Events
Following the July 15 coup attempt, the First Presidency Council of the Supreme Court of Appeals decided to establish a High Disciplinary Board to investigate the actions of 133 members of the Supreme Court of Appeals, including the petitioner. By decision of the High Disciplinary Board, an investigator was appointed to conduct the investigation. In the investigation report prepared by the investigator, it was stated that the former Supreme Court members, including the petitioner, were part of the judicial structure of FETÖ/PDY, and that they were members of a terrorist organization by knowingly and willingly participating in the organization’s hierarchical structure; it was recommended that the sanction of being invited to resign be applied.
On June 21, 2018, the High Disciplinary Board decided to impose the measure of inviting the applicant to resign from office pursuant to Article 43 of the Supreme Court Law No. 2797. The applicant appealed this decision to the Supreme Court Presidium, and the appeal was rejected. The applicant filed an individual application directly with the Constitutional Court on October 21, 2019.
Claims
The applicant; in addition to other claims, argued that the right of access to court was violated due to the lack of an available judicial remedy against the decision of the Council of Presidents of the Court of Cassation; that the principles of equality of arms and adversarial proceedings were violated because the information and documents forming the basis of the investigation were not served; and that the presumption of innocence was violated due to the inclusion of statements in the speech of the President of the Court of Cassation and in the disciplinary penalty decision that infringed upon the presumption of innocence.
The Court’s Assessment
A. The Issue of the Applicability of the Right to a Fair Trial
The applicant argued that the sanction of being invited to step down from office, imposed as a result of the disciplinary investigation conducted against him, constitutes a penalty. Therefore, it must first be assessed whether the sanction in the present case falls within the scope of the criminal charge.
In the present case, the disciplinary sanction imposed on the applicant was applied as a result of a disciplinary investigation initiated due to the applicant’s conduct during his tenure as a member of the Court of Cassation. The act of engaging in conduct that undermines one’s honor and reputation or fails to comply with the requirements of the position, as attributed to the applicant, is not classified as a crime under criminal laws. The aforementioned act and the sanction of “invitation to resign” imposed on the applicant in response to it are regulated as a disciplinary offense and penalty under Article 19 of Law No. 2797. This sanction is applied not to the general public but solely to members of the Supreme Court. The primary purpose of the sanction is to ensure professional discipline. The act classified as misconduct can only be committed by members of the Supreme Court, and only members of the Supreme Court are subject to the sanction prescribed by law. Furthermore, the sanction imposed on the applicant does not entail a custodial sentence. Furthermore, while the penalty of being invited to resign could be considered relatively severe because it results in the termination of the individual’s connection to public office, it has been assessed that this penalty does not amount to a criminal charge, given that there is no obstacle preventing the petitioner from working in the private sector. Consequently, it has been accepted that the sanction in the present case does not constitute a criminal charge.
It is also necessary to examine whether the sanction, which has been determined not to constitute a criminal charge, relates to civil rights and obligations.
While members of the Council of State and the Court of Cassation are constitutionally guaranteed the right to serve as judges until the age of sixty-five, the Constitution does not guarantee the right for a judge appointed as a member of the Council of State or the Court of Cassation to continue performing their membership duties until the age of sixty-five. Nevertheless, there is no doubt that the constitutional provisions regarding judicial security provide protection for members of the Court of Cassation and the Council of State against the arbitrary termination of their duties. Therefore, it is difficult to assert that there is no constitutional basis for the right of members of the Court of Cassation and the Council of State to be protected against the arbitrary termination of their duties. In a state founded on judicial independence and the rule of law, it is inconceivable that members of the high courts are not protected against the termination of their duties.
In the next stage, it must be examined whether this right is subject to litigation. According to the eleventh paragraph of Article 43 of Law No. 2797, an objection may be filed with the Council of Presidents against decisions of the High Disciplinary Board—an administrative body—within fifteen days from the date of notification of the decision. The final paragraph of Article 17 of the same Law stipulates that all decisions rendered by the Board of Presidents upon appeal are final, and no further appeal may be made to any other judicial authority against such decisions. Consequently, no judicial remedy is available against the decisions rendered by the Board of Presidents in response to appeals against the High Disciplinary Board’s decision.
It is also important to determine whether the audit conducted by the Board of Presidents and the decision it issued are of a judicial nature. In its decision dated January 21, 2010, No. E.2008/74, K.2010/15, and in its decision dated December 10, 2020, numbered E.2016/144, K.2020/75, determined that the decisions of the Presiding Judges’ Council of the Court of Cassation and the Presiding Judges’ Council of the Council of State are of a judicial nature. Therefore, it must be accepted that the Council of Presidents of the Court of Cassation acts as a judicial authority when reviewing appeals against disciplinary proceedings initiated against members of the Court of Cassation, and that the decisions it renders are of a judicial nature.
Since the decisions rendered by the Council of Presidents on appeals against disciplinary penalties are of a judicial nature, the judicial remedy against such disciplinary penalties is not precluded. In this context, it must be accepted that the disciplinary penalty imposed on the applicant concerns his civil rights. It is also clear that the applicant’s appeal to the Council of Presidents is decisive regarding the merits of the dispute concerning the disciplinary penalty that affects his civil rights. Consequently, it has been determined that the dispute regarding the disciplinary sanction of “invitation to resign” imposed on the applicant—as a dispute concerning civil rights and obligations—falls within the scope of the right to a fair trial guaranteed by Article 36 of the Constitution.
B. Regarding the Right of Access to the Courts
In the present case, the applicant has the right to appeal the disciplinary penalty of suspension from duty imposed by the High Disciplinary Board to the Board of Presidents. While reviewing the appeal against the High Disciplinary Board’s decision, the Board of Presidents performs a judicial function, and the decision rendered by the Board of Presidents has a judicial character. Consequently, the legality of the disciplinary sanction imposed on the applicant has been subject to review by a judicial authority.
On the other hand, the right to a fair trial does not guarantee the right to appeal judicial decisions through legal remedies or to another court. Although the legislature’s provision of the option to appeal the Board of Presidents’ decision to another judicial body falls within its discretion, it cannot be stated that this constitutes a constitutional requirement necessitated by the right of access to the courts. For this reason, the finality of the Board of Presidents’ decision does not constitute an interference with the right of access to the courts.
The Constitutional Court has ruled that the claim regarding the violation of the right of access to court is inadmissible based on the aforementioned grounds.
C. From the Perspective of the Principle of Equality of Arms and the Principle of Adversarial Proceedings
In the present case, the documents serving as the basis for the disciplinary penalty imposed on the applicant following the disciplinary investigation were not served to the applicant during the investigation process or the appeal stage. During a disciplinary investigation, providing the information and documents relied upon by the investigating authorities to the person under investigation is of great importance for the effective exercise of the right to defense. Therefore, it is clear that the failure to serve the documents forming the basis of the disciplinary penalty on the applicant restricted the applicant’s right to defense. Furthermore, no justification regarding why these documents were not served on the applicant was found in the decisions of the High Disciplinary Board and the Board of Presidents.
However, the failure to serve information and documents relevant to the defense on the applicant does not, in and of itself, constitute a violation of the principles of equality of arms and adversarial proceedings. As is well known, the right to a fair trial does not guarantee that the outcome of the trial will be fair; rather, it ensures that the trial process is conducted in a manner consistent with fairness. When assessing whether the right to a fair trial has been violated, one evaluates whether a deficiency in the trial was remedied within the trial process and whether this, as a whole, affected the fairness of the trial.
Upon reviewing the decision of the High Disciplinary Board, it is concluded that the applicant’s conduct, which was deemed contrary to the honor and dignity of a Supreme Court member, was established; this conclusion relies heavily on the evidence presented in the indictment prepared by the Supreme Court Prosecutor’s Office, particularly the statements given to the investigative authorities by former HSK members A.H., İ.O., K.T., M.K.Ö., and B.E., as well as the statements given by former Supreme Court of Appeals member İ.D. to the investigative authorities.
Although the transcripts of the statements made by the individuals in question were not served on the petitioner during the investigation process, the relevant sections of these statements were explicitly included in the indictment filed by the Chief Public Prosecutor’s Office of the Court of Cassation. It is undisputed that the indictment was served on the applicant on November 9, 2017. Thus, the applicant was made aware of the documents forming the basis of the disciplinary penalty. Furthermore, the applicant had the opportunity to present his statements in response to the witnesses’ testimonies in the objection petition he submitted to the Board of Presidents. It has been assessed that the fact that the indictment, which includes the witness statements forming the basis of the investigation, was served on the petitioner, and that the petitioner had the opportunity to present his claims and objections against them before the Board of Presidents, constitutes a compensatory measure for the restriction on the right to defense. In this context, it was concluded that the failure to serve the documents forming the basis of the investigation on the applicant during the investigative process did not, as a whole, undermine the fairness of the trial.
The Constitutional Court ruled that the claim regarding the violation of the principles of equality of arms and adversarial proceedings was inadmissible based on the aforementioned reasons.
D. Regarding the Allegation Concerning the Presumption of Innocence
The applicant’s conviction for membership in a terrorist organization became final on March 17, 2021. It was understood that the applicant was presumed innocent until that date and was entitled to all safeguards of the presumption of innocence.
On the other hand, the presumption of innocence does not preclude the initiation of a disciplinary investigation regarding the incident subject to criminal proceedings. Disciplinary authorities may conduct their own assessments regarding the incident subject to criminal investigation, provided they remain within the bounds of disciplinary law. However, disciplinary authorities must be mindful of the language they use and must refrain from making assessments regarding the individual’s guilt or using statements that admit or imply guilt.
In the present case, regarding the disciplinary penalty imposed on the applicant, the section of the decision dated June 21, 2018, summarizing the investigation report states: “… when all documents are taken into account, it is understood that they were part of the judicial structure of the armed terrorist organization known as FETÖ/PDY, and that they were members of the armed terrorist organization known as FETÖ/PDY by knowingly and willingly taking their place within the organization’s hierarchical structure…” In this context, it is evident that the disciplinary authorities have asserted that the applicant committed the offense of membership in a terrorist organization. However, the criminal court’s decision convicting the applicant of membership in a terrorist organization became final on March 17, 2021.
Only a criminal court may determine whether an individual has committed a crime defined in the criminal code after evaluating the evidence gathered through the procedures of criminal proceedings. Other public authorities may not treat anyone as guilty or imply that the person is guilty prior to a criminal court’s decision. Otherwise, the perception that the individual is guilty may take hold in society before a conviction is issued regarding a person whose criminal trial is ongoing. This situation may also render the defendant’s right to defend themselves in the criminal trial meaningless. Furthermore, statements and explanations by other public authorities regarding the individual’s guilt prior to the criminal court’s decision may lead to the formation of prejudice on the part of the court conducting the criminal trial.
However, while the disciplinary decision contains statements indicating that the applicant is a member of a terrorist organization, these statements do not represent the High Disciplinary Board’s own assessments. The aforementioned statements were used in the section summarizing the investigation report prepared by the investigator. Although the inclusion of statements undermining the presumption of innocence in the investigation report is problematic, it must be noted that the investigation report is merely a recommendation and lacks definitive and enforceable characteristics. The statements in the investigation report that undermine the presumption of innocence are of a nature that can be remedied by the High Disciplinary Board. Indeed, the High Disciplinary Board did not include similar statements in its own assessment but focused on whether the applicant had any connection to the terrorist organization. The statement that the applicant had a connection to the terrorist organization is an assessment that remains within the bounds of disciplinary law. Therefore, when viewed as a whole, it has been determined that the statements used in the High Disciplinary Board’s decision do not violate the presumption of innocence.
On the other hand, when the relevant section of the Supreme Court President’s speech is considered as a whole, it addressed the erosion of public confidence in justice caused by the FETÖ/PDY’s structure within the judiciary, and highlighted the importance of removing these individuals from their posts and subsequently punishing them following a fair trial. The speech also specifically emphasized that the trials of these individuals must be conducted without compromising human rights and without prejudice. The speech did not state that the suspended judicial officials were definitively guilty; rather, it noted that the trial processes regarding them were ongoing. Under these circumstances, it cannot be said that the Chief Justice’s speech undermined the petitioner’s presumption of innocence.
The Constitutional Court ruled that the claim regarding the violation of the presumption of innocence, based on the stated grounds, was inadmissible.