FIRST SECTION
DECISION
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President
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:
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Serruh KALELİ
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Members
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:
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Zehra Ayla PERKTAŞ
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Burhan ÜSTÜN
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Nuri NECİPOĞLU
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Hicabi DURSUN
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Rapporteur
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:
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Yunus HEPER
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Applicant
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:
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İsmail TAŞPINAR
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Counsel
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:
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Att. Abdullah ERKOL
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I.
SUBJECT OF APPLICATION
1. The applicant asserted that his
right to a fair trial was violated due to the fact that he was not able to
participate in chamber elections as a result of the decision of the President
of District Election Board.
II.
APPLICATION PROCESS
2. The
application was lodged with the Constitutional Court on the date of 4/6/2013
via of the 3rd Civil Court of First Instance of Mersin. As a result of the
preliminary examination of the petition and annexes thereof as conducted in terms
of administrative aspects, it was found that there was no deficiency that would
prevent referral thereof to the Commission.
3. It was
decided by the First Commission of the First Section that the examination of
admissibility of the application be conducted by the Section and the file be
sent to the Section.
III.
FACTS AND CASES A. Facts
4. The
relevant facts in the petition of application are as follows:
5. The
applicant is a member of Mersin Chamber of Independent Accountants and
Financial Advisors (SMMMO). The applicant wanted to participate, with the title
of the president of the Group of Unity in Profession, in the chamber elections
held on the date of 12/5/2013 for identifying the organs of the SMMMO.
6. The list of
candidates that was submitted in the name of the group which the applicant was
the president of was rejected by the Council Presidency on the justification
that all candidates need to submit petitions separately.
7. The
applicant removed the deficit and wanted to re-submit the list to the Council
Presidency, but the Council Presidency did not accept the candidate list on the
justification that the deficit was not removed within the given duration of
time.
8. The
objection that the applicant filed against this decision of the Council
Presidency was voted at the General Assembly of the Chamber and was rejected.
9. The
application of objection that the applicant filed in order for the chamber
election to be canceled was rejected through the decision of the Presidency of
the 1st District Election Board of Akdeniz dated 14/5/2013. The Presidency of
the District Election Board based its justification for the rejection on the
provision "The petitions in relation to the candidacy of the persons
from groups who will stand as candidates shall be submitted to the presidency
after being added to the group list" in Additional paragraph 1 of
article 22 of the Regulation of the Chamber of Sworn-in Financial Advisors in
relation to the principles of election of the chamber organs. The Presidency of
the District Election Board rendered its decision as final.
10. The
applicant placed a request for a correction of decision against the decision of
the Presidency of the 1st District Election Board of Akdeniz; the Presidency
decided in its decision dated 17/5/2013 that the request for the correction of
decision be rejected on the justification that it cannot be understood from the
petition itself for what purpose the petition was submitted to the Presidency
and presented to the General Assembly dated 11/5/2013 and which contained the
statement in its contents "we affix an annotation to article 10 of the
general assembly" was given; that the revocation of the decisions of
the presidency "was possible by means of union or court decisions".
B.
Relevant Law
11. Paragraphs 1, 6, 7, 9, 12, 13
and 15 of article 40 with the heading "Principles of election of
chamber and union organs" of the Code of Independent Accountancy
Financial Advisorship and Sworn-in Financial Advisorship dated 1/6/1989 and
numbered 3568 are as follows:
“The election of the organs of the chambers and the
union shall be held with secret ballot and the election proceedings shall be
carried out under judiciary oversight in accordance with the following
principles.
...
The judge shall appoint an election ballot box board
composed of a chairman and two members among public servants or among members
who are not candidates. Similarly, s/he shall also designate three substitute
members. In the absence of the chairman of the election ballot box board, the
oldest member shall preside over the board.
The election ballot box board shall be in charge of
the execution, management of the elections and the counting of votes according
to the principles prescribed by law and continue to perform these duties
uninterruptedly until the end of the election and classification action.
...
In elections, members can stand as independent
candidates or also stand as candidates from the lists of groups that they will
form among themselves. Separate ballot papers shall be established for
memberships to boards and representatives for General Assembly of the Union. On
ballot papers, those who stand as candidates from group lists shall be listed
under the name of the relevant group whereas independent candidates shall be
listed separately. Ballot papers shall be prepared in a way to indicate which
group or independent candidate will be voted for, for which board membership,
be copied by way of involving boxes in the form of squares which will be placed
with a mark next to the names of groups and of independent candidates, be used
after they are sealed with the seal of the district election board. Votes shall
be cast by way of placing a mark in the box that is next to the names of the
groups or independent candidates which are included on the ballot paper. Voting
proceedings shall be performed according to the principles of secret ballot and
open counting. A member of the profession the name of whom is not included in
the members' list cannot cast a vote. Votes shall be cast after the voter
proves his/her identity through a document issued by official institutions and
signs the place across his/her name on the list. Votes shall be cast by way of
being put in envelopes which bear the seal of the district election board and
will be handed over by the president of the ballot box board during voting.
Votes that are cast with a ballot paper and an envelope which do not have a
seal shall be deemed null and void.
...
At the end of the election period, results of the
election shall be determined through a minute and it shall be signed by the
chairman and members of the election ballot box board. In the event that there
are multiple ballot boxes, the minutes shall be combined by the judge.
Temporary results of the election shall be announced by hanging one copy of
each minute in the place of election. The votes that are cast and other
documents shall be delivered to the presidency of the district election board
for being kept for three months together with a copy of the minute.
The proceedings performed during the course of
election and the objections to be filed against the results of the election
within two days following the issuance of the minutes shall be examined by the
judge on the very same date and be concluded as final. Immediately after the
objection period expires and the objections are decided upon, the judge shall
announce the final results according to the above-mentioned provisions and
notify the related chamber and union.
...
In the event that the judge decides on the
cancellation of elections due to an irregularity or unlawful practice at an
extent to impact on the results of the election, s/he shall identify the
Sunday, which is no sooner than one month and no later than two months, when
the election will be re-held and notify the chamber and the union on this. Only
the election shall be held on the specified date and the election proceedings
shall be performed in accordance with this article and the other provisions
prescribed by law.
…”
IV.
EXAMINATION AND JUSTIFICATION
12. The individual application of
the applicant dated 4/6/2013 and numbered 2013/3912 was examined during the
session held by the court on 6/2/2014 and the following were ordered and
adjudged:
A.
Claims of the Applicant
13. The applicant asserted that the
right to a fair trial that is defined in article 36 of the Constitution was
violated due to the fact that the Presidency of the District Election Board
made a decision, on the matter, that was clearly against law although the
unlawfulness perpetrated was proved with concrete documents and, furthermore,
that the decision was rendered as final.
B.
Evaluation 1. Examination of Preliminary Issues
14. Paragraph
three of article 148 of the Constitution is as follows:
"Everyone can apply to the Constitutional Court
based on the claim that one of the fundamental rights and freedoms within the
scope of the European Convention on Human Rights which are guaranteed by the
Constitution has been violated by public force. In order to make an
application, ordinary legal remedies must be exhausted."
15. Paragraph
(1) of article 45 of the Code on the Establishment and Trial Procedures of the
Constitutional Court dated 30/11/2011 and numbered 6216 with the side heading ''Individual
application right'' is as follows:
"Everyone can apply to the Constitutional Court
based on the claim that one of the fundamental rights and freedoms within the
scope of the European Convention on Human Rights and the additional protocols
thereto, to which Turkey is a party, which are guaranteed by the Constitution
has been violated by public force."
16. According
to the provisions of the Constitution and Code that are cited, in order for the
merits of an individual application that is lodged at the Constitutional Court
to be examined, the right, which is claimed to have been interfered with by
public force, must fall within the scope of the European Convention on Human
Rights (ECHR) and the additional protocols to which Turkey is a party, in
addition to it being guaranteed in the Constitution. In other words, it is not
possible to decide on the admissibility of an application which contains a
claim of violation of a right that is outside the common field of protection of
the Constitution and the ECHR (App. No: 2012/1049, 26/3/2013, § 18).
17. Paragraph
one of Article 36 of the Constitution with the side heading "Freedom to
claim rights" is as follows:
"Everyone has the right to make claims and defend
themselves either as plaintiff or defendant and the right to a fair trial
before judicial bodies through the use of legitimate ways and means."
18. The
relevant part of article 6 of the ECHR with the side heading "Right to
a fair trial" is as follows:
In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law." ….”
19. In
paragraph one of article 36 of the Constitution, it is stated that everyone has
the right to make claims and defend themselves either as plaintiff or defendant
and the right to a fair trial before judicial bodies through the use of
legitimate ways and means. Since the scope of the right to a fair trial is not
regulated within the Constitution, the scope and content of this right needs to
be determined within the framework of article 6 of the Convention with the side
heading “Right to a fair trial” (App. No: 2012/13, 2/7/2013, § 38).
20. In article
6 of the Convention which regulates the right to a fair trial, it is stated
that the rights and principles in relation to a fair trial apply during the
rendering of a decision on the merits of "disputes regarding civil
rights and liabilities" and a "criminal allegation"
and the scope of the right is limited with these matters. It is understood from
this statement that, in order to be able to lodge an individual application
with the justification that the freedom to claim a right was violated, either
the applicant needs to be the party to a dispute regarding his civil rights and
liabilities or a decision needs to be made about a criminal allegation against
the applicant (App. No: 2012/917, 16/4/2013, § 21).
21. According
to the case law of the European Court of Human Rights (ECtHR) , the Convention
does not guarantee the right to a fair trial in terms of all rights and liabilities
which a person can assert to have. Article 6 of the Convention applies to a
trial procedure regarding the rendering of a decision on the "civil
rights and liabilities" of a person. In order to apply paragraph
number (1) of article 6 of the Convention to "civil" matters,
there needs to be a dispute first. Secondly, the dispute should be in relation
to "rights and liabilities" which could be said to have been
recognized by domestic law at least in a defensible way. Thirdly, the "rights
and liabilities" which are the subject matter of the dispute should be
"civil" in terms of their meaning in the Convention. Lastly,
the procedure that is requested to be taken within the scope of the right to a
fair trial needs to render a decision on the civil right and liability.
22. In the
present incident, the applicant wanted to participate in the elections held in
order to establish the Board of Directors and Disciplinary Board, which are the
organs of Mersin SMMMO, with the title of the president of the Group of Unity
in Profession; the Presidency Council of the General Assembly rejected the
application of the applicant for candidacy due its contrariety to the
application procedure. The applicant was not able to participate in the
elections due to his application for candidacy not being accepted and the
objection that the applicant lodged at the presidency of the district election
board was rejected. The applicant asserted that the decision of the district
election board violated his right to a fair trial. Therefore, in terms of
determining whether or not the applicant has the right to an individual
application, first it needs to be determined whether or not the right to stand
as a candidate in the chamber elections can be qualified as a "civil"
right.
23. The
understanding of dynamic interpretation that the ECtHR adopts in relation to
article 6 of the Convention leads to Court's avoiding to make an abstract
definition in relation to civil rights and liabilities. As a principle, the
concept of civil rights and liabilities takes private law cases under the
protection of article 6 of the Convention. However, through the case law it
developed, the ECtHR includes within the concept of civil rights and
liabilities, in addition to the disputes between private persons, the disputes
between the state and the individual, the private law qualities of which are
dominant, and states that this falls within the scope of article 6. This
approach of the ECtHR is in congruity with the tendency of the European states
to provide legal remedies also in fields where the states exercise a concession
that is based on public force.
24. As a
result of the comprehension of the right to a fair trial as a human right, the
most important result of ECtHR's expanding, through the case laws it developed,
the scope of the expression of "civil rights and liabilities"
was the expansion of the norm area of the right to a fair trial. As a result of
the expansion of the norm area of the right to a fair trial, individuals can
claim all legal rights and liabilities that they alleged to have had; at the
same time, they can object to, before courts, all kinds of interference the
state does with these rights and liabilities.
25. In
paragraph one of article 36 of the Constitution which regulates the freedom to
claim a right, it is stated "Everyone has the right to make claims and
defend themselves either as plaintiff or defendant and the right to a fair
trial before judicial bodies through the use of legitimate ways and means"
and thus the right to apply to judicial bodies as plaintiff and defendant
and, as a natural result of this, the right to claim, defend and to a fair
trial are guaranteed. Beyond having the quality of a fundamental right per se,
the freedom to claim rights that is protected by the article is one of the most
effective guarantees which enables the due enjoyment of other fundamental
rights and freedoms and their protection as per article 40 of the Constitution.
The most effective way for a person to defend himself against an injustice or
injury he suffered or assert and prove his rightfulness in the face of an
unjust practice or proceeding that he was subjected to and to remove the injury
he suffered is for him to be able to exercise his right to action before
judicial bodies (CC, M. 2013/71, D. 2013/77, D.D. 18/6/2013).
26. In the
determination of the scope of the right to a fair trial as included in article
36 of the Constitution, the tendency of the ECtHR to expand the scope of the
expression "civil rights and liabilities" should also be taken
into consideration. The ECtHR tends to expand the expression of "civil
rights and liabilities" in a way to include the defensible rights and
liabilities that a person has, irrespective of which area of law it falls into
and whether or not the state interfered with.
27. In the
present incident, the applicant wanted to participate in the elections in order
to assume a duty in the organs of Mersin SMMMO but his request to stand as a
candidate was rejected due to some procedural deficits. SMMMOs are professional
organizations having legal personality and a quality as public institutions
that are established in order to cover the needs of the members of the
profession, facilitate their professional activities, ensure that the
profession develops in conformity with general interests, safeguard
professional discipline and ethics for the purpose of rendering honesty and
trust dominant in the relations of the members of the profession with each
other and with the clients as per the principles written in the Code numbered
3568. The duties of the Board of Directors of the Chamber are listed in article
23 of the Code numbered 3568 whereas the duties of the Disciplinary Board of
the Chamber are listed in article 26 of the same Code.
28. In the
case that he assumes a duty in the organs of the chamber, the applicant, who is
a financial advisor, shall undertake some duties arising from the Code in
relation to the working conditions of the chamber and the members of the
chamber such as governing the assets of the chamber, preparing the budget for
the chamber, submitting reports to the general assembly of the chamber in
relation to the work done and carry out certain proceedings regarding
discipline. It should be accepted that the right of the applicant, as arising
from his status that emanates from the Code numbered 3586, to be a member of
the board of directors and disciplinary board of the chamber and to assume a
duty in the management affairs of the chamber will benefit from the guarantees
in article 36 of the Constitution.
29. The
decision that is the subject matter of the application was rendered by the
Presidency of the 1st District Election Board of Akdeniz and as final. Another
issue that needs to be solved is the matter of whether or not the Presidency of
the District Election Board falls within the scope of the expression "judicial
bodies" that is included in article 36 of the Constitution.
30. In a
decision that it made in the year 1992, the Constitutional Court evaluated
whether or not the Presidency of the District Election Board fell into the
scope of the expression "court" as mentioned in article 152 of
the Constitution and article 28 of the Code dated 10/11/1983 and numbered 2949
on the Establishment and Trial Procedures of the Constitutional Court. The
Constitutional Court decided that the Presidency of the District Election Board
could not be qualified as "a court hearing a court case" on
the justification that “Provisions of law in relation to the election boards
and the elections shall be a unique whole of solutions and rules. The duties
that are assigned to these boards and judges through the election laws which
are based on article 79 of the Constitution should be evaluated within the
borders of the election and within the framework of the own integrity thereof”.
(CC, M. 1992/12, D. 1992/2, D.D. 18/2/1992).
31. In the
present incident, the body that made the decision which is the subject matter
of the individual application of the applicant is the judge who has the venue
to make a final decision on the objections lodged at the chamber and union
elections as per the provisions of article 40 of the Code numbered 3568 and who
functions as the President of the District Election Board.
32. Article 6
of the ECHR also uses the word "tribunal" in a way to include
the organs that are apart from the courts in the traditional judiciary
organization but engage in trial activities. According to the ECtHR, what
equips an organ with the quality of a tribunal in the material meaning of the
word is the judiciary function thereof (see Belilos v. Switzerland, App.
No: 10328/83, 29/4/1988, § 64). For this reason, it is first necessary
to determine whether or not the Presidency of the District Election Board
engaged in a judiciary activity and, in order to do that, it is necessary to
consider the objective contents of the said activity and the quality of the
judgment that is rendered by the Presidency of the District Election Board. In
relation to that, it is first obligatory to specify what needs to be understood
from the trial activity.
33. Two basic
approaches are the case in determining the trial function of the state. Trial
activity in a material sense is considered as a state function which resolves
and decides on legal disputes and claims of unlawfulness. This understanding
remains insufficient due to the fact that it leads to the consequence that the
similar activities of some organs and boards that are organically included
within the administration are deemed to be trial activities (CC, M. 2012/102,
D. 2012/207, D.D. 27/12/2012).
34. According
to the organic - formal criteria that are widely accepted in our day, judicial
activity is defined as the activity, by independent and impartial organizations
established by law, of resolving and rendering a final judgment on legal
disputes and claims of unlawfulness by following special trial procedures. Independence
and impartiality are the most important criteria that distinguish the judicial
function from the administrative function and requires that the body to
exercise the judicial power is composed of a person or persons who are not
directly or indirectly party to the dispute that is requested to be resolved
and who are completely independent from the parties of the dispute. On the
other hand, in trial activities, unlike administrative activities, the settlement
of the dispute is done by following the special trial procedures which
reinforce independence and impartiality. Furthermore, while judicial bodies
resolve a dispute in a final manner, the decisions rendered by administrative
organs do not have a final quality as a rule. Therefore, not being able to
apply to any organ against a decision that was rendered is an important
indicator that equips the decision with a judicial identity (CC, M. 2012/102,
D. 2012/207, D.D. 27/12/2012).
35. Within the
context of the right to a fair trial that is regulated in article 6 of the
ECHR, the ECtHR describes a court to be an organ which holds the venue to
render a decision that is possible to be enforced with the state force when
necessary by following a certain procedure and based on the rules of law,
without considering whether or not it is described as a court in national laws
(see Sramek v. Austria, App. No: 8790/79, 22/10/1984, § 36). In
order for the relevant decision making body to be described as a court, it also
needs to have the venue to review the incident that is the subject matter of
the court case in both material and legal terms (See Belilos v. Switzerland,
App. No: 10328/83, 28/4/1988, § 70) and the venue to conclude the
subject matter of the court case in a binding manner (see Findlay v. United
Kingdom, App. No: 22107/93, 25/2/1997, § 77).
36. According
to this decision, the most important element of judiciary activity is to
resolve a legal dispute in all dimensions thereof and conclude it with a
decision and, for this decision, to have the quality of a final judgment. Final
judgment is the case when the legal relationship between the parties to the
court case is finally determined or regulated for the entire future and the
same court case cannot be lodged again after the finalization of the judgment.
37. As per the
provisions of article 40 of the Code numbered 3568, the judge who is the
President of the District Election Board performs the proceedings of preparing
the members' lists for chamber and union elections, making decisions on the
objections that will be filed against the lists, establishing the ballot box
board, preparing the ballot papers, combining the minutes in relation to the
results of the election. Furthermore, as per paragraph thirteen of the same
article which reads “The proceedings performed during the course of election
and the objections to be filed against the results of the election within two
days following the issuance of the minutes shall be examined by the judge on
the very same date and be concluded as final. Immediately after the objection
period expires and the objections are decided upon, the judge ... shall
announce the final results and notify the related chamber and union”, s/he
makes a final decision on the disputes in relation to the election. Apart from
that, as per paragraph fifteen, the judge may also finally decide on the
cancellation of elections and the renewal of elections due to an irregularity
or unlawful practice at an extent to impact the results of the election.
38. The fact
that, in article 40 of the Code numbered 3568, it is clearly stated that the
decisions of the President of the District Election Board have the quality of a
final judgment and no means to resort to a legal remedy against this decision
is prescribed indicates that the decisions of the President of the District
Election Board have the quality of a final judgment in a judiciary sense.
39. Other
elements that need to be taken into consideration in determining whether the
President of the District Election Board performs a judiciary function or not
are independence and impartiality.
40. According
to paragraph one of article 18 of the Code numbered 298, the most senior judge
in a district is the president of the district election board of that district.
In articles 138-158 that are included in Chapter Three of Section Three of the
Constitution, under the headings "General Provisions" and "Supreme
Courts", regulations are made in relation to judiciary. In these
articles, the Supreme Courts and the judiciary orders that they are at the top
of are listed and the fundamental rules of the courts and of the professions of
judgeship and prosecutorship are determined.
41. The
general administration and supervision of elections are regulated in article 79
that is included in Chapter One of Section Three of the Constitution with the
heading "Legislation". In article 79 of the Constitution with
the heading "General administration and supervision of elections",
it is prescribed that elections be held under the general administration and
supervision of the judicial organs and the duty to carry out and to make to
carry out all proceedings regarding the orderly administration and fairness of
the election from start to end, to examine and make the final decision on all
corruption, complaint and objection cases regarding the elections both during
and after the elections and to accept the minutes of the election of the
deputies of the Grand National Assembly of Turkey is assigned to the Supreme
Council of Election.
42. Despite the
fact that election boards, specifically the Supreme Council of Election, are
not included in the judiciary chapter of the Constitution, the District
Election Board is established as per article 18 of the Code numbered 298 and it
is presided by the most senior judge in the district. The duties of the
District Election Board are listed in article 20 of the Code. According to
sub-paragraph number (7) of paragraph one of article 20 of the Code numbered
298, the District Election Board is tasked with "performing other
duties that are assigned thereto by the Code".
43. Despite
the fact that the elections for the organs of professional organizations having
the quality of public institutions are outside the scope of article 1 of the
Code numbered 298, the elections in relation to these organizations are held
under the supervision of the judge who is the President of the District
Election Board due to the task that is assigned by its private codes. As a
matter of fact, as per the provisions of article 40 of the Code numbered 3568,
the elections for the organs of SMMMOs are also held under the supervision of
the judge who is the President of the District Election Board.
44. Despite
the fact that election boards are not included in the judiciary chapter of the
Constitution, the President of the District Election Board who makes the
decision that is the subject matter of the application is a judge who is
appointed by HCJP and benefits from the independence and guarantee of judgeship
that are guaranteed in the Constitution. In this respect, it needs to be
acknowledged that the Presidency of the District Election Board has the
elements of independence and impartiality which need to be taken into
consideration in determining whether or not it carries out a judiciary
function.
45. The last
element that needs to be taken into consideration in determining whether or not
the President of the District Election Board carries out a judiciary function
is the criterion of "being established by law". "The
right to be tried at a tribunal established by law" which is included
in article 6 of the ECHR is also an important element of the right to a fair
trial which is regulated in article 36 of the Constitution (CC, M. 2002/170, D.
2004/54, D.D. 5/5/2004). However, the Constitution maker included in article 37
of the Constitution the rule "No one can be brought before a judicial
body other than the court he/she is legally subject to. Extraordinary judicial
bodies having jurisdiction cannot be established in a way to result in the
bringing of someone before a judicial body other than the court he/she is
legally subject to." and thus separately determined that the court
which holds trial needs to be established by law. In article 142 of the
Constitution with the heading “Establishment of courts”, it is stated
that “The establishment, duties and powers, functioning and trial procedures
of courts are regulated by law.” and it is underlined that courts need to
be established by law.
46. A court
established by law means that matters such as the establishment, powers and
trial methods are regulated by law "before trial”. On the other
hand, regulation by law includes “certainty” and “predictability”
(CC, M. 2010/32, D. 2011/105, D.D. 16/6/2011).
47. In
paragraph three of article 79 of the Constitution, it is stated “The duties
and authorities of the Supreme Council of Election and other election boards
are regulated by law” and thus the trial procedures of the District
Election Boards are connected to a guarantee of lawfulness whereas in article
40 of the Code numbered 3568, it is stated that the elections for the organs of
Chambers and Union are to be held under judicial supervision in accordance with
the principles written in the same Code and the duties of the judge who is the
President of the District Election Board are listed. In this respect, it needs
to be acknowledged that the Presidency of the District Election Board has the
element of being established by law which need to be taken into consideration
in determining whether or not it carries out a judiciary function.
48. When all
of these explanations are taken into consideration, it is accepted that the
President of the District Election Board carries out a judicial activity in
terms of reviewing and rendering a final judgment on complaints and objections
in relation to matters of election and thus has the independence and impartiality
of a judge. Due to this reason, it is concluded that the Presidency of the
District Election Board is among the organs which are determined to be a "tribunal"
in article 36 of the Constitution in a way to include the organs that are apart
from the courts in the traditional judiciary organization but engage in trial
activities in terms of its duty to review and render a final judgment on
complaints and objections in relation to matters of election.
2. Admissibility Review
49. Paragraph
four of article 148 of the Constitution is as follows:
"In an individual application, examination cannot
be done on matters that need to be taken into account in the legal
remedy."
50. Paragraph
number (2) of article 48 of the Code on the Establishment and Trial Procedures of
the Constitutional Court dated 30/3/2011 and numbered 6216 is as follows:
“The Court, .... can rule on the inadmissibility of
applications which are clearly devoid of basis.”
51. It is
stipulated in paragraph number (2) of article 48 of the Code numbered 6216 that
the Court can rule on the inadmissibility of applications that are clearly
devoid of basis. In paragraph four of article 148 of the Constitution, it has
been bound with a rule that the complaints in relation to matters that need to
be taken into consideration in the legal remedy which is evaluated within the
scope of applications that are clearly devoid of basis cannot be examined in
individual applications.
52. In
accordance with the aforementioned rules, as a principle, the proving of
material facts and cases which are made the subject matter of a court case
before the courts of instance, the evaluation of the evidence, the
interpretation and implementation of legal rules and whether or not the
consequence reached as regards the dispute by the courts of instance is fair in
terms of merits cannot be a subject matter of the review of an individual
application. The only exception to this is that the determinations and results
of the courts of instance involve a clear arbitrariness in a style that disregards
justice and common sense and this situation violates per se the rights and
freedoms within the scope of an individual application. In this framework,
applications having a quality of legal remedy complaint cannot be reviewed by
the Constitutional Court in terms of the merits thereof as long as there is no
clear arbitrariness (App. No: 2012/1027, 12/2/2013, § 26).
53. In the
incident that is the subject matter of the application, the applicant stated
that they made up for the deficits in their candidate lists and submitted them
to the Presidency Board of the General Assembly in time in order to participate
in the Chamber elections on behalf of their group and, however, asserted that
the Board rejected their application on the justification that the lists were
not submitted in time and they thus objected to the results of the election. The
Presidency of the District Election Board rejected the objection on the
justification that it is understood that the election list was not submitted on
time according to the minutes of the general assembly meeting. It is understood
that the claims of the applicant are in relation to the interpretation of
legislation, evaluation of evidence and the result of the trial in terms of
merits.
54. The right
to a fair trial provides the individuals with the opportunity to get reviewed
whether or not the trial process and procedure rather than the decision
delivered at the end of the court case are fair. For this reason, in order for
the complaints as regards the fair trial to be examined in an individual
application, it is necessary for the applicant to have submitted information or
a document as regards the deficit, negligence or clear arbitrariness, which
were not taken into consideration, as for the elements that result in the creation
of the court decision such as the fact that the rights of the applicant were
not respected during the trial, that, in this framework, s/he was not informed
about the evidence and opinions that the opposite party presented during the
trial or could not find the opportunity to object against them in an effective
manner, could not present his/her own evidence and claims or his/her claims as
regards the settlement of the dispute were not heard by the court of instance
or the decision was unreasoned. In the present incident, it is understood that
the applicant did not present any information or documents in relation to the
fact that the trial process was contrary to equity but, on the contrary,
expressed the complaint that content of the decision made as a result of the
trial was not fair (App. No: 2013/2767, 2/10/2013, § 22).
55. Due to the
reasons explained, as it is understood that the claims asserted by the
applicant have the quality of a legal remedy complaint and that the decision of
the court of instance did not include a clear arbitrariness, it needs to be
decided without being reviewed in terms of other admissibility conditions that
this part of the application is inadmissible due to it "being clearly
devoid of basis".
56. Furthermore,
the applicant asserted that his right to a fair trial that is defined in
article 36 of the Constitution was violated when the Presidency of the District
Election Board rendered its decision as final..
57. In
paragraph thirteen of article 40 of the Code numbered 3568, it is provided that
the proceedings performed during the course of the Chamber election and the
objections to be filed against the results of the election within two days
following the issuance of the minutes shall be examined by the judge on the
very same date and be concluded as final; immediately after the objection
period expires and the objections are decided upon, the judge shall announce
the final results and notify the related chamber and union.
58. In article
36 of the Constitution with the heading "Freedom to claim rights",
it is stated that everyone has the right to make claims and defend themselves
either as plaintiff or defendant and the right to a fair trial before judicial
bodies through the use of legitimate ways and means.
59. In the
decisions that are rendered by tribunals, introducing some methods was
preferred in order to eliminate contrarieties to codes and law which emanate
from both mistake and interpreting norms in a different manner and which needs
to be considered ordinary. Bringing a dispute which arises out of the claim
that there is a contrariety in the decision rendered by a tribunal before
judiciary bodies in order for it to be settled means resorting to a "legal
remedy". The right to resort to legal remedy is considered to be
within the scope of the right to a fair trial. How this will be done is
indicated through procedural provisions. In article 142 of the Constitution, it
is set forth that "the establishment, duties and powers, functioning
and trial procedures of courts" be regulated by law. Regulations in
relation to legal remedy is within the scope of the trial procedure. Since it
is necessary for trial to be concluded as swiftly as possible and for the
results to be announced as soon as possible, the need to resort to legal remedy
not against every decision but against important decisions is adopted. Indeed,
keeping the legal remedy open against all decisions given by courts may render
the facility of legal remedy dysfunctional (CC, M. 2006/65, D. 2009/114, D.D.
23/7/2009).
60. Then
again, article 6 of the ECHR guarantees the right to lodge an application for a
legal remedy against the decisions of a court which is compatible with the
guarantees in article 6 in neither criminal cases nor non-criminal cases.
However, if a state grants the right to lodge an application for legal remedy
in connection with its own discretion, the trial procedure that is exercised
before the court which reviews the application to legal remedy needs to be in
compliance with the principles included in article 6 of the Convention (see Delcourt
v. Belgium, App. No: 2689/65, 17/1/1970, § 26). On the other hand, "The
right to a two-stage trial in criminal matters" is adopted through
article 2 of the Additional Protocol No. 7 of the ECHR.
61. As all
articles of the Constitution have the same effect and value and there is no
order of precedence over one another, it is not possible to prioritize one of
these in practice. For this reason, one of the two Constitutional rules that
are applied together, although sometimes compulsorily, may constitute the limit
for the other. Although the freedom to claim rights is regulated in article 36
of the Constitution and no reason for limitation is set forth in the said
article in relation to the freedom to claim rights, it is apparent that article
142 of the Constitution which prescribes that the establishment, duties and
powers, functioning and trial procedures of courts are to be regulated by law
and article 141 of the Constitution which expresses that court cases need to be
concluded as swiftly as possible have to be taken into consideration in
determining the scope of the freedom to claim rights (CC, M. 2006/65, D.
2009/114, D.D. 23/7/2009).
62. Remedies
of complaint and objection, review bodies and procedures for reviews which can
be resorted to against the decisions of the election boards and the presidents
thereof are regulated in articles 110-132 of the Code numbered 298. However, in
the present application, the SMMMO elections were held outside of the procedure
laid down in the Code numbered 298 and as per the provisions of the Code
numbered 3568. As a matter of fact, no legal remedy is set forth in article 40
of the Code numbered 3568 against the decision of the President of the District
Election Board and it is stated that the decisions are final. In the said rule,
it is clear that what is meant is the urgent conclusion of the complaints in
relation to the elections for the organs of the SMMMO and the Union and the
determination of the organs of the union. In other words, the law maker
introduced a limit, through law, against resorting to legal remedies against
the decisions rendered due to some objections which can be considered to be
unimportant. As a matter of fact, the decision of the Presidency of the
District Election Board of Akdeniz, which is the subject matter of the
application, is rendered in a final manner in accordance with law.
63. Due to the
reasons explained, as it is understood that the Presidency of the District
Election Board rendered its decision in a final manner in accordance with the
procedural conditions in codes and that the decision of the presidency does not
involve a clear arbitrariness, it needs to be decided without being reviewed in
terms of other admissibility conditions that this part of the application is
also inadmissible due to its "being clearly devoid of basis".
V.
JUDGMENT
It is UNANIMOUSLY
decided on the date of 6/2/2014 that the application is INADMISSIBLE due
to "being clearly devoid of basis" and that the trial expenses
be borne by the applicant.
