Paylaş | 25 July 2019

Swearing-In Ceremony at the Constitutional Court

Swearing-in ceremony of the newly elected Justice Mr. Selahaddin Menteş was held at the Grand Tribunal Hall of the Constitutional Court.

The President of the Republic of Turkey Mr Recep Tayyip Erdoğan, the President of the Turkish Grand National Assembly Mr. Mustafa Şentop, the leader of the CHP Mr. Kemal Kılıçdaroğlu, the President of the Court of Cassation Mr. İsmail Rüştü Cirit, the President of the Council of State Mrs. Zerrin Güngör, the Minister of Justice Mr. Abdulhamit Gül, the Minister of Internal Affairs Mr. Süleyman Soylu, the Minister of National Defence Mr. Hulusi Akar, the Minister of Health Mr. Fahrettin Koca, the President of the Supreme Electoral Council Mr. Sadi Güven, the President of the Turkish Bar Association Mr. Metin Feyzioğlu and members of the high judiciary and other guests attended the ceremony.

The President of the Constitutional Court Mr. Zühtü Arslan, the Deputy-Presidents and the new Justice Mr. Selahaddin Menteş welcomed the guests.

During his speech at the ceremony, President Arslan congratulated Mr. Menteş and wished him success and stated that he believes that Menteş will contribute to the Constitutional Court with his vast professional experience.

 “The Constitutional Court continues to decide with a rights-based approach”

President Arslan mentioned that swearing-in ceremonies are important opportunities to recall professional responsibilities and stated “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.”

President Arslan stated that the Constitutional Court fulfils its duty to ensure constitutional justice by protecting fundamental rights and freedoms through norm review and individual application and emphasized that the Court continues to decide on a right-basis approach in both areas.

 “The individual application is a major reform in the Turkish Constitutional Justice”

Noting that the individual application, introduced to the legal system with the 2010 constitutional amendment, is the biggest reform of the Turkish constitutional justice, President Arslan continued as follows: “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 gained the opportunity to seek remedy for the allegations of fundamental rights within the borders of our country without carrying 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 eliminated and thus the demands for justice have been met.”

 “190.000 out of 236.000 individual applications have been finalized”

Stating that the aim of the individual application is not to address one by one each violation of rights in the country, Arslan said “In fact this is not possible” and continued his words as follows:

“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 date the individual application started, 23 September 2012, we have concluded 190.000 out of a total of 236.000 applications. As of today, the number of pending applications is around 46.000. The workload of the Court will be better understood considering the fact that there are about 56.000 applicants from 47 countries before the European Court of Human Rights.”

“Certain legal changes regarding the functioning of the individual application have become mandatory”

President Arslan said that the Constitutional Court has taken necessary measures from the very beginning to cope with the increasing number of applications which currently are around 40 – 45 thousand a year and has shown intensive effort in this regard. He also noted that seven years of experience has revealed that certain legal changes have become mandatory for the functioning of the individual application and added:

“In this context, first of all, the notice of deficiency system needs to be revised and even removed. Exceptions may be made, but the notice of deficiency system is incredibly time-consuming for our court. Secondly, it is necessary to adopt a separate inadmissibility criteria of insignificant damage in order to sort out more quickly individual applications and devote the time and efforts of the Court to applications which carry constitutional significance. Finally, an amendment should be made to transfer complaints on lengthy trials to the commission established within the Ministry of Justice.”

“The implementation of the TCC’s judgments regarding the redress of violations is of vital importance”

Beyond the legal amendments, President Zühtü Arslan pointed out that the real success of the individual application depends on fixing the structural problems causing the violations and said: "It is of vital importance that the judgment regarding the redress of violations in the violation judgements of the Constitutional Court should be taken into consideration and implemented very carefully by the relevant institutions. If we want to eradicate the source of the violations and prevent new ones, we first have to understand what the Constitutional Court intends to say in its violation judgements. Sometimes courts are waiting for a new individual application in order to settle the dispute before them. However if the Constitutional Court has already issued a violation judgment on a similar matter, the courts should apply the principles set out by the Constitutional Court without waiting for a new application. This, in turn, would prevent new violations and therefore new individual applications.”

President Arslan, emphasized that a retrial would not feasible if the violation directly arises from a legal provision rather than trial process, and reminded that in such cases a copy of the judgment of the Turkish Constitutional Court is sent to the Grand National Assembly of Turkey in order to abolish or amend the legal provision causing the violation. 

President Arslan stressed that if it is determined that the violation is caused by the law, it should be amended or abolished, and he pointed out that otherwise the implementation of the same law will cause new violations every time.

Referring to the importance of the cooperation between the institutions of the state regarding the protection of fundamental rights and freedoms, President Arslan recalled that the protection of fundamental rights is a common goal and that not only the Justices of the Constitutional Court, but also the President as the head of state and the members of the Parliament swear that “they will not diverge from the ideal of protecting fundamental rights and freedoms.”

President Arslan said: "Therefore, the protection of fundamental rights is the common goal of the state and even the reason for the very existence of the state. In order to evolve towards this goal, inter-institutional cooperation emerges as a constitutional necessity."

After the speech of President Zühtü Arslan, the swearing-in ceremony commenced. The new Justice Mr. Selahaddin Menteş took his oath after his curriculum vitae was presented. Menteş was then vested with his robe by President Arslan.