The Allegation Of Violation Of Freedom Of Expression Due To The Disciplinary Penalty Is Inadmissible Due To Lack Of Subject Matter Jurisdiction
Events
The applicant, who was a member of parliament at the time of the incident, was temporarily expelled from the Assembly for two sessions due to the expressions he used in his speech during the discussions of the “Draft Budget Law for 2018 and the Draft Final Accounts Law for 2016” and as a result, it was decided to deduct two-thirds of his one-month allowance and travel allowance in accordance with Article 163 of the Rules of Procedure of the Grand National Assembly of Turkey (TBMM). Upon this decision, the applicant left the plenary hall and the penalty regarding the salary deduction was reflected in his salary for January, February and March 2018. The applicant filed an individual application directly to the Constitutional Court within the thirty-day application period against the aforementioned decision, as the appeal against the decisions of the General Assembly of the TGNA is closed.
Allegations
The applicant claimed that his freedom of expression was violated by his disciplinary punishment for his remarks during the legislative activity.
The Court’s Assessment
The disciplinary sanction against the applicant was taken by the General Assembly of the Parliament upon the proposal of the Deputy Speaker of the Parliament and by a majority vote. The disciplinary sanction in question is a “parliamentary decision” in that it was taken in the General Assembly of the Legislative Assembly and as a result of a vote.
Parliamentary resolutions are legislative acts of the TGNA other than laws. Judicial review of legislative acts is regulated separately in the Constitution and the task of review is exclusively assigned to the Constitutional Court. In other words, the constitutional legislator has individually determined which legislative acts may be subject to judicial review and authorized the authority to perform the review itself. Since the adoption of the Constitution of the Republic of Turkey No. 2709 by popular vote on 7/11/1982, among the parliamentary resolutions which are legislative acts, the resolutions on amendments to the internal rules of the Turkish Grand National Assembly, on the dismissal of deputies and on the lifting of legislative immunity have been subject to judicial review under Articles 85 and 148 of the Constitution. There is no provision in the Constitution for judicial review of parliamentary decisions other than these three. The Constitutional Court cannot perform a judicial review in an area for which it is not authorized.
Pursuant to paragraph (3) of Article 45 of the Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court, actions that the Constitution excludes from judicial review cannot be the subject of individual application. The disciplinary penalty subject to the application is not one of the parliamentary decisions that the Constitution makes judicial review possible, therefore, it is understood that the application is made against a transaction that the Constitution excludes from judicial review.
For the reasons explained above, the Constitutional Court ruled that the application was inadmissible due to lack of jurisdiction in terms of subject matter.
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