Mehmet Uçum targets the Constitutional Court again

Mehmet Uçum, Deputy Chairman of the Presidential Legal Policy Board, has penned an article regarding the Constitutional Court (AYM), which he had previously targeted due to its ruling on Workers' Party of Turkey (TİP) Hatay MP Can Atalay, who is imprisoned in the Gezi Park case.

In his article for the Anadolu Agency titled "Problems in the Constitutional Court's individual application rulings," Uçum accused the AYM of 'judicial activism' and stated, "The most important urgent need is to make clear legislative arrangements in the AYM law and other relevant laws to prevent the expansion of authority through interpretation."

Stating that "The AYM's individual application rulings are final," Uçum continued his article by claiming, "However, these rulings do not have absolute binding force regarding their immediate implementation on the merits in line with the AYM's retrial decision."

Uçum's article is as follows:

"The AYM began reviewing individual applications on September 23, 2012. In the more than 11 years of practice, the AYM's violation rulings have caused many debates. During this time, the AYM's rulings, which position itself as if it were above the Court of Cassation and the Council of State, contrary to the provisions of the Constitution and relevant laws, have created numerous conflicts between the AYM and other high courts. Especially in the last 5 to 6 years, an increasing incompatibility has emerged between the Court of Cassation and the Council of State and the AYM. So much so that many violation rulings by the AYM that are contrary to positive law are not found appropriate by the relevant courts and chambers, and these rulings are not complied with. In recent years, the Presidents of the Court of Cassation and the Council of State have begun to voice the problems stemming from the AYM more loudly at every judicial year opening. These problems have now passed the stage of being solved through the rulings of high courts. It has become inevitable to make legal regulations to at least temporarily solve these problems produced by the AYM. Ultimately, making the structure of the AYM suitable for individual applications in the new constitution and regulating the nature and effect of individual application rulings at the constitutional level appears to be the permanent solution.

SOME PROMINENT PROBLEMS

1. Distortion of the Constitutional provision regarding the binding nature of AYM rulings

Some circles argue that the provision in Article 153 of the Constitution, "Constitutional Court rulings are published immediately in the Official Gazette and bind the legislative, executive, and judicial organs, administrative authorities, and real and legal persons," covers all rulings of the AYM, including violation rulings resulting from individual applications.

There is a distinction between the finality of AYM rulings and the concept of them "binding all powers." The point that needs to be clarified here is which of the AYM's rulings are binding on all powers.

There is no separate regulation in the Constitutional provisions governing the duties and powers of the AYM stating that the AYM's individual application rulings will bind the legislative, executive, and judicial organs.

Of course, it is clear that according to Article 138 of the Constitution, legislative and executive organs and administrations are obliged to comply with court rulings. If one pays attention, there is no regulation in this article directed at judicial organs. It is one thing for the AYM's rulings on individual applications to be final. It is an entirely different thing for there to be AYM rulings that are binding on all powers. Individual application rulings are not within the scope of binding all powers.

Article 153 of the Constitution is specific only to norm review. The binding nature mentioned in the article provision relates to rulings issued after norm review. These rulings are binding on the legislative, executive, and judicial branches, i.e., all powers. This is because norm review rulings are not subject to extraordinary legal remedies such as retrial. These are rulings that can never be changed. Therefore, the binding nature mentioned in the article text is a regulation necessary for the effective implementation of norm review rulings that are not subject to extraordinary legal remedies and cannot be changed in any way. The rule of bindingness for "judicial organs" mentioned in the cited provision is also a result of the necessity that "judicial organs" cannot issue rulings based on a norm that has been repealed through abstract norm review or when a norm brought before the AYM by judicial authorities through concrete norm review is annulled. The opposite is also true; there is a binding nature in terms of complying with a norm whose annulment request is rejected, issuing rulings according to this norm, and not applying to the AYM against this norm through the objection path for 10 years. For these reasons, publication in the Official Gazette for bindingness on all powers has been made mandatory by the Constitutional provision for norm review rulings and has not been left to discretion. In other words, the publication of norm review rulings in the Official Gazette without exception and mandatorily is a validity condition for these rulings to bind all powers.

However, there is no constitutional provision stating that other rulings issued by the Constitutional Court are binding on all powers. Furthermore, there is no constitutional provision regarding the mandatory publication of all AYM rulings other than annulment rulings in the Official Gazette.

The relationship between other AYM rulings and the Official Gazette is regulated by law and internal regulations. According to the relevant provisions, the presidency determines which of the individual application rulings will be published in the Official Gazette. As can be seen, the "constitutionally mandatory publication in the Official Gazette, which is a validity element for bindingness on all powers," relates only to rulings regarding norm review. Even this situation alone shows that the AYM's individual application rulings do not possess a nature that is binding on all powers.

Because all rulings of the AYM other than norm review are rulings that have the possibility of changing later. There is a possibility of re-examination for Supreme Council (Yüce Divan) rulings. One can go to the European Court of Human Rights (ECHR) for all Supreme Council, political party closure, and individual application rulings. In the event that a violation ruling is issued by the ECHR, a retrial may be in question for these rulings. In other words, an extraordinary legal remedy has also been envisaged for these rulings in our legal system. Therefore, these rulings, like other court rulings, are binding as long as they are not changed.

However, no extraordinary legal remedy has been regulated for norm review rulings. It is not possible to change norm review rulings through another legal mechanism. At this point, bindingness on all powers is also a concept related only to norm review rulings, which are court rulings that cannot be changed, and the final provision of Article 153 of the Constitution relates only to these rulings.

2. The AYM acting contrary to constitutional prohibitions regarding legal remedies

In the 3rd and 4th paragraphs of Article 148 of the Constitution regarding the duties and powers of the AYM, it is stipulated that "... It is a condition that ordinary legal remedies must be exhausted to make an application. In an individual application, no review can be made on matters that should be considered in the legal remedy." The AYM clearly violates these provisions of Article 148 of the Constitution in individual applications.

According to the clear provision of the Constitution, the AYM cannot, as a rule, review applications related to a trial while that trial is ongoing. Because the AYM's review authority and duty do not begin until ordinary legal remedies are exhausted. To make an individual application, all appeal or cassation paths must be exhausted depending on the situation. Individual applications made while the trial process is ongoing should result in inadmissibility. Because according to Articles 154 and 155 of the Constitution, the authority for final review of rulings issued by judicial organs belongs to the Court of Cassation or the Council of State. An individual application review cannot be conducted before the review of these authorities is completed or concluded. The opposite situation constitutes a clear violation of the prerequisite of exhausting legal remedies contained in the third paragraph of Article 148 of the Constitution.

On the other hand, no review can be made in an individual application on matters that can be reviewed in ordinary legal remedies. It must be underlined that according to the Constitution, an individual application is a constitutional right-seeking path that can be applied to after ordinary legal remedies are exhausted and where no evaluation can be made on matters that can be reviewed in ordinary legal remedies. The AYM cannot issue a ruling that would change the result of a ruling issued at the end of a trial. In one aspect, an individual application is limited to examining whether the guarantees of the right to a fair trial were offered to the applicants during the trial process. Otherwise, the annulment of an acquittal or conviction ruling issued at the end of a trial, or issuing a ruling in a way that would annul it, results in acting like the Court of Cassation or the Council of State. However, according to the fourth paragraph of Article 148 of the Constitution, the AYM cannot conduct a review on matters that can be reviewed in ordinary legal remedies.

Again, with the provision in the 6th paragraph of Article 49 of the Law on the Establishment and Trial Procedures of the Constitutional Court, "The review by the sections regarding individual applications made against a court ruling is limited to determining whether a fundamental right has been violated and how this violation will be eliminated. No review can be made by the sections on matters that should be considered in the legal remedy," it has been clearly ruled that a violation ruling cannot be issued in a way that would change or annul the result of a trial, and that otherwise, this would be in the nature of a legal remedy review. However, the AYM persistently conducts individual application reviews by arbitrarily placing exceptions on matters that should be reviewed in legal remedies through interpretation.

If numerical data are examined, it will be seen that the ECHR issued a total of 3,224 violation rulings against Turkey between 2002 and 2022, including the right to be tried within a reasonable time. Between 2012, when individual applications began, and the 9th month of 2023, the AYM issued approximately 70,000 violation rulings in total, including approximately 56,000 rulings for violation of the right to be tried within a reasonable time and 14,000 other violation rulings. Even these numbers are a clear indicator of the dimensions that judicial activism has reached and that the AYM, in individual applications, goes far beyond the ECHR by evaluating evidence and interpreting legal rules on matters that should be reviewed in the legal remedy path.

The applications that the AYM accepted without exhausting ordinary legal remedies and the reviews it conducted on matters that should be considered in legal remedies are concrete examples of the AYM expanding its authority through interpretation. However, just as it is impossible to grant an authority not recognized by the Constitution through law, it is in no way possible to expand it through interpretation. Expanding authority through interpretation is the most obvious manifestation of judicial activism and means the undermining of the principle of legal security by the Constitutional Court itself.

3. Violation of Constitutional provisions regarding the Court of Cassation and the Council of State being the final review authorities for court rulings

The "retrial" provision in Article 50/2 of the AYM organization law must be interpreted in accordance with the authorities of the Court of Cassation and the Council of State to be the "...final review authority..." stemming from the Constitution, as regulated in Articles 154/1 and 155/1 of the Constitution. If it is to be determined through interpretation whether a legal provision is in accordance with the Constitution, the priority is to interpret it in accordance with the Constitution.

In our positive legal system, there is no independent procedural law institution called retrial. Retrial is the name of the judicial activity carried out after a ruling for renewal/restitution of the trial is issued. It is not independent but an activity dependent on the ruling for renewal/restitution of the trial. A ruling for renewal/restitution of the trial can only be issued by the first-instance court that owns the ruling. Review authorities, and therefore the AYM, do not have the authority to issue a ruling for renewal/restitution of the trial. That is, the AYM cannot take the place of the court that issued the ruling and issue a ruling for renewal/restitution of the trial. It cannot force courts to conduct a retrial with its own ruling. It is content only with issuing a violation ruling. Therefore, the expression "...court obliged to conduct a retrial..." in this article provision cannot be interpreted contrary to the authority of the Court of Cassation and the Council of State to be the "...final review authority..." stemming from the Constitution.

The AYM, on the other hand, states that the "retrial" envisaged in Article 50 of Law No. 6216 and the "renewal of trial" regulated in the Criminal Procedure Code (CMK) and the "restitution of trial" regulated in the Civil Procedure Code (HMK) have different results. The AYM goes even further and claims that courts do not have the discretion to issue a ruling for renewal/restitution of the trial regarding violation rulings in individual applications.

The AYM states that, unlike their own procedural laws, lower courts are obliged to conduct a retrial as soon as the AYM ruling reaches them without waiting for the application of individuals, and that they cannot even conduct an "admissibility review" unlike the institution of renewal/restitution of trial in procedural law, and that it is mandatory to fulfill the requirement of its own violation ruling on the merits. If lower courts have no discretion left in a retrial, this turns into a duty to execute the ruling, not a retrial.

This approach is fundamentally contrary to the institution of renewal/restitution of trial. The AYM cannot make determinations in its violation rulings that would render the provisions of renewal of trial in the CMK and restitution of trial in the HMK inapplicable. Because "retrial," as mentioned, is a judicial activity carried out only after a ruling for renewal/restitution of the trial. How this will be is also regulated in the CMK and HMK. The AYM does not recognize the CMK and HMK provisions. Because instead of interpreting the "retrial" provision in its establishment law in accordance with the authorities of the Court of Cassation and the Council of State to be the "...final review authority..." stemming from the Constitution, it interprets it contrary to these provisions. Ignoring the Constitution, it eliminates the authorities of the Court of Cassation and the Council of State, placing itself in the position of a super-cassation court. When this happens, it bypasses both the Constitution and the CMK and HMK provisions by putting forward fabricated theses as if "retrial" were a procedural law institution separate from the renewal of trial. With these interpretations contrary to positive law, the AYM establishes a hierarchical relationship between itself and other courts in terms of the effect of rulings, seeing itself as the highest authority of the judiciary.

Again, the AYM's interpretations that elevate itself to the position of a super-cassation court above ordinary legal remedies are also contrary to the system of separation of judiciary accepted in the Constitution. According to the constitutional system, judicial, administrative, and constitutional judiciaries are separate branches of the judiciary, and it is legally impossible for AYM rulings to be expanded through interpretation in a way that would have a direct effect in these branches of the judiciary.

All these stated attitudes of the AYM are very clear judicial activism.

However, the AYM cannot change the result of a ruling issued in a case through the individual application path. It cannot conduct a review of expediency. It cannot issue a ruling such as release, stay, or annulment. It cannot make recommendations or suggestions to courts for rulings to be issued in these directions. Such a recommendation or suggestion is also contrary to Article 138 of the Constitution. The AYM only determines the violation. The discretion and evaluation authority regarding the elimination of this violation belongs only to the relevant lower courts, the Court of Cassation, or the Council of State.

For this reason, it is extremely accurate and strictly in accordance with positive law that the Court of Cassation and lower courts continue to apply the institution of renewal of trial according to their own procedural laws, stating that the AYM is not a super-cassation authority and that issuing a ruling in a way that would completely eliminate the courts' discretion is contrary to judicial independence.

4. Distortion of the Constitution's regulation on jurisdictional disputes

In the final paragraph of Article 158 of the Constitution regarding the Jurisdictional Disputes Court, it is stated that "In jurisdictional disputes between other courts and the Constitutional Court, the ruling of the Constitutional Court is taken as the basis." This provision has nothing to do with individual application rulings.

The authority of the Jurisdictional Disputes Court relates only to jurisdictional disputes between the Court of Cassation and the Council of State and judicial and administrative judicial authorities. The Jurisdictional Disputes Court cannot look at jurisdictional disputes between the Court of Cassation, the Council of State, and other courts and the AYM. For this reason, there is a provision in the Constitution that grants superiority to AYM rulings in this regard.

The cited provision relates to how a problem will be solved if a "who is the authorized court" problem arises between courts and the AYM on a certain matter. This is only possible in criminal cases. In a criminal trial, a problem may arise as to whether the Supreme Council or criminal courts or criminal chambers are authorized. For example, if a jurisdictional dispute arises as to whether a high-level public official will be tried in a general court or in the AYM in the capacity of the Supreme Council, the AYM's ruling regarding jurisdiction is taken into account.

It is clear from the nature of the work that such a jurisdictional dispute will not arise in norm review or party closure cases. In individual applications, a jurisdictional dispute as to who will look at a matter never arises between courts and the AYM. Because the AYM cannot look at a matter that falls under the jurisdiction of the courts as an ordinary judicial authority. Courts also cannot conduct trials on matters that are the duty of the AYM.

In summary, this provision relates to procedure and concerns the jurisdiction of the courts. The jurisdiction provision is not related to the merits; it cannot be taken into account in the courts' rulings on the merits, for example, in disputes on the merits that arise between the Court of Cassation and the AYM.

5. Non-application of Article 14 of the Constitution

Legislative immunity is not regulated as absolute in Article 83 of the Constitution; some exceptions and limitations have been brought to legislative immunity. The situations in Article 14 of the Constitution are among these exceptions. The Court of Cassation has determined which crimes fall within the scope of the phrase "situations in Article 14 of the Constitution" within the framework of laws and in a way that ensures legal certainty and predictability.

The AYM has also repeatedly emphasized in its established case law that the "principle of certainty" expresses not only legal certainty but also legal certainty in a broader sense, and that legal certainty can also be ensured through case law. The AYM changing its aforementioned established case law in some selected individual applications is a violation of the principle of legal certainty by the AYM itself. The AYM's reliance on the lack of legal regulation is also an overreach of authority. Because the AYM does not have the authority to review "lack of legal regulation."

With the rulings it has issued regarding parliamentary immunity, the AYM causes much more severe consequences in the legal world than individual nature. The AYM makes it impossible to apply the regulation in Article 14 of the Constitution for imprisoned/convicted MPs with forced justifications that are contrary to the Constitution, criminal laws, and the case law of both the AYM and the Court of Cassation. It implicitly repeals the provision regarding the exception to legislative immunity regulated in the Constitution, rendering it dysfunctional. The removal or implicit repeal of any provision of the Constitution by the AYM through the individual application path is in itself contrary to the Constitution.

According to the Constitution, the AYM cannot position one constitutional provision above another constitutional provision. It cannot take the provision in Article 13 of the Constitution, which states that a fundamental right and freedom can only be limited by law, as a basis and make the application of Article 14 impossible. The AYM cannot review the constitutionality of a Constitutional rule through the individual application path, cannot issue a ruling in a way that would create a hierarchy between Constitutional rules, and more importantly, cannot establish a ruling aimed at ignoring or not applying an existing Constitutional rule. The AYM cannot make a priority ranking between Constitutional articles, cannot remove, render ineffective, or implicitly repeal any provision of the Constitution through individual application or norm review. Undoubtedly, according to Article 11 of the Constitution, Constitutional rules are norms that must also be complied with by the AYM. The rulings issued by the AYM in the files of MPs are a clear violation of the rule regarding the supremacy and binding nature of the Constitution in Article 11 of the Constitution.

The AYM rendering a provision of the Constitution invalid through a judicial ruling, making it inapplicable, or characterizing it as a provision that should be neglected is merely exercising the Constitutional amendment authority that belongs to the legislative organ. This attitude is another indicator of judicial activism.

The AYM's review regarding individual applications is a guiding review, not a hierarchical one. The AYM is not a super-cassation court. The AYM is not a hierarchical review authority, it is only a guiding review authority.

The prerequisite for making an individual application to the AYM is the existence of finalized and exhausted ordinary legal remedy final court rulings. However, the AYM has also granted the possibility of individual application for finalized court interim rulings other than finalized final rulings through case law. Moreover, with some rulings it has issued on interim rulings in this way, the AYM also makes evaluations regarding the merits of the ongoing trial and affects the merits of the case. The problems of expanding individual application in this way through case law have been mentioned above.

The review of finalized final rulings can be done both formally and on the merits. Because in an application made against a finalized final ruling for which ordinary legal remedies have also been exhausted, it can be accepted that all conditions for review on the merits as well as formal review have been met, since the relevant file has a completed content.

However, the review of finalized interim rulings should be done formally, and the merits part should be looked at only to the extent that it helps formal review and limited only to the relevant interim ruling. In the review of finalized interim rulings, a review cannot be conducted as if a finalized final ruling had been issued in the relevant file; if it is done, this would be an overreach of authority. Conducting a review in this way without exhausting ordinary legal remedies and on matters that should be reviewed in ordinary legal remedies also constitutes a violation of the Constitution.

While this is the situation, the AYM, in the review of finalized interim rulings, for example, in individual applications made regarding detention, overreaches its authority and enters into a detailed review of the merits, evaluating evidence. This attitude of the AYM is going beyond legal boundaries in review. However, the AYM cannot conduct a review that would enter into the merits of the case in finalized interim rulings. For example, in an application regarding a detention ruling, the AYM can only conduct a review on whether the procedural guarantees of the detention ruling have been provided. When it detects a violation, it can only issue a violation ruling in terms of the right to personal liberty and security and send the ruling to the relevant court for a retrial. Going beyond this and conducting a review and issuing a violation ruling in terms of another right involves an evaluation regarding the merits of the trial. This situation results in unauthorized interference with the actual trial.

The issue of the binding nature of the AYM's individual application rulings is a completely different matter from the binding nature of the rulings of cassation authorities.

Although cassation courts are hierarchical authorities, their rulings are not definitively binding at the first stage; they are subject to the preference of the courts that issued the ruling in the direction of compliance or resistance. Both in the Court of Cassation and in the Council of State, first-instance and regional courts have the right to resist against chamber rulings issued as a cassation authority. The authority to issue a definitively binding ruling in the cassation chain belongs only to the general assemblies of the cassation chambers. (Court of Cassation CGK and HGK, and Council of State İDDGK and VDDGK)

In a judicial system where first-instance and regional courts have the right to resist against the rulings of cassation chambers, claiming that AYM rulings are binding with a finality that must be implemented immediately does not align with law or logic.

The AYM's individual application rulings are final. However, these rulings do not have absolute binding force regarding their immediate implementation on the merits in line with the AYM's retrial decision. The binding nature of AYM rulings on courts is the obligation for the file in which the violation is detected to be re-handled and evaluated by its court, limited to the subject related to the violation. Re-handling occurs as renewal or restitution of the trial in finalized final rulings, and as re-evaluation in finalized interim rulings.

Indeed, violation rulings issued by the ECHR regarding finalized final rulings have been regulated as one of the reasons for renewal or restitution of the trial in both the CMK (art. 311), the HMK (art. 375), and the İYUK (art. 53). That is, our positive legal system, let alone accepting the violation rulings issued by the ECHR regarding finalized final rulings as directly binding, has only made them the subject of renewal or restitution of the trial, which can only be activated by application. So much so that from the finalization of the ECHR's violation ruling; if the interested parties do not apply to the court for restitution of the trial within 1 year in criminal law (CMK art. 311) and within 3 months in private law (HMK art. 377), the ECHR's violation ruling no longer has any effect on the finalized court ruling. That is, ECHR rulings, let alone having absolute binding force, are of a nature that the possibility of producing legal results disappears when an application is not made as a reason for renewal or restitution of the trial.

So, what is the effect of the ECHR's violation rulings when they are made a reason for renewal/restitution of the trial? Again, there is no absolute binding force here. When there is a renewal of the trial in criminal law, the court, after accepting the restitution of the trial according to the CMK, opens a hearing and either approves its previous ruling or annuls the previous ruling and establishes a new ruling. (CMK art. 323)

In the same way, in private law trials, after the restitution of the trial is accepted, the court, at the end of the retrial, either approves the issued ruling or establishes a new ruling by partially or completely changing it. (HMK art. 380)

As can be seen, the violation rulings issued by the ECHR for finalized final court rulings do not have the power to have a direct effect on the relevant court rulings, nor do they have an absolutely binding legal result when courts conduct a retrial through renewal/restitution of the trial. Courts can evaluate the merits of the ECHR ruling and find their previous rulings appropriate in accordance with their old opinion, or they can take the violation ruling into account and issue a partially or completely new ruling. This clearly shows that ECHR rulings are not hierarchical but guiding rulings.

These approaches are essentially valid for the AYM's violation rulings in individual applications as well. In a system where violation rulings issued in the review of finalized final rulings are not binding on the merits, it is a situation that is valid a fortiori that violations issued in the review conducted for interim rulings such as detention are also not binding on the merits. When the AYM issues a violation ruling regarding finalized interim rulings, courts re-evaluate the interim ruling subject to the violation in the relevant file, and the binding nature is limited to this. The court conducting the re-evaluation, as determined by legal rules in the renewal or restitution of the trial, either continues with its previous ruling or changes its previous ruling and issues a new ruling.

As can be seen, the nature of the AYM's violation rulings, whether issued for finalized final rulings or finalized interim rulings, is that they are only and entirely guiding rulings. Their binding nature consists only of the obligation to re-handle the relevant file and re-evaluate the matters in the violation ruling.

NEED FOR LEGAL REGULATION

There is a lack of normative regulation on many issues such as individual application, its results, and the nature of violation rulings issued as a result of individual application. The most important urgent need is to make clear legislative arrangements in the Constitutional Court law and other relevant laws to prevent the expansion of authority through interpretation.

The content, boundaries, and scope of the provisions regulated in Article 148 of the Constitution, "Individual application cannot be made before ordinary legal remedies are exhausted" and "No review can be made on matters that should be considered in legal remedies," must be clarified by law, and the AYM's review authority in individual applications must be concretized. With an amendment to the Constitutional Court's organization law, the practice of the AYM issuing a ruling that directly changes the result of a trial should be eliminated. A regulation should be made regarding "retrial" in Article 50 of Law No. 6216, and it should be ensured that this regulation is made compatible with the institutions of renewal of trial in the relevant procedural laws."