Paylaş | 29 September 2022

Following the stand in silence and the Turkish National Anthem during the “International Conference on the 10th Anniversary of Individual Application Mechanism in Türkiye” held at the Grand Tribunal Hall of the Constitutional Court, the opening speeches were delivered by Mr. Alexander Fricke, Head of the EU Delegation to Turkey, Mr. Christos Giakoumopoulos, Director General of Human Rights and Rule of Law of the Council of Europe (online), and Mr. Zühtü Arslan, President of the Turkish Constitutional Court.

Noting that the main objective of the constitutional jurisdiction was to secure constitutional justice, President Arslan stated during his speech that constitutional justice points, in the most general terms, to the protection of all constitutional provisions, notably the rule of law, democracy and separation of powers.

 “The task to secure constitutional justice is entrusted to the constitutional courts.”

Stressing that the constitutional courts endeavoured to secure constitutional justice by, on one hand, reviewing the constitutionality of the laws and on the other, adjudicating the alleged violations of rights through individual application or constitutional complaint mechanism, President Arslan noted that the remit of the Turkish Constitutional Court was expanded, with the introduction of individual application mechanism on 23 September 2012, so as to cover the human-rights proceedings. He further stated that thereby, the acts and actions of the executive and judiciary allegedly constituting an interference with fundamental rights and freedoms, along with those of the legislature, were included into the scope of the constitutionality review.

Describing the introduction of the right to individual application as a “milestone” in Turkish law and pointing to the significance of the first 10-year period of the individual application system for its becoming an established institution, President Arslan made an overall assessment of the past, present and future of individual application and continued as follows:

“Exactly 10 years ago today when individual application mechanism was put into practice, we were in fact stuck between conflicting emotions of hope and concerns. We were hopeful in that the constitution-maker introduced the individual application mechanism so as to raise the country’s standard for the protection of fundamental rights and freedoms. We were hopeful in that individual application was among the greatest reforms of the Turkish legal history. In our capacity as the actors of the Constitutional Court, we intended and strived to protect the fundamental rights and freedoms of our citizens by means of ensuring the successful and effective functioning of this mechanism.

We were concerned on the other hand in that we were on the brink of a series of problems and uncertainties. The chronic legal problems in the country, such as excessive length of proceedings, the probable workload to arise therefrom, the unfamiliarity of the judicial bodies including the Constitutional Court with the practice of individual application and the bias to a certain extent were the elements that overwhelmed us with anxiety and concerns.”

“Hope and will in pursuance of individual application predominated over the challenges.”

President Arslan, indicating that one of the good practices in the field of individual application became established in Türkiye albeit all setbacks, stressed that within this 10-year’s period, there remained almost no legal issue which had not been yet addressed or discussed through the tens of thousand decisions and judgments rendered in the field of individual application. He further noted “So indeed, through these decisions and judgments, the Court, found violations and offered redress with respect to several issues including but not limited to maiden name, headscarf ban at public institutions and universities, confiscation without expropriation, blocking access to internet, assets possessed by foundations, compulsory classes in religion and ethics, the disclosure of personal data, and suspension of the right of newspaper publishers to publish official announcements and advertisements.”   

Pointing to three transformative effects of individual application, two of which were specific to the Turkish Constitutional Court whereas the remaining one was of a more general nature, President Arslan stated that individual application primarily transformed the Constitutional Court into a higher judicial tribunal interacting with daily lives of citizens, all aspects of social and political life and dealing with alleged violations through its rights-oriented approach; that second, individual application contributed to the interpretation of the Constitution in a wholistic manner; and that third, it had significant effects on the resolution of the legal, social, political and economic issues in a constitutional manner.  

President Arslan also provided statistical information regarding individual application cases and indicated that the statistics on the individual application with 10-year past might give a better insight into the challenges experienced with respect to the Court’s workload. In this respect, he noted that the Constitutional Court had so far received nearly 450.000 individual applications, 327.000 of which had been adjudicated and 123.000 of which were pending; and that about 68.000 of the pending applications (nearly 55%) were related to the right to be tried within a reasonable time.

Noting that the Constitutional Court had so far issued nearly 30.000 judgments finding a violation, President Arslan stated that over 60% out of these judgments concerned the right to be tried within a reasonable time; and that taken together with the judgments finding a violation of the right to a fair trial, 70% of the total violation judgments was then consisted of the cases related to the right to a fair trial. He further stated that among the fundamental rights and freedoms with the highest rate of infringement was the right to property (10,6%), freedom of expression (8,9%), as well as the right to respect for private and family life (2,6%).

Pointing to the fair trial as an issue that must be rapidly remediated given the statistics as to the pending cases and violations, President Arslan stated that the Constitutional Court indicated, in its judgments, the steps required to be taken for the resolution of this matter, and when necessary, circulated the relevant judgment finding a violation to the legislature for the ultimate resolution of this structural problem.

Indicating the existence of two challenges regarding the individual application today, President Arslan pointed out the ever-increasing workload and the pursuance, in a consistent and coherent manner, of the case-law established with a rights-based approach over a period of 10 years, and then emphasized that the successful future of the individual application depends on the pursuance of the established case-law.

"The Constitutional Court has taken the necessary measures from the outset in terms of workload."

Noting that the Constitutional Court took the necessary measures from the outset in terms of workload by ensuring judicial administration through a dynamic approach, President Arslan stated that the Court concluded an average of 45,000 individual applications annually in the last two years, on one hand, and issued decisions identifying the structural and systemic problems leading to violations, on the other. In his speech, President Arslan also referred to the pilot judgment procedure intended to ensure the conclusion of a large number of applications on similar matters before the Court.

“Individual application is a subsidiary legal remedy.”

President Arslan stated that we all had a duty to ensure the successful operation of the individual application mechanism which was a great achievement for our country, and that, first of all, we should have a correct understanding of, and duly implement, such mechanism. Pointing out the subsidiary nature of the individual application, President Arslan said "This principle requires that the alleged violations be addressed and resolved by the inferior courts. Bringing an issue that has not been examined yet by the inferior courts before the Court through individual application fails to comply with the principle of subsidiarity.” In this scope, President Arslan noted that the subsidiary nature of individual application should be fully understood by everyone and all institutions, and he continued:

Individual application is not a legal remedy envisaged for the first-hand resolution by the Constitutional Court of all issues and all problems concerning fundamental rights in Türkiye. Individual application is a subsidiary legal remedy. Therefore, it is for the inferior courts and public authorities to make the primary assessment and find the violation. The Court is an institution that comes and/or should come into play where the inferior courts fail to do so and should find, and offer redress for, the violation, if any. As also stated in a recent pilot judgment, the Court should not deal with individual applications in the first instance, and the inferior courts and other public authorities should address and resolve the violations at the very initial stage without causing the matters to be brought before the Court.

Pointing out the necessity to fully understand and implement the erga omnes effect of the individual application, President Arslan stressed that the erga omnes effect of the individual application required the prevention of the bringing, of a given matter regarding which the Court had already interpreted the Constitution and found a violation, once again before the Court through individual application, and he continued that this was only possible when the public authorities as well as the inferior courts would perform their practices regarding the same matter in line with the rules and principles set out in the violation judgment.

Referring to what needed to be done to prevent new violations, President Arslan noted:

The Court cannot fight and wipe off mosquitoes one by one in terms of the individual application, but rather it should drain the swamp, namely the causes of violations. To ensure this, the erga omnes effect of the individual application should be fully understood and implemented by the public authorities. Without waiting for a new violation to occur or a new individual application to be filed, the rules and principles set by the Court should be put into practice, thereby preventing the violations.

President Arslan, noting that the courts generally complied with the violation judgments rendered by the Court in terms of redressing the damage sustained by the applicant through means such as retrial and award of compensation, indicated that despite some setbacks that may come up occasionally, there was no disorder inherent in the Turkish legal system.

Lastly, President Arslan expressed that the future of the individual application depended above all on the establishment and rooting of a social/political culture which embraced the idea that humans were inherently the subject of the fundamental rights and which was predicated on the respect for human dignity, and that this cultural climate entailed the acceptance of the ontological existence of the "other". Emphasizing that the effectiveness and prospect of success of the individual application as a legal remedy would increase as the culture of living together embracing the differences became settled and the values such as empathy, tolerance and compromise necessitated by such cultural climate were manifested, President Arslan specified “Human rights also covers “the rights of the other”.

At the end of his speech, expressing his gratitude to everyone who contributed to the organisation, President Arslan wished that the Conference be successful and fruitful.

- Sessions of the Conference-

Prof. Dr. Yusuf Şevki Hakyemez, Justice of the Turkish Constitutional Court, Assoc. Prof. Dr. Saadet Yüksel, Turkish Judge at the ECHR, Prof. Dr. Aydın Gülan, Academic Member of Faculty of Law at Istanbul University, and Mr. Matthias Hartwig from Max Planck Institute for Comparative Public Law and International Law made presentations in the first session on “Right to Individual Application” moderated by Prof. Dr. Mehmet Turhan, Academic Member of Faculty of Law at Çankaya University.

The second session on “Redress of Any Violation Found and Its Consequences in Individual Application” was moderated by Mr. Kadir Özkaya, Vice-President of the Turkish Constitutional Court. Mr. Jeremy McBride, Visiting Academic at the Central European University of Budapest, Prof. Dr. Antonietta Elia from the Universidad de Santiago La Compostela, Mr. Civan Turmangil, Senior Legal Advisor at the Second Section of the ECHR, and Mr Ayhan Kılıç, Rapporteur-Judge of the Turkish Constitutional Court made presentations in the second session.

After the sessions, the participants answered the questions addressed by the audience.

- Closing Remarks and Presentation of Plaque -

At the end of the program, Mr. Zühtü Arslan, President of the Turkish Constitutional Court, presented plaques to the moderators and participants making presentations.

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

Click for the full text of the speech delivered by President Zühtü Arslan.