The Constitutional Court (AYM) unanimously dismissed the request to stop the executive, discussing the applications of Cumhuriyet Halk Party (CHP) group chairman Ergin Altay, Özgür Özel and Engin Özkoç and 139 deputies of Kanal Istanbul.
CHP, by applying to AYM in 2018, the cancellation of the phrase “… Kanal Istanbul and similar waterway projects…” added to the “Law on the Implementation of Some Investments and Services within the Framework of Build-Operate-Transfer Model” (build-operate-government model). he had wanted.
Discussing the request of the CHP, AYM emphasized that the waterway was artificially created by the decision of the zoning plan, which is the regulatory process of the administration, and that it was actually a part of the zoning plan and stated that the lawsuit could be filed with the administrative judiciary request for the cancellation of the zoning plan.
Saying that “Determining the method of realization of Kanal Istanbul and similar waterway projects is within the discretion of the legislator,” AYM canceled that the law item requested to be canceled does not pursue any purpose other than the public interest, and decided that this article has no contrary to the Constitution.
"Within the discretion of the legislator"
In the evaluation section of the decision, the following statements were made: “In the 47th article of the Constitution, it is stated which of the investments and services will be determined by private law contracts by real or legal persons, and by which method or method and by what kind of private law contracts these services and services will be realized. There are no restrictions on the subject.
“With the rule subject to the lawsuit, it has been decided that Kanal Istanbul and similar waterway projects will be realized by assigning capital companies or foreign companies within the framework of the build-operate-transfer model. It is clear that the method by which the projects will be carried out and the authority to determine the contract terms and principles are within the discretion of the legislator, provided that constitutional guarantees are observed.
“There is nothing contrary to the public interest”
“The rule does not regulate in an area where the use of the private sector's resources and capital is restricted constitutionally. In this context, taking into consideration that Kanal Istanbul and similar waterway projects require great financing and advanced technology, the law-maker can realize these projects quickly, effectively and efficiently in line with advanced technology, today's needs and conditions, and benefit from the experience and capital of the private sector in projects, It is understood that it aims to be lowered. This purpose has no direction contrary to public interest.
“In the petition of the lawsuit, it was claimed that Kanal Istanbul was against the Constitution due to its negative effects on the environment, but only the method for the realization of the mentioned project was determined in the rule. Rule; it does not contain any content or content that prevents the demonstration of the environmental impacts of the project, the necessary work in this direction, the protection of the environment and the prevention of environmental pollution. The rule does not eliminate the obligation to act in accordance with the constitutional principles and rules for environmental protection in terms of realizing the project.
“In addition, there is no obstacle to filing lawsuits against administrative zoning plan where the waterway is created.
“In this respect, it has been evaluated that determining the method of realization of Kanal Istanbul and similar waterway projects is within the discretion of the lawmaker and it has not been determined that the rule sees a purpose other than public interest.
The Supreme Court unanimously rejected requests for cancellation of the statement and suspension of execution for the reasons described.
The law article that the CHP asked for the cancellation was as follows:
Article 2- (Amended first paragraph: 24/11/1994 - 4047/1 art.) This Law, bridge, tunnel, dam, irrigation, drinking and utility water, treatment plant, sewerage, communication, congress center, culture and tourism investments , commercial buildings and facilities, sports facilities, dormitories, theme parks, fishermen's shelters, silo and warehouse facilities, geothermal and waste heat based facilities and heating systems (Additional phrase: 20/12/1999 - 4493/1 art.) electricity generation, transmission, distribution and trade mines and enterprises, factories and similar facilities, investments to prevent environmental pollution, highway, intensive traffic, railway and rail systems, railway station and stations, cable car and lift facilities, logistics center, underground and above ground parking and civil use sea and airports and ports, cargo and / or passenger and yacht ports and complexes, Kanal Istanbul and similar waterway projects, border gates and customs facilities, national park (private law (except for the current one), the construction and operation of the structures and facilities envisaged in the plans in the nature park, nature protection area and wildlife conservation and development areas, wholesalers and similar investments and services, the capital companies or foreign companies within the framework of the build-operate-transfer model. It covers the procedures and principles regarding the assignment.
The realization of the investments and services stipulated in the first paragraph by the companies or foreign companies in accordance with this Law constitutes the exemption of the laws regarding the investments and services to be seen by the relevant public and institutions (including public economic enterprises). ”