The Rule That is the Subject of the LawsuitThe Rule That is the Subject of the Lawsuit
According to the rule on the subject of the case, it is envisaged that the staff of the Board of Judges and Prosecutors (HSK / Board), the inspector of the Board and the audit judge for the central organization will be created and these staff will be added to the HSK section of the Schedule (II) Oct. oe Rule That is the Subject of the Lawsuit
According to the rule on the subject of the case, it is envisaged that the staff of the Board of Judges and Prosecutors (HSK / Board), the inspector of the Board and the audit judge for the central organization will be created and these staff will be added to the HSK section of the Schedule (II) Oct. of the Presidential Decree (CBK) numbered (2).
Justification of the Cancellation Request
In summary, the petition of the case states that the provisions related to the creation of the staff of public officials should be regulated by law, the CBK was issued exclusively on a matter that should be regulated by law, the CBK removal authority was used outside the constitutional framework, the executive branch was granted a general, unlimited, principles and framework-uncertain 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. summary, the petition of the case states that the provisions related to the creation of the staff of public officials should be regulated by law, the CBK was issued exclusively on a matter that should be regulated by law, the CBK removal authority was used outside the constitutional framework, the executive branch was granted a general, unlimited, principles and framework-uncertain 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 related to the creation of the Board inspector and audit judge cadres can be made with the CBK, it should first be determined whether the creation of these cadres is related to the executive authority.
Article 159. of the Third Part of the Constitution, titled “Judiciary”, in the Third Chapter, states that the HSK will be established and carry out its duties in accordance with the principles of independence of the courtsrticle 159. of the Third Part of the Constitution, titled “Judiciary”, in the Third Chapter, states that the HSK will be established and carry out its duties in accordance with the principles of independence of the courts and security of the judiciary. Although it is an administrative board, no hierarchical relationship is foreseen between the HSK and the central administration. In addition, the HSK is not included in the “Administration” section of the “Executive” chapter of the Constitution, but in the “Judiciary” section.
On the other hand, Article 159 of the Constitution does not only state that the HSK will operate in accordance with the principles of independence of the courts and security of the judiciary, but also states that it will be established in accordance with the principles of independence of the courts and security of the judiciary.n the other hand, Article 159 of the Constitution does not only state that the HSK will operate in accordance with the principles of independence of the courts and security of the judiciary, but also states that it will be established in accordance with the principles of independence of the courts and security of the judiciary. Since the establishment also includes organization, arrangements regarding the positions of judges and members of the prosecution profession who will serve on the Board must be made in accordance with the principles of the independence of the courts and the guarantee of judges. In this respect, when the provisions and principles of the Constitution regarding the establishment, duties and powers of the HSK and its functioning are evaluated together, it should be accepted that the persons belonging to the profession of judge and prosecutor and serving in the HSK are public officials exercising judicial authority.
The establishment and cancellation of the positions of public officials exercising judicial authority may directly affect the exercise of judicial authority. Since the issue in question is not only a matter related to executive authority, it is not possible to regulate this issue withhe establishment and cancellation of the positions of public officials exercising judicial authority may directly affect the exercise of judicial authority. Since the issue in question is not only a matter related to executive authority, it is not possible to regulate this issue with a CBK. In this respect, the rule providing for the establishment of the staff of the Board inspector and the audit judge, who are among the public officials exercising the judicial authority of the HSK, is amended by Article 104 of the Constitution. it was understood that the regulation was made in a manner contrary to the first sentence of the seventeenth paragraph of the article.
The Constitutional Court ruled that the rule was against the Constitution and annulled it on the grounds explained.