Constitutionality Review

Contested Provision

It is stipulated in the contested provision that the council inspector and rapporteur-judge cadres shall be established for the central organisation of the Council of Judges and Prosecutors (HSK/the Council) and that these cadres shall be incorporated into the section titled HSK of Table no. (II) annexed to the Presidential Decree no. (2).

Ground for the Request for Annulment

It was maintained in brief that the contested provision was incompatible with the principles of non-delegability of legislative power, the binding power and supremacy of the Constitution and the separation of powers on the grounds that the provisions entailing the establishment of cadres for public officials could not be regulated through presidential decrees as these issues should have been regulated by law, that the presidential decree was issued with respect to a matter which was to be regulated exclusively by law, that therefore the power to issue presidential decree was exercised transgressing the constitutional framework, and that thus the executive branch was vested with an unlimited regulatory power of a general nature involving no definite principles and framework.

The Court’s Assessment

In order to determine whether the provisions governing the establishment of cadres for council inspector and rapporteur-judge can be regulated through presidential decrees, it must be ascertained at the outset, whether the establishment of the cadres in question concerns the executive power.

Article 159 of Third Chapter titled “Judicial Power” of Third Part of the Constitution prescribes that the Council of Judges and Prosecutors shall be established and shall exercise its functions in accordance with the principles of the independence of the courts and the security of the tenure of judges. No hierarchical relationship is established by law between the Council of Judges and Prosecutors and the central administration, despite the former’s being an administrative body. In addition, the HSK is referred to not in the section titled "Administration" under "Executive Power" Chapter of the Constitution, but in the Chapter titled “Judicial Power”.

Furthermore, Article 159 of the Constitution not only indicates that the Council of Judges and Prosecutors shall conduct its functions in accordance with the principles of the independence of courts and the tenure of judges, but also states that the HSK shall be established in accordance with the very same principles. As the establishment also embodies the organisation of that institution, the regulations concerning the cadres of the Council allocated for judges and prosecutors shall be introduced in accordance with the principles of the independence of the courts and the tenure of judges. Accordingly, having regard to the provisions and principles as to the establishment, duties, powers and functioning of the Council of Judges and Prosecutors as a whole, the Constitutional Court has acknowledged that the judges and prosecutors who are performing their duties at the HSK are considered as public officials exercising judicial power.

The establishment and revocation of the cadres of public officials exercising judicial power may have a direct influence on the exercise of judicial power. As the subject matter does not solely concern the executive sphere, it cannot be regulated by the presidential decrees. In this respect, it has been observed that the provision establishing the cadres in the Council of Judges and Prosecutors for council inspector and rapporteur-judge, who are considered as public officials exercising the judicial power, is in breach of Article 104 § 17 (1) of the Constitution.

Consequently, the contested provision has been found unconstitutional and therefore annulled.