Article 154 of the Constitution defines the Court of Cassation as the final review authority for decisions and judgments rendered by the courts of justice. The Court of Cassation is not merely an appellate authority; it is a constitutional body. Its establishment and functioning are regulated by law. Therefore, what is expected of the Court of Cassation is not only that it renders decisions, but also that it acts in accordance with the rule of law, in an auditable and reasoned manner.
Is it not the constitutional bodies themselves that must abide by the spirit and norms of the Constitution above all and above all else?
Following the decision of the 2nd Civil Chamber of the Court of Cassation No. 2018/3363, my complaint petition dated 28.05.2019, containing concrete allegations regarding the file content and UYAP records, was forwarded to the First Presidency of the Court of Cassation through the Ankara Chief Public Prosecutor's Office HSK Correspondence Office.
Upon this application, the decision of the First Presidency Board of the Court of Cassation dated 14.11.2019 and numbered 360 was issued; “Since the subject of the complaint is related to an issue arising from the exercise of judicial authority and the allegations are abstract, the file shall be removed from the process...” ruled.
However, Article 46 of the Supreme Court of Cassation Law No. 2797 is clear. In the case of allegations of crimes related to duty or personal offenses against the members of the Court of Cassation, the First Presidency Board shall examine the notices and complaints received and if it deems that an investigation is warranted, it shall assign the head of a criminal department. The law orders a decision to be made by “examining”.
In this context, the following question is inevitable: Was an investigation actually carried out after my complaint?
Later, in the annulment case I filed with the Ankara 12th Administrative Court upon the rejection of my request for information, an examination of the procedure file sent to the court by the Presidency of the Court of Cassation revealed that a one-page “information note” was issued as the basis for the decision.
This information note did not go into the concrete content of my complaint petition, did not discuss the allegations I raised; it only made a superficial record that the file was related to the appeal process and by whom the judgments subject to the complaint were signed.
How can the conclusion of an application containing concrete allegations with a one-page note without evaluating its content be reconciled with the obligation to “examine” stipulated by law?
The same approach was maintained with regard to the new petitions and additional evidence I submitted later; it was ruled that there was no need for a new decision on the grounds that “a decision had already been made”.
There is a striking comparison here. Upon my complaint against administrative personnel, the Supreme Court of Appeals Board of Directors assigned Examining Judge Emel Yurtsever Tosun, correspondence was made, warrants were issued and the file was processed.
On the other hand, there is no record in the file that the head of the criminal department was assigned by the First Presidency of the Court of Cassation to investigate the members of the 2nd Civil Chamber of the Court of Cassation. There is no similar investigation process.
A more striking picture emerged in the document sent to the compensation case file at the 4th Civil Chamber of the Court of Cassation.
A total of 32 separate complaint items belonging to real and legal persons were written in sequential order; for each of them, a decision not to process was made using the same pattern of justification.
Complaint number 1 on the list “since the subject matter of the complaint is related to a matter arising from the exercise of judicial power and the allegations are abstract...” The same phrase is repeated in complaint number 9, and the same sentence is used for the complaint at the end of the list.
The rationale does not change, the content is not discussed and there are no review details.
The decision bears the signatures of the First President of the Court of Cassation and members who are considered by the public to be the most experienced high judges who know the law best.
At this point, the issue is no longer individual.
Is the conclusion of 32 different applications with a single stereotypical reasoning a legal technique or the manifestation of a closed-loop reflex in the high judiciary?
The principle of certainty exists for legal security. However, if certainty is applied without concrete examination and without concretizing the justification, it does not produce legal security; it produces unaccountability.
My requests for information were rejected on the grounds of “internal procedures”, and the annulment lawsuit and appeal I filed were also rejected. Thus, I was not provided with any official document that would dispel the suspicion that an investigation was carried out; however, it was understood from the content of the transaction file sent to the court that no investigation was carried out.
The document sent to the 4th Civil Chamber of the Court of Cassation revealed that the complaints of real and legal persons were listed and not processed with a single formulaic statement. This is a problem that should be evaluated separately in terms of the right to effective remedy and the rule of law.
In the meantime, the 4th Civil Chamber of the Court of Cassation, in its capacity as a court of first instance, rejected the compensation lawsuit I filed based on the judge's legal liability in accordance with the provisions of Article 46 of the CCP, and did not find any fault in the decision of the First Presidency of the Court of Cassation not to process and the actions taken by it.
I had also requested information in writing from the Presidency of the Court of Cassation about the acceptance and rejection rates in cases regarding the legal liability of judges, which were heard as courts of first instance. That request was rejected, and the annulment lawsuit I filed with the Ankara 15th Administrative Court upon its rejection was also rejected on the grounds that the work to be carried out by the Presidency of the Court of Cassation to provide information on this issue could take years. According to rumors and information I have obtained through my own efforts, almost all such compensation lawsuits are rejected.
Article 2 of the Constitution defines the Republic of Turkey as a state of law. The rule of law means reasoned decisions, transparency and accountability.
Shouldn't the Court of Cassation, established by Article 154 of the Constitution, apply these principles before anyone else?
When members of the judiciary become unaccountable, the rule of law remains on paper.
If the higher judiciary cannot effectively and transparently monitor itself, to which door will citizens turn?