Press Release No: Individual Application 17/16
01.04.2016

PRESS RELEASE CONCERNING THE INADMISSIBILITY DECISION OF AHMET KÜTÜK

On 23/3/2016, the First Section of the Constitutional Court held with regard to the individual application lodged by Ahmet Kütük (application no. 2015/19099) that the allegations that there had been a breach of the right to a fair trial, the right to private life and the prohibition of discrimination were declared inadmissible for being manifestly ill-founded.

The Facts

The applicant was appointed as a member of the Court of Cassation in 2011 and assigned to the 4th Civil Chamber of the Court of Cassation by the decision of the First Presidency Board of the Court of Cassation. On 2/12/2014, the number of the Criminal Chambers of the Court of Cassation was increased from fifteen to twenty three upon the amendment made to the Law on the Court of Cassation, and upon the legal arrangements subsequently made, eight presidencies and one hundred and twenty one membership positions were created. In Provisional Article 14 added to the Law no. 2797 with Article 27 of the Law no. 6572, it is governed that members would be appointed for the memberships recently created; that selections would be made for the presidencies created; that the Board of the First Presidency would be re-determined; and that it would be re-determined, by the First Presidency Board, in which chambers the presidents, members and investigating judges of the Court of Cassation would take office by taking into consideration the workload and needs of the chambers.

The First Presidency Board of the Court of Cassation, which was re-formed, assigned the applicant to the 1st Civil Chamber of the Court of Cassation. On 10/2/2015, the applicant lodged an application with the First Presidency Board of the Court of Cassation for “re-examination” and with the Board of Presidents of the Court of Cassation for the annulment of the decision. The First Presidency Board of the Court of Cassation decided to dismiss the objection on the grounds that the assignment was made on the basis of a statutory obligation and that an objection cannot be made to the decision. The applicant objected to the decision of the First Presidency Board of the Court of Cassation on the grounds that the objection must be examined by the Board of Presidents of the Court of Cassation; that the assignment was contrary to the practices of the Court of Cassation; and that there was not any other member taking office in the 4th Civil Chamber of the Court of Cassation for a period longer than him. The Board of Presidents of the Court of Cassation dismissed the applicant’s objection with its decision dated 9/7/2015.

The Applicant’s Allegations

The applicant maintained that both decisions rendered by the First Presidency Board and the Board of Presidents of the Court of Cassation were lack of reasoning; that a public hearing had not been held; that he heard that the Board of Presidents of the Court of Cassation was not formed in the manner prescribed in the Law; that the First Presidency Board of the Court of Cassation had not been independent and impartial; that as his objection had been examined five months later, he had been denied the right to access to court; that the decision had been arbitrary; and that there had been explicit and obvious discretionary errors in the decisions.

The applicant also maintained that the impugned dispute must be assessed within the scope of the “disputes concerning the civil rights and obligations” as he had the right to object to the decision of the First Presidency Board of the Court of Cassation and the objection was a judicial remedy. He accordingly alleged that there had been a breach of the right to a fair trial.

Moreover, the applicant alleged that he had been reflected to be “a member of the parallel structure” on certain websites, media organs and social media; that the Chamber in which he had been taking office was subsequently changed; that his change of place of duty without a compulsory necessity had been perceived as an insulting event in the Court of Cassation, and therefore, his honour and reputation had been adversely affected; and that this situation had constituted a breach of his right to private life and to family life. The applicant also complained that he had been subject to discrimination due to opinions and convictions ascribed to him. He finally alleged that the chamber in which he would be assigned should have been determined by the First Presidency Board of the relevant time; and that the impugned decisions were contrary to the security of tenure of judges and the principle of legal certainty.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of the allegations.

a- Alleged Violation of the Right to a Fair Trial

In order for lodging an individual application for an alleged violation of the right to legal remedies under Article 36 of the Constitution and Article 6 of the European Convention on Human Rights, it must be required that the applicant is a party to a dispute concerning his civil rights and obligations or a decision has been rendered with respect to a criminal charge against the applicant.

As the applicant has not mentioned of any criminal and/or disciplinary investigation conducted against him or any penalty imposed on him, there is no “criminal charge” at stake in the present incident. In such case, the guarantees and principles pertaining to the right to a fair trial may be applied to the present application only when the impugned dispute falls within the scope of the “disputes concerning civil rights and obligations”. 

The dispute concerning the right subject-matter of the application is not within the scope of the “disputes pertaining to civil rights and obligations” on the grounds that the members of the Court of Cassation are not appointed for taking office in a certain chamber; that there is no legal provision or an established jurisprudence enabling the applicant to take office in the chamber where he was previously serving; that even if the chamber where the members take office is not changed, the field of activity of a chamber of the Court of Cassation may be changed with a new division of tasks; that the change in the Chamber of the Court of Cassation is not related to the ordinary labour disputes such as salary, allowance or similar rights; that the decision does not have an adverse impact on the status of the membership of the Court of Cassation or on the work performed; and that the act in which the chamber of the relevant member was changed is not rendered subject to legal remedies on the basis of objective grounds.

The Constitutional Court has consequently held that this part of the application be declared inadmissible for lack of jurisdiction ratione personae.

b- Alleged Violation of the Right to Private Life

In the present incident that new chambers were established at the Court of Cassation by virtue of the Law no. 6572, and the members to take office in the Chambers of the Court of Cassation were re-appointed due to statutory necessity by having regard to the workload and needs of the chambers and recently-appointed members of the Court of Cassation. Certain Chambers of the Court of Cassation where certain members, including the applicant, in respect of whom any news reports were not published on the web, media and social media were changed; Although the applicant maintained that his chamber had been changed on account of the news and posts published in respect of him and that this change had been an insulting situation, he failed to adduce any concrete fact or finding together with supporting evidence. Nor did the applicant mention of such allegations in his objection to the Board of Presidents of the Court of Cassation.
The Constitutional Court has consequently held that this part of the application be declared inadmissible for being manifestly ill-founded.

c- Alleged Violation of the Prohibition of Discrimination

It is not possible to assess the allegations that the principle of equality set out in Article 10 of the Constitution and the prohibition of discrimination set out in Article 14 of the European Convention on Human Rights in an abstract manner. They must be certainly dealt with in conjunction with the other fundamental rights and freedoms falling within the scope of the Constitution and the Convention. The applicant is to set forth with reasonable evidence that the alleged discriminatory practices in respect of persons who are in a similar position with him is based on a discriminatory ground such as race, colour, gender, religion, language and etc. without a legitimate foundation. In the present incident, the applicant could not prove with concrete evidence that he had been subject to discrimination. Nor could he demonstrate the ground for discrimination with concrete evidence. Moreover, the applicant did not maintain such allegations in the objection made to the Board of Presidents of the Court of Cassation.

The Constitutional Court has consequently held that this part of the application be declared inadmissible for being manifestly ill-founded.

 

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

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