Press Release Nr: Plenary Assembly 2/16
25/01/2016

JUDGEMENT ON APPLICATION RELATED TO ESTABLISHMENT OF CRIMINAL JUDICATURE OF PEACE (SULH CEZA HAKİMLİĞİ) AND PROCEDURE OF APPEAL AGAINST THEIR RULING
(Click for full text of judgment)

The Constitutional Court held in its judgement on 14.11.2014 unanimously to reject the application for annulment of Article 10 of Law No. 5235 on the establishment of criminal judicature of peace; and by majority to reject the application for annulment of sub-paragraph (a) and (b) of Article 268/3 of Law No. 5271 on procedure of appeal against the rulings of these judicatures.

Provision of Law subject to Constitutionality Review (1)

Article 10 of Law No. 5235

The provision of law subject to constitutionality review prescribes that the Ministry of Justice, by taking positive opinion of High Council of Judges and Prosecutors, shall establish criminal judicature of peace in every provincial center and, by taking into account the geographical conditions and workload, in certain district centers and that such judges shall take necessary decisions and actions in judicial investigations and review the objections against these decisions and actions.

Grounds

The applicant court alleges that the provision of law subject to constitutionality review leaves the conclusion of the prosecutions being carried out all over Turkey to the initiative of the political power through limited number of “criminal judicature of peace” and, thereby, violates the principle of the rule of law, freedom to claim rights, right to personal liberty and security, the principles of judicial independence and natural judge.

The Court’s Assessment

The Constitutional Court emphasized that, under Article 142 of the Constitution, regulating the formation, duties and powers, functioning and trial procedures of the courts falls within the scope of the discretion of the legislative. The Court concluded that, considering the legislative intent and objective nature of the provision, the criminal judicature of peace are established to ensure that necessary decisions and actions at judicial investigation stage are taken by judges who are specialized in such duties.

The Court noted that, in practice, trial proceedings are considered to be the principal duty while the decisions to be taken at investigation stage are considered to be auxiliary and, therefore, the negligence in duties at investigation stage leads to grave violations of rights. The Court noted that European Court of Human Rights (ECtHR) also criticizes the engagement of judges, who took up a position on the charged crimes and the suspect, in latter phases of the proceedings when examining on the merits of the case.

The Constitutional Court also noted that ad hoc investigating judges (also known as “judges of freedoms”) were established through a law enacted in 2012 to conduct the relevant duties of courts established under Article 250 of Code of Criminal Procedure No. 5271( “specially-authorized courts”) where such violations were most prevalent. Such decisions as detention, search, monitoring of communication etc. which need to be taken in the investigation stage by the judge or the court were taken by these ad hoc investigating judges, not by the specially-authorized courts and these investigating judges could not be assigned to examine the merits of the case or any other such duties. The Constitutional Court, with its Judgment no. 2013/84, Docket no. 2012/100 dated 4.7.2013, ruled that the said provision of law was not unconstitutional.

The Court stated that the provision of law subject to constitutionality review, similar to the previous practice of “judges of freedoms”, assigns to the criminal judicature of peace with the duty “to take decisions which need to be taken by the judge in the investigation phase”. The Court also stated that establishment of the criminal judicature of peace with the duty to take decisions which need to be taken by the judge in the investigation phase aims to serve the public interest as they will specialize in taking such decisions and, therefore, it does not contradict with the principle of the rule of law.

The Constitutional Court emphasized that the principle of natural judge prohibits the creation of judicial authorities or appointment of judges with competence to try conflicts or crimes that took place before their creation. However, the principle of natural judge shall not be interpreted as the newly-established courts or the judges newly-appointed to an existing court can by no means try the cases related to crimes committed before. It does not contradict the principle of natural judge in cases when a newly-established court or a judge newly-appointed to an existing court tries conflicts or crimes that took place before their creation or appointment provided that such courts or judges are not created or appointed for trying a specific case, person or group. Taking the contrary as correct would mean that no new courts could be established in a country. The Constitutional Court noted that the provision of law subject to contention does not aim to determine, after the commission of a certain crime, the venue having jurisdiction to try the case relevant to such crime. The Court concluded that the provision shall become applicable upon its enactment to all conflicts and crimes which fall within its scope and, therefore, no aspect of the said provision is contrary to the guarantees of a legal judicial process.

The Constitutional Court noted that the criminal judicature of peace, like all other judges, are appointed by the High Council of Judges and Prosecutors (HSYK) and they have the “legal guarantees of the judges” and, therefore, there is no reason to come to a conclusion that these judges are placed to a different status in terms of their independence and that the guarantees for their independence are weakened.

The Constitutional Court examined the allegations that the criminal judicature of peace are not impartial. Considering the constitutional provisions and laws which prescribe the independence of criminal judicature of peace and the guarantees which ensure the independence and impartiality of the judges to be appointed to such posts, the Constitutional Court noted that it cannot be alleged in objective terms that such judges are not impartial. The Court also noted that subjective allegations on impartiality of the judges, which is related completely to the individual attitude of the judge, may only be asserted during the trial proceedings and on the basis of concrete, objective and plausible evidences. The issue of subjective impartiality, which is regulated under relevant procedural laws, falls out of the scope of constitutionality review.

Consequently, for the reasons explained above, the Constitutional Court unanimously rejected the application for the annulment of the aforementioned provision of law.

Provision of Law subject to Constitutionality Review (2)

Sub-paragraph (a) and (b) of Article 268/3 of Law No. 5271

The provisions of law subject to constitutionality review prescribe that objections made against the criminal judicature of peace shall be examined by the subsequent numbered judicature of peace, in case there is more than one criminal judicature of peace within the relevant district of jurisdiction. Accordingly, the first judicature of peace shall examine the objections against the last criminal judicature of peace. If there is a single criminal judicature of peace in a district of jurisdiction where there is no court of assize, then the objections against such judicature of peace shall be examined by criminal judicature of peace in district of jurisdiction of the relevant court of assize. If there is a single criminal judicature of peace in the district of jurisdiction of a court of assize, then the objections against such judicature of peace shall be examined by criminal judicature of peace in the nearest district of jurisdiction having court of assize.

Grounds

The applicant court alleges that final conclusion of objections against the decisions of such criminal judicature of peace by an authority within the same system renders the objection ineffective and it contradict the principle of rule of law, the principle of natural judge, the right to personal liberty and security and the right to a fair trial.

The Court’s Assessment

The Constitutional Court noted that the freedom to claim rights and the right to a fair trial are the most effective guarantees to ensure protection and proper exercise of other fundamental rights and freedoms. The Court also noted that the right to appeal falls within the scope of right to a fair trial.

The Constitutional Court emphasized that, for effective functioning of the right to appeal as protected under Article 36 of the Constitution, the authority to review the appeal must have the capacity to alter the judgment when necessary. The Court concluded that criminal judicature of peace has the authority to review the objection against the judgment or decision and to decide on the merits of the case and, therefore, it is an effective legal remedy for appellate.

The Constitutional Court noted that there is no constitutional provision which requires that the objections against the judgments of criminal judicature of peace must be reviewed by a court of higher degree. The Court stated that the court reviewing such an objection is not obliged to be a higher level authority so long as it ensures an effective review.

On the other hand, the Court noted that “the review of objection against the judgment of a court by the subsequent court within the same district of jurisdiction” is an established practice both in the law of criminal and civil procedure. The Court also recalled its past judgment (judgment no. 2012/168 docket no. 2011/64) of 1.11.2012 which rejected the application for the annulment of Article 353 of Law no. 2004 on Enforcement and Bankruptcy. The relevant provision of law in that past judgment prescribes that the objections against the “disciplinary confinement” sentence by a “criminal court in the matters of execution of judgments (in civil matters)” shall be reviewed by the subsequent chamber of the court if there are more than one chambers of the court in that district of jurisdiction.

Finally, the Constitutional Court noted that the review of the objections against the judgments of criminal judicature of peace by another criminal judicature of peace serves public interest as both courts are expected to gain expertise on the protection measures. Consequently, the Court decided by majority that the aforementioned provisions of law are not unconstitutional.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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