The 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.
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.
159, which is included in the Third Section of the Third Part of the Constitution entitled “Judiciary”. it is stated 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 tenure of judges. Although it is an administrative board, a hierarchical relationship between the HSK and the central administration is not envisaged. Dec. In addition, the HSK is included in the section entitled “Judiciary”, not in the section entitled “Administration” of the “Executive” section of the Constitution.
On the other hand, 159 of the Constitution. in the article, it is not satisfied with stating that the HSK will serve according to the principles of the independence of the courts and the guarantee of judges, it is also stated that it will be established according to the principles of the independence of the courts and the guarantee of judges. 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 issue of creation and cancellation of the positions of public officials using the judicial authority may directly affect the exercise of the judicial authority. Since the mentioned issue is not a subject related only to executive authority, it is not possible to regulate this issue with the 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 has decided that the rule is contrary to the Constitution and its cancellation on the grounds explained.