The Court of Cassation has filed a criminal complaint against the Constitutional Court!

The Court of Cassation has filed a criminal complaint against the Constitutional Court! This is a problem that the legal order and legal heritage of the Republic of Turkey are facing for the first time.

Does the Court of Cassation have such authority? Which is superior: the Court of Cassation or the Constitutional Court? Public opinion can be summarized by these two questions. Many people interested in the subject are curious about the answers to these questions.

The question of which one is superior has no legal meaning. We are not watching a match. We are also not watching a boxing match to see who beats whom. The problem must be viewed in terms of the concepts and principles of legal science. What are the facts pointed out by legal science? We need to look at these facts.

First, let us examine the powers of the Constitutional Court. Let us see whether the Constitutional Court can issue such a decision on the violation of rights. Let us see whether it is authorized to issue a decision on the violation of rights or not. We can reach the legal truth by looking at the rules of the constitution on this subject.

What are the duties and powers of the Constitutional Court?

It is one of the constitutional high judicial bodies in Turkey. It audits the compliance of laws, Presidential decrees, and the Rules of Procedure of the Grand National Assembly of Turkey with the constitution in terms of form and substance, and decides on individual applications. Its duties are specified between Articles 148 and 153 of the Constitution of Turkey.[3]

“The function of the Constitutional Court can generally be summarized as resolving abstract legal issues, that is, objectively explaining legal principles and undertaking the duty of protecting the democratic order of the state based on freedoms. The Constitutional Court can only annul laws for the purpose of making them compliant with the Constitution.”

The Constitutional Court is an independent state organ whose decisions bind other state organs. The Court has the authority to conduct its own administrative affairs and even conducts criminal proceedings regarding its own members. This independence makes the Constitutional Court a Constitutional Organ in the full sense of the word.”

Individual application

With the implementation of the individual application, constitutional judicial review has been initiated as of September 23, 2012, against violations of rights caused by persons and institutions exercising public power. Accordingly, as of September 23, 2012, everyone can apply to the Constitutional Court with the claim that any of their fundamental rights and freedoms guaranteed in our constitution, which are within the scope of the European Convention on Human Rights, have been violated by public power.

In Article 3 of the Law on the Establishment and Trial Procedures of the Constitutional Court, the duties of the court are written as follows: To decide on cases transferred to it by courts through the objection procedure according to Article 152 of the Constitution.

To decide on individual applications made in accordance with Article 148 of the Constitution.

Right to individual application

Everyone may apply to the Constitutional Court with the claim that any of their fundamental rights and freedoms guaranteed in the Constitution, which are within the scope of the European Convention on Human Rights and the protocols to which Turkey is a party, have been violated by public power.

(2) All administrative and judicial remedies provided for in the law for the act, action, or negligence alleged to have caused the violation must have been exhausted before making an individual application.

(3) Just as an individual application cannot be made directly against legislative acts and regulatory administrative acts, decisions of the Constitutional Court and acts excluded from judicial review by the Constitution cannot be the subject of an individual application. (Constitution ARTICLE 45)

Examination on the merits

In the event that it is decided that the individual application is admissible, a copy of the application is sent to the Ministry of Justice for information. The Ministry of Justice notifies the Court of its opinion in writing in cases it deems necessary.

While commissions and sections examine individual applications, they can conduct all kinds of research and examination regarding whether a fundamental right has been violated. The information, documents, and evidence deemed necessary regarding the application are requested from the relevant parties.

The examinations of the sections regarding individual applications made against a court decision are limited to determining whether a fundamental right has been violated and how this violation will be eliminated. (CONSTITUTION ARTICLE 49)

Decisions

ARTICLE 50-(1) At the end of the examination on the merits, it is decided whether the applicant's right has been violated or not. In the event that a violation decision is issued, it is ruled what needs to be done to eliminate the violation and its consequences.

(2) If the identified violation stems from a court decision, the file is sent to the relevant court to conduct a retrial in order to eliminate the violation and its consequences. In cases where there is no legal benefit in conducting a retrial, compensation may be awarded in favor of the applicant or the way to file a lawsuit in general courts may be shown. The court responsible for conducting the retrial decides, if possible, over the file in a way that will eliminate the violation and its consequences as explained in the Constitutional Court's violation decision.

(3) The decisions of the sections on the merits are notified to the relevant parties and the Ministry of Justice along with their justifications and are published on the Court's website. Issues regarding which of these decisions will be published in the Official Gazette are shown in the Rules of Procedure.

Court decisions

According to Article 66 of the Constitution, “court decisions are final. Court decisions bind the legislative, executive, and judicial organs of the state, administrative authorities, and real and legal persons.”

When viewed in terms of the duties of the Court of Cassation, the situation is as follows:

According to Article 1 of the Law on the Court of Cassation, the Court of Cassation is defined as an institution as follows: It is the final review authority for decisions and judgments given by judicial courts and not left to another judicial authority by law, and it is an independent high court that operates according to the provisions of the Constitution of the Republic of Turkey and this law and other laws. “When we examine these relevant laws, the Court of Cassation has no duty to intervene in the decisions of the Constitutional Court regarding supervision.”

CONCLUSION:

It has been concluded that there is a violation of rights in the Constitutional Court's decision. The fulfillment of this violation of rights is again a constitutional obligation. Constitutional Court decisions bind state institutions. They also bind judicial institutions. Courts are obliged to comply with Constitutional Court decisions. Not implementing the Constitutional Court's decision means disregarding the rule of law.

Moreover, there is no crime involved. There is no disciplinary offense either. We do not know which act the Court of Cassation based its criminal complaint on. The act of the Constitutional Court that we know of is to determine the violation of rights. Determining a violation of rights is a judicial act. As we stated above, considering judicial acts as a crime is undoubtedly contrary to the principle of the rule of law. It is very painful for the judiciary, which is the guarantee of our country, to fall into these situations.