest and detention warrants, in the prevention of the escape of a detainee or convict, in the suppression of an uprising or rebellion, or in the execution of orders issued by the competent authority in cases of emergency, where the use of arms is permitted by law.

[2] Equality before the law

Article 10 – Everyone is equal before the law without distinction of language, race, colour, sex, political opinion, philosophical belief, religion, sect and similar grounds.

Women and men have equal rights. The State is obliged to ensure that this equality is realised. Measures to be taken for this purpose shall not be interpreted as contrary to the principle of equality.

Measures to be taken for children, the elderly, the disabled, widows and orphans of war and duty martyrs, invalids and veterans shall not be considered contrary to the principle of equality.

No person, family, group or class shall be privileged.

State organs and administrative authorities are obliged to act in accordance with the principle of equality before the law in all their actions.