Alman Federal Anayasa Mahkemesi Kararının Tercümesi ve Bu Karar Üzerinden İnsan Hakları ve Terörizm İlişkisinin Analizi
Berk Cem Tatar10.000 insanın hayatı 150 insanın hayatından daha önemli midir? Eğer öyleyse, insan hayatı yalnızca nicel bir sayı olarak görülebilir mi? Söz konusu soruya cevap vermeden önce düşünülmelidir ki, insanların geçmişlerine bakmadan sadece rakamlara bakılabilir mi? Alman Federal Anayasa Mahkemesi’nin bu çalışmada incelenen kararında bu durum detaylı olarak tartıılmıtır. Bu nedenle, bu çalımada bu konuda çok büyük önem taıyan bir karar Türkçeye çevrilmi, akabinde de kararda ulaılan sonuçla birlikte ulaılma yöntemi bakımından da bir analiz yazılmıtır. Söz konusu analiz sırasında yaşam hakkının nesneleştirilemeyeceği ve insanın bir hakkın sadece öznesi olabileceği hususunda felsefi yaklaşımlarda bulunulmuştur. Ayrıca Alman Anayasa Mahkemesi’nin söz konusu davayı incelemesi sırasında başvurduğu yöntemler tartışılmıştır. Bir kanun kaynaklı vuku bulan bu davada Mahkeme incelerken sadece hukuki arka plandan faydalanmamıştır. Meclisteki farklı görüşteki milletvekillerine davada görüş sunma fırsatı tanınmıştır. Ek olarak sadece milletvekilleri görüş sunmamış, Alman Silahlı Kuvvetler Birliği, Pilotlar Birliği ve Bağımsız Uçuş Refakatçileri Örgütü de yazılı görüşler sunmuşlardır. Söz konusu yaklaşım ile Türk Anayasa Mahkemesi önünde bir davanın incelenmesi sırasındaki farklılıklara da değinilmiştir.
Translation of the German Federal Constitutional Court’s Plane Hijack Verdict and Analysis of the Relationship Between Human Rights and Terrorism Based on This Verdict
Berk Cem TatarWhen compared, isthe life of 10,000 people more important than the lives of 150? Ifso, can human life be viewed only as a quantitative number? Before answering the question, it should be considered that is it possible to look only at numbers without looking at people’s backgrounds? The German Federal Constitutional Court discussed this situation in detail in its verdict examined in this study. For this reason, in this study, a critical verdict in this regard was translated into Turkish, and then an analysis was written in terms of the method of reaching the result in the decision. During the analysis in question, philosophical approaches were made that the right to life cannot be objectified and that human beings can only be the subject of a right. In addition, the methods used by the German Constitutional Court during the examination of the case in question were discussed. In this case, which arose out of an enacted law, the Court did not use only the legal background while examining it. Members of Parliament with different opinions were given the opportunity to present their views on the case. In addition, not only the deputies submitted their opinions, but also the German Armed Forces Association, the Pilots’ Association, and the Independent Flight Attendant Organisation submitted written opinions. With this approach, the differences in the examination of a case before the Turkish Constitutional Court are also mentioned.
As is known, the securitisation of the law came to the fore after 9/11. In this article, the balance and the subsequent dilemma of security and freedom were examined on the basis of a verdict of the German Federal Constitutional Court, which was dated in 2006. In the decision of the Court, from time to time, the possibilities of the weighing lives one another were dwelled on by examining “Aerial Security Law” which at one point permitted a hijacked plane to be shot down, in order to save more lives. The court, however, did not open the door of weighing life by invoking the core element of the Bundesgesetz, the German Constitution, namely the human dignity. The verdict, which was translated into Turkish from German, did not solely touch upon the substantive part of the law. In other words, the German Federal Constitution Court has also delved into the procedural part of the law. As is known, in Germany, landers, the States, have a lot saying during the procedure of enacting a law. Therefore, the States have also argued against the Law before the Court not only on the grounds of the substantive part but also on the grounds of the procedural part. It was contested that the Federal government did have the consent of the other part of the legislature.
Regarding the substantial part, the issue that the German Federal Constitutional Court focuses on in its decision is the incomparability of human lives. If there is even a 1% chance, human life cannot be put at risk and cannot be compared quantitatively. Similar discussions have arisen in the railway switchman dilemma for years. Accordingly, when a waggon with no brakes is coming quickly and five railway workers are working on the road where the waggon in question travels, they do not have time to escape. However, if the railway switchman notices the situation and turns the switch, he turns it to the side where only one worker is working. With very simple mathematics, the railway switchman would prefer that one person die rather than five. When the criminal liability of the railway switchman is left aside, the issue to be discussed is “ethics”. Because are the lives of five people greater than the life of one? The answer to this question is generally “yes”. The question then asked will be; What if that person is a Nobel Prise-winning doctor who will find the cancer vaccine? Then the answer changes and the scientist’s life becomes more important than the other five people and the railway switchman does not turn the switch. The dilemma begins exactly here. When answering the first question, the background, education, and role of these people on the world stage were not taken into consideration. Directly, these people were reduced to the status of objects, they were forgotten that they were humans, and they turned into “numbers”. An attempt has been made to explain this situation around the concepts of human rights and the fight against terrorism. It was emphasised that the concepts in question are not alternatives to each other and that the fight against terrorism will be carried out more accurately by respecting human rights. This is the issue emphasised in the Court decision in this study. The issues that states should take into consideration when legitimately fighting terrorism within the boundaries of law were also evaluated within the framework of “ethical” principles, both in the decision of the German Federal Court and in the subsequent analysis.
Furthermore, while the Court examined the case, many aspects were considered and many actors were given the right to defend their arguments before the Court. In the process, professionals in the topic such as the Association of German Federal Defence, the Association of Pilots and the Independent Flight Attendant Organisation had right to put forward their ideas and arguments. Not only were the non-governmental bodies able to present their arguments, but also the groups at the parliaments could argue the case. In this process, one of the interesting things to observe was the delving into the arguments of the parliament groups/alliances who backed the law during the voting procedure of the law, but argued against it before the Court. Also, the possibilities of these “amicus curiae”, the friends of the court, term in Turkish aspect was dwelled on. In this regard, as it is seen that the working rules of the Turkish Constitutional Court and the German Constitutional Court are different from one another, many aspects of them were discussed. Most importantly, the term “amicus curiae” was used when the first of its kind was made possible by the Turkish Constitutional Court, as the Court accepted the amicus curiae report, which was prepared by the Constitutional Law Research Association (Anayasa-Der) and the Turkish Criminal Law Association (TCHD) and submitted together to the Court.
