Paylaş | 22 March 2019

The procedure of alleging a constitutional violation by general courts to the Constitutional Court

Under Article 152 and provisional Article 21 of the Constitution, if a court hearing a case considers applicable provisions of a law, decree law, or presidential decree contrary to the Constitution or if it is convinced of seriousness of such a claim submitted by one of the parties, it can apply to the Constitutional Court with the request to annul the relevant provision.

The procedure of the application for an alleged violation of the constitution is regulated in Articles 40─42 of the Law No.6216 on the Establishment and Procedure of the Constitutional Court and Article 46 of the Internal Regulations of the Constitutional Court.

The requirements to file an application in accordance with aforementioned provisions are described below. In case of a deficiency with respect to these requirements, the application shall be rejected without any examination on the merits pursuant to Article 40 of the Law No. 6216 and Article 49 of the Internal Regulations of the Constitutional Court.

The basic conditions required to file an appropriate appeal:

• The applying authority must be a court.

• There must be an ongoing lawsuit.

• The court filing the application must be in charge of the case.

• The law, the decree law or the presidential decree must be the rule to be applied in the case. (As often emphasized in the decisions of the Constitutional Court, the applicable rules have a positive or negative effect on the solution of the legal issues in different stages of the case or on the conclusion of the case.)

• A certified copy of the interlocutory decision (and records of hearing and proceedings, etc.) to apply to Constitutional Court must be included in the application dossier.

• The application decision must be reasoned. In this context, it must be explained on what grounds each rule contradicts a particular article of the Constitution.

• The original copy of the reasoned application decision must be submitted to the Constitutional Court.

• Certified copies of the petition or indictment or documents initiating the case and other necessary documents must be attached to the application decision.

• The contented rule must not be dismissed on the merits by the Constitutional Court within ten years before the application date.

• If a contented rule is also applicable in other cases pending before applying court, no fresh application can be made to the Constitutional Court against the same rule and the original application should be deemed as a preliminary issue for the other cases as well.

• A list of contents should be prepared for the documents presented in the application dossier according to their date order.