Individual Application to the Constitutional Court of Türkiye: Recent Developments*
Zühtü Arslan **
Ladies and Gentlemen,
It is a great pleasure to be here and address such eminent participants.
I would like to thank my dear friend Ferhad Abdullayev, the President of the Constitutional Court of Azerbaijan for his kind invitation and warm hospitality.
I also congratulate you on the 25th Anniversary of the Constitutional Court of the Republic of Azerbaijan.
In my speech I will do my best to summarise a decade of our experience in individual application with a special reference to recent developments.
As we all know, the main purpose of constitutional justice is to ensure the supremacy of the onstitution and the protection of human rights. In this sense the constitutional courts emerged as the guardian of the constitution and individual rights. The constitutionality review of legislative and executive actions mainly serves to uphold the supremacy of constitutional principles, whereas individual application mechanism, also known as constitutional complaint, particularly functions to protect rights and liberties of individuals.
The Venice Commission’s “Study on Individual Access to Constitutional Justice” considers the individual constitutional complaint as one of the most effective ways for protecting constitutional rights. According to the Venice Commission, the function of constitutional complaint mechanism is to protect constitutionally guaranteed rights of individuals.1
The individual application was introduced into the Turkish legal system in 2010. According to amended Article 148 of the Constitution, which came into effect on 23 September 2012, everyone may apply to the Constitutional Court on the grounds that his or her fundamental rights and freedoms guaranteed by the Constitution within the scope of the European Convention on Human Rights has been violated by public authorities.
After more than a decade of experience, I can confidently say that the individual application proved to become an effective way of protecting constitutional rights and freedoms. Indeed, the European Court of Human Rights has so far declared the individual application mechanism in Türkiye to be an “adequate” and “effective” domestic remedy within the meaning of Article 35 § 1 of the European Convention on Human Rights.2
Despite formidable challenges, such as increasing workload, the Constitutional Court has implemented the individual application procedure to radically change even transform the legal landscape in Türkiye.
I will touch upon two important reflections of the transformation engendered by the introduction and implementation of the individual application. The practice of individual application system has given rise to (a) the paradigm shift in the constitutional justice and (b) constitutionalisation of legal system.
Let me start with the paradigm shift. It wouldn’t be an exaggeration to say that the individual application system provided the Constitutional Court with the opportunity to abandon its deeply embedded ideological or state-based paradigm and instead it enabled the Court to embrace what I call a rights-based legal paradigm.
The rights-based approach, which is based on the assumption that freedom is the rule and restriction is the exception, requires the Constitution to be interpreted in favour of rights and liberties.3
With its rights-based approach, the Court has delivered many violation judgments resolving the legal problems of different segments of society. These include judgments concerning the blocking of the Internet, the bans on woman’s headscarf, the detention of members of parliament, the imprisonment of journalists and so on. The Court’s case-law has set out the standards to protect constitutional rights in conformity with the jurisprudence of the European Court of Human Rights.
I must note that the rights-based approach also had an impact on the judgments in the field of constitutionality review. To illustrate the aspect of this impact, I would like to briefly mention about a case concerning women’s maiden name.
In a judgment of 2011, before the introduction of individual application, the Constitutional Court dismissed the claim that Article 187 of the Turkish Civil Code, which precluded women from adopting their maiden name alone after marriage, was unconstitutional.4
However, following the adoption of the individual application remedy, the Court had to reconsider its position on this issue. In a number of judgments, the Court declared that Article 187 of the Civil Code had given rise to violations. Referring to the judgments of the Strasbourg Court on the issue, the Court found that the condition of legality had been breached, on the basis that the courts of first instance should have directly applied the last paragraph of Article 90 of the Constitution stipulating that in case of a conflict between the domestic law and the international treaties concerning fundamental rights and freedoms the latter shall prevail.5
Despite these judgments the parliament did not repeal Article 187 of the Civil Code. Finally, a family court appealed to the Constitutional Court claiming its unconstitutionality. In its landmark decision of 22 February 2023, the Constitutional Court annulled the contested provision on the grounds that the difference in treatment between men and women in the context of using the maiden surname alone after marriage lacked an objective and reasonable basis, as required by the principle of equality.6
Another radical impact of the individual application can be observed in the process of constitutionalisation of the Turkish judicial system.
The Constitutional Court has frequently referred to the principle of subsidiarity in its case-law concerning individual applications. Accordingly, it is the duty and responsibility of the first instance and appellate courts to prevent and redress possible violations of constitutional rights and freedoms. To this end, they must consider the constitutional provisions on fundamental rights and freedoms and their interpretations by the Constitutional Court.
In fact, given the relevant constitutional provisions, this is not an optional choice, but an obligatory one. For instance, Article 11 of the Constitution clearly stipulates the supremacy and binding nature of the Constitution. More specifically, Article 138 of the Constitution states that judges and courts shall decide “in accordance with the Constitution, statute and law”.
All judicial authorities are therefore obliged to resolve the disputes before them in accordance with the fundamental rights guaranteed under the Constitution. This brings about the “constitutionalisation” of every field of law.7
Alongside these positive developments, the adoption of individual application mechanism has brought about formidable challenges. Two of these challenges are especially worth mentioning.
First of all, from the very beginning we have been faced with an incredible and unprecedented workload concerning individual applications. As of today, the Court has approximately 120 thousand pending applications. The devastating effect of this workload may be better understood by comparing it to the workload of the Strasbourg Court, which currently has about 76 thousand pending applications from 47 different state parties.
The effective implementation of the violation judgments constitutes the second major challenge before the Court. In individual applications, the Constitutional Court issues judgments aimed at eliminating the consequences of the violation and restoring the situation as it was before the violation, in order to remedy the grievance of the applicant caused by the violation.
Besides and beyond this subjective function, the Constitutional Court has also emphasized the importance of objective function of individual application mechanism. Once a constitutional matter was settled by the Constitutional Court through an individual application, “the public authorities and the inferior courts shall be expected to shape their practices on the same matter within the framework of this interpretation”.8 Since the primary purpose of the individual application is to prevent the emergence of new violations, the Constitutional Court’s judgment finding a violation “will have an effect for those in a similar situation”.9
In this sense, the erga omnes principle requires that the legislative, executive and judicial organs, as well as the administration, take into account the assessments made by the Constitutional Court in its judgments in addition to the fundamental principles laid down, and act in such a way as not to lead to new violations.
Recently, the Court has enriched its case-law concerning the possible remedies for violation judgments. As with the Strasbourg Court, the Constitutional Court has also adopted “the pilot judgment procedure”, in cases where an application raises a systematic and structural problem causing massive and repetitive violations. In such cases, the Constitutional Court has called the parliament to amend the relevant law in order to prevent further possible violations.
In cases where a particular violation was derived from the law and the parliament failed to amend it, the Court has started to rule on the retrial of the case as a remedy.
In its recent judgments, the Constitutional Court held that in order to redress the damage suffered by the applicant, the court of first instance has two options. First, after reopening the case it may refer the law to the Constitutional Court for a concrete review of constitutionality. Second, the court of first instance may alternatively apply directly the last paragraph of Article 90 of the Constitution. However, the Court stated that it would be more appropriate to file an appeal for the annulment of the provision of the law that is contrary to the Constitution.10
Ladies and Gentlemen,
I would like to conclude by saying that the erga omnes effect of the violation judgments must be put into practice with a view of resolving the problems of intensive backlog and effective implementation of judgments.
There is no doubt that the individual application mechanism is one of the greatest achievements of the legal system of Türkiye. However, the maintenance of this mechanism as an effective remedy rests not only with the Constitutional Court, but also with all other stakeholders, in particular the Parliament and the other courts.
Thank you for your attention.
|Prof. Dr. Zühtü ARSLAN|
|Constitutional Court of the Republic of Türkiye|
* Paper presented at the Conference themed “Progression of Legislation Through Application of Constitutional Norms” on the Occasion of the 25th Anniversary of the Constitutional Court of the Republic of Azerbaijan, Baku, 4 July 2023.
** President of the Constitutional Court of the Republic of Türkiye.
1 Venice Commission, Study on Individual Access to Constitutional Justice, adopted by the Venice Commission at its 85th Plenary Session, (Venice, 17-18 December 2010), Study No. 538/2009. Strasbourg, 27 January 2011, CDL-AD (2010) 039, § 81.
2 See, among many others, Hasan Uzun v. Türkiye (dec.), no. 10755/13, §§ 25-27, 30 April 2013; Koçintar v. Türkiye (dec.), no. 77429/12, § 41, 1 July 2014; Mercan v. Türkiye (dec.), no. 56511/16, §§ 20-25, 8 November 2016; Yurdakul Engin v. Türkiye (dec.), no. 22079/13, §§ 8-14, 16 May 2017; Kaya and Others v. Türkiye (dec.), no. 9342/16, 20 March 2018; Kaman v. Türkiye (dec.), no. 29798/18, §§ 29-30 , 5 May 2020.
3 See Ömer Faruk Gergerlioğlu [Plenary], no. 2019/10634, 1/7/2021, § 50; Ali Kuş [Plenary], no. 2017/27822, 10/2/2022, § 50.
4 The Court’s decision, no. E. 2009/85, K. 2011/49, 10 March 2011.
5 See, Sevim Akat Eşki, no. 2013/2187, 19 December 2013; Gülsim Genç, no. 2013/4439, 06 March 2014; and also, Neşe Aslanbay Akbıyık, no : 2014/5836, 16 April 2015.
6 See, the Court’s decision, no. E.2022/155, K.2023/38, 22 February 2023. The English translation of this judgment can be reached at the https://www.anayasa.gov.tr/en.
7 See, Abdullah Çelik, “Hukukun Anayasallaşması ve Bireysel Başvuru (Constitutionalisation of law and individual application)”, Presented at the Symposium on the Occasion of 61st Anniversary of Constitutional Court of the Republic of Türkiye, 25 April 2023.
8 K.V. [Plenary], no. 2014/2293, 1 December 2016, § 52.
9 İbrahim Er and Others [Plenary], no. 2019/33281, 26 January 2023, § 52.
10 Hulusi Yılmaz [Plenary], no. 2017/17428, 1 December 2022, §§ 66-67; Deniz Yavuncu and Others [Plenary], no. 2018/5126, 23 February 2023.