Press Release No: Individual Application 1/17
09.03.2017

PRESS RELEASE CONCERNING THE INADMISSIBILITY DECISION OF MURAT HİKMET ÇAKMAKÇI

On 15/2/2017, the Second Section of the Constitutional Court declared the individual application lodged by Murat Hikmet Çakmakçı (App. No. 2016/35094) inadmissible for non-exhaustion of available legal remedies.

The Facts

While serving as the Judge of Sarıevler, it was decided within the scope of the Decree Law no. 667 and the decision of the High Council of Judges and Prosecutors (“the HCJP) dated 31 August 2016 that the applicant was found established to be in cohesion or connection with the FETÖ/PDY. He was not therefore found eligible to remain in profession and accordingly  dismissed from his office, within the scope of the measures taken following the coup attempt taking place at the night of 15 July 2016.

The applicant applied to the HCJP for the revocation of the decision and requested its re-examination. The applicant’s request was rejected by the decision of the Plenary Assembly of the HCJP dated 29 November 2016.  

The applicant filed an individual application on 15 December 2016.

After the filing of the individual application, the Decree Law no. 685 on the Establishment of the Commission for the Examination of the State of Emergency Procedures was entered into force after being promulgated in the Official Gazette on 23 January 2017. The mentioned Decree Law includes provisions about the members of the judiciary who were dismissed from profession, according to Article 3 of the Decree Law no. 667, like the applicant himself.

The Applicant’s Allegations

In brief, the applicant alleged that his right of access to a court and the right to an effective remedy were violated as there was no remedy by which he could challenge the decision on his ineligibility to remain in his profession and his dismissal from profession. He also maintained that there was a breach of the presumption of innocence, the right to a fair trial, the right to respect for private and family life, the right to protect his honor and dignity and the right to labor and social security in the same vein for different grounds. 

The Court’s Assessment

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

By the subsidiarity nature of the individual application, it is obligatory to primarily exhaust all legal remedies before lodging an individual application with the Constitutional Court. Pursuant to this principle, the applicant is to duly inform the relevant administrative and judicial authorities of his complaint primarily and on time, present, in a timely manner, all information and evidence at his hand on this matter to the authorities and also show due diligence to pursue his case and application.

In the Decree Law no.685 it is stated that those who were found ineligible to remain in profession and therefore dismissed from profession according to Article 3 § 1 of the Decree Law no.667 may apply to the Supreme Administrative Court, as the first instance court, within 60 days following the finalization of the decision on their dismissal and that pending actions which were previously brought before the administrative courts or actions which were concluded would be referred to the Supreme Administrative Court. So it is clearly stipulated that those members of the judiciary who have been removed from profession pursuant to Article 3 of the Decree Law no.667 may bring an action against this decision before the Supreme Administrative Court, and the uncertainty in practice about which jurisdiction in the administrative judiciary was competent to solve the disputes were removed. Also, provisions ensuring referral of the actions previously brought are included therein.  

Accordingly, it has been concluded that the legal remedy formulated in the Decree Law no. 685 is an effective remedy appropriate for the applicant’s circumstance, and that the examination of the application without the exhaustion of this remedy is incompatible with the subsidiarity nature of the individual application.

Consequently, the Constitutional Court declared the application inadmissible for not having exhausted all legal remedies.

The First Section of the Constitutional Court rendered an inadmissibility decision on 16 February 2017 in the application of Hacı Osman Kaya, which is of similar nature.

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

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