The Role of Individual Application in the Protection of Human Rights in Turkey*
I would like to extend you all my most sincere and respectful greetings.
I would also like to express my thanks to everyone who have undertaken a role in the organisation of this online panel and to the esteemed judges who have also contributed to the panel with their speeches.
Introduction: “Why is the Human Rights Jurisdiction in Force?
First of all, I would like to say a few words about the "human rights jurisdiction" that is the theme of this panel. In the most general sense, the said concept refers to the judicial system that has emerged for the protection of human rights by judicial authorities at national and international levels. Then, is there a need for human rights jurisdiction besides the judicial jurisdiction, administrative jurisdiction and constitutional jurisdiction? As a matter of fact, the main objective of all jurisdictions is to protect human rights, isn’t it?
We can multiply such questions and possible answers; however, they do not change the reality of the "human rights jurisdiction" put into practice through the application of constitutional provisions related to fundamental rights and freedoms, especially through constitutional complaints, at the national level and the implementation of human rights conventions at the international level.
As a matter of fact, existence of such a concept also points to the need for the autonomous and judicial protection of human rights. This need arises from the indispensable nature of the human rights and freedoms for the lives of the individuals and the society.
At the beginning of the last century, Max Weber, maintaining that the bureaucracy, which was the main factor that trapped people in an "iron cage", should be limited, pointed out the vital importance of human rights. According to Weber, “it is a gross self-deception to believe that without the achievements of the age of the Rights of Man any one of us, including the most conservative, can go on living his life.1
Ibn Khaldun, who is regarded as the founder of sociology long before Weber, also emphasized that human rights should be protected for the continued existence of the society and the State. The concept used by Ibn Khaldun in his Muqaddimah was “the rights of the people (hukuk -en- nas)”. Considering that the word "hukuk (law)" originated in Arabic is the plural of "hak (right)", it would not be wrong to interpret this concept as "the rights of the people".2 Ibn Khaldun expresses the denial and violation of the people's rights with the word "oppression". According to him, oppression leads to the destruction of the civilization (umran) and consequently impairs the State in the last instance.3
More importantly, Ibn Khaldun states that the rights of the people should be safeguarded in judicial terms and that the responsibility in this regard rests with the judge.4 Thus, Ibn Khaldun has, in a sense, been the intellectual pioneer of today's human rights jurisdiction.
In the light of these conceptual explanations, we can now proceed with the individual application mechanism that is the most important instrument of the human rights jurisdiction, which has been incorporated into the constitutional jurisdiction in Turkey.
Individual Application Mechanism: A Milestone in the Human Rights Jurisdiction
As is known, following the constitutional amendment of 2010, individuals complaining of any alleged violations of their rights and freedoms that fall under the joint protection of the European Convention on Human Rights and the Constitution have been granted the right to individual application to the Constitutional Court. Adoption of individual application mechanism is a milestone for the judicial protection of human rights in Turkey.
Individual application mechanism that has been in force since 23 September 2012 has had significant bearings on our social lives, legal system and especially on our judicial practice. Some of these effects are of transformative nature. There are, among others, five inter-related basic effects of the individual application mechanism.
First, the individual application mechanism has, first of all, changed and transformed the Constitutional Court that has been entrusted with the operation of this mechanism. The Turkish Constitutional Court, founded in 1962 and being among the courts with the highest experience in Europe, has undergone a transformation process regarding its field of operation, structure and most importantly, its basic paradigm, with the adoption of individual application mechanism.
The Court that was principally engaged in constitutionality review prior to the individual application mechanism has now turned into a high judicial authority examining the alleged violations resulting from the daily lives of individuals in addition to its principal duty, thereby interacting with the society. As a result of this, the Court has adopted, in its decisions/judgments, “a rights-based paradigm” which is predicated on the protection of the individuals’ fundamental rights and freedoms.
Secondly, the Court has set, to a great extent, the standards intended to protect fundamental rights and freedoms through its decisions/judgments in cases of individual application, also making use of the case-law of the European Court of Human Rights (ECHR). Thus, an extensive and rich case-law on human rights has been developed. The book "Selected Judgments" published by the Court annually since 2015 is remarkable to reflect the Court’s collection of case-law.
Thirdly, the individual application mechanism has contributed to raising the social consciousness and awareness in the protection of human rights. The phrase “I will apply to the Constitutional Court, if necessary!” is said by the parties in almost any kind of disputes. At this point, it should be noted that the successful operation of the individual application mechanism by the Court despite all difficulties has significantly contributed to maintenance of the society’s confidence and trust in the law.
Fourthly, the individual application mechanism has in fact reshaped the relationship between the Court and the inferior courts. At this point, the Court has stressed on almost every occasion that the redress of the violations rests primarily with the inferior courts and that, however, this duty is subject to the Court’s review in terms of the individual application. In other words, the individual application mechanism has resulted in the restructuring of the relationship between the Court and the other courts in accordance with the principle of subsidiarity. Despite some occasional problems, we can say that the individual application mechanism has favourably influenced the administrative and judicial practice.
Finally, the individual application mechanism has added a new dimension to the relations between Turkey and the ECHR. This mechanism as an effective remedy has made significant contributions to the realisation of the principle of subsidiarity by means of ensuring the examination of, and affording redress for, alleged violations of fundamental rights at domestic level.
In consideration of this effect as well as the similar ones, it would not be wrong to say that individual application plays a transformative role in the Turkish legal system as it significantly contributes to the protection of fundamental rights and freedoms in the country as well as to the raising of the standards thereof.
Setbacks: Workload and Objective Effect
On the other hand, it is of course admissible that the individual application mechanism, which has not as yet been in operation for 9 years, has encountered certain setbacks and serious challenges.
At this point, I would like to dwell on two inter-related matters: The first one is the workload, while the second one is the “objective effect”, which may also offer a solution for the former.
The workload faced by the Court in the individual application process would be much better demonstrated when compared with the workloads undertaken by Spain and Germany, two countries that have been operating this institution for years under the names of amparo and constitutional complaint. In Federal Germany with approximately same level of population with that of Turkey, the Constitutional Court received about 240,000 individual applications in total during the period between 1951, the year when the individual application mechanism was put into operation, and 2020, as indicated in the 2020 report of the Constitutional Court. On the other hand, the Turkish Constitutional Court has received over 312,000 applications since 2012. Accordingly, it is apparent that the number of individual applications lodged with the Turkish Constitutional Court in 9 years is much higher than that of the applications filed with the German Federal Constitutional Court in 70 years.
Besides, such a gap will be easily observed in view of the numbers of individual applications annually received by these two courts. In 2020, the German Federal Constitutional Court received nearly 5,200 applications, while the Turkish Constitutional Court received over 40,000 applications. Likewise, while the number of pending individual applications is about 3,200 in Germany, it is nearly 46,000 as of today in Turkey.5
Undoubtedly, several reasons leading to such a heavy workload may be adduced. One of them is the inability to fully and properly realise the objective effect of the individual application mechanism. As is known, the violation judgment rendered at the end of an individual application has two effects, subjective and objective. The redress afforded to the applicant for the damage sustained due to the violation constitutes the subjective effect of individual application.
However, the ultimate aim pursued by the individual application mechanism is not to offer redress to the individuals suffering any right violations on an individual basis, which is indeed impossible. Its objective aim is to eliminate the reasons giving rise to violations by means of ensuring the application of principles indicated in a violation judgment to similar cases. As the phrase goes, 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.
The achievement of this aim is conditional primarily upon the acting of the public authorities, which are liable to redress the violations found established in the individual application cases, in the way as required by the objective effect of the individual application mechanism. It is particularly important that in cases where the violation results from an administrative practice, it is for the administrative institutions, and where it results from a judicial decision, it is for the courts to issue decisions so as to prevent further similar violations. In the same vein, if the violation stems from a given law, the legislature is to make the necessary legal amendment with a view to redressing the violation and preventing further violations.
Consequence: “Being Troubled by the Other’s Suffering”
As every novelty, the individual application mechanism may become established and be transformed into an institution only when it is adopted and interiorised by both the society and the agencies of the State, which is the organised form of the society. To that end, significant progress has been achieved; however, there are apparently certain setbacks.
On the other hand, this mechanism needs a cultural climate conducive to its establishment and reinforcement, as does every other institution. In this regard, the success of individual application, intended for the protection of the fundamental rights and freedoms, is conditional upon a social and political culture which embraces the idea that humans are inherently the subject of the rights and which is predicated on the respect for human dignity.
The understanding to build and facilitate such culture entails the acceptance of the ontological existence of the "other", which is in fact inevitable also for the formation of a proper “self”hood. That is because each of us is the “other”, namely, the other of the other, in the eyes of anyone else. In this regard, human rights are at the same time the rights enjoyed by the other.
We have to base our relation with the “other” on a moral ground, the prerequisite of which is the ability to embrace the “other” as one of “Children of Adam” without forcing him to resemble us and trying him to be the same.
In his poem “Bani Adam” (Children of Adam) written nearly 1000 years ago, Saadi Shirazi says:
If you have no sympathy for the sufferings of others,
Deserve not the name, human being!6
In order to ensure human rights to go beyond a mere rhetoric, we must not only inscribe Saadi’s expressions on the entrance of the United Nations building but also wholeheartedly adopt and realise them.
With these feelings and considerations, I would like to once again extend you my sincere regards and wish you all health and prosperity. 3/5/2021
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Türkiye|
* Revised version of the speech delivered in the online panel themed “Reflections on Human Rights” that is the first in the series of the Panels on Human Rights Law organised with the collaboration and joint initiatives of the Constitutional Jurisdiction Research Centre of the Constitutional Court (AYAM) and the Bahçeşehir University (3 May 2021).
1 Max Weber, Economy and Society: An Outline of Interpretive Sociology, Vol. 2, trans. E. Fischoff at al., Eds. G.Roth & C.Wittich, (Berkeley: University of California Press, 1968, 2013), p. 1403.
2 The concepts of “the rights of the people (hukuk-en-nas)” stated by İbn Khaldun, “Rights of Man” referred to by Weber in the 19th Century, and finally, “human rights” that has been widely used since particularly the second half of the last century have been basically used to express the rights deemed necessary for the protection of the lives of humans and the society, despite the certain differences in their contents and connotations.
3 İbn Haldun, Mukaddime, Vol. I, Prep. by Süleyman Uludağ, 9th Edition, (İstanbul: Dergah Yayınları, 2013), p. 551.
4 Ibid., p.469. For a comprehensive analysis of Ibn Khaldun’s view on “rights of the people”, see Ergin Ergül, Hukukçu ve Siyaset Bilimci Kimliğiyle İbn Haldun: Toplum ve Devlet Kuramının Hukuk, Adalet ve İnsan Hakları Boyutu, 2nd Edition, (Bursa: Adalet Yayınevi, 2018), pp. 153-179.
5 For the statistical information on the constitutional complaint before the German Constitutional Court, see Federal Constitutional Court, Report 2020, Karlsruhe, 2021, pp. 46-50.
6 Sadî Şirâzî, Bostân ve Gülistân, (İstanbul: Beyan Yayınları, 2016), p. 246.