“…Owned…” In Paragraph (2) Of Article 151 Of The Turkish Penal Code No. 5237 Dated 26/9/2004 The Request For Decision On The Cancellation Of The Statement On The Grounds Of Incompatibility With Articles 2, 10 And 90 Of The Constitution.
CONSTITUTIONAL COURT DECISION
Number of Principles : 2018/6
Decision Number : 2021/60
Decision Date : 22/9/2021
R.G. Date-Number : Notified.
APPEAL APPLICANT:
Erzincan Criminal Court of Peace
SUBJECT OF THE OBJECTION:
The request for the cancellation of the phrase “…owned by…” in paragraph (2) of Article 151 of the Turkish Criminal Code dated 26/9/2004 and numbered 5237, on the grounds that it is contrary to Articles 2, 10 and 90 of the Constitution.
CASE:
During the examination of the request for a judicial control order against the suspect who was interrogated with the allegation that he tortured and killed an animal, the Court concluded that the rule subject to the objection was contrary to the Constitution and applied for its cancellation.
PROVISION OF THE LAW REQUESTED TO BE CANCELLED
Article 151 of the Law, which includes the rule subject to objection, is as follows
“Damage to property
Article 151- (1) Any person who partially or wholly demolishes, destroys, destroys, spoils, renders unusable or pollutes the movable or immovable property of another shall, upon complaint of the victim, be punished with imprisonment from four months to three years or with a judicial fine.
(2) The provision of the preceding paragraph shall apply to the person who, without a justified reason, kills an owned animal, renders it useless or causes its value to decrease.”
FIRST REVIEW
In accordance with the provisions of the Rules of Procedure of the Constitutional Court, at the first review meeting held on 18/1/2018 with the participation of Zühtü ARSLAN, Burhan ÜSTÜN, Engin YILDIRIM, Serdar ÖZGÜLDÜR, Serruh KALELİ, Osman Alifeyyaz PAKSÜT, Recep KÖMÜRCÜ, Hicabi DURSUN, Celal Mümtaz AKINCI, Muammer TOPAL, M. Emin KUZ, Hasan Tahsin GÖKCAN, Kadir ÖZKAYA, Rıdvan GÜLEÇ, Recai AKYEL and Yusuf Şevki HAKYEMEZ at the first review meeting held on 18/1/2018, it was decided with the dissenting votes of M. Emin KUZ and Hasan Tahsin GÖKCAN and with the majority of votes to examine the merits of the case since there was no deficiency in the file.
EXAMINATION OF THE MERITS
After the application decision and its annexes, the report on the merits prepared by the Rapporteur,atma KARAMAN ODABAŞI, the provision of law subject to objection, the Constitutional rules relied upon and their justifications, and other legislative documents have been read and examined, the necessity has been discussed and considered:
Pursuant to Articles 152 of the Constitution and 40 of the Law on the Establishment and Trial Procedures of the Constitutional Court dated 30/3/2011 and numbered 6216, courts are authorised to apply to the Constitutional Court for the annulment of the provisions of the law or Presidential decree to be applied in the cases they are hearing, if they deem them to be contrary to the Constitution or if they are of the opinion that the claim of contradiction put forward by one of the parties is serious.
However, in order for a court to apply to the Constitutional Court pursuant to the aforementioned articles, there must be a case that has been duly filed and falls within the jurisdiction of the court, and the rules requested to be annulled must be applicable in that case. The applicable rules are the rules that will have a positive or negative effect on the solution of the problems arising at different stages of the pending case or on the finalisation of the case.
In this context, there is no difference between the fact that the applicable rule is currently in force or has been repealed, it is sufficient that it has the possibility to be applied in the case being examined by the court applying for an objection. As a matter of fact, the Constitutional Court has decided in its previous decisions that the merits of the repealed provisions that continue to be the rule to be applied by the court applying the objection should be examined (AYM, E.2020/14, K.2020/58, 15/10/2020; E.2018/14, K.2018/112, 20/12/2018; E.2018/107, K.2018/114, 20/12/2018; E.2014/179, K.2015/54, 17/6/2015).
In the pending case before the Court, a request was made to the Court to issue a judicial control decision by interrogating the suspect; after the Court evaluated this request, the Court applied for the cancellation of the rule subject to objection.
At the first review meeting held regarding the application, it was decided to examine the merits of the matter, considering that the existence of a duly filed case before the relevant court at the time of the application for the appeal should be deemed sufficient, that it is acceptable in exceptional and compulsory cases for the court applying the appeal to both finalise the case by applying the rules that it deems unconstitutional in the same decision and to apply to the Constitutional Court, and that if the contrary is accepted, it would be prevented to bring a rule that is considered to be contrary to the Constitution before the Constitutional Court through an appeal (similarly see Constitutional Court, E.2014 /164, K.2015/12, 14/1/2015).
Such exceptional and mandatory situations may arise significantly at the stages of deciding on protection measures such as arrest or judicial control, which by their very nature need to be decided as soon as possible. In this context, the review to be carried out by the Constitutional Court in this context is related to the final decision regarding the rule that is in doubt as to its unconstitutionality, and the purpose of the decision to be made upon objection is to eliminate the unconstitutional rules from the legislation and thus to ensure that a situation in compliance with the Constitution is realised in terms of the entire legal order (Constitutional Court, E.1966/31, K.1967/45, 18/12/1967).
Paragraph (1) of Article 151 of the Law No. 5237 stipulates that the person who partially or completely demolishes, destroys, destroys, spoils, renders unusable or pollutes the movable or immovable property of another person shall, upon the complaint of the victim, be sentenced to imprisonment from four months to three years or to a judicial fine; and paragraph (2) stipulates that the provision of paragraph (1) shall be applied to the person who kills, renders useless or causes a decrease in the value of an owned animal without a justified reason. The phrase “…owned…” in paragraph (2) of the said Article constitutes the rule subject to objection.
Paragraph (2) of Article 151 of the Law, including the rule subject to objection, was repealed by Article 17 of the Law dated 9/7/2021 and numbered 7332.
As accepted in the previous decisions of the Constitutional Court and explained above (see § 4), the fact that the rule has been repealed in the objection applications does not prevent the examination of the merits of the repealed provision as a rule. However, the rule, which was no longer applicable by the court which applied the appeal, but which was decided to examine the merits due to the exceptional nature of the concrete application, was repealed by the aforementioned legal provision. Therefore, the rule subject to the objection application has no possibility of being applied in any dispute, and in this context, the legal benefit of continuing the examination of the rule has also disappeared.
For the explained reason, it is necessary to decide that there is no need to decide on the objection application, which has no subject.
JUDGMENT
It was decided unanimously on 22/9/2021 that there is no need to make a decision on the objection application regarding the phrase “…owned…” in the abrogated paragraph (2) of Article 151 of the Turkish Criminal Code dated 26/9/2004 and numbered 5237.
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