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 plaintiff. By decision of the High Disciplinary Board, an inspector was appointed to conduct the investigation. In the investigation report prepared by the inspector, it was stated that the former members of the Supreme Court, including the plaintiff, were part of the judicial structure of FETÖ/PDY and, by knowingly and willingly participating in the organization’s hierarchical structure, were members of a terrorist organization; it was recommended that the sanction of being invited to resign be applied.
On June 21, 2018, the High Disciplinary Board issued a precautionary decision, pursuant to Article 43 of Law No. 2797 on the Supreme Court, ordering the petitioner to resign from his position. The applicant appealed this decision to the Presidency of the Supreme Court, but the appeal was rejected. The applicant filed an individual application directly with the Constitutional Court on October 21, 2019.
Allegations
In addition to his other claims, the petitioner argued that his right of access to the courts was violated due to the absence of an existing judicial remedy against the decision of the Supreme Court of Appeals Presidium; that the principles of fair trial 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 statements in the Supreme Court President’s speech and the disciplinary penalty decision that breached 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 a request to resign, imposed as a result of the disciplinary investigation conducted against him, constituted a penalty. Therefore, it is first necessary to assess whether the sanction in the present case falls within the scope of criminal proceedings.
In this case, the disciplinary penalty imposed on the applicant was issued as a result of a disciplinary investigation initiated due to the conduct he exhibited during his tenure as a member of the Supreme Court. The conduct exhibited by the petitioner, which undermined his honor and reputation or failed to comply with the requirements of his office, is not classified as a crime under criminal law. The act in question and the “invitation to resign” penalty imposed on the petitioner in response are regulated as a disciplinary offense and penalty under Article 19 of Law No. 2797. This penalty is applied not to the general public, but solely to members of the Supreme Court. The primary purpose of the penalty 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 penalty prescribed by law. Furthermore, the penalty imposed on the applicant does not include imprisonment. Furthermore, while the penalty of being summoned to resign may be considered relatively severe because it results in the termination of the individual’s connection to public office, it has been determined that this penalty does not constitute a crime, given that it does not prevent the plaintiff from working in the private sector. Consequently, it has been accepted that the sanction in this case does not constitute a crime.
It is also necessary to examine whether the sanction, which has been determined not to constitute a criminal offense, relates to civil rights and obligations.
.
Although the right of members of the Council of State and the Court of Cassation to serve as judges until the age of sixty-five is constitutionally guaranteed, the Constitution does not guarantee the right of a judge appointed as a member of the Council of State or the Court of Cassation to continue performing their duties as a member until the age of sixty-five. Nevertheless, there is no doubt that the constitutional provisions regarding judicial security protect members of the Supreme Court and the State Council against the arbitrary termination of their duties.
Therefore, the claim that there is no constitutional basis for the right to protection against the arbitrary termination of the duties of members of the Supreme Court and the State Council is difficult to sustain. In a state founded on judicial independence and the rule of law, it is inconceivable that members of the high courts would not be protected against the termination of their terms of office.
In the next step, it must be determined whether this right is subject to litigation. Pursuant to the eleventh paragraph of Article 43 of Law No. 2797, an appeal may be filed with the Board of Presidents against decisions of the High Disciplinary Board—an administrative body—within fifteen days of the date the decision is served. The final paragraph of Article 17 of the same Law provides that all decisions rendered by the Board of Presidents upon appeal are final and that no further appeal may be filed with any other judicial authority against such decisions. Consequently, there is no judicial remedy available against decisions rendered by the Board of Presidents regarding appeals filed against decisions of the High Disciplinary Board.
.
It is also important to determine whether the review conducted by the Board of Presidents and the decision it renders have a judicial nature. In its decisions dated January 21, 2010, No. E.2008/74, K.2010/15, and December 10, 2020, No. E.2016/144, K.2020/75, the Supreme Court of Appeals determined that the decisions of the Board of Presidents of the Supreme Court of Appeals and the Council of State are of a judicial nature. Therefore, when reviewing objections filed against disciplinary investigations initiated against members of the Supreme Court, it must be acknowledged that the Supreme Court Presidium acts as a judicial body and that the decisions it renders are of a judicial nature.
Since the Presidium’s decisions regarding objections to disciplinary sanctions are of a judicial nature, access to judicial remedies against such disciplinary sanctions is not precluded. In this context, it must be acknowledged that the disciplinary sanction imposed on the petitioner concerns his civil rights. It is also clear that the petitioner’s objection to the Board of Presidents is decisive regarding the substance of the dispute concerning the disciplinary sanction affecting his civil rights. Consequently, it has been determined that the dispute regarding the “invitation to resign” disciplinary sanction 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 Courts
In this case, the applicant has the right to appeal the suspension penalty imposed by the High Disciplinary Board to the Board of Presidents. When reviewing the appeal against the High Disciplinary Board’s decision, the Board of Presidents performs a judicial function, and the decision issued by the Board of Presidents is of a judicial nature. Consequently, the legality of the disciplinary sanction imposed on the applicant has been reviewed by a judicial authority.
On the other hand, the right to a fair trial does not guarantee the right to challenge judicial decisions through legal remedies or before another court. Although it is within the legislative body’s discretion to offer the option of appealing the Board of Presidents’ decision to another judicial body, this cannot be said to be a constitutional requirement necessitated by the right of access to courts. Therefore, the finality of the Presidential Council’s decision does not constitute an interference with the right of access to courts.
The Constitutional Court ruled that the claim regarding the violation of the right of access to courts is inadmissible for the reasons stated above.
C. From the Perspective of the Principle of Equality of Arms and the Principle of Adversarial Proceedings
In this case, the documents forming the basis for the disciplinary penalty imposed on the applicant as a result of the disciplinary investigation were not served on 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 sanction on the applicant has restricted the applicant’s right to defense. Furthermore, no justification for why these documents were not served on the applicant could be found in the decisions of the High Disciplinary Board and the Board of Presidents.
However, the failure to serve the applicant with information and documents pertaining to the defense 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 justice. When assessing whether the right to a fair trial has been violated, it is evaluated whether a deficiency in the trial process has been remedied and whether this, as a whole, has affected the fairness of the trial.
.
As a result of the review of the High Disciplinary Board’s decision, it was determined that the applicant’s conduct was contrary to the honor and dignity of a member of the Supreme Court; this conclusion is largely based on the evidence presented in the indictment prepared by the Supreme Court Prosecutor’s Office, particularly the statements provided to the investigative authorities by former Supreme Court members AH, İ.O., KT, MKÖ., and BE, as well as the statement provided by former Supreme Court of Appeal member İ.D.
Although the transcripts of the statements made by the aforementioned individuals were not served on the plaintiff during the investigation process, the relevant sections of these statements are clearly included in the indictment filed by the Chief Prosecutor’s Office of the Court of Cassation. It is undisputed that the indictment was served on the plaintiff on November 9, 2017. Consequently, the plaintiff was aware of the documents forming the basis of the disciplinary sanction.
Furthermore, the plaintiff had the opportunity to present his own statements in response to the witnesses’ testimonies in the objection petition he submitted to the Board of Presidents. The fact that the indictment, containing the witness statements forming the basis of the investigation, was served on the plaintiff, and that the plaintiff had the opportunity to present his claims and objections before the Board of Presidents, constitutes a compensatory measure against 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, in general, 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 for the reasons stated above.
D. Regarding the Allegation Concerning the Presumption of Innocence
The applicant’s conviction for the crime of 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 the 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 prosecution. 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 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 following statements appear in the section of the June 21, 2018 decision summarizing the investigation report: “…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, by knowingly and willingly taking a place within the organization’s hierarchical structure, were members of the armed terrorist organization known as FETÖ/PDY…” In this context, it is clear that the disciplinary authorities determined that the applicant committed the crime of membership in a terrorist organization. However, the criminal court’s decision convicting the applicant of the crime of membership in a terrorist organization became final on March 17, 2021.
.
Only a criminal court can determine whether a person has committed a crime defined in the criminal code after evaluating the evidence gathered through criminal proceedings. Other public officials may not deem anyone guilty or imply guilt prior to the criminal court’s decision. Otherwise, before a conviction is issued against a person whose criminal case is ongoing, the perception that the person is guilty may take root in society. This situation could also render the defendant’s right to defend themselves in the criminal case meaningless. Furthermore, statements and explanations by other public officials regarding the person’s guilt prior to the criminal court’s decision may lead to the formation of prejudice in the court conducting the criminal proceedings.
However, although the disciplinary decision contains statements suggesting that the applicant is a member of a terrorist organization, these statements do not reflect the High Disciplinary Board’s own assessments. The statements in question were included in the summary section of the investigation report prepared by the investigator. Although the inclusion of statements in the investigation report that undermine the presumption of innocence is problematic, it should not be forgotten that the investigation report is merely advisory in nature and lacks definitive and binding characteristics.
Statements in the investigation report that undermine the presumption of innocence are subject to correction by the High Disciplinary Board. Indeed, the High Disciplinary Board did not include similar statements in its own assessment; instead, it focused on whether the applicant had any connection to the terrorist organization. The statement regarding the applicant’s connection to the terrorist organization constitutes an evaluation within the bounds of disciplinary law. Therefore, when considered 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 Chief Justice’s speech is considered as a whole, it addressed the erosion of public confidence in justice caused by the structure of FETÖ/PDY within the judiciary and emphasized the importance of removing these individuals from their posts and 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 ongoing judicial proceedings were pending against them. Under these circumstances, it cannot be said that the Chief Justice’s speech violated the presumption of innocence.
The Constitutional Court ruled that the claim of a violation of the presumption of innocence was inadmissible based on the stated grounds.