By the reason of the contradiction to the 2nd and 38th Article of the Constitution, the subparagraph of (a) and (b) of article 65 of the Code of Protection of Cultural and Natural Properties (“Act”) numbered 2863 had been nullified by the Constitutional Court’s decision numbered 2011/18 that published in the Official Gazette dated 13th of October 2013 numbered 28440.
The appealed text of the Act;
Article 65:
a) Persons who demolish, degrade, destroy, make disappear or, in any manner, damage immovable cultural and natural property to be protected or to cause such damages intentionally shall be punished with prison sentence of two to five years and judicial fine up to five thousand days.
If such acts are committed with the intent of smuggling cultural and natural property to be protected out of the country the above penalties shall be increased one fold.
b) Persons undertaking unlicensed construction and physical intervention in conservation sites contrary to the principles of conservation and terms and conditions of use pertinent to the transition period, conservation plans and prerequisites envisaged for the conservation sites identified by the Regional Conservation Councils or persons soliciting such acts shall be punished with prison sentence of two to five years and judicial fine up to five thousand days.
The Constitutional Court had been determined that the aforesaid text of the Act is contrary to “principle of clarity and definiteness” which is in article 2nd of the Constitution and one of the fundamental principles of the state of law. The principle of clarity and definiteness is relevant with juridical security and person should know which law enforcement or legal result is relevant with which concrete action and fact and what kind of power of intervention is given to administration by these. Nevertheless, in this occasion person can foresee and determine his/her liability and behaviour.
Furthermore the aforesaid text of the Act had been determined that is contrary to “principle of legality of penalties” which is in the first subparagraph of Article 38th of the Constitution. Correspondingly to the Article 38th of the Constitution, which actions banned and the punishments which are given for these actions will be indicated in the law without no doubt, the rule has to be clear, understandable and its bounds should be clear, according to “principle of legality of crimes and penalties” which is in the Article 2nd of Turkish Criminal Law. “Principle of legality of crimes and penalties” is one of the Constitutional principle which is valid in the Criminal Law, also it establish important confidence for the fundamental rights and freedoms. With this principle, penal responsibility connects with personal preferences and personal freedom is intended to under secure. Yet, if people cannot foresee which action cause to what kind of crime or encounter various surprises about this matter, it will considerably restrict personal freedom.
Due to the explained reasons, by the reason of the contradiction to the 2nd and 38th Article of the Constitution, the subparagraph of (a) and (b) of article 65 of the Act had been nullified and it will enter into force after one year of publication of decision of cancellation, in short from 13th October 2013.
