Rule Subject to Appeal
The rule in question explicitly provides for a legal avenue to appeal a decision regarding the suspension of a criminal sentence (HAGB).
Grounds for the Application
In summary, the petition argues that, pursuant to Law No. 5271, HAGB decisions should not produce legal consequences; however, in recent years, laws and regulations imposing consequences on HAGB decisions have entered into force. Furthermore, the review of appeals against HAGB decisions is, as a rule, conducted based on the case file, and a substantive review of the decisions is not carried out. It is argued that this situation violates the rights to a two-stage trial, an effective remedy, and a fair trial; and consequently, since HAGB decisions—which imply a belief that the individual committed a crime—do not undergo a genuine legal process and should be subject to appellate review, this provision is unconstitutional.
The Court’s Assessment
Although it is a relatively new institution in the Turkish legal system, the High Judicial Council (HAGB) has found a wide scope of application. According to 2020 data from the Ministry of Justice’s General Directorate of Judicial Records and Statistics, approximately one-fourth of all conviction decisions issued by criminal courts are based on HAGB decisions.
The mere existence of a remedy against High Judicial Council (HAGB) decisions—which have found such a broad scope of application in the Turkish judiciary—is insufficient on its own, given the current form of application; this remedy must also offer a realistic chance of success in practice. The absence of such judicial review, which directly concerns the regime of restrictions imposed on fundamental rights and freedoms, implies that the rule justifying the intervention does not provide the procedural safeguards of trial law, and this leads to a violation of fundamental rights and freedoms.
In this context, the Constitutional Court has issued rulings in numerous individual application cases where it previously found violations, stating that appellate courts failed to consider the applicants’ claims and evidence, did not attempt to balance conflicting interests, and did not assess whether the intervention was consistent with the requirements of a democratic society or proportionate. Under the current system, it has been observed that decisions issued by appellate courts in response to appeals against Supreme Court rulings typically consist of file-based, boilerplate justifications limited to formal requirements, concluding that no legal violation exists in the lower court’s decision and therefore dismissing the appeal.
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The provision establishing the right to challenge HAGB decisions does not provide for a specific and effective review mechanism that would ensure the claims and evidence of those seeking this legal remedy are considered, conflicting interests are balanced, and the proportionality of interventions in fundamental rights and freedoms and their compliance with the requirements of a democratic society are determined.
This situation limits the individual’s right to demand that the competent authority be provided with an opportunity to object in order to remedy interventions in fundamental rights and freedoms and to prevent arbitrary conduct by those exercising public authority. Indeed, it has also been observed that the rule cannot be applied in a manner that addresses the issues outlined above. The absence of such a judicial review mechanism, which is directly related to the regime of restrictions on fundamental rights and freedoms, is incompatible with the right to an effective remedy.
The Constitutional Court, relying on the aforementioned grounds, ruled that the provision in question was unconstitutional and ordered its annulment.