The Constitutional Court President's final cry for the rule of law...

A swearing-in ceremony was held at the Constitutional Court (AYM) Grand Divan Hall for Yılmaz Akçil, the President of the 10th Chamber of the Council of State, who was elected as a member of the Constitutional Court. The ceremony was attended by President Recep Tayyip Erdoğan, Speaker of the Grand National Assembly of Turkey Numan Kurtulmuş, President of the Council of State Zeki Yiğit, Minister of Justice Yılmaz Tunç, members of high judicial bodies, and guests. The absence of the President of the Court of Cassation was notable.

AYM President Zühtü Arslan congratulated Yılmaz Akçil, wished him success in his new role, and expressed his hope that his membership would be beneficial for him personally, his family, the Constitutional Court, and our country.

Stating that taking an oath is, in a sense, a covenant or a treaty, President Arslan noted that a covenant requires fidelity to the promise made, and stated: "Fidelity to the promise, which means keeping one's word, is a moral and legal principle of indispensable importance for the life of society and the state. So much so that the continuity of the state depends on the protection of the constitution, which is in the nature of a social contract, and the fundamental rights and freedoms that are the reason for its existence, and this ultimately depends on the realization of the principle of fidelity to the promise."

Stating that the robe worn when starting a judgeship represents justice and the heavy responsibility it places on one's shoulders, President Arslan emphasized that people believe that justice will be served, injustice will be remedied, and disputes will be resolved without conflict before that robe, and continued his words by saying: "The robes we wear are a symbol of society's trust in justice. Avoiding behaviors that will shake or erode this trust is a requirement of loyalty to the oaths we took when we started our duty and of fidelity to the promise."

THE GREATEST REFORM IN TURKISH JUDICIAL HISTORY: INDIVIDUAL APPLICATION

President Arslan stated that the AYM interprets the Constitution with a rights-based approach in line with the goals set by the constitution-maker and has contributed to the resolution of many chronic legal issues with its decisions.

He also emphasized that the AYM has rendered hundreds of thousands of decisions regarding rights and freedoms within the scope of individual application, from the right to life to freedom of expression, and from the right to property to freedom of association, and that it has never looked at the identity of the applicant while doing so, stating: "With these decisions, as foreseen by the constitution-maker, the function of individual application to resolve the problem within our country's legal order has been largely fulfilled."

"INDIVIDUAL APPLICATION IS NOT AN APPEAL PROCESS."

In his speech, President Arslan clarified some points that are misunderstood or wrongly known regarding individual application, which has left its mark on the legal agenda, and importantly underlined that individual application is not an appeal process:

"The Constitutional Court, in cases where the interpretation and application of the Constitution are not in question, does not, as a rule, look at the facts of the case subject to individual application, the interpretation of the rules applied to them, the evaluation of evidence, or whether the decision rendered is correct or justified in terms of its result. Our Court, within the framework of the duty and authority given to it, only examines whether the applicant's constitutional rights and freedoms were violated during the trial process," he said.

Indeed, the emphasis that "the AYM is not a super-authorized court of appeal" is sometimes made by politicians and sometimes directly by us lawyers, but this is unfair. The AYM does not work that way anyway. Its boundaries are as described by the AYM President above. However, when the AYM's decisions are not liked, instead of criticizing them, its position within the judiciary is brought into question, and the subject is deliberately distorted to cast aspersions on the AYM decision. There is no doubt that these are entirely political statements.

"THERE CAN BE NO JUSTIFICATION FOR NOT COMPLYING WITH AYM DECISIONS."

President Arslan stated that AYM decisions are final and binding on everyone and every institution. He emphasized that there can be no justification for not complying with AYM decisions and stated that while no one has an obligation to like the AYM's interpretation of the constitution and its provisions or its decisions, complying with these decisions is a constitutional necessity in a state of law, and continued his words as follows:

"Undoubtedly, all courts, including appeal authorities, interpret the Constitution during the judicial decision-making process subject to individual application. However, in accordance with Article 148 of the Constitution, individual applications can be made against judicial decisions based on such interpretations after ordinary legal remedies have been exhausted. In this case, the authority to audit judicial public power acts by interpreting the Constitution in a final and binding manner has been granted only to the Constitutional Court in our legal system."

"For an individual application to be effective, it depends on the elimination of the violation and its consequences."

President Arslan stated that it is a constitutional and legal necessity for the AYM to rule on what needs to be done to remedy a violation in addition to identifying it. He emphasized that eliminating the consequences of a violation requires, as a rule, restoring the situation to what it was before the violation, and that the way to do this, if the violation stems from a judicial decision, is through the annulment of the decision that caused the violation.

President Arslan reminded that according to Article 153 of the Constitution, Constitutional Court decisions are final and bind the legislative, executive, and judicial organs, administrative authorities, and real and legal persons, and continued his words by saying: "In essence, the execution of violation decisions is not only a requirement of Article 153 of the Constitution, but also, first and foremost, a necessary result of the Constitution being a social contract that binds us all and provides legitimacy to the powers we use, the obligation of loyalty to this contract, and the principle of fidelity to the promise."

Following President Zühtü Arslan's speech, the swearing-in ceremony took place. New member Yılmaz Akçil, whose biography was read, took his oath. His robe was placed on him by President Zühtü Arslan.

RESPONSE TO PRESIDENT ARSLAN FROM CHIEF ADVISOR TO THE PRESIDENT MEHMET UÇUM

Immediately after President Arslan's speech, Chief Advisor to the President Mehmet Uçum shared a response on a social media platform. In the said post, he stated: "The provision of Article 153 of the Constitution does not cover individual application violation decisions. Furthermore, 'retrial' is not an independent institution in our procedural law. The judicial activity dependent on a decision for the renewal/restitution of a trial is called a retrial. The authority to issue a decision for the renewal/restitution of a trial belongs to the courts where the decision was made. Details and all other aspects of the subject are covered in the attached article," and shared his article dated January 26, providing a response to President Arslan.

The AYM President had conveyed the command of the law to the face of the President. The article by Chief Advisor to the President Mr. Mehmet Uçum, which came via the Anadolu Agency shortly after, is actually in the nature of a response from the President to the AYM President.

The basis of the incident is actually the Şerafettin Can Atalay file, in which the AYM had to issue a violation decision twice. The first violation decision issued by the AYM regarding Şerafettin Can Atalay was not implemented by the local court, which was unlawful. The file was sent to the Court of Cassation by the local court, and this action, which is legally null and void, was also processed unlawfully by the Court of Cassation, reaching the depths of lawlessness to the point of filing a criminal complaint against AYM members. That was not enough; upon the second application to the AYM, the AYM issued a violation decision on the same subject for the second time, and this decision was likewise not fulfilled by the local court. The AYM President conveyed that this situation is incompatible with a state of law to the faces of the addressees as a "final cry."

Because the Gezi Trial has come to this day from the very beginning with the violation of the victims' right to a fair trial. The President himself was able to make statements when release decisions were taken during this trial process, judges could be reassigned when decisions that the government did not like were made, and it has been reminded to the public from the very beginning of this trial that it is a political case rather than one producing justice. Therefore, the words of the AYM President are directly addressed to the President.

So, do Mr. Mehmet Uçum's responses have any legal validity, or can these responses be called a "legal interpretation"? Of course not. Because Article 153/6 of our Constitution is quite clear. The said legal provision states: "Constitutional Court decisions are published immediately in the Official Gazette and bind the legislative, executive, and judicial organs, administrative authorities, and real and legal persons." Mr. Uçum, on the other hand, states that since the phrase "individual application decisions" does not appear in the constitutional provision, this binding nature does not cover individual application decisions. The Individual Application mechanism entered our law with the 2010 referendum. Since that date, has the nature of individual application decisions, which have been applied in the same way, changed just because the subject is Can Atalay and the Gezi trial? Of course not. That is why I interpret this response article as "political" rather than "legal." This also clearly shows us where the judges who do not comply with AYM decisions get their power from.

The result is as the government wants. After these statements, neither has Can Atalay been released, nor has the concept of a state bound by law been settled. Justice has been damaged once again, serving to further decline Turkey's position as a state of law in international indices. Of course, as a result of these practices, there is no possibility of talking about anyone's right to legal security in our country.

Finally, I would like to include a witty response from a citizen regarding Mr. Mehmet Uçum's statements.

"If that's the case, then I want my second motor vehicle tax back because AYM decisions do not bind vehicle taxes." Indeed, this is the situation, and it is this dangerous.

If we were to accept this interpretation of Mr. Mehmet Uçum, we would also have to accept the interpretation of a tenant whose rent has been increased from 6 thousand TL to 20 thousand TL by the final decision of the Magistrate Court, saying "this decision does not bind me." However, the end of this would be chaos. Unfortunately, the situation is this dangerous.