Welcome Address on the Occasion of the 56th Anniversary of the Turkish Constitutional Court
25 April 2018
His Excellency Mr. President,
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,
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|
|The Constitutional Court of the Republic of Turkey|