BASIN DUYURUSU

20/02/2019

Plenary Assembly 6/19

Press Release Concerning the Decision Annulling the Provision Stipulating that Individuals Who Do not Obey the Order on the Execution of the Interim Injunction or Act Contrary to the Interim Injunction Shall be Imposed Disciplinary Imprisonment

The Constitutional Court, at its session dated 11 July 2018, annulled the first sentence of Article 398 § 1 of the Code of Civil Procedure no. 6100 dated 12 January 2011 and held that the annulment decision would enter into force nine months after being published in the Official Gazette (file no. E.2018/1).

Contested Provision

The contested provision provided that the individuals who did not obey the order on the execution of the interim injunction or act contrary to the interim injunction would be imposed disciplinary imprisonment from one month to six months.

Grounds for the Request for Annulment

It was argued that although the trial court was a civil court, the decision rendered within the scope of the contested provision had conclusions falling into the scope of criminal law; that in accordance with the legality of crime, the acts to be punished, the legal elements of the crime and the aggravated circumstances were not specified clearly; and that there was no regulation as regards the course of the proceedings and the legal remedies that can be used after the decision.

The Court’s Assessment

According to the principle of certainty, which is one of the basic elements of the rule of law, legal regulations must be clear, explicit, understandable, applicable and objective in a way that will cause no hesitation or doubt for both individuals and the administration. They must also include protective measures against the arbitrary practices of public authorities.

The principle of legal certainty, which aims to ensure the legal security of individuals, requires that the legal norms be foreseeable, that the individuals have confidence in the State in all their acts and actions and that the State refrain from methods impairing such sense of confidence while making legal regulations.

In terms of its authority to give punishment, the legislator has discretion in determining the acts that constitute offence, the type and gravity of the punishment to be imposed, whether the minimum limit will be set for punishments and the aggravating and extenuating circumstances. Examination to be made as to the appropriateness of the rules laid down by the legislator in this respect falls outside the scope of the constitutionality review.

The contested provision regulated the punishment to be imposed in case of failure to abide by interim injunction that was among the temporary legal protections. In this regard, the acts to be punished and the type, as well as the minimum and maximum limits of the punishment were clearly specified. Therefore, length and type of the punishment to be imposed in case of committal of the acts specified in the law could be foreseen and known. Accordingly, there was no uncertainty as regards the acts to be punished, as well as the type and amount of punishment.

With the interim injunction, it was aimed that the decision to be rendered at the end of the proceedings would always be enforceable, and thereby an effective legal protection would be ensured within the scope of the right to legal remedies. In this regard, imposition of punishment for failure to abide by an interim injunction cannot be regarded as inappropriate and unnecessary.

 However, Law no. 6100 contains no explicit provision on the trial procedures and principles concerning the disciplinary imprisonment to be imposed as a result of failure to abide by the interim injunction, as well as on the legal remedies to be used against the disciplinary imprisonment.

It has been understood; that there are various case-law concerning the legal remedy to be used against the disciplinary imprisonment imposed due to failure to abide by the interim injunction; that decisions can be appealed, or challenged in accordance with Law no. 6100 or the Code of Criminal Procedure no. 5271; and that there is no stable and assuring practice indicating the legal remedy to be used against the disciplinary imprisonment.

In this scope, the contested provision is neither precise nor foreseeable in terms of the trial procedures and principles concerning the disciplinary imprisonment to be imposed as a result of failure to abide by the interim injunction, as well as the legal remedies to be used.

Although the disciplinary imprisonment does not have the characteristics of prison sentence and falls outside the concept of crime that is the subject matter of the criminal proceedings, there is no doubt that the disciplinary imprisonment, which is regulated by the contested provision, will be given by a court and restrict the individual’s freedom. Given these aspects of the disciplinary imprisonment, the uncertainty as regards the trial procedures and principles concerning the disciplinary imprisonment to be imposed as a result of failure to abide by the interim injunction, as well as the legal remedies to be used against the interim injunction will damage the individuals’ legal security, as well as their right to legal remedies.

For the reasons explained above, the contested provision was annulled for being in breach of Articles 2 and 36 of the Constitution, and it was decided that the annulment decision would enter into force nine months after being published in the Official Gazette.

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