1982 Anayasası'nda temel hak ve özgürlüklerin durdurulması
Suspension of fundamental rights and freedoms in 1982 constitution
- Tez No: 51553
- Danışmanlar: DOÇ.DR. ERDAL ONAR
- Tez Türü: Yüksek Lisans
- Konular: Hukuk, Law
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 1996
- Dil: Türkçe
- Üniversite: Ankara Üniversitesi
- Enstitü: Sosyal Bilimler Enstitüsü
- Ana Bilim Dalı: Belirtilmemiş.
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 136
Özet
Özet yok.
Özet (Çeviri)
SUMMARY The constitutions of many states admit the principle that it may be necessary to suspend the normal guarantees and safeguards where there is an overriding and present threat to the security of the state or to the social order. This justi fication is obvious. The rights and freedoms guaranteed and safeguarded assume the maintenance of constitutional and so cial structure within which alone they have meaning and value. That maintenance is therefore a condition precedent to the realisation of such rights and freedoms. Owing to the above explanations, it indicates itself obviously that in extraordinary circumstances fundamental rights and freedoms should be subject to more strict rules than ordinary circumstances. Thus it remains possible that if sudden and catastrophic natural or social events brought about a state of utter social chaos and disorder, so that the civil authorities and normal processes could not function. In various articles of our 1982 Constitution these cri sis times were taken into consideration and it is provided that in times of war, mobilization, martial law or state of emergency the fundamental rights and freedoms are subject to more strict limitations comparing to ordinary circumstances. The legal regime in extraordinary circumstances which are designated in the constitution is called as“suspension”. (129)Article 15 of the Constitution is the essential provision on this subject. Provisions related to the suspension of funda mental rights and freedoms are governed under Article 15. This Article states that :“ In times of war, mobilization, martial law or state of emergency, the exercise of fundamen tal rights and freedoms can be partially or entirely suspend ed to the extent required by the exigencies of the situation, or measures may be taken in contradiction to the constitu tional guarantees provided for them, on the condition that obligations derived from international law are not violated. Even under the circumstances indicated in the first paragraph the individual's right to life and the integrity of his phys ical and spiritual entity shall not be violated except where deaths occur through lawful acts warfare and execution of death sentences-, no one shall be compelled to reveal his re ligion, conscience, thoughts and opinions, nor be accused on account of them; crimes and punishments shall not be made retroactive, nor shall anyone be held guilty until so proven by a court judgement”. Since suspension is a legal regime that can operate, only in crisis times; it is a part of this extraordinary re gimes. By reason that we can see provisions related to sus pension also in regulations governing martial law and state of emergency. The limits on the suspension of fundamental rights and freedoms are also declared in the same Article of the Consti- (130)tution. According to this Article,“the exigencies of the situation”,“obligations of the state derived from interna tional law”and“the > of human rights”are the limits of suspension. Fundamental rights and freedoms are suspended usually by law-amending ordinances issued during times of martial law or state of emergency. However.according to Article 148 these ordinances can not be brought before the ConstitutionalCourt. Since Article 148 states that law-amending ordinances issued during such periods are not subject to review of constitu tionality by the Constitutional Court, this article may po tentially lead to excessive restrictions on fundamental rights. This situation gives existence to a contradiction in the constitution itself. On one hand the constitution set forth the limits on the other hand remove the possibilities to resort to legal channels. Here, the lack of a mechanism, which controls the limits on suspension provided in Article 15 are implemented or not, is observed. In the implementation of suspension not law but law- amending ordinances are freguently used in practice. Despite their freguent exercise law-amending ordinances are not sub ject to judicial review. Implementation of suspension by means of such law-amending ordinances renders the fundamental rights and freedoms without protection which is excessively (131 )needed in times extraordinary circumstances, but also con trary to the rule of law. Despite the neqative situation mentioned above, the Constitutional Court has assumed itself empowered on the identification of the case. Owing to this interpretation the Court annuled the provisions of the law-amending ordinances including extraordinary powers which carry on their effect in ordinary circumstances. Thus the Court smooth away the prohi bitions relevant to the judicial review. Provisions related to the law of emergency circum stances set forth in international documents indicates key rules that might be used to test the implementations in terms fundamental rights. Especially the European Convention on Human Rights which Turkey is also a party, has improved an effective and detailed mechanism. The European Convention on Human Rights contains a provision parallel to Article 15 of 1982 Constitution. Article 15 of the Convention is as follows:“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take meas ures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situa tion, provided that such measures are not inconsistent with its other obligations under international law. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. Any High Contracting Party (132)availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reason therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the pro visions of the Convention are again being fully executed”. As stated in the article the Convention charges any Contracting Party with burden of notice. By the notice of the Contracting State the mechanism of the Convention starts to operate. The organs of the Convention and especially the Eu ropean Court of Human Rights has made the judicial review possible for some rules that are not subject to judicial re view before. It seems that if human rights continue to be considered as an issue which is beyond domestic plane and concerns in ternational plane, the judicial prohibitions would be invalid. (133)
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