23 January 2020 Thursday

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF TURKEY

 

Docket No                         : 2019/31                                                                            

Decision No                      : 2020/5

Date of Decision               : 23/1/2020

Date and Issue of Official Gazette: 13/5/ 2020 – 31126

 

Action for Annulment filed by: Mr. Engin ALTAY, Mr. Özgür ÖZEL, Mr. Engin ÖZKOÇ, members of the Turkish Grand National Assembly (“the Parliament”) and 134 other members of the Parliament.

Subject-matter of the Action for Annulment: Request for annulment, and stay of enforcement, of the following provisions added to the below-cited Presidential Decree, by the Presidential Decree Making Amendment to the Presidential Decree on the Organisation of the Presidency which is numbered 28 and dated 17 January 2019 (“the Amending Presidential Decree no. 28”), for being contrary to the Preamble as well as Articles 2, 7, 8, 104, 128 and 161 of the Constitution:

A. Paragraph 2 added, by Article 2 of the Amending Presidential Decree no. 28 to Article 287 of the Presidential Decree on the Organisation of the Presidency no. 1, which was promulgated in the Official Gazette dated 10 July 2018 and no. 30474 (“the Amended Presidential Decree no. 1”);

B. The first, second and third sentences of paragraph 2 added, by Article 3 of the Amending Presidential Decree no. 28, to Article 372 of the Amended Presidential Decree no. 1.

I. THE CONTESTED PROVISIONS

1. The contested paragraph 2, which was added to Article 287 of the Amended Presidential Decree no. 1 by Article 2 of the Amending Presidential Decree no. 28, reads as follows:

   “(2) (Added by Article 28 § 2 of the Presidential Decree, Official Gazetted dated 18 January 2019 and no. 30659) In product and service procurements to be performed abroad for the promotion of Turkey, an advance payment up to the total amount of the contract may be made to the contractor, as an extra-budgetary advance, upon the approval of the Minister of Culture and Tourism if it is required by the market conditions prevailing in the country where the products and services will be procured and it offers price advantage to a significant extent. It shall be further specified whether a security will be taken against this advance payment being subject to the Minister’s approval. The principles and procedures concerning advance payment shall be determined through a directive to be issued by the Ministry.”

2. The contested paragraph 2, which was added to Article 372 of the Amended Presidential Decree no. 1 by Article 3 of the Amending Presidential Decree no. 28, reads as follows:

   “(2) (Added by Article 28 § 3 of the Presidential Decree, Official Gazetted dated 18 January 2019 and no. 30659) In case of the existence of several hospitals located within the same campus, a coordinator head doctor may be appointed for ensuring the joint management of these hospitals. Offices of head doctor may be founded in order to conduct medical services and training activities of each hospital, and these offices shall operate under the supervision of the coordinator head doctor. The administrative, financial, health-care and other support services of the hospitals shall be conducted, by the directorates affiliated to the coordinator head doctor, in collaboration with the office of head doctor of the relevant hospital. If needed, directorates, save for the administrative and financial services directorate, may be established in every hospital. The principles and procedures as to the management and operation of the hospitals of which management organization has been formed in this way shall be determined by the Ministry.”

II. PRELIMINARY REVIEW

1. The Constitutional Court, at its meeting as to the preliminary review dated 10 April 2019 with the participation of Mr. Zühtü ARSLAN, Mr. Burhan ÜSTÜN, Mr. Engin YILDIRIM, Mr. Serdar ÖZGÜLDÜR, Mr. Recep KÖMÜRCÜ, Mr. Hicabi DURSUN, Mr. Celal Mümtaz AKINCI, Mr. Muammer TOPAL, Mr. M. Emin KUZ, Mr. Hasan Tahsin GÖKCAN, Mr. Kadir ÖZKAYA, Mr. Rıdvan GÜLEÇ, Mr. Recai AKYEL, Mr. Yusuf Şevki HAKYEMEZ and Mr. Yıldız SEFERİNOĞLU pursuant to the provisions of the Internal Regulations of the Constitutional Court, UNANIMOUSLY decided to proceed with the examination on the merits for having found no deficiency in the file and to conclude the request for the stay of the enforcement of the contested provisions in the course of the examination on the merits.

III. EXAMINATION ON THE MERITS

2. Having deliberated on the petition and annexes thereto, the report on the merits of the case, which was issued by the rapporteur-judge Mr. Taylan BARIN, the contested Presidential Decree provisions, the relevant constitutional provisions and their legislative intentions, the Court decided as follows:

A. Constitutional Framework and Judicial Review of Presidential Decrees

3. Certain provisions of the Constitution were amended by the Law no. 6771 on Amendments to the Constitution of the Republic of Turkey, which was dated 21 January 2017. Following these amendments, a new government system was adopted, and accordingly the duties and powers of the President were regulated anew. In Article 8 of the Constitution, it was previously laid down that the executive power and duty shall be exercised and carried out by the President and the Council of Ministers. However, by virtue of the amendment to the said Article, the Council of Ministers was relieved of this duty, and the executive power and duty have been vested solely in the President. Through certain amendments, in the same vein, to the other constitutional provisions on the duties and powers of the Council of Ministers, it is now prescribed in the Constitution that the duties and powers of the Council of Ministers shall be performed and carried out by the President.

4. The most significant aspect of the presidential government system is, inter alia, to authorise the President to make arrangements through “Presidential Decrees”. The most prominent feature of presidential decrees is the authorisation granted to the President to introduce first-hand regulations on certain issues. Differently from the other regulatory acts of the executive power, the President is entitled to make arrangements through presidential decrees within the framework of the power vested in him/her by the Constitution but without relying on any law or the approval of the legislative body.

5. In the first sentence of Article 104 § 17 of the Constitution, it is laid down that the President may issue presidential decrees on the matters regarding executive power. With this provision, the President is vested with a general power to issue presidential decrees on condition of being related to executive power. In the legislative intention of the provision, it is indicated that the President is entitled to introduce first-hand regulations for being able to issue presidential decrees on the executive matters within the administration of politics which he/she deems necessary.

6. Besides the general power to issue presidential decrees, which is vested in the President on executive matters, it is further set forth that certain matters specified in the certain provisions of the Constitution shall be regulated through presidential decrees. In this sense, it is set forth in Article 104 § 9 of the Constitution that the principles and procedures governing the appointment of high ranking executives; in Article 106 § 11 that the establishment, abolition, the duties and powers, the organizational structure of the ministries, and the establishment of their central and provincial organizations; in Article 108 § 4 that the functioning of the State Supervisory Council, the term of office of its members, and other matters relating to their status; and in Article 118 § 6 that the organization and duties of the Secretariat General of the National Security Council shall be regulated by presidential decrees. It is laid down in Article 123 § 3 of the Constitution that public corporate bodies shall be established by law or by presidential decree.

7. Article 148 of the Constitution sets forth that the presential decrees shall be subject to constitutionality review both in substance and in form and accordingly vests the Constitutional Court with the duty and power to make the judicial review of these decrees.

8. The President is authorised, by virtue of the Constitution, to issue presidential decrees; however, it is not an unlimited authority. Unlike the laws, the matters to be regulated through presidential decrees are delimited by the Constitution. The limitations, which are imposed on the competence ratione materiae, are laid down in the first four sentences of Article 104 § 17 of the Constitution.

9. In the first sentence of Article 104 § 17 of the Constitution, it is laid down that the President may issue presidential decrees on the matters regarding executive power. Accordingly, no arrangement can be made through presidential decrees on the matters falling outside the realm of the executive power.

10. The second sentence of the same paragraph provides that thefundamental rightsindividual rightsand duties enshrined in the One and Second Chapters under the Second Part of the Constitution, and the political rights and duties specified in the Fourth Chapter shall not be regulated through a presidential decree. Accordingly, no arrangement may be made, through presidential decrees, regarding the matters specified in this provision.

11. It is also indicated in the third sentence of the paragraph that no presidential decree may be issued on the matters which are prescribed in the Constitution to be regulated exclusively by law. However, there is no special constitutional provision which indicates the matters which shall be exclusively regulated by law. Nevertheless, as specified in the established case-law of the Constitutional Court, the matters which are specified by the constitution-maker to be regulated by law are to be considered in this scope (see the Court’s decisions no. E.2016/150, K.2017/179, 28 December 2017, § 57; no. E.2016/180, K.2018/4, 18 January 2018, § 17; no. E.2017/51, K.2017/163, 29 November 2017, § 13; no. E.2016/139, K.2016/188, 14 December 2016, § 9; and no. E.2013/47, K.2013/72, 6 June 2013). Accordingly, the President may not issue presidential decrees regarding the matters that are stipulated in the Constitution to be regulated by law.

12. In the fourth sentence of the said paragraph, it is set forth that no presidential decree may be issued concerning the matters which have been explicitly regulated by law. According to this provision, the President may issue presidential decrees on the matters regarding the executive power provided that these matters have not been regulated explicitly by law.

13. Presidential decrees are to be issued in accordance with the above-cited rules on competence ratione materiae. Otherwise, they cannot be said to be constitutional, even if they are not, by their contents, contrary to the Constitution. Therefore, in the course of the judicial review of presidential decrees, the compatibility with the rules on competence ratione materiae, as specified in Article 104 § 17 of the Constitution, must be primarily examined. If no contradiction is found pursuant to this provision, the presidential decrees must be then, by their contents, subject to the constitutionality review.

B. Examination as to Paragraph 2 added to Article 287 of the Amended Presidential Decree no. 1 by Article 2 of the Amending Presidential Decree no. 28

1. Ground for the Request for Annulment

14. It has been maintained that the contested provision, which authorises the administration to make advance payment, as an extra-budgetary advance, up to the total amount of the contract in the product and service procurements to be performed abroad and which also enables the regulation of the principles and procedures regarding this payment through a directive to be issued by the administration, indeed addresses a matter which is to be regulated exclusively by law pursuant to Article 161 of the Constitution for being related to the implementation of the budget and which has been already regulated explicitly in the Public Procurement Law no. 4734 and dated 4 January 2002 and the Public Finance Management and Control Law no. 5018 and dated 10 December 2003; that going beyond the laws, the contested provision has introduced a new arrangement in an area boundaries of which are set by the laws; and that therefore, the executive power has been exercised in breach of the supremacy of the Constitution and the laws. It is accordingly alleged that the contested provision is contrary to the Preamble, as well as Articles 2, 7, 8, 104 and 161 of the Constitution.

2. Constitutional Review

15. Although it has been claimed that the contested provision is contrary also to Article 161 of the Constitution in terms of the competence ratione materiae, the examination under this scope would be made under Article 104 § 17 of the Constitution as the rules on the competence ratione materiae as regards presidential decrees are laid down in this provision.

16. It is stipulated in the contested provision that in product and service procurements to be performed abroad for the promotion of Turkey, an advance payment up to the total amount of the contract may be made to the contractor, as an extra-budgetary advance, upon the approval of the Minister of Culture and Tourism (“the Minister”) -by being specified in the contract- if it is required by the market conditions prevailing in the country where the products and services will be procured and it offers price advantage to a significant extent; that it shall be further specified whether a security will be taken against this advance payment being subject to the Minister’s approval; and that the principles and procedures shall be determined through a directive to be issued by the Ministry of Culture and Tourism (“the Ministry”).

17. The fourth sentence of Article 104 § 17 of the Constitution provides for “No presidential decree shall be issued on the matters which are explicitly regulated by law”. Accordingly, it must be primarily considered whether there exists a law which has been previously enacted and may be taken as a basis for the comparison during the review, under the said constitutional provision, of these presidential decrees. If any, it must be then assessed whether the contested provision regulates a matter which has been explicitly regulated by law. In this assessment, it must be firstly ascertained whether the relevant law is enforceable in the field which is covered by the presidential decree and subsequently determined whether the statutory arrangement is clear. In this sense, it should be considered whether the relevant statutory arrangement would, in the absence of the provision embodied in the presidential decree, address the matter regulated by the decree, which may be regarded as an indication to ascertain whether the presidential decree has been issued to address the matter which has been already regulated by law.     

18. The contested provision allows for making an advance payment up to the total amount of the contract, as an extra-budgetary advance, to the contractor upon the Minister’s approval in product and service procurements to be performed abroad for the promotion of Turkey. It is also envisaged that whether a security will be required for the advance payment shall be determined under approval of the Ministry; and that the principles and procedures as to the advance payment shall be determined through a directive to be issued by the Ministry.

19. The terms and conditions of making an extra-budgetary advance payment are in general laid down in Article 35 of Law no. 5018, titled “Advance Payment”, where it is set forth “The amount of extra-budgetary advance payment shall be provided for the contractors only against security provided that it is specified in the relevant contract and it does not exceed thirty percent of the total contract price”. It is thereby envisaged that the extra-budgetary advance shall not exceed thirty percent of the total contract price and may be provided only against security. This provision sets out the terms and conditions of extrabudgetary advance payments to be provided, both in the country and abroad, by all public institutions and organisations including the Ministry to which the contested provision relates.

20. Accordingly, it is clear that in the absence of the contested provision embodied in the presidential decree, the said statutory provision would be applicable to the product and service procurements abroad, which relates to the promotion of Turkey. It has been therefore concluded that the contested provision on the matter which has been explicitly regulated by law introduces an arrangement in breach of the fourth sentence of Article 104 § 17 of the Constitution.

21. On the other hand, the second sentence of Article 35 § 2 of the Law provides for “The provisions on the extra-budgetary advance payments which are embodied in the relevant laws or the presidential decrees shall be reserved”. Given the constitutional provision that does not grant any authority to issue presidential decree on the matters explicitly regulated by law, it is impossible for the law-maker to grant such an authority. Therefore, the statutory provision -whereby the provisions in the presidential decree are reserved- does not render constitutional the contradiction found above.

22. For these reasons, the contested provision has been found in breach of the fourth sentence of Article 104 § 17 of the Constitution. It must be therefore annulled.

Justices Mr. Serdar ÖZGÜLDÜR, Mr. Burhan ÜSTÜN, Mr. Muammer TOPAL, Mr. Kadir ÖZKAYA, Mr. Rıdvan GÜLEÇ, Mr. Recai AKYEL, Mr. Yıldız SEFERİNOĞLU and Mr. Selahaddin MENTEŞ disagree.

As its annulment has been ordered for being contrary to the fourth sentence of Article 104 § 17 of the Constitution, it was not deemed necessary to examine the contested provision, in terms of the competence ratione materiae, insofar as it related to the first, second and third sentences of the same paragraph.

For the very same reason, nor was the contested provision, by its content, subject to any examination.

C. Review of the First, Second and Third Sentences of Paragraph 2 added to Article 372 of the Amended Presidential Decree no. 1 by Article 3 of the Amending Presidential Decree

1. Ground for Request for Annulment

23. It has been maintained that the provisions allowing for the appointment of a coordinator head doctor, in cases where there are several hospitals located within the same campus, for the joint management of these hospitals contain arrangements concerning a matter which is specified in Article 128 of the Constitution and which is to be regulated exclusively, and has been already regulated, by law. It has been therefore alleged that the contested provisions are in breach of Articles 104 and 128 of the Constitution.

2. Constitutional Review

a. Competence Ratione Materiae

24. Although it has been claimed that the contested provisions are contrary also to Article 128 of the Constitution in terms of the competence ratione materiae, the examination under this scope would be made under Article 104 § 17 of the Constitution as the rules on the competence ratione materiae as regards presidential decrees are laid down in this provision.

25. The Constitution embodies no provision to the effect that the matters specifically stipulated to be regulated by presidential decrees in ordinary period shall be exempted from the limitations on presidential decrees, which are laid down in Article 104 § 17 of the Constitution. The limitations laid down in Article 104 § 17 of the Constitution for presidential decrees are therefore applicable also to the matters specifically stipulated, in the Constitution, to be regulated through presidential decrees. However, these limitations are to be construed in conjunction with the other constitutional provisions regarding presidential decrees.

26. The contested provisions provide that in case of the existence of several hospitals located within the same campus, a coordinator head doctor may be appointed for ensuring the joint management of these hospitals; that offices of head doctor may be founded in order to conduct medical services and training activities of each hospital, and these offices shall operate under the supervision of the coordinator head doctor; and that the administrative, financial, health-care and other support services of the hospitals shall be conducted, by the directorates affiliated to the coordinator head doctor, in collaboration with the office of head doctor of the relevant hospital.

27. The contested provisions embody rules on the management and organization of the hospitals that operate under the Ministry of Health and regulate a matter regarding executive power within the meaning of the first sentence of Article 104 § 17 of the Constitution.

28. Besides, the contested provisions do not contain any regulation regarding the fundamental rights, personal rights and duties laid down in the First and Second Chapters of the Second Part of the Constitution as well as political rights and duties laid down in the Fourth Chapter, which cannot be, pursuant to the second sentence of Article 104 § 17 of the Constitution, regulated through presidential decrees.

29. Pursuant to the third sentence of Article 104 § 17 of the Constitution, the provisions embodied in the presidential decrees must not address the matters which are stipulated, in the Constitution, to be regulated exclusively by law. If the constitution-maker specifically requires a matter to be regulated by law, it means that this matter needs to be regulated exclusively by law. Therefore, if a matter is specified, in the Constitution, to be regulated by law, no presidential decree shall be issued on this matter. However, presidential decrees may be issued on all the matters enunciated in the Constitution to be regulated by the presidential decrees.

30. As set forth in Article 123 § 1 of the Constitution, “The administration is a whole with its formation and functions and shall be regulated by law”. However, Article 106 § 11 of the Constitution, which provides for “The establishment, abolition, the duties and powers, the organizational structure of the ministries, and the establishment of their central and provincial organizations shall be regulated by the presidential decree”, explicitly permits to make arrangements, through presidential decrees, as to the establishment, abolition, the duties and powers, the organizational structure of the ministries, and the establishment of their central and provincial organizations.

31. In this sense, the matters specified in the said paragraph of Article 123 of the Constitution may be regulated through presidential decree on condition of being limited to the matters on the establishment, abolition, the duties and powers, the organizational structure of the ministries, and the establishment of their central and provincial organizations, which are specifically stipulated, in the Constitution, to be regulated by presidential decrees.

32. It has been observed that the contested provisions are related to the organizational structure of the ministries, one of the matters specifically envisaged, in Article 106 § 11 of the Constitution, to be regulated by presidential decree. As a matter of fact, they introduce arrangements as to the organization of the service units of the several hospitals operating under the provincial organization of the Ministry of Health and located within the same campus. In this sense, the contested provisions are not, in any aspect, contrary to the third sentence of Article 104 § 17 of the Constitution in conjunction with Article 123 thereof.

33. It has been further maintained that the contested provisions are contrary to the third sentence of Article 104 § 17 of the Constitution also in conjunction with Article 128 thereof. The first sentence of Article 128 § 2 of the Constitution sets forth “The qualifications, appointments, duties and powers, rights and responsibilities, salaries and allowances of public servants and other public officials, and other matters related to their status shall be regulated by law”. The contested provisions, in essence, regulate the establishment of an office of coordinator head doctor, offices of head doctors and directorates affiliated to the office of coordinator head doctor as well as their duties and powers. They do not introduce any arrangement as to the “qualifications”, “appointments”, “duties and powers”, “rights and responsibilities”, “salaries and allowances”, and “other matters related to status” of public servants and other public officials , which are envisaged, in the first sentence of Article 128 § 2 of the Constitution, to be regulated by law. Nor can it be said that the contested provisions indeed regulate a matter regarding appointment given its first sentence which sets out “A coordinator head doctor may be appointed in cases where there are several hospitals located within the same campus, for the joint management of these hospitals”. As a matter of fact, the provisions in question allow for the establishment of a provincial organization under the Ministry of Health, which naturally enables the appointment of a coordinator head doctor. In this sense, the contested provisions do not, in any aspect, regulate the principles and procedures of the appointment of the coordinator head doctor. Therefore, they do not contain any arrangement as to the appointment of civil servants and public officials within the meaning of Article 128 of the Constitution.

34. In the fourth sentence of Article 104 § 17 of the Constitution, it is stipulated that no presidential decree may be issued regarding the matters which have been explicitly regulated by law. As just mentioned above, during the review of the presidential decrees pursuant to the said constitutional provision, it must be ascertained whether there is an already-enacted law which may be taken as a basis for the comparison. At the subsequent stage, if there is such a law, it must be clarified whether the provision embodied in the presidential decree addresses a matter which has been regulated explicitly by law. In this assessment, it must be firstly ascertained whether the relevant law is enforceable in the field which is covered by the presidential decree and subsequently determined whether the statutory arrangement is clear. It has been observed that there is no statutory provision concerning the office of coordinator head doctor, which may be taken as a basis for the comparison. Therefore, the contested provisions are not, in any aspect, in breach of the fourth sentence of the relevant provision.

35. For these reasons, the contested provisions do not fall foul of Article 104 § 17 of the Constitution. Accordingly, the request for their annulment must be dismissed.

Justices Mr. Kadir ÖZKAYA, Mr. Rıdvan GÜLEÇ, Mr. Recai AKYEL, Mr. Yıldız SEFERİNOĞLU and Mr. Selahaddin MENTEŞ hold concurring opinion.

b. Substantive Review

36. Pursuant to Article 43 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, which is dated 30 March 2011 (“Code no. 6216”), the provisions were subject to an examination under Article 2 of the Constitution as being relevant.

37. The state of law, as specified in Article 2 of the Constitution, is a state that isbased on human rights, protecting and strengthening these rights and freedoms, abiding by the laws in its acts and actions, establishing a just and fair legal order in all fields of life and maintaining this in a progressive manner, ensuring the legal security, avoiding the unconstitutional behaviors and attitudes, ensuring the sovereignty of law on all state organs, deeming itself bound by the Constitution and the laws and being subject to judicial review.  

38. Pursuant to the principle of the state governed by rule of law, presidential decrees shall be issued in the public interest. As indicated in the Constitutional Court’s decisions, the public interest generally points to the social interest which is distinct from, and superior to, the individual benefits. A provision embodied in presidential decree may be considered constitutional in terms of the aim pursued only when it is issued solely for the public interest and not for any other reason. If it is explicit that the provision is intended for any purpose other than public interest, it is then considered in breach of the Constitution in terms of the aim pursued.

39. On the other hand, the President is entitled to issue presidential decrees on the matters envisaged in the Constitution to be regulated through presidential decrees, on condition of not being unconstitutional, and also has the authority to decide whether any public interest is involved in these regulations. In the constitutionality review, the question whether the President’s understanding as to public interest is justified cannot be discussed, but rather the question whether the provision under review has been introduced not for the public interest but in consideration of the interests of certain individuals or groups. In other words, in dealing with the alleged unconstitutionality of a provision, the Constitutional Court’s examination in terms of public interest will be confined only to the review whether the contested provision has been introduced for public interest or not (for similar considerations in terms of law, see the Court’s decisions no. E.2016/140, K.2017/92, 12 April 2017, §§ 6,7; and no. E.2017/33, K.2019/20, 10April 2019, §§ 10,11).

40. In Article 39 § 4 of the Code no. 6216, it is set forth “In actions for annulment, in cases where the Court decides that the merits be re-examined, the lawsuit petition and its annexes shall be sent to the Office of the Speaker of the Grand National Assembly of Turkey, the Presidency and to the groups of the political parties that are authorized to lodge actions for annulment. Such offices can report their written opinions regarding the action for annulment to the Court for evaluation”. In cases where legislative intentions of the presidential decrees are not indicated, the written opinions submitted by the Presidency are of importance for the determination of the purpose underlying the introduction of these provisions, as indicated in the relevant provision of Code no. 6216.     

41. In the written opinion of the Presidency /referring to the legislative intention of the contested provision, it is noted in brief that in the management of the hospitals that have been built and started operation under the public/private partnership financing model, it may be possible to use the resources in an effective and efficient way by ensuring coordination among the hospitals in operation.

42. Given the objective meaning of, and the aim pursued by, the contested provisions, it has been observed that they are designed to ensure the proper fulfilment of the duties and responsibilities concerning the management of the hospitals and thereby the effective performance of health-care services. Therefore, the contested provisions involve no aspect that would require the Court to conclude that they are intended for any purpose other than public interest.

43. For these reasons, the contested provisions are not contrary to Article 2 of the Constitution. Accordingly, the request for their annulment must be dismissed.

V. JUDGMENT

It was decided on 23 January 2020,

A. By a MAJORITY pursuant to Article 65 § 1 of the Code no. 6216 and by dissenting opinions of Justices Mr. Serdar ÖZGÜLDÜR, Burhan ÜSTÜN, Muammer TOPAL, Kadir ÖZKAYA, Rıdvan GÜLEÇ, Recai AKYEL, Yıldız SEFERİNOĞLU and Selahaddin MENTEŞ that paragraph 2, added by Article 2 of the Amending Presidential Decree no. 28, dated 17 January 2019, to Article 287 of the Amended Presidential Decree no. 1, which was promulgated in the Official Gazette dated 10 July 2018 and no. 30474, was unconstitutional insofar as it related to the competence ratione materiae and be accordingly ANNULLED;

B. By UNANIMOUSLY that the first, second and third sentences of paragraph 2, added by Article 3 of the Amending Presidential Decree no. 28 to Article 372 of the Amended Presidential Decree no. 1 were not unconstitutional insofar as they related to the competence ratione materiae and their contents; and that the requests for their annulment be DISMISSED.