Paylaş | 13 October 2023

The “International Conference on the 11th Anniversary of the Individual Application Mechanism in Türkiye” was organised on the occasion of the 11th anniversary of the introduction of the individual application mechanism.

Ms. Pınar Başpınar, Deputy Head of the Council of Europe Programme Office in Ankara, Mr. Nikolaus Meyer-Landrut, Ambassador, Head of the European Union Delegation to Türkiye, and Prof. Dr. Zühtü Arslan, President of the Constitutional Court of the Republic of Türkiye, delivered the opening speeches at the Conference, which was held at the Grand Tribunal Hall of the Constitutional Court.

In his speech, President Arslan stated that the role of the constitutional justice in the protection of fundamental rights and freedoms has become more prominent and visible with the individual application and that the 11 years of implementation of the individual application have brought about significant changes at both the social and legal levels.

“Foremost, the individual application has ushered transformative changes within the Constitutional Court itself.”

Commenting on the individual application, President Arslan said: “The Constitutional Court has evolved into an institution tasked with reviewing not only judicial decisions but also those made by the legislative and executive branches, ensuring their compliance with constitutional provisions pertaining to fundamental rights and freedoms. This transformation underscores its unwavering commitment to upholding the principle of the supremacy and binding nature of the Constitution as a whole.”

Noting that the Constitutional Court adopts a rights-based approach in fulfilling its duty of ensuring the supremacy of the Constitution and protecting fundamental rights and freedoms, President Arslan pointed out that the rights-based approach, which dominates the individual application, also permeates the constitutionality review and continued his words as follows:

“We can observe that the impact of individual application mechanism on constitutionality review is particularly embodied in two distinct areas. First and foremost, constitutional provisions related to the protection and restriction of fundamental rights and freedoms are, in a sense, solidified through individual applications addressing concrete grievances. These interpretations subsequently extend into the realm of constitutionality review, fostering consistency and synchronicity in the interpretation and application of the constitutional provisions in both areas.

The second impact of individual applications on constitutionality review is that the violations identified due to unlawfulness eventually result in annulment decisions. In fact, violation judgments in individual applications pertaining to various issues, such as the suspension of the pronouncement of the judgment and the failure to redress damages caused by mining activities, have led to the annulment of legal provisions responsible for such violations, using the same reasoning during the concrete review process.”

“The impact of the individual application extends far beyond the realm of constitutional justice; it has fundamentally reshaped our entire legal system.”

President Arslan noted that the individual application has deeply affected not only constitutional justice, but also the entire legal system: “This transformation, often described as the constitutionalisation of law, arises as an inevitable consequence of reviewing judicial decisions through the lens of fundamental rights and freedoms. Thanks to the individual application, the constitutional provisions concerning fundamental rights and freedoms have gained greater significance and are being more widely employed and interpreted across various legal domains, ranging from criminal law to commercial law.”

Continuing his speech, President Arslan stressed the importance of constitutional interpretation, which is a requirement of the supremacy and binding nature of the Constitution, and pointed out that the Constitution is not a text that remains on paper, but a living legal instrument that guides the legal system and must be respected in all public acts.

“The text of the constitution remains fixed, while its interpretation remains dynamic.”

Noting that constitutions are not texts that exhaustively cover all possibilities and developments, President Arslan said that courts can interpret constitutional provisions in different ways, adding: “In this context, one of the Constitutional Court’s primary duties in the implementation of individual applications is to ensure legal certainty by establishing uniformity in the interpretation of constitutional provisions. Undoubtedly, like other constitutional bodies, courts possess the authority to interpret constitutional provisions when adjudicating disputes before them.”

President Arslan stated that one of the most important achievements of the individual application is the introduction of the Constitution into the lives of our people, describing this situation as the socialisation of the Constitution. Stating that after the individual application, the Constitution started to attract the attention of almost everyone and became a part of the life of every individual, President Arslan continued his words as follows: “This development has led, on the one hand, to the strengthening of society’s awareness of legal remedies and, on the other hand, to the transformation of the Constitutional Court into a court that touches the life of society and our people.”

“The 11-year journey of individual applications constitutes a story of success.”

President Arslan pointed out that people from all walks of life have been submitting applications to the Constitutional Court for 11 years and gave examples of individual applications in which violations of rights have been found. He recalled that in tens of thousands of applications, the Constitutional Court has found violations and issued judgments to remedy the applicants’ grievances, and as a result of these judgments, almost everyone, from the worker who was unfairly dismissed from his job to the farmer whose field was confiscated without expropriation, from the local journalist who was sanctioned for his article to the student who was suspended from school for participating in a demonstration, has benefited from constitutional safeguards in practice.

President Arslan underlined that the Constitutional Court remains committed and dedicated to both the effective and efficient functioning of the system it has put in place to keep the heavy workload it faces at a manageable level, and to the consistent and stable implementation of its rights-based approach, saying: “The effective operation of the individual application hinges upon recognising that it is not an ordinary legal remedy, but rather a subsidiary one. Indeed, in individual applications, the Constitutional Court does not directly engage in the first-hand examination of violations of rights, nor does it serve as an appellate body.”

President Arslan emphasised that the reduction of the workload depends on the execution of the violation judgments and stated that after a violation judgment of the Constitutional Court, it is very important that the legislature, the administration or the courts, depending on the source of the violation, take measures to eliminate the concrete violation on the one hand and to prevent new similar violations on the other hand.

At the end of his speech, President Arslan expressed his hope for a successful and fruitful conference and thanked all those who had contributed to its organisation.

-Sessions of the Conference-

The first session on “Subsidiarity of Individual Application Judgments” was chaired by Ms. Saadet Yüksel, Judge of the European Court of Human Rights in respect of Türkiye. Assoc. Prof. Dr. Lize Glas, Academic Member of Radboud University, Asst. Prof. Dr. Ufuk Ramazan Çakmak, Academic Member of Tokat Gaziosmanpaşa University and Mr. Özgür Duman, Chief Rapporteur-Judge (Sections) of the Constitutional Court made presentations at the session.

The second session on “The Erga Omnes Effect of Individual Application Judgments” was chaired by Mr. Kadir Özkaya, Vice-President of the Constitutional Court. Mr. Gilberto Felici, Judge of the European Court of Human Rights in respect of San Marino, Prof. Dr. Nihat Bulut, Academic Member of İstanbul Medipol University and Prof. Dr. Jukka Viljanen, Academic Member of the University of Tampere made presentations at the session.

After the sessions, the participants answered questions from the audience.

-Closing Remarks-

The closing remarks of the Conference were delivered by Mr. Hasan Tahsin Gökcan, Vice-President of the Turkish Constitutional Court.