President's Speeches

Distinguished Guests,

Ladies and Gentlemen,

It is my pleasure to welcome you here today to the closing conference of the Joint Project on “Supporting the Individual Application to the Constitutional Court”. I would like to extend you my most sincere greetings and express my gratitude for your participation.

Let me start my speech with a thought-provoking question: “How could we live together with those who are not like us, namely ‘the others’?” In my opinion, this is the ever-present question as well as the hurdle of the civilization.

The simple answer to this question at the ideational level may be “to recognise the other’s very existence and ontological status”. As a matter of fact, recognizing the “other” as is also constitutes a guarantee for our own ontological existence. Likewise, as expressed by Lyotard, a French philosopher who was one of the pioneers of postmodernism, “every human being carries within him the figure of the other”. So indeed, each of us is “the other” in the eyes of someone else. We are others for the other. For this very reason, we have certain rights in our capacity as “the other human being”. In this sense, in Lyotard’s view, human rights are at the same time “the other’s rights”. 

At the social and political level, co-existence of differences entails a fair and pluralist order where fundamental rights and freedoms are safeguarded. Terrorism, xenophobia, racism and Islamophobia, which have been spreading rapidly nowadays, pose a serios threat to pluralism and thereby to the culture of living together.

On the other hand, another condition for living together with differences is the establishment of a fair legal order. In fact, the history of Europe of which we are a part is the history of struggles towards establishing such order. As all we know, the line of progress has not been straight in this respect, and there have been unfavourable occasions deflecting from democracy, rule of law and human rights.

As is known, the European Convention on Human Rights signed in 1950 (“Convention”) has been one of the remedies intended to prevent re-occurrence of preceding massacres and systematic right violations in the European land. The Convention as well as the European Court of Human Rights (“ECHR”) entrusted with its interpretation were conceived as a safeguard mechanism that would serve to protect fundamental rights and freedoms against waves of deviation.

Esteemed guests,

We should hereby point to the crucial role undertaken by the Strasbourg bodies, notably the ECHR, in transformation of the legal orders of the Contracting Parties to the Convention. In this respect, the ECHR’s case-law has had a determining impact on the progress of the constitutional and legal system of Turkey which has been a party to the Convention since 1954. Notably in the legislative intentions of the constitutional amendments of 1995, 2001, 2004 and 2010, a direct reference was made to both the Convention and the ECHR.

Undoubtedly, the constitutional amendment of 2010 through which the individual application mechanism was introduced was the most concrete and visible manifestation of the Convention’s impact. The “European Convention on Human Rights” is mentioned not only in the legislative intention of Article 148 of the Constitution but also in its wording stating that individuals alleging a violation of their rights under joint protection of the Constitution and the Convention may lodge an individual application with the Constitutional Court.

Individual application that was put into practice on 23rd September 2012, exactly seven years ago today, has led to a revolutionary change in the Turkish legal order. In this respect, individual application is one of the greatest reforms introduced in the field of law in our country. We need not hours but days to thoroughly explain this reform and the change it has brought along. I will therefore confine my speech to the goals sought to be achieved by individual application mechanism and whether these goals have been achieved.

It should be noted at the outset that introduction of the individual application mechanism has two main goals, principal and practical. These goals may be found in the legislative intention of the constitutional amendment. Principal goal sought to be achieved by individual application is to ensure the advancement of fundamental rights standard in the country. As worded by the constitutional maker, through the jurisdiction to examine individual applications “the Constitutional Court is entrusted with the mission to protect and develop freedoms”.

Practical goal of individual application is to ensure that the alleged right violations be examined at the domestic level, and if any, such violations be redressed without being brought before international judicial organs. Realisation of this goal would undoubtedly decrease the number of applications to be lodged from Turkey with international judicial organs. As a matter of fact, it is envisaged that -as worded by the constitutional maker- “through individual application mechanism, there will be a decrease in the number of cases to be brought before, and violation judgments to be rendered by, the ECHR against Turkey”.

I am pleased to note that the seven-year functioning of individual application mechanism demonstrates that these two goals set by the constitutional maker have been achieved to a considerable extent. The Constitutional Court has adopted a right-oriented paradigm through this mechanism and rendered landmark decisions concerning fundamental rights and freedoms falling within the scope of individual application, ranging from the right to life to the freedom of expression.

These decisions have offered redress for damages resulting from right violations on one hand and contributed to the resolution of legal problems concerning the fundamental rights and freedoms on the other. In brief, the right-oriented decisions rendered through the individual application mechanism have made significant contributions to the improvement of standards of fundamental rights and freedoms in the country. 

Besides, thanks to effective functioning of the individual application mechanism by the Constitutional Court, the allegations of right violations have been, to a significant extent, addressed at the domestic level. So indeed, effective functioning of this mechanism has also led to a significant decrease in the number of applications lodged against Turkey before the ECHR. In 2012 before the introduction of individual application system, number of pending cases before the ECHR against Turkey was 16.900. By 31 August 2019, this number is 8.800.

Moreover, putting aside the decisions whereby the Constitutional Court provided redress for thousands of individuals by way of finding a violation and awarding compensation, only a very small number of the applications found by the Constitutional Court inadmissible or no-violation was concluded differently by the ECHR. Therefore, the goal of resolving a significant part of the alleged right violations within the Turkish legal system, which was aimed by the constitutional amendment on individual application mechanism, has been considerably achieved.

Esteemed guests,

We have experienced difficulties during the seven-year period of the individual application mechanism. From the beginning, the Constitutional Court has been facing with an intensive workload. I would like to provide you with statistical information on the seven-year past of individual application in order to give you a better insight of the workload-related difficulties faced or being faced by the Court.

Since 23 September 2012, the Court has received over 244.000 individual applications, approximately 197.000 of which have been concluded. It should be also noted that in the aftermath of the coup attempt of 15 July 2016, the Court has received additional applications which were over 100.000. During the state of emergency, the Court has dealt with such heavy work-load on one hand and delivered higher number of violation judgments compared to ordinary times on the other.

Workload is still the most significant problem of the individual application mechanism. Currently there are nearly 47.000 pending applications on the Court’s docket. In this sense, the fact that the ECHR has around 62.000 pending applications in total lodged by 47 countries provides a better understanding into the extent of our Court’s workload. 

The Constitutional Court has been so far taking necessary measures in order to overcome the increasing workload of individual application mechanism. However, functioning of this mechanism as an effective remedy depends on elimination of structural problems and ensuring improvement of our legal system in a way that would cause fewer violations.

The Constitutional Court is not in a position to examine and conclude, one by one, all alleged right violations raised throughout the country through individual application. Nor is it possible. Its mission is indeed to lay out main principles and procedures in a way to prevent new violations by means of identifying the problems underlying the violation. Notably, following the Court’s violation judgments, inferior courts are to implement principles pointed out by the Court in cases of same or similar nature without awaiting for new applications to be lodged. 

Besides, in cases where the violation has been resulted from a provision of law, the prompt step to be taken by the legislator to make necessary amendments in light of the stated grounds will prevent occurrence of new violations.

Distinguished guests,

Protection of fundamental rights and freedoms by executing decisions delivered through individual application mechanism in a more effective manner necessitates an effective and efficient cooperation among institutions. At this point, it appears that there are certain ongoing debates concerning the nature of individual application, the first and foremost of which is the misperception that it is an appeal remedy. As we have previously stressed, the introduction of individual application has not vested the Constitutional Court with an appellate review authority in the civil, criminal and administrative jurisdiction.

The Court’s examination through individual application mechanism is confined to determining whether the public authorities’ impugned acts and actions have led to a violation of a right, precisely as is the case with the ECHR’s examination on the basis of the Convention. This is indeed fulfilment of a constitutional duty by virtue of a power emanating from the Constitution. In this respect, the relation between the Constitutional Court and the other supreme courts, namely the Court of Cassation and the Council of State, is based on a constitutional division of function.  

In addition, in order for an application to be lodged with the Constitutional Court, ordinary legal remedies including appeal with the Court of Cassation and the Council of State must be exhausted. Accordingly, within the scope of individual application, examination of the decisions that have become final after exhaustion of appeal remedy is a necessity stipulated by the Constitution.

However, Article 148 of the Constitution restricts the jurisdiction of the Constitutional Court with the provision “In the individual application, no examination shall be made on the issues to be considered in appellate review”. It is specified in the reasoning of the legislative proposal regarding the constitutional amendment that the said provision has been introduced in order to “prevent any possible jurisdictional disputes between the Constitutional Court and the other high judicial bodies”.

In this case, the examination to be made by the Constitutional Court within the scope of the individual application is limited to the determining “whether any fundamental right has been violated” and “how such a violation will be redressed”. The Court does not carry out this examination in terms of “the compliance with the procedure and law” as is the case with the ordinary legal remedies, but in terms of the constitutional guarantees concerning fundamental rights and freedoms. In this sense, as stated in the Constitutional Court’s decisions, “any examination as to whether fundamental rights and freedoms within the scope of individual application have been violated under the Constitutional guarantees cannot be regarded as ‘the examination of an issue to be considered in appellate review’...”.

It should be noted that debates on the jurisdiction of supreme courts through individual application are not peculiar to us. In all countries where the remedy of individual application to the constitutional courts has been introduced, the decisions rendered by these courts have been criticized by other supreme courts for interfering with their jurisdictions. Therefore, similar debates in our country should be considered normal.

However, we believe that strengthening of the communication and dialogue between supreme courts will contribute to reduce the discrepancy of views and hence to strengthen the Turkish legal system. As a matter of fact, I would like to express that the meetings, which have been held within the scope of the project that we are closing today and brought together the supreme courts, have contributed to the strengthening this communication.

Indeed, within the scope of this project, very efficient studies have been carried out in the case-law forums held with the participation of the Constitutional Court, the Court of Cassation and the Council of State with a view to contributing to the consistency in supreme courts’ case-law.

Dear guests,

I would like to note that such projects, in the most general sense, promotes the activities that serve a world ideal where fundamental rights and freedoms are better protected. The responsibility to work for a better world is a responsibility we should undertake not only for ourselves but also for the future generations. As a Kashmiri saying goes, “We do not inherit the Earth from our ancestors—we borrow it from our children”.

We must be in solidarity in order to fulfil this obligation as well as to protect the values such as democracy, rule of law, and human rights against undesired waves. The Council of Europe –of which we are a founding member– was built on that purpose. Indeed, a determined struggle against diseases such as terrorism, racism, xenophobia and Islamophobia which are the enemies of these common values requires national and international solidarity.

Sa’di of Shiraz was undoubtedly one of those who most briefly expressed the organic relationship and solidarity between people. In Gulistan which he wrote about eight centuries ago, Sa’di says “If you are indifferent to the misery of others,
it is not fitting that they should call you a human being”.

Unless we materialize this message given through the poem “Bani Adam”, which is inscribed at the entrance of the United Nations building in New York, violations of fundamental rights and griefs experienced in various regions of the world will continue. Nelson Mandela, one of those who internalized Sa’di’s message, expressed the relationship with “the other” very well through freedom. According to Mandela, “To be free is not merely to cast off one’s chains but to live in a way that respects and enhances the freedom of others”.

With these feelings and thoughts, I would like to thank all those who have contributed at every stage from the beginning of this successful project until the closing conference, the stakeholders and all participants who will make presentations at the sessions.

I wish that the conference will be fruitful and I would like to once again extend my cordial greetings.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

His Excellency Mr. President,

Esteemed Guests,

First of all, I would like to extend you all my most sincere greetings. I would like to welcome you to our Conference and express my gratitude towards Your Excellency and all our guests.

As is known, this “Grand Ceremonial Hall (Muayede Hall)” witnessed many important events throughout the history. The most important of them is probably the opening ceremony of the First Ottoman Parliament, which is one of the milestones in our history of constitutionalism and parliamentarism.

The opening speech delivered by Sultan Abdulhamid II in this hall on 20 March 1877 is closely related to the theme of our Conference. It was stated in that speech: “As you all know, the development and greatness of states and nations can be achieved only by justice. Our Sublime Ottoman State grew strength in the world from the very beginning by ensuring justice in government affairs and paying respect to rights and interests of every class of people. We all know that our great ancestor Fatih Sultan Mehmed Han gave importance to freedom and he let freedom of choosing religion and persuasion to people.

The ambassadors of the European States and the members of the First Parliament consisting of non-Muslims by forty percent, who were present in the hall on that day, understood very well what Sultan Abdulhamid said, as “ the Pact (Ahidname)”, issued by Sultan Fatih in 1463, was known to all. Thereunder, no one would interfere with the Bosnian (Franciscan) clergy and their churches; they would live in the country safely and freely; and no one would interrupt, attack or hurt “them, their lives, their goods, their churches and their visitors from abroad”.

Nearly a hundred years after “the Pact (Ahidname)” of Fatih that provided protection of the fundamental rights in an advanced level, the reflection of a tragic practice that was completely the opposite of this understanding occurred in Geneva. A Spanish man named Michael Servetus was accused of heresy due to his religious convictions and sentenced to death by burning slowly together with his books, and he was executed in the public square as a warning to others.

However, it must be immediately noted that there have been those who have raised the voice of their conscience against deadly bigotry in every place and in all eras. Castellio, another religious scholar, issued a manifesto on tolerance in protest of the understanding that led to the burning of Servetus. Castellio criticized the attribution of all this savagery to Jesus by these words: “Oh, it is what a despicable courage of people to lay such things that may only be the demon’s desire and invention on Jesus!”.

As is known, the past exists to draw lessons and experiences rather than to hinge and live upon. Unfortunately, today we still see the repercussions of the same ferocity and despicable courage all over the world. The murders committed, in the clutches of fanaticism, for the sake and at the expense of the sacred values still continue today.

The exploited sacred values and the exploiters may change; however, the source of bigotry remains the same. The continuous restatement of the distinction between us and the other and seeing “the other” as an object to be destroyed rather than human-being to live together stands to be the roots of evil actions performed for the sake of the sacred values.

It is known that the most important obstacle before establishing a healthy relationship with “the other” is bigotry, and today it manifests itself, especially in the West, as xenophobia, racism and Islamophobia. Such a virus, spreading rapidly, poisons day by day the environment that is necessary for the coexistence of diversities.

What is graver is that the attitude of those who are expected to treat this disease, which is as virulent as plague in terms of human rights, unfortunately leads to a disappointment. It is really worrying that in the West, the supreme courts, in particular, make decisions contributing to xenophobia and Islamophobia. The national and international court decisions approving the travel ban on Muslims, justifying the headscarf ban in universities and legitimizing the discrimination caused by dismissal of employees because of wearing headscarf have strengthened the Islamophobic policies.

His Excellency Mr. President,

When we look at the Islamic geography, we do not encounter a very good atmosphere, either. Dead bodies of children that came ashore, skin-and-bones children dying of starvation, and fearful eyes of a child who lost his relatives and whose hands and face were covered in blood in a bombed town continue to hurt our conscience. What else these images reflect other than the guilt of humanity in “an age that has lost its heart”.

It is indeed worrisome that members of a religion whose name stands for “peace” and whose Prophet is titled as “emin” (“trustworthy”) fall into deep silence against the murders, massacres and injustices, save a few exceptions. In addition, unfortunately, it cannot be said that Islamic countries are doing well in the areas such as justice, rule of law, democracy and fundamental rights and freedoms. At this point, we must make self-criticism and acknowledge that we are not good enough in terms of the protection of values such as the rule of law and fundamental rights.

The person who by far the best and most clearly explained this situation was the late Alija Izetbegović. At the meeting held by the Organization of the Islamic Conference in Tehran in 1997, Izetbegović stated that “Forgive me, for I will now be very open. Nice lies do not help, but sour truths could be a cure… Islam is the best –this is the truth– but we are not the best”.

It is upsetting that these remarks of Izetbegović remain valid today, although twenty years have passed. However, it must be noted that there are areas in which “we are the best”. “We are the best” in realizing the thoughts such as “right to hospitality” and “ethics of hospitality” which were discussed by the European philosophers namely Kant, Levinas and Derrida. In the geography that is the motherland of these philosophers, refugees are seen today as dangerous “creatures” that should not be allowed to enter through the wire fenced borders due to the fear of sharing food and losing the comfort of the minds and lives.

On the other hand, our country is home to millions of refugees, based on the understanding, inherent in its spiritual roots and culture, that “guest brings along his sustenance and abundance”. Thus, in the face of “anti-hospitality” policy and practice of those who do not have a word such as “barakat” in their dictionary, Turkey has achieved a hospitality policy that will be a model to the world.

The said matters from both the East and the West and the situation we are now in calls for a change not only at the national level but also in the world order. What is required is justice and freedom. I would like to mention a wise saying of Hazrat Ali: “The religion of the state is justice, and the state of justice is freedom”. So indeed, in the absence of freedom, there is no justice, and in the absence of the latter, there exist no moral, political or social values.

The most significant manifestation and concrete appearance of justice is undoubtedly fundamental rights and freedoms of individuals. These rights and freedoms are the inalienable acquisitions necessary for each of us to live humanely and with human dignity.

In ensuring justice and protecting fundamental rights, the main responsibility falls on the courts. Most particularly, raison d'être of the constitutional/supreme courts dealing with constitutionality review is to secure fundamental rights and freedoms by upholding the rule of law.

His Excellency Mr. President,

I am of the opinion that the following three considerations are of importance for the supreme courts in the Islamic countries to duly perform this role expected of them.

First, the rule of law, fundamental rights and freedoms are not external and foreign values that we have acquired from outside. These values are −no matter of the terms and forms emerged over time− deeply inherent in our civilization and cultural world that are based on justice. For instance, the verse of the Quran “O you who believe! Stand firmly for justice, as (true) witnesses to God, even if against yourselves, or your parents, or your relatives… So do not let your desires cause you to deviate from justice…” (4/135) is sufficient per se for the manifestation of a justice-oriented understanding.

For sure, terms and institutions take various forms in different geographies throughout the history. However, universal values such as justice, rule of law, fundamental rights and freedoms, pluralism and tolerance are the common heritage of the East and the West. It is a joint responsibility incumbent on all of us, notably on the supreme courts, to develop and pass to next generations a human-oriented understanding and practice of law that are in pursuit of such values.

Second, the principle of separation of powers is of utmost importance for securing rule of law and protecting fundamental rights and freedoms. As also stressed in the judgments of the Turkish Constitutional Court, the separation of powers, which means the vesting of the legislative, executive and judiciary powers of government in separate bodies, is one of the most important safeguards for fundamental rights and freedoms.

It must be nevertheless noted that the separation of powers cannot be construed as conflict of powers. As a matter of fact, the dilemma of “a duel or duet”, which appears at many stages of life, is also in question herein. The bodies exercising state powers in the name of the nation are in need of a duet, not a duel, in order to unitedly protect the nation’s rights and interests. Likewise, the Turkish Constitution sets forth that the separation of powers does not imply an order of precedence among the relevant bodies of the State but a civilized cooperation and division of functions.

Third and lastly, the judiciary must be independent and impartial to secure rule of law and fundamental rights. Otherwise, it is not possible for the judiciary to review the lawfulness of the acts and actions of the legislative and executive bodies and to protect individual rights and freedoms.

As noted in the Mecelle, Civil Code of the Ottoman Empire, “Judges must be fair and impartial towards the parties”. In other words, judges are obliged to treat parties in a just and equal manner, which requires them to be independent and impartial.

We have all experienced and observed how those who were devoid of free mind and conscience as well as who adopted, and acted on the basis of, views and opinions of another person have caused great damage to this country by also exploiting the religion. It is beyond a necessity, but rather constitutes an exigency, for the geography of Islam to learn from such experiences and to comprehend the vital significance of ensuring independent and impartial judiciary.

His Excellency Mr. President,

Esteemed guests,

Today we have broken new ground at this historical place. The constitutional courts/councils and supreme courts with equivalent jurisdiction of the Organization of Islamic Cooperation (OIC), having the highest number of member countries after the United Nations, have convened for the first time at a conference. Besides, guest participants from constitutional/supreme courts of non-member countries as well as representatives of certain international organizations are also here for joining us today.

In holding this Conference, we have intended to discuss the matters I mentioned above in general terms and potential solutions in this respect. The aim of the Conference is to build an exchange of information and experience among our courts, and notably to consider examples of good practices for the protection of rule of law and fundamental rights.

We hope that this Conference, the first initiative in its field, will also pave the way for forming a permanent platform. In this respect, a judicial forum to be established among our constitutional/supreme courts/councils will provide a significant opportunity for reflecting on

common legal matters, deliberating issues with respect to the functioning of the courts, as well as for sharing ideas and experiences. Indeed, finding permanent solutions to the problems we are facing in the realm of rule of law and fundamental rights is also a burden arising under heavy responsibility that is incumbent on us in our capacity as constitutional/supreme courts.

Taking this opportunity, I would like to express my gratitude to His Excellency our President, who is currently conducting the term presidency of the Organization of Islamic Cooperation, as well as to all participants and all persons who have contributed to this Conference. I wish that the Conference be successful and fruitful.

Ending my word, I would like to commemorate with mercy Mevlana Celaleddin Rumi, one of our soul-roots, on the occasion of his 745th reunion anniversary. I also commemorate with mercy and gratitude all our martyrs and Gazi Mustafa Kemal Atatürk, founder of the Turkish Republic, who passed away in this historical palace.

I would like to end my speech with Mevlana’s words: “Do you know how the worth of mankind is designated? By what he seeks... Man is worthy of whatever he searches for.”

Reiterating my wishes for a just world based on the rule of law and human rights, I would like to present my regards to every one of you.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

 

 

Distinguished Participants, Ladies and Gentlemen,

I would like to extend you my most sincere greetings.

 

I commemorate with grace and gratitude the memory of the late Alija Izetbegović, the great person whose memorial brought us together today at this meeting. May he rest in peace.

I would like to express my gratitude for participating in this conference held, on the occasion of the death anniversary of such a brilliant pole star, at the university where he studied. I would also like to express my gratitude towards those who have organized this conference, also for giving this opportunity to me.

There is no doubt that the name of Alija Izetbegović evokes a multi-dimensional person. A determined man of struggle, a brave commander, a fair and wise president… In my opinion, among all these features, it was first of all his being an intellectual that has made him unique and kept his thoughts alive.

We have gathered here to commemorate the 15th anniversary of the death of a thinker who has indeed shaped the thoughts and enlightened the minds of many people. Considering that the thought in the sense of meditation and reflection is rarely found today and that our world has become more and more scarce in this sense, it has become much more meaningful to commemorate “a thinker” in the full sense of the word.

At this point, I would like to mention Martin Heidegger, a philosopher whom Izetbegović also cited in his books. Heidegger, in his speech he delivered in 1955 on the occasion of the 175th birth anniversary of a composer who was also his fellow countryman, mentioned exactly this poverty of thoughts. He stated that the man did not think and even avoided thinking and that therefore, commemorative meetings were far from thoughts and even stood side by side with thoughtlessness.1 However, according to Heidegger, “Man is a thinking, that is, a mediating being”.2

Today, I would like to talk about the ideas developed on the concepts of justice, law and freedom by Izetbegović, who exactly meets the description made by Heidegger. Of course, I could not discuss all aspects of Izetbegović’s thoughts. Neither the time allocated to me nor my knowledge that I have obtained by reading Turkish and English translations of his books allows me to do so. Mine is an effort to take a modest and limited step into Izetbegović’s rich world of thought.

Let’s try to take this step into his rich contemplation world together.

1. Overview: Being a bridge between East and West

Distinguished participants,

You know the famous poem by the English poet Rudyard Kipling who was awarded the Nobel Prize in Literature. He says: “East is East, and West is West, and never the twain shall meet, Till Earth and Sky stand presently at God’s great Judgment Seat”.

Alija was the one who stood between East and West and wanted to bring them together. Here we are talking about a thinker who had a good grasp of the eastern and western civilizations and analysed both worlds’ spiritual and intellectual roots in detail. By merely reading his book “Islam between East and West”, we can see his knowledge over the ideas of the West from Ancient Greece to today on one hand, and the ideas of the East from the first era of Islam to today on the other. This book takes you on a mental journey from Aristotle to Heidegger, from Sophocles to Nietzsche, from Stoics to Frankfurt School and from Western classics to Russian literature, where concepts and institutions such as thought, art, history, civilization, technology and law are elaborated.

However, this book of Izetbegović is not a book on the history of thought or philosophy that intends to provide information to the reader. He has a thesis. In my opinion, the main thesis of Izetbegović that he defended in his all books and throughout his life is: “Yes, East is East, and West is West. However, the one who may bring them together is Allah, the master of both.” According to Izetbegović, it is also the Creator who gives the meaning to the moral conducts such as good and evil, responsibility and, in the last instance, to the human existence, as well as creating the history.

In fact, this is an exact reflection of the mission of bridge between the East and the West. Izetbegović sees this as a matter of identity for Bosnia-Herzegovina. This requires being European on one hand and protecting own values on the other. Two years before his death, during an interview with the late journalist Akif Emre, Izetbegović ended his words by mentioning this issue. He stated that “Just like Turkey, Bosnia-Herzegovina should be a bridge between East and West”, therefore “Bosnia-Herzegovina must lean on two powerful sources: the Western culture and the Eastern tradition” and that this constitutes “the basic issue that Bosnians and Turks must solve on their own”.3

2. Justice: “The greatest commandment”

In fact, Izetbegović, while putting forward this significant issue of identity, also explained its basic parameters at different times. Accordingly, in terms of political/social order, the basic concept of “justice” comes to the fore.

The master of the East and the West has ordered “justice” that will bring both of them together (Al-Aráf, 7/29; An-Nahl, 16/90). Justice, which is “the greatest commandment” in Izetbegović’s words, is “both a personal and a social virtue”. From this aspect, justice serves to discipline a person, both as a human being and as a citizen.4

Therefore, it can be said that the idea defended by Izetbegović throughout his life was the establishment of a fair political/legal order based on equality and freedom where diversities coexisted. Indeed, Izetbegović, like many intellectuals before him, strived for a fair world in which diversities would coexist.

Izetbegović has two basic characteristics that distinguish him from modern and post-modern thinkers such as Kant, Rawls, Derrida and Foucault who also defend that it is vital to have a healthy ontological relationship with “the other”. First, what lies behind Izetbegović’s opinions in this respect is his understanding of Islam that formed his identity and influenced his system of thought. Second, unlike other thinkers, Izetbegović, as a statesman, put his thoughts into practice to a certain extent.

Alija Izetbegović considers that “justice” manifests itself in a relationship with “the other”. He definitely places tolerance, a behaviour pattern that is learned and developed hardly rather than being an innate virtue, at the centre of this relationship. In fact, what is instinctive is intolerance”. For this reason, Izetbegović says that it takes years to adopt and demonstrate this behaviour. As a matter of fact, it has taken centuries to acknowledge the presence of a synagogue next to a mosque and a church next to it.5

Izetbegović adopted and defended “the concept of civilized life where always the sounds of Azan would be heard from the mosques and the sounds of bells from the churches”.6 In his speech that he delivered at the 49th Session of the UN General Assembly, Izetbegović stated: “What we call Bosnia is not merely a slip of land in the Balkans. For many of us, Bosnia is an idea. It is the belief that people of different religions, nations and cultural traditions can live together.”7

In addition, Izetbegović says that the spiritual root of this behaviour pattern that he developed in himself is Islam. During an interview with a German magazine in 1994, Izetbegović was addressed a question starting with the statement You are known as a Muslim partaking of European tolerance”. He corrected this phrase by telling “My tolerance is not of European but of Muslim origin. If I am tolerant, it is first and foremost as a Muslim, and only then as a European”.8 He did not refrain from explaining the historical reflections of this tolerance during the same interview. He said that indeed the Turks do not have a flexible understanding of administration; however, they did not destroy the temple of any religion in the Balkans during their centuries-long rule.

It is possible to find in “Ahidname”, written by Mehmed the Conqueror in 1463, the manifestation of the tolerance mentioned by Izetbegović. Sultan Mehmed, in this text, undertakes that no one will interfere with the Bosnian (Franciscan) clergy and their churches, they will live in the country safely and freely, and no one will interrupt, attack or hurt them, their lives, their goods, their churches and visitors coming abroad”.

Approximately 90 years after “Ahidname”, a tragic reflection of an understanding that was completely the opposite of this concept of tolerance occurred in Geneva in 1563. A Spanish man named Michael Servetus was accused of heresy due to his religious convictions and sentenced to death by burning slowly together with his books.9 Although the denial of religious truths (blasphemy) was not always punished with death by burning alive, it had been applied in many European countries, especially in England, for many years.10

However, it must be immediately noted that in all eras, there have been those who have raised the voice of their conscience against deadly fanaticism. Castellio, another religious scholar, issued a manifesto on tolerance in protest of the understanding that led to the burning of Servetus. Castellio criticized the attribution of all this savagery to Jesus in these words: “Oh, it is what a vile daring of people to lay such things that may only be the demon’s desire and invention on Jesus!”11

In addition, Izetbegović describes the basic philosophy of a fair social and political order as the principle of “being human and staying human”. This principle gives us a key for understanding our lives personally and existentially on one hand, and for living in peace together with those who see themselves different on the other. In other words, “being human and staying human” embodies two principles: one is moral and the other is legal/political.

The moral concept of “being human and staying human” refers, in political discourse, to the understanding of a democratic state of law. Izetbegović states: “In political discourse, it means that we will try to establish a state of law. This also means in practice that in this State no one will be persecuted for their religion or for their national or political belief. This is our most fundamental rule”.12

It is explicit that the moral and political principle, expressed as “being human and staying human”, entails a democratic state that is based on the rule of law and fundamental rights and freedoms.

3. Law: “Bipolar unity”

Law occupies a central place in the political opinion and practice of Izetbegović. He explains his legal understanding in his book Islam between East and West by criticizing Marxist and positivist approaches. In his article titled “On the Jewish Question”, Marx considers human rights that are supposed to be inherent in all human beings by the virtue of human dignity as the rights of egoist middle-class person who has been isolated from society. Jeremy Bentham similarly regards these rights as metaphysical nonsense.13

Izetbegović does not endorse the Marxist approach to law as the will of dominant class, reflection of political awareness, and political measures. In his view, law is objective, involved in politics and society and totally directed to this world. But at the same time, it includes norms and ethics. That is to say, law is a “bipolar unity” having both political and moral aspects.14

In describing the bipolar unity, he refers to the notions of “physical” and “moral”. In Marxism, there is no room for law since “law is the opposite of physics”. A physics-based understanding in which “certainty” is sought in every field does not recognize “should” but only “is”. Izetbegović expresses the relationship between state and law as follows: “The state and the government are the expression of physical power, the courts and law of moral power. To recognize that the moral power of the courts and law can balance the physical power of the state means to recognize the supremacy of an idea over things and mind over matter”.15

On the other hand, he reveals the objective of law in light of the findings of Hegel on Roman’s understanding of law. In Hegel’s view, Romans “introduced an extrinsic legal principle, free of conscience and heart”.16 Izetbegović found this expression “contradictory” and accordingly found out: Law is never extrinsic but it is inherently the very idea of justice that it strives for”.17

According to Izetbegović, the most significant function of law is to restrict the government with a view to protecting fundamental rights and freedoms. In his words, “Law steps in when and where government is subject to restriction.”18 Therefore, Izetbegović considers democracy as a regime which is bound by the principle of rule of law. Accordingly, democracy is not the unlimited governance of the majority but requires the restriction of the will of the majority by law.19

In addition, another requisite of the principle of rule of law is to comply with court decisions. In his speech delivered in 1990, Izetbegović denounced the former Yugoslav administrators for violating the Constitution as they refused to comply with an annulment judgment of the Constitutional Court. According to him, to enact a statute which is unconstitutional is not the same –since it may result from lack of knowledge– with to reinstate the original statute in spite of the Constitutional Court’s judgment finding it unconstitutional.”20

These words uttered by Izetbegović explain that, even in oppressive regimes, law and its implementers, namely courts, have the function of protecting those who are in the minority and seen as the other”. Law entails that those who are accepted as the other” be treated fairly. For this very reason, Izetbegović mentions of a very significant finding: “The touchstone of the legality of any social system is the way it treats its opponents and minorities.”21

4. Freedom: “what renders our lives meaningful”

The most significant manifestation and concrete appearance of justice and law is the fundamental rights and freedoms. The idea that human being has, merely by his very nature, rights and freedoms is the common heritage of the East and West. Mehmet Tahir Münif Pasha, who held office at several institutions such as the Court of Appeal and the Ministry of Education in the last period of the Ottoman Empire, finely expressed the universality of human rights in his book titled Philosophy of Law. He declared that “Natural law is what is inherent in the nature of human being. It cannot be said that a fact prevailing a thousand years ago must be changed today. In the same fashion, it cannot be said that something prevailing in Europe must be different in Asia, this is so because wisdom does not belong to a single territory or region; wisdom is everywhere.”22

Indeed, for instance, different philosophers discussed freedom of belief and thought from different stand points. In A Letter Concerning Toleration written by John Locke in 1685, he defended freedom of belief by making a reference to the Bible. He argued that he could not find in any part of the New Testament “that the Church of Christ should persecute others, and force others by fire and sword to embrace her faith and doctrine.”23

Alija argues that the liberty of opinion and belief is primarily the right to have a different opinion and a different belief”.24 In his lecture delivered in 1994, he justified the liberty of belief, opinion and expression by referring to the Quran. He replied the question We are in wartime. Why don’t you apply censorship?as follows: “I will never stand up for such bans after all that I have been through… It is not only a matter of principle but a matter of productivity, as well. I believe that bans and pressure have no role in convincing people”. He further reminded the person, asking him that question, of a verse in the Quran “There is no compulsion in religion” and accordingly stated that, if interpreted broadly, this would mean “there cannot be any pressure on beliefs and thoughts”.25

At this very point, considering the verse There is no compulsion in religion” reminded by Izetbegović, regard must be paid to the crucial link established by him between freedom and moral. In his point of view, what renders the human existence meaningful is the fact that man is bound and ordered to make a choice since all eternity. In other words, what lies at the root of existence is freedom.

Izetbegović expressed the way how human was obligated to freedom as follows: “From the moment of the expulsion from paradise, human could not rid himself of his freedom, nor escape from the drama, to be as innocent as an animal or an angel. He has to choose, to use his freedom, to be good or evil; in one word, to be man. This ability to choose, regardless of result, is the highest form of existence possible in the universe.”26

Alija defines the link between freedom called by him as “what renders our lives meaningful”27 and morality through a concise statement: “Dictatorship is immoral even when it prohibits sin, democracy is moral even when it allows it. Morality is inseparable from freedom. Only free conduct is moral conduct. By negating freedom, and thus the possibility of choice, a dictatorship contains in its premises the negation of morality. To that extent, regardless of all historical apparitions, dictatorship and religion are mutually exclusive.”28

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

 

 


1 Martin Heidegger, Discourse on Thinking, Translated by J. M. Anderson and E.H. Freund, (New York: Harper Books, 1956), p.45.

2 Ibid., p. 47.

3 A. Izetbegović, Konuşmalar (Speeches), 19th Edition, Translated by F. Altun and R. Ahmetoğlu, (İstanbul: Klasik Yayınları, 2015), p.253; and A. Izetbegović, Geleceği Yenilemek (To Renew the Future), Compiled by A. Öz, 3rd Edition, (İstanbul: Pınar Yayınları, 2018), p.123.

4 Izetbegović, Doğu Batı Arasında İslam (Islam between East and West), 3rd Edition, Translated by S. Şaban, (İstanbul: Klasik Yayınları, 2015), pp. 286- 287.

5 Izetbegović, Konuşmalar, p.49.

6 Izetbegović, Köle Olmayacağız (We will not be Slaves), Translated by R. Ademi, 4th Edition, (İstanbul, Fide Yayınları, 2018), p. 179.

7 Ibid., pp. 204-205.

8 Izetbegović, Inescapable Questions: Autobiographical Notes, (Leicester: Islamic Foundation, 2003), p. 174.

9 S. Zweig, Castellio Calvin’e Karşı ya da Bir Vicdan Zorbalığa Karşı (The Right to Heresy: Castellio against Calvin), Translated by M. Topal and K. Koçak, (İstanbul: İletişim Yayınları, 2018), pp.144-147.

10 H.L.A. Hart, Law, Liberty and Morality, (Oxford: Oxford University Press, 1963), p.44.

11 Zweig, Castellio Calvin’e Karşı, p.173.

12 Izetbegović, Konuşmalar, p.75

13 Izetbegović, Doğu Batı Arasında İslam, p. 298. On the same issue, see also Z. Arslan, “Taking Rights Less Seriously: Postmodernism and Human Rights”, Res Publica, 5 (1999): 195-215, pp. 197-199.

14 Izetbegović, Doğu Batı Arasında İslam, p. 302.

15 Ibid., p. 305.

16 Izetbegović, Özgürlüğe Kaçışım: Zindandan Notlar (My Escape to Freedom, Notes from Prison), 21st Edition, Translated by H. T. Başoğlu, (İstanbul: Klasik Yayınları, 2015), p. 171.

17 Ibid., p. 172.

18 Izetbegović, Doğu Batı Arasında İslam, p. 299.

19 Izetbegović, Inescapable Questions: Autobiographical Notes, p. 68.

20 Izetbegović, Köle Olmayacağız, p. 14.

21 Izetbegović, Doğu Batı Arasında İslam, p. 299.

22 Münif Pasha, Hikmet-i Hukuk (Philosophy of Law), Compiled by G. Doğan, (Konya: Çizgi Kitabevi, 2016), § 2, p. 22.

23 J. Locke, Hoşgörü Üstüne Bir Mektup (A Letter Concerning Toleration), Translated by M. Yürüşen, (Ankara: Liberte, 2004), p. 36.

24 Izetbegović, Doğu Batı Arasında İslam, p. 299.

25 Izetbegović, Tarihe Tanıklığım (Me as a Witness to History), p. 62.

26 Izetbegović, Doğu Batı Arasında İslam, p. 77.

27 Izetbegović, Konuşmalar, p. 235.

28 Izetbegović, Özgürlüğe Kaçışım, p. 78.

29 Izetbegović, Köle Olmayacağız, p. 157; Izetbegović, Konuşmalar, pp. 71-72.

30 Izetbegović, Konuşmalar, p. 75.

 

His Excellency Mr. President,

Esteemed Guests,

I would like to welcome you to the ceremony held on the occasion of the 56th Anniversary of the Constitutional Court of Turkey, and I would like to extend you my most sincere greetings.

Among us today are the President of the Venice Commission, the Secretary General of the Conference of Constitutional Jurisdictions of Africa, as well as Presidents and/or Justices of constitutional courts of twenty countries. I would like to further thank them for joining us today in celebrating such a significant event.

The theme of this year’s symposium has been determined as the evaluation of the five years of the individual application. Through the symposium, we want to discuss the individual application mechanism in Turkey thoroughly, and in a sense, we want to make a stock taking of the five years’ experience. Therefore, I dedicated my speech, to a considerable extent, to this subject. However, before elaborating on this subject, I deem it useful to provide an insight on the conceptual and historical background of the constitutional justice, which also includes the individual application.

Supremacy of the constitution is the underlying principle of the constitutional justice. Accordingly, constitutions are a body of binding rules located at the top of the hierarchy of norms. The constitutional provision that “laws shall not be contrary to the Constitution” reflects the principle of supremacy of the constitution.

Constitutions, as a body of superior and binding rules, have two basic functions; first, to safeguard fundamental rights and freedoms of individuals, and, second, in the pursuit of this goal, to map out the governmental power, that is, to set the limits of state authority.

These two functions of constitutions particularly require the independence of judiciary from legislature and executive. At this point, the relation of judiciary with legislature and executive, which form the sphere of politics, is of vital importance. The establishment of the relation between judiciary and politics on a sound basis and its maintenance depend on ensuring judicial independence and impartiality, on one hand, and judicial abstention from substantive review and activism by observing the constitutional and legal boundaries, on the other.

The objective of constitutions to safeguard fundamental rights and to restrict the state authority to that end, along with incorporation of the principle of supremacy of the constitution, has instituted the constitutional jurisdiction in the next step. Constitutional courts are established to put the principle of supremacy of the constitution into action effectively. In other words, constitutional courts are intended as institutions empowered to oversee whether the governmental power map is infringed, with a view to protecting constitutional rights and freedoms.

The establishment and spread of constitutional courts historically corresponds to the post World War II era to a great extent. The underlying reason behind this progress was extensive human rights violations before and during the war. Therefore, the establishment of constitutional courts at national level and the signing of the European Convention on Human Rights as well as the establishment of the European Court of Human Rights at the regional level were the outcomes of the reaction against systematic violations of human rights resulting in a tragedy.

In spite of being established in a different historical context and with a different mission, the Turkish Constitutional Court currently carries out its constitution-assigned duties, namely constitutionality review, examination of individual applications, and the other duties. In the context of these constitutional duties, raison d’être of the Court is to safeguard individuals’ constitutional rights and freedoms.

His Excellency Mr. President,

It would be appropriate to classify the fifty-sixyear history of the constitutional jurisdiction in Turkey into two parts as the first fifty years and the last six years. Indeed, the individual application mechanism introduced into the Turkish legal system with the constitutional amendment of 2010 —and being in force since 2012— has triggered a new era in our constitutional jurisdiction. In this new era, the Turkish Constitutional Court has adopted a “rightoriented” approach based on fundamental rights and freedoms and on the notion “let man flourish and the state will also flourish”.

Indeed, this paradigm shift reflects the constitutionmaker’s will as well. As indicated in the Report of the Constitutional Committee on the constitutional amendment of 2010, with the introduction of the right to an individual application, the Constitutional Court, which had been perceived as an institution “protecting the State and the prevailing system with a statist understanding”, would be regarded as a body “[from then on] rendering judgments that promote and safeguard freedoms”.

I would like to note with pleasure that the individual application mechanism has today become a fundamental instrument of a paradigm defending freedoms in the direction pointed by the constitution-maker. On the other hand, the Court has faced with a heavy workload through the individual application mechanism to the extent that could not be compared with those of other constitutional courts with similar jurisdictions, yet it has successfully overcome this workload.

The Court has continued delivering judgments with a “right-oriented” understanding even during the state of emergency. Moreover, the Court has accomplished to deal with the excessive number of applications lodged as a result of the state of emergency. In my speech delivered at this hall last year, I stated that we had faced with an overwhelming workload following the coup attempt of July 15th; and that we were in the process of reducing this work-load as well as rendering leading judgments.

In this context, in its leading judgment of 20 June 2017, the Constitutional Court primarily noted that it has the authority to examine the alleged violations suffered due to the measures taken when the extraordinary administration procedures are in force. This judgment also laid out the basic principles as to the examination of individual applications relating to the state of emergency under Article 15 of the Constitution. The Constitutional Court thereby established, for the first time, basic parameters of the individual application mechanism in cases of a state of emergency.

Developing these principles in the subsequent applications concerning detained judges and prosecutors, journalists, and other occupational groups, the Constitutional Court has delivered its leading judgments to the most extent. Besides, the Court adjudicated many of the applications lodged by the members of parliament who were detained on remand. It is obvious that the preparatory work of such leading and principle judgments requires a greater effort and therefore much longer time compared to the other judgments.

At the same time, the number of individual applications had exceeded 100.000 by this time last year. Indeed, thanks to the measures employed by the Court, the number of pending applications has been substantially decreased. Following the July 15th, the Court demonstrated a substantial effort and has concluded approximately 103.000 individual applications out of 120.000 in total. Thus, 86% of the individual applications lodged so far have been adjudicated by the Court during the state of emergency. There are currently 39.000 pending individual applications before the Court, and approximately 9.000 of them concern the measures taken under the state of emergency.

Besides concluding a great number of individual applications relating to the emergency measures in a short time, the Court has also continued examining individual applications filed before the emergency period. In this scope, the Court delivered violation judgments in many human rights issues including but not limited to the right to life, the right to a fair trial, the right to respect for private life and the freedom of expression.

His Excellency Mr. President,

The individual application is a novel mechanism in our country. Five years’ experience of this practice is of course important but does not suffice for proper understanding as well as duly and effective implementation of this mechanism.

This novel mechanism has also brought the Constitutional Court’s relation with the inferior courts to a different dimension. The requirement of exhaustion of ordinary administrative and legal remedies has, in practice, caused this mechanism to become a remedy which is resorted, to a large extent, against courts’ decisions.

This situation leads to certain problems from time to time despite the implementation of the “subsidiarity principle” in a careful manner. Let me state right away that these problems are not peculiar to us, and similar situations are experienced by other countries adopting the individual application mechanism. Further, while introducing this remedy, the constitution-maker also foresaw that such kind of problems might have taken place; however, it noted that the individual application mechanism deriving from a social demand was a necessary institution which would improve and find its own course in progress of time.

As we have previously stated on different occasions, this mechanism has not transformed the Constitutional Court into an appellate authority. When examining applications, the Constitutional Court does not review lawfulness, appropriateness or fairness of decisions of inferior courts. The Constitutional Court’s examination is limited to the determination as to whether a fundamental right safeguarded by the Constitution has been violated or not and, if violated, how it would be redressed.

As provided in the Constitution, the issues to be considered in appellate review cannot be examined within the scope of the individual application. Moreover, in cases where a violation is found, the law provides that no decision can be rendered on the merits of the case when ordering the required steps for redress of the violation.

In its judgment of 15 March 2018, the Constitutional Court also made an assessment as to how the ban of “appellate review” and “substantive review” should be interpreted. The Constitutional Court considers that this ban does not relate to the constitutional safeguards concerning fundamental rights but to the allegations of unlawfulness falling outside the scope of the individual application. Accordingly, “an assessment based on the safeguards provided in the Constitution as to whether the fundamental rights and freedoms falling into the scope of individual application have been violated or not cannot be regarded as an assessment of an issue to be considered in ‘appellate review’ or as ‘a substantive review’”.

In the same judgment, it was also noted that otherwise, the Constitutional Court’s power and duty to adjudicate individual applications would not be functional, and this would not be in conformity with the objective of this mechanism as an effective remedy in protecting fundamental rights.

At this point, the binding effect and execution of the Constitutional Court’s judgments in the individual application arise as a matter of concern that needs to be addressed. As also underlined in the abovementioned judgment of the Court, pursuant to Article 153 of the Constitution, “the judgments of the Constitutional Court shall be binding on … the legislative, executive and judicial bodies, administrative authorities, and natural and legal persons.” This is also a natural consequence of Article 11 of the Constitution in which the binding effect and supremacy of the Constitution are enshrined.

This provision, as distinct from Article 138 thereof that generally provides the binding effect of the court judgments, states that in addition to the legislative and executive bodies and administrative authorities, the judgments of the Constitutional Courts are binding on “judicial authorities” as well. Therefore, non-execution of the Constitutional Court judgments cannot be imagined in the presence of explicit constitutional provisions.

Indeed, the individual application mechanism can be considered as an effective remedy only if a found violation and its consequences are redressed. Undoubtedly, the discretionary power as to how the violation and its consequences will be redressed belongs, in principle, to the public authorities and especially to the inferior courts at first place. However, in some exceptional cases, the nature of the violation found may leave only one option for the authorities to redress the consequences of the violation. In such cases, the Constitutional Court explicitly points out the measure for redressing the violation and its consequences, and the relevant authority employs that measure.

His Excellency Mr. President,

The Constitutional Court also takes into consideration the European Convention on Human Rights and its binding interpretation by the European Court of Human Rights when reviewing whether the constitutional rights and freedoms have been violated or not. As is known, Turkey, one of the founders of the Council of Europe, had been involved in the preparation process of the European Convention on Human Rights and was among the first countries to sign the Convention in 1950.

Taking into consideration the Convention and the case-law of the European Court of Human Rights in the individual application is not merely a preference but rather a constitutional requirement for at least three reasons.

First, in our country, the European Convention on Human Rights has been considered in drafting the constitutional provisions regarding the fundamental rights and freedoms, since the Constitution of 1961. This is especially the case for the constitutional amendments of 1995, 2001, 2004 and 2010. For example, the single-sentence stated reason of the amendment made in 2001 to Article 13 of the Constitution of 1982, which sets out the regime of restriction of fundamental rights and freedoms, is that the provision “being rearranged in accordance with the principles set forth in the European Convention on Human Rights”. Moreover, Article 15 of the Constitution, which lays out the principles and safeguards concerning the restriction of fundamental rights in times of emergency, almost repeats Article 15 of the Convention.

Second, Article 148 of the Constitution makes a clear reference to the European Convention on Human Rights in determining the rights and freedoms that may be subject to the individual application. Accordingly, the individual application is not a remedy applicable to all constitutional rights, but to the rights and freedoms falling into the common protection area of both the Constitution and the European Convention on Human Rights.

The third and practical reason for taking into consideration the case-law of the European Court of Human Rights is the function laid by the constitutionmaker on individual application. Indeed, both in the justification of the amendment made to Article 148 of the Constitution and in the Report of the Constitutional Committee it is clearly stated that the function of this mechanism is to “reduce the number of applications [to be lodged with the Strasbourg Court] and resolve the matters by means of the domestic law”.

The implementation of this remedy over five years demonstrates that this aim has been achieved, and, following the launch of the individual application to the Constitutional Court, there has been a significant decrease in the number of applications lodged with the European Court of Human Rights, as well as in the number of violation judgments against our country. Besides, thanks to introduction of this mechanism, during the emergency period in the aftermath of the July 15th more than 100.000 applications have been brought before the Constitutional Court, either concluded or still pending, without resorting to the Strasbourg Court.

Thus, the individual application has made a significant contribution to the development of the democratic state of law in Turkey by enabling the redress of violations suffered by individuals without applying to an international court.

All these demonstrate that the individual application is a great achievement with respect to the protection of fundamental rights and freedoms. I have no doubt that the future generations will be grateful to those who introduced this mechanism into the constitutional system in 2010 and to those who contributed to its successful implementation.

His Excellency Mr. President,

A major part of the violation judgments rendered by the Constitutional Court relates to the right to a fair trial. This points out how essential an effective judicial system is in order to ensure the benefit expected from the individual application.

In this last part of my speech, I want to briefly mention the three virtues an ideal judicial system must have. An effective judicial system is based on three basic pillars: mind, morals and justice. Indeed, neither a judiciary nor a civilization can be envisaged without these notions.

The mind is one of the most important features that distinguish human being from other living creatures. The mind, which gives the ability to think and comprehend, provides human being with the knowledge of things. The mind requires responsibility, and therefore independence. For exactly this reason, Kant formulated the motto of the enlightenment as “dare to know/have the courage to use your own understanding”. As a matter of fact, those who cannot use their minds become the means and captives of the minds of others. In this context, the judicial mind entails the existence of free and independent consciences.

According to Ibn Rushd, good morals come first among the characteristic of an ideal judge. A judge with a bad moral character cannot act justly. Morality requires both insight and responsibility, which naturally necessitates the freedom. Those who do not have freedom do not have responsibility, either. Therefore, as the deceased Alija Izetbegović stated, “Morality is inseparable from freedom. Only free conduct is moral conduct.”

In addition, freedom is also the distinctive feature of human dignity that constitutes the basic virtue of human and moral existence. Mehmet Tahir Münif Pasha, who lived in the last period of the Ottoman Empire, describes the relationship between freedom and human dignity very well in his book Hikmet-i Hukuk (Philosophy of Law) published in 1884. According to Münif Pasha, “Freedom is the witness of human dignity; if there is no liberty, there will be no dignity; the acts of a man who is deprived of his liberty are not his own acts.”

Justice is the most fundamental value upon which the earth and the sky are built. “Justice”, as again stated by Alija, “is one of those few things that need no proof. To prove the need for justice and fairness is either superfluous for those who have a heart or useless for those who do not.”

Therefore, we must talk about what justice requires, rather than the need for justice. Justice, in the simplest term, requires to provide everyone what they are entitled to and what they deserve.

In addition, justice is not a discourse, but a matter of action. Furthermore, it does not suffice “to provide everyone what they are entitled to and what they deserve” in establishing justice but it must also be known and visible that it has been done so. This is so because the observation and expression of justice strengthen the confidence in the State, on one hand, and in the judiciary that is in charge of dispensing justice, on the other.

His Excellency Mr. President,

Despite all difficulties and traumas that the judicial system has encountered in the aftermath of the coup attempt of the July 15th, 2016, the functioning of the judicial system, and in particular the functioning of the individual application mechanism, is valuable in itself. Certainly, as is also the case with other institutions, erroneous judgments may be rendered in the judiciary. However, such mistakes will be corrected within the judicial system, and indeed, they are being corrected.

Taking this opportunity, I extend my appreciation to all members of the judiciary who serve devotedly and deliver judgments “on behalf of the Turkish Nation” in accordance with the Constitution, and I wish them success in this onerous and honourable mission. I would also like to extend my special thanks to our Court’s vice-presidents, justices, rapporteurs and assistant rapporteurs as well as all personnel at all levels for all their devoted efforts.

On this occasion, I would like to commemorate our late retired Justice and President of the Court of Jurisdictional Disputes, Mr. Ahmet Akyalçın. May God bless him and our other deceased members. I also wish good health and prosperity to all members of the Court.

Finally, I wish that the symposium that starts this afternoon on the theme of the assessment of the five years of the individual application be fruitful and successful. I would like to express in advance my thanks to all distinguished academicians and members of the judiciary who will contribute to this symposium with their presentations.

His Excellency Mr. President,

Esteemed Guests,

Once again, I would like to express my gratitude for your participation in our anniversary and for your attention. I extend my wishes of health, peace and prosperity to all of you.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

Introduction

Democracy, rule of law and human rights are the most fundamental principles of a state in today’s world. Constitutions are in place to establish a state mechanism based upon those principles and to ensure its sound functioning. Accordingly, the political model embracing those principles may be formulated as “democratic state of law based on human rights”.

Based on the judgments of the Turkish Constitutional Court (TCC), a democratic state of law may be defined as a state where the political power is restricted to protect fundamental rights and freedoms and the rulers, as well as the governed, are bound by the rule of law.

In the broadest sense, the role of constitutions in protecting democratic state of law are two-fold: first, they provide the necessary legal framework for functioning of a sound democratic order through the exercise of fundamental rights in normal times. Second, they prescribe special procedures and allow greater restriction of fundamental rights when a substantial threat exists against the democratic order.

The role of constitutional courts is to interpret and apply these constitutional provisions in concrete cases. Indeed, the Turkish Constitutional Court’s stance in the recent years very well portrays these two basic constitutional patterns. After introduction of individual application to the Turkish legal system, the Constitutional Court delivered landmark decisions concerning the exercise of fundamental rights.

On the other hand, during the state of emergency following the heinous attack of July 15 coup attempt to democracy and rule of law, the Court’s focus shifted to the emergency provisions of the Constitution which aim to strike a delicate balance between protecting the democratic constitutional order and basic rights and liberties of individuals.

Now let me explain these roles of the Constitutional Court in further details.

           1. The Constitutional Court as the bulwark of rights

In Turkish constitutional system, there are two legal means to protect constitutional rights and liberties. First is the constitutional review of laws and decree laws. From the very beginning of the establishment of the Constitutional Court in 1962, the Turkish Constitution provided the exception of unconstitutionality and annulment action.

The second constitutional tool to protect fundamental rights is called individual application or constitutional complaint which provides individuals with the chance to have direct access to constitutional justice.

Leaving aside the issue of judicial review, today I would like to concentrate on the implementation of the individual application system.

Individual application was introduced by the constitutional amendment of 2010. This was a significant step in Turkey towards the development of democratic rule of law based on human rights and enhancing the standards of fundamental rights. A paragraph was added to Article 148 of the Constitution, enabling that “everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities”.

Upon the introduction of the individual application mechanism in our legal system, a new era started in the protection of the constitutional rights and freedoms. Since 23 September 2012, the date when the Constitutional Court started receiving individual applications, it has assumed a direct and active role in protecting and thereby enhancing democratic rule of law and human rights.

The Court has rendered around 2450 judgments finding violations of human rights. Indeed, some of those judgments are of particular concern on our discussion topic today. Those judgments relate to certain rights that are significant to maintaining democratic order. In other words, certain rights such as freedom expression and the right to be elected are of operational values in a democracy. In this respect, the Constitutional Court emphasized in its judgments that the freedom of expression is a sine qua non element of a democratic society and that this freedom is a requirement of pluralism, tolerance and broad- mindedness.

I would like to briefly mention some of the important judgments that the Court found violation. Those judgments indeed received great attention and sparked public debate.

For example, in the much-highlighted Twitter and YouTube cases, the Court found violations of freedom of expression. The Court received individual complaints after the administrative authorities had blocked the access to Twitter and YouTube. The Court based its analysis on the premise of rule of law and found that relevant law failed to meet the certainty and foreseeability criteria for restriction of human rights, also emphasizing the crucial role of social media in democratic societies as a form of exercise of freedom of expression (1).

The Court also found a violation of freedom of expression concerning the detention of two well-known journalists, much to the outrage of public and political opinion. The Court has emphasized that the detention based on merely journalistic activities constituted a violation of both the right to personal security and freedom of expression (2).

Also in reviewing the case of applicants who were detained on remand and thereafter elected to the Parliament, the Court emphasized that the public interest inherent in the right to be elected and to engage in political activities must be taken into account when reviewing the length of detentions. In those applications, the Court found a violation of the right to liberty of person as well as the right to be elected on the ground that the detentions exceeded the reasonable time. The Court thereby contributed to the advancement of political rights in the broad sense (3).

Another significant judgment relates to headscarf, which had been a major human rights issue in Turkey until recently. The applicant, who was a lawyer, demanded to participate in a hearing with her headscarf as she wears it in her daily life. The judge of the first instance court did not permit her to participate in the hearing by referring to the judgments of the Constitutional Court and the European Court of Human Rights. The applicant then filed an individual complaint with the Constitutional Court. The Court concluded that the prevention of the lawyer from participating in the hearing due to wearing headscarf violated freedom of religion and conscience and the prohibition of discrimination (4).

           2. The role of the TCC in state of emergency

It was unfortunate that at a time of great progress in the advancement of human rights, Turkey experienced the heinous and bloody coup attempt of July 15, which constituted a heavy threat against the existence of the Nation and State.

This violent attack was an assault on the constitutional democracy and rule of law. As the Council of Europe Commissioner for Human Rights has stressed in his Memorandum, “the success of (coup attempt) would have marked the end of democracy in Turkey and the defeat of all the values underlying the Council of Europe” (5). Likewise, the Venice Commission indicated in its opinion on emergency decrees that “[a] military coup against a democratic government, by definition, denies the values of democracy and the rule of law” (6).

The Republic of Turkey responded to this deadly attack swiftly. The government declared state of emergency and derogated from the European Convention on Human Rights.

           2.1. Constitutional review of emergency decrees

The state of emergency raises a great deal of constitutional issues. The most important of them is the issue of judicial/constitutional review of emergency decree laws issued by the Council of Ministers, meeting under the chairmanship of the President of the Republic.

Under normal circumstances, the Constitutional Court shall examine the constitutionality of decree laws. However, Article 148 of the Turkish Constitution stipulates that decree laws issued during a state of emergency, martial law or in time of war shall not be brought before the Constitutional Court alleging their unconstitutionality.

Within this scope, at the end of the last year, the Court held unanimously that it did not have the jurisdiction to review the decree-laws issued under the state of emergency. The Court pointed out that decree laws must be subject to judicial review in a democratic state of law, but the current constitutional provisions is binding on the Court itself (7).

However, it must be noted that under the current Constitution the emergency decree laws are subject to constitutional review following their ratification by the Parliament. As a matter of fact, actions for annulment of certain decree-laws which had been issued under the state of emergency and subsequently enacted upon being ratified by the Grand National Assembly of Turkey were filed with the Constitutional Court.

           2.2. Constitutional complaints in state of emergency

The effect of the emergency measures on constitutional complaint had been drastic. First, the complaints to the Constitutional Court skyrocketed following the July 15 coup attempt. The day before the coup attempt, the number of pending individual applications before the Court was about 22.500. After the emergency measures were put in place, the numbers of applications reached over 107.000 in a year. Accordingly, the Court has received about 80.000 applications relating to the emergency measures. Those applications practically paralyzed the functioning of the individual application system, considering that even just reception and registration of them required a tremendous volume of work.

Second, the Constitutional Court faced a formidable challenge to maintain its well-established rights based approach for protecting constitutional rights and liberties. This is an inevitable result of the shift from default human rights protection regime of Article 13 of the Constitution to the emergency regime of Article 15. During the state of emergency, the Court adjudicates complaints relating the emergency measures under Article 15, which allows greater limitation of human rights and freedoms.

Article 15 of the Constitution, an almost identical counterpart of Article 15 of the European Convention on Human Rights, reads that in a state of emergency “the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures may be taken, to the extent required by the exigencies of the situation”.

In its pioneering judgment, delivered in July this year, the TCC has stressed that the public authorities have a very broad margin of appreciation as to the adoption of policies and means to eliminate the dangers led to the state of emergency, but they have no unlimited power. It is the task of the TCC to review the emergency measures such as detentions in light of constitutional principles enshrined in the Constitution.8

The Court pointed out that any interference with constitutional rights in a state of emergency must meet three criteria set by Article 15. In other words, the TCC applies a three-level test in a constitutional complaint if it is related to the emergency measures.

First of all, an emergency measure must not interfere with non-derogable, absolute rights and liberties stated in Article 15 of the Constitution. Secondly, the interference or restriction must not violate the obligations under international law. Thirdly, any restriction on derogable rights and liberties must be required by the exigencies of the situation. The last level of the test under Article 15 involves the application of well-known constitutional principle of proportionality.

In short, the Constitutional Court makes a great effort to handle these cases in due time, as well as other non-emergency complaints.

Conclusion

In conclusion, constitutions and constitutional courts play very crucial role in upholding democratic state of law during normal and exceptional times. Indeed, constitutional courts assume a very difficult yet critical role in states of emergency. During such times, it is upon constitutional courts to undertake the endeavor for protecting fundamental rights while respecting the extended authorities of executive branch under emergency provisions to protect constitutional order.

Thank you for your attention!

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

 

 


(1) Yaman Akdeniz and others, App. No: 2014/3986, 2/4/2014; Youtube LLC Corporation Service Company and others [Plenary],App. No: 2014/4705, 29/5/2014.

(2) Erdem Gül and Can Dündar [Plenary], App. No: 2015/18567, 25/2/2016.

(3) Mustafa Ali Balbay, App. No: 2012/1272, 4/12/2013; Mehmet Haberal, App. No: 2012/849, 4/12/2013.

(3) Mustafa Ali Balbay, App. No: 2012/1272, 4/12/2013; Mehmet Haberal, App. No: 2012/849, 4/12/2013.

(4) Tuğba Arslan [Plenary], App. No: 2014/256, 25/6/2014.

(5) Memorandum on the human rights implications of the measures taken under the state of emergency in Turkey, CommDH (2016)35, Strasbourg, 7 October 2016, par. 4

(6) Opinion on Emergency Decree Laws Nos. 667- 676 Adopted Following the Failed Coup of 15 July 2016, CDLAD (2016)037, Strasbourg, 12 December 2016, par. 7.

(7) E.2016/166, 2016/159, 12.10.2016; E.2016/67, K. 2016/160, 12.10.2016.

(8) Aydın Yavuz and others [Plenary], App. No. 2016/22169, 20/6/2017

Honorable President of the Conference of the Constitutional Jurisdictions of Africa (CCJA), Honorable President of the Constitutional Council of Algeria, Distinguished Colleagues,

Ladies and gentlemen,

It is a great pleasure for me to participate in this seminar and address such eminent participants.

I would like to express my gratitude to Chief Justice Mogeung Mogeung and President Mourad Mecelli for their kind invitation and warm hospitality. I would like to thank and congratulate Mr Mousa Laraba and his team for the successful organization of the seminar.

I also want to state that it is a source of great honour and pleasure for me and my colleagues that the Turkish Constitutional Court has recently acquired the status of an observer of the CCJA.

           1. Aim of Constitutional Justice

Let me begin with a simple question. Why is it so important for individuals to have access to constitutional justice? The answer to this simple question lies in the purpose of constitutional justice itself.

The aim of constitutional justice is to uphold the principles of supremacy of constitution, rule of law and protection of human rights. Even though the form of constitutional means and institutions may vary depending on historical, political and cultural characteristics of countries, the gist of those principles is universal.

In fact, it is the concept of human dignity that lies at the root of the constitutional values such as rule of law, democracy and human rights.

As well known, Immanuel Kant’s moral philosophy has played a significant role in shaping modern idea of human rights. His categorical imperative that “you should treat man as an end, not only as a means” refers to the importance of human dignity. Today we believe that we are entitled to rights, simply because we are human beings.

Centuries before Kant, a philosopher by the name Mawlana Celaluddin-i Rumi who lived in Konya, a province in the middle Anatolia, declared that “the aim of the creation of universe is man”.

This was the expression of human being as the “eşref-i mahlukat” (the most dignified creature) in the Islamic discourse. It is revealed in Quran that “We have created man in the best composition”. Of course similar expressions may be found in Old and New Testaments.

What I am trying to say is that our aim is the same, that is to protect and promote human dignity as formulated in the form of basic rights and freedoms. The constitutional and supreme courts or councils operate to realise this aim through various means such as concrete and abstract review of constitutionality and individual or constitutional complaint.

           2. Turkey’s Experience in Individual Access to Constitutional Justice

Ladies and gentlemen,

After these introductory remarks, I want to talk over the Turkish experience in individual access to constitutional justice which is the main theme of this seminar.

The Turkish Constitution provides two legal means for individuals to have access to constitutional justice. First is the exception of unconstitutionality, which is also known as concrete review of constitutionality. The other legal means is individual application, also known as constitutional complaint. While the concrete review involves an indirect access, the constitutional complaint provides a direct access to the constitutional justice.

Today, I will first explain the main features of exception of unconstitutionality in the Turkish legal system. Then I will briefly touch upon the individual application or constitutional complaint which was introduced to our system by the 2010 constitutional amendment. As both concrete review and constitutional complaint aim to facilitate individual access to constitutional justice, I will draw comparisons between these two legal means based on the Turkish experience.

           2.1. Concrete review of constitutionality in Turkey

The constitutional review of laws was introduced into the Turkish legal system by 1961 Constitution. It established the Constitutional Court and incorporated both abstract review and exception of unconstitutionality. The 1982 Constitution preserved the legal regime of constitutionality review with minor changes.

Concrete review of constitutionality is laid down in Article 152 of the Turkish Constitution. Under the article, (a) if a court hearing a case considers that the law to be applied is unconstitutional, or (b) if it is convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties, it shall refer the issue to the Constitutional Court. The hearing court must provide the grounds for unconstitutionality in its application. Also, it must suspend the case until the Constitutional Court decides on the issue.

Individuals are not entitled to direct access to the Constitutional court for concrete norm review. Their claims may reach the Constitutional Court only through the approval of the hearing courts. This rule is in place to prevent the parties from abusing the exception proceedings to prolong the case or for other purposes.

The Constitutional Court shall decide on the matter and declare its judgment within five months of receiving the contention. If no decision is reached within this period, the hearing court shall conclude the case in accordance with the existing provision.

One important feature of the Turkish concrete review is that only a legal provision that is applicable in an ongoing case can be contested before the Constitutional Court. In other words, it does not suffice that the law is merely relevant in the case but it must be applicable in order to proceed or terminate the case.

Unlike the abstract review, laws may be subject to concrete review without any time-limit after their enactments. In the Turkish system, however, a ten year bar is in place for reexamination of unconstitutionality of laws. Under the last paragraph of article 152, if the Constitutional Court examined constitutionality of a law and dismissed the case on the merits, the claim of unconstitutionality against the same legal provision cannot be raised until after 10 years of the dismissal.

In principle, the Constitutional Court reviews the merits of a claim over the case file without holding a hearing. Accordingly, the parties of the original case are not allowed to intervene before the Constitutional Court. However, the Court may order an oral statement from the relevant public authorities or individual experts at its discretion.

In the concrete norm review, the Constitutional Court makes an abstract review of the contested provision; that is, the Court does not confine its analysis to the basis of the facts of the original case. Taking into account the facts of the original case, the Court exercises an abstract and general review concerning the constitutionality of the contested law. If the Court finds the contested law unconstitutional, it is declared null and void. Therefore, the effect of annulment decision is not specific to the concrete case, it is of general effect.

The concrete review cases hold a substantial portion of constitutionality review of the laws by the Turkish Constitutional Court. In 2016, the Court received 114 concrete review cases whereas the number of annulment action was only 21. In 2017, the Court received 18 annulment actions and 155 concrete review cases so far.

The concrete review, accordingly, provides an important and efficient way within our constitutional jurisdiction. This is true not only in terms of quantity but also in terms of substantive aspect.

Concrete review allows a wider access to constitutional justice along with wider perspective. Under the Turkish Constitution, only certain political actors are entitled to bring annulment action within limited time after the enactment of the laws or decree laws. In contrast, concrete review makes it possible to identify or raise possible constitutional defects by judicial actors who apply the rule and specialize on the relevant area of law or by individuals who have real bearing on the application of the rule.

Moreover, constitutional defects may become more visible over time through the implementation of the laws. Thus, concrete review opens the way for a thorough constitutional review along with the input of judges and individual litigants.

           2.2. Constitutional Complaint

Individual constitutional complaint before the Constitutional Court is another major legal tool in terms of individual access to constitutional justice and protection of human rights. There exists certain differences between concrete review and constitutional complaint, which make them complementary to each other rather than alternative in terms of ensuring constitutional justice.

Constitutional complaint may be lodged only against public actions or inactions allegedly violating one of the constitutional rights and freedoms, not against the laws or decree laws. The constitutional complaint enables the Constitutional Court to conduct human rights review based on the facts of a specific case rather than making an abstract constitutional review. This aspect of individual application allows the Court to employ more right-based approach and protect the rights of individual against the state power.

Since 2012, the Constitutional Court has received thousands of applications and had dealt with them in an efficient manner. Despite the high volume of applications, the individual appeal remedy followed a very successful track until mid-2016. The Constitutional Court had reached the level of addressing the applications within about a year after the application date. Besides, the Court had addressed key human rights issues and rendered violation judgments in the areas such as freedom of expression, freedom of religion and the right to security and freedom.

With respect to the violation judgments rendered within the scope of individual applications, the Constitutional Court has found violations in about 2.400 cases. The bulk of violations concerned the right to fair trial and the right to be tried in a reasonable time.

This successful track of individual application remedy, however, faced a major setback in terms of substance and numbers due to recent coup attempt. In July 15, 2016, Turkey has experienced a heinous and bloody coup attempt which constituted a heavy threat against the very existence of the State and Nation. The key state institutions and civilians were attacked by armored military vehicles, which resulted in bombing of the Parliament and Presidential Palace and thousands of casualties, including 249 dead and more than 2000 injured.

This violent attack was an assault on constitutional democracy, rule of law, and human rights. As the Council of Europe Commissioner for Human Rights has stressed in his Memorandum, “the success of (coup attempt) would have marked the end of democracy in Turkey and the defeat of all the values underlying the Council of Europe”. Likewise, the Venice Commission indicated in its opinion on emergency decrees that “[a] military coup against a democratic government, by definition, denies the values of democracy and the rule of law”.

The Republic of Turkey reacted swiftly against this deadly attack. The government declared state of emergency and derogated from the European Convention on Human Rights. Accordingly, the emergency measures were put in place in order to erase the existing threat against constitutional and democratic order.

The effect of these developments to constitutional complaint remedy had been drastic. First, the Constitutional Court faced a formidable challenge to maintain its well-established rights-based approach in terms of the protection of constitutional rights and liberties. This situation inevitably stemmed from the shift from default human rights protection regime of Article 13 of the Constitution to the emergency regime of Article 15. During the state of emergency, the Court adjudicate complaints relating the emergency measures under Article 15, which allows greater limitation of human rights and freedoms.

Second, the complaints to the Constitutional Court skyrocketed following the July 15 coup attempt. The day before the coup attempt, the number of pending individual applications before the Court was about 22.500. After the emergency measures were put in place, the numbers of applications reached over 107.000 in a year. Accordingly, the Court has received about 80.000 applications relating to the emergency measures. Those applications practically paralyzed the functioning of the individual application system, considering that even just reception and registration of them required a tremendous volume of work.

In order to deal with these challenges, new measures are introduced by the state authorities. A special Commission has been established to examine the complaints on the measures and administrative acts introduced by or taken under the emergency decrees, most notably dismissals of public servants from office. Following this step, the Constitutional Court found over 70.000 complaints which remained within the jurisdiction of the Commission inadmissible, on the basis of failure to exhaust legal remedies. The Court thereby reduced the numbers of pending complaints to around 38.000.

The Constitutional Court makes a great effort to handle these cases in due time, as well as other non-emergency complaints.

Conclusion

In conclusion I would like to say that the individual access to constitutional justice is even more important during the state of emergency. This is so simply because individual rights and freedoms become more fragile during such times.

The heinous terrorist attack in Egypt during Friday prayer two days ago reminded us once again the fact that we live in an unfortunate age of terror. On the behalf of the Turkish Constitutional Court, I would like to share my sorrow and sadness with the Egyptian people and to strongly condemn this inhuman attack.

It goes without saying that terrorism has been a threat to democracy, rule of law and human rights. Therefore it is of paramount importance to fight against terrorism without destroying these values.

I think at this moment we should remember Jacques Derrida, who was born in the city of El-Biar, Algeria. In an interview made only a few weeks after 9/11 terror attack, Derrida said that “We must more than ever stand on the side of human rights.” He continued to emphasise that "We need (il faut) human rights. We are in need of them and they are in need, for there is always a lack, a shortfall, a falling short, an insufficiency; human rights are never sufficient."

Yes indeed we need human rights. But we also need a universal moral revolution in line with the discourse of Rumi. Let me conclude by recalling Rumi, who is known as the sage of human dignity, justice, freedom and tolerance. In his words, “In anger and fury be like the dead/ In toleration be like the ocean”.

Thank you for your attention.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

Esteemed guests,

Honourable Vice President, Justices, Rapporteurs and Assistant Rapporteurs of the Turkish Constitutional Court,

Distinguished participants,

I greet you all with my sincere feelings and regards.

I would like to express that I am very pleased to deliver the inaugural speech of the International 5th Summer School.

The summer school program has been organized by the Turkish Constitutional Court since 2013 as an activity of the Association of Asian Constitutional Courts and Equivalent Institutions (“the AACC”), and today, we are inaugurating the 5th Summer School Program.

In the 3rd Congress of the AACC held in Bali, Indonesia last year, a Permanent Secretariat was established upon an amendment to its Statute. In this scope, the Centre for Training and Human Resources Development was established in Ankara under the Turkish Constitutional Court. The last two summer schools have been organized under the capacity of this Centre.

I would like to state that summer schools held every year with different themes aim at exchanging information and experience among the constitutional jurisdictions and contribute to the improvement of relations among our institutions. I am pleased to note that we have received highly favourable feedbacks from the participants regarding the summer school programs held so far.

Distinguished participants,

I would like to also note with pleasure that the participation in this Summer School is wider compared to previous years. Representatives from the constitutional courts or equivalent institutions of 17 countries, including Turkey, have participated in the program. It is also a pleasing progress for us to be here with the representatives of all constitutional courts which are members of the AACC, with the exception of one or two countries. Today, almost forty representatives from Afghanistan, Azerbaijan, Bulgaria, Indonesia, Georgia, Montenegro, Kazakhstan, Kyrgyzstan, Korea, Kosovo, Malaysia, Mongolia, Russia, Uzbekistan, Tajikistan, Thailand and Turkey are here with us for the Summer School Program.

Besides, representatives from the European Court of Human Rights, the Conference of Constitutional Jurisdictions of Africa, and the Office of the United Nations High Commissioner for Refugees (“the UNHCR”) in Turkey are attending the program as lecturers. I take this opportunity to express my gratitude to all participants and lecturers.

Theme of this year’s summer school, “Migration and Refugee Law”, constitutes one of the most significant and complex issues of today that are of a global concern. According to the data provided by the UNHCR, the total refugee population all over the world is 21 million, and the number of those sheltered only in Turkey is over 3 million. It is noteworthy to mention that the number of refugees in Turkey exceeds the populations of 61 countries that are the members of the United Nations.

Legal dimension of this theme and especially foreigners’ rights under national and international laws will be dealt with during the Summer School Program. Within this framework, judgments of the Turkish Constitutional Court, the ECtHR’s approach on this matter and practices of the countries represented here will be discussed, and the participants will thereby share views, information and practices on the topic.

Reasons and outcomes of migration and asylum have been debated for so long. Migration emerges as people who are escaping from unfavourable conditions such as war, civil war, terror and poverty seek for a safe and prosperous place to live.

Whatever the consequences may be, it is evident that major issues are present in the countries receiving migrants. The main problems resulting from migration are ostracization of migrants, their not being treated with human dignity, their being subject to violence and even their killing.

In other words, migration uncovers social diseases, such as xenophobia and racism, which hamper the ideal of living all together in harmony and peace. Every single day, through international press agencies, we are reading news about the attacks against those regarded as “a stranger”. In this respect, the devastating cruelty against Rohingya Muslims in Myanmar and deep silence of humanity point out the lack of conscience.

The underlying reason of all these problems is the failure to establish a sound relation with those who are regarded as “the other”. Xenophobia and racism, which become much more evident with migration and asylum, are the attitudes and behaviours that should be paid a great attention in terms of diversity management and should be corrected. These are, in principal, the reflections of a pathological relation of “me and the other” and “we and the others” within an egocentric understanding at ontological level.

Xenophobia represents the negative feelings of a native person against another who has come after him or is different from himself. Stranger is the other. He is the one who do not consider or live in the way we do. In short, he is the one who is different.

Esteemed guests,

Distinguished participants,

It must be clearly stated that, in particular, today’s Western world suffers from these social and political diseases. As these ill understandings which do not accord a right to life to “the other” gain grounds day by day, the greatest threat to the values such as human rights, democracy and rule of law, as well as, to the political systems shaped by these values emerges and grows. In brief, xenophobia, racism and Islamphobia are the dark faces of our age.

Fight against xenophobia and racism may be achieved by prioritizing a “human-oriented” understanding in social and political spheres. Indeed, such understanding has deep- roots both in the East and the West.

Philosophers forming the spiritual roots of the Anatolia, such as Yunus Emre, Mevlana and Hacı Bektaş-ı Veli, have made unique contributions to co-existence through their human-centered messages promoting tolerance and affection among the society. Hacı Bektaş-ı Veli says “the second requirement of the eternal truth is not to condemn seventy two nations”. Yunus Emre’s expression “Love the created for the creator’s sake” and Mevlana Celalettin Rumi’s expression “the raison d’être of universe is human beings” and his call “Come, come again, whoever you are” reveal the same principle. According to this principle, human is a value by its very nature, not a means, and exactly for this reason, he/she deserves respect/tolerance.

Neither the East nor the West is homogeneous. Apart from thoughts generating/feeding xenophobia, racism, and Islamphobia, there also exist long-standing strong thoughts supporting pluralism and tolerance. The famous philosopher, Immanuel Kant, is one of the most leading representatives who defend these thoughts.

Kant mentions of “the right to hospitality” in his article titled “Perpetual Peace” and written in 1795. This right envisages that every foreigner going to another country is entitled not to be treated as an enemy. Therefore, not as a matter of favour or charity but as a requisite of respect for their rights, we are obliged not to show hostility towards foreigners crossing our borders.
The “right to hospitality” introduced by Kant notably applies to refugees nowadays. Indeed, Turkey has been making historical contributions in terms of promoting the right to hospitality of “the other” by opening its heart and doors to over three million refugees.

As a matter of course, social values and institutions emerge in and transform to different concepts along with historical progresses in different lands. However, the values we embrace today, such as justice, freedom, human rights, state of law, pluralism and tolerance are common values of both the East and the West. It is our joint responsibility to develop and transfer to the next generation a human-oriented culture and practice, by protecting these values −notably the other’s “right to hospitality”− and paying due consideration to social and political pluralism rather than regarding differences as a threat. In this respect, there are two ways to fight against xenophobia, racism, and Islamphobia: the first one is to spread the human-oriented understanding. Humans are born innocent and they learn malignity and hostility afterwards. Indeed, attitudes such as xenophobia, racism and Islamphobia are deviations which we have learned or have been thought long after we were born.

Therefore, the step needed to be taken is to change this learning process. Samples of both malignity and goodness exist in history and nature. What all matters is our preference of these two options while building the present and the future.

The second step is to revise the legal means in this respect to ensure their effectiveness. In both the national and the international human rights laws, a firmer stand must be taken especially on the fight against hate speech and racism. It should be borne in mind that showing tolerance to hate speech would contribute to xenophobia and racism.

I would like to end my speech by commemorating the wise statesman, Alija Izetbegović. “It was 25 March 1994… Two hundred thousand (200.000) Bosniaks were killed, six hundred thousand (600,000) people were exiled and 800 mosques were bombed. Cities and villages of Bosnia-Herzegovina were devastated, and the military hospital in Sarajevo was bombed for 160 times…” After narrating all these, Izetbegović notes a remarkable statement: “being human and staying human are our responsibilities towards Allah and ourselves”.

Aliya Izetbegović explains the meaning of the concept of “being human and staying human” ─which he completely describes as a moral concept─ in political discourse and in practice as follows: “In political discourse, it means that we will try to establish a legal State. This also means in practice that in this State no one will be persecuted for their religion or for their national or political belief.”

We hope that our old world will learn from the bitter experiences of the past and follow the wise path of Izetbegović.

I would like to once again greet you all with respect before ending my speech. I wish that the 5th Summer School Program be successful and fruitful.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

(Re)interpreting Secularism in a Democratic Society:

A Cursory View of the Case-Law of the Turkish Constitutional Court

 

International Symposium on “Constitutional Courts as the Guardian of Ideology and Democracy in a Pluralistic Society”.

Solo, Center Java, Indonesia, 9-10 August 2017

 

Distinguished colleagues,

Ladies and gentlemen,

It is a great pleasure for me to address such distinguished participants. Before I start my speech, I would like to thank my dear friend Professor Arief Hidayat, the Chief Justice of the Constitutional Court of Indonesia for his warm and generous hospitality.

In my presentation, I argue that the constitutional courts determine the contents and essential features of state ideology enshrined in constitutions. I will substantiate this argument by examining the case-law of the Turkish Constitutional Court on the principle of secularism which is an essential part of the Turkish state ideology and constitutional identity. As the Turkish example reveals, the courts’ interpretation and application of state ideology as well as constitutional identity may vary over time.

Before analyzing the changing attitude of the TCC towards the principle of secularism, I would like to say a few words on the role of the constitutional courts in interpreting and upholding the principles that constitute the state ideology and constitutional identity.

  1. Conceptual framework

Almost all constitutions include state ideologies or ideological principles and values, whether they are comprehensive or flexible, authoritarian or liberal. Like other constitutional provisions, they are superior and binding principles of the constitution. For instance, the Preamble of the Indonesian Constitution stipulates that the Republic of Indonesia is a state based on “the belief in One and Only God, just and civilized Humanity, the Unity of Indonesia and a Democratic Life”. Article 1 of the French Constitution states that “France is an indivisible, secular, democratic and social Republic”.

Likewise, the Preamble and many other articles of the Turkish Constitution contain principles that characterize the constitutional identity of Turkey. According to Article 2 of the Constitution, the Republic of Turkey is a secular, democratic and social state governed by the rule of law. Respecting human rights, loyalty to nationalism of Atatürk, and indivisibility of the state (Article 3) are also among the features of the Turkish constitutional identity.

The main task of the constitutional courts is to uphold constitutional identity based on both ideology and other constitutional principles such as supremacy of constitution, separation of powers, rule of law, and democracy. In democracies the Constitutional Courts act as the guardian of democratic order. Therefore they have a duty to interpret the ideological principles in accordance with democracy.

The concept of constitutional identity is dynamic and dialogical in the sense that it has been the product of historical, socio-political developments and of the interactions among different stakeholders in society. In other words, constitutional identity is subject to change over time depending on the legal paradigms of interpreters and understanding of the people at large.

In this regard, secularism is an essential part of the state ideology and therefore constitutional identity of Turkey. Even though the principle of secularism is an eternal clause of the Constitution, “its specific content would vary over time, tethered to the text, but only loosely, so as to accommodate the dialogical interactions between codified foundational aspirations and the evolving mores of the Turkish people” (1) .

Since the principles of state ideology as well as other principles of constitutional identity are very abstract, they have to be interpreted and applied by constitutional courts. Indeed, constitutional adjudication is an act of interpretation that constitutes a “process by which a judge comes to understand and express the meaning of an authoritative text [the Constitution] and the values embodied in that text” (2) .

  1. The Legal Paradigms in (Re)Interpreting the Principle of Secularism

In 1937, the Turkish Constitution was amended to adopt secularism (or laicite in French) together with five other principles of Kemalism or Ataturkism, which is the official state ideology. Since then secularism is one of the fundamental principles that has been included in the Turkish constitutions. The concept of secularism is stipulated in the Preamble and a number of articles of the Constitution.

Ever since the establishment of the Turkish Constitutional Court in 1962, the issue of protecting state ideology by the judiciary has always been the subject of heated debate in Turkey. The judgments of the TCC involving the interpretation and application of the principles of state ideology, secularism in particular, have been fiercely debated among legal and academic circles.

I argue that there are two possible yet conflicting paradigms that may be adopted in interpreting the basic constitutional principles including secularism. The first legal paradigm may be called “ideology-based” which favors the state and society over the individual. This paradigm reflects a positivist, one-dimensional, monolithic, and authoritarian outlook.

The other is the “rights-based” paradigm which gives priority to individuals and their rights vis-a`-vis every kind of social and political association. The rights- based paradigm is pluralist in the sense that it envisages a political (and legal) sphere that is open to competing conceptions of good. This public sphere embraces those unrepresented, marginalized, and excluded ‘others.’ (3) The rights-based paradigm does not seek to silence the voices that are different from, and sometimes contrary to, the official discourse (4) . These two paradigms may also be called as “ideology-based” and “rights-based” approaches to constitutional issues.

For the sake of my argument, I want to note that during the first fifty years of its work the TCC adopted an ideology-based approach to secularism, while for the last five years the Court has adopted a rights-based approach.

  1. The Age of “Monolithic” Laicite (1962-2012)

The ideology-based paradigm of the TCC is revealed in cases involving the dissolution of political parties and the ban on Islamic headscarf (başörtüsü). The TCC dissolved some political parties on the ground that either their statutes and programs or their discourses and activities were contrary to the principle of secularism. In 1971, the National Order Party (Milli Nizam Partisi) was dissolved because the Party defended, among others, the adoption of compulsory religious instruction at schools which was found in breach of secularism.(5) Likewise, the Court closed down the Prosperous Party (Huzur Partisi) for violating the principle of secularism on the ground that the party program proposed to include religious courses in the curriculums of the universities.(6) Welfare Party (Refah Partisi) and Virtue Party (Fazilet Partisi) were dissolved for becoming the “center” (focal point) of activities against secularism. Relatively recently, the Justice and Development Party (AK Parti) escaped from being dissolved by one vote only. Nonetheless, the Court ruled that AK Parti must be prevented from receiving financial state aid on the basis that it became the “center” (focal point) of activities against secularism.

We may now turn to the very interesting narrative of the headscarf in Turkey. In 1988, an Act of Parliament (Law 3511) was passed to lift what was known as the “headscarf ban” in the universities. The Law stipulated, “[within the buildings of the universities] it shall be permitted to cover for religious reasons their heads and necks with a headscarf or turban”.

The Constitutional Court invalidated this Law in 1989.(7) The basic question, according to the Constitutional Court, was whether a law could be enacted on the basis of religious rules. The Court responded to this question in the negative, and found the Law to contravene the Preamble, and Articles 2, 24, and 174 of the Constitution.

The Constitutional Court first declared that the principles of secularism and nationalism of Kemalism guaranteed in the Preamble and Article 2 of the Constitution made it impossible to view this Law as constitutional. In this instance, the Court explicitly ruled out the possibility that there may be some “democratic rights” which are in conflict with the principle of secularism.

The Court reluctantly also conceded that secularism might in fact be incompatible with the protection of rights and freedoms. In the Court’s view, the Constitution is extremely vigilant to protect the principle of secularism against freedoms; ‘it does not sacrifice this principle for the sake of liberties’. It is obvious that the Court conceived secularism as an “ultra-constitutional norm” that determines the boundary of the rights. However, a certain definition of secularism was not given by the Court, though it said that the principle of secularism could not be seen as a mere separation of religion and the state, and it must be interpreted according to the social and political conditions in Turkey.

More interestingly, the Constitutional Court asserted that the law had nothing to do with freedom of religion and conscience as protected by Article 24 of the Constitution. This is perhaps the only point in which the European Court of Human Rights differs from the Constitutional Court. The later conceives the wearing of the Islamic headscarf as a matter of freedom of religion but finds the restriction on this freedom necessary in a democratic society.(8) Nonetheless, the Strasbourg Court’s endorsement of the ban on the headscarf for university students has by no means ended the controversy in Turkey.

In 2008, the parliament amended Articles 10 and 42 of the Constitution in order to remove the headscarf ban at universities. Referring to its previous case-law and to the decisions of the Strasbourg Court, the TCC annulled these constitutional provisions on the ground that they contravened the eternal (unamendable) principle of secularism.(9) Less than two months later in the case against the Justice and Development Party (JDP), the TCC regarded this attempt to end headscarf ban through constitutional amendment as an evidence that JDP become the focal point of activities against the principle of secularism.(10)

The fundamental flaw in these judgments of the Constitutional Court lies in its reading of the law and constitutional provisions. The Court obviously founded this interpretation of these legal/constitutional provisions on the assumption that wearing headscarf was nothing but an indication of so-called “political Islam”.

As a matter of fact, for those wearing headscarf, it is obviously a religious obligation, and it therefore constitutes a subject of freedom of religion and conscience. A rights-based approach would entail handling the case in this way. The Constitutional Court, however, misconceptualized the problem, and (mis)construed the above-mentioned provisions to restrict (or deny) the fundamental freedom of religion and conscious, simply because it adopted an “ideology-based” approach towards the principle of secularism.

  1. Introducing “Pluralistic” Secularism (2012- ….)

The adoption of constitutional complaint (individual application) by 2010 constitutional amendment has triggered a radical paradigm shift in the jurisprudence of the TCC. The constitutional rights, including freedom of religion and conscience, were invoked by individuals through constitutional complaint. In examining individual complaints, The TCC has started to employ a rights-based paradigm when interpreting and applying the constitutional rules and principles.

Indeed, this paradigm shift may be traced in the field of both constitutionality review and individual constitutional complaint. Two judgments of the TCC will illustrate the reinterpretation of the principle of secularism in a rather liberal way.

a) Elective Religious Courses and Secularism (2012)

In a judgment of 20 September 2012, three days before the constitutional amendment on individual application came into force, TCC reinterpreted and applied the principle of secularism. The Court found constitutional the legal provisions which introduced elected courses of “Kur’an al-Kerim” and “Siyer” (The Life of the Prophet) into the curriculum of secondary schools.

The TCC declared that the Constitution considers “secularism as “a political principle that determines the position of the state against the religious faiths”. In this regard it is “a quality of the state, not the individual or society”.(11)

By shifting to a flexible and liberal understanding of secularism, the Court stated that religion, as a historical and sociological phenomenon, has played a significant role in shaping the identities of individuals. A secular state, therefore, must not prevent individuals from having and expressing their religions and faiths.

Further, the Court has emphasized the importance of freedom of religion and conscience in a secular and democratic society. Under the TCC’s new approach, the concept of secularism should not be interpreted as a principle that entails the suppression of religious belief. On the contrary, secularism guarantees the practice and implementation of religious faith provided that they do not harm others. In short, freedom of religion and conscience is an essential requirement of secularism.

Given the diversity of religions and beliefs, the democratic and secular state must aim to establish a political order where the individuals live together in peace with their different religions, beliefs or disbeliefs. In other words, according to the Court, the primary task of the secular state is to secure a pluralistic environment where all types of faiths can freely express themselves.

The Court has also pointed out that this pluralistic understanding of secularism imposes negative and positive obligations on the state. The negative obligations entail that the state must not adopt an official religion or faith and that it must not intervene in the freedom of religion of individuals in the absence of compelling reasons.

The positive obligation of the state is (a) to remove the obstacles to the protection of freedom of religion and conscience, and (b) to take necessary measures through which individuals have the opportunity to learn and practice their religions. Therefore, the Court reached the conclusion that the introduction of elective courses of “Kur’an” and “Siyer” in the curriculum of the schools was not in contradiction with the principle of secularism.(12)

b) Wearing of Headscarf in a Court room and Secularism (2014)

The TCC dealt with the headscarf issue once again in a case of individual application where the applicant claimed that her freedom of religion and right to equality were violated.(13) The case concerned a lawyer’s expulsion from a courtroom for wearing headscarf. The trial judge decided that the lawyer’s presence in the hearing with her headscarf was contrary to the principle of secularism under the case-law of the Turkish Constitutional Court and the European Court of Human Rights.(14)

After examining its judgments of 1989 and 1991, as well as Leyla Şahin judgment of the Strasbourg Court, the TCC reached the conclusion that intervention in the applicant’s freedom of religion did not meet the constitutional requirement of “lawfulness”. This was so because there was no law preventing any lawyer from wearing headscarf at courtrooms.(15)

The TCC also held that no reasonable and objective basis was presented for preventing the applicant from taking part at the courtroom by wearing headscarf for her religious convictions. Therefore, since the applicant was put in a disadvantageous situation compared to those female lawyers who do not wear headscarf, the prohibition of discrimination guaranteed by Article 10 of the Constitution was violated.(16)

  1. Europe’s headscarf problem and “living together”

There is no doubt that we live in a pluralistic society with different and often conflicting ideologies, beliefs and conception of goods. The main purpose of constitutions must be to provide a legal/political framework to protect and maintain the differences of individuals. At its heart, pluralism requires the coexistence of individuals with their identities.(17)

The headscarf issue poses a formidable challenge for the European democracy. The European Court of Human Rights has left contracting states an extremely wide margin of appreciation in regulating the wear of headscarf at the public institutions as well as at public space. For the Court, since there is no European consensus on this issue, the state authorities are in a better position than an international court to regulate the dress code of individuals.

The Court found no violation of Article 9 of the European Convention in cases of Dahlab and Leyla Şahin, which concerned the ban on wearing headscarf by a primary school teacher and university students, respectively.(18) More recently the Strasbourg Court held that the blanket ban on full-face veiling was justifiable on the basis that it aimed to guarantee the conditions of “living together” as an element of the protection of rights and freedoms of others.(19)

Likewise, the Court of Justice of the European Union rejected discrimination claims of a Muslim worker who was fired because of her headscarf. The European Court of Justice stated that the employers may impose a general ban on employees as to wearing religious symbols. So far as it does not single out a special religion or belief it cannot be regarded as direct discrimination. For the Court it wouldn’t constitute indirect discrimination either if it aims at adopting the policy of neutrality.(20)

Conclusion

While the European Courts continue to avoid headscarf issue by handling it as an exceptional matter instead of a core human rights problem, TCC has shifted its direction to apply constitutional principles to favor the individual and human rights rather than state ideology. By adopting a rights-based approach since 2012, the TCC has started to interpret secularism as a principle that is in harmony with fundamental human rights and democratic society.

As exemplified by the experience of the TCC, it is very difficult, if not impossible, to sustain the position of militant secularism in a pluralistic society. The best and perhaps only way of accommodating religious differences and securing the condition of “living together” is to abandon ideology-based paradigm and adopt instead a rights-based approach to constitutional principles, such as secularism.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

 

 


1 Gary Jeffrey Jacobsohn, Constitutional Identity, (Cambridge: Harvard University Press, 2010), p.14.

2 Owen M. Fiss, “Objectivity and Interpretation”, Stanford Law Review 34 (1982): 739–63, at 739.

3 For the concept of the ‘other’ and his/her rights, see Zühtü Arslan, “Taking Rights Less Seriously: Postmodernism and Human Rights”, Res Publica, 5 (1999): 195– 215.

4 Zühtü Arslan, “Conflicting Paradigms: Political Rights in the Turkish Constitutional Court”, Critique: Critical Middle Eastern Studies, 11/1 (Spring 2002): 9-25.

5 1971/1 (Parti kapatılması), K. 1971/1, 20/5/1971.

6 1983/2 (Parti Kapatma), K. 1983/2, 25/10/1983.

7 1989/1, K.1989/12, 7/3/1989.

8 Leyla Şahin v. Turkey (GC), App. No: 44774/98, 10 November 2005.

9 E. 2008/16, K. 2008/116, 5/6/2008.

10 E. 2008/1 (Siyasi Parti Kapatma), K. 2008/2, 30/7/2008.

11 See E. 2012/65, K.2012/128, 20/9/2012.

12 Ibid.

13 See Tuğba Arslan, Application No: 2014/256, 25/6/2014.

14 The trial judge held that “the attorneys cannot wear head scarf during hearings in accordance with the decisions of the ECtHR and the Constitutional Court as to the fact that the headscarf is a strong religious symbol and political symbol that is against secularism”. Tuğba Arslan, par. 92.

15 Tuğba Arslan, pars. 93-100.

16 Tuğba Arslan, pars. 153-154.

17 Tuğba Arslan, par. 129.

18 See Dahlab v. Switzerland, App. No: 42393/98, 15/2/2001; Leyla Şahin v. Turkey (GC), App. No: 44774/98, 10 November 2005.

19 S.A.S v. France, App. No: 43835/11, 1/7/2014; Belcacemi and Oussar v. Belgium, App. No: 37798/13, 11 July 2017.

20 Samira Achbita v. Belgium, Case C-167/15, 14 March 2017.

Upholding Constitutional Principles in a State of Emergency

XVIIth Congress of the Conference of European Constitutional Courts

Theme: “Role of Constitutional Courts in upholding and applying constitutional principles”

Batumi,

June 28-30, 2017

Distinguished participants,

Ladies and gentlemen,

 

Before I start I would like to thank the President, all the members, and staff of the Constitutional Court of Georgia for their warm and generous hospitality.

Thank you Mr. Zaza Tavadze also for giving me the opportunity to address such distinguished colleagues.

Within my limited time, I would like to say a few words about the potential role of constitutional courts in a time of emergency with a special reference to the recent experience of Turkey.

Let me start with a simple statement: We must (il faut) more than ever stand on the side of human rights.” Thus spoke Jacques Derrida in an interview made a few weeks after 9/11 terror attacks. He continued to emphasise that "We need (il faut) human rights. We are in need of them…."1

In fact, this simple statement by Derrida points the direction that the constitutional courts should follow in times of emergencies. Although this statement appears to be simple, the realization of the aim of protecting rights in emergencies is extremely difficult.

Constitutional courts exist to guarantee constitutional boundaries with a view of protecting basic rights and liberties of individuals against possible encroachments of state authorities. This role of the constitutional courts is much more important in states of emergency where the fundamental rights may become more fragile and vulnerable as a result of extended executive powers.

Almost all constitutions lay out the conditions for declaring states of emergency and stipulate the basic requirements for emergency decrees and acts. So it may be regarded as an “emergency constitution” that provides a legal framework for public emergencies.

In fulfilling their critical roles in a state of emergency, the constitutional courts must be cautious at least in three regards. First of all, as constituted powers the courts must be aware of the fact that they are also bound by the constitution. In other words, they may only exercise the powers defined in the provisions of “emergency constitution”. The courts’ self-respect for constitution is crucial especially in a state of emergency because any kind of judicial activism during such times may lead to legitimation crises. The constitutional courts must protect constitutional rights by operating within the boundaries of the constitution itself.

Secondly, judicial and/or constitutional review of the courts must not go beyond the statement that any law or administrative action is unlawful or unconstitutional for certain reasons. It is not the job of the courts to dictate which policies are necessary to protect rights and liberties. “This is unacceptable for reasons a, b, c,…; find a better way’ is seen as an appropriate stance for a constitutional court”.2 As a way of example, constitutional courts must refrain from imposing their own ideas on executive by engaging in substantive analysis regarding policies in fighting terrorism. In other words, an effective counter-terrorism policy requires a judicial modesty and deference to executive organs to a certain extent. The deferential view rests on the widespread assumption that “executive is the only organ of governments with the resources, power, and flexibility to respond to threats to national security”.3

Thirdly, even though the executive is in a better position to evaluate the threats to public security and the means to eliminate them, it by no means has unlimited powers. The executive must act within the law, and a state of exception must be governed by the rule of law.4 Therefore, the role of the constitutional courts is to “ensure that the battle against terrorism is conducted within the framework of the law and not outside it”.5

To sum up, during emergencies the courts have a limited and circumscribed power in reviewing the acts and activities of the executive power. It is certainly beyond the power of the courts to remove the terrorist threat to the public order. Solving the problem of terrorism is the task of executive and legislative powers. The role of the courts in such process is to ensure that the state authorities act within “emergency constitution” and law in general.

Distinguished colleagues,

Let me turn to the case of Turkey in order to elaborate further on the application of these principles regarding states of emergency. The current state of emergency was declared due to the military coup attempt of 15 July 2016, which caused severe casualties, including 249 dead and over 2000 injured.

I must say that the coup attempt, which indeed is a heinous terror attack, is far more extensive and disruptive compared to the terror attacks in France or in any other European state. It may only be compared with 11 September (9/11) of the United States in terms of the traumatic effect it created.

As the Council of Europe Commissioner for Human Rights has stressed in his Memorandum, “the success of (coup attempt) would have marked the end of democracy in Turkey and the defeat of all the values underlying the Council of Europe”.6 Likewise, the Venice Commission indicated in its opinion on emergency decrees that “[a] military coup against a democratic government, by definition, denies the values of democracy and the rule of law”.7

Indeed the 15 July coup attempt was a violent assault on constitutional democracy, rule of law, and human rights. Therefore, at the very beginning of the coup attempt the Turkish Constitutional Court (TCC), as the guardian of the Constitution, made the following declaration: “We repudiate all kinds of antidemocratic attempts against the constitutional order and we stand on the side of the democratic state governed by the rule of law”.

Responding to this coup attempt, the Council of Ministers decided on 20 July 2016 that a nationwide state of emergency be declared for a period of ninety days, which has been extended for a three months period for the third time effective as from19 April 2017, in order to fight against the “FETO/PDY” and other terror organizations in a comprehensive and effective manner.

Following the declaration of the state of emergency, Turkey notified the Council of Europe its derogation from the European Convention on Human Rights under Article 15 of the Convention. The derogation is still effective as the state of emergency period was extended until 19 July 2017.

The state of emergency poses an onerous challenge for the Turkish Constitutional Court at the level of both norm review and individual (constitutional) complaint. With respect to the norm review, the Constitutional Court rejected to review the constitutionality of emergency decrees by referring to Article 148 of the Constitution, which explicitly provides that emergency decree laws shall not be subject to judicial review of the Constitutional Court.8 The TCC, however, has the power to review the constitutionality of emergency decree laws once they are adopted by the Parliament in the form of statute.

Moreover, within the state of emergency period, the administrative actions and decisions are subject to judicial review. The only limitation for administrative courts is that they may not order the stay of execution of administrative actions and decisions taken under the emergency decrees.

Compared to norm review, the individual complaint remedy presents more complicated issues during states of emergencies. Before touching upon these issues, I would like to say a few words on the individual complaint system in Turkey. The adoption of constitutional complaint (individual application) system in 2012 has been a revolutionary step in the way of protecting constitutional rights and freedoms in Turkey. In a relatively short period of its practice, the Court proved that constitutional complaint has been an effective remedy for violations of basic rights.

The effectiveness of the constitutional complaint before the TCC has also been confirmed by the European Court of Human Rights. 9 Most recently the Strasbourg Court rejected the applications related to the implementation of emergency decrees on the ground that the applicants failed to exhaust the domestic remedy of individual application before the TCC.10

The Turkish Constitutional Court has faced two basic challenges regarding constitutional complaints during the state of emergency. First, the case-load has increased dramatically, reaching currently over 105.000. About 75 per cent of these applications is related to the measures taken during state of emergency, most notably to the dismissals of civil servants and detentions. The number of pending applications before the TCC is more than the total number of pending cases before the European Court of Human Rights coming from 47 states. In this regard I must also note that the number of applications lodged against Turkey before the European Court of Human Rights has increased to a great extent in the course of recent emergency measures.

There is no doubt that the establishment of the “Investigation Commission” by the Emergency Decree Law No. 685 on 2 January 2017 has been a positive step in the way of examining complaints against emergency measures such as dismissals of civil servants. The Commission is expected to receive applications this month and thereby to mitigate the work-load of the TCC.

The TCC has yet to decide whether the Commission is considered to be an effective remedy that must be exhausted before lodging a constitutional complaint. However, last month in the case of Köksal v. Turkey (application no. 70478/16), which concerns dismissal of a teacher by an emergency decree law, the Strasbourg Court has unanimously found the application inadmissible on the ground of failure to exhaust domestic remedies. The Court declared that the applicant had to refer his case to the Investigation Commission whose decisions are subject to judicial review of administrative courts. The Court has also stated that decisions of the administrative courts may be challenged before the Constitutional Court through constitutional complaint.

The second challenge for the Turkish Constitutional Court is to maintain its well established rights-based approach for protection of constitutional rights and liberties. In cases of individual applications lodged during the state of emergency, the Court interprets and applies Article 15 of the Constitution, which lays down the conditions and requirements for the emergency measures.

Article 15 of the Constitution, an almost identical counterpart of Article 15 of the European Convention on Human Rights, reads that in a state of emergency “the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures may be taken, to the extent required by the exigencies of the situation”. Article 15 also lists the non-derogable, absolute rights and freedoms such as the prohibition of torture, presumption of innocence and freedom of religion and conscience.

Distinguished colleagues,

Last week the TCC has delivered its first judgment in a case of individual application concerning detention of the persons allegedly involved in the coup attempt.11 This judgment, which is published at today's Official Gazette, is very important because it laid down the basic constitutional principles to be applied in similar cases.

In this pioneering judgment the TCC has stressed that the public authorities have a very broad margin of appreciation as to the adoption of policies and means to eliminate the dangers led to the state of emergency, but they have no unlimited power. It is the task of the TCC to review the emergency measures in the light of constitutional principles enshrined in the Constitution.12

In this regard the Court for the first time interpreted and applied the provisions of Article 15 of the Constitution in a systematic manner. The Court pointed out that any interference with constitutional rights in a state of emergency must meet three criteria set by Article 15. In other words, the TCC applies a three-level test in a constitutional complaint if it is related to the emergency measures.

First of all, an emergency measure must not interfere with non-derogable, absolute rights and liberties stated in Article 15 of the Constitution. Secondly, the interference or restriction must not violate the obligations under international law. Setting out these two criteria, the Court made a special reference to the extended list of non-derogable rights and liberties provided by the UN Convention of Civil and Political Rights and the European Convention on Human Rights. Thirdly, any restriction on derogable rights and liberties must be required by the exigencies of the situation. The last level of the test under Article 15 involves the application of well-known constitutional principle of proportionality.13

The TCC applied these principles to the concrete case and found inadmissible the claims that the applicants’ detention were unlawful and detention period of 11 months was unreasonable. In fact the Court did not refer to Article 15 of the Constitution in reaching this conclusion, simply because it found these claims to be inadmissible even under non-emergency, default legal regime. In other words, these claims have already failed to survive the admissibility test applied during a state of normalcy. Therefore, the Court relied on Article 13, not on Article 15, in order to declare these parts of the applications inadmissible.14

On the other hand, the Court found admissible the claim that objections to the extension of detentions had been reviewed without conducting a hearing within the detention period of 8 months 18 days. According to the Court, this would have been considered to violate the principle of proportionality under Article 13 of the Turkish Constitution. As a matter of fact, the Court had previously found violation in similar cases under state of normalcy.

However, since the extension of the applicants’ detention took place during the state of emergency, this measure must be evaluated under Article 15 of the Constitution. After considering the “situation” with a special reference to the dismissals of so many judges and prosecutors from office and the number of detentions following the coup attempt, the TCC declared that the extension of detention period for 8 months and 18 days without hearing was required by the exigencies of the situation, and therefore it was not unproportionate.15

This approach of the TCC, I believe, is very much in line with the international human rights law, especially with the jurisprudence of the European Court of Human Rights.

In conclusion, the constitutional courts assume a very difficult yet critical role in states of emergency. During such times, it is upon the constitutional courts to undertake the endeavor for protecting fundamental rights while respecting the extended authorities of the executive branch under emergency constitutions.

Let me end my speech by reiterating what Derrida said after 9/11: “We must more than ever stand on the side of human rights”.

Thank you for your attention.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

 

 


1 Jacques Derrida, “Autoimmunity: Real and Symbolic Suicides- A Dialogue with Jacques Derrida", in Giovanna Borradori, Philosophy In a Time Terror: Dialogues with Jürgen Habermas and Jacques Derrida, (Chicago: The University of Chicago Press, 2003), p.32.

2 Ian Shapiro, Democratic Justice, (New Haven: Yale University Press, 1999), p.61.

3 Eric A. Posner and Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts, (Oxford: Oxford University Press, 2007), p. 4. See also Richard A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency, (Oxford: Oxford University Press, 2006).

4 See David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency, (Cambridge: Cambridge University Press, 2006), p.2.

5 Aharon Barak, Dialogue between Judges- Proceeding of the Seminar 29 January 2016, the European Court of Human Rights, Strasbourg, 2016, p. 27.

6 Memorandum on the human rights implications of the measures taken under the state of emergency in Turkey, CommDH(2016)35, Strasbourg, 7 October 2016, par. 4.

7 Opinion on Emergency Decree Laws Nos. 667- 676 Adopted Following the Failed Coup of 15 July 2016, CDL-AD(2016)037, Strasbourg, 12 December 2016, par. 7.

8 E.2016/166, 2016/159, 12.10.2016; E.2016/67, K. 2016/160, 12.10.2016.

9 Hasan Uzun v. Turkey, Application No. 10755/13, 30/04/2013.

10 Zeynep Mercan v. Turkey, Application No. 56511/16, 17/11/2016; Zihni v. Turkey, Application No. 59061/16, 29/11/2016.

11 Aydın Yavuz and Others, (Plenary), Application No. 2016/22169, 20/6/2017.

12 Aydın Yavuz and Others, §

13 Aydın Yavuz and Others, §§ 196-211.

14 Aydın Yavuz and Others, §§ 301, 320.

15 Aydın Yavuz and Others, § 350-359.

CONFERENCE ON “THE LEGAL REMEDY OF INTERMEDIATE APPEAL

(“İSTİNAF KANUN YOLU”) AND THE INDIVIDUAL APPLICATION BEFORE THE

CONSTITUTIONAL COURT”

(İstanbul, 01 June 2017)

Esteemed guests,

Distinguished participants,

 

I would like to express my gratitude towards you for your attendance in the conference themed “the Legal Remedy of Intermediate Appeal and the Individual Application before the Constitutional Court” and I greet you with all my heart and respect.

The constitutions include certain articles in respect of which all other articles included therein constitute an annotation. Article 5 of the Turkish Constitution is this kind of a provision. This article which is entitled “the fundamental aims and duties of the State” and which amounts to the essence and spirit of the social contract principally places emphasis on the security and liberty which are, in principle, raison d'être of the State.

Pursuant to Article 5 of the Constitution, the fundamental aims and duties of the state are, on one hand, to “ensure the welfare, peace and happiness of the individual and society” and on the other hand to “strive for the removal of … obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law and to provide the conditions required for the development of the individual’s material and spiritual entity”.

The review conducted by the Constitutional Court in the processes of the constitutionality review and the individual application is, in fact, concerning the implementation of Article 5 of the Constitution. In this provision, reference is made to the negative and positive obligations of the State within the meaning of the protection of the fundamental rights and freedoms. The review conducted by the Constitutional Court in concluding that there is a violation of a constitutional right and freedom in an individual application is also, in one sense, directed at determining the sphere and limits of the negative and positive obligations of the State.

Under extraordinary circumstances, the establishment of the security and the protection of fundamental rights and freedoms by the State become important more than ever. The reputable French philosopher Jacques Derrida stated immediately after the terrorist attack of 11 September “We must support the human rights more than ever. (As a matter of fact), we are in need of the human rights”.1

Indeed, the human rights built on human dignity are the most important values determining the ontological status of human being. Subject of the human rights is human being who is deemed to be “the most glorious of those created by Allah (eşrefî mahlukât)”. Centuries ago, Hz. Mevlana Celaleddin-i Rûmi explained the place of human being in the universe as follows: “You are the essence, foundation of the universe. The universe was created by virtue of you”.2

In spite of the central significance of human being and his rights, the security concern has gradually spread over the world especially following 11 September, and as a result, the Islamophobic attitudes have expanded especially in the West. In the period following 11 September, counter-terrorism has led to excessive restrictions imposed on the fundamental rights and freedoms in certain countries.

In the same period, the relation between liberty and security followed a different course. Only 22 days after 11 September, the constitutional amendments of 2001 were materialized, and the scope of the fundamental rights and freedoms was thereby expanded. The same tendency also continued through the constitutional amendments taking place in 2004. A sentence was added to Article 90 of the Constitution. Accordingly, it is envisaged therein that in case of a conflict between international agreements concerning fundamental rights and freedoms and the laws, the former one shall prevail. By this amendment, the supremacy of the international law on human rights over the laws has been acknowledged in the domestic law.

Distinguished participants,

The individual application mechanism emerged as the continuation of this liberalistic tendency. In this scope, one of the most significant changes in the Turkish constitutional jurisdiction is undoubtedly investing the Constitutional Court with the duty to examine individual applications by the constitutional amendment of 2010. A paragraph was added to Article 148 of the Constitution in 2010, and thereby it is enabled that “everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities”.

Upon the introduction of the individual application mechanism in our legal system, a new era started in the protection of the constitutional rights and freedoms. Since 23 September 2012 the date when the Constitutional Court started receiving individual application, it has been performing this duty in a meticulous and effective manner, which has been also confirmed in the international arena. It is known that the individual application mechanism operating in Turkey is shown to be a successful and good practice which must be also taken into consideration by the other countries.

As is known, the individual application mechanism has brought along crucial improvements both in the functioning of the Constitutional Court and, in general terms, in the Turkish law. Upon the introduction of the individual application mechanism, the Constitutional Court is no longer an institution merely making constitutional review of the laws and has become a judicial tribunal which has a bearing on the daily lives of the individuals, directly deals with the incidents and thereby influences the society.

On the other hand, the individual application mechanism has also led to a paradigm shift in the constitutional jurisdiction. The Constitutional Court started rendering decisions and judgments both in the constitutionality review and the individual application processes within the “right-based” paradigm which gives priority to the protection of the fundamental rights and freedoms. As a matter of fact, very nature of the individual application entails such a paradigm shift. This is probably because the legislative intention of the constitutional amendment includes the following sentence “by virtue of the new legal arrangement, the Constitutional Court has been entrusted with the duty of protecting and developing freedoms by means of being entitled to examine individual applications”.

As is known, the individual application mechanism has also a practical aim. This aim which is also mentioned in the legislative intention of the constitutional amendment reduces the number of applications lodged and the number of violations found against Turkey before the European Court of Human Rights (“the ECtHR”). This practical aim inherent in the individual application system was materialized to a large extent until the coup attempt of 15 July. Thanks to the effective implementation of the individual application mechanism, the number of applications lodged and violations found against Turkey before the ECtHR has decreased significantly. However, the number of pending applications before the ECtHR has shown an increase due to the applications lodged subsequent to 15 July.

As in the countries where the individual application mechanism is implemented successfully, namely Germany and Spain, it is explicit that there are certain problems resulting from the implementation of the individual application mechanism also in our country. A significant part of these problems stems from the inability to sufficiently comprehend the principle of “subsidiarity”.

It should be once again indicated that the individual application before the Constitutional Court or the constitutional complaint is not an ordinary remedy. The individual application mechanism is an extraordinary remedy of a secondary nature which may be resorted to in the event that the alleged right violations could not be eliminated through the ordinary remedies. As is also emphasized in the judgments of individual applications, respect for the fundamental rights and freedoms is a constitutional obligation entrusted to all bodies of the State, and the elimination of right violations occurring due to non-fulfilment of this obligation is the duty of administrative and judicial authorities.3 What is principal in the individual application system is the respect for the rights and freedoms by public authorities and the elimination of any possible violation through ordinary administrative and/or judicial remedies.

Therefore, the principle of subsidiarity of the individual application essentially requires the assertion and the elimination of the right violations primarily and especially before the inferior courts. When it is not possible, the review by the Constitutional Court comes into play. Through the individual application process, the Constitutional Court establishes whether there is a right violation, and in case of finding a violation, it also determines how the violation in question may be eliminated. For instance, if the elimination of the violation requires a retrial, the Constitutional Court may decide that a retrial would be held, or if it does not find a legal interest in a retrial, an amount of compensation is awarded. The Constitutional Court does not have an authority to annul the decisions of the inferior courts or to render a decision/judgment by means of substituting itself for the inferior courts. In this sense, the review of the Constitutional Court in the individual application process is neither a first instance trial nor an appellate examination. It should be known that the individual application mechanism does not offer a new and “super” appellate opportunity following the ordinary legal remedies.

It should be also known that the individual application is not a means for the elimination of all right violations one by one. Even if it is a desired situation, it is not possible to materialize it. Substantially, the objective aim of the individual application is to establish the situations leading to right violations and to ensure the elimination of these violations by public authorities and the prevention of new violations. In this regard, the success and future of the individual application mechanism depend on not only the Constitutional Court but also proper functioning of the judicial system.

At this stage, I am of the opinion that follow-up and assessment, by the public authorities, of the decisions and judgments on the individual applications especially by the judicial organs are of great importance. To that end, we are holding symposiums, round-table meetings, workshops and case-law fora together with the parties concerned and the shareholders, such as the conferences we have just inaugurated today.

Apart from this, we are publishing summary of the judgments that are in the nature of principle judgment (“ilke kararı”) or that are followed closely by the public on our web-site. All of the decisions and judgments rendered by the Plenary Assembly and the Sections are available on our web-site. Moreover, we are compiling the outstanding decisions and judgments rendered every year in a book entitled “Selected Decisions and Judgments” and transmitting this book to those concerned. Once more, the “Annual Report” in which the summary of the decisions and judgments are included is published and distributed to those concerned, in order to ensure easy follow-up of the Constitutional Court’s decisions and judgments.

Esteemed guests,

The main problem posing a threat for the future of the individual application mechanism is the increasing workload. By today, there are over 103.000 individual applications pending before the Constitutional Court. Even if the cyclical increase taking place in an extraordinary period following 15 July is left aside, the individual application system must be implemented in a way which would enable rendering of judgments directed at preventing right violations by means of ensuring structural and systematic changes in the medium and long terms.

Among the Constitutional Court’s judgments finding a violation, the lengthy proceedings take an important place. The Constitutional Court has so far rendered 2219 judgments finding a violation. Out of these judgments, 1757, in other words, 79,2%, concern the right to a fair trial. Out of the violations concerning the right to a fair trial, 84% is related to the right to a trial within a reasonable time. In 55% of these judgments finding a violation, the length of proceedings is between 5 and 10 years whereas in 21% of these judgments, the length of proceedings is between 10 and 15 years, and 15% of them the length of proceedings exceeds 20 years.

The main obstacle before the establishment of justice is the increasing workload and, in conjunction therewith, the problem of lengthy trial. The increasing workload and lengthy proceedings continue to be probably the most important structural problem of the judicial system in Turkey.

The failure to conclude the cases within a reasonable time leads to problems not only within the scope of the right to a fair trial but also, regard being had to the conflicts that are subject-matter of the cases, may tarnish the aim of effective protection of all other fundamental rights from the right to life to the right to property.

When examined from the perspective of the fundamental rights, we must keep in mind that the judiciary has the functions of protecting the rights from the unlawful interventions, remedying the improper practices and redressing the damages occurring in respect of the fundamental rights. In this respect, conclusion of the conflicts in a more effective manner and within reasonable periods is important for the protection of all fundamental rights and freedoms.

As is known, the most important reason for the prolongation of the proceedings is probably the heavy workload. I would like to reiterate that we welcome the steps taken for the settlement of this problem. As is known to all, the intermediate appellate practice has been in use with the thought that the judiciary must be re-organized in accordance with its main aim and the characteristics of its works for ensuring its functioning in a more productive manner.

In this sense, we hope that the courts of intermediate appeal (“istinaf mahkemeleri”), which started operating on 20 July 2016, will make contribution to more effective functioning of the judiciary. As a matter of fact, short-term experience gained by the courts of intermediate appeal strengthens our hope in this direction.

According to data provided by the Ministry of Justice, the courts of intermediate appeal have handled the criminal cases and civil cases before them at the rates of respectively 78% and 68%. The fact that the average period of handling a case before the courts of intermediate appeal has been so far 73 days in criminal cases and 121 days in civil cases is really pleasing and promising for us. I congratulate all members of the judiciary serving in the courts of intermediate appeal for their impressive performance and wish them a continued success.

It is beyond any doubt that we do not just now have sufficient data for making an assessment about the courts of intermediate appeal in respect of the individual application. Until today since the date when the courts of intermediate appeal started functioning, a total of 164 individual applications was lodged with the Constitutional Court in respect of the cases which were finally concluded by these courts. Six out of these applications were concluded with an inadmissibility decision. In respect of the final decisions rendered by the courts of intermediate appeal, there is no individual application which has been subject to an examination on the merits yet.

As I have expressed above, the principle of subsidiarity of the individual application mechanism requires the elimination of the right violations primarily and especially before the inferior courts. I would like to share my belief that the courts of intermediate appeal would make contribution thereto.

Before ending my speech, I wish this meeting, where the academicians and the members of the judiciary as the practitioners have been ensured to convene, will be successful and fruitful. I would like to express my thanks in advance to those taking role in the organization, especially those who will make contributions to the conference through their presentations and questions, and to all participants.

 

I greet all of you with respect and extend my wishes of health and prosperity to all of you.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

 


1 Jacques Derrida, “Autoimmunity: Real and Symbolic Suicides – A Dialogue with Jacques Derrida”, in Giovanna Borradori, Philosophy In a Time Terror: Dialogues with Jürgen Habermas and Jacques Derrida, (Chicago: The University of Chicago Press, 2003), p. 132

2 Mevlânâ, Rubâîler, Translated by Şefik Can, (İstanbul: Kurtuba Kitap, 2009), No. 345, p. 74.

3 Ayşe Zıraman and Cennet Yeşilyurt, no. 2012/403, 26/3/2013, § 16.

His Excellency Mr. President,
Esteemed Guests,

I would like to express my gratitude for your attendance in our ceremony on the occasion of the 55th Anniversary of the Constitutional Court and I greet you with all my heart and respect.

A great number of presidents and members of the Constitutional Courts and supreme courts from all over the world and the representatives of international courts are accompanying us today in this ceremony. I would like to welcome all of them and to extend my thanks for standing with us on such a special day.

Two important events, which are of a particular concern to the constitutional democracy, have taken place in our country since our anniversary ceremony of the last year. The first one is the coup attempt taking place on 15 July 2016, which constitutes a dark mark in our history of democracy. Thanks to our public’s consciousness of democracy and firm stand, this attempt aiming at overthrowing the democratic constitutional order failed, and thereby the Turkish democracy successfully has overcome such a significant challenge.

The second remarkable development is the referendum held on 16 April 2017. Democracy is defined, in the most general sense, as the “ruling of the people by the people for the sake of the people”. The most important element of this definition is that the subject of the ruling is the people. As is known to all, the people - as a political subject - express their fundamental preferences through elections and referendums.

In the referendum held on 16 April, our people ensured high participation in voting through a wise and democratic way. The fact that the referendum was held with a participation rate of over eighty-five percent is per se an achievement for our democracy. I would like to take this occasion to wish that this referendum be auspicious for our country and people.

Independently of the referendum, as enshrined in the Constitution, the Republic of Turkey is a democratic, secular and social state governed by rule of law, within the notions of indivisible integrity of the state, national sovereignty and justice, and based on separation of powers and human rights. It must be our common responsibility to bring the democratic Republic that endow with these characteristics, which express our constitutional identities, beyond the level of contemporary civilization that was indicated by Mustafa Kemal Atatürk, the founder of the Republic and that is expressed in the Preamble of the Constitution.

Undoubtedly, the most significant indicator of the contemporary civilization is to secure justice. Justice which is also the raison d’être of the courts is the resource of all virtues. As defined by Aristotle, “All virtues exist together in justice. Justice is not a part of virtue, but the whole virtue”. According to Nizam al-Mulk, just as justice predominates, so does the benevolence; justice is salvation for the rayah (folks) and a cornerstone for kindness.

The Turkish nation has a rich historical accumulation also in respect of the legal and political practices of justice. The principle dominating over the legal and political order of the Ottoman Empire, which is one of the most powerful and sublime states witnessed by the history, is justice. The circle of justice (“daire-i adalet”) having an important role in the Ottoman’s state tradition amounts to an understanding starting and finishing with justice. Obedience by the army, the state and the public, which are the other elements of the circle of justice, depends on merely the establishment of justice. In brief, what maintains order and salvation of the universe is justice. In his speech delivered at the opening ceremony of the First Turkish Parliament on 19 March 1877, the Sultan Abdulhamid II made reference to the role of justice in fate of the states by stating “The development of states and nations can only be achieved by justice”.

These words regarding the importance of justice and its functioning are also prevailing today. Nowadays, the most significant manifestation of justice is the effective protection of the fundamental rights and freedoms. As is also emphasized in a judgment rendered by the Constitutional Court last month, “the task entrusted with the state in democratic countries is to protect and develop the fundamental rights and freedoms and to take measures which would ensure effective enjoyment thereof”.

In this respect, the most important measure required to be taken by the state is to ensure a secure environment where the fundamental rights and freedoms may be enjoyed to the broadest extent possible. In an insecure environment, it would become difficult or even become impossible for the individuals to effectively enjoy their fundamental rights and freedoms from the right to life to the freedom of expression. Security and liberty are therefore values complementing each other.

The delicate relation between liberty and security especially comes into prominence in periods during which emergency administration procedures are in force. As is also underlined in the judgments of the Constitutional Court, “the aim of the emergency administrations must be to secure and protect the constitutional order”. In other words, the aim of the emergency administrations is to eliminate the threat resulting in the state of emergency and to ensure returning towards the ordinary period through which the fundamental rights and freedoms may be enjoyed to the optimal extent.

His Excellency Mr. President,

It is obvious that there are significant duties on the part of the constitutional courts in case of state of emergency. The first and foremost among these is to protect the fundamental rights and freedoms against the interventions that go beyond the extent required by the state of emergency.In performing these duties, the constitutional courts must act within the constitutional framework of the emergency administration.

Within this context, the Turkish Constitutional Court renders its decisions and judgments in the fields of the constitutionality review and individual application by remaining within the constitutional boundaries. This is a constitutional requisite by virtue of Articles 6 and 11 of the Constitution which respectively provide for that no organ shall exercise any state authority not emanating from the Constitution, and that the provisions of the Constitution are binding upon legislative, executive and judicial organs.

In constitutional democracies, the one drawing the map of powers is the constituent power, in other words, the constitution-maker, and the map of powers is the constitution. It may be certainly asserted that such boundaries are insufficient to secure a state of law along with its all institutions and rules. However, the existing constitutional boundaries are binding upon all of us by the time they are changed. Therefore, it cannot be expected from the Constitutional Court, which is entrusted with the task of protecting such boundaries, to go beyond these constitutional boundaries.

Changing the rules, which are explicitly set out by the constitution-maker as to its wording, meaning and legislative intent, by way of interpretation indeed amounts to making a constitutional amendment through the Court. It is without any doubt that this would lead to a debate of judicial activism and legitimacy. Therefore, the “rights-based” approach adopted by the Constitutional Court must be understood as the protection of the fundamental rights and freedoms by means of remaining within the constitutional boundaries and not resorting to judicial activism.

Within this scope, for instance, Article 148 of the Constitution which entails the duties and powers of the Constitutional Court explicitly sets forth that the decree-laws issued under a state of emergency cannot be brought before the Constitutional Court on the basis of their alleged unconstitutionality as to form or substance. In the light of this explicit constitutional provision and the principles cited above, the Court held that it did not have the jurisdiction to review the decree-laws issued under the state of emergency.

On the other hand, it has been revealed that the constitution-maker envisages that the decree-laws in question be subject to judicial review following their ratification by the parliament. As a matter of fact, actions for annulment of certain decree-laws which had been issued under the state of emergency and subsequently enacted upon being ratified by the Grand National Assembly of Turkey were filed with the Constitutional Court. In respect of these actions, the preliminary examination process was completed; however, the examination as to merits has still been pending.

His Excellency Mr. President,

As is known, one of the most significant changes taking place in the Turkish constitutional jurisdiction is the assignment of the task to examine the individual applications to the Constitutional Court upon the constitutional amendment of 2010. The Court has so far fulfilled this duty with due diligence and in an effective manner, which is also confirmed in the international arena.

As I also expressed with satisfaction in my speech last year, the annual ratio of applications concluded by the Court is ever increasing year by year. This ratio, which was 50% in 2013, increased to 53% and to 77% in 2014 and 2015, respectively. The ratio of concluding the individual applications lodged with the Court increasingly continued until July 2016 and reached to 85%. Our aim was to increase this ratio to 100% by the end of year in 2016; however, the coup attempt of July 15th took place in Turkey. Nevertheless, the number of individual applications concluded by the Court in 2016 is more than that of 2015.

The coup attempt has had an impact on the Court as well as other institutions and organizations. Following 15 July, the number of individual applications has considerably increased. In 2016, while 12.712 individual applications were lodged with the Constitutional Court until 15 July, 68.044 individual applications were lodged with the Court in the remaining five and a half months of the year. The number of individual applications filed in the first months of 2017 is less compared to the last months of 2016; however, the Constitutional Court has continued receiving individual applications which are higher in number than those filed in the ordinary period.

The number of individual applications pending before the Court as of today is 101.557. Out of these applications, 75% of them are comprised of those lodged within the scope of the state of emergency. This number is much higher than the total number of applications lodged with the European Court of Human Rights by 47 countries.

The Court has been taking necessary measures since the first day due to this heavy workload breaking out unexpectedly and within a short time. The Constitutional Court primarily increased its capacity for “receiving application”. This increase was sometimes about tenfold higher compared to the ordinary period. Subsequently, these applications were “registered” and “classified” by the Court.

Furthermore, necessary actions were taken for concluding the applications classified according to their subject-matters. The leading case-files in respect of which principle decision would be rendered were determined on each subject-matter and were communicated, by virtue of law, to the Ministry of Justice for receiving observations of the Ministry.

While carrying out such actions on one hand, for several months the Constitutional Court has been, on the other hand, conducting technical-legal study as to in the light of which principles and how to examine the individual applications in time of state of emergency. This study under which the relevant case in the international law and the comparative law is also dealt with is about to be completed.

Out of the applications lodged following 15 July, those which were filed against the acts and actions directly materialized by virtue of the decree-laws issued under the state of emergency take a significant place. For this reason, introducing the opportunity to apply to the Commission, which was established by the Decree-Law no. 685 on the Establishment of the Commission for the Examination of Proceedings under the State of Emergency, against the actions directly performed by virtue of such Decree-Laws and subjecting the decisions of the Commission to judicial remedies are important improvements.

A considerable number of individual applications were lodged with the Court in respect of the other acts and actions falling into the scope of the state of emergency. The applications lodged due to the measure of detention constitute a great part of these applications.

The technical study carried out, by the rapporteurs, on one of the leading case-files under which the examination procedure and method of the measure of detention within the scope of the state of emergency would be established is about to be completed, and accordingly, a principle decision will be soon rendered in this respect. Following the conclusion of the leading case-files, it is aimed to conclude also the individual applications regarding the measures of detention within a reasonable period.

In the meantime, it should be noted that the Constitutional Court also continues examining the applications lodged in the previous years. The Court could uninterruptedly maintain its ordinary process also in the period following the coup attempt of July 15th and concluded the applications that were filed mainly in 2014. Accordingly, the Constitutional Court rendered various decisions and judgments in respect of almost all fundamental rights and freedoms from the right to life and the freedom of expression.

Consequently, the Constitutional Court has, within a few months, encountered with a high volume of workload which has never been faced with by any national or international judicial body examining individual applications. I would like to emphasize that the Constitutional Court, which has at the same time maintained its ordinary process, has acted in a rapid and decisive manner and has taken and continues taking all necessary measures.

The individual application system, which serves for the better protection and improvement of the fundamental rights and freedoms, is a crucial acquisition for our country. Therefore, it must be noted that the endeavours to reflect the system of individual application as an ineffective remedy are not proper.

His Excellency Mr. President,

In this part of my speech, I would like to deal with a matter which poses a threat to the contemporary civilization and is of a particular concern to all of us. This matter is xenophobia which has been especially promoted and increasingly deepened in the West.

As is known, many constitutional courts in Europe and the European Court of Human Rights were founded in reaction to the intensive human rights violations taking place in the course of the Second World War and to the totalitarian regimes giving rise to these violations. The raison d’être of the relevant courts is to protect the fundamental rights and freedoms.

I consider, in spite of these historical facts, adopting the same opinion and maintaining the same conscience is a great tragedy at the point where we stand now following all wars, massacres and systematic right violations taking place in the last century. What is much graver is feeling the effect of the xenophobia and Islamphobia, which have originally taken place in the social and political field, also within the judiciary.

Within this scope, the prohibitive decisions rendered by the national and international judicial organs especially concerning headscarf are remarkable. It is not possible to associate this approach, which on one hand closes doors for the refugees and consider them as detrimental elements that must not be allowed to enter inside their country and which on the other hand excludes headscarf from public and social spheres, with the human rights which are one of the fundamental values of the Europe.

Such an exclusivist approach, which has increasingly become widespread and new instances of which we encounter with every day, would make Immanuel Kant, who stated “not as a matter of charity but by virtue of ¢the right to hospitality¢ they have, we are obliged not to treat aliens, upon crossing our borders, as an enemy”, turn in his grave. In the same vein, this attitude which does not fulfil their responsibilities towards those who they regard as “the other” makes the spirit of Emmanuel Levinas, who said “The conscience of the European is not at ease at the very hour of its modernity (...) it is also the guilty conscience arising at the end of many ongoing thousands of years”, suffer anguish.

It is beyond question that what underlies this important matter is the failure to establish a proper relationship with “the other”. Therefore, the way to eliminate the global guilty conscience being suffered is to regard someone else as a human being and to acknowledge human rights are at the same time “the rights of the other”. This approach requires adopting and internalising an understanding which regards human being as “the most glorious of those created by Allah” (eşrefî mahlukât).

Indeed, we all know a philosopher and a statesman who was the pioneer of this understanding. This person is the late Alija Izetbegović. He was addressing as follows in the middle of a devastating war during which his public was being slaughtered at the centre of Europe and in front of the whole world: “being humane and maintaining to be so are our responsibilities towards Allah and us”.

Alija transferred the notion of “being humane and maintaining to be so”, which was completely qualified by him as a moral value, to the political field and indicated that this notion corresponded to “a lawful state” where “no one would be subject to oppression due to his religion, national (identity) or political belief” and where this is deemed to constitute the fundamental law. In brief, the notion of “being humane or maintaining to be so” was formulated, in the political context, as the pluralist, democratic state of law.

The dimension of “maintaining to be humane” of this notionmeans not to diverge from law and the rule of law even in the most critical situations. I hope that the humanity adopting the same opinion and maintaining the same conscience and therefore seemed to be exposed to new guilty conscience would pay attention to the universal message of Alija Izetbegović.

His Excellency Mr. President,
Esteemed Guests

On this occasion, I would like to express my condolences to the relatives of Mr. Necdet Darıcıoğlu, the retired President of the Court, Mr. İhsan Necdet Tanyıldız and Mr. Ahmet Oğuz Akdoğanlı, the retired justices of the Court, and all of our other personnel, who passed away last year. May Allah rest their souls in peace!

I would like to express my gratitude, on behalf of the Court and myself, to the Vice-Presidents, members, rapporteurs, assistant rapporteurs and all personnel of the Court, who are serving under a heavy workload in a devoted manner and with great eagerness.

I firmly believe that declarations to be presented and discussions to be held during the symposium which will start in the afternoon will make significant contributions to the accumulation of the constitutional jurisdiction. I would like to express my thanks in advance to all participants who will provide contributions for the symposium through their declarations, questions and comments.

Once again, I would like to express my gratitude for your participation to honour our anniversary and for your attention. I extend my wishes of health and prosperity to all of you.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

XENOPHOBIA, RACISM AND ISLAMPHOBIA IN RELATION WITH MIGRATION*

 

Esteemed participants,

Distinguished guests,

I greet you all with my sincere feelings and regards,

 

Before I start, I would like to thank Mr. Şeref Malkoç, the Ombudsman of Turkey, for his kind invitation, and I wish him success in his position as Ombudsman that he has taken up recently.

Likewise, I would like to congratulate the Ombudsman Institution for holding an international symposium on such a vital topic and congratulate its personnel who have contributed.

Let me start with a simple determination which we all know and observe in our daily lives: Diversity is essential in social life. We live together with people from different religions, beliefs, races, ideologies and worldviews. This is not a preference or a matter of good or bad, but a sociological reality. Management of diversity which is a dominant factor in the social life is one of the oldest and most complicated issues in the theory of policy and constitution.

The most important aim of a democratic state of law based on human rights is to constitute an environment in which diversities coexist. The prerequisite for this is to be able to establish a sound relationship and to live together with people who do not think like us, who do not believe what we believe, and who do not speak the same language with us, in short, with “the others”.

Issues such as “xenophobia, racism and Islamphobia”, the theme of today’s panel, are attitudes and behaviours which should be taken into consideration in the management of diversities and should be corrected. These are, in principal, the reflections of a pathological relation of “me and the other” and “we and the others” within an egocentric understanding at ontological level. Xenophobia represents the negative feelings of a native person against another who has come after him or is different from himself. Stranger is the other. He is the one who do not consider or live in the way we do. In short, he is the one who is different.

It must clearly be stated that, in particular, today’s Western world suffers from these social and political diseases. As these ill understandings which do not accord a right to life to “the other” gain grounds day by day, the greatest threat to the values such as human rights, democracy and rule of law, as well as, to the political systems shaped by these values emerges and grows. In brief, xenophobia, racism and Islamphobia are the dark faces of our age.

Xenophobia has a long history and deep roots. Migration to the West, which has been increasing since the second half of the last century, and especially the terrorist attacks of 11 September 2001 have exacerbated the spread of xenophobia, racism, discrimination and Islamphobia.

We can see the reflections of xenophobia, racism and Islamphobia in the news every day. Arsons of mosques, killings of Muslims, assaults against the women wearing headscarf, and insults against the sacred values of Muslims are the main Islamphobic behaviours. When these behaviours are not punished, modern versions of Ku Klux Klan is encouraged, and the ways for new Auswitches and Srebrenitsas are being paved.

Human-oriented understanding

Distinguished guests,

Fight against xenophobia and racism may be achieved by prioritizing a “human-oriented” understanding in social and political spheres. It is known that such understanding is deep-rooted in the East and the West.

In his famous poem, Rudyard Kipling states that the distance between the East and the West will not disappear. The poem reads as “East is East, and West is West, and never the twain shall meet/Till Earth and Sky stand presently at God’s great Judgment Seat”.

However, just to spite Kipling, the East and the West can unite on the human-oriented understanding. That’s because we have a rich historical and cultural accumulation on both sides of the world in this regard.

Philosophers forming the spiritual roots of the Anatolia, such as Yunus Emre, Mevlana and Hacı Bektaş-ı Veli, have made unique contributions to co-existence through their human-centered messages promoting tolerance and affection among the society. Hacı Bektaş-ı Veli says “the second requirement of the eternal truth is not to condemn seventy two nations”. Yunus Emre’s expression “Love the created for the creator’s sake” and Mevlana Celalettin Rumi’s expression “the raison d’être of universe is human beings” and his call “Come, come again, whoever you are” reveal the same truth.

This truth is the fact that human is a value by its very nature, not a means, and that exactly for this reason, he deserves respect/tolerance.

Neither the East nor the West is homogeneous. Apart from thoughts generating/feeding xenophobia, racism, and Islamphobia, there also exist long-standing strong thoughts supporting pluralism and tolerance. The famous philosopher, Immanuel Kant, is one of the most leading representatives who defend these thoughts.

Kant mentions of “the right to hospitality” in his article titled “Perpetual Peace” and written in 1795. This right envisages that every foreigner going to another country is entitled not to be treated as an enemy. Therefore, not as a matter of favour or charity but as a requisite of respect for their rights, we are obliged not to show hostility towards foreigners crossing our borders.

The “right to hospitality” introduced by Kant notably applies to refugees nowadays. Indeed, Turkey has been making historical contributions in terms of promoting the right to hospitality of “the other” by opening its heart and doors to over three million refugees.

However, Kant’s intellectual inheritance on the right to hospitality could not be maintained by his people today. In many countries of the West, refugees are treated like “viruses” that must not enter through the borders. In some places, money of these refugees is seized or they are forced to wear a wristband for control or only those who belong to a certain religion are accepted. Moreover, some people even say that those who want to cross the borders must be shot.

On the other side, the refugees’ hopeful attempts to move to the West have turned into tragedies. People who have tried to cross the sea have got drowned, and dead bodies of children have come ashore. Actually, what has come ashore is the dead bodies of humanity that reflects on “the other’s” face. These dead bodies which came ashore are the shameful images of an age “that has lost its heart”. These images reflect the guilt of humanity.

Hate speech

Esteemed guests,

One of the most important elements which exacerbate xenophobia, racism and Islamphobia is hate speech. In the Recommendation 97(20) of the Committee of Ministers of the Council of Europe, dated 30 October 1997, hate speech is defined as follows: “the term "hate speech" shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin”.

While there are some discussions about its scope, hate speech that is based on nation, race and religion has been banned in the international documents concerning human rights. For example, the European Court of Human Rights has expressly stated that hate speech cannot fall under the protection of the freedom of expression.

The Turkish Constitutional Court has also emphasized that tolerance and equal respect for human dignity constitute the basis of a democratic pluralistic society, therefore, within democracies, “punishment or even prevention of all statements disseminating, inciting, praising or justifying hatred based on intolerance may be deemed necessary”.

Hate speech undermines a democratic society based on human rights and rule of law. Therefore, there must be a decisive fight against hate speech in all cultural, social, political and legal fields.

In this context, attention must be paid to the discourse used in the fight against terror and terrorism, which has acquired a global dimension. It is necessary to avoid the expressions where the terms “Islam” and “terror” are used together or where Islam is used as an adjective of terror. Such discourse strengthens the Islamphobia industry. We should borne in mind that −independent of the religion, race and political view of its perpetrators− terrorism is one of the most significant obstacles before the ideal of a multicultural and pluralistic democratic society.

In addition, as required by the universal nature of human rights, these rights are not only applicable to those who are like us, but also to those who are different from us. The subject of the human rights is not “citizen” but “human”. In the universal and regional conventions on human rights, the term “everyone" has been used as the subject of the rights and freedoms.

Similarly, in our Constitution, the provisions concerning fundamental rights and freedoms, except for certain political rights, start with the subject “everyone” or “no one”. As a matter of fact, a large number of foreigners have lodged individual applications to the Constitutional Court.

So far, 736 applications have been lodged with the Constitutional Court by foreigners. 212 of these applications have been lodged by the foreigners against whom a deportation order has been rendered. In 142 applications out of 212, the Court suspended the deportation process.

The applicants in some of these applications have maintained that as they are Muslims, they have faced discrimination and Islamphobia in their countries, and some other applicants have

claimed that they are not safe in their countries, as they have changed their religion to Christianity.

Distinguished participants,

As a matter of course, social values and institutions emerge in and transform to different concepts depending on historical progresses and diverse lands. However, the values we embrace today, such as justice, freedom, human rights, state of law, pluralism and tolerance, are common values of both the East and the West. It is our joint responsibility to develop and transfer to the next generation a human-oriented culture and practice, by protecting these values −notably the other’s “right to hospitality”− and paying due consideration to social and political pluralism rather than seeing them as a threat.

In this respect, there are two ways to fight against xenophobia, racism, and Islamphobia: the first one is to spread the human-oriented understanding. Humans are born innocent and they learn malignity and hostility afterwards. Indeed, attitudes such as xenophobia, racism and Islamphobia are deviations which we have learned or have been thought long after we were born.

Therefore, the step needed to be taken is to change this learning process. Samples of both malignity and goodness exist in history and nature. What all matters is our preference of these two options while building the present and the future.

The second step is to revise the legal means in this respect to ensure their effectiveness. In both the national and the international human rights laws, a firmer stand must be taken especially on the fight against hate speech and racism. It should be borne in mind that any tolerance to hate speech will contribute to xenophobia and racism.

In place of the Conclusion: “Being Human and Staying Human”…

I would like to end my speech by commemorating the wise statesman, Alija Izetbegović. “It was 25 March 1994… Two hundred thousand (200.000) Bosniacs were killed, six hundred thousand (600,000) people were exiled and 800 mosques were bombed. Cities and villages of Bosnia-Herzegovina were devastated, and the military hospital in Sarajevo was bombed for 160 times…” After narrating all these, Izetbegović notes a remarkable statement: “being human and staying human are our responsibilities towards Allah and ourselves”.

Aliya Izetbegović explains the meaning of the concept of “being human and staying human” ─which he completely describes as a moral concept─ in political discourse and in practice as follows:

“In political discourse, it means that we will try to establish a legal State. This also means in practice that in this State no one will be persecuted for their religion or for their national or political belief. This is our most fundamental rule. That is how we have succeeded the trial. You can still hear the sound of the bells coming from the cathedrals and churches in the areas under the control of the legal authority and the Bosnian-Herzegovinian army.”

We hope that our old world will learn from the bitter experiences of the past and follow the wise path of Izetbegović.

I thank you for your attention and I greet you all with respect.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

 

 


*The speech prepared for the 4th International Ombudsman Institutions Symposium on “Migration and Refugees” held by the Turkish Ombudsman Institution. Ankara, March 2-3, 2017.

His Excellency Mr. President,
Esteemed Guests,

I would like to welcome you to the swearing-in ceremony of our newly appointed justices of the Constitutional Court and I greet you with all my heart and respect.

I congratulate our justices who are about to assume office after the oath and I wish them success.

I believe that Assoc. Prof. Dr. Recai Akyel, who has worked in public administration for many years, will carry his vast experience to the field of constitutional justice and will make important contributions to our Court considering his past position as a district and province governor.

Likewise, I would like to express my belief that Prof. Dr. Yusuf Şevki Hakyemez, who is known for his studies in constitutional law and especially for his works on the Turkish Constitutional Court’s approach to fundamental rights, will make significant contributions to the development of the “rights-based” case law of our Court.

Once again I want to congratulate our new justices and express my belief that the Court and this Country will greatly benefit from their service.

Also, I would like to welcome our guests from 13 countries who are among us for the “Summer School Programme” organized for the fourth time by our Court within the framework of the Association of Asian Constitutional Courts and Equivalent Institutions.

As is known, in the history of countries and nations there are moments of truths and turning points. The 15th of July 2016 is such a day for this country. On July 15, we witnessed one of the most important events not only in the Turkish political history but also in the history of modern democracy.

On this night we experienced opposite feelings. First a faction/junta within the Turkish Armed Forces caused us to witness despicable moments. By attempting to destroy all democratic efforts and achievements, they made us feel the shame of the possibility of turning back to the days that we recall as the dark pages of our history.

But at the same night, our glorious nation erased this disgrace by showing a heroic resistance and let us enjoy dignity. The night that started dark witnessed a democratic resistance, and a history of democracy was made that we will pass onto future generations with honor. The night of 15 July once again confirmed the following words of late Alija Izzetbegovic: “History always repeats the same story: People that are ready to die win against those who aren’t ready.”

Taking this opportunity, I want to note that I owe a gratitude, on behalf of our Court and on my own behalf, first of all to our President, all other statesman, the leaders of the governing and opposition parties, the patriotic members of the Turkish Armed Forces and the National Police, the media who showed a democratic and firm stance, and above all to our brave and courageous nation that had nothing more than flags in their hands yet stood strong against the tanks at the cost of their own lives for letting us experience this dignity and honor.

The sole raison d’être of the Constitutional Court is to protect the constitution and the fundamental rights and freedoms secured within. That is why the Constitutional Court justices swear on their honor and dignity to protect the Constitution of the Republic of Turkey and the fundamental rights and freedoms. Of course, the duty to protect the constitution and rights is fulfilled within the scope of the powers granted by the Constitution.

The purpose of the coup attempt of July15 was in essence to overthrow the democratic constitutional order and the fundamental rights and freedoms secured by it. If this attempt would have succeeded as before, the mission of the constitutional court to protect the constitutional and fundamental rights would have been rendered meaningless.

For this very reason, during that evil night at the densest moment of the darkness, for the first time in the history of constitutional justice, the Constitutional Court made a public statement. This statement was as follows: “We repudiate all kinds of antidemocratic attempts against the constitutional order and we would like our beloved nation to know that we stand beside the democratic constitutional state.” We considered this statement as a must arising from our duty to protect the constitution and fundamental rights.

Taking this opportunity, I once again want to express my belief that the Constitutional Court justices will dully fulfill their duty to protect the Constitution and fundamental rights against any kind of anti-democratic and unconstitutional attack by staying loyal to their oaths.

His Excellency Mr. President,

We have to analyze the mentality and structural problems behind this coup attempt well. As it is the case with all coup and coup attempts, an understanding of “tutelage/paternalism” lies behind July 15. This paternalism implies nothing more than delirium of a group who thinks that they hold the magic globe of truth in their hands so that they are entitled to form the society and the state and to tame them or so to say to bring them to heel. The civil-military bureaucratic tutelage that leans on different ideological buttresses at different times is based on the hypothesis that the democratic political mind is insufficient at institutional levels. On individual level, it is fed by the thought that an individual should not be left to him/herself and must be guided otherwise he/she cannot make right decisions. In any case, putting a restraint on the institutional and individual mind is at issue. Exactly for this reason the famous philosopher Kant described paternalism as “the greatest conceivable despotism”.

What makes the paternalism behind July 15 worse and more dangerous is that its proprietors belong to a structure striving to capture all layers of civil and political society and acting with this purpose in mind. Therefore this exacerbates the current danger to the extent that it is not comparable with the previous ones.

Hence the Constitutional Court pointed out in its decision taken unanimously dated 4 August 2016 the following: “The facts that the FETÖ/PDY has been organized within nearly all the public institutions and that the concrete coup attempt is conspired by this structure turned the potential (possible) danger into existent (present) danger and made it compulsory to take extraordinary measures in order to maintain the democratic constitutional order.”

As a matter of fact the existence of tutelage/paternalism on this land is nothing new. Since the 1913 Ottoman coup d'état (also known as Raid on the Sublime Porte-Babıali Baskını) we have witnessed classic, modern and postmodern types of tutelage. This witnessing thought us that coups and coup attempts cannot have any legitimate ground whatsoever. Any person or any institution cannot infer justifications for coups from any text and secular or religious ideology. The real guardian of the democratic constitutional regime in Turkey is the nation itself.

Coups are, in a way, putting our political will and mind into a straitjacket. Military interventionism (darbecilik) attempts to encroach on the national will, and it is an incorrigible disease in the paternalistic elitism’s claws silently gnawing democracy and an overall political perversion.

Those who have been caught this disease should be reminded that in democracies the only way to come into power is through election. And the way to amend the Constitution or make a new one goes through convincing people and gaining the support of the nation, and consequently through the parliament. Any other roads are dead ends without any legitimacy.

July 15 is also the turning point to hold this sick and antidemocratic mentality to account. This nation demonstrated that it will disallow coups at the cost of its life and blood, and that the sovereignty only belongs to itself. I believe that July 15 marks the day that brought an end to the ill fate of Turkey on coups and coup attempts, and it is the beginning of mental revolution that is an essential part of constitutional democracy.

Protecting the democracy, the constitution and all this values against those who try to abolish the legal system, thus the constitutional rights and freedoms, especially the right to life of individuals, is the fundamental duty of the state and is moreover its raison d'être. This is not a matter of choice but a constitutional obligation. But how and with which methods this will be achieved depends on the choices the political will is going to make within the scope of the Constitution.

Yes, constitutions are social contracts, but not, as in the words attributed to Abraham Lincoln, “suicide pacts”. That is why no constitution can remain unresponsive to actions intending to overthrow the democratic constitutional order. In almost all modern democratic constitutions, extraordinary administration procedures or state of emergency that allow in such circumstances to further limit fundamental rights and freedoms are prescribed. This is because extraordinary situations result from the fact of “necessity”. Serious threats to the existence of the state and the nation create without doubt a state of necessity.

However, the democratic conception of state of emergency rejects the complete suspension of constitutions and rendering fundamental rights and freedoms totally dysfunctional. Therefore a state of emergency is not a state of lawlessness. Indeed the state of emergency is regulated in detail in the Constitution, and the limitations of fundamental rights and freedoms during a state of emergency are clearly defined. Of course the aim is to return to normal situation as soon as possible, by eliminating the threats to fundamental rights and freedoms.

The objective of democratic constitutions is to maintain the constitutional order securing the individual’s rights and freedoms. This can be achieved through securing the social order and security because it is hard to talk about freedoms when there is no security. In this sense, security is an individual right and the precondition for the protection of other rights and freedoms. As to liberty, again in the words of Alija Izetbegovic it is “what gives meaning to our lives”. That is why freedom and security are not opposing but complementary values to one another. Security and freedom are equally essential for a dignified individual and social life. Just like the air we breathe, in their presence we don’t appreciate them, but in their absence we cannot breathe.

Justice is undoubtedly the core value in arranging the relation between two vital values of freedom and security Justice is the cement of the legal order and the basis state. Therefore during exceptional times where fundamental rights and freedoms become more fragile the establishment of justice is much more important.

His Excellency Mr. President,

July 15 is maybe one of the most formidable crises of our political history. What is our part as a state and nation is to overcome this crisis in unity and to carry the democratic state of law to the future by reconstructing it on the basis of justice, security and freedom in a strong and powerful manner.

The unity that has been formed after July 15 has rebuilt the idea of “us” by gathering all different elements of the country under one roof. This unity does not mean uniformity or that everybody has the same thought in all matters. On the contrary, it is a unity and solidarity that will surround those who do not think alike, believe alike or live alike.

With this understanding, what we, especially our representatives, owe to the Martyrs and veterans of July 15 is a new constitution that totally eradicates the paternalistic mentality lying behind coups and coup attempts, that declares the will of nation as the sole source of political power, and that forming a democratic state of law with all its institutions based on human rights. Actually the spirit of the social and political unity after July 15 has also provided the necessary climate for a new constitution.

A democratic and liberal new constitution is really important on the one hand with regard to mounting on the level of contemporary civilizations founder of our Republic Mustafa Kemal Atatürk has referred to, and on the other hand with regard to crowning the democratic acquisitions.

However, it should be noted that the constitution is not everything. Moreover, if the fire of freedom in the hearts of the people goes out, the constitution would be meaningless. During World War II Judge Learned Hand said the following in his speech delivered at Central Park that became known as the “Spirit of Liberty”: “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”

The coup attempt of July 15 showed that the liberty in the hearts of our people on this land has not died, and that there are millions of people ready to sacrifice their lives to carry this fire in their hearts. And this demonstrates that liberty and democracy are not granted or donated by someone from above but are values achieved through the struggle of the society by paying a heavy price, and they are thoroughly deserved. Now our biggest duty is to protect those values and implement them with all requirements and pass them on to future generations.

Finally, it must be noted that the “free world” did not do well about the event of July 15 that will go down in the world’s history of democracy. Those who come out at every opportunity as the owners and defenders of democratic values acted like in “the Silence of the Lambs” against the attempt in Turkey to destroy the democracy intentionally with deadly weapons, and the democratic resistance in the face of it.

On the contrary the day after the coup attempt some also published messages of solidarity. For instance, the Conference of Constitutional Jurisdictions of Africa that has 35 member countries published a message, which they also sent us, on July 16 that they denounce the coup attempt and are in solidarity with the Turkish Constitutional Court. Likewise, the statement of solidarity of the Association of Asian Constitutional Courts and Equivalent Institutions rejecting the coup is precious for us.

Taking this opportunity I want to extend my thanks to the directors of these two international organizations that are working in the field of constitutional justice, to the presidents of the relevant constitutional courts and high courts.

At the end of my speech, I want to pray for all our martyrs and retired presidents and justices who passed away. May Allah rest their souls in peace! And I wish the veterans and retired justices a healthy and prosperous life!

His Excellency Mr. President,
Esteemed Guests,

I would like to express my gratitude for your participation in the swearing-in ceremony and I extend my wishes of pleasant and peaceful days.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

The 15th July Coup Attempt and the State of Emergency: A New Challenge for the Constitutional Democracy in Turkey

 

Distinguished participants,

Ladies and gentlemen,

I would like to thank the Chief Justice of Indonesian Constitutional Court, Mr Hidayat, for his warm and generous hospitality.

It is pleasure to be here and speak to such distinguished colleagues.

As you know, our country has experienced a flagrant coup attempt recently. Fortunately, the perpetrators have failed and our democratic regime survives because of brave resistance of Turkish people.

There is no doubt that the recent coup attempt created a new constitutional and legal situation in Turkey. This is perhaps one of the most serious challenges that our constitutional democracy has faced so far.

What happened on 15 July 2016?

I would like to give you a brief information about what happened at that night by showing you a short video.

[Video 2 min]

It was indeed a horrible day for all of us in Turkey. It was the day that lasted more than a hundred years to borrow the words of Chinghiz Aitmatov. I was at home with my family while the fighter jets (F 16s) started to bomb parliament which is only a few kilometre away from us. It was as if we, ourselves, were bombarded. My youngest son, who is only 12, kept asking me this question with a trembling voice: “Daddy are these warplanes going to bomb us?”. I said “No”, but I was not sure my answer was correct.

I wasn’t sure because the following day we found out that the perpetrators, a faction/junta within the army, launched a terrorist campaign firing at their own people and bombed the Turkish Parliament, Office of the Presidency and Police Headquarters.

This attempt soon was taken under control due to the continuous efforts of the political leadership including the President and the Parliament, of all political parties, the media, and significant sections of security forces from both the army and the police. Above all, it was the democratic will and resistance of the Turkish people which proved to be decisive in stopping this coup-attempt. The failed coup attempt was an indication of Turkish people’s awareness and the consolidation of Turkish democracy.

Judicial Reactions to the Coup Attempt

The Turkish Constitutional Court made a press statement at the very beginning of the coup attempt, after a couple hours when we realized it was a coup attempt. In the statement we pointed out that we repudiate all kinds of antidemocratic attempts against the constitutional order and stand beside of democratic constitutional state. The Turkish Constitutional Court’s press statement played an important role to protect constitutional order and democratic values by demoralizing the plotters and encouraging the Turkish nation.

The Constitutional Court’s firm reaction to the attempted coup was followed by other high courts such as the Council of State, the Court of Cassation, and the Military Court of Cassation. On 16 July 2016 the public prosecutor ordered to arrest hundreds of thousands of people who were believed to be either the plotters of the coup or connected with the organisation behind the coup. They include 2 judges of constitutional court, 140 members of the Court of Cassation, 48 members of Council of State, and more than 3000 (three thousands) judges and prosecutors of first instance courts.

The authorities stated from the very beginning that the failed coup was planned and executed by the “Gulenist terrorist organisation” (FETÖ), which is also known as “Parallel State Structure” in Turkey. As explained in the previous indictments and court decisions, this group created a parallel organization in key posts of the state, especially in security, judiciary and civil bureaucracy. For a long time, the group acted more like a messianic organization than a simple Islamic faction and functioned in secrecy within state institutions. “Concealment” has been the key tactic of the members of the organisation. The members of this group are ordered to disguise their affiliation with movement. (Decision of Turkish Constitutional Court in its plenary sitting dated 4/8/2016, Docket no. 2016/6 (Miscellaneous file) Decision no. 2016/12, § 15).

The Reaction of Government: State of Emergency

State of Emergency is a measure regulated by almost all constitutions and international human rights law, including European Convention of Human Rights.

The Council of Ministers decided on 20 July 2016 that a nationwide state of emergency be declared for a period of ninety days in order to fight against the “FETÖ” terrorist organization in a comprehensive and effective manner which poses a grave threat to survival and security of the state through its clandestine infiltration to state institutions.

It must also be noted that, like France, Turkey resorted to the right of derogation from the obligations in the European Convention on Human Rights for a 3 month period as prescribed in Article 15 of the Convention.

I must say that the coup attempt which was a kind of heinous terror attack is more extensive and disruptive compared to the terror attacks in France or in any other European state. It may be compared to 9/11 of the USA in terms of traumatic affect it created.

During the state of emergency, the Council of Ministers, meeting under the chairpersonship of the President of the Republic, may issue decree laws on matters required by the state of emergency. Under normal circumstances, the Constitutional Court shall examine the constitutionality of decree laws. Article 148 of the Turkish Constitution stipulates that decree law issued during a state of emergency, martial law or in time of war shall not be brought before the Constitutional Court alleging their unconstitutionality.

Nevertheless, within the state of emergency period, the administrative acts and activities are subject to judicial review. The only limitation for administrative courts is that they may not render stay of execution decisions in the cases regarding decisions and acts of administration in the 90 day state of emergency period.

The right to individual application before the Constitutional Court is also available for individuals. Ultimately, they may still lodge an application to the European Court of Human Rights, if they are not satisfied with the decisions of the Constitutional Court, after having exhausted domestic remedies.

The authorities have constantly stated that the purpose of the declaration of the State of Emergency, is not to restrict fundamental freedoms of our citizens, but to eliminate terrorist organization behind the coup attempt in a more rapid and effective way.

The emergency decree laws seem to have two main objectives. First, they aim to demilitarise the social and political life and to ensure the full democratic and civilian control on armed forces. To this end, the army forces of land, air and navy were attached with the Ministry of Defence. Likewise, some of the military schools (colleges) were closed down.

Second objective of the decree laws is to completely eliminate the “Parallel State Structure” which was defined by the National Security Council as a terrorist organisation even before the coup attempt.

Decree Law on Measures Taken within the Scope of State of Emergency no. 667 clearly states that members of the judiciary including the Constitutional Courts (Article 3) and all state officials (Article 4) shall be dismissed from the profession or public service, if they are considered to have affiliation, membership, cohesion, or connection to terrorist organizations or to groups, formations or structures determined by the National Security Council to be engaged in activities against the national security of the State.

The Turkish Constitutional Court’s Stance

As one of the “guardian”s of democratic constitutional order, the Turkish Constitutional Court promptly reacted and took immediate measures during and after the failed coup attempt.

The Court first initiated a disciplinary investigation about two member judges who were arrested and subsequently detained on remand within the scope of the criminal investigation. The Plenary of the Constitutional Court removed them from the office pursuant to Article 3 (1) of the Decree Law no. 667.

In addition, the Court administration removed totally thirteen (13) rapporteurs coming from the other public bodies and institutions and seconded to the Constitutional Court from office, and sent back to their institutions. It has been informed that suspension from office and detention decisions were rendered about eight (8) of these rapporteurs.

We also decided on 29 July 2016 that one (1) rapporteur, seven (7) assistant rapporteurs and fifty-six (56) staff members be suspended from office until a final evaluation is made, pursuant to Article 4 of the Decree Law no. 667.

In its decision concerning the removal of member judges from the Court, the Constitutional Court (a) explained the meaning of the coup attempt for constitutional democracy, (b) interpreted the relevant provision of the Decree Law no. 667. According to the Court, the 15 July attempted coup was the most devastating attack against democratic constitutional order, constitutional rights and liberties and national security. It was already a dark mark in the history of the Turkish democracy (§ 68).

The Court also interpreted the parameters of Article 3 of the Decree Law no. 667 in the following terms. According to the aforementioned article, applying the measure of dismissal from profession on Constitutional Court Judges;

a. it is necessary that a Judge is considered to have “affiliation”, “membership”, “cohesion”, or “connection” to terrorist organizations or to groups, formations or structures determined by the National Security Council to be engaged in activities against the national security of the State and,

b. that this consideration is decided by the absolute majority of the Plenary of the Constitutional Court.

To apply the measure it does not require absolutely a bond between a Constitutional Court Judge and a terror organization, terror activities and by the way the coup attempt; but it is found sufficient if there is a link to a “structure”, “formation” or “groups” that are determined by the National Security Council to be engaged in activities against the national security (§ 84).

On the other hand in order to apply the measure of dismissal from profession, it is not obligatory that the link is in the form of an “affiliation” or a “membership”; a “cohesion” or “connection” is already regarded sufficient (§ 85).

In the end the article states that “certainty” for the link between the Judges and the structures, formations or groups determined by the National Security Council to be engaged in activities against the national security is not required. Nevertheless, it is found sufficient that such a link is “considered” by the Plenary of the Constitutional Court. This consideration expresses the “opinion” that is formed by the absolute majority of the Plenary. Without doubt this consideration is independent from the existence of a criminal liability (§ 86).

The necessity to rely on a certain type of evidence to form this opinion is not set forth in Article 3 of the Decree Law no. 667. It is up to the absolute majority of the Plenary of the Constitutional Court based on which aspects this opinion will be formed. What is important here is to stay away from arbitrariness while forming an opinion (§ 87).

Applying these arguments to the current case, the Court declared that taking into account of the circumstances of the concrete case, the social background information that they are related to the mentioned structure and the common opinion of the Constitutional Court Judges that was formed over time, it is considered that these two Judges have such links to the above mentioned structure that it is not appropriate for them to carry out their profession (§ 98).

The Court has emphasised that otherwise the credibility of and respect for the judiciary would be impaired. It was decided unanimously that it is not appropriate for the members of the Constitutional Court to remain in office and that they be dismissed from their profession (§§ 99, 100).

Conclusion

Turkey faced a devastating terrorist coup attempt that our country had ever faced before.

I would like to mention that there is no doubt that Turkish Constitutional Court is to ensure the fundamental freedoms and rights of individuals in the state of emergency period. Turkey is getting normalized and our Court has been exercising its vital role in the normalization period as in other times.

There is no doubt that the application of decree laws will increase the number of individual applications before the Constitutional Court. That will deteriorate the situation regarding the already heavy workload of the Court. I am sure we will sort out this problem by employing effective means.

We, as the Presidents and Judges of constitutional or supreme courts, should be very well aware of the fact that if there is no democratic constitutional order, there would be no constitutional rights to be protected by these courts.

 

Thank you for your attention.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

His Excellency Mr. President,
Esteemed Guests,

I would like to welcome you to our ceremony on the occasion of the 54th Anniversary of the Constitutional Court and I greet you with all my heart and respect.

The anniversaries of institutions provide prime opportunities to evaluate the contributions of such institutions to society and democratic system. If such anniversary is celebrated by a supreme court, then this evaluation must be with respect to the contributions to a series of values including justice, the rule of law and the fundamental rights and freedoms.

As known by all, the relations between the individual and the state are based on these series of values and there have been various manifestations of such relations depending on the time and place. These values of universal essence all have a corresponding equivalent in our culture. For instance, the understanding of “let people live, so that the state lives” which is deep-rooted in the souls of this land, expresses a human-centred state philosophy. Similarly, we notice the significance of law and justice for the state order in the famous “Kutadgu Bilig” (the Wisdom which brings Happiness) which was written a thousand years ago. In this famous work of Yusūf Khāss Ḥājib, the justice is laid down as the cornerstone of the state and political order, by his expression as “The basis of the State is justice and equity.

Such an understanding shows that the raison d'être of the State is to let the people live by establishing justice. On the other hand, people may lead a peaceful life by enjoying their rights and freedoms in a secure way only in the existence of a state order. One of the most influential political theorists of the last century Hannah Arendt, on the basis of the bitter experiences of the Second World War, expresses that those who were displaced from their countries and became stateless were deprived of their most basic rights as well. In Arendt’s opinion, “the right to have rights” basically means every individual enjoys the fundamental rights and freedoms in their capacity as equal members of a political or legal community.

The importance of having a State with respect to enjoyment of fundamental rights becomes ever clear when we consider the refugee problems caused by the conflicts in our region.

His Excellency Mr. President,

It has become a common purpose of today’s democratic societies to maintain the lives of people and the States on the basis of justice. The Constitutional Courts are among the institutions established to achieve such purpose. Most of today’s democratic countries have a constitutional court examining the constitutionality of the laws. On the other hand, the constitutional complaint or individual application mechanism, which enables the individuals to directly access to constitutional courts with the allegations on violation of their constitutional rights, has gained widespread implementation and became a part of constitutional justice.

In order to evaluate the contribution of the Turkish Constitutional Court to justice, the rule of law and the fundamental rights and freedoms, we must take a look at the approach adopted and the judgments rendered by the Court in these two main fields of duty, namely the constitutionality review of laws and the examination of individual applications. As a matter of fact, the annual report of the Court for the year 2015, prepared as a first of its kind publication and distributed to the esteemed guests, makes such an evaluation possible by providing substantial information on the activities of our Court and its leading judgments.

In this context, in my speech I would like to dwell upon the current status of the individual application and the judgments rendered and the consequences of such judgments. However, before continuing with this issue, it would be useful to mention the principle of the rule of law which is one of the basic principles that the Constitutional Court takes as a reference in its norm review and examination of individual applications.

It must be noted that Turkish Constitutional Court acts on the basis of constitutional democracy as envisaged by the Constitution. The constitutional democracy, which is the prevalent understanding of democracy in our age, aims to realize the rule of law and to provide effective protection of fundamental rights and freedoms regardless of which form of government is adopted by the State. As a matter of fact, in one of its judgments the Constitutional Court noted that the idea of protecting the human rights and even of not being able to raise these rights as issues for voting underlies the basis of constitutional democracy.

It is known by all that the rule of law is the most important element of constitutional democracy. This principle, which is the most widely-relied principle in the Constitutional Court’s norm review with respect to relations between the individual and the State, expresses the rule of law in general terms and its implementation in actual terms.
The Roman jurist Ulpian formulated the basic tenets of the law and, in one sense, of justice as living honestly, doing no harm to others, and giving to each person what is due. The justice is the basis of the State and so is the law that of justice. The law is a vital need of every society like bread, water or air that we breathe. Therefore, ensuring and maintaining the rule of law is the guarantee of a country’s future.

The Court defines the state of law, in its various judgments, as “A state which is based on human rights, protecting and strengthening these rights and freedoms, abiding by the laws in its acts and actions, establishing a just and fair legal order in all fields of life and maintaining this in a progressive manner, ensuring the legal security, avoiding the unconstitutional behaviours and attitudes, ensuring the sovereignty of law on all state organs, deeming itself bound by the Constitution and the laws and being subject to judicial review”.

The Constitutional Court interpreted in its judgments such aspects of the state of law as legal security and independence of judiciary. The Court expressed the requirements of this principle by stating in one of its judgments “the principle of legal security requires that the legal norms be foreseeable, that the individuals have confidence in the State in all their acts and actions and that the state refrain from methods impairing such sense of confidence while making the legal regulations.”

On the other hand, the definition of the regimes as democratic state of law depends on the existence of independent and impartial judiciary and judges. As a matter of fact, a chapter of Mecelle (the civil code of the Ottoman Empire in the late 19th and early 20th centuries) titled “Conduct of judges” expresses “The judge must be impartial towards the two parties”. In other words, it appears that the judge must be obliged to secure the justice by observing complete impartiality towards the two parties.

The Constitutional Court defines the independence of the judiciary as “the basic and most effective guarantee of human rights and freedoms” and the aim of the judicial independence as “the administering of justice free from every form of direct or indirect influence, pressure, instruction and doubt”. As the Court emphasized in one of its judgments “The independence, being a characteristics of the judiciary, is that the judge decides freely and impartially without being exposed to any external influence other than the requirement prescribed in the Constitution and free from any reservations or concerns.”

On the other hand, the institutional independence and impartiality of the judiciary is not per se sufficient for realizing the rule of law completely. In addition to this, the judges exercising the judicial power must be virtuous in person.

In this context, the observations on the judge’s requirement of being virtuous as expressed many centuries ago by Ibn Rushd, one of the important figures of intellectual history, still applies to today. Being a physician and a judge by profession, Ibn Rushd states, when commenting on Plato’s “The Republic”, that ideal state knows neither physicians nor judges; however, they are required due to unhealthy diet and lack of mutual love and friendship among the people.

In the opinion of Ibn Rushd, one of the main virtues to be observed in a judge is that his nafs (self) is free from malice, in other words he must be moral and virtuous. The physician’s illness does no harm to the patient that he treats. However, a morally corrupt judge cannot be fair. As a matter fact, such a morally corrupt judge does not know the virtue and its source. On the other hand, a virtuous judge knows both his inner self and discerns the good and the evil in the others’ nafs through the experience that he accumulates.

Consequently, one cannot mention the state of law in the absence of independent and impartial justice. Undoubtedly, the state of law does not mean a “rule by judges” in the sense of a krytocracy.

His Excellency Mr. President,

As it is mentioned before, the main objective of the constitutional democracies is to ensure effective protection of fundamental rights and freedoms. With the constitutional amendments in 2010, the Constitutional Court was assigned the duty of examining individual applications which was a new and significant step towards realizing the said objective. We must present a quantitative and qualitative review of contributions by the Constitutional Court to the protection of these fundamental rights and freedoms within the scope of this new duty assigned to the Court.

When we look at the statistics, total number of applications filed to the Court since the beginning of the individual application practice (23 September 2012) is 59.833. 37.536 of these applications, in other words 63 % thereof, have been decided by our Court and 22.297 applications are pending.

I am more than happy to share with you that the annual ratio of applications decided by our Court against the number of applications filed is ever increasing year by year. The Court’s annual ratio to decide the applications filed was 50 % in 2013. This ratio increased to 53 % in 2014 and to 77 % in 2015. Accordingly, the Court’s capacity to keep up with the applications filed increased by 50 % in 2015. These figures show that the individual application mechanism has become manageable and sustainable. The measures taken by the Court in the last year with respect to the operation of individual application system made a significant contribution to achieving such progress.

The Court has ruled for violation of rights in its 1.215 judgments. Approximately 73 % of these judgments are on the right to a fair trial, 6 % of them on the right to liberty and security of person, 4 % on the right to property, 3 % on the right to life, 3 % on freedom of expression and 11 % on the other rights and freedoms.

I would like to express that 75 % of the violations of the right to fair trial are related to right to trial within a reasonable time. Of these violations, 55 % are related to trial proceedings lasted 5 to 10 years, 19 % 10 to 15 years, and 16 % are related to proceedings length of which is over 20 years.

As a matter of fact, the lengthy trial proceedings are a general and structural problem. The principles on right to a trial within a reasonable period of time have been established in details by the European Court of Human Rights (“ECtHR”) and the Turkish Constitutional Court. The applications within this scope are decided in line with the said principles and, when a violation of right is identified, the Court awards a just satisfaction as a natural consequence of decision.

In this context, the examination of applications related to right to trial within a reasonable time has become a well-established practice for the Constitutional Court. Further, the ECtHR does not examine this category of applications filed before a certain date and such applications are decided by awarding just satisfaction to be determined by a Commission of the Ministry of Justice established with Law No. 6384 dated 9/1/2013.

As it is known, perhaps the primary reason for such lengthy trial proceedings is the heavy workload of the judiciary. I would like to express that we welcome the positive steps taken to solve this problem. In this respect, we hope that the regional courts of appeal to become operational soon will contribute to deciding the cases within a reasonable period of time. Besides, I would like to share my opinion that it would be beneficial to adopt methods of alternative dispute resolutions, to develop the currently existing ones and to ensure their efficiency in practice.

His Excellency Mr. President,
Esteemed Guests,

I would like to touch upon three effects of the individual application, one of which is practical and the rest of which are transformative on our social life and legal system.

The practical effect of individual application is that it resulted in a considerable decrease in the number of applications filed against Turkey before the ECtHR. As it is specified in the legislative intent of the constitutional amendment adopted in 2010, one of the most important aims for introducing the individual application into Turkish legal system is to resolve the disputes on fundamental rights within our domestic law. The figures verify that we have achieved this practical goal to a considerable extent. The number of applications filed against Turkey before the ECtHR and assigned to a judicial formation has decreased to 2.208 in 2015 while it was approximately 9.000 in 2012.

As it is seen, the number of applications to the ECtHR has considerably decreased after the introduction of individual application. On the other hand, considering that we have decided on 37.536 applications so far, only a very limited number of these applications were further brought before the ECtHR. As a matter of fact, as seen in its various decisions, the Strasbourg Court declares the applications inadmissible for non-exhaustion of domestic remedies if an application is lodged directly with the ECtHR without applying to the Constitutional Court.

The first transformative effect of the individual application is that it is the engine and main instrument of the Constitutional Court’s paradigm shift. This paradigm adopts an approach which prioritizes the human together with his/her fundamental rights and freedoms. The individual application requires a “rights-based” approach by its very nature and this characteristic of the individual application also affected the constitutionality review conducted by the Court. Accordingly, the Court adopted an approach which prioritizes the rights and freedoms in carrying out the constitutionality review of the laws.

Another transformative effect of the individual application practice is that it has provided the individuals with direct access to constitutional justice after exhausting ordinary legal remedies. As it is known, the individual application paves the way for a constitutionality review which complements the norm review. The Court examines the constitutionality of a norm in abstract terms while carrying out the norm review whereas it examines the constitutionality of the acts and actions of public authorities in individual applications.

As a consequence of this process, the Constitutional Court became socialized, in other words it has become an institution which contacts the society and the daily lives of the people. Although the individual application attracted public attention through the applications filed by publicly-known persons, our Court has examined the applications filed by thousands of not so much known citizens on problems which may be faced by almost anyone in daily life and determined violation of certain rights in some of these applications. In this context, thousands of people, having exhausted ordinary legal remedies, apply to the Constitutional Court for various reasons varying from cadastral proceedings exceeding reasonable time period to confiscation of lands without expropriation, from permanent disabilities due to medical negligence to loss of their relatives in traffic accidents.

For instance, in an application, the applicant’s spouse died when the taxi she took was crashed by another vehicle. It was understood that the driving licence of the other vehicle’s driver had been temporarily seized in the past due to drunk driving, that he was drunk at the time of the accident and he caused the accident by driving well above the speed limit and running red light. The criminal proceedings against those causing the accident lasted for 8 years and one month and discontinued due to statute of limitations.

The Constitutional Court emphasized that the discontinuance of the proceedings due to statute of limitations would shatter the applicant’s (spouse of the victim) and the whole society’s confidence in the rule of law and that it would give an impression as unlawful actions are tolerated and the State remains indifferent to such actions. The Court ruled that the victim’s right to life was violated as the actions alleged to have caused his/her death went unpunished.

Although most of the applications relate to these kinds of problems that we may encounter in daily life, apart from these, we see that certain problems of the society which have become chronic and politicized are brought before the Constitutional Court through individual applications. The Court decided on many issues which occupied the public agenda for a long period of time such as headscarf, surname of a married woman, unlawful wiretapping and the press leak thereof, anonymous witness, the use of digital data as evidence in proceedings and internet journalism.

In reviewing all the applications, the Constitutional Court examined the allegations of the applicants on the violation of their rights with a “rights-based” approached with no regard to the applicants’ religious, political or ideological identity. A typical example of the paradigm shift and “rights-based” approach of the Constitutional Court can be tracked down in its judgment on an individual application related to headscarf.

The applicant, who is a lawyer, demanded to participate in a hearing with her headscarf like the way she wears in her daily life. The judge of the court did not permit her to participate in the hearing by referring to the judgments of the Constitutional Court and the European Court of Human Rights on the issue of headscarf. Then she filed an individual application with the Constitutional Court.

In its judgment on the said application, the Constitutional Court recalled the “liberal” understanding of secularism which allows for the religion’s visibility in the individual and public sphere as expressed previously in the Court’s constitutionality review on the provision of law publicly known as “4+4+4”. Acting on the reality of “the existence of different religions, faiths or disbeliefs in the society”, the Constitutional Court emphasized that the State must establish a political and legal order, where the individuals live together in peace with their faiths, by protecting the social diversity.

The Court concluded that the prevention of the lawyer from participating in the hearing by wearing her headscarf violates freedom of religion and conscience and the prohibition of discrimination.

His Excellency Mr. President,
The Constitutional Court rendered important judgments in certain individual applications which were subject to intense public debate and discussion. In this context, the Court ruled in the applications of the detained deputies that their right to liberty of person and right to be elected were violated as their detention exceeded reasonable time period. Similarly, the Court ruled that a retired Chief of Staff’s right to effective objection against deprivation of his liberty was violated as the justifications of the judgment convicting the said retired Chief of Staff was not announced for a long period of time. The Court ruled that the applicants’ right to a fair trial was violated in the cases where a large number of the Turkish Armed Forces staff were being tried and which were followed closely by the public.

On the other hand, the Constitutional Court rendered very important judgements on the freedom of expression as well. The Court emphasized in these judgments that the freedom of expression is a sine qua non element of a democratic society and that this freedom is a requirement of pluralism, tolerance and broad-mindedness. The Court noted that the freedom of expression is applicable not only to opinions that are favourably received but also to opinions and thoughts regarded by others as “disturbing”.

Nevertheless, the Court states in its judgments that the freedom of expression is not absolute in nature and may be restricted for the reasons prescribed in the Constitution. However, as per Article 13 of the Constitution, such restrictions shall not impair the very essence of the freedom of expression, shall not be contrary to the requirements of a democratic society and the principle of proportionality.

At this very point, I would like to touch briefly upon the relation between the freedom of expression and the terror which our country has been fighting against for many years. I participated in the conference on the freedom of expression organized by the Council of Europe in Strasbourg only three days after the terrorist attack to Ankara railroad terminal last year. In my speech at the opening of that conference, I referred to French thinker Lyotard who establishes a connection between terror and the freedom of expression, and I expressed that terrorism confines the people to a dark silence and destroys not only the individuals’ right to life, but also their freedom of expression, freedom to speech and address the society which are the most distinctive characteristics of human beings.

The freedom of expression, in democracies, allows for discussing the most bitter problems freely and defending the proposals and solutions. The prerequisite of such freedom is to abandon the terror, violence and the violent speech. As it is emphasized in the judgments of the Constitutional Court and the European Court of Human Rights, the expressions inciting terror and violence are not protected by the freedom of expression because the word is to be of no significance when the terror and violence emerges.

His Excellency Mr. President,

Consequently, the Constitutional Court contributes through its judgments to realizing such values as justice, rule of law and fundamental rights and freedoms which we mentioned at the beginning. We firmly believe that these judgments increase the individuals’ confidence in the State and the law by satisfying their sense of justice.

For these reasons, individual application can be defined as an important institution and achievement for our legal system. It has been known that the individual application system implemented in Turkey is cited among the best practices which may serve a model to other countries.

It is surely beyond doubt that the principal share of this success belongs to the legislative power which introduced the individual application to our legal system, in other words it belongs to the Grand National Assembly of Turkey and to our nation as the true holder of the sovereignty. Taking this opportunity, I extend my appreciation to all persons and institutions who contributed to introduction and effective implementation of individual application mechanism. I would also like to extend my special thanks to each and every one of our Court’s vice-presidents, justices, rapporteur-judges and assistant rapporteur-judges as well as the administrative staff for all their devoted efforts.

On this occasion, I would like to express my condolences to the relatives of Mr. Hasan Semih Özmert, retired President of our Court, and Mr. M. Yılmaz Aliefendioğlu and Mr. Hüseyin Karamüstantikoğlu, retired justices of our Court, who passed away last year. May Allah rest their souls in peace! I also pray for all our martyrs and all our veterans who passed away, especially for Gazi Mustafa Kemal Atatürk. May Allah rest their souls in peace!

Finally, I would like to express my thanks in advance to all Turkish and foreign speakers and participants to contribute the symposium which will start in the afternoon. I firmly believe that the presentations and discussions to take place during the symposium will make significant contributions to better understanding and implementation of the individual application.

I would like to welcome the esteemed foreign colleagues and guests and extend my thanks for their personal presence and honouring our anniversary.

His Excellency Mr. President,
Esteemed Guests,

Ending my word, I would like to express my gratitude for your participation to honour our anniversary. I extend my wishes of health and prosperity.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

Freedom of Expression, Democracy and Challenges*

 

Distinguished participants,

Ladies and gentlemen,

 

I would like to thank Mr. Jackland, the Secretary General of the Council of Europe, for kindly inviting me to this conference and providing the opportunity to address such eminent participants.

My speech consists of two main parts. In the first part, I will try to answer the question in the subtitle of this conference. The second part of my speech is devoted to a cursory analysis of the Turkish Constitutional Court's(TCC) approach to the freedom of expression.

           1.Freedom of expression as a precondition for democracy

An affirmative answer to the question whether freedom of expression is still a precondition for democracy must refer to both instrumental and essential justifications. The freedom of expression is still a precondition of democracy for at least three reasons.

First of all, we must have the right to the freedom of expression because it maintains diversity and plurality, which are requirements of a democratic society. We live in a diverse society in terms of nationality, ethnicity, religion, ideology, life style and so on. Since modern democracy is and must be pluralist, it requires the cohabitation of different and often conflicting ways of life, ideas and ideologies. The freedom of expression is an effective instrument of nurturing and maintaining such a diverse and plural society and politics.

The freedom of expression is the freedom to address others. As a prerequisite of dialogue among individuals, the act of speaking renders us as interlocutors in the community. Therefore, imposing silence on someone deprives him/her of addressing others. In Lyotard's view, death sentence is evidently wrong because at the same time "it implies the exclusion of the speaker from the speech community".1 In other words, killing means to "refuse to others the role of interlocutor."2

Lyotard's argument is also applicable to terrorism, which is a serious threat not only to the right to life, but also to the freedom of expression. Terror is an act of violence that excludes people from the speech community. Three days ago, once more Turkey experienced this devastating and agonising affect of terrorism. Two suicide bombers killed at least 97 civilians in Ankara. Those who were killed will never have any chance to address others. Most of them were preparing to participate in a peace rally. Terrorism imposed a dark silence on them. Therefore, combatting terrorism is a precondition of protecting the freedom of expression.

Secondly, democracy requires a free public sphere of exchange in which everybody must be able to participate by expressing their opinions. Only through a free expression of our ideas on certain policies we are able to participate in decision-making process including the process of enacting laws. Therefore, the freedom of expression is of a political value that is "indispensable to the operation of a democratic form of government."3

Finally, the freedom of expression is seen not only as a means for realising a democratic society, but also as an end in itself. This essential or constitutive justification of the freedom of expression is related to the moral responsibility of individuals. Individuals as morally responsible agents must be free to receive and express opinions.4 Therefore an arbitrary restriction on the freedom of expression will violate the radical autonomy of individuals as free moral agents of a democratic society.

We value freedom of expression also because it is the sole instrument of communicating our thoughts. The act of thinking lies at the heart of human existence. Descartes's cogito which is translated as "I think, therefore I am" refers to this existential certainty. Long before Descartes, Mawlana Jalaluddin Rumi considered thought as the essence of a human being. He states that "man consists of thought, and the rest is nothing but flesh and bone". As thinking and speaking beings, we need the freedom of expression to fulfil ourselves. The denial of this freedom will therefore infringe the essential nature of human beings.

           2. Three Challenges for Freedom of Expression

Although the freedom of expression is a precondition for democracy, it is by no means an absolute freedom. The right to the freedom of expression may be restricted on certain grounds such as the protection of the rights of others, national security and public safety.

The Turkish Constitution also stipulates that the freedom of expression and of the press may be restricted for certain reasons stated in the relevant provisions of the Constitution. In evaluating the restrictions on the freedom of expression, the TCC applies a three-level test. First of all, the Court decides whether the intervention is prescribed by law, that is by an act of parliament. Secondly, the Court examines the existence of a legitimate aim for restricting the freedom. Thirdly, the Court applies the democratic necessity test by referring to the jurisprudence of the European Court of Human Rights. The TCC has consistently pointed out that the freedom of expression constitutes one of the basic pillars of a democratic society. Therefore in order to restrict the freedom of expression, the public authority must prove the existence of a pressing social need, i.e. compelling reasons, for such restrictions.

Today's constitutional courts face three main challenges in adjudicating the freedom of expression. These challenges have been posed by (a) the protection of privacy and reputation, (b) combatting terrorism, and (c) regulating Internet.

           2.1 Protection of privacy, honour and reputation

It is generally accepted that speech acts such as insult, libel, defamation and hate speech are not protected by the free speech provisions of constitutions. There is, however, no global consensus as to the legal sanctions to be imposed on these speech acts. The Turkish Penal Code, for instance, provides imprisonment for insult and defamation, even though in most cases the terms of imprisonment are either postponed or converted to a "judicial fine".

In some admissibility decisions, the TCC has referred to the Parliamentary Assembly's resolutions towards decriminalisation of defamation, and ruled inadmissibility by pointing out the non-exhaustion of legal remedies. Accordingly, in cases of insult and defamation, civil law remedies must also be exhausted before lodging a constitutional complaint.5

This is not, however, applicable to cases of "hate speech", such as anti-Semitism and Islamophobia. As Jeremy Waldron put it eloquently, the restriction of hate speech aims to "protect people's dignity against assault", rather than to "prevent people from being offended".6 The political reason to restrict hate speech is to provide a vulnerable group of people with a certain degree of assurance and security in a democratic society.7

The TCC differentiates between insult or defamation and "hate speech". In a recent case, where the applicant claimed that he had been subjected to "hate speech", the Court tried to clarify the boundaries of "hate speech" by referring to various instruments of international human rights law. The Court noted that in cases of "hate speech" the applicant did not have to exhaust the available civil remedies alongside the criminal procedures. However, having applied the principles to the application in question, the Court reached the conclusion that the expressions at issue could not be considered as "hate speech", because those were mere reflections in an ongoing public debate on the ideas and actions of the applicant.8

There is no doubt that the freedom of expression largely guarantees the freedom of individual to criticise thoughts and opinions of those using the public authority, who are expected to tolerate even harsh criticisms. In the Court’s opinion, the freedom of political expression deserves greater protection, simply because it is “the core principle of all democratic systems”.9

The Court has also taken up the issue of whether the fact that verdict about the applicant was postponed might render the interference as acceptable and proportionate to the legitimate aim pursued. The TCC has responded to this question negatively by stating that the possibility of being subject to sanctions in the future may create a chilling effect on authors who may refrain from expressing their opinions or engage in press activities.10 The Court has reached the conclusion that the restriction on the applicant’s freedom of expression and the freedom of the press for the purpose of the “protection of the reputation” is not necessary in a democratic society.

In a recent judgment, the TCC has once again pointed out that the limits of acceptable criticism involving politicians and public officials are wider, such as a metropolitan mayor compared to private individuals.11 In this case, the applicant as a radiation oncologist had published a press release criticising the quality of the drinking water provided by the Ankara Metropolitan Municipality. In turn, he had been sentenced to pay 750 TL in damages for insulting the metropolitan mayor. According to the first instance court, the applicant's expressions had reached beyond criticism, because there was no scientific certainty as to the quality of drinking water.12

The TCC rejected this argument by clarifying that the requirement of scientific certainty as a criterion to participate in a public debate would make such participation impossible. It is therefore incompatible with the requirements of open society.13

           2.2 Freedom of expression in an age of terrorism

Terrorism is a most serious threat not only to the right to life, but also to all rights and freedoms, including the freedom of expression. Terrorism imposes silence on people not only by killing them but also by poisoning the democratic environment. Therefore, the expressions that incite and praise violence fall outside the scope of the freedom of expression.

Since the terrorism aims to paralyze the democratic political order and to undermine a pluralistic civil society, we are bound to combat it while protecting the basic values. We must keep in mind the following principle laid down in the Council of Europe's Guideline on Human Rights and the Fight against Terrorism: "it is not only possible, but also absolutely necessary, to fight terrorism while respecting human rights, the rule of law and, where applicable, international humanitarian law."14

Bearing this principle in mind, the TCC tries to protect the freedom of expression even in rather difficult cases. For instance, in a constitutional complaint case, the applicant, who was the leader of a terrorist organisation, asserted that his freedom of expression had been violated, because his book had been confiscated and partly destroyed by the state authorities. In its decision, the court of first instance had ruled that the map at the cover page, the identity of the author as the leader of a terrorist organisation, and finally the content of certain pages had indicated that the book had been written to propagate the terrorist organisation in question.15

The Turkish Constitutional Court, sitting as the Plenary Court, examined each argument of the confiscation order in details. For the Court, the cover-page, the identity of the writer and certain pages of the book that seemed to incite violence could not be taken in isolation. On the contrary, the message and aim of the book had to be evaluated as a whole. Although, some pages of the book were really disturbing or even shocking to certain part of society, the bulk of the book was about a critical and historical analysis of the so-called “Kurdish problem”. The author, among other things, called for a recognition of the “Kurdish reality” and for a peaceful solution of the problem without recourse to armed resistance.

The Court noted that, compared to other means of mass communication, the applicant’s book aiming to describe the changing ideology of the terrorist organisation spoke to a limited group of people. It also pointed out that the copies of the book had been destroyed by the authorities in the absence of a judicial decision in that regard. Having emphasized the importance of the freedom of expression and of the press in a democratic society, the Court reached the conclusion that the confiscation of the book at issue was not proportionate with the legitimate aim of protecting national security and public order.16

           2.3 Freedom of expression in an age of Internet

In the much-highlighted Twitter case, where the applicant lodged an individual application directly to the TCC, the Court first examined the question of admissibility. The Constitution and the Law on the Constitutional Court explicitly provide that all legal remedies must be exhausted before launching a constitutional complaint.

The TCC held that as a rule all legal remedies available must be exhausted before lodging a constitutional complaint. Yet, the Court also clarified that legal remedies must be effective and capable to remove violations of rights. Moreover, under exceptional circumstances where the urgent action was necessary to halt possible breaches of rights and liberties, the individual application could be declared admissible by avoiding the condition of exhaustion of other legal remedies.

The Court then declared the application admissible on the ground that the administrative courts did not provide a reasonable chance of success. On the contrary, the failure and indeed reluctance of the authorities to lift the ban on Twitter despite a stay of execution decision delivered by Ankara Administrative Court was the main reason for the admissibility. The TCC stated that the uncertainty as to the lifting of the ban affected the freedom of expression of millions of people.17

As to the merits of the case, the TCC found a violation of the freedom of expression by the public authority insofar as a blanket ban of Twitter was not prescribed by law. The Court clearly indicated that the relevant law did not authorise the administrative body (The Directorate of Telecommunication and Communication) to completely block access to Internet sites like Twitter without a judicial decision.18

In its Youtube judgment, the Court similarly found a violation of the freedom of expression in the ban for lacking a legal basis. Referring to the judgment of the Strasbourg Court in the case Yıldırım v. Turkey, the TCC this time questioned the quality of the law and stated that the law constraining rights and liberties had to possess certainty and foreseeability. The Court declared that the relevant provisions of the Internet Law failed to meet this condition.19

In both judgments, Twitter and Youtube, the Court also stated that Internet and social media played a crucial role in democratic societies as widely used and efficient means of the freedom of expression. Given this function of Internet, the Court states that the authorities have to act carefully and responsibly in regulating Internet.20

Conclusion

Using certain facilities provided by Internet, today terrorism poses the most formidable challenge to democracy and the freedom of expression. Perhaps the best response to terrorism is to ensure the cooperation of democratic powers in protecting and promoting the political values that terrorism aims to destroy.

We should therefore agree on the necessity of fighting all forms of terrorism while respecting the freedom of expression as the cornerstone of a democracy. Given the essential role of the freedom of expression in a democratic society, we as the judges of constitutional and supreme courts must be more vigilant against restrictive measures. Those measures may arbitrarily curb the right to the freedom of expression even if they are imposed in the name of fighting terrorism.

The freedom of expression is necessary not only for a pluralist political and civil society, but also a precondition of realising ourselves as moral agents. Let me conclude my speech by citing Rumi’s insightful words about free speech. He says: "As you are not a slave, speak like a Sultan (a King); express your opinions as you wish".21

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

 

 


*Speech delivered at the opening session of the Conference on “Freedom of Expression: Still a Precondition for Democracy?” organised by the Council of Europe on 13-14 October 2015, in Strasbourg.

1 Jean-François Lyotard, "The Other's Rights", Stephen Shute and Susan Hurley (eds.), On Human Rights: The Oxford Amnesty Lectures 1993, (New York: Basic Books, 1993), p.144.

2 Ibid., p.147.

3 Thomas I. Emerson, Toward A General Theory of the First Amendment, (New York: A Vintage Books, 1966), p.10

4 Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution, (Cambridge, Massachusetts: Harvard University Press, 1996), p. 200.

5 Adnan Oktar (2), Application No: 2013/514, 2/10/2013, par.35.

6 Jeremy Waldron, The Harm in Hate Speech, (Cambridge, MA: Harvard University Press, 2012), pp.105-106.

7 Ibid., pp.100-104.

8 Fetullah Gülen, (Plenary), Application No: 2014/12225, 14/7/2015, par. 43-45.

9 Bekir Coşkun, (Plenary), Application No: 2014/12151, 4/6/2015, par. 64.

10 Bekir Coşkun, par. 70.

11 Ali Rıza Üçer(2) (Plenary), Application No: 2013/8598, 2/7/2015, par.61.

12 Ali Rıza Üçer(2), 13, 58.

13 Ali Rıza Üçer(2), par. 59.

14 CE, Committee of Ministers, Guidelines on Human Rights and the Fight against Terrorism, H (2002) 4, Strasbourg, July 2002.

15 Abdullah Öcalan (Plenary), Application No: 2013/409, 25/6/2014, par. 14. Full text of the judgment is available in English at anayasa.gov.tr/en

16 Abdullah Öcalan, par. 102, 106, 112.

17 Yaman Akdeniz and others, Application No: 2014/3986, 2/4/2014, par.26. Full text of the judgment is available in English at anayasa.gov.tr/en

18 Yaman Akdeniz and others, par.49.

19 Youtube Llc Corporation Company and others (Plenary), Application No: 2014/4705, 29/5/2014, par.56-57. Full text of the judgment is available in English at anayasa.gov.tr/en.

20 Yaman Akdeniz and others, par. 39; Youtube Llc, par.52.

21 Cited in Ergin Ergül, Rumi: A Source of Inspiration for Universal Justice and Peace, (Konya: Konya Metropolitan Municipality, 2014), p.49.

His Excellency Mr. President,

Esteemed guests,

I would like to welcome you to our ceremony on the occasion of the 53rd Anniversary of the Constitutional Court of the Republic of Turkey and oath-taking of our Court’s newly-elected Member Judge. I greet you all with my sincere feelings and respect.

I would like to congratulate our new Member Judge of the Court Mr. Rıdvan Güleç. He was elected for the Court of Accounts quota by the Grand National Assembly of Turkey and began his office by taking his oath a short while ago. I sincerely wish that his office will be auspicious to himself, his family, to our Court and to our country. I firmly believe that the vast knowledge and experience he accumulated during his service at the Court of Accounts will serve in the field of “constitutional justice” and thus, he will perfectly contribute to the strength of the Constitutional Court. I wish him every success in his office.

I would also like to congratulate our Member Judge Mr. Burhan Üstün for his recent election as Vice-President of our Court and Mr. Nuri Necipoğlu for his election as Vice-President of the Court of Conflicts. I wish them every success in their offices.

His Excellency Mr. President,

John Rawls, one of the leading philosophers of politics in the 20th century, says “Justice is the first virtue of social institutions.” The key principle of justice, which Rawls considers to be the basis of a proper-functioning constitutional order, is that everyone has equal share of fundamental rights and freedoms.

In this sense, justice can be defined as that everyone takes his rightful share and gets his just reward. Mawlana Jalaluddin al Rumi makes a very sententious description for this aspect of justice. In Mawlana’s opinion, justice is to put everything into its place. According to him, justice is “giving water to trees” whereas injustice “to give water to thorns”

Justice, which is considered to be antonym of cruelty, has been accepted as basic principle of state and society in our lands for many centuries. Kınalızade Ali Çelebi, who lived in the 16th century, makes a description of justice in the end of his famous book “Ahlâk-ı Alâ’î". He emphasized the universal aspect of justice and its central importance in Ottoman state mentality by saying “It is justice that ensures the order and salvation of the world.” Justice is the basis of not only the state but also the civilization. Justice is a sine qua non for the establishment and survival of a civilization to set an example to whole humanity.

Justice is a merit that should apply not just for the laws but for their interpretation and implementation as well. In this sense, it is beyond any doubt that the judiciary is one of the most influential institutions in ensuring justice. That is why the buildings of the courts are called “adliye” (house of justice or palace of justice) in Turkish language. In many languages the word “justice” also means the “judge”. As a matter of fact, judiciary plays a more significant role than all other organs in maintaining a fair political and legal order based on human rights and freedoms

Judiciary is going through one of the most critical and sensitive period in its history in Turkey. Judiciary bears a very heavy burden to administer the justice and, in order to get through this burden and to serve its function, judiciary must confront the concept of “tutelage”. The confrontation and self-criticism by the judiciary is not sufficient alone; but all other components of the political and legal system must make self-examination.

The mentality of tutelage serves to neutralize the democracy and rule of law by rendering these notions meaningless and non-functional. The tutelage is based on the presumption that democratic political reason is insufficient. When it comes to an individual level, this mentality is fuelled by the idea that an individual cannot be left to his own decisions but must be guided so that he can make the correct decisions. In both cases, the political and individual reason is put under pledge. That is why Kant considers tutelage as the enemy of freedoms and puts the motto of Enlightenment as “Dare to use your own reason!”

Tutelage is the biggest threat against the free use of reason and conscience not only in the political domain but also in judicial sphere as well. Therefore, a genuine independence of the judiciary is a sine qua non for the rule of law. The independence of the judiciary requires the judiciary at institutional level to be free from any order, instruction and command of any person or organ. On the other hand, the members of the judiciary at individual level must be able to use their reason and will freely without being subject to any form of tutelage.

We must keep in mind that one cannot be a judge without a free reason and conscience. One cannot be a judge if he rents out his reason and conscience or if he puts his will under pledge. There cannot be a remote-controlled judge or judiciary in the rule of law.

Indeed, the pathologic relation between the judiciary and the tutelage has two aspects; one is that the judiciary itself becomes an organ of tutelage and the other is that judiciary is subjected to tutelage. Both of these cases pose equal threat to the democratic rule of law. The first is that judiciary cannot and shall not act as an institution of tutelage attempting to social and political engineering. It is impossible to accept an understanding of judiciary that assumes itself as the owner and the final guardian of the system and, therefore, attempts to adjust and institutions accordingly. The role of the judiciary in a democratic society is not to impose and order to the society and the politics but to settle the conflicts by passing the legal rules through the filter of justice. This is the only way that a judge and the judiciary becomes the guaranty of the fundamental rights and freedoms.

On the other hand, the judiciary must resist resolutely against all forms of tutelage to be established on itself. In other words, it is of vital importance to establish a true independence of the judiciary both at institutional and individual level. In conclusion, the biggest enormity against the judiciary would be to position it as an institution of tutelage or an institution under tutelage.

Similarly, there are two problematic aspects of the relations between the judiciary and the politics. It would be a great danger if the judiciary, in institutional sense, falls under the influence of political organs or if it dissociates on the basis of political opinions. The politization of judiciary would be the end of the rule of law. On the other hand, if the judiciary acts as an institution of tutelage and takes the decisions which must be taken by the politics, this would lead to judicialization of politics. The judicialization of politics would be the end of democracy. Therefore, both the politization of the judiciary and the judicialization of politics are equally dangerous to the democratic state of law.

It is beyond any doubt that the principle of separation of powers is one of the most important constitutional instruments to ensure independence of the judiciary and to normalize its relationship with the tutelage and the politics. The underlying basis for concept of separation of powers is the need to restrict power which is the very essence of constitutionalism. Fundamental rights and freedoms are at risk if the power is not restricted by law. As Montesquieu puts it, the accumulation of all powers, legislative, executive, and judiciary, in the same hands would be the end of freedoms

It must be noted that the restriction of power by law does not apply just for the legislative and executive but for the judiciary as well. If the judiciary exceeds beyond its power and attempts to design the political domain, then this contradicts with the separation of powers too. The juristocratic attitude of the judiciary and the illimitable attitude of the executive pose equal threat to democracy.

On the other hand, separation of powers is by no means a conflict or struggle of powers. Contrary, the Preamble of the Constitution defines the separation of powers as such: “The separation of powers, which does not imply an order of precedence among the organs of the State, but refers solely to the exercising of certain state powers and discharging of duties, and is limited to a civilized cooperation and division of functions.”

Actually, no organ can solve its problems and succeed without the help and cooperation of other organs. In this sense, it must be noted that today we need cooperation among the organs of the state power more than ever.

I would like to emphasize that it is our joint responsibility to solve the current problems of the judiciary and to improve it to a better position. For this purpose, everyone and every institution must pay the necessary care and commitment. This is a serious matter that cannot be solved with some formal changes. It requires a series of radical and serious works and steps in a vast filed of such issues as legal education, court practices, legal ethics and the expectations of the society from the judiciary.

If we aim to establish an exemplary judicial system and to become one of the founders and actors of an international system based on justice and ethics, it is a sine qua non for us to have a well and effective functioning, independent and impartial judiciary trusted by the whole society.

His Excellency Mr. President,

In November 2012 in Mexico City I had the opportunity to represent our Court at an international conference attended by the presidents and judges of various Supreme Courts from around the world. The title of my paper in that conference was “The New Turkish Constitutional Court” and the sub-title was “Towards a Paradigm Shift?” I placed a question mark to the end of the sub-title on purpose. Because, then it was not clear yet whether the Court could achieve this transformation and adopt a “rights-based paradigm”. That paper discussed that the biggest challenge before the new Constitutional Court formed after the Constitutional amendments in 2010 was to realize this paradigm shift through the individual application system.

I am more than happy to express that the new Constitutional Court has shown a significant progress to achieve this paradigm shift in a period of approximately three years. Our Court strives to establish constitutional and individual justice through constitutionality review and individual application. Consequently, the Constitutional Court has become the guarantee of fundamental rights and freedoms to a considerable extent.

This is what is expected of the Constitutional Court exactly. As a matter of fact, the constitutional courts emerged as a result of the idea that fundamental rights and freedoms must be protected against the elected legislative majority as well. The raison d’etre of these courts, which became a distinctive feature of constitutional democracy, is to ensure constitutional justice by carrying out the constitutionality review of laws. In countries where the mechanism of constitutional complaint or individual application is adopted, the constitutional courts examine whether fundamental rights and freedoms are violated by public power acts and thereby checks the constitutionality of actual practices.

This paradigm shift that we go through can be tracked down in our individual application judgments. In these judgments, the Constitutional Court adopted an approach which broadens the scope of protection and improves the standards for a series of rights from right to life to right to individual liberty and security, from the right to a fair trial to freedom of expression and association, from the right to a private life and to freedom of religion and conscience.

In this context, our Court ruled the judgments that led up to the release of detained members of parliament and these judgments emphasized the importance of the right to political representation in democratic societies. Likewise, the Court considered the removal of female judge wearing headscarf from the hearing room as a violation of freedom of religion and prohibition of discrimination.

Apart from these, we have hundreds of judgments identifying a violation of rights in such cases where a conviction is established without providing the defendant under custody with legal aid, cases where effective use of right to object to detention is impaired as the justified ruling for conviction is not prepared for a very long period of time, cases where the means and opportunities of the plaintiff or the prosecutor is not provided to the defendant, cases where the freedom of expression is infringed by banning social media and other platforms, cases where the public officers enjoying their union rights are inflicted a disciplinary punishment and many other cases.

All these judgments ruled by our Court with a “rights-based” approach serve to improve the standards of human rights in our country which is a long-awaited status. On the other hand, these judgments also increase the prestige of our country in international arena by providing us the opportunity to contribute to corpus of universal law. It is beyond any doubt that if Turkey internalizes such universal values as justice, equality, freedom and human rights and ensures peaceful co-existence of differences and thereby strengthens its democratic regime, then Turkey will become a very effective soft-power.

The new “rights-based” paradigm of the Constitutional Court makes significant contribution to the long-debated ideal of our country for co-existence of differences without resorting to violence. Actually, the most challenging task for all pluralistic democracies including that of us is to ensure and maintain the co-existence of differences.

As it is known to all, the key to co-existence with the “other” at social level is tolerance. Indeed, the concept of tolerance contains inequality and, perhaps, a certain degree of hierarchy in the relations between the individuals or groups. The one that shows tolerance assumes his/her own opinion and lifestyle to be superior or dear to that of the one s/he tolerates in any case but, even so, s/he displays the will to live together with the other.

However, the formula at political and legal level to ensure co-existence is “recognition” rather than tolerance. Recognition requires the acknowledgement of the ontological status of the other. In this sense, the responsibility of the state as a political and legal institution is not to tolerate different worldviews and lifestyles but to recognize them being equal to all others. Such a recognition is a prerequisite of a pluralistic democracy.

As a matter of fact, in one of its judgments in 2012 the Constitutional Court referred to the policy of recognition by stating “one of the main aims of the democratic and secular state is to establish political orders, where the individuals will live together in peace with the faiths they have by protecting the social diversity”

In one of its individual application judgments last year, our Court emphasized the requirements of recognition and the policy of pluralism as a consequence of recognition as follows:

“…“recognition" requires that the state accepts the existence of all religious and faith groups as regards the state-individual relations… The pluralism is only possible when everyone takes part in the social and political life through his/her own identity and as himself/herself. The pluralism cannot be mentioned in a place where the differences and those, who are different, are not recognized and protected against the threats. In the pluralistic society, the state shall be obliged to ensure that the individuals live as required by their own world views and faiths. The state does not have the authority to accept one of the views or life styles present in the society as "wrong". In this context, unless the reasons for limitation stipulated in the Constitution are present, making the differences exist together is a requirement of the pluralism although the majority or the minority does not like it.”

Being the successors of a civilization that displayed good examples of living together in peace, the sources of inspiration that we need are present in our cultural codes. As expressed in Mawlana’s words “Come, come, whoever you are… Come and come yet again...” and Haji Baktash Wali’s words “The greatest book to read is the human being.”, such a human oriented understanding will provide the intellectual climate required for the management of differences.

His Excellency Mr. President,

I would also like to state that our Court is yet at the very beginning of this paradigm shift. We are well aware of the fact that we have a long way to go and that we have to complete this transformation and ensure its consistency.

We all know that every transformation is painful. One of the major challenges that we face in this process is the increasing workload of the Court. The “rights-based” judgments of our Court, perhaps somewhat paradoxically, cause a continuous increase in the number of individual applications filed.

As of today, the number of individual applications in pending status is 18.009. We have concluded 20.689 applications since the actual introduction of individual application on 23 September 2012. Similar to the practices of such countries as Germany and Spain which adopted individual application, most the applications have been found inadmissible. 637 applications have been examined on merits and violation of at least one constitutional right was identified in 572 cases. Accordingly, our Court has identified a violation of right in approximately 90% of the applications found worthy of examination on merits.

445(%76,60) of the judgments for violation are on the right to fair trial, 48(%8,08) judgments on right to personal liberty and security, 26(%4,38) judgments on union rights, 18(%3,03) judgments on right to property and 12(%2,02) judgment on freedom of expression. When it is noted that more than eighty percent (80%) of violations of right to a fair trial are related to right to trial within a reasonable time, the role of the structural problems in the violation of fundamental rights and freedoms becomes clear.

Our Court continues its efforts to ease the workload of the individual application. We take and implement such measures as to increase the effectiveness of filtering system, to focus the Sections and the Plenary on applications for structural problems relating to the whole legal system and to classify the rapporteur judges on the basis of rights and to assign them to the applications according to their fields of expertise.

However, increasing the effectiveness of the functioning of the Constitutional Court is not sufficient alone in solving the problems. First of all, everyone must understand the fact that individual application does not provide for a new and “super” way of appeal after the exhaustion of other remedies. Secondly, a decrease in the number of individual applications or preventing the increase of applications to the extent that it blocks out the system depends on a more delicate and sensitive conduct of administrative and judicial authorities. The subsidiarity principle of the individual application requires the reparation for violations of rights primarily before the courts of instance. Despite all the difficulties and problems, individual application plays a very important role in improving the standards of rights and freedoms in our country and in the transformation of the Constitutional Court and, perhaps, the whole judicial system. This situation is an important reflection of the cooperation among the state organs which was mentioned before. All the success of individual application practice is not in the sole possession of the Constitutional Court but it is also a success of other institutions and especially that of the legislative organ and our nation itself as the ultimate source of sovereignty. Taking this opportunity, I would like to express in the name of our Court my gratitude and appreciation to everyone and each and every institution who contributed to this success.

On the other hand, it must be noted that every judgment of the Court ruled so far and to be ruled in future is open to criticism. The judges and the rulings of the courts are not sacred. Like all other persons, judges are liable to make mistakes and take wrong decisions. Therefore, the judiciary must welcome such criticisms as normal and take notice of these criticisms to correct possible errors.

I would like to state that our Constitutional Court takes due consideration of all kinds of criticism. For instance, considering the criticisms to that end, we have abandoned our practice of announcing the decisions for annulment before preparing the grounds and justifications of such decisions. The purpose of this change is to ensure that the Constitutional Court, being an organ in charge of ensuring the supremacy of the Constitution, acts in accordance with the Constitution and to ensure that its reasoned decisions are announced faster than it used to be. In short, our Court benefits and will continue to benefit from fair and constructive criticisms.

His Excellency Mr. President,

In the final part of my speech, I would like to share my opinions on the issue of “new constitution” which is a permanent item of our country’s agenda at principal level and under five clauses.

First of all, it must be noted that a new constitution emerges as a sine qua non for our country considering its level of economic and political development today. It is known to all that there is a very broad, if not a full, consensus in the society on the need for a new constitution. What we need today is and effective will to be shown by all actors of the constitution-making process.

As it is known, a favorable climate is need for the making of a new constitution. The creation of such a climate requires a positive attitude which emphasizes dialogue and reconciliation rather polarization in discourse and actions, which does not exclude but embrace and which prefers constructive approach to destructive one. It is our joint responsibility to create a favorable climate for a new constitution together with all civil and political actors of society. The participation of all segments of the society to this process insofar as possible and the embracement of this “social contract” by all citizens of this country with a sense of “my constitution” totally depends on the fulfillment of this joint responsibility. Besides, the dialogue among the social and political actors in the constitution making process must be based on a healthy and undistorted communication and there must be a free platform of discussion where all kinds of views and opinions can be defended on condition that they do not contain violence and not intend to kill the existence of the other.

Secondly, the new constitution must broaden the domain of democratic politics by eliminating all components of the bureaucratic tutelage and must ensure a full protection of fundamental rights and freedoms by establishing all the rules and organs of a state of law. In other words, a healthy constitutional democracy requires a social order where there are no conflicts of values between society and state organs, where the political majority comes to power but fundamental rights and freedoms of minority is guaranteed as well and, perhaps the most important of all, where all people deem themselves as equal and free citizens.

Thirdly, our positive and negative constitutional experiences must be taken into consideration in the new constitution making process. I must be noted that the pursuit of a new constitution is not an issue peculiar to today. This country has been seeking its constitution for more than 150 years. Midhat Pasha, who drafted the 1876 Constitution, defines the constitution as such in one of his articles in 1878 “it is the only cure for our diseases, the only advantageous instrument in our struggle against the domestic and foreign enemies”.

Since the time of Midhat Pasha, excluding the amendments to constitutions, we have made five brand new constitutions. When we make a comparative reading of Kanun-i Esasi(our first constitution) and today’s Constitution, we see that there are very significant continuities both at institutional and principal level. Briefly speaking, it is self-evident that such continuities and constitutional tradition must be taken into account in the making of a new constitution.

Fourthly, we must benefit from the experiences provided by the comparative constitutionalism in determining the content of the new constitution and making the institutional choices accordingly. At this very point, we need to secure an optimum harmony between the universal principles of democratic constitutionalism and the sociological, political and cultural characteristics of our society. It would be wrong to make a “copy-paste constitution” while it would also be wrong to attempt to draft a constitution without taking due notice of essential components of democratic constitutions such as separation powers, rule of law, human rights and pluralism. In short, considering our social structure and political culture, it is possible to make a democratic and libertarian constitution which establishes a well and effective functioning system based on separation of powers.

Fifthly and finally, one of the major obstacles to a new constitution may be the demand for the involvement in the constitution of opinions and proposals that are extremely difficult to reconcile upon in spite of everything and everyone else. In such a situation, the actors of the process may be required to reconsider their maximalist demands and, perhaps, take a step back from their current position. As a matter of fact, it has become more important in terms of social psychology to show that our people can make a new constitution with their own dynamics in an ordinary period of time than the contents of the new constitution to be made.

On the other hand, the new constitution is a magic wand to provide one-touch solution to all the problems in a while. No constitution can solve problems by itself. In proper-functioning democracy, the constitutions are expected to provide a basis required for the solution of social, political, economic and legal problems. Therefore, regardless of how we shape the content of a new constitution, good interpreters and implementers of the constitution are equally, if not more, important than a good constitution.

After all, we understand that Turkey’s pursuit of a new constitution will continue in upcoming period. Slavoj Žižek tells a witty story to explain the paradoxical nature of searching process. I would like to conclude this part of my speech by sharing this story as it resembles to our quest for a new constitution.

A conscript who tries to evade military service by pretending to be mad: he compulsively checks all the pieces of paper he can lay hands on, constantly repeating: ‘That’s not it!’ They refer him to the psychiatrist and he continues to do the same thing at the psychiatrist clinic. He checks all the papers in the doctor’s room, even those thrown into litter bin. The psychiatrist, finally convinced of his insanity, gives him a written certificate releasing him from military service: the conscripts casts a look at it and says cheerfully: ‘That is it!'

Here Zizek tells on the basis of this anecdote that the failures in search process may yield success in finding what you are searching for. Accordingly, it is the process of search itself that creates what you are searching for. We sincerely hope that we will reach “the new constitution” at the end of our search process.

His Excellency Mr. President,

Taking this opportunity, I would like to extend our gratitude on behalf of our Court to our Member Judge Zehra Ayla Perktaş who retired previously this year and to our former President Mr. Haşim Kılıç for all their contributions to our Court. Mr. Kılıç provided significant services to our Court and our country during his term of office as Member Judge, Vice-President and President of the Court and he was the pioneering leader of the paradigm shift that I have explained before. I wish them health, happiness and peace in their retired ages.

I would like to express my condolences to the relatives of Mr. Selahattin Metin, retired member judge of our Court who passed away last year, and Mr. Şevket Müftügil, retired president of our Court who passed away last week. May Allah rest their souls in peace!

I would also like to extend my thanks and appreciation to our Vice-Presidents, Member Judges, Rapporteur Judges, Assistant Rapporteur Judges, Directors and all other staff of our Court who work devotedly for an ideal of Constitutional Court which is the guarantee of our people’s rights and freedoms, which deserves the trust and praise of our nation and serves as a model to the rest of the world.

Finally, our Courts judgments on individual applications will be discussed in details during the symposium in the afternoon and tomorrow with criticisms and proposals to be voiced. I would like to express in advance my thanks on behalf of our Court to all speakers and participants to contribute this symposium.

His Excellency Mr. President,

Esteemed Guests,

Ending my word, I would like to reiterate my thanks and appreciation for your participation our anniversary and oath-taking ceremony. I extend my wishes of health and prosperity.

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey