Assoc. Prof. Dr. Recai AKYEL
Member of the Constitutional Court
Former president of TCA
Introduction
Supreme Audit Institutions (SAIs) with jurisdictional powers shall operate in accordance with the Constitution, international conventions and fair trial principles. The Constitution and international law safeguard the rights of individuals. The responsible persons have the right to appeal against the compensation decisions made by the SAIs having jurisdictional powers before the Constitutional Court and international judicial bodies. As a result, when performing their duties, the SAIs should take into account the Constitution, international conventions and fair trial principles. This article examines this issue by analysing the case of the Turkish Court of Accounts (TCA) as an example.
TCA, which carries out account trials, is required to operate in line with the Constitution of the Republic of Türkiye, as well as international treaties; conduct account trials within the framework of fair trial principles; and ultimately pass fair judgments.
Supremacy and Binding Force Of The Constitution
In our country, the Constitution is of binding nature and has supremacy. As per Article 11 of the Constitution of the Republic of Türkiye, “The provisions of the Constitution are fundamental legal rules binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals. Laws shall not be contrary to the Constitution.” According to the said Article, the legislative, executive and judicial organs, as well as the administrative authorities and other institutions and individuals are obliged to act in accordance with the Constitution. In addition, laws and Presidential decrees cannot be contrary to the Constitution.
Pursuant to Article 2 of the Constitution, the Republic of Türkiye is a constitutional state. As it is generally recognized, the primary principle of a constitutional state is that all governmental activities must adhere to the rules of law. A constitutional state is one that respects human rights and establishes a fair legal order protecting these rights, feels obligated to maintain this order, and abides by the Constitution and laws in all of its activities. In a constitutional state, the law should have total supremacy over all state organs, and state organs should always be bound by the Constitution and higher legal principles.
Article 2 of the Constitution requires all public institutions and organisations to conduct their actions, activities and operations in accordance with the law, particularly the Constitution. As a requirement of the rule of law principle, no authority or organ may use an authority that is not based on the Constitution. Public institutions have to use the authorities based on the Constitution in line with the Constitution.
Constitutional Court
The Constitutional Court checks the extent to which public institutions comply with the premise of binding force and supremacy of the Constitution. In our country, the Constitutional Court is the assurance and guarantee of the existence of the Constitution and the implementation of its provisions.
The authorities of the Constitutional Court, which is entrusted with the duty of upholding the supremacy and binding force of the Constitution in our country, are established by the Constitution. As per Article 148 of the Constitution, “The Constitutional Court shall examine the constitutionality, in respect of both form and substance, of laws, presidential decrees and the Rules of Procedure of the Grand National Assembly of Türkiye, and decide on individual applications. Constitutional amendments shall be examined and verified only with regard to their form.” The Article in question clearly demonstrates the significance of the mission assigned to the Constitutional Court.
In our country, the decisions of the Constitutional Court are final and binding. As stipulated in Article 153, “The decisions of the Constitutional Court are final. Decisions of the Constitutional Court shall be published immediately in the Official Gazette, and shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies.” As understood from this Article of the Constitution, the legislative, executive and judicial organs, administrative authorities, and real and legal persons must abide by the decisions of the Constitutional Court.
The Constitutional Court conducts two types of reviews to determine to what extent the legislative, executive and judicial organs, administrative authorities, and real and legal persons respect and implement the premise of supremacy and binding force of the Constitution.
A. Review of Norms
The most effective way to ensure the supremacy of the Constitution is a review of the constitutionality of laws. The constitutionality review of laws is made in two ways: abstract review of norms and concrete review of norms. In the review of norms, the Constitutional Court adjudicates applications for annulment through annulment actions. Through the review of norms, the Constitutional Court examines the constitutionality, in respect of both form and substance, of laws, presidential decrees and the Rules of Procedure of the Grand National Assembly of Türkiye. The constitutional amendments, on the other hand, are examined only with regard to their form.
Article 150 of the Constitution regulates an annulment action. As per the relevant Article, The President of the Republic, the two political party groups having the largest number of members in the Grand National Assembly of Türkiye, and at least one-fifth of the total number of members of the Grand National Assembly of Türkiye shall have the right to apply for annulment action directly to the Constitutional Court, based on the assertion of the unconstitutionality, in form and in substance, of laws, of presidential decrees, of Rules of Procedure of the Grand National Assembly of Türkiye or of certain articles or provisions thereof.
Article 152 of the Constitution regulates the applications for annulment under the title of claim of unconstitutionality before other courts. Accordingly, if a court hearing a case finds that the law or the Presidential decree to be applied is unconstitutional, or if convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties, it shall postpone the consideration of the case until the Constitutional Court decides on the issue.
B. Individual Complaint
The Constitutional Court also decides on individual complaints. Through individual application, the Constitutional Court checks the constitutionality of actions and operations of public institutions and organisations. The mechanism of individual application is outlined in Article 148 of the Constitution among the functions and powers of the Constitutional Court. Accordingly, through individual application, everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights, which are guaranteed by the Constitution, has been violated by public authorities. In order to make an application, ordinary legal remedies must be exhausted. In the individual application, judicial review cannot not be made on matters required to be taken into account during the process of legal remedies.
C. International Treaties
As per Article 90 of the Constitution, “international agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.” As it can be understood from this article of the Constitution, institutions should act in accordance with the relevant international treaties, if any, in their actions and operations.
The Constitutional Court's duty to hear individual applications has a dimension related to international treaties, as well. Because, in individual application cases, the Court takes the European Convention on Human Rights into account along with the Constitution. There are many international treaties to which the Republic of Türkiye is a party. In their actions and operations, public institutions are required to take into account the provisions of international treaties to which the Republic of Türkiye is a party. While assessing a case, international courts such as the European Court of Human Rights attach importance to determining whether countries comply with the provisions of the international treaties that they are bound by.
As a result, the functioning of the Constitutional Court can be summarized as such: it decides on normative rules related to public institutions and organizations through norm reviews on the one hand, and determines whether or not the actions and operations performed by public institutions and organizations are consistent with the premise of supremacy and binding nature of the Constitution through individual applications on the other hand.
D. Constitutional Court Reviews and Turkish Court of Accounts
In the context described above, the Constitutional Court decides on normative rules (laws, Presidential decrees, etc.) pertaining to the TCA through its norm review, which includes actions for annulment and contention of unconstitutionality, and also determines whether the actions and operations of the TCA are consistent with the premise of supremacy and binding nature of the Constitution through individual application.
With its distinctiveness, originality, and specialization, TCA's jurisdiction should review and enhance itself in accordance with the principles of the Right to a Fair Trial.
Through the individual application procedure, the Constitutional Court may decide on a violation in the TCA's judgments. In this respect, the TCA must be sensitive and prepared for such decisions.
At this point, the TCA should organize programs to inform its staff about the rights subject to individual application, especially the Right to a Fair Trial. Rights that are subject to individual application apply to all TCA members, including auditors, rapporteurs, prosecutors, members, and chairmen of chambers. In light of the information provided thus far, the TCA should consider the individual application mechanism seriously, prepare for any risks, and perform the required tasks.
To further explain the issue, I can provide several examples referring to some of the rights that are subject to individual application in the TCA audit, the drafting of judicial reports, the holding of trials before the chambers and the Board of Appeal, and the decisions taken by chambers and Board of Appeal.
In the indemnification decisions of the TCA, principles such as the application of the criterion of proportionality, the right of property, the right to a reasoned decision, and the absence of case law differences may be present. During the trial processes before the chambers and the Board of Appeals, the principles of equality of arms and adversarial proceedings may be important. In terms of use of language and expressions in the audit process as well as the drafting of the judicial report, the principle of innocence may draw attention.