Press Release No: Individual Application 48/16
30.12.2016

PRESS RELEASE CONCERNING JUDGMENT OF HAKAN YILDIZ FINDING NO VIOLATION THAT NON-EXECUTION OF THE DECISION ON THE STAY OF EXECUTION IS NOT IN BREACH OF THE RIGHT OF ACCESS TO COURT

The Plenary of the Constitutional Court held with regard to the individual application of Hakan Yıldız (App.No: 2014/8804) that there was no breach of the applicant’s right of access to court and accordingly declared the present application inadmissible for being manifestly ill-founded.

The Facts

In the incident giving rise to the present individual application which was concluded bythe Plenary of the Constitutional Court on 1/12/2016, while serving as the deputy manager in the Public Security Department of the Ankara Security Directorate, the applicant was appointed to the Foreigners’ Department located in the same province as the deputy manager by virtue of the administrative act of 6/1/2014. In the action brought by the applicant with the request that the act in question be revoked and the execution of this act be stayed, the 6th Chamber of the Ankara Administrative Court found the impugned act manifestly unlawful and accordingly ordered the stay of execution of this act in its decision of 15/4/2014 on the ground that execution thereof would cause irreparable damages. Upon this decision, the Ankara Governorship re-appointed the applicant to the position in the Foreigners’ Department on 12/5/2014 as the impugned position at the Public Security Department was not vacant. The decision on this act was communicated to the applicant on 26/5/2014. Thereupon, the applicant lodged an individual application on 12/6/2014. In the meantime, the administration raised an objection to the decision on the stay of execution within the prescribed period. Before the individual application was lodged, the First Board of the Ankara Regional Administrative Court had accepted the administration’s objection and revoked the decision on the stay of execution by its decision dated 22/5/2014 and objection no. 2014/3075. Following the individual application, the 6th Chamber of the Ankara Administrative Court dismissed the action on substantive grounds by its decision of 30/12/2014. The applicant’s objection to this decision was dismissed by the 6th Chamber of the Ankara Regional Administrative Court by its decision of 10/6/2015. After the applicant’s request for rectification of the decision had been dismissed by the decision of 11/11/2015, the first instance decision on the dismissal of the action became final.

The Applicants’ Allegations

The applicant maintained that in spite of not being subject to any criminal proceedings or administrative investigation, the department where he took office had been changed without submission of any concrete reason; that the decision on the stay of execution, which had been rendered in the action brought against the administrative act, had not been implemented by relying on Article 28 of the Law no. 2577. He accordingly asserted that the judicial decision taken was rendered ineffective; and that as the decision on the stay of execution was not duly implemented, the remedy in question was not an effective one. He accordingly alleged that his rights guaranteed in the Constitution had been violated and requested finding of the violation in question and elimination of its consequences. 

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this application:
The practice of the stay of execution is of constitutional nature and significance. In principle, the right to a fair trial secures realization of the outcomes of judicial decisions, which are final and definite, with respect to the dispute in question. However, the decisions on the stay of execution are not of such a nature. As in the other interlocutory decisions, non-execution of the decisions on the stay of execution must be examined only within the scope of the right of access to court by having regard to the principle of becoming of the whole proceedings unfair (“yargılamanın bütününün adil olmaktan çıkması ilkesi”) which is one of the dominant principles of the right to a fair trial.

In this respect, the matter to be examined in the complaints of non-execution of the decision on the stay of execution, which is not of final nature in respect of the proceedings, within the scope of the right to a fair trial is to whether non-execution of this decision would, by very nature of the practice of the stay of execution, preclude the execution of the final decision likely to be rendered in future in favour of the applicant or render it difficult to an excessive degree. This matter must be examined by taking into consideration the particular circumstances of each concrete incident.

While the principle pertaining to the right to a fair trial is examined as noted above, it is possible to examine the complaint of the non-execution of interlocutory decisions, within the scope of the other fundamental rights, independently from the whole of the proceedings by taking into consideration the circumstances of the concrete case. As a matter of fact, the Constitutional Court examined the complaint of non-execution of the decision on the stay of execution raised in the application of Yaman Akdeniz and Others within the scope of the freedom of expression. In a similar vein, the individual application lodged in the case of Kristal-İş Sendikası upon the dismissal of the request for the stay of execution was examined from the standpoint of the right to establish and join trade unions.

In the present incident, the decision on the stay of execution giving rise to the application and alleged not to have been duly executed concerns the appointment of the applicant to another unit located in the same province where he would avail of the same personal benefits. The applicant did not maintain in his individual application which exclusively pertains to his appointment that there had been a breach of any other right. Nor could the Constitutional Court establish any connection between the application and the other fundamental rights. Moreover, it has been observed that failure to duly execute the decision on the stay of execution is not of a nature which would preclude the execution of the final decision to be rendered at the end of the proceedings or render it difficult to an excessive degree.

The Constitutional Court has consequently held that there was no breach of the applicant’s right of access to court and accordingly declared the present application inadmissible for being manifestly ill-founded.

 

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

The Constitutional Court of the Republic of Turkey © 2015
Number of Visitors: