THE DECISION OF THE CONSTITUTIONAL COURT

Base Date : 2018/6

Decision Number : 2021/60

Date of Decision : 22/9/2021

Official Gazette Date-Number : Notified.

APPLICANT FOR APPEAL: Erzincan Magistrate’s Office

THE SUBJECT OF THE APPEAL IS: Article 151 of the Turkish Criminal Code No. 5237 of 26/9/2004. the phrase “…the owner …” contained in paragraph (2) of Article 2 of the Constitution., 10. and 90. it is a request to decide on its cancellation by claiming that it is contrary to the articles.

INCIDENT: During the examination of the request for a judicial control decision on the suspect who was interrogated for allegedly torturing and killing an animal, the Court, finding that the rule under appeal is Unconstitutional, applied for its cancellation.

A PROVISION OF THE LAW THAT IS REQUESTED TO BE CANCELED
151, which also contains the rule that is the subject of appeal of the Law. its substance is as follows:

“Don’t damage the property

Article 151- (1) A person who partially or completely destroys, destroys, destroys, distorts, renders unusable or contaminates someone else’s movable or immovable property shall be punished with imprisonment from four months to three years or a judicial fine upon the complaint of the victim.

(2) The provision of the above paragraph shall be applied to the person who, without a justifiable reason, kills the owned animal, renders it useless or causes its value to decrease.”

INITIAL REVIEW
According to the provisions of the Constitutional Court, Zuhtu ARSLAN, Burhan USTUN, Engin YILDIRIM, Serdar OZGULDUR, Serruh KALELI, Osman Alifeyyaz PAKSUT, Recep KÖMURCU, Hicabi DURSUN, Celal Mumtaz AKINCI, Muammer TOPAL, M. Emin KUZ, Hasan Tahsin GOKCAN, Kadir OZKAYA, Ridvan GULEC, Recai AKYEL and Yusuf Sevki HAKYEMEZ attended the first review meeting held on 18/1/2018 to examine the merits of the work as there were no deficiencies in the file, M. The decision was made by Emin KUZ and Hasan Tahsin GOKCAN with their oppositions and votes.
III. EXAMINATION OF THE BASIS

The application decision and its annexes, the report on the merits of the work prepared by the rapporteur Fatma KARAMAN ODABAŞT October, the provision of the law subject to appeal, the Constitutional rules based on them and their grounds, as well as other legislative documents were discussed and considered as necessary after reading and reviewing:
Article 152 of the Constitution. article 40 of the Law on the Establishment and Judicial Procedures of the Constitutional Court dated 30/3/2011 and numbered 6216. according to their articles, the courts are authorized to apply to the Constitutional Court for the cancellation of these provisions if they consider the provisions of the law or the Presidential decree that they will apply in the cases they are considering to be contrary to the Constitution or if they believe that the alleged violation put forward by one of the parties is serious. However, in order for a court to apply to the Constitutional Court in accordance with the aforementioned articles, it is necessary to have a case that has been filed by the method in hand and falls under the duty of the court, and the rules that are requested to be canceled must also be applied in that case. The rule to be applied is the rules that will have a positive or negative impact on solving the problems that arise at different stages of the case under consideration or concluding the case.
In this context, there is no difference between the fact that the rule to be applied is already in force or has been decommissioned, and it is sufficient that the court applying for an appeal has the opportunity to apply in the case being considered. As a matter of fact, the Constitutional Court has decided that the merits of the relevant provisions that continue to be the rule to be applied in the court that also appealed in its previous decisions should be examined (AYM, E.2020/14, K.2020/58, 15/10/2020; E.2018/14, K.2018/112, 20/12/2018; e.2018/107, K.2018/114, 20/12/2018; e.2014/179, K.2015/54, 17/6/2015).
In the pending case at the Court applying for the appeal path, a request was made to the Court requesting a judicial review decision by questioning the suspect; after evaluating this request, the court applied for the appeal path with a request to cancel the rule subject to appeal. The existence of a duly filed case in front of the relevant court at the time of filing an appeal at the first review meeting regarding the application should be considered sufficient, the court applying for an appeal should conclude the case by applying the rules that it considers contrary to the Constitution in the same decision, and the application to the Constitutional Court is acceptable in exceptional and mandatory cases, if otherwise is accepted, Considering that a rule that is considered to be contrary to the Constitution will be prevented from being brought before the Constitutional Court by appeal, it was decided to examine the merits of the work (see similar direction). AY, E.2014/164, K.2015/12, 14/1/2015).
The exceptional and mandatory situations in question can occur significantly at the stages when protection measures that should be decided as soon as possible due to their nature, such as arrest or judicial control, are decided. The Constitutional Court of the unconstitutionality of the rule of hesitation about what to do in this context its control of the final decision on the appeal and the decision regarding the purpose of the provision unconstitutional legislation from constitutional rules in order to ensure the realization of all the legal ayiklamakve so that a situation is (CC, E.1966/31, K.1967/45, 18/12/1967).
Article 151 of the Law No. 5237. paragraph (1) paragraph in someone else’s movable or immovable property, partially or completely destroyed, devastated, destroyed, distorting, or to make it unavailable polluting the person on the complaint of the victim, criminal fines would be punished with imprisonment or edited four months and three years; (2) a numbered paragraph, without justifiable reason, owners killed the animal, making it useless, or cause to decrease the value about the one who (1) the provisions of paragraph it is foreseen that will be applied. The phrase “…owner …” contained in paragraph (2) of the said article constitutes the rule subject to objection.
151 of the Code. paragraph (2) of the article, including the rule subject to appeal, is part of Article 17 of the Law No. 7332 of 9/7/2021. it has been repealed by article.
As adopted in the previous decisions of the Constitutional Court and described above (see.§ 4) as a rule, the fact that the rule has been repealed in appeal applications does not prevent the examination of the merits of the amended provision. However, due to the exceptional nature of the concrete application, the rule that has not been able to be applied by the court of appeal, but which has been decided to conduct a substantive examination, has been repealed by the provision of the above-mentioned law. Therefore, the rule subject to the appeal application could not be applied in any dispute, and in this context, the legal benefit of continuing to study the rule was also eliminated.
For the reason described, it is necessary to decide that there is no room to make a decision on the appeal application that does not remain the subject matter.
PROVISION
article 151 of the Turkish Criminal Code No. 5237 of 26/9/2004. it was UNANIMOUSLY decided on 22/9/2021 that there was NO ROOM to MAKE a DECISION on the appeal application related to the phrase “… owned …” contained in paragraph 2 of the article abolition (2).