Additional Information (2) regarding Decision of the Turkish Constitutional Court on dismissal of two of its members

CONSTITUTIONAL COURT DECISION TO DISMISS JUSTICES

Translation of the important parts of the justification

 

  1. There is no need to prove the ties between members and any terrorist organization, terror action, or the coup attempt to dismiss, it is enough to prove the tie between members and groups, structures, foundations, that were accepted acting against the national security by the National Security Council.
  1. On the other hand, according to the Article 3 (of the decree with the force of law -Kanun Hükmünde Kararname- KHK/667-) to dismiss (justices), proving that they are members or connected to this kind of group is not required, but provingmembers that they have contact with the groups, structures, foundations is enough.
  2. Finally, the article (of the decree with the force of law -Kanun Hükmünde Kararname- KHK/667-) does not require to prove the tie between members and groups, structures, foundations, which operate against national security of the state, determined by the National Security Council or terrorist organizations. For establishment of such a tie “evaluation” of the general assembly of the constitutional court is sufficient. The evaluation here means a belief/conviction reached by a simple majority of the general assembly. Undoubtedly this belief consists of only an evaluation over whether it is appropriate to remain in profession or not regardless of presence or absence of criminal responsibility.
  1. Article 3 of the the decree with the force of law (Kanun Hükmünde Kararname, KHK/667), is not required to ground/ base a particular type of evidence in order to reach “the belief/conviction”. Which matters will form the basis of the belief/conviction are left to the discretion of simple majority of general assembly. The important thing is here while reaching a conviction to avoid from arbitrariness.

 

  1. The written defenses of members, Alparslan Arslan and Erdal Tercan, were taken in order to take into consideration in the evaluation of general assembly of the constitutional court. Said members stated that they have no link with FETO/PYD; after submission of concrete information and documents related to alleged crimes against them they demand an opportunity for a new defense and some witnesses whose names are given to be listened.
  1. Constitutional Court members will make an evaluation under the Article 3 of the decree with the force of law (Kanun Hükmünde Kararname, KHK/667), and this will be whether they are the members are of terrorist organizations or a structure, entity or groups that carry out activities that accepted by the National Security Council that are against national security or assessed to be in connected or in contact with them. As mentioned above, for this assessment, belief of majority of members’ is sufficient to reach a final decision.
  1. The features of the fact mentioned above and the information about Justice Alparslan Altan and Justice Erdal Tercan’s family affiliations within their social circle as well as the common perception of their colleagues over the years were assessed and under the the Article 3 of the decree with the force of law (“Kanun Hükmünde Kararname”, KHK/667), it is evaluated that they cannot stay at the positions with being linked to the organization.
  1. After the evaluation of these members (Justice Alparslan Altan and Justice Erdal Tercan), it is clear that the trust and respect to the judiciary will be harmed, if they keep performing their duties at the Constitutional Court which is responsible for protecting the democratic system and fundamental rights and freedoms.

 

 

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