Closing Conference of Joint Project on Supporting the Individual Application to the Constitutional Court in Turkey
on “Review and Way Forward for the Individual Application System, Seven Years On”
23 September 2019, Istanbul
Ladies and Gentlemen,
It is my pleasure to welcome you here today to the closing conference of the Joint Project on “Supporting the Individual Application to the Constitutional Court”. I would like to extend you my most sincere greetings and express my gratitude for your participation.
Let me start my speech with a thought-provoking question: “How could we live together with those who are not like us, namely ‘the others’?” In my opinion, this is the ever-present question as well as the hurdle of the civilization.
The simple answer to this question at the ideational level may be “to recognise the other’s very existence and ontological status”. As a matter of fact, recognizing the “other” as is also constitutes a guarantee for our own ontological existence. Likewise, as expressed by Lyotard, a French philosopher who was one of the pioneers of postmodernism, “every human being carries within him the figure of the other”. So indeed, each of us is “the other” in the eyes of someone else. We are others for the other. For this very reason, we have certain rights in our capacity as “the other human being”. In this sense, in Lyotard’s view, human rights are at the same time “the other’s rights”.
At the social and political level, co-existence of differences entails a fair and pluralist order where fundamental rights and freedoms are safeguarded. Terrorism, xenophobia, racism and Islamophobia, which have been spreading rapidly nowadays, pose a serios threat to pluralism and thereby to the culture of living together.
On the other hand, another condition for living together with differences is the establishment of a fair legal order. In fact, the history of Europe of which we are a part is the history of struggles towards establishing such order. As all we know, the line of progress has not been straight in this respect, and there have been unfavourable occasions deflecting from democracy, rule of law and human rights.
As is known, the European Convention on Human Rights signed in 1950 (“Convention”) has been one of the remedies intended to prevent re-occurrence of preceding massacres and systematic right violations in the European land. The 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.
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 that was put into practice on 23rd September 2012, exactly seven years ago today, has led to a revolutionary change in the Turkish legal order. In this respect, individual application is one of the greatest reforms introduced in the field of law in our country. We need not hours but days to thoroughly explain this reform and the change it has brought along. I will therefore confine my speech to the goals sought to be achieved by individual application mechanism and whether these goals have been achieved.
It should be noted at the outset that introduction of the individual application mechanism has two main goals, principal and practical. These goals may be found in the legislative intention of the constitutional amendment. Principal goal sought to be achieved by individual application is to ensure the advancement of fundamental rights standard in the country. As worded by the constitutional maker, through the jurisdiction to examine individual applications “the Constitutional Court is entrusted with the mission to protect and develop freedoms”.
Practical goal of individual application 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. Realisation of this goal would undoubtedly decrease the number of applications to be lodged from Turkey with international judicial organs. As a matter of fact, it is envisaged that -as worded by the constitutional maker- “through individual application mechanism, there will be a decrease in the number of cases to be brought before, and violation judgments to be rendered by, the ECHR against Turkey”.
I am pleased to note that the seven-year functioning of individual application mechanism demonstrates that these two goals set by the constitutional maker have been achieved to a considerable extent. 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.
Besides, 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. So indeed, effective functioning of this mechanism has also led to a significant decrease in the number of applications lodged against Turkey before the ECHR. In 2012 before the introduction of individual application system, number of pending cases before the ECHR against Turkey was 16.900. By 31 August 2019, this number is 8.800.
Moreover, 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.
We have experienced difficulties during the seven-year period of the individual application mechanism. From the beginning, the Constitutional Court has been facing with an intensive workload. I would like to provide you with statistical information on the seven-year past of individual application in order to give you a better insight of the workload-related difficulties faced or being faced by the Court.
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.
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.
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 by executing decisions delivered through individual application mechanism in a more effective manner necessitates an effective and efficient cooperation among institutions. At this point, it appears that there are certain ongoing debates concerning the nature of individual application, the first and foremost of which is the misperception that it is an appeal remedy. As we have previously stressed, the introduction of individual application has not vested the Constitutional Court with an appellate review authority in the civil, criminal and administrative jurisdiction.
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.
However, Article 148 of the Constitution restricts the jurisdiction of the Constitutional Court with the provision “In the individual application, no examination shall be made on the issues to be considered in appellate review”. It is specified in the reasoning of the legislative proposal regarding the constitutional amendment that the said provision has been introduced in order to “prevent any possible jurisdictional disputes between the Constitutional Court and the other high judicial bodies”.
In this case, the examination to be made by the Constitutional Court within the scope of the individual application is limited to the determining “whether any fundamental right has been violated” and “how such a violation will be redressed”. The Court does not carry out this examination in terms of “the compliance with the procedure and law” as is the case with the ordinary legal remedies, but in terms of the constitutional guarantees concerning fundamental rights and freedoms. In this sense, as stated in the Constitutional Court’s decisions, “any examination as to whether fundamental rights and freedoms within the scope of individual application have been violated under the Constitutional guarantees cannot be regarded as ‘the examination of an issue to be considered in appellate review’...”.
It should be noted that debates on the jurisdiction of supreme courts through individual application are not peculiar to us. In all countries where the remedy of individual application to the constitutional courts has been introduced, the decisions rendered by these courts have been criticized by other supreme courts for interfering with their jurisdictions. Therefore, similar debates in our country should be considered normal.
However, we believe that strengthening of the communication and dialogue between supreme courts will contribute to reduce the discrepancy of views and hence to strengthen the Turkish legal system. As a matter of fact, I would like to express that the meetings, which have been held within the scope of the project that we are closing today and brought together the supreme courts, have contributed to the strengthening this communication.
Indeed, within the scope of this project, very efficient studies have been carried out in the case-law forums held with the participation of the Constitutional Court, the Court of Cassation and the Council of State with a view to contributing to the consistency in supreme courts’ case-law.
I would like to note that such projects, in the most general sense, promotes the activities that serve a world ideal where fundamental rights and freedoms are better protected. The responsibility to work for a better world is a responsibility we should undertake not only for ourselves but also for the future generations. As a Kashmiri saying goes, “We do not inherit the Earth from our ancestors—we borrow it from our children”.
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. Indeed, a determined struggle against diseases such as terrorism, racism, xenophobia and Islamophobia which are the enemies of these common values requires national and international solidarity.
Sa’di of Shiraz was undoubtedly one of those who most briefly expressed the organic relationship and solidarity between people. In Gulistan which he wrote about eight centuries ago, Sa’di says “If you are indifferent to the misery of others,
it is not fitting that they should call you a human being”.
Unless we materialize this message given through the poem “Bani Adam”, which is inscribed at the entrance of the United Nations building in New York, violations of fundamental rights and griefs experienced in various regions of the world will continue. Nelson Mandela, one of those who internalized Sa’di’s message, expressed the relationship with “the other” very well through freedom. According to Mandela, “To be free is not merely to cast off one’s chains but to live in a way that respects and enhances the freedom of others”.
With these feelings and thoughts, I would like to thank all those who have contributed at every stage from the beginning of this successful project until the closing conference, the stakeholders and all participants who will make presentations at the sessions.
I wish that the conference will be fruitful and I would like to once again extend my cordial greetings.
|Prof. Dr. Zühtü ARSLAN
|Constitutional Court of the Republic