REPUBLIC OF TURKEY
FIRST SECTION
DECISION
İSMAİL TAŞPINAR APPLICATION
(Application Number: 2013/3912)
Date of Decision: 6/2/2014
President
:
Serruh KALELİ
Members
Zehra Ayla PERKTAŞ
Burhan ÜSTÜN
Nuri NECİPOĞLU
Hicabi DURSUN
Rapporteur
Yunus HEPER
Applicant
İsmail TAŞPINAR
Counsel
Att. Abdullah ERKOL
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.
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.
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".
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.
…”
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:
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.
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.
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".
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.
