The 6th Summer School of the AACC on “The Right to Liberty and Security”
17 September 2018, Ankara
I would like to extend you all my most sincere and respectful greetings.
Today, we have gathered to inaugurate the 6th International Summer School. We are so proud of successfully organizing the summer school events for 6 years. As is known, the Statute of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC) was amended in Bali in 2016 to establish a permanent secretariat. One of three-pillar secretariat is the Centre for Training and Human Resources Development, which is established and operated by the Turkish Constitutional Court (“the Court”). Therefore, we have been organizing these events as an activity of this Centre for the last 3 years.
It should be noted immediately that the summer school events with different themes every year are intended for exchanging information and knowledge by and among the constitutional courts and equivalent institutions. These events also contribute to enhancement of relations among these institutions. I am pleased to hereby express that the events organized so far have been highly appreciated by the participants. I would like to also point out with pleasure the broader participation in this year’s event compared to the previous years. The constitutional courts or equivalent institutions from 18 countries including Turkey are being represented today.
Participation of representatives of all member countries of the AACC, except for a few ones, indeed indicates that the event has been serving for its objective. I would like to mention the courts/institutions whose representatives are among us today: We have about 40 participants from Albania, Azerbaijan, Bulgaria, Indonesia, Palestine, Georgia, Montenegro, Kazakhstan, Turkish Republic of Northern Cyprus, Kyrgyzstan, Korea, Kosovo, Malaysia, Mongolia, Tajikistan, Thailand, Ukraine and Turkey.
There are also experts from the European Court of Human Rights (“ECHR”) and universities here among us. I would like to hereby thank all participants for their contributions.
The question as to how individuals’ fundamental rights and freedoms will be protected against the state authority is by far the most common issue discussed since the existence of the State. Friedrich Hayek, a prominent lawyer and philosopher, states that “[t]he effective limitation of power is the most important problem of social order.” (F. A. Hayek, Law, Legislation and Liberty, Vol. 3, Routledge, 1982, p. 128).
Accordingly, the constitutional jurisdiction has emerged as a reaction to, or as an institution intended for resolving, this issue. In the long term, democracy has appeared to be the most ideal form of government where fundamental rights and freedoms are afforded best protection against the possible degeneration of political power. However, then this question arises: Which democracy? What kind of a democracy is suitable for the protection of fundamental rights? The answer is constitutional democracy which has appeared as an ideal solution in this respect. Indeed, this term is a combination of words comprised of constitutional and democracy. Democracy is followed by an adjective. It is thereby indicated that democracy refers to the form of government not only based upon majority rule but also restricted by the constitution and law. As a matter of fact, a compromise is somewhat ensured between values -such as rule of law and fundamental rights- and governance and will of majority, which is pointed out by the constitutional democracy. In other words, rights and freedoms cannot be safeguarded unless governance by majority rule is restricted by law.
This fact is defined quite well by Alija Izetbegović who based his sense of democracy on the rule of law. In view of Izetbegović, in the absence of supervision by law, the majority rule inevitably turns into tyrant of majority which has no difference than other forms of tyranny (A. Izetbegović, Inescapable Questions: Autobiographical Notes, Islamic Foundation, 2003, p. 68) . In short, constitutional jurisdiction has emerged as the way of protecting fundamental rights and freedoms by restricting political power.
As of today, we may easily say that constitutional jurisdiction operates in two platforms in practice: constitutionality review and constitutional complaint. In this sense, the Turkish Constitutional Court founded in 1962 is a body exercising constitutional jurisdiction, which inter alia reviews the constitutionality of laws as well as, following the recent constitutional amendment, the Presidential decrees and which has been, since 2012, adjudicating individual applications lodged on an alleged violation of any fundamental rights and freedoms.
Today, I would like to briefly lay particular emphasis on individual application. As just mentioned in the short introductory film, the Constitutional Court does not indeed have a very deep-rooted history in the field of individual application. In spite of being an institution with 56-year past, its experience on individual application is confined to the last six years. As a matter of course, a period of six years does not suffice for such an important issue to become established and rooted; however, the Court has gained significant accomplishments within this period.
In the light of this experience, we may conclude that individual application has led to two important consequences in respect of the Turkish constitutional justice. First of these consequences is the radical shift taking place in the Turkish Constitutional Court’s paradigm with the introduction of individual application. It may be said that the paradigm employed by the Court until 2012 was the ideology-oriented paradigm, which means that the Constitutional Court gave priority not to the protection of fundamental rights and freedoms but to the protection of the State, its basic characteristics and the predominating ideology. Therefore, it is possible to define this paradigm as ideology oriented.
However, following the introduction of individual application mechanism in 2012, this paradigm has inevitably and naturally undergone a transformation, and thereby led to a shift toward the paradigm called rights-based. Undoubtedly, this is a generalization. There are of course exceptions in terms of both paradigms. However, I consider that such a generalization is necessary to clarify the significance of the individual application. I depicted it as a natural consequence as the Court has, with the introduction of individual application system, abandoned its previous elitist approach and turned into an institution interacting with the society and dealing with human-right violations suffered by people in their daily lives. This has brought along the obligation to adopt a rights-based approach.
The second transformation, or the second consequence of the individual application is not related to the Court itself but the external circle. It should be clearly indicated that this has resulted from the raise in the protection of human rights and fundamental freedoms in Turkey, which has led to a significant decrease both in the number of applications lodged before the ECHR against Turkey and in the number of violation judgments rendered as a result of these applications. The decrease in these numbers will continue as the violation judgments of the ECHR relate to the applications which were mainly lodged before the introduction of individual application system.
It should be also stressed that the Court has so far concluded 153.000 individual applications out of nearly 200.000 in total. This is a historic success. As you may foresee, a large part of the concluded applications has been dismissed as being inadmissible. Following the Court’s decision whereby the individual application was dismissed, individuals are of course entitled to bring their cases before the ECHR; however, the number of such cases where the ECHR found a violation is very few. This also demonstrates us that how delicately and properly the Court has been acting in dealing with individual applications.
Nevertheless, as I have just mentioned, a six-year experience is not sufficient for individual application mechanism to become well-established. In this sense, we have been facing several problems. The most important challenge or test may be the increasing workload. The Court has a severe workload to the extent which could not be observed in any other country adopting and implementing this mechanism. As of today, nearly 43.000 applications are pending before the Court. It is in fact a very high number. Courts which have been exercising individual application jurisdiction for many years, such as the Federal Constitutional Court of Germany and the Constitutional Court of Spain, receive 3.000-5.000 applications every year. This is an indicator of the heavy workload undertaken by the Turkish Constitutional Court.
It may be even said that the Court unfortunately keeps up with the ECHR in this regard. According to the up-to-date statistics, the total number of applications lodged by 47 countries with the ECHR is nearly 60.000, which was about 54.000 last week. Given the total number of pending cases before the Court, which is nearly 45.000, we can easily observe that this number is close to the number of applications lodged by 47 countries.
As a matter of fact, in spite of all problems and difficulties, individual application mechanism has made great contributions to the improvement of fundamental freedoms in Turkey, thereby being a significant acquisition in this sense. The higher the level of awareness is in this field and the better all public institutions notably judicial organs, lawyers as well as citizens lodging an individual application get acquainted with the mechanism, the more this practice will become deepened and institutionalized in our legal system. Let me also mention that the sole aim pursued by the individual application is not to redress all right violations in the country on an individual basis. Indeed, this is not possible. It is not possible for a tribunal in the scale of a Constitutional Court to do so. Its aim is to eliminate the issues giving rise to human-rights violations, thereby ensuring prevention of further violations, which we define as the objective purpose of the individual application. It will reduce the number of violations through the improvements in the legal order. Therefore, the method to eliminate human-rights violations one by one -like a fight against mosquitoes without draining the swamp- is not applied in individual application mechanism.
In the remaining part of my speech, I would like to focus on the theme of this year’s summer school, the right to personal liberty and security. As a matter of fact, this theme is of high importance as the right to personal liberty and security is one of the rights which are commonly complained of as well as discussed by the Court in the individual application. In this sense, the debate in terms of individual application in Turkey is mainly related to the Court’s decisions on detention. In this respect, it will be very useful for us to get information about experiences of different countries, which will also enable us to make self-assessment in the light of the comparative practices.
As is known to all, restriction of a person’s physical liberty is a method of reaction or punishment that exists in all legal systems. Nevertheless, that is not the case since the beginning of the history. In his book subtitled “The Birth of the Prison”, Michel Foucault, a French philosopher, well explains how the need for prison arose with relevant examples throughout the history. In fact, evolution or transformation is intended for incarceration without inflicting bodily torture and punishing before the public. I would like to read out a stunning paragraph worded at the very beginning of the book in order to demonstrate the progress made in the punishment system. It is a narration of a public execution held in Paris. It starts: “On 2 March 1757 Damiens the regicide was condemned ‘to make the amende honorable before the main door of the Church of Paris’, where he was to be taken and conveyed in a cart, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds’; then, ‘in the said cart, to the Place de Grève, where, on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs and calves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur, and, on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses and his limbs and body consumed by fire, reduced to ashes and his ashes thrown to the winds.”(M. Foucault, Disicpline and Punish: The Birth of Prison, Penguin Books, 1977, p. 3).
This is a description of a tortured death penalty executed in a square in Paris in 1757. The book begins with this, and then it excellently describes how the prison was born as well as how the punishment in the form of loss of liberty emerged in the last two hundred years. Of course, this method of punishment with torture on the body was then abandoned, and it left its place to imprisonment aimed at punishing and disciplining the soul rather than the body. In this sense, what makes the prison sentence an effective punishment method is that the liberty is valuable. As the liberty is valuable, deprivation of it is considered as a severe punishment.
According to Foucault, imprisonment, which means legal deprivation of liberty in the society where freedom is regarded as a value of everyone, emerged as an ideal punishment after the punishments torturing the body. Thus, imprisonment has been regarded as the punishment method adopted in the civilized societies. Of course, the issue does not end here. With the deprivation of liberty through imprisonment, the question of under which conditions such deprivation will occur and what rights those who have been deprived of their liberty will enjoy comes up, which is the real issue.
In this context, the details will of course be explained, but in general terms, let me express the following. Article 19 of the Turkish Constitution, in conformity with Article 5 of the European Convention on Human Rights (“the Convention”), elaborates on the conditions for deprivation of liberty as well the rights of those deprived of their liberty. Presentations will be delivered in this respect and the Court’s judgments concerning detention related to Article 15 of the Constitution will be explained in detail.
Here I would like to proceed my speech by mentioning two issues. First, the Turkish Constitutional Court, like the ECHR, gives priority to the applications on detention. Accordingly, it endeavours to adjudicate these applications as soon as possible. In this sense, the criticism against the Court that it has procrastinated the individual applications on detention in spite of having previously concluded them within a shorter period is unacceptable. The judgments rendered at the end of 2013 in respect of two applicants, who were elected as members of parliament while detained on remand, are referred to as “swift” decisions, whereas the violation judgments rendered at the beginning of this year upon the applications of two detained journalists are referred to as “procrastinated” decisions.
It should be noted that these judgments have nothing in common, except finding a violation. In the former case, namely in its judgments of 2013 regarding two members of parliament, the Constitutional Court found a violation due to their detention periods of approximately 4,5 years. Considering the fact that the applicants were elected as members of parliament, thereby they exercised their rights to stand for election and to represent, the Court found a violation by virtue of the lengthy period of detention.
On the other hand, the judgments regarding two journalists, which were rendered at the beginning of this year, found a violation in the context of unlawfulness. In other words, the impugned detention had been found unlawful as the detention orders and indictments lacked strong indication of guilt.
Of course, we cannot expect the public to be aware of this subtle distinction; however, we consider that lawyers, academics and journalists should know this distinction. As a matter of fact, there is no significant differences between the periods when these individual applications were adjudicated. One of the judgments of 2013 was adjudicated within nearly one year while the other was within over one year. The judgments of 2018 were adjudicated within one year and two months as well as within one year and four months.
Regard being had to the then workload of the Constitutional Court, it will be easily seen that this difference was in favour of the former. During the period when the judgments of 2013 were rendered, the total number of pending applications was about 5.000, 220 of which concerned detention. On the other hand, during the period when the judgments of 2018 were rendered as well as the state of emergency was prevailing, over 5.000 out of approximately 40.000 pending applications in total concerned detention. This situation substantially prevails today. In other words, while the total number of applications was 5.000 at the end of 2013, the number of applications that solely concerned detention during the period when we rendered these judgments was higher than that of pending applications at the end of 2013. Therefore, I consider that such comparisons are needed to be made on a more just basis. As a matter of fact, taking into account these facts and the Turkish Constitutional Court’s endeavours to render leading judgments on these matters, the ECHR did not consider the periods of 14 and 16 months as a breach of the Convention.
In brief, the Court has swiftly rendered its leading judgments on detention in spite of its workload brought along by the state of emergency. In the light of the principles set out in these leading judgments, the Court will, within the shortest period, conclude the individual applications on detention lodged by journalists who are detained on remand pending appeal or who have recently been released. Hereby, it should be reminded that prior to the introduction of the individual application mechanism in Turkey, the ECHR concluded the applications regarding the detention of two well-known journalists within more than 3 years. Accordingly, I consider that the Court’s adjudication of these applications within such periods as 1 year and 2 months, 1 year and 4 months, and 2 years cannot be regarded as a delay or procrastination.
Lastly, I would like to say a few words about the execution of the violation judgments on detention. In the judgments of 2018 that I have just mentioned, the Court found violations of the right to liberty as well as the freedom of expression in conjunction with the former. It also held that a copy of these judgments be sent to the relevant courts as part of our general practice to redress the violations and their consequences. However, the assize courts in question, interpreting these judgments in a different way, failed to execute these judgments. Accordingly, the applicants again lodged an application with the Court on the ground that the said judgments had not been executed. Thereupon, the Court rendered a second judgment where it specified what the execution of the violation judgments on detention meant in a clear and precise way that everyone could understand.
We can say that the issue of implementation of judgments is not peculiar to the Turkish Constitutional Court. Judgments of the constitutional courts of many countries, as well as those rendered by the ECHR, might not be executed partially or even fully. This is a situation needed to be solved within the legal system. However, both the ECHR and the Court clearly have underlined in their subsequent judgments that it is out of question not to comply with the Courts’ judgments. Otherwise, it would be incompatible with the principle of rule of law. In a country where the rule of law prevails, everyone - including the judiciary - must comply with the judgments of the Constitutional Court.
In its judgments regarding the application of these two journalists, the ECHR also has stressed that effectiveness of the individual application is depended upon, inter alia, the duly execution of the Court’s judgments by the judicial authorities as well as all public institutions. Otherwise, the individual application will no longer be an effective remedy and thus will become dysfunctional. Indeed, in case of a deficiency in the execution of the judgments of a court, its judgments will make no sense. However, I consider this as a road accident within the overall exercise of the individual application, and I hope that such a situation will not occur in the future. On this occasion, I think I have had the opportunity to explain how the Court’s judgments will be duly executed.
I would like to end my speech here. I wish that the Summer School event be fruitful and successful. I would like to once again welcome the participants coming from different countries and thank them in advance for their contribution. I would also like to express my gratitude to all distinguished academics and members of the judiciary who will contribute to this Summer School with their presentations.
Lastly, I would like to extend my thanks to everyone who has contributed to the organization of the Summer School. Indeed, such organizations are never as easy as they appear. It requires a great effort in the processes of both planning and organization. I would like to thank those who contributed to the organisation of this Summer School on my behalf as well as your behalf. I also wish that the organization be successful, fruitful and beneficial for all courts and institutions. I once again greet you all with my sincere respect. I extend my wishes of health, peace and prosperity to all of you.
|Prof. Dr. Zühtü ARSLAN
|Constitutional Court of the Republic of Türkiye