At the meeting of the Constitutional Court dated 12.10.2016, the requests for cancellation of some of the decree of Decree Laws 668 and 669 of the Extraordinary State Law were rejected due to lack of jurisdiction.

Requests for Cancellation

It has been demanded that some of the Decree Laws of the Law on Extraordinary Law No. 668 and 669 dated 25.07.2016 be canceled and its enforcement suspended.

Reasons for Cancellation Claims

In summary of the case; The extraordinary cause and purpose declared that the measures to be made by the Decree Laws in the extraordinary state law should be of the nature of a measure and that the measure had a provisional nature in accordance with the nature of the case and the fact that the case was initiated in an effective and speedy restructuring of the public order, That the rules go beyond this purpose and that the regulations concerning the organization of some institutions and institutions have made amendments that will continue to be in effect after the extraordinary term ends in ordinary law; It has been argued that they are contrary to the Constitution's Inception and 2nd, 6th, 7th, 8th, 11th, 91st and 121st articles, which states that they can not be described as extraordinary cases and are subject to judicial review.

The Court's Assessment

The Constitutional Court has summarized the following evaluations within the scope of these claims:

Article 148 of the Constitution, in which the duties and powers of the Constitutional Court are regulated, explicitly states that the extraordinary term of the Decree Law shall not be prosecuted in the Constitutional Court on the grounds that it violates the Constitution, the Constitution provides that the Constitutional Court, It is clear that he did not recognize his authority.

There is no doubt that he has the discretion to determine the nature of the rule brought before the Constitutional Court. Based on the content of a transaction in this framework, the qualification may be made according to the organic criterion based on the body establishing the material criterion or transaction and the procedures applied. Whichever criterion is taken as a basis, it is essential that the qualification to be taken out of the frame drawn by the Constitution does not result in the extraordinary situation of the decision of the Declaration of conformity to the Constitution in terms of form and substance.

Based on the material criterion in the previous case-law developed by the Constitutional Court, an extraordinary case examined the place, time and subject to determine whether the Decree of the Decree Law was indeed the Decree Law as provided for in Article 121 of the Constitution. The Court noted in its decision E.1990 / 25, K.1991 / 1 that it had given a majority of the votes on 10.1.1991, and that it was notified by E.1991 / 6, K.1991 / 20, E.1992 / 30, K.1992 / 36 and E. In the case-law of 2003/28, K.2003 / 42, it is necessary to examine whether the regulations made under the name of "extraordinary state DOC" are in the state of extraordinary state DOC that the Constitution prescribes and which does not depend on compliance with the Constitution, Time and subject in order to be able to talk about the extraordinary situation of the Declaration by expressing that it is necessary to conduct compliance with the Constitution in terms of regulations. The Constitutional Court considers that the regulations that will be in effect at the place where the exceptional case declaration does not apply or where the exceptional case is valid within the framework of these criteria is not the case of the extraordinary case and that it is their ordinary term of the Decree Law.

The examination of the Constitutional Court based on space, time and subject criteria in order to determine whether the regulations made in the form of the extraordinary state DLC are indeed extraordinary state DLC requires an assessment of the content of the DLC rules. Such an assessment would result in the conduct of the rules, in principle, of compliance with the Constitution. As a matter of fact, in the decision taken in 2003, the decision of the Constitution in the form of "The cancellation of the administrative proceedings concerning the use of the authority granted to the Regional Governor with this Decree Law" in Article 7 of the Decree Law No. 285, Decree No. 285 of Decree Law No. 425 dated 10.7.1987 'S Article 125 is not compatible with the claim is taken. Although the decision of the Constitutional Court No. 199/1 of the Constitutional Court decides to reject the cancellation by stating that the rule is the provision of extraordinary state LCC and is therefore not subject to judicial review, the decision of K. 2003/42, The Supreme Court ruled that the extraordinary state was not the CCT but the ordinary CCT and subjected it to a judicial denial and canceled the provision which was contradictory to Article 91 of the Constitution on the grounds that it was not a law of jurisdiction. This approach, in the form and substance of Article 148 of the Constitution, makes the prohibition of supervision entirely meaningless and dysfunctional. If the judicial review of the extraordinary cases was possible, the Constitutional Court would carry out the same examination and cancel it by contradicting the 125th article of the Constitution. With this kind of approach, it is possible to exclude all the rules which are in the state of extraordinary state.

The claim that the extraordinary state Declaration of Incorporation contains regulations contrary to the Constitution is not sufficient to subject them to constitutionality control. In order for the Supreme Court to supervise the extraordinary cases, the Constitutional Court must clearly recognize a constitutional authority on this side. It is clear that Article 148 of the Constitution can not be subjected to judicial review under any name under the terms of the extraordinary period Declaration of Rights when considering the intention of the Constitutional Court and the relevant legislative documents. The judicial review to be conducted despite the presumed judgments is incompatible with Article 11 of the Constitution, which regulates the binding and superiority of the Constitution, and Article 6 of the Constitution, which states that no person or body of the State can use a source of authority from the Constitution.

After the announcement of the extraordinary term and the approval of this decision by the TGNA, the Council of Ministers convened under the presidency of the President of the Republic issued the Decree Law no. 668 and No. 669 dated 25.7.2016 to be fully valid and dated 27.7.2016 and 29783 (2nd reiterative) and 31.7. Published in the Official Gazette dated 2016 and numbered 29787 and submitted to the approval of the Turkish Grand National Assembly on the day they were published. The KKRs, which include the subject matter of the case, are therefore the extraordinary KKRs issued during the period in which the exceptional case is valid, based on Article 121 of the Constitution.

In the case of extraordinary cases, lawsuits can not be filed in the Constitutional Court on the grounds of violation of the Constitution in terms of form and substance of the decisions made in the cases of martial law and war in the cases of extraordinary cases, in the case of extraordinary cases, in the third sentence of the first paragraph of Article 148 of the Constitution . "In the face of judgment, it is not possible to make judicial review by passing through the jurisdiction.

It has been decided to deny due to unauthorized cancellation requests for lawsuit-related rule-based reasons.

This press release has been prepared by the Secretary-General for the purpose of informing the public and is not binding.

 

Source Link;

http://www.anayasa.gov.tr/icsayfalar/basin/kararlarailiskinbasinduyurulari/genelkurul/detay/21.html