Press Release Nr: Plenary Assembly 7/15
24/12/2015

JUDGEMENT ON APPLICATION RELATED TO EFFECTS OF CRIMINAL CONVICTION ON POLITICAL RIGHTS
(Click for full text of judgment)

The Constitutional Court held in its judgement on 8.10.2015 with regards to the application for annulment of certain phrases in Article 53 of Turkish Criminal Code No. 5237;

a- To annul the phrase “As legal consequences of sentence to imprisonment due to a felonious intent, a person may be disqualified from…” in the first paragraph of the Article in its relation to the phrase “use of right to be elected” in sub-paragraph (b) of the same paragraph

b- To annul the phrase “…sentence to imprisonment…” in the first paragraph of the Article in its relation to the phrase “Use of right to elect and” in sub-paragraph (b) of the same paragraph

c- To annul the phrase “…use of other political rights…” in sub-paragraph (b) of the first paragraph of the Article

d- To annul the second paragraph of the Article in its relation to the phrase “Use of right to elect and right to be elected” in sub-paragraph (b) of the first paragraph

e- To annul the phrase “…persons whose short-term sentence is suspended or …” in the fourth paragraph of the Article in its relation to the phrase “Use of right to be elected” in sub-paragraph (b) of the first paragraph

A- The provision of law which prescribes that, as legal consequences of sentence to imprisonment due to a felonious intent, a person may be disqualified from use of right to be elected

Provisions of Law subject to Constitutionality Review

The provision of law, which contains the phrase subject to constitutionality review, prescribes that a person may be disqualified from “use of right to be elected” as legal consequences of sentence to imprisonment due to a felonious intent.

Grounds

The court judgment, which requests constitutionality review, states briefly that, although the constitutional provisions on eligibility to be a deputy prescribe that persons who have been sentenced to a prison term totaling one year or more excluding involuntary offences shall not be elected as a deputy, the provision of law subject to review sets forth that persons may be disqualified from “use of right to be elected” even when they are sentenced to a prison term less than one year and, therefore, is unconstitutional.

The Court’s Assessment

The Constitutional Court emphasized that being sentenced to a prison term of less than one year, except for the crimes cited under Article 76 of the Constitution, is not prescribed as one of the reason to be disqualified from being elected as a deputy. The Constitutional Court annulled the provision of law containing the said phrase in its relation to the phrase “…use of right to be elected…” in sub-paragraph (b) by finding it contrary to Article 76 of the Constitution as it sets forth that persons may be disqualified from “use of right to be elected” even when they are sentenced to a prison term less than one year due to a felonious intent.

B- The provision of law which prescribes that, as legal consequences of sentence to imprisonment due to a felonious intent, a person may be disqualified from use of right to elect

Provisions of Law subject to Constitutionality Review

The provision of law, which contains the phrase subject to constitutionality review, prescribes that a person may be disqualified from use of right to elect, right to be elected and his other political rights as legal consequences of sentence to imprisonment due to a felonious intent.

Grounds

The court judgment, which requests constitutionality review, states briefly that the provision of law subject to review is unconstitutional as it contradicts the basic constitutional principles on political rights.

The Court’s Assessment

In the Constitutional Court’s opinion, democratic society calls for a system where the citizens enjoy their right to elect to the greatest extent possible as a means of measuring national will. The State shall not interfere with the right to elect unless it is compulsory for the democratic order of the society.

Although this right may be restricted for legitimate purposes, such restriction shall not abolish the citizens’ right to elect or render it dysfunctional.

A person who has the right to elect enjoys this right by casting vote. Accordingly, it is evident that the right to elect cannot be dissociated from the right to vote which may be defined as its practical reflection. Article 67 of the Constitution prescribes that convicts in penal execution institutions excluding those convicted of negligent offences shall not vote. As the said provision regulates that only convicts in penal execution institutions due to a felonious offences shall not vote, there is no constitutional provision which prevents the convicts who are not in penal execution institutions from casting their votes.

When the provision of law subject to constitutionality review is examined, it prescribes that, regardless of whether they are in penal execution institutions or not, those who are sentenced to imprisonment due to a felonious intent shall be disqualified from use of right to elect. The restriction, this provision of law imposes on the right to elect, goes beyond the borders of” right to vote” which is clearly defined the constitution as a manifestation of right to elect. It restricts the right to elect categorically in cases of sentence to imprisonment due to a felonious intent without taking into account whether the convict is in penal execution institutions or not.

Consequently, the Constitutional Court annulled the provision of law containing the phrase subject to constitutionality review in its relation to the phrase “Use of right to elect and…” in sub-paragraph (b) of the same paragraph by finding it contrary to Article 213 and 67 of the Constitution as the said provision of law constitutes an unmeasured restriction which is not necessary in a democratic social order.

C- The provision of law which prescribes that, as legal consequences of sentence to imprisonment due to a felonious intent, a person may be disqualified from use of his other political rights

Provisions of Law subject to Constitutionality Review

The provision of law, which contains the phrase subject to constitutionality review, prescribes that a person may be disqualified from use of his other political rights as legal consequences of sentence to imprisonment due to a felonious intent.

Grounds

The court judgment, which requests constitutionality review, states briefly that the provision of law subject to review is unconstitutional as it prescribes that a person may be disqualified from use of his other political rights as legal consequences of sentence to imprisonment due to a felonious intent but it does not clearly state which rights they are and, thereby, leads to ambiguity.

The Court’s Assessment

In the Constitutional Court’s opinion, political rights are related to the establishment and functioning of the State. These rights constitute the basis of democracy as they provide the individuals with the ability to act directly to effect the basic rules and structures of the society.

It comes out that the restriction imposed through said provision of law covers all political rights cited between Article 66 to 74 of the Constitution excluding the right to elect and to be elected.

Although one may accept that a criminal can be denied of certain rights which require the existence of trust especially, which is stated in the legislative intent of the law as well, a blanket ban on all constitutionally conferred political rights of the individual cannot be considered necessary for the aims pursued with the said provision of law.

Consequently, the Constitutional Court annulled the provision of law in its relation to the phrase subject to constitutionality review by finding it contrary to principle of proportionality.

D- The provision of law which prescribes that, a person may not use his right to elect and to be elected until the punishment of imprisonment is fully executed

Provisions of Law subject to Constitutionality Review

The provision of law subject to constitutionality review prescribes that a person may not use his rights cited under Article 53 of the Law until the punishment of imprisonment is fully executed.

Grounds

The court judgment, which requests constitutionality review, states briefly that the provision of law subject to review is unconstitutional as it prescribes that a person may not use his right to elect and to be elected until the punishment of imprisonment is fully executed even during his conditional release when he is not in penal execution institutions, which contradicts an explicit provision of the Constitution.

The Court’s Assessment

In the Constitutional Court’s opinion, the provision of law subject to constitutionality review is unconstitutional as it prescribes that a person may not use his right to elect until the punishment of imprisonment due to a felonious intent is fully executed and, thereby, the said provision contradicts an explicit provision of Constitution by restricting the right to elect for a time period which exceeds the actual execution period in penal institutions.

On the other hand, although the second paragraph of Article 76 of the Constitution does not cite “being sentenced to a prison term totaling less than one year” among the reason to be disqualified from being elected as a deputy, the provision of law subject to constitutionality review prescribes that persons sentenced to imprisonment for less than one year due to a felonious intent may be disqualified from use of right to be elected as well. Therefore, the provision of law subject to constitutionality review contradict the Constitution

Consequently, the Constitutional Court annulled the provision of law subject to review in its relation to the phrase “Use of right to elect and right to be elected…” in sub-paragraph (b) of the first paragraph by finding it contrary to Article 67 and 76 of the Constitution .

E- The provision of law which prescribes that the sanction of “being disqualified from use of right to elect and to be elected” shall not be applicable for the persons whose short-term sentence is suspended

Provisions of Law subject to Constitutionality Review

The provision of law, which contains the phrase subject to constitutionality review, prescribes that the persons whose short-term sentence is suspended shall not be disqualified from use of their rights cited under the first paragraph of Article 53 of the Law.

Grounds

The court judgment, which requests constitutionality review, states briefly that, although the second paragraph of Article 76 of the Constitution states that those who have been convicted for theft shall not be elected as a deputy regardless of type, duration and suspension of the sentence imposed, the provisions of Article 53 of the Law shall not be applicable for the persons whose short-term sentence is suspended and, therefore, those whose short-term sentence for theft is suspended may obtain the right to be elected as deputy in spite of the regulation in Article 76 of the Constitution. Accordingly, the court judgment, which requests constitutionality review, alleges that the relevant provision of law is unconstitutional.

The Court’s Assessment

In the Constitutional Court’s opinion, due to the provision of law subject to constitutionality review, persons whose short-term sentence is suspended shall not be disqualified from being elected as deputy. In this context, the provision of law subject to review broadens the explicit and detailed regulations in Article 76 of the Constitution on the eligibility to be a deputy with regard to suspended short-term sentences. However, the legislative intent of the regulation made under Article 76 of the Constitution is to ensure that those to exercise legislative power bear certain qualifications. In this context, the eligibility criteria to be elected as a deputy may be changed only through a constitutional amendment. The provision of law subject to constitutionality review brings attempts to change the constitutional provisions on eligibility criteria to be elected as a deputy and, therefore, is unconstitutional in its relation to the phrase “…use of right to be elected…” in sub-paragraph (b) of the first paragraph.

Consequently, the Constitutional Court annulled the provision of law subject to review in its relation to the phrase “…use of right to be elected…” in sub-paragraph (b) of the first paragraph by finding it contrary to 76 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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