The effect of the judgments of the European Court of Human Rights on the concept of personality right in civil law

Whether the effect of fundamental rights on private law is due to the positive obligation of the state, to the theory of horizontal effect, or solely to the explicit provisions of the Constitution of Turkey, it has been demonstrated in our study that acceptance of this effect is mandatory. In fact, while it has been observed that the constitutions of countries regulating fundamental rights are not regulated in language binding on private law individuals in law of Switzerland as well as in law of Germany, which is at the center of discussions on horizontal effect, it is clearly established that the Constitution of the Republic of Turkey explicitly includes individuals as recipients of fundamental rights and duties. Thus, the need for private law judges to take account of the provisions of the European Convention on Human Rights (ECHR), which forms part of Turkish law, and the judgments of the European Court of Human Rights (ECtHR) derives even from our constitutional provisions. The fact that the concept of personality rights is an all-encompassing concept accepted in Turkey to protect bodily integrity, reputation, private life and even personal freedoms, and that the concept is included in our law without the need to draw up a framework for the concept, makes it the most open concept to be directly affected by fundamental rights in the field of private law and therefore by the judgments of the ECtHR. In accordance with this effect, private law judges in Turkey should consider the notion of the right to personality within the framework of dynamic interpretations of the ECtHR that keep pace with current developments, and should take account of ECtHR judgments to determine which values fall within the right to personality, whether interference with the right to personality is necessary for a democratic society, or whether a fair balance is struck between conflicting interests. It is therefore inevitable that many different examples, ranging from the right to live in a healthy environment to reproductive rights, from the right to respect for one's unique lifestyle to discrimination based on gender identity, sexual orientation, race or age, will be encountered in cases involving violations of personality rights in private law.