The Rule Regulating the Formation of the Staff of the Board of Judges and Prosecutors is Unconstitutional
Subject Rule
The rule on the case provides for the creation of the staff of the inspector and exam judge of the Council of Judges and Prosecutors (HSK / Board) for the central organization and the addition of these staff to the HSK part of the Schedule numbered Oct (II) of the Presidential Decree. (CBK) (2) No.
Reasons for the Cancellation Request
In summary, in the petition of the case; it was argued that the provisions related to the creation of public official cadres should be regulated by law, a decree law was issued on a matter that should be regulated by law, the power to issue a decree law was used outside the constitutional framework, the executive branch was given general, unlimited, without exception, indefinite regulatory authority, this situation is incompatible with the inalienability of legislative authority, the binding and supremacy of the Constitution and the principles of separation of powers.
The Court’s Assessment
In order to be able to say whether the regulations regarding the creation of the board inspector and exam judge cadres can be made by the CBK, it is necessary to determine whether the creation of these cadres is related to the executive authority.
159 Of the third part of the Third Part of the Constitution entitled “Judiciary”. It is stipulated in the article that the HSK will be established and will serve in accordance with the principles of the independence of the courts and the guarantee of judgeship. Although it is an administrative body, no hierarchical relationship is envisaged between the HSK and the central government. Dec. Moreover, the HSK is not included in the section entitled “Administration” of the “Executive” part of the Constitution, but in the section entitled “Judiciary”.
On the other hand, 159 of the Constitution. in its article, it is stated that the HSK will serve in accordance with the principles of the independence of the courts and the guarantee of judges, and at the same time it will be established in accordance with the principles of independence. the security of the courts and the judiciary.
Since the organization of the organization also covers, the arrangements for the cadres of members of the judiciary and prosecution profession who will serve on the Board should be made in accordance with the principles of the independence of the courts and the guarantee of the judiciary. In this respect, when the Decrees and principles of the Constitution regarding the establishment, duties, powers and functioning of the HSK are evaluated together, it should be accepted that the members of the judiciary and prosecution profession working in the HSK are public servants. to exercise judicial authority.
The issue of the formation and cancellation of the cadres of public officials exercising the judicial authority may directly affect the exercise of the judicial authority. Since the issue in question is not a matter that concerns only the executive authority, it is not possible for this issue to be regulated by the CBK. In this context, the rule providing for the establishment of Board inspectors and review judges, who are among the public officials exercising the judicial authority of the HSYK, is Dec. 104 of the Constitution. it was understood that the article was edited contrary to the first sentence of the seventeenth paragraph.
For the reasons explained above, the Constitutional Court ruled that the rule was unconstitutional and should be annulled.
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