UÇAR AND OTHERS v. TURKEY
Inadmissible
András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano
1. The applicants, whose names and places of residence are set out in the appendix, are Turkish nationals. They are represented before the Court by Ms Deniz Karakurt, a lawyer practising in Izmir. 2. summarised as follows. 3. The applicants were the mayors of 190 municipalities at the time of lodging their application with the Court. 4. On 6 March 2008 the Parliament of Turkey adopted Law no. 5747 “on establishing districts within the boundaries of metropolitan municipalities and amending various laws”, which was published in the Official Gazette of 22 March 2008 and entered into force on that date. Law no. 5747 stipulated, inter alia, that the legal personality of a number of municipalities, including those headed by the applicants, would be abolished and that either those administrative units would become villages/neighbourhoods and join other municipalities, or a certain number of them would together constitute new municipalities. Law no. 5747 further stipulated that the legal personality of those municipalities, as well as their authority and rights, would continue to exist until the next general local elections were held. 5. On 9 April 2008 three members of parliament from the CHP, the main opposition party, Mr H.S. Okay, Mr K. Anadol and Mr K. Kılıçdaroğlu, the party leader, made an application to the Constitutional Court of Turkey. The MPs requested the Constitutional Court to repeal certain provisions of Law no. 5747, including those applicable to the applicants’ municipalities. The MPs claimed, inter alia, that there was no public interest in abolishing the legal personality of certain municipalities and that Law no. 5747 had been adopted so that the governing party, the AKP, could win the local elections in the areas in issue. They further submitted that a referendum should have been held in the municipalities in question, in accordance with the Law on Municipalities (Law no. 5393), and that Law no. 5747 was in contravention of the provisions of the Law on Elections in Local Administrations (Law no. 2972) and the Constitution. On this last point, the MPs submitted that, according to Article 67 of the Constitution, a legislative amendment concerning elections would not be applicable to elections held within one year of the entry into force of those amendments and that the local election process of 2009 would start on 1 January 2009, in line with the provisions of Law no. 2972. They therefore considered that Law no. 5747 should not be applied to the local elections of 29 March 2009. 6. On 31 October 2008 the Constitutional Court rendered its decision in the case (case no. 2008/34, decision no. 2008/153) and dismissed the case in so far as it concerned the municipalities headed by the applicants. The court noted at the outset that the MPs had not requested the repeal of the provision which concerned the entry into force of Law no. 5747, and that therefore their submissions regarding the compatibility of Law no. 5747 with Article 67 of the Constitution could not be examined. 7. As regards the submission that a referendum should have been held in accordance with Law no. 5393 and that the provisions of Law no. 5747 were incompatible with Law no. 2972, the Constitutional Court held that a legal norm could be reviewed only in the light of the relevant constitutional norm and not in relation to another legal norm. It further held that the legislature had the authority to make, amend and repeal laws and the responsibility to maintain harmonisation between laws. The Constitutional Court concluded that it could therefore not review the compatibility of the provisions of Law no. 5747 with those contained in Law no. 5393 and Law no. 2972. 8. Lastly, as to the allegations that the provisions of Law no. 5747 lacked public interest and that this law had been passed for political reasons, the Constitutional Court noted at the outset that it had the authority to examine whether certain legislation had been passed with the purpose of serving the public interest. The court further noted that the question of whether a legal norm was compatible with the needs of the country was political in nature and that the legislature was permitted a degree of discretion on that point. The court considered that it could not assess the existence of a public interest on the basis of the political choice of the legislature alone. The Constitutional Court further noted that in accordance with the Constitution, the administrative units were to be determined, through laws, by the legislature and taking into account their geographical features, economic circumstances and need for public services. The court observed that the petition lodged by the MPs for the repeal of certain provisions of Law no. 5747 did not contain any concrete argument as to how those provisions did not serve the public interest but were the result of the political considerations of the governing party. The Constitutional Court also observed that the aim of the changes brought about by Law no. 5747 was the efficient functioning of the public services provided by the local administrations and the efficient and productive use of public resources by the central administration. The Constitutional Court held that there was no evidence demonstrating that the amendments had been made with the aim of acquiring political or personal gain. The court lastly noted that since, in accordance with Law no. 5747, the legal personality of the municipalities in question, as well as their authority and rights, would continue to exist until the first general local elections were held, the legislature had respected the will of the electorate regarding the last five-year election period in the areas concerned. 9. On 29 March 2009 the local elections were held and as a result the legal personality of the municipalities headed by the applicants ceased to exist on that day. 10. Article 7 of the Constitution provides: “Legislative Power Article 7 - Legislative power is vested in the Turkish Grand National Assembly on behalf of the Turkish Nation. This power cannot be delegated.” 11. Articles 123 and 127 of the Constitution provide: “A. Fundamentals of the Administration 1. Integral Unity and Public Legal Personality of the Administration Article 123 - The administration forms a whole with regard to its structure and functions, and shall be regulated by law. The organisation and functions of the administration are based on the principles of centralisation and local administration. Public corporate bodies shall be established only by law, or by the authority expressly granted by law.” 12. Article 127 of the Constitution provides: “C. Organisation of the Administration 2. Local administrative bodies ARTICLE 127 - Local administrative bodies are public corporate entities established to meet the collective local needs of the inhabitants of provinces, municipal districts and villages, whose decision-making organs are elected by the electorate as determined by law, and whose principles of structure are also determined by law. The formation, duties and powers of the local administration shall be regulated by law in accordance with the principle of local administration. ... The procedures dealing with objections to the acquisition by elected organs of local government or their status as an organ, and their loss of such status, shall be resolved by the judiciary. However, as a provisional measure, the Minister of the Interior may remove from office those organs of local administration or their members against whom an investigation or prosecution has been initiated on grounds of offences relating to their duties, pending judgment. The central administration has the power of administrative trusteeship over the local governments in the framework of the principles and procedures set forth by law with the objective of ensuring the functioning of local services in conformity with the principle of the integral unity of the administration, securing uniform public service, safeguarding the public interest and meeting local needs in an appropriate manner.” 13. Articles 3 and 59 of the Law on Municipalities (Law no. 5393) provide, in so far as relevant, as follows: “Definitions Article 3 - The terms listed below shall have the following meanings wherever they are used in this Law; a. Municipality: A public-law legal entity with administrative and financial autonomy, whose purpose is to meet the collective needs of the local residents and whose decision-making body is made up of members elected by direct suffrage. ...” “Income of the Municipality Article 59 – The Municipality draws its income from the following sources; a. Taxes, levies, charges and contributions, as specified in the laws. b. Its share of the tax income of the general budget. c. Payments to be made by the administrations within the general and special budgets. ... f. Income from interest and fines. ...”