NO PUNISHMENT WITHOUT LAW
OSMAN BEAM APPLICATION
(Application Number: 2020/27943)
The applicant, who worked as a contracted teacher, was arrested on the charge of being a member of FETÖ/PDY. In the lawsuit filed against the applicant on the charge of being a member of FETÖ/PDY, he was convicted. After the arrest warrant was issued, the applicant was suspended from duty and his contract was terminated and it was decided to terminate his civil service.
In the concrete case, although the process for the termination of the applicant's contract is based on the reason that the applicant did not continue to work -due to his arrest-, in the reasoned decision of the Regional Administrative Court, which carried out the judicial review of the said process, it is seen that the High Criminal Court is based on the unconfirmed -as a matter of fact, later-overturned- conviction of the applicant._cc781905- 5cde-3194-bb3b-136bad5cf58d_
The decision of the Heavy Penal Court, cited by the Regional Administrative Court as the reason for the dismissal of the case in terms of annulment action, is not a final decision, and it is seen that the criminal case against the applicant is pending. The decision of the Regional Administrative Court is perceived as a statement that imposes a criminal responsibility on the applicant as a final decision regarding the criminal proceedings. In other words, although the applicant's guilt was not determined by judgment, it was accepted that the applicant was guilty (§56-57).
For precedent decision click here.
BS APPLICATION
(Application Number: 2020/8344)
The application relates to the claim that the presumption of innocence has been violated in the action for annulment regarding the registration process. While the applicant was serving as a judge, he was dismissed from his profession with the decision of the HSYK on the grounds that he had connections with FETÖ/PDY. The applicant applied to the Gaziantep Bar Association (Bar Association) with a request to be registered as a lawyer on the bar board. The applicant's request was rejected by the Board of Directors of the Bar Association. The applicant, who followed the Administrative Judicial remedies, applied to the Constitutional Court with the complaint that the Presumption of Innocence had been violated. The reasoning of the Constitutional Court, which accepted the applicant's complaint, is as follows:
In the case subject to the individual application, it has been seen that the criminal and administrative judicial proceedings against the applicant were carried out simultaneously, but the administrative lawsuit brought against the refusal of the request to be registered with the bar association was concluded before the decision in the criminal proceedings was finalized, in other words, the guilt of the applicant was not determined at the time of the decision in the administrative case. In this respect, it should be revealed whether the innocence of the applicant, who has not yet been found guilty as a result of a finalized criminal trial by the criminal court, has been compromised due to the reasons stated by the public authorities in their decisions or the language used during the establishment and trial of the administrative action in the concrete case.' (BS, App. No: 2020/8344, 26/7/2022, §44)
For precedent decision click here.