Paylaş | 23 September 2019

“Individual application has led to a revolutionary change in the Turkish legal order”

Indicating that individual application has led to a revolutionary change in the Turkish legal order, Mr. Zühtü Arslan, President of the Turkish Constitutional Court delivering a speech at the closing conference of the “Joint Project on Supporting the Individual Application to the Constitutional Court in Turkey”, also adds “In this respect, individual application is one of the greatest reforms introduced in the field of law in our country”.

Closing conference of the “Joint Protect on Supporting the Individual Application to the Constitutional Court in Turkey”, which aims to support, and contribute to the improvement of, the individual application to the Constitutional Court by strengthening the Turkish judicial institutions with a view to ensuring full respect for the rights and freedoms safeguarded by both the Turkish Constitution and the European Convention on Human Rights, was held in İstanbul. President Mr. Zühtü Arslan delivered a speech during the conference.

“Terrorism, xenophobia, racism and Islamophobia, which have been spreading rapidly nowadays, pose a serious threat to pluralism”

President Mr. Arslan, pointing to the fact that co-existence of differences at the social and political level entails a fair and pluralist order where fundamental rights and freedoms are safeguarded, states “Terrorism, xenophobia, racism and Islamophobia, which have been spreading rapidly nowadays, pose a serious threat to pluralism and thereby to the culture of living together”.

Underlining that another condition for living together with differences is the establishment of a fair legal order, Mr. Arslan states that the history of Europe is the history of struggles towards establishing such order but that as known to everyone, there have been unfavourable occasions deflecting from democracy, rule of law and human rights.

“The ECHR’s case-law has had a determining impact on the progress of the constitutional and legal system of Turkey”

Specifying that the European Convention on Human Rights signed in 1950 (“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, stated:

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 is one of the greatest reforms introduced in the field of law in our country”

President Mr. Arslan, stating that individual application that was put into practice seven years ago on 23rd September 2012 has led to a revolutionary change in the Turkish legal order, remarks that in this respect, individual application is one of the greatest reforms introduced in the field of law in our country and that we need not hours but days to thoroughly explain this reform and the change it has brought along. In this regard, he evaluates the goals sought to be achieved by individual application mechanism and whether these goals have been achieved.

Mr. Arslan, underlying that introduction of the individual application mechanism has two main goals, which are principal and practical, that the former is to ensure the advancement of fundamental rights standard in the country, while the latter 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, notes that realisation of this goal would undoubtedly decrease the number of applications to be lodged from Turkey with international judicial organs, which has been successfully achieved.

“Right-oriented decisions rendered through the individual application mechanism have made significant contributions to the improvement of standards of fundamental rights and freedoms”

President Mr. Arslan, specifying that the seven-year functioning of individual application mechanism demonstrates that the two goals set by the constitutional maker have been achieved to a considerable extent, stated “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”.      

“Effective functioning of this mechanism has also led to a significant decrease in the number of applications lodged against Turkey before the ECHR”

Pointing to the fact that 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, there has been a significant decrease in the number of applications lodged against Turkey before the ECHR, Mr. Arslan specifies that while in 2012 before the introduction of individual application system the number of pending cases before the ECHR against Turkey was 16.900, by 31 August 2019, this number has decreased to 8.800, and he states:

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”.

The Court has concluded 197.000 individual applications out of 244.000”

President Mr. Arslan, stating that the Constitutional Court has faced a heavy workload since the introduction of the individual application mechanism, continues as follows:

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”. 

“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 will prevent occurrence of new violations”

President Mr. Arslan, stressing that 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, states “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”.

“Protection of fundamental rights and freedoms necessitates an effective and efficient cooperation among institutions”

President Mr. Arslan, mentioning the fact that 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, stresses that the introduction of individual application has not vested the Constitutional Court with an appellate review authority in the civil, criminal and administrative jurisdiction, and he adds:

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”.

“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”

President Mr. Arslan, specifying that such projects, in the most general sense, promotes the activities that serve a world ideal where fundamental rights and freedoms are better protected, states “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”.

At the end of his speech, President Mr. Arslan thanks all those who have contributed at every stage of this successful project and the stakeholders, and he wishes that the conference be fruitful.

Click here for the President’s speech.