Press Release No: Individual Application 43/16
23.11.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF MEHMET ÇELİK ON THE PRINCIPLE OF LEGAL JUDGE

On 17/11/2016, the First Section of the Constitutional Court held with regard to the individual application lodged by Mehmet Çelik (application no. 2015/889) that there was a breach of the guarantee of legal judge guaranteed in Articles 36 and 37 of the Constitution.

The Facts

The applicant is a military prosecutor who was retired from the Turkish Armed Forces (“the TAF”) on 15/8/2014. He was subsequently dismissed from the TAF in the status of an enlisted man.

He was reported to the Yunak Chief Public Prosecutor’s Office with the allegation that he had committed the offence of threat on 27/10/2007. Within the scope of the investigation conducted, the information on the applicant’s duty and title was requested from the Air Forces. After being informed that he was a military prosecutor, the Prosecutor’s Office requested to be provided with the applicant’s photos suitable for making identification. As the relevant officers submitted a photo belonging to another person, a criminal complaint was filed against them. Thereupon, a criminal case was opened by the indictment of the Military Prosecutor’s Office of the Turkish General Staff dated 4/6/2010 with the allegation that a photo of a military judge, Ö.T., who was serving as a deputy military prosecutor at the same place, was submitted instead of that of the applicant and that thereby, the accused A.Z.Ü. had committed the offence of forgery of an official document and the applicant had committed the offence of involving in the forgery of official document by means of instigating and aiding. By its decision of 10/6/2010, the Military Court of the Turkish General Staff decided to accept the criminal case.

By the decision of the Military Court of the Turkish General Staff dated 6/6/2012, the proceedings in respect of the accused persons, the colonel A.Z.Ü., who was a judge at the Air Forces, and the applicant, be hereafter continued to be handled before the Military Court of Cassation pursuant to Article 25 and the Provisional Article 10 of the Law no. 357, and the case-file accordingly be submitted to the Presidency of the Military Court of Cassation.

By its decision of 18/1/2013, the 4th Chamber of the Military Court of Cassation dealing with the proceedings decided to acquit both accused persons by concluding that the offences with which the accused persons had been charged were not constituted in terms of their elements and that the acts specified in the bill of indictment were not related to any other offence.

The military prosecutor appealed the acquittal decision against the accused persons, maintaining that a decision on conviction must be rendered in respect of the colonel A.Z.Ü, who was a judge at the Air Forces, for the offence of protecting the offender and in respect of the applicant for the offence of instigation to protect the offender.

By the judgment of the Board of Chambers of the Military Court of Cassation dated 31/5/2013, it was decided that as the accused persons, who had acted in union for commission of the offence and had jointly performed the act, had jointly committed the offence of forgery of official documents, the acquittal decisions rendered in respect of them be quashed for having been proven to be performed. 

The 4th Chamber of the Military Court of Cassation complied with the quashing judgment and continued the proceedings. At the hearing of 7/2/2014, the accused person, A.Z.Ü., requested that a decision of lack of jurisdiction be taken and that the case-file be submitted to the Presidency of the Court of Cassation. By the interlocutory judgment rendered by the Chamber at the same hearing, it was decided that the Chamber had jurisdiction over the case in question.

Upon the judgment in which his request for rendering a decision of lack of jurisdiction was dismissed, the accused person, A.Z.Ü., also requested the case-file to be submitted to the Chief Public Prosecutor’s Office of the Court of Cassation for a dispute concerning the jurisdiction over the case-file. The same Chamber submitted the petition for the request and all other relevant documents to the Chief Public Prosecutor’s Office of the Court of Cassation authorized to create such a dispute. By its judgment of 18/2/2014, the Chief Public Prosecutor’s Office of the Court of Cassation decided that there was no ground to create a dispute concerning the jurisdiction over the case-file on the ground that although there had been the opportunity and requirement that the request for creating such a dispute be made before the evidence is adduced, the accused person had failed to avail himself of this opportunity.

By the judgment of the 4th Chamber of the Military Court of Cassation, it was decided that the retired accused persons be individually sentenced to 2 years and 6 months’ imprisonment, acknowledging that they had been committed the offence of forgery of official document which a public officer was authorized to draw up.

Maintaining that the accused person, A.Z.Ü., and the applicant be convicted respectively for the offences of protecting the offender and instigating to protect the offender, the military prosecutor appealed the decisions on conviction. The applicant also appealed the judgment by stating that the military justice did not have jurisdiction over the case and that the elements of the offence did not appear.

Upon the appeal, the judgment of the 4th Chamber of the Military Court of Cassation dated 24/3/2014 was upheld by the judgment of the Board of Chambers of the Military Court of Cassation dated 27/11/2014.

The Allegations

Maintaining that he left the TAF by means of being retired on 15/8/2014; that as the co-accused A.Z.Ü. had been previously dismissed from the TAF, there remained no accused person, who was a military officer, in the case-file; that pursuant to Article 145 § 2 of the Constitution amended by Article 15 of the Law no. 5982 and paragraph 2 added to Article 3 of the Code no. 5271, it was not possible for him to be tried before military courts, and in fact, the imputed offence of forgery of official documents did not constitute a military offence; and that as per the decision of the Court of Jurisdictional Disputes dated 14/1/2013, the judicial courts had jurisdiction over the case, the applicant alleged that there had been a breach of the right to a fair trial and requested the final judgment to be revoked.

The Court’s Assessment

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

The duties of the criminal courts are set out in Article 145 of the Constitution and Article 9 of the Law no. 353. Accordingly, the trial of the persons as a military officer falls into the jurisdiction of the military courts. When the accused person is no longer a military officer and if the imputed offence is not a military one or is related to a military offence, it is required that the trial be heard before the judicial courts, which are the natural place of jurisdiction, as the military courts would not have jurisdiction over the case.

The Court of Jurisdictional Disputes established that the offence of forgery of official documents was not a “military offence”. There is no doubt that the Board of Directors of the Military Court of Cassation was of the same opinion that the offence of forgery of official documents was not a military offence. As the phrase of “the military scene” was excluded from the law text pursuant to the amendment made to Article 145 of the Constitution, the fact that the offence was committed in a military scene has not an impact on the determination of the place of jurisdiction.

Having noted that upon the amendments made to Article 145 of the Constitution and Article 3 of the Code no. 5271, the jurisdiction of the military justice had been restricted, which was clearly set out in the legislative intention of the amendment to Article 145 of the Constitution, the General Assembly of the Criminal Chambers of the Court of Cassation held that the trial of the applicant for his act of “misstatement” with whichhe had been charged under another case-file be held before ordinary courts.

The Constitutional Court made assessments, in its judgments concerning the constitutionality review, in line with the legislative intention of the amendment made to Article 145 of the Constitution.

In the judgment of the Board of Chambers of the Military Court of Cassation dated 27/11/2014 and indicating that even if the military judges and prosecutors have been dismissed from the TAF, their trials would continue to be held by the Military Court of Cassation, it is specified that even if the military judges and prosecutors resign or retire from their offices, the jurisdiction of the military courts would prevail as there was no provision concerning the aftermath of investigation/prosecution in the Law no. 357. In this judgment, the amendment to Article 145 of the Constitution and the legislative intent thereof were not taken into consideration, and Article 91 of the Law no. 2802 was applied by way of comparison. In other words, the limitations of the jurisdiction of the military justice was determined not on a legal basis but by way of interpretation. It is obvious that the interpretation in question is not in compatible with the previous judgments rendered by the Constitutional Court, the Court of Jurisdictional Disputes, the Military Court of Cassation and the Court of Cassation concerning the jurisdiction of the military justice by relying on the legislative intent of the amendment made to Article 145 of the Constitution. Thereby, a difference has occurred among the jurisprudences of the high courts as to whether the titles of the military judges and prosecutors at the time of their resignation or retirement would be taken as a basis for the determination of the jurisdiction of the courts, which led to legal uncertainty.

The Constitutional Court is not authorized to determine which court or which branch of judiciary has jurisdiction over a dispute. The duty of the Constitutional Court within the scope of the individual application is not to review the compatibility of the proceedings with the procedural rules but to monitor whether the guarantees within the scope of the right to a fair trial have been violated in the present incident.

The Military Court of Cassation did not take action to bring the matter before the Court of Jurisdictional Disputes although the jurisprudences of the other high courts had been presented to its attention vis-à-vis the legal uncertainty as to before which courts the military judges and prosecutors would be tried. In other words, due diligence was not shown for the functioning of the mechanisms which would eliminate the legal uncertainty occurring as to which branch of judiciary would have jurisprudence in respect of the military judges and prosecutors resigning or dismissed from their office after the date of offence. 

The Constitutional Court has consequently held that there was a breach of the principle of legal judge which is guaranteed in Articles 36 and 37 of the Constitution.

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

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