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Türk Hukukunda Anayasa Mahkemesi Kararlarının Geriye Yürümezliği Sorunu...

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Abstract:

The basic aim in appealing to the Constitutional Co-

urt is to immediately end the application of unconstitutional statu-

tes. Therefore, it may be in question for the possibility of occurrence

of the individual vested rights due to the implementation of an un-

constitutional law, or for the destruction or violation of individual

fundamental rights. For example, even if a law envisaging the obli-

gatory retirement of a professional occupational group was cancel-

led, the cancellation would have no meaning as its own provisions

and consequences had come out. Likewise, even if the laws about

the fulfillment of a death penalty or about regulating the issues such

as nationalization were cancelled, there would no possibility to re-

move the results they had caused during their implementation.

In this context, we should discuss again the place of the rule in

Article153 of the Constitution “annulment decisions are not retroac-

tive” within the constitutional jurisdiction which has the function to

protect the fundamental rights and freedoms and to eliminate the

violations. It is clear that the interpretation of the principle of ret-

roactivity as remaining unfulfilled may cause the results against the

principles of the state of law and the principles of justice and equa-

lity; and is contrary to the objective of the control to be conducted

through contention of unconstitutionality. Although the leading

motive of retroactivity of annulment decisions of the Constitutional

Court is the legal security and stability principle and to protect the

vested rights, this motive doesn’t allow the legislature to make laws

violating the fundamental rights and freedoms of individuals and ca-

using irreparable harms.

For the Constitution jurisdiction to fulfill its main functions ef-

fectively, it is necessary to change Article 153 of the Constitution,

which is contrary to the basic principles of the Constitution; and the

Constitutional Court should discuss the conditions under which an-

nulment decisions are retroactive in terms of abstract and concre-

te norm control in order to eliminate the destructive effects of this

mandatory rule.

Keywords:

The Constitutional Court, Annulment Decisions,

Vested Rights, Retroactivity, Accuracy And Bindingness

GİRİŞ

Bilindiği üzere Anayasa Mahkemesi’nin yargısal nitelikteki karar

ları, 1982 Anayasası’nın çeşitli maddelerinde ele alınmıştır. Anaya-

sa Mahkemesi’nin bu kararlar yolu ile 1982 Anayasası’nın 148’inci

maddesinin birinci fıkrasında belirtilen kanun, kanun hükmünde

kararnamelerin Anayasa’ya uygunluğunu şekil ve esas bakımından;

Anayasa değişikliklerini ise sadece şekil bakımından denetleme yet-

kisi bulunmaktadır.

Fatih Demircan, “Türk Anayasa Mahkemesi’nin Yürürlüğü Durdurma