Welcome Address by the President of the Constitutional Court Mr. Zühtü ARSLAN at the Swearing-in Ceremony of the Justice Mr. Selahaddin MENTEŞ
25 July 2019
His Excellency Mr. President,
I would like to welcome you to the swearing-in ceremony of the newly appointed justice of the Constitutional Court and express my gratitude towards you. I would also like to extend you all my most sincere and respectful greetings.
I would like to congratulate our justice Mr. Selahaddin Menteş, who is about to assume office after the oath, and I wish him success. I also wish that his new office will be auspicious to himself, his family, our Court as well as our country. I believe that Mr. Menteş, who had sit at the bench for many years and held office as a senior executive at the Ministry of Justice, will perfectly contribute to the Constitutional Court with his vast professional experience.
Swearing-in ceremonies provide a unique opportunity to remember our professional responsibilities and renew our promises. In this scope, when taking office as Constitutional Court justices, we promise to protect the Constitution and the fundamental rights and freedoms. In addition, we guarantee that we will only comply with the orders of our conscience away from any impact and influence.
Even this short oath text is sufficient to represent how heavy the responsibility of constitutional justices is. Maybe the most difficult part of this responsibility is the protection of fundamental rights and freedoms. It is meaningful that this is, in addition to the Constitution, specifically and especially mentioned in the oath text.
As is known, the Constitutional Court fulfils its duty to ensure constitutional justice by protecting fundamental rights and freedoms through constitutionality review and individual application. The Court continues to decide with a rights-based approach in both areas.
I would like to take this opportunity to briefly mention some of the difficulties encountered in the individual application system and the recent developments in this respect.
Individual application mechanism that has been introduced into our legal system with the constitutional amendment of 2010 is undoubtedly the greatest reform of the Turkish constitutional jurisdiction. The individual application is an important achievement in defining and raising the standards in the field of fundamental rights and freedoms.
In fact, thanks to the individual application, individuals have been provided with the opportunity to seek remedy for the allegations of fundamental rights within the borders of our country without bringing them before international judicial bodies. With its experience of nearly seven years, the Court has determined the rules and principles regarding every right and freedom within the scope of the individual application, from the right to life, to the right of fair trial, the right to personal liberty and security, right to respect for private life and the right to property. With the implementation of these principles, the violations of the rights of thousands of people have been redressed and thus the demands for justice have been met.
His Excellency Mr. President,
It should be noted that the aim of the individual application mechanism is not to redress each violation of rights by addressing them individually. Essentially, this is not possible. As a matter of fact, the individual application statistics show that the number of individual applications and thus the workload of the Constitutional Court has been increasing gradually.
Since the introduction of the individual application mechanism on 23 September 2012, we have adjudicated around 190.000 out of a total of around 236.000 applications. The number of individual applications pending before the Court as of today is nearly 46.000. The workload of the Court will be better understood considering the fact that there are about 56.000 applications from 47 countries pending before the European Court of Human Rights.
Our Court has taken the necessary measures from the very beginning to cope with the increasing number of applications which are around 40-45 thousand per year and has made a great effort in this regard.
However, seven years of experience has revealed that certain legal changes concerning the functioning of the individual application mechanism have become mandatory. In this scope, it is required; that the section presidents grant interim measures in case of emergency; that the application period be extended from one month to two months and the notice of deficiency system, which results in a loss of considerable effort and time, be lifted in principle; that the criteria of constitutional significance be adopted as a separate inadmissibility criteria in order to focus on the applications which carry significance in terms of case-law and principles; and that the complaints regarding lengthy trials be first examined by the commission established within the Ministry of Justice. An immediate legislative amendment to be made in this direction by the Grand National Assembly of Turkey will make a significant contribution for the individual application mechanism to continue functioning as an effective remedy.
However, proper functioning of the individual application mechanism as an effective remedy depends on the resolution of the structural problems that lead to violations, beyond the legal amendments. The objective aim and effect of the individual application system is to prevent similar violations by identifying the source of the violation and ensuring that the necessary measures are taken. This requires effective and efficient cooperation between institutions.
His Excellency Mr. President,
As is known, alleged violations of rights raised in the individual applications result from the acts of the public authorities as well as their failure to fulfil their negative and/or positive obligations in terms of protecting fundamental rights and freedoms. In other words, the fact that the public force performs what it should not do, or vice versa, may lead to violations of rights.
At this point, it is of great importance that the relevant authorities take into consideration and implement the assessments regarding the redress of the violations found by the Constitutional Court. In cases where the Court finds any violation of right, it first makes an assessment about the public act leading to the violation. While the said act may be an administrative or judicial act, it may sometimes directly be a legislative act.
If the violation is resulted from a court decision, the means of redress is to order a retrial and to send a copy of the decision to the incumbent inferior court. Consideration being given, by the courts in the same or similar type of disputes, to the reasons of violation specified in an individual application would prevent new violations and thereby new applications.
On the other hand, in cases where the violation is resulted from the law itself, there is no sense in conducting a re-trial. In such cases, the Constitutional Court has, for a while, decided to annul or amend the impugned legal provision giving rise to the violation with a view to ensuring full redress and preventing new violations, thereby sending a copy of the judgment to the legislature. The step expected to be taken by the legislature at this stage is to annul or amend the legal provision leading to the impugned violation.
Besides, if a structural problem constantly results in any violation of right, the Constitutional Court is entitled to ask the competent authority to eliminate the structural problem by not dealing with all applications on an individual basis but examining merely one of them. This procedure called as “pilot decision” intends, on the one hand, to avoid the Court’s examination of thousands of individual applications of the same nature and, on the other hand, to pave the way for the elimination of a structural problem which constantly gives rise to violation.
In this sense, the Constitutional Court has very recently delivered its first pilot judgment where it held that the right to an effective remedy exercised by the applicant -in respect of whom a deportation order was issued- was violated for any reason based on a legal provision and that in over 1500 individual applications of similar nature, this violation would be redressed by introducing an amendment to legal provision concerned. The pilot judgment was submitted to the Turkish Parliamentary for necessary action.
His Excellency Mr. President,
Article 2 of the Constitution stipulates that the Republic of Turkey is a democratic state governed by rule of law and based on the fundamental tenets set forth in the preamble of the Constitution where the separation of powers is defined as “a civilized cooperation and division of functions” among the State organs.
The notion of “division of functions” in this definition contributes to the protection of rights and freedoms by means of securing checks and balances system. The State organs’ working together to achieve their common goals represents “cooperation”. Undoubtedly, protection of the fundamental rights and freedoms is one of the common goals sought to be achieved by the legislature, the executive and the judiciary. Therefore, in the forms of the oath taken by the President and members of parliament, this common goal is expressed as “the ideal of ensuring everyone to enjoy human rights and fundamental freedoms”. That is why “cooperation” among the State organs within the meaning of the protection of fundamental rights is a constitutional requisite.
On this occasion, I would like to extend my gratitude to all our members who work devotedly in pursuit of the fundamental rights and freedoms as well as to members of the legislature, the executive and the judiciary endeavouring to avoid human rights violations and thereby to decrease the workload resulting from individual applications.
Lastly, I would like to note that swearing-in ceremonies are a means for welcoming those recently-appointed as well as memorialising those having left the office. In this sense, I would like to extend a welcome to Mr. Menteş and wish him a successful and fruitful term of office.
I also wish a healthy and prosperous retirement period for justices Mr. Nuri Necipoğlu, Mr. Osman Paksüt and Mr. Serruh Kaleli who retired in the recent year.
On this occasion, I would like to commemorate Mr. Mahmut Celalettin Cuhruk, one of the retired Presidents of the Court, as well as the retired justice Mr. İhsan Pekel, who lost their lives in the last year. I also extend my condolences to their families.
Retirement and death remind us that the court is not a property to the judge. As Sa'dî-I Şîrâzî says: “A really happy person owes his reputation to his knowledge and fairness. Those who are present now will leave; and those making an effort will be rewarded. What is left behind is merely good or bad reputation”. How happy are we who may leave a favourable impression at this very moment.
Before ending my speech, I would like to once again extend my gratitude for your participation in our ceremony. I extend my wishes of health and prosperity to all of you.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Turkey|