Events
Following the 15 July coup attempt, the First Presidency Board of the Court of Cassation decided to establish a Supreme Disciplinary Board to investigate the acts of 133 members of the Court of Cassation, including the applicant. With the decision of the Supreme Disciplinary Board, an investigator was assigned to conduct an investigation. In the investigation report prepared by the investigator, it was stated that it was understood that the former members of the Court of Cassation, including the applicant, took part in the judicial structure of FETÖ/PDY, and that they were members of the terrorist organisation by knowingly and willingly participating in the hierarchical structure of the organisation, and it was recommended to apply the sanction of invitation to withdraw from duty.
On 21/6/2018, the Supreme Disciplinary Board decided to apply the measure of invitation to withdraw from duty against the applicant in accordance with Article 43 of the Supreme Court of Cassation Law No. 2797. The applicant appealed against this decision to the Board of Presidents of the Court of Cassation and his appeal was rejected. The applicant made an individual application directly to the Constitutional Court on 21/10/2019.
Allegations
Among other allegations, the applicant claimed that the right of access to the court due to the lack of a judicial remedy against the decision of the Board of Presidents of the Court of Cassation, the principles of equality of arms and contradictory trial due to the fact that the information and documents on the basis of the investigation were not notified, and the presumption of innocence due to the inclusion of statements violating innocence in the speech of the President of the Court of Cassation and in the disciplinary punishment decision.
The Court’s Assessment
A. The Applicability of the Right to a Fair Trial
The applicant argued that the sanction of invitation to withdraw from duty imposed as a result of the disciplinary investigation against him was a punishment. Therefore, it must first be assessed whether the sanction in the concrete case falls within the scope of a criminal charge.
In the concrete case, the disciplinary sanction imposed on the applicant was the result of a disciplinary investigation initiated due to the applicant’s behaviour when he was a member of the Court of Cassation. The act of offending the applicant’s dignity and reputation or behaving in a manner incompatible with the duties of office is not regulated as a crime in the criminal law. The act in question and the sanction of invitation to withdraw from duty imposed on the applicant for this act is regulated as a disciplinary offence and penalty in Article 19 of Law No. 2797. The aforementioned sanction is applied only to the members of the Court of Cassation and not to the general public. The main purpose of the sanction is to ensure professional discipline.
The act regulated as injustice can only be committed by the members of the Court of Cassation, and only the members of the Court of Cassation can be subjected to the sanction stipulated in the law. On the other hand, the sanction imposed on the applicant does not foresee a sentence of imprisonment. In addition, although it can be said that the penalty of invitation to resign from office is relatively severe since it results in the dismissal of the person from public office, it has been evaluated that the penalty of invitation to resign from office does not reach the dimension of a criminal charge, considering that there is no obstacle to the applicant working in the private sector. Therefore, it is accepted that the sanction in the concrete case is not in the nature of an accusation of a criminal offence.
It is also necessary to examine whether the sanction determined not to be in the nature of an accusation of a criminal offence is related to civil rights and obligations.
Although it is constitutionally guaranteed that the members of the Council of State and the Court of Cassation will serve as judges until the age of sixty-five, the Constitution does not guarantee the right of a judge appointed as a member of the Council of State and the Court of Cassation to serve as a member until the age of sixty-five. However, there is no doubt that the constitutional provisions on the guarantee of judgeship provide protection to the members of the Court of Cassation and Council of State against arbitrary termination of their duties.
Therefore, it is difficult to say that there is no constitutional basis for the right to arbitrary dismissal of the members of the Court of Cassation and the Council of State. In a state based on judicial independence and the rule of law, it is not possible to think that members of the higher judiciary are not protected against arbitrary dismissal.
In the next stage, it should be examined whether this right is actionable or not. According to the eleventh paragraph of Article 43 of the Law No. 2797, an appeal against the decisions of the Supreme Disciplinary Board, which is an administrative body, may be lodged to the Board of Presidents within fifteen days from the date of notification of the decision. The last paragraph of Article 17 of the same Law stipulates that all decisions of the Board of Presidents upon appeal are final and that no other judicial authority can be applied against these decisions. Therefore, no judicial remedy can be applied against the decisions of the Board of Presidents on appeal against the decision of the Supreme Disciplinary Board.
However, it is also important whether the Board of Presidents’ audit and decision is judicial or not. In its decision dated 21/1/2010 and numbered E.2008/74, K.2010/15 and its decision dated 10/12/2020 and numbered E.2016/144, K.2020/75, the Constitutional Court determined that the decisions of the Board of Presidents of the Court of Cassation and the Board of Presidents of the Council of State are judicial in nature. In this case, it should be accepted that the Board of Presidents of the Court of Cassation acts as a judicial authority while examining the disciplinary actions against the members of the Court of Cassation and its decisions are judicial in nature.
Since the decisions taken by the Board of Presidents in objection to the disciplinary penalty are judicial decisions, there is no question of a closed judicial remedy against the disciplinary penalty. In this case, it must be accepted that the disciplinary penalty imposed on the applicant is related to his civil rights. It is also clear that the applicant’s appeal to the Board of Presidents is decisive on the merits of the dispute regarding the disciplinary penalty concerning his civil rights. In conclusion, it has been assessed that the dispute regarding the penalty of invitation to withdraw from duty imposed on the applicant – as a dispute regarding civil rights and obligations – falls within the scope of the right to a fair trial guaranteed under Article 36 of the Constitution.
B. In terms of the Right of Access to Court
In the concrete case, the applicant may appeal to the Board of Presidents against the disciplinary penalty of invitation to withdraw from duty imposed on the applicant by the Supreme Disciplinary Board. The Board of Presidents performs a judicial function while examining the objection to the decision of the Supreme Disciplinary Board and the decision of the Board of Presidents has a judicial character. Therefore, the legality of the disciplinary penalty imposed on the applicant has been checked by a judicial authority.
On the other hand, the right to a fair trial does not guarantee recourse to a legal remedy or another court against judicial decisions. Although it is within the scope of the discretionary power of the legislator to provide the possibility to apply to another jurisdiction against the decision of the Board of Presidents, it cannot be stated that this is a constitutional obligation required by the right of access to court. Therefore, the finality of the decision of the Board of Presidents does not constitute an interference with the right of access to court.
For the reasons explained above, the Constitutional Court ruled that the allegation of violation of the right of access to court is inadmissible.
C. In terms of the Principles of Equality of Arms and Adversarial Proceedings
In the concrete case, the documents on which the disciplinary penalty imposed as a result of the disciplinary investigation against the applicant was based were not notified to the applicant during the investigation process or at the appeal stage. It is of great importance for the effective exercise of the right to defence that the information and documents relied upon by the investigating authorities during the disciplinary investigation process are provided to the person under investigation. Therefore, it is clear that the failure to notify the applicant of the documents on which the disciplinary penalty is based restricts the applicant’s right to defence. Moreover, there is no justification in the decisions of the Supreme Disciplinary Board and the Board of Presidents as to why these documents were not communicated to the applicant.
However, the fact that the applicant was not notified of the information and documents that are important for the defence does not by itself mean that the principles of equality of arms and conflicting proceedings have been violated. As it is known, the right to a fair trial does not guarantee that the outcome of the proceedings is fair, but it guarantees that the proceedings are conducted in accordance with fairness. When assessing whether there has been a violation of the right to a fair trial, it is evaluated whether a deficiency in the proceedings has been compensated during the proceedings and whether this has affected the fairness of the proceedings as a whole.
When the decision of the Supreme Disciplinary Board is examined, it is seen that while concluding that the applicant acted against the honour and dignity of the membership of the Supreme Court of Cassation, the evidence in the indictment prepared by the Chief Public Prosecutor of the Supreme Court of Cassation, especially the statements given to the investigation authorities by former CJP members A.H., İ.O., K.T., M.K.Ö. and B.E. and former Supreme Court of Cassation member İ.D. were relied on to a great extent.
Although the minutes of the statements of these persons were not notified to the applicant during the investigation process, the relevant parts of these statements were clearly included in the indictment of the Chief Public Prosecutor of the Court of Cassation. It is undisputed that the indictment was served to the applicant on 9/11/2017. In this way, the applicant was informed about the documents on which the disciplinary penalty was based. In addition, the applicant had the opportunity to express his statements against the statements of the witnesses in the petition of objection submitted to the Board of Presidents.
It is considered that the fact that the indictment containing the statements of the witnesses, which is the basis of the investigation, was notified to the applicant and that the applicant had the opportunity to put forward his claims and objections against them before the Board of Presidents is a compensatory opportunity for the restriction on the defence. In this case, it was concluded that the fact that the documents on which the investigation was based were not notified to the applicant during the investigation process did not damage the fairness of the proceedings as a whole.
For the reasons explained above, the Constitutional Court ruled that the allegation of violation of the principles of equality of arms and contradictory trial was inadmissible.
D. Regarding the Allegation Regarding the Presumption of Innocence
The applicant’s conviction for membership of a terrorist organisation became final on 17/3/2021. It is understood that the applicant was innocent until this date and will benefit from all the guarantees of the presumption of innocence.
On the other hand, the presumption of innocence does not prevent the opening of a disciplinary investigation in relation to the incident subject to criminal proceedings. Disciplinary authorities may make their own assessments regarding the incident subject to the criminal investigation by staying within the boundaries of disciplinary law. However, the disciplinary authorities must be careful with the language they use and refrain from making assessments about the guilt of the applicant and from using expressions that accept or imply that the applicant is guilty.
In the concrete case, in the section of the decision dated 21/6/2018 regarding the disciplinary penalty imposed on the applicant, where the investigation report is summarised, it is stated that “…when all the documents are taken into consideration, it is understood that they are members of the armed terrorist organisation named FETÖ/PDY by taking part in the structure of the armed terrorist organisation named FETÖ/PDY within the judiciary, knowingly and willingly taking part in the hierarchical structure of the organisation…”. In this case, it is seen that the disciplinary authorities stated that the applicant committed the offence of membership of a terrorist organisation. However, the criminal court decision on the applicant’s conviction for membership of a terrorist organisation became final on 17/3/2021.
Only the criminal court can decide whether a person has committed an offence defined in the criminal law after evaluating the evidence collected by applying the procedures related to criminal proceedings. Other public authorities may not treat a person as a criminal or imply that he or she is a criminal before the decision of the criminal court. Otherwise, the public may have the impression that a person in criminal proceedings is guilty before a conviction is handed down. This may also render the defence of the accused in criminal proceedings meaningless. In addition, statements and statements by other public authorities that the person is guilty before the criminal court may lead to prejudice on the part of the court conducting the criminal proceedings.
However, in the concrete case, although statements stating that the applicant was a member of a terrorist organisation were included in the disciplinary decision, these statements were not the evaluations of the Supreme Disciplinary Board. The said statements were used in the section summarising the investigation report prepared by the investigator. Although it is problematic to include statements that undermine the presumption of innocence in the investigation report, it should be taken into consideration that the investigation report consists of a recommendation and does not have a final and executive nature.
The statements in the investigation report that undermine the presumption of innocence can be compensated by the Supreme Disciplinary Board. As a matter of fact, the Supreme Disciplinary Board’s own evaluation did not include similar statements and focused on whether the applicant had a connection with a terrorist organisation. Stating that the applicant has a connection with a terrorist organisation is an assessment that falls within the boundaries of disciplinary law. Therefore, when considered as a whole, it was considered that the statements used in the decision of the Supreme Disciplinary Board did not damage the presumption of innocence.
On the other hand, when the relevant part of the speech made by the President of the Court of Cassation is considered as a whole, the erosion of the public’s trust in justice due to FETÖ/PDY’s organisation in the judiciary is mentioned and the importance of dismissing these people from office and then punishing them after a fair trial is pointed out. In the content of the speech, it was also emphasised that the trials against these persons should be conducted without compromising human rights and without prejudice. In the speech, it was not stated that the suspended members of the judiciary were definitely guilty; it was mentioned that the judicial proceedings against them were ongoing. As such, it cannot be said that the speech of the President of the Court of Cassation damaged the applicant’s innocence.
For the reasons explained above, the Constitutional Court ruled that the claim of violation of the presumption of innocence was inadmissible.
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