An Evaluation on the Past, Present and Future of Individual Application in Türkiye *
Ladies and Gentlemen,
I would like to welcome you all to the international conference held on the occasion of the 10th anniversary of the introduction of the individual application mechanism in Türkiye. I would also like to extend you all my most sincere and respectful greetings.
Today, we are hosting the Turkish judge and senior legal adviser holding office at the European Court of Human Rights, academics from Germany, Spain and Hungary, as well as the representatives of 15 countries, who has attended the 10th International Summer School program organised by the Turkish Constitutional Court under the auspices of the Association of the Asian Constitutional Courts and Equivalent Institutions. Let me welcome our foreign guests to our country and Court and thank them for their company during such a significant day.
As is known, the main objective of the constitutional jurisdiction is to secure constitutional justice. Constitutional justice points, in the most general terms, to the protection of all constitutional provisions, -first and foremost the provisions safeguarding fundamental rights and freedoms- notably the constitutional principles such as rule of law, democracy and separation of powers.
The task to secure constitutional justice by means of interpreting and implementing the Constitution is entrusted to the constitutional courts that are founded primarily for that very reason. These courts endeavour to secure constitutional justice by, on one hand, reviewing the constitutionality of the laws and on the other, adjudicating the alleged violations of rights brought before them through individual application or constitutional complaint mechanism.
In this sense, the Turkish Constitutional Court has engaged in the constitutionality review of the laws since the date it was founded. Its remit has been expanded, with the introduction of individual application mechanism on 23 September 2012, so as to cover the human-rights proceedings. 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, have been included into the scope of the constitutionality review in the Turkish constitutional jurisdiction.
For an institution to be well-established, the first 10-year period is highly important. So to say, we are talking about a child whose birth we have witnessed to, whose crawling, first steps and first words we have observed and who now eventually turns 10 years old. A child having difficult times and growing under harsh conditions…
At this very point we have attained today, we are able to make a sound evaluation of the individual application mechanism operating for 10 years. During my opening remarks, I would like to make an overall assessment of the past, present and future of individual application.
Let me start with the past of this mechanism. 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 also 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.
Shortly after it was revealed that such concerns were not indeed unfounded and that there were severe obstacles to the effective implementation of individual application. However, hope and will in pursuance of individual application have fortunately predominated over the challenges. Taking this occasion, I may note with pleasure that albeit all setbacks and severe traumas taking place within the period of 10 years, one of the good practices in the field of individual application has been achieved.
Let me take this opportunity to express my gratitude towards notably the constitution-maker establishing the individual application institution, the former Presidents of the Constitutional Court who strived to introduce this mechanism in Türkiye, as well as above all towards the Vice-Presidents, Justices and Rapporteur-Judges of the Constitutional Court successfully implementing individual application, judicial bodies and members contributing to its proper functioning at every level; in short, towards everyone contributing efforts with respect thereto.
It is not possible to provide, merely during this speech, a comprehensive insight into the scope and extent of the success achieved through individual application within the period of 10 years. In support of this consideration, it will suffice to make an online search via the Decisions/Judgments Database available at the Constitutional Court’s official website by entering random keywords. It will be then observed that there has remained almost no legal issue which was not yet addressed or discussed through the tens of thousands decisions and judgments rendered in the field of individual application.
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.
In the light of these judgments, it may be concluded that individual application has three transformative effects, two of which are specific to the Turkish Constitutional Court whereas the remaining one is of a more general nature.
First, individual application has 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-based approach. For instance, an individual through whose immovable a power transmission line was installed without expropriation in breach of the constitutional safeguards was entitled to lodge an individual application with the Constitutional Court. As a result, the latter found a violation of the applicant’s right to property enshrined in the Constitution and awarded compensation for the damage sustained by him, thus securing constitutional justice at individual level.
Second, individual application has made significant contribution to the holistic interpretation of the Constitution. As a matter of fact, the Constitutional Court, which previously interpreted the constitutional provisions in terms of abstract norms, now construes, by the introduction of individual application, the normative scope of fundamental rights and freedoms by taking into consideration of the facts and circumstances of the cases. This has brought along the prevalence of the rights-based approach, put in practice through individual application, also over the constitutional review of norms. Accordingly, individual application has enabled the Constitutional Court to, on one hand, embrace the rights-based approach prioritising fundamental rights and freedoms and on the other, to extend the scope of its interpretation of the constitutional provisions in a way that would also cover the constitutional review of norms.
The third effect of individual application is its contribution to the resolution, to a significant extent, of the legal, social, political and economic issues in a constitutional manner. In other words, institutions wielding public power, notably the inferior courts, have been interpreting and implementing -at all levels- the constitutional provisions on fundamental rights and freedoms.
It should be noted that the last 10-year’s period of individual application has undergone arduous times. Within this period, following the coup attempt staged on 15 July 2016, a state of emergency was declared, and subsequently, the Court faced an excessive workload of individual applications in mass, which was over 100 thousands. In fact, not merely during the state of emergency, but from the very beginning, Türkiye has undertaken such an excessive workload as to be incomparable with that of the other countries operating individual application mechanism.
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.
Since 23 September 2012, the Constitutional Court has received nearly 450,000 individual applications, 327,000 of which have been adjudicated and 123,000 of which are pending. Nearly 68,000 of the pending applications, amounting to 55% thereof, concern the right to be tried within a reasonable time.
It is apparent that the high rate of the complaints about the excessive length of proceedings out of the pending applications is the case also for the Court’s judgments finding a violation. Within this 10-year’s period of individual application, the Constitutional Court has issued nearly 30,000 judgments finding a violation, over 60% of which concerns merely the right to be tried within a reasonable time. It is also evident that taken together with the judgments finding a violation of the right to a fair trial along with the violations of the excessive length of proceedings, 70% of the total violation judgments is then consisted of the cases related to the right to a fair trial. Among the fundamental rights and freedoms with the highest rate of infringement are 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%).
Indeed, the statistics as to the pending cases and violations in individual application point to the fair trial, notably the excessive length of proceedings, as an issue that must be rapidly remediated. The Constitutional Court indicates, in its judgments, the steps required to be taken for the resolution of this matter, and when necessary, circulates the relevant judgment finding a violation to the legislature for the ultimate resolution of this structural problem.
Now let me talk about the present of individual application in the light of these statistics. It may be said that individual application today faces two challenges. The first challenge is the ever-increasing workload, whereas the second one is the pursuance, in a consistent and coherent manner, of the case-law established with a rights-based approach over a period of 10 years. The successful future of the individual application depends on the ability to effectively cope with these two challenges.
The Constitutional Court has taken the necessary measures from the outset in terms of workload by ensuring judicial administration through a dynamic approach. In this regard, the Court has 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. Some of these judgments were rendered by applying the pilot judgment procedure, which is intended to ensure the conclusion of a large number of applications on similar matters before the Court.
In this scope, I would like to address three important violation judgments rendered by the Plenary of the Constitutional Court in the last six months, starting from the most recent one.
The first is the judgment of Atilla Yazar and Others that was published in yesterday’s Official Gazette. Although it was not issued under the pilot judgment procedure, the judgment concerns a large number of applications before the Court regarding the freedom of expression. The Court therein thoroughly examined all aspects of the procedure of the suspension of the pronouncement of the judgment (HAGB) and found structural violations of both freedom of expression and right to hold meetings and demonstration marches, especially due to the ineffectiveness of the appeal procedure. A copy of the judgment was sent to the legislature for the necessary legislative amendments to be made in order to remedy the structural problem identified.1
Secondly, in the judgment of Nevriye Kuruç, which was delivered under the pilot judgment procedure, the Court addressed the issues of lengthy proceedings and relevant effective legal remedy, which constitute the subject matter of over half of the applications before the Court. In the relevant judgment, the Court identified a structural problem and found a violation of the right to an effective remedy in conjunction with the right to a fair trial and granted a period of four months to the legislature for the establishment of an effective remedy to be exhausted before lodging an individual application.2
Thirdly, I should mention the judgment of Yeni Gün Haber Ajansı Basın ve Yayıncılık A.Ş. and Others, which is of paramount importance in terms of freedoms of expression and the press. The Court concluded therein that the suspension of the right to publish official announcements and advertisements for various periods of time due to the publication of certain news and columns in certain national newspapers was in breach of the freedoms of expression and the press. In this pilot judgment, the Court called the legislature to amend the impugned provision leading to violation with a view to preventing further violations.3
In addition to the aforementioned judgments, taking into account also the case-law of the European Court of Human Rights, the Court rendered similar judgments also in previous years, whereby it identified structural problems leading to violations of rights.4 Through these judgments, the Court has strived for both eliminating the structural problems as to fundamental rights and freedoms, and reducing the workload before it.
In the last part of my speech, I would like to share with you some of my views on the future of the individual application. As I have expressed on different occasions before, it is our common responsibility to ensure the transfer of the individual application, which has been institutionalised as an effective legal remedy despite all the difficulties and arduous situations for 10 years, to the next generations.
We all have a duty to ensure the successful operation of the individual application mechanism, which has been a great achievement for our country.
First of all, we should have a correct understanding of, and duly implement, such mechanism. Individual application is a subsidiary legal remedy. This principle requires that the alleged violations be addressed and resolved by the inferior courts. Bringing an issue, which has not yet been examined by the inferior courts, before the Court through individual application fails to comply with the principle of subsidiarity.
As a matter of fact, one of the grounds relied on by the Constitutional Court in violation judgments regarding the suspension of the pronouncement of the judgment (HAGB) and alleged lengthy proceedings is the infringement of the principle of subsidiarity of individual application. Accordingly, the first-hand examination, by the Constitutional Court, of the complaints regarding the HAGB judgments due to the ineffectiveness of the appeal against this procedure, as well as regarding the alleged violations of the right to trial within a reasonable time does not comply with subsidiary nature of the individual application mechanism.5
Nevertheless, the principle of subsidiarity does not prejudice the fact that the Court holds the ultimate authority to interpret and apply the constitutional provisions on fundamental rights and freedoms within the scope of individual application. It is incumbent on the Constitutional Court to interpret constitutional provisions through constitutionality review and individual application and to ensure the uniform application of these provisions.
On the other hand, the successful operation of the individual application mechanism is conditional upon the elimination of the causes of violation. This may be achieved so long as the erga omnes effect of the judgments rendered through individual application mechanism becomes widespread. As is known, the Court determines the basic rules and principles intended to prevent new violations by identifying the causes of violations in individual applications. Accordingly, it is of vital importance that in cases where the violation arises from an administrative practice, it is incumbent on the administrative authorities, and on the courts in cases where the violation arises from a judicial decision, to make decisions preventing similar future violations. Likewise, in cases where the violation arises from a provision of law, the legislature is supposed to make legislative amendments to remedy the violation and prevent new violations.
The erga omnes effect of the individual application requires the prevention of the bringing, of a given matter regarding which the Court has already interpreted the Constitution and found a violation, once again before the Court through individual application. This is only possible when the public authorities as well as the inferior courts perform their practices regarding the same matter in line with the rules and principles set out in the violation judgment. Otherwise, similar disputes will be raised in new applications and brought before the Court continuously. As the Court has reiterated in its many judgments, “It would be impossible to sustain an individual application mechanism functioning in such manner.”.6
Lastly, the future of the individual application depends above all on the establishment and rooting of a social/political culture, which embraces the idea that humans are inherently the subject of the fundamental rights and which is predicated on the respect for human dignity. This cultural climate entails the acceptance of the ontological existence of the “other”. In fact, the "other" is our reflection in the mirror. Each of us is the "other" in the eyes of anyone else. From this perspective, human rights are at the same time “the rights enjoyed by the other”.
Accordingly, the effectiveness and prospect of success of the individual application as a legal remedy will increase as the culture of living together embracing the differences becomes settled and the values such as empathy, tolerance and compromise necessitated by such cultural climate are manifested.
In fact, empathy with and respect for the "other" are firmly inherent in the spiritual roots of this geography. For example, Saadi Shirazi, in his famous poem "Children of Adam", which he wrote about eight centuries ago and which is today inscribed on the wall of the United Nations building, expressed that empathising with the other’s sufferings was a requirement inherent in being a human. Saadi said:
“If you have no sympathy for the sufferings of others,
Deserve not the name, human being!”7
Ending my speech with these feelings and considerations, I wish that the international Conference that will concentrate on different aspects of the individual application be successful and fruitful. I would like to express my gratitude to the representatives of the Council of Europe and the European Union who have supported the project, the moderators, distinguished speakers from Türkiye and abroad who accepted our invitation and will contribute to the Conference with their presentations, all participants and everyone who have contributed to the organisation of the Conference.
I would like to once again thank you all for honouring our meeting with your participation and for being a part of and contributing to our happiness for the 10th anniversary of the individual application, and wish you all health and prosperity.
|Prof. Dr. Zühtü ARSLAN
|Constitutional Court of the Republic of Türkiye
* Opening Address, International Conference on the 10th Anniversary of Individual Application Mechanism in Türkiye, Ankara, 23 September 2022.
1 See Atilla Yazar and Others [Plenary], no. 2016/1635, 5 July 2022.
2 See Nevriye Kuruç [Plenary], no. 2021/58970, 5 July 2022.
3 See Yeni Gün Haber Ajansı Basın ve Yayıncılık A.Ş. and Others [Plenary], no. 2016/5903, 10 March 2022.
4 For the pilot judgment where it was concluded that there had been no effective legal remedy to challenge the deportation order, see Y.T. [Plenary], no. 2016/22418, 30 May 2019; for the pilot judgment regarding the blocking of access to internet, see Keskin Kalem Yayıncılık ve Ticaret A.Ş. and Others [Plenary], no. 2018/14884, 27 October 2021; and for the pilot judgment where a structural problem was identified in relation to Article 220 § 6 of the Turkish Criminal Code, see Hamit Yakut [Plenary], no. 2014/6548, 10 June 2021.
5 See Atilla Yazar and Others, §§ 156-158; and Nevriye Kuruç, § 87.
6 See K.V. [Plenary], no. 2014/2293, 1 December 2016, § 53.
7 Sadi Şirazi, Bostan ve Gülistan, Prep. by O. Koca, İstanbul, Beyan Yayınları, 2016, p. 246.