REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
FIRST SECTION
DECISION
Application No: 2012/998
Date of Decision: 7/11/2013
FIRST SECTION
DECISION
President
|
:
Serruh KALELİ
|
Members
|
:
Mehmet ERTEN
|
|
Zehra Ayla PERKTAŞ
|
|
Erdal
TERCAN
|
|
Zühtü
ARSLAN
|
Rapporteur
|
:
Recep ÜNAL
|
Applicant
|
:
Ramazan TOSUN
|
Counsel
|
: Att.
Cavit ÇALIŞ
|
I. SUBJECT
OF APPLICATON
1. The
applicant has claimed that his constitutional rights have been violated upon
the dismissal by the High Military Administrative Court (HMAC) of the case that
he has lodged with the request that the transaction concerning his ex officio
referral to retirement during the course of his service at the Turkish Armed
Forces (TAF) as a specialist gendarme.
II. APPLICATION
PROCESS
2. The
application was directly lodged at the Constitutional Court on the date of
7/12/2012. The deficiencies detected as a result of the preliminary administrative
examination of the petition and its annexes were made to be completed and it
was determined that no deficiency preventing their submission to the Commission
existed.
3. It was
decided on 18/3/2013 by the First Commission of the First Section that the
admissibility examination be carried out by the Section, that the file be sent
to the Section as per paragraph (3) of article 33 of the Internal Regulation of
the Constitutional Court.
4. In the
meeting that was held by the section on the date of 26/6/2013, it was decided
as per sub-paragraph (b) of paragraph (1) of article 28 of the Internal
Regulation of the Constitutional Court that the examination on admissibility
and merits be conducted jointly and that a copy thereof be sent to the Ministry
of Justice for its opinion.
5. The
Ministry presented its written opinion to the Constitutional Court on
28/8/2013.
6. The letter
of opinion of the Ministry was notified to the applicant on the date of
14/9/2013 and the petition of response to the opinion of the Ministry was
submitted by the applicant on the date of 16/9/2013.
III. FACTS
AND CASES
A. Facts
7. The facts
in the petition of application are as follows:
8. The
applicant graduated from the Specialist Gendarme School in 1994 and started his
service at the TAF.
9. The
Disciplinary Court of the 3rd Infantryman Training Brigade Command in Antalya
has established in its decision dated 25/8/2000 and No. M.2000/109, D.2000/107
that the applicant committed the offense of “insulting
an inferior” whereby it was ruled that he be sentenced to 25 days of
room confinement.
10. Moreover,
with the decision dated 13/3/2001 and No. M.2001/283, D.2001/71 of the Military
Court of Isparta Mountain Commando School and Training Center it was ruled that
the applicant who was proven guilty of 17 separate instances of the offense of
“battery and assault of an inferior”
be sentenced to 17 times of five days of imprisonment and that such
imprisonment sentences be converted into money and postponed.
11. The
disciplinary sentences of reprimand on the date of 3/1/1999, severe reprimand
on the date of 1/10/1999, two days of internment on the day of 29/5/2000, three
days of internment on the date of 22/8/2000, 1/25 pay cut on the date of
10/8/2000, severe reprimand on the date of 3/11/2000, 1/20 pay cut and warning
on the date of 7/4/2005, notice on the date of 2/9/2005, warning on the date of
27/10/2006, and 2 days of room confinement have been imposed regarding the
applicant.
12. Upon an
anonymous information that was received by the Department of Antismuggling and
Organized Crime Section at the Provincial Directorate of Security in Sinop,
which notified that a certain individual was in possession of drugs, the law
enforcers commenced surveillance at the place pointed out by the informant and
an individual who fitted to the description of the informant, upon realizing
the law enforcers, disposed of the plastic bag he was carrying in his hand in a
garbage truck that was later stopped and the plastic bag was confiscated to find
that it contained 1.8 kg of pieces of herbs that were used in the preparation
of cannabis, and the identity check of the suspicious person revealed that he
was a specialist sergeant who was posted at the Provincial Gendarmerie Regiment
Command in Sinop and being a military personnel he was handed to the Garrison
Command for prosecution transactions, and in his statement dated 9/1/2008,
which was taken by military authorities, he said that the cannabis was left to
him by the applicant who also served at the same unit and a third person and
upon other statements taken, prosecution regarding the applicant commenced.
13. On the
date of 14/1/2008, regarding the applicant, an efficiency document involving
the conviction that “His Continued Services
in the Armed Forces is not Appropriate” was drawn up by his senior efficiency officers as per
sub-paragraphs (b), (c) and (e) of article 70 of the Specialist Gendarme
Appointment and Efficiency Regulation, it was decided that the transaction of
separation be carried out as per article 71 of the same regulation and the transaction of separation was
completed on the date of 1/2/2008, upon the approval of the General Commander
of the Gendarme. The transaction of separation was notified to the applicant on
the date of 6/2/2008.
14. With the
indictment dated 14/2/2008 and No. M.2008/133, D.2008/12 of the Office of the
Chief Public Prosecutor in Sinop, a public action was filed at the Assize Court
in Sinop on grounds that the applicant, on the date of 8/1/2008 and on antecedent
dates, has committed the crimes of “trade or
provision of drugs and stimulants, night-time theft, accepting and giving
bribes and denigration.” By the Assize Court, the part of the
adjudication file concerning the offenses of “nighttime
theft and denigration” that have been attributed to the applicant
has been separated and recorded in the order of M.2008/30, the trial file
specified was sent to the Criminal Court of First Instance of Sinop following
the decision concerning lack of jurisdiction and trial was resumed regarding
other crimes, over the old file.
15. With the
petition dated 22/2/2008 that he wrote to the administration that established
the transaction of separation, the applicant requested information and
documents concerning the reasons for his separation from the TAF. The
justifications for the separation were notified to the applicant with a letter
of information, which bore no title with the signature, name, surname, rank and
titles of "(name and surname)/Gendarme
Staff Colonel/Chief of Personnel". The justifications for the
separation as indicated in the letter are as follows:
“…
a. As it was decided that the trials that have been
concluded in relation to the offenses of 'Battery and Assault of an Inferior'
(37 times) and 'Insulting an Inferior,' and the sentences of (3) warnings, (1)
notice, (2) severe reprimands, 1/25 pay cut, 1/20 pay cut and the total of (5)
days of internment and (2) days of room confinement that were ruled for (11)
separate disciplinary offenses and trespasses that he has committed, and the
prosecution that was ongoing as of the date of his dismissal due to the offense
of 'Trade and Provision of Drugs and Stimulants' which are the grounds for the
dismissal of your client and which are deemed to be of both the quality and
quantity that prevents him from service at the TAF, in compliance with
paragraphs (b, c and e) of article 70 of the Specialist Gendarme Appointment
and Efficiency Regulation that apply to his circumstances, the transaction of
dismissal from the TAF on grounds of Lack of Discipline and Moral Status, has
been established regarding your client."
16. The
applicant filed an action at the HMAC on the date of 4/4/2008 with the request
that such transaction
of separation be revoked, requesting a stay of execution within the scope of
this case and that a session be opened. The request for the stay of execution
by the applicant was dismissed with the decision of the First Chamber of the
HMAC dated 15/4/2008 and No. M.2008/1121, D.2008/484.
17. As a result of the trial, the Assize
Court with its decision No. M.2008/27, D.2008/50 dated 30/5/2008 has ruled for
the acquittal of the applicant of the offenses of “trade or provision of drugs and stimulants, accepting and giving bribes”
due to lack of evidence. This
decision was finalized on the date of 9/6/2008. The part of the justification
of the decision, which is related to the applicant is as follows:
“…
It was requested that the accused Ramazan be punished for
the offences of trade of drugs, accepting bribes; the accused concerning his
committal of the crimes that he is charged with ... it was understood that a
case was filed against him for his statements at the investigation stage that
he later has disacknowledged at the prosecution stage, that his name was on the
warrants of apprehension regarding persons who are alleged to have accepted
bribes for a sand deal, that it is not possible for a bribee to keep minutes as
such and that regarding the trade of drugs, no drugs were seized on his person
in any way, hence the lack of evidence regarding the allegations,
…”
18.
Submitting the finalized decision of acquittal, the applicant, on the date of
20/6/2008, requested a stay of execution for a second time and this request was
also dismissed by the First Chamber of the HMAC on the date of 1/7/2008.
19. The First
Chamber of the HMAC has opened a session on the date of 17/3/2009.
20. On the
other hand, as a result of the trial concerning the offenses of 'Night-time theft and denigration' the
Criminal Court of First Instance in Sinop has decided with its decision dated
19/4/2012 and No. M.2008/98, D.2012/191 for the acquittal of the applicant of
the said offenses due to lack of evidence. The part of the justification of the
decision, which is related to the applicant is as follows:
“…
According to the occurrence that has been accepted by our
court as established, although a public case has been filed about the accused
persons, Ramazan Tosun, ... for the offense of denigration; it has been decided
that the accused ... and the witness ... be acquitted as a result of failure to
obtain sufficient and credible evidence free from all sorts of doubt that they
have committed the crimes with which they have been charged; considering the
failure to support their statements in the trial file of the Assize Court of
Sinop with the merits no. 2008/27 with hard evidence during the ... stages,
regarding the entire scope of the file;
Although a public case has been filed about Ramazan Tosun,
the accused, ... for the offense of theft; since it is understood that
regarding the accused persons ... the minutes dated 20.12.2007, 08.06.2007,
16.10.2006, 29.06.2006, 17.06.2007, 29.06.2006 have been drawn up regarding
their hauling of sand from the shore, and since it is understood that as the
act is the one that necessitates a fine of administrative quality, the accused
... has been sentenced to a fine of administrative quality; since the legal
aspects of the offense of stealing sand have not formed, it was necessary to
decide that they be acquitted, each of them, of the charged offense
... "
21. The
applicant submitted to the First Chamber of the HMAC the minutes of the hearing
where the decision for acquittal of the Criminal Court of First Instance of
Sinop was announced on the date of 26/4/2012 and the justified decision on the
date of 8/6/2012.
22. The Chief
Public Prosecutor appealed the decision of acquittal of the Criminal Court of
First Instance on the date of 22/5/2012 against the accused with the justification
that it was established that they committed the offense of denigration. The
process of trial within this scope has not yet been concluded regarding the
offense of denigration, with the appeal investigation ongoing.
23. At the
end of trial the First Chamber of HMAC dismissed the applicant's request
concerning the revocation of the transaction of separation by majority of votes
with its decision dated 26/6/2012 and no M.2011/484, D.2012/759 and the
decision was notified to the applicant on the date of 17/7/2012.
The
justification of the decision is as follows:
“…
Although it is understood that a public case has been filed
against the claimant as a result of offenses of 'trading drugs,' 'accepting
bribe,' 'night-time theft' and 'denigration' and that it was decided that he be
acquitted of all offenses at the end of the criminal trial that was conducted;
yet the actions and three offenses he was acquitted from due to lack of
evidence, which he was involved as a staff of the gendarme whereby he was in
close contact with the public has to be separately examined from the standpoint
of the transactions that are the subject of the case as well as from that of
administrative law. When the justified judgments where decision of acquittal
has been taken regarding transactions that are linked with the offenses
concerned are examined, it is evaluated that the actions that the claimant was
involved in are non-negligible, both qualitatively and quantitatively; that the
claimant was involved in actions that are unacceptable, considering the witness
statements and the claimant being a staff of the TAF and a law enforcer, that
the possibility that the claimant who was involved in such acts to serve at the
TAF no longer exists, that the discretionary authority as exercised by the
defendant administration has been exercised within objective limits and it has
been established that the transaction which is the subject of the trial has no
dimensions that are contrary to the law.
…”
The
justification for the dissenting vote of the decision is as follows:
"In article 70 of the ... Regulation it has been
clearly indicated that in the establishment of the transaction of separation,
his present rank and his lack of discipline in his previous rank have to be
taken into consideration. It is seen that the claimant during his two previous
ranks has been sentenced to the disciplinary penalties of two 'warnings,' one
'pay cut,' one 'notice' and 'two days of room confinement,' displaying no other
lack of discipline other than the four separate offenses the trial of which are
ongoing on the date of establishment of the transaction of separation. On the
other hand, it is an undisputed fact that the transaction of separation that
has been established regarding the claimant has been based on public trials
that were later concluded in acquittal.
It is understood that the claimant, regarding his efficiency
progress purports a 'good' degree of efficiency inclination and the negative
convictions that have been stated for five efficiency periods are not of a dire
quality. It is seen that the claimant who was awarded with 16 appreciations has
been acquitted of four separate offenses that have been taken as the basis for
the transaction of separation and has no convictions whatsoever.
Within this framework, being of the opinion that the
transaction of separation that has been established about the claimant remains
not in the confines of the principle of proportionality, that the balance
between the public good and individual good could not be protected and the
discretionary authority has not been exercised within objective borders, that
the dismissal of the case was ruled upon interpreting the actions that he has
been involved in because of offenses for which a decision of acquittal was
taken signals in the direction of a matter that is legally debatable, and as I
am of the conviction that a decision for the revocation of the transaction of
separation has to be taken, I could not join in the respected decision of the
majority that has formed contrariwise."
24. The
applicant resorted to the remedy of correction on the date of 18/7/2012. During
this process the opinion of the Office of the Chief Prosecutor's Office at the
HMAC dated 13/9/2012 was notified to the applicant on the date of 25/9/2012.
25. The
applicant submitted his statements in response to the opinion of the Office of
the Chief Prosecutor to the First Chamber of the HMAC on the date of 26/9/2012.
26. With the
decision of the First Chamber of the HMAC dated 19/10/2012 and no M.2012/1340,
D.2012/1106 the request of the applicant for correction was dismissed and this
decision was notified to the applicant on the date of 15/11/2012.
27. The
applicant lodged an individual application to the Constitutional Court on
7/12/2012 within its due period.
B. Relevant
Law
28. Article
70 of the Specialist Gendarme Appointment and Efficiency Regulation with the
side heading of 'Procedures of separation
because of lack of discipline and moral status' is as follows:
“Regarding specialist gendarmes the continuation of
the services at the Armed Forces of whom is deemed to be inappropriate, as a
result of one of the reasons below and because of lack of discipline or their
moral status, which is understood from one or more documents that belong to
their present or previous ranks, the transaction of retirement is effectuated
regardless of their duration of service:
a. Display of
discipline-perverting conduct, failure to self-improve despite warnings and
punishments,
b. Failure to regulate his/her own conduct and attitudes
to fit the requirements of the service despite warnings,
c. Excessive self-indulgence, drinking and gambling,
d. Excessive inclination
towards borrowing money and having grown the habit not to pay such debts in a
way to tarnish the reputation of the Turkish Armed Forces, with the exception
of obligatory cases such as alimony, road accidents, natural disasters,
extraordinary economic fluctuations within the country beyond the foresight of
the staff, sudden devaluations, health and treatment expenditures and
suretyship and so on.
e. Displaying immoral conduct in a way to discredit the
reputation of the Turkish Armed Forces.
f. Those who
are understood from their behavior and attitudes to have embraced illegal
political, subversive, separatist, fundamentalist and ideological views and to
have conducted or have involved in such acts.
29. Article
71 of the Specialist
Gendarme Appointment and Efficiency Regulation with the side heading of 'Preparation of a certificate of separation because
of lack of discipline and moral status and the procedures to be followed '
is as follows:
“The certificate of separation to the effect of
'Continuation of Services at the Armed Forces is not Appropriate' regarding
specialist gendarmes who will be subjected to the transaction of separation
because of their lack of discipline and moral status shall only be prepared by
the military efficiency superiors thereof. Such efficiency superiors who have
prepared efficiency documents regarding specialist gendarmes as such, for the
purposes of information, shall notify the first civil efficiency superior of
the specialist gendarme with a confidential, private letter, immediately after
the arrangement of the efficiency.
There are no requirements as to the timing of the
preparation of such certificate of separation as a result of lack of discipline
and moral status and such a document can always be prepared. Other qualities
with the exception of basic qualities cannot be marked. After they indicate in
the section of the efficiency document that is allocated for basic qualities
and the section of the last part that has been allocated to their convictions,
on which grounds of lack of discipline or of moral status as in article 70 of
the regulation they have established their final convictions, the efficiency
superiors shall write down and undersign the conviction of 'Continuation of
Services at the Armed Forces is Deemed Inappropriate' and attach the documents
required thereto so as to ensure the writing-down of the convictions of all of
the line superiors of efficiency without delay after which they shall send the
document to the Personnel Division of the General Command of the Gendarme.
The efficiency superior who does not agree in such opinion
regarding a specialist gendarme about whom a certificate of separation has been
drawn up on grounds of lack of discipline and moral status shall write and
undersign in the section allocated for his/her convictions, with the
justification thereof, his/her conviction of 'I do not Agree with the
Conviction that his/her Continuation of Service at the Armed Forces is
Inappropriate' without marking the qualities except for basic qualities.
Such efficiency documents that are thus forwarded to the Personnel
Division of the General Command of the Gendarme shall be examined by the
respective sections, comparatively with other files and documents that are
found at the headquarters and be referred to the commission under the
chairmanship of the Chief of Staff, comprising of the chiefs of personnel,
intelligence and operations, chiefs of staffing and promotion and the heads of
sections they deem necessary, the directors of seniority, staff management
sections and the legal counsel or the director of legal affairs. After this
commission examines the compliance of the prepared efficiency certificate with
the law and regulations and the sufficiency and validity of the documents
attached thereto,and an evaluation is made. If need be, oral or written
opinions of efficiency superiors shall be obtained; information or documents
may be requested. Following the examination and evaluation that it has made,
the commission submits the decision that it has taken to the approval of the
General Commander of the Gendarme and transactions shall be carried out
depending on the approval to be received. Those the retirement of whom is
deemed appropriate by the General Commander of the Gendarme shall be
immediately discharged. The efficiency of those the retirement of whom is not deemed
appropriate shall be made into a protocol and put in their personal files and
the posts thereof shall be changed. For those about whom the majority of
convictions are in the form of 'Continuation of Service at the Armed Forces is
not Appropriate' and for those the retirements of whom are not deemed to be
appropriate by the General Commander of the Gendarme despite the majority or
the entirety of the convictions about them being in the form of 'Continuation
of Service at the Armed Forces is not Appropriate,' a normal efficiency shall
be prepared by the efficiency line superiors of the post where they are
appointed anew, within that efficiency year. The efficiencies of Specialist
Gendarmes who are in such situation that have been drawn up to indicate that
their 'Continuation of Services at the Armed Forces is not Appropriate' shall
be converted into grades by the Personnel Division whereby the conviction
'Continuation of Services at the Armed Forces is not Appropriate' shall have
(20) points and each of the convictions in disagreement with this judgment
shall be given (60) points. The efficiency note of the gendarme who is in such
a situation for the year concerned shall be the average of the grade point
averages that have been established in both efficiency documents. The
efficiency note for the year concerned of those regarding whom an efficiency
document could not be drawn up due to the failure to satisfy the conditions
specified in this Regulation shall be the note on the certificate of
separation. Whether or not that gendarme gets a promotion for the year
concerned on grounds of the efficiency note that has been found by way of the
calculation of the efficiency note as explained above shall be determined by
the Personnel Division.
Of the specialist gendarmes regarding whom the preparation
of an efficiency of 'Continuation of Services at the Armed Forces is not
Appropriate' is required due to the acts that have been specified in this
article, regarding those for whom the forwarding of the existing documents to
inferior ranks is deemed to be inconvenient, an efficiency document on the
basis of such documents can be prepared at least by the
Brigade/Regional/Division Commander or the superior officer of a unit,
headquarters and institution who is of an equivalent rank, and the General
Commander of the Gendarme. For the efficiency documents that have thus been
drawn up, definite transactions shall be made in the direction of the
principles indicated above.
IV. EXAMINATION
AND JUSTIFICATION
30. The
individual application of the applicant dated 7/12/2012 and numbered 2012/998
was examined during the session held by the court on 7/11/2013 and the
following were ordered and adjudged:
A. Claims
of the Applicant
31. The
applicant who was ex officio referred to retirement while he served at the
Turkish Armed Forces as a specialist gendarme has claimed that his right to a
fair trial as guaranteed under article 36 of the Constitution has been violated
when before the decision to dismiss the case concerning the revocation of this
transaction, the written opinion that has been prepared by the Office of the
Chief Prosecutor of HMAC was not notified to him, thus restricting his right of
defense.
32. Moreover,
the applicant has also claimed that his conviction to pay the fixed counsel fee
in favor of the Ministry of Interior was contradictory to the Constitution. He
has asserted that it is ensured in article 13 of the Constitution that the
basic rights and freedoms can be limited only by law and in relation to the
reasons specified in the respective article, and without interference in the
essence thereof; that this limitation must be proportional, that article 36 of
the Constitution falls well under article 13 whereby in article 36 there are no
provisions regarding limitation and that within this framework such freedom
cannot be limited even by law; moreover that, in paragraph one of article 91 of
the Constitution that regulates the authority to make decrees in the force of
law it is prescribed that the basic rights cannot be regulated by way of
decrees in the force of law and that it would not be proportionate even if one
would think otherwise and thus his freedom to claim rights has been violated.
33. Finally,
the applicant, upon reference to the criminal case that has ended up in
acquittal as justification, the justification of this decision and the witness
statements within the scope of the file, has asserted that the presumption of
innocence that is regulated in paragraph four of article 38 of the Constitution
has been violated by the HMAC, who dismissed the action for annulment filed by
him.
B. Evaluation
1. In Terms of Admissibility
a. Regarding
the Complaint that the Opinion of the Office of the Chief Prosecutor has not
been Notified
34. He has
asserted that his right to defense was limited, hence his right to a fair trial
was violated when he was not notified of the opinion that was prepared by the
Office of the Chief Prosecutor at the HMAC before the decision to dismiss the
action for annulment.
35. In the
letter of opinion of the Ministry it is indicated that the principle of
equality of arms is one of the elements of the right to a fair trial, that this
principle means that the parties of a case be subjected to the same conditions
regarding procedural rights and that parties have the opportunity to present
their claims and defenses reasonably before the court without any one of them
being imposed upon a weaker position, and that this principle must be adhered
to in civil and administrative cases of conflicts concerning civil rights and
liabilities, in addition to penal cases. In the letter of opinion it was stated
that in the previous Miran v. Turkey
decision concerning this matter of the European Court of Human Rights (ECtHR)
it was found that because of not notifying the parties of the opinion of the
Chief Prosecutor of the HMAC who has carried out an independent examination of
the file that s/he has later submitted to the court, the principles of equality
of arms and adversarial trial had been violated; and in the individual
application decision dated 16/5/2013 No. 2013/1134 of the Constitutional Court
it was indicated that notification of the opinion of the Chief Prosecutor to
the parties in order for them to examine it and providing them the opportunity
to prepare their opposing views is a requirement of the right to a fair trial.
Moreover, in the letter of opinion of the Ministry it was also stated that the
ECtHR had decided that it was not possible to say that the applicant was
bereaved of a procedural opportunity that would have affected the outcome of
the trial as a result of the opinion of the Office of the Chief Prosecutor not
being notified in advance during the first instance trial of the applicant in
case that the applicant had not made any explanations as to which additional
theses s/he would have propounded had the opinion of the Office of the Chief
Prosecutor been notified to him during the first instance trial; that in the
event which is the subject of the application, the applicant had not made any
explanations as to which additional theses s/he would have propounded had the
opinion of the Chief Prosecutor been notified to him during the first instance
trial, whereby the claims of violation of rights of the applicant concerning the
principle of equality of arms and adversarial trial have to be considered
within this scope.
36. In his
petition of response, the applicant informed that in line with the case laws of
the ECtHR, non-notification of the claimant of the opinion of the Office of the
Chief Prosecutor in the HMAC case gives rise to the outcome whereby paragraph
(1) of article 6 of the European Convention on Human Rights (the Convention) is
violated, hence revealing the nature of the decisions of the ECtHR of the
rightfulness of his claims.
37. One of
the elements of the right to a fair trial is the principle of the equality of
arms. The principle of the equality of arms means that the parties of a case
are subjected to the same conditions regarding procedural rights and that
parties have the opportunity to present their claims and defenses reasonably
before the court without any one of them being imposed upon a weaker position.
This principle shall also prevail in cases of administrative quality whereby
the notification of the opinion of the Office of the Chief Prosecutor in
advance to the parties and the submission thereof for their perusal and that
they are provided with the opportunity to prepare their opposing views is a
requirement of the principle of equality of arms, and hence the right to a fair
trial. The ECtHR has too, decided that the fact that the opinion of the Office
of the Chief Prosecutor at the HMAC has not been notified to the parties in advance
is a violation of article 6 of the Convention (Miran
v. Turkey, App.No: 43980/04, 21/4/2009). Considering this, the law
maker has made a legal amendment and with article 60 of the Code No. 6318 dated
22/5/2012, which was published in the Official Gazette No. 28312 dated
3/6/2012, it has added a rule to article 47 of the Code No. 1602 that enables
the notification of the parties of the opinion of the Office of the Chief
Prosecutor by the Secretariat General and the parties to notify the Court, in
writing, of their responses within seven days starting from such notification
(App. No: 2013/1134, 16/5/2013, § 32-36).
38. In the
incident which is the subject of the application, the applicant on the date of
18/7/2012 recoursed to the remedy of correction against the decision of the
HMAC for the dismissal of the case. The Office of the Chief Prosecutor at the
HMAC, against such request, has informed its opinion with the letter dated
3/9/2012. The opinion of the Office of the Chief Prosecutor is as follows:
“… in line with the legal conditions applicable on the date when the
claimant has filed his case; considering that he would have been under no
obligation to pay the counsel's fee in the event that he was found not-right in
the case that he had filed against the MoND; it was evaluated that the
application to him, of the arrangements that have been introduced with the DIFL
No. 659 dated 02.11.2011 during the course of his case were not possible. In
this regard, the dismissal of the action for annulment on its merits and the
ruling concerning the counsel's fee in favor of the defendant administration is
against the law.
... however, it is deemed that since the ruling for the
counsel's fee in favor of the defendant administration is against the law, it
has to be decided that the request of correction be ACCEPTED from this aspect.
39. As is
seen, the opinion of the Office of the Chief Prosecutor on taking a decision
regarding the acceptance of the request concerning the correction in relation
to the counsel's fee and which is also partially in favor of the applicant was
notified to the applicant on the date of 25/9/2012 and the applicant submitted
his statements in response to the opinion of the Office of the Chief Prosecutor
to the First Chamber of the HMAC on the date of 26/9/2012. Within this
framework, the procedural lack that is claimed to have risen upon the
nonnotification of the opinion of the Office of the Chief Prosecutor in the
first instance trial has been remedied at the correction examination stage that
was carried out by the same chamber. Moreover, it is understood that such
opinion of the Office of the Chief Prosecutor is congruous with the opinion
delivered during the first instance trial, that no additional thesis has been
put forth against the applicant. Therefore, the applicant became aware of the
opinion of the Office of Public Prosecutor at the correction phase even though
it had not been notified at the first instance trial phase and he found the
opportunity to prepare his opinions in relation to this and submit them to the
court.
40. Moreover,
the applicant has made no explanations what so ever regarding additional theses
or evidences that he could not declare before the court and which are of the
quality to have affected the outcome had he been notified of the opinion of the
Office of the Chief Prosecutor at the first instance stage.
41. Within
the scope of the explanations above, it cannot be said that the procedural
lack, which is the subject of the application is in violation of the principle
of equality of arms since the applicant has by no means been bereaved of a
procedural opportunity that could have affected the outcome of the trial as a
result of the opinion of the Office of the Chief Prosecutor not being notified
beforehand, during the first instance trial.
42. For
reasons explained, as it is understood that the principles of equality of arms
and adversarial trial have not been violated within the scope of the HMAC
trial, which is the subject of the application, it has to be decided that the
application is inadmissible since it is 'clearly
devoid of basis' regarding the complaint that the opinion of the
Office of the Chief Prosecutor has not been notified.
b. Regarding
the Complaint Concerning the Ruling of a Fixed Counsel's Fee to the Detriment
of the Applicant
43. The
applicant has propounded that his freedom to claim rights that is prescribed in
article 36 of the Constitution was violated upon the ruling of the counsel's
fee against him with reliance upon an arrangement that became effective after
the filing of the case.
44. In the
opinion of the ministry it was stated that the right to access to courts which
means the right to litigate at courts in judicial matters shall also cover the
right to go to the court, that, according to the case law of the ECtHR the
right to access to the court is not an absolute right, that it can be subjected
to some limitations yet notwithstanding the latter, such limitations shall not
attain a degree to damage the essence of the person's right to access to
justice. Moreover, it was also stated that such limitations regarding the right
to access to court would only be accepted to be in compliance with paragraph
(1) of article 6 when they have a legitimate purpose and especially when there
is a reasonable relation of proportionality between the end that is aspired for
and the means that has been used. It was stated that
within this framework the ECtHR has decided that the principle that is applied
in civil proceedings and that is coined as the 'loser
pays' rule in the decisions of the ECtHR would not contradict
article 6 of the Convention per se, since it diverted prospective litigators to
bring excessive requests before the court in line with the arrangements
concerning the ruling of coverage of the court expenditures, for or against
depending on the value won or lost by one of the parties during proceedings. Nevertheless,
it was reminded that the amount of expense calculated in the light of the
special conditions of a certain case was an important factor in determining
whether or not the person's right to access to court was prevented. It was
stated that the ECtHR, in some applications that have been made against Turkey,
has decided that trial costs which are calculated with a consideration for the
specific conditions of the case and in line with the procedure of
proportionality were against the Convention; however, that in the incident
which is the subject of the application the counsel's fee, which is considered
to be included in trial costs was not calculated as per the principle of
proportionality but over the principle of a fixed price and by taking into
consideration the amounts that have been determined in the Minimum Attorneys'
Fee Tariff (AAÜT), and that such amount, when compared with other fixed figures
in the AAÜT, was observed to be congruous with them and moreover, that the fact
that the Decree in the Force of Code Regarding the Delivery of Legal Services
in Public Administrations within the Scope of the General Budget and in
Administrations with Special Budgets dated 26/9/2011 and no. 659 (DIFC No.
659), which serves as the basis for the counsel's fee that was ruled entered
into force during the course of the case and that this was assessed previously
by the Constitutional Court in the individual application decision No.
2013/1134 who decided that the claim concerning thereto was clearly devoid of
basis, and yet another issue worth attending to here was that the applicant
acted with the belief that a counsel's fee against him would not be ruled even
if his case would be dismissed as he filed the case, that such regulation that
became effective during the course of the case increased the risk the applicant
already took on by litigating, that there was a possibility that the applicant
would not consider paying such a counsel's fee had this regulation, which
entered into force during the course of the case been in force as he litigated,
and that within this framework, this arrangement, which entered into force at a
later stage charges the applicant with the liability to pay a counsel's fee
even if the event that the case would, even in part, end up in his detriment
even though he had no such liability at the outset of the litigation.
45. In his
petition of response, the applicant has indicated that the DIFC No. 659 that is
the grounds of the counsel's fee, which has been ruled against him has entered
into force on the date of 2/11/2011 whereas the case at the HMAC was filed on
the date of 4/4/2008, that the counsel's fee has to be considered in line with
the rules that are applicable on the date of the litigation and that under such
circumstances, the ruling of the counsel's fee against him is contradictory
with the principles of the state of law and proportionality and the freedom to
claim rights, which have been arranged in the Constitution.
46. With the
DIFC No. 659 that became effective upon its publication of the date of
2/11/2011 the ruling of a counsel's fee in favor of the administration in the
event of dismissal of the case was regulated. Certain liabilities can be
envisaged for the applicants in order to reduce the number of cases by
preventing unnecessary applications and thus concluding disputes within a
reasonable period of time without keeping the courts busy in vain. Determining
the scope of these liabilities falls within the discretionary authority of
public authorities. It cannot be stated that the right to access to court is
violated unless the envisaged liabilities render it impossible or extremely
difficult to litigate. Considering that on the date of the litigation the fee
would be unforeseeable as to in whose favor or to whose detriment it would be
during the trial phase, hence it is impossible to accept such fee as a cost
that has to be envisaged, that the cost liability that is brought about is a
procedural rule and that there are no provisions to prevent its implementation
during trial stages; it cannot be accepted that the counsel's fee, which has
been determined as fixed constitutes an intervention in the right to access to
court since in the charging of the applicant the case of whom is dismissed with
a counsel's fee no practices that are against the law or arbitrary are
identified. (App. No: 2013/1134, 16/5/2013, § 24; App. No: 2013/1613,
2/10/2013, § 38-40).
47. For
reasons explained, it must be decided that the application concerning the
ruling of a fixed counsel's fee against the applicant is inadmissible for being
'clearly devoid of basis' without
the application being examined regarding other admissibility criteria, since it
is explicit and understood as such that there are no interventions in the
freedom to claim rights.
Zühtü ARSLAN
did not agree with this opinion.
c. Regarding
the Complaint that the Presumption of Innocence was Violated
48. The
applicant, upon reference to the criminal procedure that has ended up in
acquittal, the justification of this decision and the witness statements within
the scope of the file as justification, has claimed that the presumption of
innocence that is regulated in paragraph four of article 38 of the Constitution
has been violated by the HMAC which dismissed the action for annulment filed by
him.
49. The
Ministry has not provided any opinion what so ever regarding the admissibility
of this part of the application.
50. This
complaint of the applicant is not clearly devoid of basis. Regarding such
complaint it should be decided that the application where no other reason is
deemed to exist to require a decision on its inadmissibility is admissible.
2. In Terms
of Merits
51. The
applicant has claimed that the HMAC that dismissed the action for annulment
that he has filed has violated the presumption of innocence, which has been
regulated in paragraph four of article 38 of the Constitution and paragraph (2)
of article 6 of the Convention by making reference to offenses regarding which
an acquittal was returned, the justification of such decision and to witness
statements as justification.
52. In the
opinion letter of the ministry it was stated that the presumption of innocence
means that the court or the members of the court trying the accused does not
act with the presumption that the accused has committed the crime with which he
is charged, that the presumption of innocence would be violated if a decision
relating to a person who is charged with any offense, which requires
punishment, reflects any views concerning the guiltiness thereof before that
person's guilt is proven according to the law. In the opinion letter of the
ministry it was also emphasized that the presumption of innocence is not a
security regarding only the procedure in criminal cases, that it has a wider
scope, that no representative of the state nor any institution thereof shall
pronounce a person as guilty before the guilt thereof has been established by a
court. It was stated in the opinion letter of the ministry that after a
decision of acquittal delivered in a criminal case, legal responsibility of the
individual can be determined in a case of compensation, which has been filed
with reliance upon the same incidents and that requires a burden of proof which
is less severe and however that, the civil court, in a case that is based on
the same material incidents with a previously filed criminal case has to act in
accordance with the decision of acquittal that has been taken as a result of
the criminal case. In the ministry's evaluation concerning the present case, it
was stated that the HMAC, in its decision which is the subject of the
application, has reviewed the material incidents that have been decided upon in
the criminal trial regarding the issue of referral to retirement that requires
a lower standard of proof, that it has not questioned the decision of acquittal
and that it has benefited as evidence from the statements, which have been
taken before the criminal judge and which are valid until established
otherwise.
53. The
applicant, in his petition of response, has indicated that although the outcome
of the criminal trial was expected as the trial of the case at HMAC was ongoing
it was decided that the case be dismissed despite the defendant being acquitted
of the offense for which he was tried, and that this is contradictory to
paragraph four of article 38 of the Constitution, that the resolution
concerning acquittal was not taken into consideration in his favor, and the
witness statements in the criminal case were accepted as evidence against him.
54. In the
justification of the decision taken by the HMAC as a result of the trial of the
case of revocation concerning the transaction of separation, the claim that the
presumption of innocence was violated by the inclusion of trials that resulted
in the decision of acquittal regarding the applicant, the qualities and
quantities of offenses within this scope and witness statements.
55. First of
all it would be beneficial to remember that the individual application
examination is an examination that is limited to the identification of
violations regarding constitutional rights and freedoms and elimination of the
outcomes thereof, and that it does not offer a legal examination opportunity as
is the case in the examination of remedy whereby the decision is reviewed with
all its aspects as per the rule 'In
individual application, examination cannot be done on matters that need to be
taken into account in the legal remedy' in paragraph four of article
148 of the Constitution (App. No: 2012/1027, 12/2/2013, § 26). Within this
framework, the issue concerning whether the decision taken by the HMAC as a
result of the trial concerning the action for annulment filed by the applicant
is legal or not remains outside of the scope of the examination of individual
applications as long as it does not concern constitutional rights and freedoms.
Within the scope of these explanations the material application has to be
examined within the confines of whether or not the constitutional guarantee
concerning the presumption of innocence was violated in the justification of
the decision of the HMAC.
56. In the
examination of an individual application, the common field of protection of the
Constitution and the Convention is taken as the basis for determining whether a
claim of violation falls into the jurisdiction of the Constitutional Court in
terms of subject or not (App. No: 2012/1049, 26/3/2013, § 18).
57. The
presumption of innocence which is the subject of the applicant's claim of
violation is arranged in paragraph four of article 38 of the Constitution and
paragraph (2) of article 6 of the Convention.
58. Paragraph
four of article 38 of the Constitution is as follows:
“No one can be deemed guilty until the guiltiness
thereof is established by a court order”
59. Paragraph
(2) of article 6 of the Convention is as follows:
"Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law."
60. The
presumption of innocence guarantees that the person is not accepted as guilty
without a final court decision that s/he has committed a crime. As a result
thereof, individual's innocence is 'essential'
and the burden of proof of guilt shall rest with the claimant and nobody can be
charged with the liability to prove his/her innocence. Moreover, nobody can be
considered as guilty neither by trial authorities nor by public authorities
until their guilt is established upon a decision of the court and no one can be
treated as guilty (App. No. 2012/665, 13/6/2013, § 26).
61. Within
this framework, as a rule, the presumption of innocence is a principle, which
covers persons who have been charged with an offense and regarding whom a
decision of conviction has not yet been given. Then, regarding persons for whom
the criminal charge has turned into a conviction and the guiltiness of whom has
been established, the claim of presumption of innocence no longer has a valid
footing as long as they no longer have the status of 'persons who are charged with an offense.' However, in cases
where in the end it is established that s/he has not committed the crime with
which s/he was charged or when it cannot be ascertained for sure that s/he has
committed such crime and a decision of acquittal is taken regarding the
accused, it shall be accepted that the presumption of innocence about the
person prevails. Because in such cases, within the meaning of paragraph 4 of
article 38 of the Constitution and paragraph (2) of article 6 of the Convention
the guilt of the person has not been established, hence s/he cannot be
considered as guilty for this reason.
62. Since the
presumption of innocence is valid in trials where a decision is made regarding
the crime charged, cases that are considered within the framework of the “conflicts regarding the civil rights and liabilities
thereof” which has been stated in article 6 of the Convention are,
as a rule, outside of the area of application of the presumption of innocence.
However, the administrative justice office in the establishment of the present
case which is the subject of conflict in the administrative case shall act in
compliance with the decision of acquittal as ruled previously by the criminal
court that has handled the same material case (for similar decisions of the
ECtHR see. X v. Austria, App. No:
9295/81, 6/10/1982, k.k.; C v. United
Kingdom, App. No: 11882/85, 7/10/1987, sd.). This rule, as long as
the decision of acquittal that is taken about the person is not questioned,
does not prevent that the person is imposed sanctions upon within the framework
of disciplinary responsibility (For similar decisions of the ECtHR see. Ringvold v. Norway, App. No: 34964/97,
11/2/2003, § 38)
63. Within
this framework, in administrative conflicts that are outside of the criminal
case but that are ongoing as a result of acts that are the subject of the
criminal case, even though a decision of acquittal is taken regarding the
individual, reliance upon incidents that are within the scope of the claim
which is included in the trial process that serves as the basis of such
decision and thus questioning the decision of acquittal contradicts with the
presumption of innocence. In return, as it serves as the basis for the solution
of the administrative conflict, mentioning of the phenomenon that the person
has been tried, even though s/he has been acquitted or of the decision in
relation thereto shall not suffice to be able to make reference that the person
has been treated as guilty and that the presumption of innocence has been
violated. For this, the justification of the decision
has to be taken into consideration as a whole and the final decision has to be
examined as to whether or not it is grounded on the acts that the person has
exclusively been tried for and acquitted of (App. No: 2012/665,
13/6/2013, § 29).
64. On the
other hand it would be beneficial to remember that the Criminal and the Code of
Criminal Procedure and the Disciplinary Code are disciplines that are subject to
different rules and principles. Accordingly, the behavior of a public official,
in addition to fitting into the definition of the offense, might also
necessitate a disciplinary responsibility. In such cases, the criminal
procedure and the disciplinary investigation shall be conducted separately and
the ruling of the criminal court is not directly binding for the disciplinary
offices apart from the rulings that the person has not committed the act that
s/he has been charged with that arise at the end of the criminal procedure
(App. No: 2012/665, 13/6/2013, § 30). However, evaluations as to the
not-guiltiness of the person which contradicts the decision of acquittal as
ruled about the person have to be refrained from, even though such are based on
lack of evidence in evaluations that are made within such scope.
65. In the
examination of the incident which is the subject of the application, in the
administrations reply in response to the applicant's question as to why he was
subjected to the transaction of separation the expressions “… that his prosecution concerning the offense of ... is
ongoing since the date when he was discharged, this is of the quality and
quantity to prevent his service at the TAF...” have been used.
Considering the military requirements of discipline, it cannot be said that the
presumption of innocence definitely requires that one waits until the
finalization of criminal cases so as for the disciplinary law to be applied.
Unless a trial which implies or accepts the guiltiness of the individual is
present, it can be considered to suffice when only an investigation has been
launched so as to commence disciplinary transactions or to impose disciplinary
sanctions. Hence, the expressions in the reply of the administration which made
reference to the investigations that have been launched about the person
concerned cannot be said to violate the presumption of innocence.
66. Although
it understood from the justification section of the decision of the HMAC,
wherein the compliance with the law of the transaction of separation is
inspected, expressions "that a public
case has been filed against the claimant as a result of offenses of 'trading
drugs,' 'accepting bribe,' 'night-time theft' and 'denigration' and that it was
decided at the end of his criminal trial that he acquits from all offenses; yet
his acquittal from three offenses due to lack of evidence, those which he has
been involved as a staff of the gendarme whereby he was in close contact with
the public has to be separately examined from the standpoint of the
transactions that are the subject of the trial as well as from that of
administrative law. When the justified judgments where decision of acquittal has
been taken regarding transactions that are linked with the offenses concerned
are examined, it is evaluated that the actions that the claimant was involved in are non-negligible,
both qualitatively and quantitatively; that the actions the claimant has been
involved in are unacceptable, considering the
witness statements and the claimant being a staff of the TAF and a
law enforcer, that the possibility that the claimant who has been involved in such acts serves at the TAF no
longer exists, that the discretionary authority as exercised by the defendant
administration has been exercised within objective limits and that the
transaction which is the subject of the trial has no dimensions that are
contrary to the law has been established as the outcome" have
been used.
67. As it is
seen, in the justification of the decision of the HMAC, trials that have been
carried out regarding the applicant, which have ended up in acquittal and the
justifications of such decisions of acquittal, the witness statements within
this scope and the qualities as well as quantities of the offenses that concern
the trial have been relied upon, and expressions acknowledging that the
applicant has committed the acts of which he acquitted have been used. During
the evaluation of the disciplinary status of the applicant, it was accepted
that he was involved in acts that are the subject of the decisions of acquittal
and his status of non-discipline was based on such acceptance. Within this
framework, it is seen from the expressions that are found in the justification
of the decision which is the subject of the application that the belief that
the applicant the guiltiness of whom was not established by the decision of the
court concerned has committed these acts and that he is guilty thereof is being
reflected. Thus, the Court in reaching the outcome that the transaction of separation
of the administration is in compliance with the law, has not assessed the
disciplinary status of the applicant according to the principles of
disciplinary law, separately from the criminal trial, and to the contrary, it
has made its ruling by reliance upon the justification of the decision of
acquittal of the criminal court and the acceptance that the applicant has
committed the acts for which he was tried. The expressions that the court has
employed in its justification cannot be said to be in congruity with the
principle of respect for the presumption of innocence.
68. Within
the framework of the explanations above, it has to be decided that the
presumption of innocence that is under the guarantee of paragraph four of
article 38 of the Constitution has been violated for in the justification of
the decision of the HMAC the criminal trial which has ended up in acquittal of
the applicant was referred to and as it is understood that the belief that the
applicant the guiltiness of whom had not been established by the decision of
the court has committed the acts that constitute the subject of the trial and
the belief that he is guilty is being reflected.
3. Regarding
Article 50 of the Code No: 6216
69. Article
50 of the Code on the Establishment and Trial Procedures of the Constitutional
Court dated 30/3/2011 and numbered 6216 with the side heading of ''Rulings'' is as follows:
"(1) At the end of the examination on merits, it shall
be decided that the right of the applicant has been violated or has not been
violated. In the event that a decision of violation is delivered, what needs to
be done for the removal of the violation and its consequences shall be
adjudged. However, legitimacy cannot be reviewed, no decision with the quality
of an administrative act and action can be delivered.
(2) If the determined violation arises out of a court
decision, the file shall be sent to the relevant court for holding the retrial
in order for the violation and the consequences thereof to be removed. In cases
where there is no legal interest in holding the retrial, the compensation may
be adjudged in favor of the applicant or the remedy of filing a case before the
general courts may be shown. The court, which is responsible for holding the
retrial, shall deliver a decision over the file, if possible, in a way that
will remove the violation and the consequences thereof that the Constitutional
Court has explained in its decision of violation.
…”
70. As the
violation determined in the case which is the subject matter of the application
arises from the decision of the court and as there is legal benefit in the
holding of a retrial, it should be decided that the file be sent to the
relevant court in order to carry out a retrial for the removal of the violation
and its consequences in accordance with paragraphs (1) and (2) of the Code
numbered 6216.
71. It should
be decided that the trial expenses of 2,812.50 TRY in total composed of the fee
of 172.50 and the counsel's fee of 2,640.00 TRY which were made by the
applicant and determined in accordance with the documents in the file be paid
to the applicant.
V. JUDGMENT
In the light
of the reasons explained: it was decided;
A. UNANIMOUSLY that the application
concerning the violation of the freedom to claim rights which is guaranteed by
article 36 of the Constitution because the opinion of the Office of the Chief
Prosecutor was not notified is INADMISSIBLE for being ''clearly devoid of basis,''
B. WITH THE MAJORITY OF VOTES and with the
dissenting vote of Zühtü ARSLAN that the application concerning the violation
of the freedom to claim rights which is guaranteed by article 36 of the
Constitution because the opinion of the Office of the Chief Prosecutor was not
notified is INADMISSIBLE for being 'clearly
devoid of basis,'
C. UNANIMOUSLY that the application
concerning the violation of presumption of innocence, which is guaranteed under
article 38 of the Constitution is ADMISSIBLE,
D. UNANIMOUSLY that presumption of
innocence, which is guaranteed under article 38 of the Constitution HAS BEEN
VIOLATED,
E. UNANIMOUSLY, that the file be SENT to
the relevant court in order to carry out a retrial for the violation and the
consequences thereof to be removed in accordance with paragraphs (1) and (2) of
article 50 of the Code numbered 6216,
F. That the trial expenses of 2,812.50 TRY
in total composed of the fee of 172.50 and the counsel's fee of 2,640.00 TRY,
which were made by the applicant be PAID TO THE APPLICANT,
G. That the payments be made within four
months from the date of application of the applicants to the State Treasury
following the notification of the judgment; if there happens to be a delay in
payment, legal interest be accrued for the period elapsing from the date when
this duration ends until the date of payment,
On the date
of 7/11/2013.
JUSTIFICATION
OF DISSENTING VOTE
In addition
to other matters, the applicant alleged that the fact that counsel's fee was
ruled upon in favor of the administration at the end of the trial is
contradictory to the principle of proportionality and also in violation of his
freedom to claim rights, yet the majority of our Court, however, decided that
the claim to this end was ''clearly devoid of basis''.
As it is
explained in detail in the justification of the dissenting vote in the decision
with the application date of 2/10/2013 and number of 2013/1613 of the First
Section of our Court, trial expenses such as the counsel's fee should not bring
a heavy economic burden on the individual in such a way as to impair the essence
of the right to access to court, they should be proportional. Thus, the
approach of the Constitutional Court and the European Court of Human Rights
regarding this matter is as such. (See. M.2011/54, D. 2011/142, D.D.:
20.10.2011; M.2011/64, 2012/168, D.D: 1.11.2012; App. No. 2012/791, 7/11/2013,
§ 66; Kreuz v. Poland (no.1),
App.No: 28249/95, D.D.: 19.6.2001, § 60; Apostol
v. Georgia, 40765/02, 28.11.2006, § 59; Minister/Turkey, App.No:
50939/99, D.D: 12.6.2007, § 70, 73; Mehmet
and Suna Yiğit v. Turkey, App.No: 52658/99, D.D.: 17.7.2007; Stankov v. Bulgaria, App.No: 68490/01,
D.D.: 12.7.2007, § 54, 67; Klauz v. Croatia,
App.No: 28963/10, D.D. 18.7.2013, § 97.)
Examining
whether or not the envisaged counsel's fee constitutes a heavy economic burden
on the applicant, is especially important regarding cases that are heard in
administrative justice. That any and all acts and transactions of the
administration are open for judicial review is sine
qua non for a state of law. Hence, article 125 of the Constitution
has regulated such important aspect of the state of law whereby articles 40 and
129 have prescribed that the damages arising from unrightful transactions of
the state be covered by the state. Such guarantees provided for the individual
against the administration are a natural outcome of the inequality in the
relation between the individual and the state. The Constitution has envisaged
the mechanisms required by the individual in seeking his/her rights by way of
judicial remedy against the administration which exercises public power.
The
disproportionate counsel's fee has the potential to render such mechanisms and
the guarantees they ensure, ineffective. The high amount of counsel's fee can
make it harder for individuals to claim their rights against the potential
arbitrary actions of the administration, create a deterrent impact especially
on individuals with a weak ability to pay in terms of filing a case and thus
render them defenseless against the administration.
In the
present application, the majority of our Court has reached the outcome that, in
charging the applicant with the liability to pay the counsel's fee with
reference to previous decisions where the test of proportionality was not run,
is no intervention in the right to access to court. However, a test of
proportionality had to be run with a consideration for issues such as what the
fixed counsel's fee of 2.400 TRY which has been ruled in detriment of the
applicant means under the circumstances of our country, the monthly income of
the applicant, his overall economic status, in brief, his payment power and the
special conditions of the case. A sum which can reach three times the monthly
minimum wage cannot be said to constitute no interventions in the right to
access to court at first glance, without being subjected to any examination.
Ruling on the
counsel's fee to the detriment of the applicant is an intervention to the right
to access to court under all circumstances. And whether or not such
intervention has led to any violations can be determined after a
proportionality examination which shall be carried out with a consideration for
the circumstances of the material application. Without such examination, it
cannot be said or presumed that the intervention concerned is proportionate.
With these
justifications, I do not agree with the majority decision to the effect that
the counsel's fee that was ruled upon to the detriment of the applicant without
conducting a proportionality test did not amount to an intervention to the
right to access to court and that the application is ''clearly devoid of
basis''.