President's Speeches

President's Speeches

Esteemed guests,

Distinguished participants,

First of all, I would like to welcome you to this meeting and extend you all my most sincere and respectful greetings.

Let me express my gratitude towards you for your participation in the opening ceremony of this outstanding project today.

As is known, one of the leading elements making a project important is its subject matter. It is thus apparent that a project dealing with the execution of the Constitutional Court’s judgments is so important for the legal world. 

In its judgments, the Constitutional Court has emphasised that the effective execution of court decisions is an element that is complementary to the process of fair trial and that also ensures this process yield an outcome. The right of access to a court inherent in the right to a fair trial also entails the rights to bring a dispute before a court, as well as to request the execution of the court decision. Therefore, the non-execution of court decisions would render dysfunctional both the trial itself and the right of access to a court.1

On the other hand, the proper and effective execution of court decisions in a country is one of the distinctive characteristics of a state of law. In this sense, the Constitutional Court has stated that the state of law is not only a matter of discourse, and that the non-execution of its judgments finding a violation “amounts to a gross breach of the principle of rule of law as well as of the constitutional order predicated on this principle”.2

At this point, let me mention the late Alija Izetbegović. Defending and promoting state of law and constitutional democracy based on rule of law even in the hardest of times, Alija strongly criticised the non-execution of an annulment decision rendered by the Yugoslav Constitutional Court. According to him, to reinstate the original decision, albeit the constitutional court’s decision finding the disputed matter unconstitutional, “constitutes an intentional violation of the Constitution”.3

It should be noted that the effective execution of judicial decisions is conditional upon the existence of binding constitutional and statutory provisions, on one hand, and on the other, upon the vigilance and due diligence on the part of the relevant institutions and persons liable to execute these decisions. As is the case in almost every respect, the effective execution of judicial decisions requires the rules, institutions and individuals to be of good quality.  

There is no problem with respect to the existing of such provisions in Turkey. The binding nature of judicial decisions in general and the Constitutional Court’s judgments in particular is laid down in a clear and precise manner in Articles 138 and 153 of the Constitution respectively. Accordingly, as set forth in Article 138, legislative and executive organs and the administration shall comply with court decisions, and in Article 153, decisions and judgments of the Constitutional Court shall be binding on the legislative, executive and judicial organs, as well as all natural persons and legal entities.

The Constitutional Court has stated that the last paragraph of Article 153 of the Constitution affords no discretionary power to any institution, including the judiciary, in compliance with and duly execution of the Constitutional Court’s decisions and judgments or introduces no exception in this regard.4

On the other hand, the existence of statutory provisions is not sufficient per se to secure the effective execution of judicial decisions. The respect for, and fulfilment of, such provisions brings along the need for vigilance and responsiveness at both institutional and personal level. Both the institutions and individuals must take the necessary steps expected of them for the implementation of statutory provisions.

Undoubtedly, by its very nature and function, the execution of judgments cannot be performed solely by the judiciary. It was well explained 233 years ago by Alexander Hamilton, one of the founding fathers of the US, in the famous “Federalist Paper” no. 78.  Hamilton has made it clear that unlike the legislature and the executive, the judiciary has merely judgment but must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.5

Many things have changed, in terms of constitutionalism, since these words. Today, the effective implementation of the judgments finding a violation, rendered through the individual application mechanism, requires the support and assistance not only of the executive but also of the legislature and notably the other judicial bodies.

As a matter of fact, the provision of such support and assistance is a requisite consequence of the binding nature of judgments, as well as a necessity triggered by the separation of powers, which is defined as “a civilized cooperation and division of functions” in the Preamble of the Constitution.

Indeed, “cooperation” among the different organs of the State is necessary at the most for the protection of fundamental rights and freedoms of individuals. This is simply because the protection of these rights and freedoms is the raison d’être of the State.

In brief, the proper and effective execution of the judgments rendered by the Constitutional Court in the sphere of fundamental rights entails their comprehension, acknowledgement and ultimately enforcement by relevant institutions, organisations and persons. This requires, in the last instance, dialogue and cooperation among the relevant institutions.

Esteemed guests,

Today, we also celebrate the 9th anniversary of the putting into practice of the individual application mechanism. Since 23 September 2012, the Constitutional Court has been acting as a supreme court which, inter alia, examines and adjudicates alleged violations of fundamental rights and freedoms.

This mechanism has brought along a radical change in the Turkish legal system. It has introduced an effective legal remedy whereby any alleged violation is examined and a violation, if found, is redressed primarily at the domestic level, before its referral to international bodies.

The Court itself stresses in its decisions and judgments that the individual application is the most effective domestic legal remedy of last instance, which is predicated on the Constitution. The Court’s examination through this mechanism affords the utmost protection to individuals for the protection and promotion of their fundamental rights and freedoms.6

In this sense, individual application is a great acquisition for our country and its citizens. It is under the joint responsibility of all of us, notably of the Constitutional Court, to transfer such a great acquisition to next generations as an effective legal remedy.

The first and foremost requirement of this responsibility is to establish, and endeavour to resolve, the problems encountered during the implementation of individual application.

It is a well-known fact that the particular difficulty faced in the individual application system is the ever-increasing number of the pending applications. Any other country which adopts and successfully operates constitutional complaint procedure does not have applications as many as those received by Turkey. The annual number of constitutional complaints lodged with the Spanish and German Constitutional Courts, which is approximately five or six thousand, corresponds nearly to the number of cases lodged in a month with the Turkish Constitutional Court. Besides, the number of total individual applications lodged with the Court is higher than that of the cases brought before the European Court of Human Rights by 47 countries in total.

The Constitutional Court has been using its best endeavours so as to tackle this workload and conclude, at the soonest time possible, all cases pending before it in every field in its competence. Let me take this opportunity to express my gratitude to the vice-presidents, justices, rapporteur-judges and other court staff for their essential contribution.

At the end of the nine-year operation of individual application system, I would like to note that the maintenance of this system as an effective legal remedy requires the taking of certain structural measures, as well as a wide consensus on the necessity of such measures. Among these measures, the most significant one is probably to take the necessary steps so as to ensure the comprehension and materialisation of the erga omnes effect of individual application. To that end, the duly execution of violation judgments and the prevention of further violations are of critical importance.  

As a matter of fact, there had been debates as to the requirements of the violation judgments, which would be delivered by the Court, even before the putting of the individual application mechanism into operation. In its decision of 1 March 2012 in the case of a constitutionality review, the Constitutional Court provided a general elucidation of the nature of this mechanism.

According to the Court, the step required to be taken through individual application is not merely to establish whether a given right has been violated. This mechanism indeed entails the elimination of the consequences of a violation and redress of the damage sustained on account thereof, on one hand, and “the prevention of further violations of fundamental rights and freedoms by a public authority”, on the other.7

Making this assessment, the Constitutional Court had thereby demonstrated the inter partes and erga omnes effects of individual application mechanism even before it was put into operation. In this context, the violation judgments have two main effects. One of them is oriented towards the elimination of the violation sustained by the applicant and the consequences thereof, whereas the other is for the prevention of further violations. The latter is known as the erga omnes effect of individual application.

The ultimate aim pursued by the individual application institution is to ensure the prevention of further violations through the effective execution of the individual application judgments. Let me use swamp as a metaphor: the aim pursued by individual application is not to fight and wipe off mosquitoes one by one, but rather to drain the swamp that facilitates their breeding.

As the legislature, executive and judiciary, we all have crucial tasks so as to achieve this erga omnes effect of individual application. The party to undertake such tasks may be the administration, the judiciary or the legislature in regard to the reason underlying the violation.

In cases where the violation stems from an administrative act but could not be redressed by a judicial decision or where the violation stems directly from a judicial decision, the Court may order a retrial. In that case, the decision giving rise to the violation will be set aside following a retrial and a fresh decision will be issued so as to eliminate the violation found by the Court. 

When the Court orders a retrial for the redress of the violation and its consequences, the inferior courts have no other option but to rehear the case. This is not an option but a constitutional and statutory obligation, as emphasised in the Court’s judgments.

In fact, it is not sufficient to conduct a retrial and redress the violation found established. The administration and all judicial bodies should act in accordance with the principles laid down in a given violation judgment, without waiting for new applications, for the prevention of further violations in the same or similar cases. This is a requisite of the erga omnes effect of the individual application mechanism.

On the other hand, if the violation stems not from an administrative or a judicial decision but from a law itself, it is to no avail to conduct a retrial. The step required to be taken in that case is to annul or amend the statutory provision giving rise to the violation. Therefore, in cases where a violation stems from law, it is inevitable that the necessary legal amendment be introduced by the legislature notably for the prevention of further violations.

Finally, I would like to bring to your attention an issue regarding the effective execution of violation judgments. Every judgment where the Constitutional Court finds a violation is also establishment of an unconstitutionality. Therefore, it is incumbent on all relevant institutions and organisations of the State to eliminate the unconstitutionality, as well as to prevent the occurrence of further ones.

Esteemed guests,

Distinguished participants,

Let me express my sincere belief that this project will greatly contribute to the better understanding of the individual application mechanism notably of its erga omnes effect. The project has a wide range of stakeholders including but not limited to the legislative, executive and judicial branches as well as administrative institutions and non-governmental organisations. These stakeholders are the institutions and organisations that will play a role in ensuring the operation of this mechanism in a more effective manner.  

Therefore, the project with an implementation period of four years will surely make an outstanding contribution to the promotion of constructive dialogue between the Constitutional Court and the stakeholders, as well as ultimately to the the maintenance of individual application mechanism as an effective and successful legal remedy serving for our citizens.

With these feelings and considerations, I would like to extend my gratitude to everyone contributing to the preparatory process of the project, all participants to address the different aspects of the execution of judgments at the sessions today, as well as to all stakeholders to promote the implementation of the project notably the representatives from the Council of Europe and the European Union.    

In the hope that the project would be auspicious and fruitful, I would like to once again extend you my sincere regards.  23.9.2021

 

Prof. Dr. Zühtü ARSLAN
President
The Constitutional Court of the Republic of Turkey

 

 

 


1 Constitutional Court’s decision, no. E.2014/149, K.2014/151, 2/10/2014; Ahmet Yıldırım, no. 2012/144, 2/10/2013, § 28; Kadri Enis Berberoğlu (3) [Plenary], no. 2020/32949, 21/1/2021, § 101.

2 Kadri Enis Berberoğlu (3), § 141.

3 Alija Izetbegović, Köle Olmayacağız (“We will not be Slaves”), translated by R. Ademi, 4th Edition, (İstanbul, Fide Yayınları, 2018), p. 14.

4 Şahin Alpay (2) [Plenary], no. 2018/3007, 15/3/2018, § 63; Kadri Enis Berberoğlu (3), § 102.

5 A. Hamilton, J. Madison, J. Jay, The Federalist Papers, (New York: Mentor Books, 1964), p. 465.

6 Kadri Enis Berberoğlu (3), § 134.

7 Constitutional Court’s decision, no. E.2011/59, K.2012/34, 1/3/2012.