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SUPPORTING INDIVIDUAL APPLICATION
TO THE CONSTITUTIONAL COURT OF TURKEY
Needs Assessment Report
on
The Individual Application to the Constitutional
Court of Turkey
Key consultant: Mr Luca Perilli, Italian Judge
Contrbutng consultants:
Ms Chrstane Schmaltz, Consttutonal Court of Germany
Mr Erol Pohlrech, Consttutonal Court of Germany
Mr Lus Pomed, Consttutonal Court of Span
Ms Eva Desdentado Daroca, Consttutonal Court of Span
Mr Juan Antono Hernández Corchete, Consttutonal Court of Span
Mr Kerem Altıparmak, Ankara Unversty
Mr Bülent Algan, Ankara Unversty
Mr Serkan Cengz, İzmr Bar Assocaton
is project is funded by the Council of Europe Human Rights Trust Fund and
implemented by the Council of Europe.
Avrupa Konseyi Program Osi / Council of Europe Programme Ofce
R.Tagore Cad. No: 10/8 Yıldızevler Mahallesi 06550 Çankaya, Ankara, Türkiye
Tel: (0) 312 468 84 64 • Faks: (0) 312 468 84 06
Rapor İngilizce Kapak.indd 1 19.11.2014 18:19:36
SUPPORTING INDIVIDUAL APPLICATION
TO THE CONSTITUTIONAL COURT OF TURKEY
Needs Assessment Report
on
The Individual Application to the Constitutional
Court of Turkey
s report was prepared wthn the Framework of the Project on “Supportng Indvdual Applcaton to
the Consttutonal Court of Turkey”, fnanced by the Human Rghts Trust Fund of the Councl of Europe.
e opnons expressed n ths work are the responsblty of the author and do not necessarly reect the
ocal polcy of the Councl of Europe.
THE INDIVIDUAL APPPLICATION TO THE CONSTITUTIONAL COURT
TABLE OF CONTENTS
Executive Summary. ................................................................................................................................1
Methodology ............................................................................................................................................ 5
I. Scope Of e Individual Application ...................................................................................................7
II. Accessibility ..............................................................................................................................................8
II.A.1 Accessibility of information about individual application by private parties ................. 8
II.A.2 Legal practitioners’ awareness of the individual application.............................................9
II.A.3 e role of lawyers ................................................................................................................11
II.A.4 Legal Aid ................................................................................................................................11
II.A.5 Fees .........................................................................................................................................13
II.B.1 Filing an Application .............................................................................................................13
II.B.2 Filing the claim through courts ...........................................................................................15
II.B.3 Uyap ........................................................................................................................................17
II.B.4 Role of Constitutional Court Registry ............................................................................... 18
II.B.5 Completion of the Application ............................................................................................18
III. Internal Organisation and Procedures of the Constitutional Court .............................................19
III. 1 Preparation of the Court for the Implementation of the Individual Application .......... 19
III. 2 Assignment of Cases ..............................................................................................................21
III. 3 Reporter Judges .......................................................................................................................21
III. 4 Commissions, Sections, General Assembly ........................................................................22
III. 5 Evidence ...................................................................................................................................23
III. 6 Decision Draing ...................................................................................................................24
III. 7 Research and Case-Law Unit ................................................................................................24
IV. Inadmissibility of Applications ...........................................................................................................26
IV. 1 Inadmissibility Rationae Temporis and Loci .......................................................................26
IV. 2 Time Limits for Filing the Complaint ..................................................................................26
IV. 3 Exhaustion of Ordinary Remedies .......................................................................................27
IV. 4 Manifestly Ill Founded Applications ....................................................................................28
IV. 5 Other Reasons for Inadmissibility ........................................................................................29
V. Workload. Sustainability. ......................................................................................................................29
V.1 Workload. Statistics. ..................................................................................................................29
V.2 Workow ....................................................................................................................................31
V.3 Priority Policies ..........................................................................................................................32
V.4 Practices to Prevent Conicting Rulings ................................................................................32
V.5 Pilot Cases ..................................................................................................................................33
V.6 Friendly Settlement ...................................................................................................................33
V.7 External Remedies to Reduce the Inux of Cases .................................................................34
VI. Remedies-Eectiveness .......................................................................................................................34
VI.1 Ascertainment of the Violation ..................................................................................................34
VI.2 Interim Measures ..........................................................................................................................35
VI.3 Compensation of Damages .........................................................................................................36
VI.4 Annulment Of Underlying Laws And Regulations ..................................................................37
VII. Publication of Constitutional Court’s Rulings ................................................................................38
VII.1 e search system of the CC rulings .......................................................................................39
VIII. Enforcement of Constitutional Court’s Decisions. .......................................................................39
VIII.1 Re-trial by Courts ...................................................................................................................... 39
VIII.2 Binding Force Of Constitutional Courts’ Rulings .................................................................41
VIII.3 Dialogue Between the Constitutional Court and Turkish High Courts ............................43
VIII.4 Enforcement of CC Judgments. Eectiveness of the Monitoring Mechanism Implemented
by the Constitutional Court ................................................................................................................. 46
VIII.5 e Role of the Ministry of Justice’s Department of Human Rights in Individual Applica-
tion Proceedings and in the Enforcement of the Constitutional Court’s Rulings ........................47
IX. Protection of Human Rights by Prosecutors, Criminal and Civil Judges .....................................47
IX.1 Duration of Pre-Trial Detention. Impact of the 3rd and 4th Package of Judicial Reforms ....47
IX.2 Long-duration of Civil Trials – Remedies to speed up Long Proceedings ...........................49
IX.3 Long-duration of Trials – Compensation of Damages ............................................................50
IX.4 Long Duration of Trials and Compensation of Damages. e Role of the Human Rights
Compensation Commission of Ministry of Justice ..........................................................................50
X. Training ................................................................................................................................................... 52
X.1 Legal Practitioners’ Training about Human Rights Protection and Individual Application 52
X.2 Specic Recommendations about Training of Lawyers, Judges and Prosecutors in terms of
Individual Application: Subjects and Training Methods .................................................................54
X.3 Training Methodologies. HELP. ...................................................................................................56
X.4 Training of Judges and Prosecutors: e Role of the Constitutional Court, the High Council
of Judges and Prosecutors and the Justice Academy ........................................................................57
List of Recommendations: .........................................................................................................................59
A
CC: Constitutional Court
CoC: Court of Cassation
CS: Council of State
ECHR: European Convention on Human Rights
ECtHR: European Court of Human Rights
GA: General Assembly of the Constitutional Court.
HYSK: High Council of Judges and Prosecutors
HMAC: High Military Administrative Court
IAO: Individual Application Oce
MCC: Military Court of Cassation
MoJ: Ministry of Justice
HRDMoJ: Human Rights Department of the Ministry of Justice
JA: Justice Academy
UTBA: Union of Turkish Bar Association
1
e Individual Application to the Constitutional Court of Turkey
E S
e report reects the ndings, considerations and recommendations issued by ve international
and three national consultants following three consecutive visits to Ankara and Istanbul performed
by the consultants in January, February and April 2014.
e right to individual application to the Constitutional Court (henceforth: CC) was introduced
by the constitutional amendment adopted on 12 September 2010 and entered into force on 23
September 2012. Following this amendment, Article 148 of the Turkish Constitution now stipulates
that everyone who claims that one of her/his fundamental rights and freedoms, as protected by the
European Convention on Human Rights and guaranteed by the Constitution, has been violated
by public authorities may apply to the Constitutional Court. is remedy is only available where
ordinary administrative and judicial remedies have been exhausted.
e main aim motivating the introduction of the new system was to guarantee the eective
protection of fundamental rights by introducing a domestic remedy by providing adequate redress
to the individuals in case of a violation of their rights by administrative or judicial decisions.
Although the draers of the new law on the CC also had expectations, as formulated in the reasoning
accompanying the law, that the introduction of constitutional complaint would have resulted in a
considerable decrease in the number of les against Turkey brought before the European Court of
Human Rights (henceforth: ECtHR).
Before 23 September 2012, when the individual applications started to be received, the CC carried out
an intense phase of preparation. e Rules of the Court were updated and two internal regulations
adopted. In addition, the human resources were strengthened and judicial and administrative
personnel were extensively trained in the framework of the EU/CoE Joint Project.Reporter Judges
from the CC participated in six months trainings at the ECtHR and study visits were organised
to the other European Constitutional Courts. Moreover, the CC Research and Case-law Unit was
modelled aer the correspondent unit of the ECtHR.
It then appears that the CC has done its utmost to be prepared for the introduction of the new
system and to face the challenges of a heavy workload. e most problematic issues, as identied
below, relate either to the legal framework or to structural problems of Turkish Justice and not to
the capacity or the commitment of the CC to deal with the new mechanism.
As stated by the ECtHR in its Hasan Uzun v. Türkiye decision1, the individual application to the CC is
an “accessible” domestic remedy. Filing an application through regular courts or directly to the CC
is not dicult, the 30 days time limit is reasonable and the level of courts’ fees is not disproportionate,
as it is demonstrated by the high number of individual applications led during the rst 16 months
of implementation of the new tool. However, the individual application’s accessibility can be further
improved. National guidelines that guarantee uniformity throughout all court registries should be
adopted and information desks in every court should be set up. Preventing applicants from ling
their applications by regular post or certied e-mail is an unnecessary obstacle to the accessibility of
the individual application system, especially for those who are in any way under control (prisoners,
mental patients in hospitals, asylum seekers). Moreover there must be an alternative to the use of
Turkish Language for those who do not have access to any legal assistance. e e-justice system
UYAP should be regularly used by the CC Registry to retrieve ex ocio the missing documents
needed for the formal admissibility of the applications.
1 April 30, 2013 (no. 10755/13.)
2
e Individual Application to the Constitutional Court of Turkey
As regards to legal aid, there seems to be no legal obstacle. However the appointment of a legal
aid lawyer is problematic as the procedure is time consuming and could determine the expiration
of the 30 days time limit to start an individual application. Provisions should be made to allow the
assistance in the individual application proceedings by the same legal aid lawyer appointed in the
previous process. Foreigners should have eective access to legal aid on equal footing as Turkish
citizens.
As regards eectiveness of the new mechanism, at the time of the visits not enough information was
yet available on how the CC handles the inadmissibility decisions. e statistics suggest that, as of
20 January 2014, the CC disposed of 4,138 les, delivered 37 judgments and found 35 violations.
2,837 applications were instead declared inadmissible and 909 struck down by the CC Registry
because of formal reasons. e gures are in line with those of the ECtHR. However it has not
yet been investigated how the CC deals with the inadmissibility ground of “lack of sucient legal
basis” in the individual application. What can be said is that Article 48 of the Law on CC does not
expressly contain a criterion of inadmissibility that refers, as in the ECtHR or other European CC
case law, to the applicants’ prospects of success. During the meetings, the consultants were told that
the Reporter Judges, in assessing the ill-founded claims, follow the criteria set by the ECtHR in its
decisions.
Concerns must be clearly expressed about the sustainability of the individual application system,
due to the increasing inux of cases. As of 20 January 2014, a total of 11,974 individual applications
had been submitted to the CC. 9,897 cases were led in 2013, more or less the same number of
applications dealt with by the ECtHR in the same year. ough lower than expected, these gures
show that the CC already faces a heavy workload and the pace of new les grows progressively,
together with the general awareness about the new remedy. A steady increase in the inux of cases
could pose a serious risk of disrupting not only the functioning of the individual application system,
but also the sound accomplishment of the other functions assigned to the CC. Since the Members
are reasonably capable of handling a limited number of cases, increasing the number of Reporter
Judges would not be the solution to the problem of workload. It is indeed extremely important
that the actual decision of the case rests with the CC Members. e eorts should be directed to
reducing, or at least preventing from increasing, the inux of cases and to improving the Court’s
practices according to the best standards, to enhance the CC eectiveness.
e most problematic areas of individual application concern the length of proceedings. As of 20
January 2014, 10,454 out of 11,974 individual applications were related to fair trial as well as the
length of detention on remand. As this requires structural and legislative measures, both issues
must nd an answer outside the CC. e Parliament should consider establishing remedies inside
the ordinary judicial procedures to denounce the delays and to speed up the long proceedings;
organisational measures to monitor and give priority to old cases in ordinary courts should be
adopted; judges should be relieved of their administrative tasks; courts’ presidents and managers
should be introduced. Even though a preventive approach would be more ecient than ex post
facto reparation (monetary compensation) of the violation, the Human Rights Compensation
Commission, established within the Ministry of Justice to award compensation of damages for long
duration of trials nalised before 23 of September 2012, should be generalised as an internal remedy
to be exhausted before an individual application is led. is would prevent unnecessary ow of
cases to the CC.
As regards to the CC internal organisation, the workow within the CC seems to be organised
in an ecient way. e automatic assignment of cases guarantees the impartiality of the process.
3
e Individual Application to the Constitutional Court of Turkey
e distribution and ow of cases among Commissions, Sections and General Assembly is rational
and ecient. e CC practice to prioritise case according to their importance and urgency has
to be appreciated. Internal control mechanisms allow sucient supervision to prevent conicting
rulings among the Sections and previous Court’s rulings. Moreover, establishing leading cases will
enable Commissions and Sections to deal eciently with serial/clone cases, especially with regards
to inadmissibility criteria. e publication of all decisions and judgments on the CC’s website makes
its case law transparent and accessible to all potential applicants and the national and international
legal community.
e CC should consider the establishment of a press speaker that is responsible for editing press
releases on the Court’s ocial website that pertain to important rulings. Contact with the press via a
press speaker assures understandable news coverage on the Court’s latest rulings and the spreading
of the constitutional case law to a broad public. It also minimises the risk that the Court‘s rulings
will be misunderstood.
Concerns must be expressed about the eectiveness of the legal remedies provided for by the
Law. If the CC nds a violation, it may also decide what should be done in order to redress the
violation and its consequences. When the violation has been caused by a court decision, the CC
sends the le to the competent court for retrial in order to restore the fundamental rights of the
applicant. However, if the CC foresees that no redress would come from re-trial, then it may decide
on a pecuniary compensation for the applicant or it may ask the applicant to le a case before the
competent rst-instance court to seek compensation for the damages s/he suered. ere are, in
principle, no problematic issues with regards to the ascertainment of a violation and compensation
of damages awarded by the Court. Serious concerns relate instead to eects of the CC decisions to
the concerned case and to similar cases.
First of all, the lack of an express provision that allows the CC to declare null and void the
underlying legal regulation in individual application is very unfortunate. While it seems clear in
view of the legislative history that the Sections do not have the competence to annul a law when
delivering a violation judgment in individual application proceedings, the President and the
Members mentioned the possibility that Sections would be allowed to refer the case to the GA for
the annulment, according to article 150 of the Constitution and 40 of the Law on the CC. However
it has not materialised as yet. Secondly, the eectiveness of the constitutional complaint as a human
rights protection tool is heavily dependent on decisions by the ordinary courts implementing those
made by the CC, especially when there is no binding legislative requirement obliging the ordinary
courts to follow the legal reasoning of the CC. e lower courts acknowledge that they must do
what is necessary to comply with the CC decisions, whereas the attitude of higher courts is dierent
as they consider that the case has already been settled by a nal decision and, furthermore, their
legal interpretation cannot be modied until the unconstitutional legal provision is removed.
erefore, the lack of the CC power to quash the lower courts’ judgments from which the violations
of fundamental rights stem, does not guarantee the sound implementation of the new system and
creates the risk that re-trial of cases will not be enforced. Moreover, the members of the High Courts
showed reluctance in accepting a binding force of CC’s rulings beyond the individual case whenever
the legal situation was in contradiction with the constitutional standards.
Declaring null and void the underlying legal regulation and quashing contesting courts’ decisions
by the CC would provide a more eective protection to the victims of a violation and would erase
every uncertainty about the interpretation of the legal framework by higher courts. Furthermore
the CC should, through the reasoning of its judgments and through direct dialogue, persuade
high courts about the binding force of the CC rulings in similar cases and should prevent them
4
e Individual Application to the Constitutional Court of Turkey
from a conclusion that the CC is a super court of appeal which prevails over other high courts and
supervises their decisions. To promote an attitude of compliance with the CC case law amongst
lower and higher courts’ judges, training and mutual consultation between CC and high courts’
members should take place. It is important that the level of cooperation in the eld of fundamental
rights protection is rooted in mutual trust and willingness on both sides, on the part of the CC as
well as on the part of the regular courts. Convincing regular courts to accept the binding eect of
CC rulings beyond the individual case is a necessary step not only to ensure the eectiveness of CC
rulings but also in order to minimise the caseload before the CC.
A further concern is related to the lack of formal mechanism for the enforcement of CC judgments.
e CC Members reported that the relevant Authorities tend to respect the CC rulings and to
comply with them; they emphasised that this is clear sign of the eectiveness of the tool and of the
CC Secretariat General capacity to monitor the execution of CC rulings. However such a formal
mechanism should be established by the law. In particular, if the CC sends the applicant back before
the competent rst-instance court to seek compensation for the damages suered because of the
fundamental right violation, bearing in mind the excessive length of trials phenomenon in Turkey,
this ruling must be closely monitored and a time limit should be set out as to the duration of such a
second set of compensation proceedings.
en concerns exist about the awareness of the system amongst legal practitioners. Before the
individual application procedure became eective, an extensive campaign was launched to inform
potential applicants about the new remedy. Brochures (“How to submit an individual application
in 66 questions”) were printed and 50,000 copies were distributed in prisons, to subscribers of
legal journals, to universities and courthouses. Reporter judges appeared on national television
explaining the newly introduced individual application procedure. e initial judgments of the CC,
in particularly the ones concerning detained MPs and the twitter ban case were widely reported
through the mass media and this contributed to increase the public awareness about this new
remedy and the public perception about the importance of the CC’ role. Nevertheless it is also
apparent that the majority of lawyers have limited knowledge about technical aspects pertaining to
the new mechanism. It is obvious that training legal practitioners about individual application is
strongly needed. Training performed by the Bars is insucient and the lack of sucient training
for the lawyers may result in inadmissible applications to the detriment of the applicants and may
increase the workload of the CC as numerous applications are sent unnecessarily to the CC. Specic
training should therefore be planned to target these concerns and individual application should be
included in law school curricula. Trainee lawyers should receive dedicated training in the course of
their pre-service training. Professional lawyers should be rst trained in ECtHR and then CC’s case-
law on fundamental rights, to enable them to allege the relevant case-law before the rst instance
courts. In particular the training should be focused on the formalities required to correctly full the
application; the admissibility criteria used by the CC; the access to legal aid especially for foreigners;
the CC power to sanction the abuse of the right to an individual application; the exhaustion of
remedies before ling an individual application; inadmissibility criteria and the CC case law about
inadmissible petitions.
Furthermore individual application should become a regular subject both for pre-service and in-
service training of Judges and prosecutors. In this case, the training should mainly focus on CC
remedies and the enforcement of CC rulings, the retrial and the scope of the binding force of the
CC’s judgments. e High Council of Judges and Prosecutors, the Justice Academy and the Union
of Turkish Bar Associations would be expected to cooperate in order to organise common training
open to judges, prosecutors and lawyers. ereby, exchange of views, exchange of experiences and
5
e Individual Application to the Constitutional Court of Turkey
a constructive dialogue can be realised. Given the high number of legal professionals to be trained,
the use of the HELP methodology and platform is recommended.
M
is report reects the ndings, considerations and recommendations issued by ve international
and three national consultants following three consecutive visits to Ankara and Istanbul performed
by the consultants in January, February and April 2014.
FIRST VISIT:
e visit took place from 20 to 22 January 2014 in Ankara; the team of consultants was composed
of:
Ms Christiane Schmaltz reporter judge at German Constitutional Court;
Mr Luis Pomed reporter judge at Spanish Constitutional Court;
Mr KeremAltıparmak professor from Ankara University;
Mr BülentAlgan professor from Ankara University;
Mr Serkan Cengiz from the İzmir Bar Association;
Mr. Luca Perilli, Italian judge and key consultant.
e team of consultants was accompanied by two CoE ocers, Ms Natacha De Roeck and Mr Yücel
Erduran.
e visit to Ankara consisted of three days meetings with the President, the Deputy President,
Members, Chief Reporter Judges, Reporter Judges, Assistant Reporter Judges, members of the
administrative sta of the Constitutional Court of Turkey (AnayasaMahkemesi).
SECOND VISIT:
e visit took place from 17 to 19 February 2014 in Istanbul; the team of consultants was composed
of:
Mr. Erol Pohlreich reporter judge at German Constitutional Court;
Ms Eva Desdentado Daroca reporter judge at Spanish Constitutional Court;
Mr KeremAltıparmak professor from Ankara University;
Mr BülentAlgan professor from Ankara University;
Mr Serkan Cengiz from the İzmirBar Association;
Mr. Luca Perilli, Italian judge and key consultant.
e consultants were accompanied by two CoE ocers, Mr Mahir Mustheidzada and Mr Yücel
Erduran.
e visit to Istanbul consisted of three days meetings with lawyers from the Istanbul Bar
Association (İstanbul Barosu); representatives of NGOs; representatives of the Justice Commission
6
e Individual Application to the Constitutional Court of Turkey
(Adalet Komisyonu), criminal and civil judges, prosecutors, courthouse’s registries at the Istanbul
Courthouse in Çağlayan (İstanbul Adalet Sarayı).
THIRD VISIT:
e visit took place from 9 to 11 April 2014 in Ankara;the team of consultants was composed of:
Mr. Erol Pohlreich reporter judge at German Constitutional Court;
Mr. Juan Antonio Hernández Corchete reporter judge at Spanish Constitutional Court;
Mr. Kerem Altıparmak professor from Ankara University;
Mr. Bülent Algan professor from Ankara University;
Mr. Serkan Cengiz from the İzmir Bar Association;
Mr. Luca Perilli, Italian judge and key consultant.
e consultants were accompanied by a CoE ocer, Mr Yücel Erduran.
e visit to Ankara consisted of three days meetings with the Members of the Constitutional Court
(Anayasa Mahkemesi), of the Court of Cassation (Yargıta y), the Council of State (Danıştay), the
High Military Administrative Court (Askeri Yüksekİdare Mahkemesi) and the Military Court of
Cassation (Askerî Yargıtay). Furthermore, the delegation visited the Ministry of Justice (Adalet
Bakanlığı) where it met members of the Department of Human Rights (İnsan Hakları Dairesi) and
the Compensation Commission (Tazminat Komisyonu). Ultimately, the team had consultations with
lawyers at the Union of Turkish Bar Associations (Türkiye Barolar Birliği) as well as with members
of the High Council of Judges and Prosecutors (Hâkimlerve Savcılar Yüksek Kurulu) and the Justice
Academy (Adalet Akademisi).
e team of consultants relied on information gathered during the ocial visits to Turkey and on
documents provided by the Turkish authorities and the Council of Europe before and during the
missions.
e main sources of Turkish Law consulted by the consultants for their assessment are the
following: the Constitution of the Republic of Turkey; the Law No. 6216, adopted on 30 March
2011, on e establishment and rules of procedure of the Constitutional Court of Turkey (henceforth:
CCL), published in the Ocial Gazette (no. 27894) on 3/4/2011; the Rules of Procedures of the
Constitutional Court, published in the Ocial Gazette (no. 28351) on 12/7/2012 and not yet
translated into English language; the criminal procedural code and the civil procedural code.
is assessment is guided by the reference to the European standards derived mainly from the
European Convention for the Protection of Human Rights and Fundamental Freedoms and the
case-law of the European Court of Human Rights (henceforth: ECtHR).
e consultants took further into account the “Opinion on the Law on the establishment and rules
of procedure of the Constitutional Court of Turkey”, adopted by the Venice Commission at its 88th
Plenary Session, held in Venice, 14-15 October 2011 (Henceforth: Venice Commission Opinion).
is report has been made possible thanks to the constant, open and warm cooperation of the
Turkish Authorities and the expertise and support provided by the Council of Europe.
7
e Individual Application to the Constitutional Court of Turkey
I. S O I A
According to Article 148 (3) of the Constitution of the Republic of Turkey, “Everyone may apply to
the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the
scope of the European Convention on Human Rights which are guaranteed by the Constitution has
been violated by public authorities”.
Article 45 (1) of the CCL coherently establishes that “Every person may apply to the Constitutional
Court alleging that the public power has violated any one of his/her fundamental rights and freedom
secured under the Constitution which falls into the scope of the European Convention on Human
Rights and supplementary protocols thereto, which Turkey is a party to.”
As stated by Article 46 (2) and (3) of the CCL, “public legal persons may not petition individual
applications” and “foreigners may not petition individual applications concerning rights exclusive to
Turkish citizens”.
Article 45 (3) of the CCL also states that legislative acts and regulations cannot be directly subject
of individual application.
e function of the constitutional complaint is the eective protection of fundamental rights by
giving a remedy to the individuals in case of violation of their rights by administrative or judicial
decisions.
According to the expectations of the draers of the law on CC - as formulated in the reasoning
accompanying the law- the introduction of constitutional complaint would have resulted in
considerable decrease in the number of les against Turkey brought before the European Court
of Human Rights. us one of the main aims supporting the introduction of the new tool was to
provide a domestic remedy for the violation of fundamental rights. is purpose may also explain
why the constitutional complaint procedure only formally relates to European Convention on
Human Rights2.
Fundamental rights and freedoms secured by the Constitution do not coincide, in number and
contents, with those proclaimed by the ECHR and its Protocols. Although the reading of the
Constitution lets it clear that there is no right and freedom of the ECHR excluded, there are doubts
whether the protection provided by the individual application to the CC reaches all the fundamental
rights recognised by the Constitution or only those rights protected by the ECHR and its Protocols.
As stated in the Venice Commission “Opinion on the Law on the establishment and rules of
procedure of the Constitutional Court of Turkey”, the words “falls into the scope” of the ECHR can
be construed narrowly, implying that the fundamental rights that may be invoked in an application
to the CC are exclusively those secured by the Constitution and guaranteed by the ECHR and its
Protocols. But it can be construed in a wider sense, and give way to the incorporation of the rights
guaranteed by the ECHR and its Protocols into those secured by the Constitution. is second
approach would facilitate the development of a Turkish theoretical framework of fundamental rights
and would, at the same time, comply with Art. 90 of the Constitution, as amended in 2004, which
establishes the primacy of the European Convention on Human Rights. For both cases, in order
2 See on this point the Venice Commission Opinion.
8
e Individual Application to the Constitutional Court of Turkey
to avoid that the CC interpretation diverges from that given by the Strasbourg Court, a profound
knowledge of the case-law of the European Court of Human Rights is essential.
Article 46.2 prohibits applications by public legal persons. e exclusion of public legal person’s
right to apply poses some theoretical problems. According to the Strasbourg case-law, legal persons
may allege to be victims, and therefore are entitled to raise a complaint, concerning any of the
rights and freedoms guaranteed in the ECHR, to the extent that the right or freedom concerned is
allegedly violated in their respect. us, for instance, a legal person cannot claim that its right to
life or the prohibition of torture with respect to it has been violated, but it may claim that its right
to a fair trial or to property3 has been infringed. Furthermore Turkey ratied in 1992 the European
Charter of Local Self-Government. Municipalities or institutions of higher education —to mention
only two public legal persons contemplated by the Constitution— could be owners of fundamental
rights.
As regards to foreigners, the problem lies in determining what fundamental rights an alien does not
have, just by being an alien. According to Article 1 ECHR the States parties “shall secure to everyone
within their jurisdiction” the rights and freedoms guaranteed therein. is includes both citizens and
foreigners. ere are certain rights which, by their nature, only apply to citizens or may be restricted to
citizens, such as the right to vote and stand as a candidate for the national parliament, and the right of
access to certain public functions. However, Article 14 of the ECHR implies that, in principle, foreigners
should enjoy fundamental rights and freedoms to the same extent as citizens.4
It is recommended to interpret the Constitution’s reference to “rights exclusive to Turkish citizens”,
by limiting them exclusively to the political rights and duties listed in part two, chapter four of the
Constitution, insofar as the Constitution itself requires being a citizen to own and exercise these
fundamental rights and freedoms.
• Articles 148 (3) of the Constitution and 45 (1) CCL about the scope of individual applica-
tion should be interpreted in a way to ensure the incorporation of the rights guaranteed by
the ECHR and its Protocols into those secured by the Constitution.
• e exclusion of public legal persons and foreigners from the right to apply should be con-
strued in a very narrow sense in order to assure an eective protection of their fundamental
rights and freedoms.
II. A
II.A. A
F
e consultants were informed by the CC Reporter Judges that before the individual application
procedure became eective (as of 23 September 2012), there was an extensive campaign to inform
potential applicants about the new remedy. Brochures (“How to submit an individual application
in 66 questions”) were printed and 50,000 copies were distributed in prisons, to subscribers of
legal journals, to universities and courthouses. Reporter Judges appeared on broadcasts in various
3 See on this point theVenice Commission Opinion.
4 See on this point theVenice Commission Opinion.
9
e Individual Application to the Constitutional Court of Turkey
national channels explaining the newly introduced individual application procedure.
e initial judgments of the CC, in particularly the ones concerning detained MPs and the twitter
ban case were widely reported through the mass media and this contributed to increase the public
awareness about this new remedy.
Some lawyers and NGOs considered that there is still a lack of information about individual
application. ey pointed out that access to information is more dicult for prisoners and especially
for foreigners because of the language barrier. Moreover, NGOs expressed their concerns regarding
the situation of refugees that are in detention centres with no access to lawyers or sta with legal
skills.
C
Whoever seeks information on the new remedy, can nd it easily on the Internet5.
However, considering that not every citizen has regular access to the internet, information desks at
courts should be set up and equipped to provide practical instructions on how to le a claim and
how to access legal aid.
On the whole, access to information about individual application should be improved in relation
to those that are in a more vulnerable situations, especially foreigners that encounter a language
barrier and may be in a condition (detention centres) that makes more dicult for them to access a
lawyer or sta with legal skills.
• Information desks at court houses should be set up and equipped to provide practical
instructions on how to le a claim and how to access legal aid.
• Access to information about individual application should be improved in relation to
potential applicants, who are in a vulnerable situation, especially foreigners who encounter
a language barrier and may be in a situation, like the connement in detention centres,
which makes dicult for them to access a lawyer or other sta with legal skills.
II.A. L ’
F
Legal practitioners are well aware of the existence of the individual application before the
Constitutional Court as a way to obtain protection for human rights in Turkey. However this
awareness has not yet been entirely developed into technical knowledge about the procedure and
the conditions for ling an admissible complaint.
e consultants acknowledged the existence of uncertainties, among lawyers and NGOs, about
specic aspects of the individual application such as:
5 When googling its Turkish term (“bireyselbaşvuru”), the first entries shown are:
- a link to the brochure that was distributed at the time of the introduction of the individual application
(“How to submit an individual application in 66 questions”);
- a link to the application forms;
- and many other links to web sites with helpful information that is easy to understand even for people
without any legal training.
10
e Individual Application to the Constitutional Court of Turkey
- the formalities required to le correctly the application;
- the admissibility criteria used by the CC;
- the access to legal aid6 especially for foreigners;
- the right of private legal persons to lodge an individual application;
- the possibility of getting a ne for abuse of the right to apply to the CC7;
- the principle of exhaustion of further internal remedies;
- the need to le previously an individual application before the CC in order to access the
ECtHR8;
- the impact of the individual application inadmissibility decision by the CC on the access to
the ECtHR.
Furthermore, there is a widespread perception among lawyers and representatives of the NGOs
that the individual application to the CC is not an eective remedy against the violation of human
rights and that, on the whole, constitutes an obstacle to access the ECtHR. ey seem therefore to
consider that the need to le an individual application before the CC is a process-delay instrument.
ey accepted however that they may be prejudiced as they haven´t seen yet clearly the eectiveness
of the system and that there may be too little experience yet.
Istanbul judges and public prosecutors reported that individual application has not so far impacted
their usual work. ey seemed however to be aware of the system and showed themselves receptive
to CC case law and willing to take it into account in their own decision-making. However, some
doubts about the scope of the binding force of the CC’s rulings and CC’s power to nullify legal
provisions still exist.
Members of the High Courts explained that the introduction of individual application in Turkey
strengthened the protection of human rights; however they generally refused the binding force of
CC’s rulings in similar cases.
C
In general, considering the referendum stage, the public awareness campaign about the individual
application before it came into force, academic activities and nally the conspicuous rulings of the
CC, there is no doubt about the awareness of the system by the legal practitioners.
It further seems that the awareness of the individual application system among the lawyers has
surged following the ruling by the CC to li the twitter ban. Nevertheless, it is also apparent that the
majority of lawyers have limited knowledge about the new mechanism.
Scepticism by some lawyers about the eectiveness of this new remedy might be a matter of prejudice
and is not justied by real grounds. It could be overcome if legal practitioners, and in particular
lawyers, regularly undergo dedicated training about individual application.
6 Please see chapter III.5 below.
7 Under Article 83 of the Rules of the Court, the CC has competence to impose a ne on an applicant up to TRL2.000 if the right
to individual application was abused by the applicant.
8 ECtHR, decision of 30 April 2013, Hasan Uzun v. Turkey, no. 10755/13, § 69.
11
e Individual Application to the Constitutional Court of Turkey
• Legal practitioners should regularly undergo dedicated training about the individual ap-
plication.
II.A. T
F
According to Article 61(1) of the CCL, an individual application can be led by the applicant in
person, by his/her legal representative or by his/her lawyer. Application by a lawyer is therefore not
compulsory.
Until the end of 2013, 6854 applications were led by lawyers, and, 4230 applications were made
personally by the applicants.9
During the meetings held in İstanbul Bar Association premises, the consultants were informed
that no special training programme have been organised on individual application by the Bar, and
in general there was an absence of any compulsory professional in-service training for lawyers in
Turkey.
C
Lawyers are one of the main pillars of the individual application since the CC receives the majority
of the applications through lawyers. e gures show that applicants increasingly tend to get the
support of lawyers for individual application. However, there is no data about the admissibility rates
of the applications made with or without the assistance of lawyers.
Considering the importance of lawyers for the well functioning of the individual application, it
has to be reiterated the recommendation for the organisation of devoted training for lawyers on
individual application throughout Turkey.
II.A. L A
Legal aid concerning payment of the individual application Court’s fee is available.
According to Article 62 (2) of the Rules of Court, legal aid claims shall be decided by CC Sections or
Commissions that will decide over the case. e Section or the Commission, which decides on the
request for legal aid, shall apply general principles concerning legal aid
Pursuant to Civil Procedure Law no.6100, Articles 334- 34010, the legal aid claims must be based
upon an indigence document issued by a head of the neighbourhood (muhtar) or mayor of the town
where the applicant lives.
However, according to the information received from Reporter Judges working in the CC Individual
Application Oce, the applicant simply needs to submit a declaration that s/he is unable to pay the
9 See the statistics in http://www.anayasa.gov.tr/BireyselBasvuru/Istatistikler/index.html (last access on 5.3.2014).
10 e legal aid application for appointment of a legal counsel in a crime related matter is evaluated by prosecutors/police (if it is
requested at the investigation stage) or court under Article 150 of the criminal procedure code.
12
e Individual Application to the Constitutional Court of Turkey
court’s fee and - if possible –support this declaration with documentary evidence. If the applicant
is unable to submit this evidence, the CC will of its own motion request the information from the
relevant authorities.
In the meeting with lawyers, uncertainties emerged about the procedure to have a legal aid lawyer
appointed by the Bar. e consultants were informed that when a lawyer is appointed for legal
aid, his/her mandate covers the trial before the court of rst instance and court of appeal, but
not the individual application process. erefore the applicant has to apply again to the Bar for
further assistance of a lawyer at the CC stage. e lawyers also stated that the assessment of such an
application takes at least 15 days and makes it extremely dicult, if not impossible, for the applicant
to respect the thirty days time-limit established by the law for ling the individual application.
e NGOs also mentioned foreigners, especially refugees and asylum seekers, who encounter the
problems with receiving legal aid, because many refugees are illiterate and cannot speak Turkish
language. According to the civil procedural code, legal aid is granted to foreigners pursuant to the
principle of reciprocity11.
However in the meeting with the lawyers, the consultants were informed that, according to a recent
decision of the National Bar Association, dated 22.07.2013, application for legal aid is also possible
for applicants that are not Turkish citizens. Until 22.07.2013 the legal aid applications by those who
lack Turkish citizenship were not even registered by the Bar Associations in the relevant internet
based legal aid ledger. On 22.07.2013, the Union of Turkish Bar Associations12 announced that the
procedure was amended to make it possible for foreigners to apply to the Bar Associations13 for legal
aid. However, this decision seems to be unknown to wider public.
One of the consultants collected the following information from the head of legal Aid Department
of Izmir Bar Association: in today’s practice (in particularly aer the war in Syria), the Bars do
not currently require foreign legal aid seekers to prove their nancial status with relevant ocial
documents; though Turkish citizens still have to submit an indigence certifying document.
C
ere seems to be no obstacles for legal aid.
However, under domestic law and practice, legal aid is only provided to Turkish citizens. If an
applicant is not a Turkish citizen, then the legal aid application will most likely be dismissed by the
CC on the basis of the Law no.6100.
erefore, room for those who are not covered by Turkish citizenship in any way must be made
available. is is related only to the exoneration from the payment of the Court’s fee.
Legal aid consisting of the appointment of a lawyer is possible for Turkish citizens but it is problematic
because the procedure for the appointment is time consuming and could cause the expiration of
the 30 days time-limit to start an individual application. Provisions should be made to allow the
assistance in the individual application proceeding by the same legal aid lawyer appointed in the
previous process; the applicant should be further allowed to ask for the suspension of the time-limit
11
Law on Foreigners and International Protection no 4658 published in the Ocial gazette no. 28615 on 13 April 2013 in the second
paragraph of article 81 establishes those individuals who have international protection statuts only are provided with legal aid.
12 ere are 79 Bar Associations throughout Turkey.
13 e decision states: “In the National Bar Associations Network services delivered by our Union; obligation to enter “Turkish ID no”
for individuals with foreign nationality who receive legal aid was removed only for individuals with Foreign Nationality and was
replaced with “Passport No.” eld. If passport is unknown, this led should be le empty”.
13
e Individual Application to the Constitutional Court of Turkey
for ling an individual application, when legal aid has been claimed, until a lawyer is appointed or,
at least, provisionally appointed.
Furthermore, the conditions and concrete possibility for the appointment of a legal aid lawyer to
foreigners, especially those without direct access to a lawyer and those who are not able to use the
Turkish language, are still unclear, even though the decision adopted on 22.07.2013 by the National
Bar Association could solve the problem, if properly implemented.
• e scope of legal aid should be broadened in order to cover potential non-Turkish ap-
plicants.
• Legal provisions should be adopted to allow assistance in the individual application
proceeding by the same legal aid lawyer appointed in the previous process.
• Applicants should be allowed to ask for the suspension of the time-limit for ling an
individual application, when legal aid has been claimed, until a lawyer is appointed or, at
least, provisionally appointed.
II.A. F
F
According to Article 47 (2) CCL, “a fee is payable for individual applications”.
Individual application is subject to the payment of a court fee, which was TRL 150 in 2012, became
TRL 198,35 in 2013. e application fee for 2014 is TRL 206,10.
Some lawyers and NGOs criticised the existence of the fee and others said they considered the fee
too high.
C
In its recent study on individual access to constitutional justice, the Venice Commission recommends
that in view of increasingly more comprehensive human rights protection, court fees for individuals
ought to be relatively low and that it should be possible to reduce them in accordance with the
nancial situation of the applicant. e primary aim of fees should be to deter obvious abuse.
Approximately 12000 applications to the CC, at the time of the third consultants’ visit, reveal that
the current fee have not dissuaded the applicants from ling individual applications to the CC so far.
erefore, the current level of fees cannot be considered an excessive burden and a disproportionate
obstacle to access individual application.
II.B. F A
F
Article 47 (1) 1 of the CCL states that an individual application can be led to the CC in three
dierent ways:
14
e Individual Application to the Constitutional Court of Turkey
- directly to the CC, or
- through any other court in Turkey or
- through representations of the Republic of Turkey abroad.
It adds that “Procedures and principles for admissibility of applications through other modes shall be
regulated by the Rules of the Court”.
It is not currently allowed, however, to le a case via regular mail, e-mail or fax. Nonetheless, it was
stated in a meeting that there is an exception in practice: applications from prisons via mail are not
refused, provided it is certied (i.e. a sign or a seal by the Prisons’ ocers).
e consultants were reported that approximately one fourth of the applications are submitted
directly to the CC; the rest of the applications are led via the local courts.
According to article 47 (5) of the CCL, the application must be lodged within 30 days aer exhaustion
of legal remedies and the notication of the last instance decision to the applicant. It has to be noted
that “those who fail to apply within due time as a consequence of a warranted excuse may apply within
een days aer the excuse ceases to exist and must present evidence proving the excuse. e Court
examines validity of the excuse rst and then either admits or dismisses the claim.”
According to Article 59 of the Rules Turkish is the only language by which an applicant can submit
his/her/it application.
C
e fact that applicants are precluded from ling their individual application by post or certied
e-mail (e-signature) or an alternative on-line application system is an unnecessary obstacle to
the accessibility of the individual application system. is matter is likely to cause problems for
those who are in any way under control (prisoners, mental patients in hospitals, asylum seekers
or foreigners who live in a country where Turkey has no representative body). Furthermore, the
application mode will give rise to problems in cases where the time limit runs out on a public
holiday; this problem might become even more complicated when an interim measure is requested
by the applicant. Hours, not even days, might be important for a person who, for example, is about
to be extradited to a country where he/she might face torture.
ere has been no clear answer on how prisoners or detainees can submit an (admissible) individual
application. While the Reporter Judges informed the consultants that prisoners were allowed to le
an application via mail with the prison stamp, it was observed that it could be dicult to get the
prison stamp in practice14.
ere should be an alternative to the use of Turkish Language for those (in particularly foreigners
who are awaiting deportation to a country where they may face violations of Article 2 and 3 of the
ECHR) who do not have access to any legal assistance in order to prepare a Turkish application.
14 Recently the European Court of Human Rights communicated an application to Turkey pertaining eciency of the individual
application tool to the CC (Application no.20616/13, Sakın v. Turkey). e application concerns an applicant who is serving a
prison sentence in İzmir F Type prison and whose individual application to the CC was dismissed on the basis of the fact the
individual application was submitted to the CC by post rather than the local court or the relevant prison administration. e
European Court asked the Turkish government to answer several questions concerning the eectiveness of the newly created
constitutional application mechanism.
15
e Individual Application to the Constitutional Court of Turkey
• e CC internal rules should be changed so as to allow the ling of the application
via regular mail and, possibly, via certied e-mail or an alternative on-line application
system.
• Ann alternative to the use of Turkish language should be provided for foreigners who
are not able to have access to any legal assistance for preparation of a Turkish applica-
tion.
II.B. F
F
As regards ling of individual application trough regular courts, lawyers reported that, at the rst
stage of the implementation of individual application, they encountered problems in receiving by
the Courts’ registries the proper information on how to le the claim.
Although the clerks working at the local court registries play a major role in the individual application
mechanism15 and despite the extensive information campaign carried out before the individual
application procedure had become eective, the Registry clerks at the Istanbul Courthouse stated
they had received neither the brochures16 that were distributed in the frame of the campaign nor
any special training. e clerks considered the only source of information they received - a circular
from the Ministry of Justice - to be insucient for their preparation of the new task; they reported
that they had to learn the application mechanism by practice.
Clerks and administrative sta of the Istanbul Courthouse admitted that, since there are no national
guidelines, the formalities required by the court registries for accepting an individual application
may vary from one court to another.
However, problems seem now to be mostly solved in the Istanbul Courthouse, where clerks
informed the consultants that the procedure for ling the individual application through this court
has become quick and easy.
It was pointed out that diculty persists when the applicant is a foreigner or a legal person, since
the National Judiciary Informatics System(UYAP) asks for a Turkish identication number. Some
clerks said that foreigners and legal persons have to le directly at the CC, while others explained
they could send the application through UYAP but using an electronic framework dierent than the
specic one provided for individual application.
e clerks of the Istanbul Courthouse’s Registry also said that, since the Registry already has busy
workload, it may be better to create a specic front oce to receive individual applications. is
could also improve the information and service for the applicants.
Lawyers and NGOs complained that along with the application they have to provide all documents of
the previous process ocially certied17 and that this is a disproportionate burden for the applicant,
especially in respect of cases with voluminous case-les18.
15 7434 of the applications led between 1 January 2013 and 31 December 2013 were led at a local court’s registry, 2493 were les
directly at the CC and 24 at a representation abroad, see http://www.anayasa.gov.tr/les/bireyselBasvuru/2013_istatistikler.pdf.
16 “How to submit an individual application in 66 questions”.
17 I.e. the claims, decisions of the court and administrative bodies, minutes of the hearings
18 Like Sledgehammer and Ergenekon.
16
e Individual Application to the Constitutional Court of Turkey
In addition, the clerks explained that the quality level of scanned documents is not the same all
over the country, since not all the courts are equipped with the same resources. Furthermore, they
explained, the scan-oces sometimes have too busy workload and insucient stang to complete all
the work and this explains why applicants are sometimes requested to bring the certied documents
along with the application form.
C
It is not dicult to access the local courts which can be found not only in city centres, but also in many
towns19; however the necessary physical access to court will give rise to problems in cases where the
time limit runs out on a public holiday; this problem might become even more complicated when
an interim measure is requested by the applicant.
Dierent practices followed by registries of local courts would jeopardize the accessibility of the
remedy. National guidelines that guarantee uniformity throughout all court registries, also providing
information about the individual application formalities for applicants, should be therefore prepared
and disseminated by the MoJ in cooperation with the CC. e Ministry of Justice must ensure that
registry clerks receive adequate training about the new remedy, how to inform citizens about the
individual application procedure, how to upload the claim and the documents in UYAP, and how
to collect fees.
As regards lawyers’ complaint about the need to submit certied copies of the relevant documents
concerning their applications, it has to be noted that this obligation is provided by article 59/3 of
the Rules of the Court. However, in the course of the rst visit to the CC, the consultants were
reported that the documents could be retrieved directly from UYAP. Lawyers and NGOs objected
that instead they are oen requested to provide certied copies of the documents already contained
in the court’s le. e problem seems to lie — based on the information clerks of the Istanbul
Courthouse’s Registry gave the consultants — in the fact that the documents are not always scanned
and uploaded in UYAP by Courts’ Registries.
To facilitate access to the remedy, the consultants recommend that the practice of the CC Registry
to retrieve documents from UYAP be expressly regulated and prescribed in the Rules of the Court.
• e practice of the CC Registry to retrieve documents from UYAP should be expressly
regulated in the Rules of the Court.
• National guidelines that guarantee uniformity throughout all court registries should be
adopted.
• Clerks at the courts’ registry/information desk should receive training about the new
remedy, on how to inform citizens about the individual application procedure, on how to
upload the claim and the documents in UYAP, and on how to collect fees.
19 Turksh cvl admnstraton s composed of 81 ctes (l) and 919 towns (lçe). Seethe web ste of Mnstry of InternalAars,
https://www.e-csler.gov.tr/Anasayfa/MulkIdarBolumler.aspx. enumber of courthouses n Turkey s 708 n 575 dstrcts.
See http://www.e-justce.gov.tr/presentaton/generalnformaton.html. Courthouses can be found n everyctycentreandmost of
thetownsexceptthose of a low-populaton.
17
e Individual Application to the Constitutional Court of Turkey
II.B. N J I S- UYAP
UYAP is an e-justice system as a part of the e-government, which has been developed in order to
ensure a fast, reliable, soundly operated and accurate judicial system. As a central network project
it includes almost20 all of the courts, public prosecutors services, prisons, other judicial institutions
and government departments in Turkey21.
is system can provide the CC in most cases with instant access to the lower court les and
automatically retrieve the relevant documents from the court’s le.
As mentioned above, under Article 59/3 of the Rules of the Court parties ling an individual
application are required to submit copies of the relevant documents concerning their complaints
(petitions, decisions of the courts and administrative bodies, minutes of the hearings etc.).
According to the information received from the Reporter Judges working in the CC Individual
Application Oce, where the individual applications are registered, the CC adopts a exible approach
regarding missing documents and UYAP is used to retrieve missing documents to complete the le.
According to information provided by Reporter Judges this exible approach is followed in particular
towards prisoners and people not represented by a lawyer.
C
e UYAP system is an advanced, modern and reliable tool that makes individual application easier
and improves accessibility to the CC. However, the system has to be updated in order to overcome
the problems when the applicant is a legal person or a foreigner.
Accessibility of documents through UYAP is advantageous both for the applicants, who do not have
to attach a voluminous le to their application form, and for the CC ocials as they can reach the
lower court’s les speedily, safely and easily.
If the system is in fact used ex ocio to complete an otherwise incomplete - and thus inadmissible
- individual application, it would help to improve accessibility of the CC. However not every court
in Turkey regularly uploads all case le’s documents to UYAP.
e improvement of resources to scan and upload documents in UYAP may therefore be necessary
in some courts.
• Within the applicable data protection rules UYAP should be used by the CC to retrieve
information needed for an application if the applicant is unable to provide that infor-
mation within the relevant time-limits.
• e Rules of the Court should be amended to establish the CC Registry duty to retrieve
ex ocio the missing documents from UYAP;
• UYAP should be adapted to overcome the problems that foreigners or legal persons
may encounter when ling the individual application.
20 Military courts are not included into the UYAP system.
21 Information obtained from http://www.e-justice.gov.tr/presentation/generalinformation.html.
18
e Individual Application to the Constitutional Court of Turkey
II.B. R C C’ R
When an individual application is lodged, it is rstly addressed to the Individual Application Oce
(hereinaer: IAO or Registry) of the CC, namely “Bireysel Başvuru Bürosu”. Article 65 (3) of the
Rules of the Court regulates the Registry responsibilities. ere, soware is assigning the individual
application by a registration number. en Individual Application Oce must check whether the
individual application form and its annexes are complete. When any incompleteness is found,
applicants are informed so that they can complete necessary documents in time. Finally, the IAO is
responsible for pursuit and forwarding the individual application to the competent units.
C
IAO conducts a merely formal examination of individual applications; the Registry cannot decide
on admissibility or on the merits. e examination is limited only to the requirements enumerated
in Articles 47 CCL and 59 and 60 of the Rules of the Court.
Article 59 (4) of the Rules of the Court sets out in detail the documents which an applicant must
attach to his/her/its application form: i.e. power of attorney if there is a representative, the receipt
which indicates payment of the court fee, a copy of the ID or passport (for foreigners), documents
for legal persons including names of individuals who represent them, postal receipt which indicates
the notication date of the nal decision/judgment, the documents (originals or certied copies)
upon which the application and violation allegations are based, the documents which support
damage claims (if there is any), the documents which substantiate the excuse (if there is any) of an
applicant for not submitting the application within the prescribed time limit (30 days).Pursuant to
Article 60 of the Rules of the Court, if the application exceeds ten pages, an abstract shall be added
to the application form that summarizes the facts of the case.
As regards the extent of the power of the Individual Application Oce to complete the claim ex
ocio trough UYAP, please see the paragraph above (II.B.3).
II.B. C A
According to article 66 of the Rules of Court, if there are missing parts in the application form or
in its annexes the Individual Application Oce shall give extra time up to 15 days to the applicant
or to his legal representative to complete the le. e applicant shall be informed that if the missing
parts are not completed in the given extra time without a valid legal reason, the application would
be rejected.
According to the information provided by the reporter judges the CC can, at any stage of the
proceedings, correspond with the applicant with regard to missing documents and also request
missing documents from the relevant authorities.
C
As to the completion of the application the question remains what exactly are the requirements
regarding the submission of necessary documents for a constitutional review and whether the CC
19
e Individual Application to the Constitutional Court of Turkey
will ex ocio correspond with the applicant and ask for more information.
Furthermore it is unclear which missing documents would cause the rejection of the application
and whether, in cases where the applicant is unable to have access to the documents listed by article
59 of the rules of court, s/he should raise this matter with convincing explanation in the relevant
application form and whether, upon this information, the CC, on its own motion, would collect
those documents from the relevant institutions.
• It should be ocially claried by the Individual Application Oce what missing doc-
uments would cause the rejection of the application.
III. I O P C C
e internal organization and procedures of the CC are set out in the CCL and in the Rules of the
Court22 which have been adopted by the General Assembly (hereinaer: GA).
III.. P C I
I A
Following the constitutional amendment of 2010, an intensive preparation for the implementation
of individual application immediately began.
e consultants were told by the President and Reporter Judges that the construction of the current
building of the CC was conceived to include adequate facilities for the implementation of individual
application.
e CC performed three groups of activities to be prepared for the individual application, as
specied below.
e rst activity was in the legal area. e Law on Establishment and Rules of Procedures of the
Constitutional Court (Law nr. 6216)23 was enacted and entered into force. In addition, the individual
application procedure was regulated in detail in the Rules of the Court24. Finally, two regulations25
were adopted on the employment and training of the assistant Reporter Judges candidates.
e second activity focused on strengthening human resources. As receiving individual application
would greatly increase the workload of the CC, new personnel was necessary. A new position of
“assistant Reporter Judge” was created to this end. For the recruitment of assistant Reporter Judges,
as per a regulation published in the Ocial Gazette on 21 May 2011, a two-stage examination
consisting of a central written examination followed by an oral one was implemented. e central
examination was held by ÖSYM (Centre for Evaluation, Selection and Placement) on 30 October
2011. From 3,467 applicants, 2,883 attended the central examination and aer the oral exam stage
22 e Rules of the Court are not available in English.
23 Publshed n theOcalGazette (Nr: 27894) on 3/4/2011, articles 45-51.
24 Publshed n theOcalGazette (Nr: 28351) on 12/7/2012, Articles 59-84.
25 See the Regulaton on the Examnaton of Assstant Reporter Canddate shp of the Consttutonal Court (Anayasa
MahkemesRaportör Yardımcısı AdaylığıGrşSınavı Yönetmelğ), publshed n theOcalGazette (Nr: 27940) on 21 May 2011
andtheRegulaton on the Tranng of AssstantReporter Judges Canddates of theConsttutonal Court (Anayasa Mahkemes
Raportör Yardımcısı AdaylarınınEğtm Hakkında Yönetmelk), publshed n theOcalGazette (Nr: 28286) on 8 May 2012.
20
e Individual Application to the Constitutional Court of Turkey
performed by the CC, although 45 personnel were needed, only 26 were deemed successful and
were oered positions in the CC as assistant reporters.
It is noteworthy that although assistant Reporter Judges are assigned to assist Reporter Judges in
judicial and administrative matters26, currently all of them are engaged in the individual application
process.
49 of 68 Reporter Judges are employed in the individual application system.
e consultants were told that Reporter Judges are selected according to dierent backgrounds.
Academics, judges and prosecutors from dierent levels are appointed as Reporter Judges. Since
the cases are allocated to judges pursuant to their expertise, the Court aims to employ Reporter
Judges from criminal, civil and administrative courts. In order to follow the ECtHR jurisprudence
all assistant Reporter Judges had to pass the foreign language test.
Finally, the number of the other personnel, which was previously123, was increased to 142.
e CC also employs a soware engineer and an analyst.
e third activity, which is in fact an ongoing process, relates to the training of the participants in
the individual application procedure, including the judges of the CC, Reporter Judges, assistant
Reporter Judges and other personnel of the CC.e administrative personnel at the CC were also
trained and a specic computer program for the individual application system was developed.
Furthermore, the CC was supported by the EU/CoE Joint Project that aimed to enhance the role
of the Supreme Judicial Authorities in respect of European Standards. e Project was amended to
include a specic component dedicated to support the introduction of the individual application
mechanism before the Turkish CC.
Also in the context of the above Joint Project, the complex range of activities organised to assist the
CC to prepare the system played an important role in ensuring its smooth start. e study visits to
the CC’s of Spain and Germany, as well the placements of ten Reporter Judges from the CC to the
ECtHR, allowed the CC to benet from a rich international experience via the intensive training
that was replicated at home institution at a later stage. Ten Reporter Judges formed the core group of
professionals who prepared the new Rules of the Court, the guidelines and application form to the
CC, in addition to serving as trainers of the junior sta of the CC engaged in running the individual
application system.
C
Before 23 September 2012, when the individual applications started to be received by the CC, an
intense phase of preparation was made by the CC. e experiences of other Constitutional Courts
and of the ECtHR were considered and also their drawbacks in the face of heavy workload were
analysed and solutions for similar problems were looked for.
26 Art. 27 (1) of the Law no. 6216.
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e Individual Application to the Constitutional Court of Turkey
III. A C
While “Examination for admissibility of individual applications is conducted by the Commissions”27,
Sections are the boards “authorized to render decisions on individual applications”28, which is ruling
on the merits29.
On the other hand, the CCL30attributes the CC General Assembly the competence to divide work
among Sections and provides31 that the President shall take the necessary measures to balance the
distribution of workload among the Sections32.
Upon registration, the cases are automatically and randomly assigned to a Commission within the
Sections33. ere is no division of work as to the area of expertise between the Commissions or
Sections; however specialist competence is assured with the participation of the Reporter Judges,
who give their advice on the admissibility of individual applications and dra the decisions in
accordance with their professional background (i.e. criminal, administrative or civil law).
C
e automatic assignment of cases guarantees that lesare not arbitrarily assigned to Sections and
Commissions but it is simply done by a random computer system that cannot be inuenced from
the outside. Random assignment of cases contributes to strengthen public trust in the impartiality
of the Court.
Current lack of specialisation of Commissions and /or Sections is understandable, since the CC
is still in the stage of setting its case law. Specialisation of Commissions and Sections would be an
advantage in the long run, once the case law will be established and fast proceedings will be set for
serial cases.
Art. 49.1 CCL prevents imbalances between the Sections.
• Specialisation of the Commissions and Sections should be considered in the long run.
III. R J
Reporter Judges are indeed the crucial actors of the individual application process. Currently, 68
Reporter Judges work in the CC, 49 of whom are dedicated to the individual application. ey take
part in all stages of individual application proceedings; from registration of the case to the draing
of the nal decision. ey are assisted by 26 assistant Reporter Judges who were employed aer the
individual application was introduced.12 Reporter Judges including one Chief Reporter Judge work
27 Article 48 (3) CCL.
28 Article 2(1)ç CCL.
29 Article 49 (1) CCL.
30 Article 21(2)d.
31 Article 49 (1).
32 Art. 49.1 CCL.
33 Rules of the Court, art.67(1).
22
e Individual Application to the Constitutional Court of Turkey
in each Section, 20 Reporter Judges in the Commissions, and 3 Reporter Judges at the Individual
Application Oce.
According to Article 37 of the Rules of the Court there shall be 4 Chief Reporter Judges, 3 of
which work in the individual application system. One Chief Reporter Judge is to be assigned to the
Commissions, one to the Sections and another one to the Research and Case law Department.
Reporter Judges are not assigned to a specic Commission; rather, they work in a pool and cases
are assigned to them according to their expertise by the Chief Reporter Judges who coordinate the
work of the Commissions.
C
e Reporter Judges play a fundamental role in the CC. Similar to ECtHR – with reference to the
registry lawyers- the CC signicantly relies on their work. Reporter Judges are highly qualied,
have professional experiences as judges, prosecutors or professors with diverse backgrounds, which
enable them to deal with all matters brought before the CC.
Each case is not automatically assigned to a Reporter Judge, but rather the Chief Reporter Judge
assigns cases according to the expertise of the Reporter Judges. However, the nal decision always
rests with the elected Members of the CC. Long serving sta allows for the construction of an
institutional memory conducive to greater consistency and continuity of the court’s case-law.
Considering the huge amount of workload connected with the individual application, the important
role played by Reporter Judges as to the nalization of individual application and the limited
number of CC Members -who are entrusted with further competences- proper mechanisms should
be introduced to ensure that the nal decision not only formally but actually rests with the elected
Members of the CC.
III. . C, S, G A
While the Commissions are solely responsible for decisions of admissibility of individual application,
the Sections rule on merits. Sections decide on inadmissibility in some exceptional cases. However,
so far almost all inadmissibility decisions have been rendered by the Sections in order to establish
coherent case-law concerning inadmissibility criteria.
ere are six Commissions —three in each Section— composed of 2 Members each. e two
Sections are composed of 7 Members and chaired by a Deputy President. During each calendar year,
the Section Members rotate within the three Commissions of their Section. e Sections convene
with the participation of ve Members (four Member plus 1 President)34.
e GA hears cases and applications concerning political parties, actions for annulment and
objections and trials where it acts as the Grand Tribunal. It convenes with the participation of at
least twelve Members, presided over by the President or a Deputy President35. Under Article 25 of
the Rules of the Court, the GA is empowered to maintain case-law coherence between judgments
of the Sections.
34 Art. 149 of the Constitution, Art. 22.1 CCL.
35 Art. 149 of the Constitution.
23
e Individual Application to the Constitutional Court of Turkey
e consultants were told that during the initial period of establishing the CC’s case-law on
individual application the cases are usually referred to the GA for a decision on the merits.
Article 72 and 57 of the Rules of the Court state that Sections and GA take their decisions by simple
majority.
C
e division of cases between Commissions, Sections and GA does not raise any problematic issues.
One might consider a specialisation of the Commissions for an even more eective workow.
However, there is too little information on the nature of the cases, which would allow the expert to
assess whether such a specialisation would optimise the working methodology of the CC.
In practice, the Commissions refrain from deciding on the admissibility of individual applications.
In other words, at this early stage of the individual application process, the Sections decide on both
admissibility and merits. is is justied by the Members for the reason that the Court is still in
the stage of establishing its case-law; not only relating to the merits but also to the admissibility
standards.
• In the future, aer a period for the establishment of the case law, the specialisation of
the Commissions should be taken into consideration.
III. E
According to Article 49(3) of the CCL, the CC “may carry all types of examinations and investigations
to nd out whether a violation has occurred … Information, documents and evidence deemed necessary
are requested from the concerned parties.”
Article 49(3) of the CCL complements Article 47(3), which sets on the appellant the burden of
providing “substantiating evidence”.
If parties fail to provide evidence, the Court shall draw necessary consequences from this failure
and decide accordingly36.
C
Providing evidence by the applicant and ex-ocio access to related information, documents and
evidence by the CC is in line with rules governing other Constitutional Courts and the ECtHR.
However, article 26.2 CCL provides for the taking of evidence, such as the hearing of witnesses, by
the Reporter Judges.
In practice this function does not relate to the examination of witnesses but the gathering of general
information necessary in the preparation of a case for trial.
However, it should be noted that collection of any evidence should be carried out by the Members of
36 Rules of the Court Article 70 (3).
24
e Individual Application to the Constitutional Court of Turkey
the Court themselves, since it requires “immediateness” (direct contact with parties and witnesses)37.
• Collection of any evidence should be carried out by the Members of the Court.
III. D D
Dra decisions are prepared by Reporter Judges. eir individual dras are submitted to the
consideration of other Reporter Judges specialized in the same eld of law and of the Research and
case-law unit. is tends to assure the consistency of the CC’s case-law.
In camera, cases are reported to the Sections by the relevant Reporter Judge in detail. en the
Section’s President gives oor to the Members. Aer the nalisation of the deliberations, Members
cast their vote starting from the most junior Member. en the dra is discussed by Members. If
Members propose to make amendments to the dra, these proposals are voted separately.
C
e consultants consider that the current system heavily relies on Reporter Judges. Members of the
Court should take more responsibility in decisions draing, at least for leading cases.
• Members of the Court should take more responsibility in decisions draing, at least
for leading cases.
III. R C-L U
e Chief Reporter Judge of the Research and Case-law Unit provided the consultants with the
following information: the Unit comprises seven sta members, among them one Chief Reporter
Judge, three Reporter Judges with a judiciary background and three Reporter Judges with an
academic background.
e tasks and duties of the Unit are the following:
o to review dra decisions from the Sections and the GA and comment on them within seven
days;
o to prepare research reports for the Members and the Reporter Judges;
o to supervise the coherence of the CC’s case-law;
o to monitor judgments of international Human Rights Courts;
o to supervise the coherence of the legal language and format of the decisions.
e comments and opinions on dra decisions are prepared by one sta member according to his
37 See Venice Commission Opinion.
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e Individual Application to the Constitutional Court of Turkey
or her expertise and are discussed within the Unit before being nalised. If there is established case-
law available, the Unit will not prepare an opinion on the dra decision.
e Reporter Judge in charge of the case is not bound by the opinions of the Unit and is free to
decide whether to adopt it or not. e Reporter Judge might add a cover letter to the dra decision,
explaining why s/he is not following the opinion. e report regarding the merits is also forwarded
to the Members of the CC. Furthermore, the Unit is represented at the deliberations through its
Chief Reporter Judge. e Unit updates intranet documents regarding legal terms, grammar, format,
editing.
Research reports can be requested by the CC President or the Deputy Presidents. Until January
2014, 20 research reports have been prepared. 10 of them were compiled in a book. While the Unit
is not systematically following the case-law of other Constitutional Courts in Europe, it does review
those courts’ case-law when preparing research reports.
e Unit further prepares a case-law bulletin containing summaries of the CC decisions.
Currently, a case-law guide on certain rights is being prepared.
Finally, the Unit provides the CC with summaries of recent ECtHR judgments and decisions which
could be of importance for pending cases38. ese notes are currently for internal use only. In the
future, this information might also be disseminated to the public.
e Unit is also responsible for the publication of scientic works, including workshop recordings
which were held in 2012-2013.
C
e Research and Case-law Unit looks like it is modelled aer the unit with the same name at the
ECtHR; it could serve as a model for other Constitutional Courts.
e only concern relates to the limited number of sta members and their training.
e number of Reporter Judges should be increased to allow the Unit to properly deal with its many
and vital tasks, although in the future the need for reports and opinions will most likely decrease as
the case-law will be stabilised.
e sta members have not received any special training about summarising the judgments.
However, the Unit follows the criteria published in this respect by the Venice Commission.
• e number of Reporter Judges working in the Research and Case-law Unit should be
increased.
• Reporter Judges should receive dedicated training on how to summarize court’s deci-
sions.
• e Research and Case-Law Unit should share its best practices with other Constitu-
tional Courts where individual application is in place.
38 As regards information on ECtHR decisions and judgments, the experts were informed that all decisions and judgments of the
Strasbourg court against Turkey are published also in Turkish on the HUDOC website of the ECtHR. Some leading judgments
of the ECtHR are also translated in to Turkish language.
26
e Individual Application to the Constitutional Court of Turkey
IV. I A
e formal requirements for an individual application are laid down in Art. 45 - 47 CCL. Art. 48.2
CCL provides for further reasons for inadmissibility.
IV. I R T L
CC Jurisdiction ratione temporis over individual application covers only the period aer 23 September
2012; as indicated in article 74(8) of the Law nr. 6216: “e Court deals with individual applications
led against nal proceedings and decisions which are nalized aer the date 23/9/2012”39.
Applications concerning the decisions nalised before 23 September 2012 but executed aer that
date were found as inadmissible by the Court.
ere are not any provisions in the CCL relating to ratione loci inadmissibility of individual
application.
C
At the early stages of the individual application, inadmissibility ratione temporis was applied
frequently. In progress of time, by the increasing awareness of the public and following the directive
decisions of the CC, inadmissibility decisions on that ground gradually decreased.
In the ECHR system, compatibility with ratione loci requires the alleged violation of the Convention
to have taken place within the jurisdiction of the respondent State or in territory eectively controlled
by it40. As to the individual application, the ECtHR case law could be relevant for complaints related
to violations of fundamental rights placed in Northern Cyprus.41
IV. T L F F T C
e applicants have to submit their applications within 30 days aer the exhaustion of ordinary
remedies42. e time begins from the date of notication of the nal decision. If there is no ordinary
remedy to be exhausted, the 30-day-limit starts from the date when the party has been informed of
the violation. An additional time of 15 days can be granted in case of an acceptable and authenticated
excuse43.
As regards the date of notication of the nal decision, the consultants were reported that the CC
relies on the submissions of the applicant unless the lower court les prove otherwise.
39 Cf. Doğru, Embryonic period of individual petition to the Constitutional Court: September 2012 - September 2013, p.10.
40 Problems concerning the jurisdiction of the ratione loci should be solved with the application of the criteria established by the
ECtHR. Its Judgments Drozd and Janousek v. France and Spain, 26 June 1992, and Loizidouv. Turkey (preliminary objections), 23
March 1995, are of the utmost importance. In these resolutions the ECtHR recalls that by Article 1 (1) ECHR, the contracting
States assume the responsibility of securing to everyone “within their jurisdiction” the rights and freedoms proclaimed in the
Convention”. is interpretation can be considered a European standard and has been applied by national courts (e.g., Judgment
of the Constitutional Court of Spain 21/1997, 10 February; in this case the Court had to rule an “amparo appeal” lodged as a
result of the apprehension, by the Spanish Navy, of a Greek ship that operated under Panamanian ag; the CC rejected the appeal
into the merit because the apprehension took place with judicial authorisation).
41 See, forexample, Case of Cyprus v. Turkey, Applcaton no. 25781/94, judgment of 10 May 2001, §§ 75-81.
42 Art.47 §5 1st phrase CCL.
43 Art. 47 (5) of the Law nr.6216 and art.64 of the Rules.
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e Individual Application to the Constitutional Court of Turkey
e lawyers from the Union of Turkish Bar Associations (henceforth: UTBA) expressed some
uncertainties as to when the 30 days limit for lodging an individual application starts to run. is
problem arises since -reportedly- sometimes a considerable lapse of time passes between the date of
the oral declaration of a court decision and the date when the applicant receives the written decision
with the reasoning.
In case the time limit is not observed, the application is rejected by the Chief Reporter of the
Commissions. Any applicant may object to this decision within the 7 day limit. e objection is
reviewed by the Commission and this decision shall be nal.
C
Compared to individual application proceedings dealt with by other Constitutional Courts (e.g.
the German Federal Constitutional Court) with similar provisions, the time limit appears to be
reasonable. is is especially true because - other than for example in Germany - an additional time
limit may be granted to submit missing documents.
However, the 30 days time limit seems to be too restrictive for parties who need to access legal aid
and for foreigners who do not speak Turkish language and need special assistance.
e 30 days should be counted from the date when parties have full access to the written decision
with the reasoning.
IV. E O R
Article 148 (3) of the Constitution states that in order to le an individual application, ordinary
legal remedies must be exhausted by the applicant. According to Art. 45.2 CCL all administrative
and judicial remedies must be exhausted44 before ling an individual application45.
C
ose provisions mirror Art. 35.1 ECHR as well as similar provisions in other European countries
(e.g., Spain and Germany) and tend to assure the subsidiarity of individual application remedies.
According to Reporters Judges, CC case law on exhaustion of domestic remedies, pursuant to which
nal courts’ decisions only can be challenged before the CC, complies with the case law of ECtHR.
For example, the CC has ruled that, in case of pre-trial detention, every decision of dismissal of
the detainee’s appeal against the decision of detention46, decision of continuation of detention47,
dismissal decision of request for release48, is nal and therefore subject to an admissibleindividual
application.
44 However, under Article 45 (3) of the CCL, the decisions which cannot be challenged before Turkish Courts cannot be brought
before the CC under IA (for instance decision of Supreme Electoral Board or some decisions of High Council of Judges and
Prosecutors, please see judgment of ECHR rendered in the case of Söyler v. Turkey, appl.no. 29411/07, 17 September 2013, please
also see Article).
45 Please see Doğru, Embryonic period of individual petition to the Constitutional Court: September 2012 - September 2013, pp. 4.
46 Art. 101 of the criminal procedural code.
47 Art. 108 of the criminal procedural code.
48 Art.101 and 104 of the criminal procedural code.
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e Individual Application to the Constitutional Court of Turkey
IV. M I F A
According to Articles 48(1) “the requirements laid down in Articles 45 to 47 must be fullled for
admissibility of individual applications”.
Pursuant to the second paragraph of article 48, “the Court may decide inadmissibility of applications
which do not bear signicance for the enforcement and interpretation of the Constitution or for
the determination of the scope and limits of fundamental rights, applications which do not involve
signicant damage sustained by the applicant and applications which lack of explicit basis”.
C
ere is a substantial dierence between paragraphs (1) and (2) of Article 48 CCL: while according
to the former, the rejection of individual applications that do not full the requirements laid down
in Articles 45 to 47 is compulsory, the latter attributes (at least partially) a discretionary power to
the Court, which should make a prudential an consistent use thereof.
Pursuant to Article 48 (1) CCL, the causes for the rejection of the les have a strictly procedural
nature: lack of exhaustion of legal remedies or the time-limit exceeded. Some of the problems posed
by the interpretation of the provisions contained in Articles 45 to 47 CCL have been mentioned in
previous pages of this report49.
Article 48 (2) CCL involves instead an analysis by the CC of the merits of individual applications
and introduces substantive ltering criteria“, that are common to the ECtHR50 and some European
Constitutional Courts51.
is article mentions three causes of dismissal of applications: lack of explicit basis, applications that
do not bear special constitutional relevance and those which do not involve signicant damages.
Although the number of the decisions of the CC is limited at the moment, the Court has found a
number of applications inadmissible for lacking explicit basis.
e expression “lack of explicit basis” can be construed in two dierent ways. In a narrow
interpretation, it would be equal to lack of a provision in the Constitution securing the alleged
fundamental right or the lack of reasoning underpinning the petition. In a wider interpretation, it
would mean evident lack of infringement of the fundamental right, i.e. absence of violation.
e consultants have not (yet) received enough information on how the CC handles the
inadmissibility ground of “lack of sucient legal basis” to be able to express an informed assessment.
What can be said is that article 48 does not contain a criterion of inadmissibility that refers to the
applicants’ prospects to win the case and if the “lack of explicit basis” inadmissibility ground is
applied extensively, the risk exists the individual application is rendered ineective.
During the meetings, the consultants were told that the Reporter Judges, in assessing the ill-founded
claims, follow the criteria set by the ECtHR in its decisions.52
49 But we must bear in mind that some of the causes have to do with substantive questions, such as, who is entitled to certain
rights (public legal persons, aliens, etc.) or the scope of fundamental rights whose violation can be denounced in an individual
application.
50 e criterion of „manifestly ill-founded“complaints and the new criterion introduced by Protocol No. 14.
51 German and Spanish Constitutional Courts.
52 Reasonsforthsnadmssblty can be found n “Practcal Gude On AdmssbltyCrtera” of theECtHR, http://www.echr.coe.
29
e Individual Application to the Constitutional Court of Turkey
Some applications were found inadmissible for being manifestly ill-founded as the applicant had
ignored the rule that “in the individual application, judicial review shall not be made on matters
required to be taken into account during the process of legal remedies”. 53 Both the Reporter Judges and
Members of the CC complained that the CC is wrongly considered by many applicants as a court
of appeal.54
N
e CC interpretation of Article 48 (2) should be further investigated.
IV. O R I
Other reasons for inadmissibility include “lack of constitutional signicance” and “no signicant
disadvantage for the applicant” (Art. 48.2 CCL). e consultants were informed that, so far, there
have been no decisions based on the two criteria.
C
As there are no decisions yet, there is not sucient basis for an assessment55. e interpretation
established by the Constitutional Court of Spain in Judgment 155/200956could be of some use for
the CC.
V. W S.
e increase in applications will be one of the future biggest challenges for the CC.
V. /S.
e CC provided the expert with current statistics.
As of 20 January 2014 a total of 11,974 individual applications had been submitted to the CC: 342
in 2012, 9,897 in 2013 and 735 in 2014. A total of 4,138 cases had been disposed of; 7,836 were still
pending at the time of the rst visit. ey had been issued 909 administrative rejections, 2,710
inadmissibility decisions by the Commissions, 127 inadmissibility decisions by the Sections, 35
violation judgments and 2 non-violation judgments by the Sections. e Commissions referred 842
cases to the Sections.
e subjects of complaints predominantly relate to the right to a fair trial57 (10,454 cases at the time
of the rst visit). e right to property was concerned in 3,277 cases; the right to equal treatment in
2,838 cases; the right to liberty58 according to Art. 5 ECHR in 700 cases; the right to life in 523 cases;
nt/Documents/Admssblty_gude_ENG.pdf.
53 App. No 2013/2767, judgment of 2.10.2013 of Secton II.
54 SeeforexampleApp. Nr. 2012/1272, judgment of4/12/2013 of Secton I, paras. 77-78.
55 It would be very desirable that CC were extremely cautious in interpreting this provision, since it is a tough matter the
determination of “petty” violations of fundamental rights. e violation of a fundamental right involves always a signicant
damage, because it implies a violation of the highest law of the legal order.
56 Dated 25 June 2009.
57 Art. 6 of ECHR.
58 Art. 5 of ECHR.
30
e Individual Application to the Constitutional Court of Turkey
the right to freedom of religion and conscience in 132 cases; in 200 cases the prohibition of torture
and ill-treatment had been raised.
As regards the judgments establishing a violation, at the time of the rst visit 13 rulings related to the
length of detention, 12 the length of proceedings, 2 the right to life, 3 the right to access to court; 1
judgment had been adopted in each of the following elds: the presumption of innocence, the right
to a fair trial, the right to personal inviolability, the right to private life and the right to property.
C
Although the statistical data show that the CC has received a huge amount of individual applications
in the rst 16 months of implementation of this new remedy, one should not forget that expectations
were even worse.
On the other hand, it should be recalled that the number of applications dealt with ECtHR in 2013
concerning Turkey amounted to 9,19859; approximately a similar number of individual applications
lodged to the CC in 2013.
ough lower than feared, these gures show that the CC already faces a heavy workload. A further
increase in the inux of cases could pose a serious risk of disrupting not only the functioning of the
individual application system, but also the sound accomplishment of the other functions assigned
to the CC.
e workload related to the individual application system will be one of the main problems the CC
will face in the future. Keeping in mind that the Members not only have to deal with individual
application but also with applications for abstract and concrete norm review60, the danger of huge
backlog exists .
Since the Members are reasonably capable of handling a limited number of cases, increasing the
number of Reporter Judges would not be the solution to the problem of workload. It is indeed
extremely important that the actual decision of the case rests with the CC Members. It must be
then ensured that the Members have enough time to study the case les and are in the condition to
render a well informed decision.
To this respect, the eorts should be directed to reducing, or at least preventing from increasing,
the inux of cases and to improving the courts practices according the best standards, to enhance
the CC eectiveness.
e most problematic areas concern the length of proceedings as well as the length of detention.
Both issues must nd an answer outside the CC. e Parliament should consider the opportunity of
establishing remedies inside the ordinary judicial procedures to denounce the delays and to speed
up the long proceedings.
A preventive approach would be more ecient than ex p ost facto reparation (monetary compensation)
of the violation.
59 Press Country Prole edited by the ECtHR; last updated: June 2014.
60 In 2010 the CC had to deal with 16 abstract and 105 concrete norm review cases, in 2011 with 48 abstract and 102 concrete norm
review cases, seehttp://www.anayasa.gov.tr/en/Statistics/.
31
e Individual Application to the Constitutional Court of Turkey
• e nal decision not only formally but actually should rest with the elected Members
of the CC.
• Eective remedies inside the ordinary judicial procedures should be established to de-
nounce the delays and to speed up the long proceedings.
V. W
Upon registration, the case is automatically and randomly assigned to a Section and to one of
the Commissions. Before being forwarded to the Commission the formal requirements of the
individual application are examined by the Reporter Judges in the Individual Application Oce.
Missing documents might be requested; a time-limit of 15 days applies61.
If the initial time-limit of 30 days is not observed, or the application does not meet the procedural
requirements prescribed by the Rules of the Court, or the missing documents are not completed
in the given time, the case is disposed of by way of an “administrative rejection” taken by the
Chief Reporter of the Commissions. is rejection can be objected within seven days. One of the
Commissions rules on the appeal.
Aer the documents have been completed, the le is physically and electronically sent to the
Commission that the case has been assigned to. e case le is electronically attached, if available
in UYAP.
e Chief Reporter Judge assigns the case to a Reporter Judge. e le is sent to the Reporter Judge
for the preliminary examination of the admissibility.
If the application is deemed to be inadmissible, the Reporter Judge dras the inadmissibility
decision according to a specic template. en the dra inadmissibility decision is rst analysed by
an experienced Reporter Judge and then by the Chief Reporter Judge, before the le is sent to the
relevant Commission (and, for information, to the Section). In the Commission the dra decision is
rst examined by its junior Member followed by the senior Member. If they both agree, the decision
can be nalized. If the Members do not agree the le is sent to the Section.
If the application is deemed to be admissible, either an admissibility decision is prepared or it is
decided to examine the admissibility together with the merits. In this rst period of implementation
of the individual application, this latter method has been used to a great extent (approximately 3000
applications), to allow the Sections to establish the relevant case-law about admissibility of cases.
e application is then communicated to the Ministry of Justice for it to send observations within
30 days. e Ministry can request an extension of another 30 days. e Ministry’s observations are
sent to the applicant for possible further comments within 15 days.
e application is then ready for the decision if no documents are missing.
e case is generally examined on the basis of the documents contained in the le, but the Section
61 Article 66 of the Rules of Court.
32
e Individual Application to the Constitutional Court of Turkey
can also hold oral hearings62. It may also request further documents from the relevant authorities.
e dra decision on the merits is prepared by the Reporter Judge and reviewed by the Chief
Reporter Judge. It is then forwarded to the Research and Case-law Unit for comments within seven
days. ese comments are attached to the le and submitted to the Reporter Judge who might
consider changing the dra according to the comments.
e nalized dra is presented to the Section or the GA for deliberation and decision. It is then put
on the agenda for a Section/GA meeting. e agenda, which contains 10 to 15 cases, is prepared by
the Deputy President together with the Chief Reporter Judge.
Deliberations take place every 15 days.
e Section/GA deliberates in the presence of the Reporter Judge and the Chief Reporter Judge for
the Section, the Commissions and the Research and case-law unit.
C
e workow within the CC seems to be organized in an extremely ecient way. It will become
even more ecient once a body of case-law, especially with regard to inadmissibility criteria, is
established.
V. P P
ere is in principle no priority system in the examination of applications; rst come rst served is
adopted under Article 68 of the Rules of the Court. However according to Article 73 (2) of the same
Rules of the Court, Commissions shall give priority to cases where “a serious threat to the right to
life or bodily integrity” exists.
e consultants were reported that the Court tends to give priority to cases according to the
importance and urgency of the applications. Right to life as well as complaints about the length of
detention have a high priority.
C
e CC practice to prioritise cases according to their importance and urgency has to be appreciated.
Establishing leading cases, especially with regard to long detention and length and of proceedings
cases will enable Commissions and Sections to deal eciently with serial/clone cases.
V. P P C R
e Research and Case law Unit is responsible for proposing suggestions to prevent conicting
decisions63.
In addition, the President can convene the GA when conicting rulings arise or when there is such
62 Art. 49 (4) of CCL.No hearings have been held up to date.
63 Rules of Court, art. 3.
33
e Individual Application to the Constitutional Court of Turkey
a possibility64.
e deputy President may also convene the Sections for the same reason65.
e GA has the last word on conicting rulings; it can unite the case-law66.
C
e consultants were informed by Reporter Judges that the Research and Case-law Unit supervises
the case-law and indicates whether a dra decision/judgment might be in conict with existing
case-law of CC and of ECtHR.
Furthermore, the dra decision prepared by the Reporter Judge is reviewed by the Chief Reporter
Judge, a more senior Reporter Judge with more experience and possibly a more extensive knowledge
of the case-law.
Considering the whole process, it may be accepted that the mechanism allows sucient supervision
to prevent conicting rulings among the Sections and previous Court’s rulings.
V.P C
Article 75 of the Rules of the Court states that when Sections determine that an application stems
from a structural problem and this structural problem causes new applications, pilot judgment
procedure might be initiated. When a pilot judgment is rendered, similar problems should be
resolved by the relevant administration in line with the pilot judgment. As yet no pilot judgements
have been decided.
V. F S
Neither the CCL nor the Internal Statute provides for a formal procedure regarding friendly
settlements (as, for example, Art. 39 ECHR).
C
In view of the heavy workload of the CC which will most likely increase in the future, a formal
procedure regarding friendly settlements might help to lessen that burden. However, the introduction
of such a procedure should not be considered until there is a body of well established case-law.
en, a friendly settlement procedure might be useful, for example, to resolve repetitive/clone cases.
• Once there is a body of well established case-law, the CC might consider introducing
a friendly settlement procedure.
64 Rules of Court, art.10 (1.1).
65 Rules of Court, art.11(1g).
66 Rules of Court, art.25 (1d).
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e Individual Application to the Constitutional Court of Turkey
V. E R R I C
Similar to the statistics in the ECtHR, violations of the right to a fair trial (especially excessive length
of court proceedings) on the one hand and right to property issues on the other are prominent
problems in Turkey. Since there is no other eective remedy67 in this respect besides the individual
application to the CC, this consequently results in a large number of such applications to the CC.
C
To reduce the inux of cases to the CC, a remedy to speed up long proceeding pending before
ordinary courts should be introduced which must be exhausted by the ordinary courts before a
complaint to the CC68 can be led.
Furthermore ordinary courts should introduce organizational measures to monitor and give priority
to old cases.
• A remedy to speed up long proceedings pending before ordinary courts should be in-
troduced to reduce the inux of cases to the CC.
• Organizational measures to monitor and give priority to old cases in ordinary courts
should be introduced.
VI. R-E
VI. A V
At the end of the examination of an individual application, the CC decides whether the fundamental
rights and freedoms of the applicant have been violated or not69.If the CC nds a violation, it may
also decide what should be done in order to redress the violation and its consequences70.
When the violation has been caused by a court decision, the CC sends the le to the competent
court for retrial in order to restore the fundamental rights of the applicant. However, if the CC
foresees that no redress would come from re-trial, then it may decide pecuniary compensation for
the applicant or it may ask the applicant to le a case before the competent rst-instance court to
seek compensation for the damages s/he suered71.
67 Aer the EctHR Case of Ümmühan Kaplan v. Turkey, the Law nr. 6384 publshed n the Ocal Gazette (Nr:
28533) on 19/1/2013establıshed a commsson (Human Rghts Compensaton Commsson) as a domestc body
recevngapplcatonsemanatngfromlongcourtproceedngs, non-executonorpartlyexecutonorlateexecuton of
courtdecsonsoccurredbefore 23 September 2012.
68 In this respect the situation is similar to the situation in Germany at the time of the ECtHR’s pilot judgment Rumpf v. Germany,
ECtHR, judgment of 2 September 2010, no. 46344/06, and before the introduction of a new remedy in December 2011.
69 Arts.49(6) and 50 (1) of CCL.
70 Art. 50 (1) of CCL.
71 Art. 50 (2) of CCL.
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C
ere are no problematic issues with regard to the ascertainment of a violation.
VI. I M
e Sections, not the Commissions, have the competency to deal with interim measures. According
to Art. 49.5 CCL, the Sections may ex ocio or upon request decide on measures deemed necessary
for the protection of fundamental rights. e Rules of the Court limit interim measures to the
protection of “physical and spiritual integrity” of the applicant72 , which was explained by the Reporter
Judges in the meetings as “threats to right to life and physical integrity”.Such measures can only be
in place for a maximum period of six months. If the decision on the merits is not rendered within
this time limit, the decision on interim measures is revoked ipso facto.
Until January 2014 there have been ve requests, of which three were rejected and one granted.
e h one had been discussed by the Members on 20 January 2014 and it was decided that more
information should be obtained.
e only one request granted concerned the deportation of an Algerian national when the UNHCR
case was still pending and the CC decided to order the suspension of the deportation.
C
It is too early to make a well founded assessment on the CC practice concerning interim measures.
Also, the consultants have not received enough information on the details of the three requests that
were rejected.
However, from the information the consultants received it seems that the CC might apply standards
similar to those of the ECtHR:“Although it does receive a number of requests for interim measures, in
practice the Court applies Rule 39 only if there is an imminent risk of irreparable damage. While there
is no specic provision in the Convention concerning the domains in which Rule 39 will apply, requests
for its application usually concern the right to life (Article 2), the right not to be subjected to torture or
inhuman treatment (Article 3) and, exceptionally, the right to respect for private and family life (Article
8) (..). e vast majority of cases in which interim measures have been indicated concern deportation
and extradition proceedings”.73
Although it is early to assess the experience of the CC concerning interim measures, nevertheless
we are already in time to identify some problems.
Firstly, it should be clear that even if the Court cannot annul a judicial decision on the merits, the
CC can suspend its application. is is not a matter of validity but of avoiding irreparable damages.
In some cases —e.g. short incarcerations— the denial of the interim measures of the suspension of
the unlawful decision makes the eventual reparation of the violation illusory.
Secondly, the automatic time limit of six months for revocation of interim measures cannot be
deemed fair. In dicult cases study and deliberation takes a long time, even longer in courts
overwhelmed by workload. It seems advisable to make it necessary a renewal of the interim measure
aer the expiration of the six months-term.
72 Art. 73 (1) of the Rules of the Court.
73 ECtHR [GC], judgment of 4 February 2005, Mamatkulov and Askarov v. Turkey, nos.46827/99 and 46951/99, § 104.
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e Individual Application to the Constitutional Court of Turkey
• e CC should be empowered to decide to suspend, when necessary, the application
of a judicial decision in the context of interim measures.
• e automatic expiration of interim measures aer six months should be reconsid-
ered.
VI. C D
As said above, the CC may decide compensation for the applicant or it may ask the applicant to le
a case before the competent rst-instance court to seek compensation for the damages the applicant
suered when re-trial would not allow reparation74.
e consultants were told that compensation can only be awarded if it is requested by the applicant.
However, it is not clear whether the applicant needs to ask for a specic amount of compensation for
his/her/its material and non material losses with relevant substantiating documents.
As regards non-pecuniary damages, these are in principle based on the “pain and suering” of the
applicant; the CC exercises discretion in this respect. It has developed a “scale” for non-pecuniary
damages (including long duration of trial), comparable to that which is used by the Registry of the
ECtHR.75
e consultants were also told that when compensation requires a technical domestic law assessment,
the Court might prefer to send the le to the Court that rendered the original decision.
C
ere is too little information on the case-law regarding compensation to make a well founded
assessment thereof.
Some Members of the CC stressed that awarding compensation, which is not common in other
constitutional courts, may amount to an increase of individual applications, whereas some Members,
however, deem compensation decisions necessary.
On the other hand, if the CC asks the applicant to le a case before the competent rst-instance
court to seek compensation for the damages the applicant suered, bearing in mind the excessive
length phenomenon in Turkey, reparation of an applicant who received a favourable ruling from the
CC may take years76. erefore such rulings must be closely monitored by the CC and a time limit
should be set out as to the duration of such a second set of compensation proceedings.
74 Art. 50 (2) of CCL.
75 is “scale” used by the Registry in Strasbourg is not public.
76 Please also see judgment of the ECHR in the case of De Wilde, Ooms and Versyp (Vagrancy) v. Belgium, appl. nos. 2832/66;
2835/66;2899/66, 10 March 1972.
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• If the CC asks the applicant to le a case before the competent rst-instance court to seek
compensation for the damages the applicant suered, this rulings should be closely moni-
tored by the CC and a time limit should be set out as to the duration of the compensation
proceedings.
VI. A O U L A R
Article 45 (3) of the CCL states that legislative acts and regulations cannot be directly subject to
individual application.
As the Venice Commission noted in its Opinion No. 612/2011 on the CCL, Article 49.6 of the dra
Law had expressly provided for the annulment of legal provisions by the CC in individual application
proceedings. Unfortunately, this provision was not incorporated into the CCL as adopted.
e Constitution of Turkey contains a general rule which allows the CC to annul a law. is is article
150 of the Constitution that further provides that “no claim of unconstitutionality shall be made with
regard to the same legal provision until ten years elapse aer the publication in the Ocial Gazette of
the decision of the Constitutional Court dismissing the application on its merits.”
During the visit to the CC the consultants received somewhat inconsistent information regarding
the question of whether the CC has the power to annul the provision leading to a violation of
a fundamental right, stemming from an individual application. e Reporter Judges conned
themselves to declare the dierence between the dra law and the one currently in eect, which does
not formally empower the CC to annul laws and regulations in the context of individual application.
It seems clear in view of the legislative history that the Sections do not have the competence to annul
a law when delivering a violation judgment in individual application proceedings. If Sections are
considered to be “courts” within the meaning of Art. 40 CCL, this will allow referring the case to the
GA for the annulment, according to article 150 of the Constitution.
However, so far no cases have been referred to the GA for annulling the underlying law.
C
e lack of an express provision that allows CC to declare null and void the underlying legal
regulation in individual application is unfortunate.77e “detour” suggested by the Members might
be a feasible way to try to avoid situations in which the CC nds a violation but cannot eectively
remedy that violation because it stems from a, formally valid, legal provision. However, there is not
yet CC case law establishing that the Sections of the CC fall under the scope of Article 150 (1) of the
Constitution.
It has then to be mentioned the further problem related to the time limit as spelled out in Art.150
of the Constitution78, as it can be exemplied as follows: in January 2014, in the context of an
individual application, the CC ruled that preventing women from using only their maiden name
77 See also Opinion No. 612/2011, p. 16.
78 „No claim of unconstitutionality shall be made with regard to the same legal provision until ten years elapse aer publication in
the Ocial Gazette of the decision of the Constitutional Court dismissing the application on its merits.”
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e Individual Application to the Constitutional Court of Turkey
aer marriage constituted a violation of Art. 17 of the Constitution79. However, as a reporter judge
explained, objection proceedings could not be instituted for the annulment of the relevant legal
provision, because the CC had formerly found the relevant law to comply with the Constitution and
the 10-year period had not yet expired. us, unless and until the necessary amendments in the law
are passed by the legislator, the judgment will not remedy the situation: the lower courts are bound
by the still valid law.
e CC should be formally empowered by the law to annul legal provisions leading to a viola-
tion of fundamental rights.
VII. P C C’ R
•
According to Art. 153 of the Constitution, decisions of the CC “shall be published immediately in
the Ocial Gazette, and shall be binding on the legislative, executive, and judicial organs, on the
administrative authorities, and on persons and corporate bodies.” From the context it follows that this
only applies to rulings nding a violation.
Article 81(4) of the Rules of the Court indicates that all decisions of the Sections and those of
the Commissions which are of principal importance for the admissibility process of individual
application are published in the ocial web site of the CC. In addition, paragraph 5 stipulates that
some decisions of the Sections may also be published in the Ocial Gazette. e President of the
Section may decide publication of a pilot decision or decisions which are of special importance for
setting the jurisprudence of the Section.
So far, all decisions of the Sections have been published in the Ocial Gazette since they were the
rst and guiding decisions.
Pursuant to Art. 50.3 CCL all judgments of the Sections on the merits are published on the website.
According to information given by the Reporter Judges, all rulings including inadmissibility
decisions, are currently published on the CC’s website.
• C
e publication of all decisions and judgments on the CC’s website makes its case-law transparent
and accessible to all potential applicants and the national and international legal community.
e CC should further consider the establishment of a press speaker that is responsible for editing
press releases on the Court’s ocial website that pertain to important rulings. Contact with the
press via a press speaker assures understandable news coverage on the Court’s latest rulings and the
spreading of the constitutional case-law to a broad public. It also minimizes the risk that the Court‘s
rulings will be misunderstood.
79 Already on 16 November 2004 the ECtHR had delivered a similar judgment in the case of ÜnalTekeli v. Turkey, no. 29865/96; see
also ECtHR, judgment of 3 September2013, TuncerGüneş v. Turkey, no. 26268/08.
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• CC should establish a press speaker.
VII. T S S CC R
F
Lawyers reported their diculty to deal with the search system of the CC which is an indispensable
tool for accessing the CC case law.
At the time of the three visits, systematic researches on the CC’s website could be very time-
consuming, since the search elds for rulings referred only to the application number, the date of
the decision, the date of its publication in the Ocial Gazette and the number therein. It was also
possible to perform a free text search but the search results were not weighed by relevance.
Aer the third visit, the search engine of CC’s rulings on the Court’s ocial website was updated in
order to allow a free text search weighed by relevance.
VIII. E C C’ D.
VIII. R- C
F
If the violation of the applicant’s fundamental rights stems from a court’s decision, the CC does
not have the competence to quash the decision of the court in question. However, as pointed out
above80, the CC may send the le back to the “concerned court” to reopen the trial81.
It seems that under art. 79 of the Rules of the Court, the CC sends always the case back to the rst
instance court.
If no legal interest is seen with the trial’s renewal, monetary compensation is granted.
With reference to length of proceedings cases the CC, besides awarding compensation, indicates the
violation to the relevant court.
As regards the attitude of Turkish Judges about re–retrial following a CC judgment, it is jeopardised,
since the uncertainties implied by the present legal framework stir up dissensions among judges.
First instance judges from the Istanbul courthouse said that they consider the CC rulings binding
and they will retry the cases accordingly and adopt the judicial decisions necessary to repair the
violation of the fundamental right. is attitude is proven by the practice. Following a very recent
decision of the CC about illegal pre-trial detention, M. İlker Başbuğ has been released by the
competent court.
e attitude of judges of higher courts is instead dierent. All the members and reporter-judges who
attended the meeting held at the Court of Cassation (henceforth: CoC) reported that the individual
application system risks to enshrine a new appeal before the CC, because of the CC power to “renew
80 See also Art. 50.2 CCL.
81 CCL, art.50/1 and 50/2.Rules of Courts, art.79/1-a.
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the judicial procedure so that the violation and its results will be cleared up” (art. 50.2 CCL). ey
also expressed the opinion that the only way the individual application system was not to become
a further appeal is that the CC limits itself to declare the violation, without whatsoever removing
–explicitly or implicitly- the concerned court decision which must be deemed nal. Moreover one
of the members of the CoC armed that this restrictive reading of the individual application system
nds support in the last part of art. 49.6 CCL, according to which “e sections may not examine
issues that should be dealt with through legal remedies”.
e consultants were told by CoC members that their interpretation about some sensitive legal
issues (i.e. calculation of pre-trial detention, use of maiden name aer getting married) diverges
from that established in the CC’s case law and that CoC will keep on solving relevant les according
to the former interpretation since it derives directly from the law that continues to be valid even
though a CC`s decision on violation is made. All judges and courts are required to align themselves
with the legal provisions in accordance with rule of law, human rights, Article 90 of the Constitution
and judgments of the Constitutional Court.
e consultants acknowledged further dissensions among the members of the Court of Cassation
on whether the case should be remitted to the Court of Cassation or to the rst instance court for
retrial; the majority of members said that even in the case that violation stems from one of CoC
decisions, retrial must be done by the court of rst instance; only one judge said that it would be
better to remit the case to the CoC that would decide if the decision of the court of rst instance is
to be reversed or not; others spoke in favour of retrial to be done by the court that is responsible for
the violation, regardless if it be the CoC or the court of rst instance.
All members were uncertain whether the CoC could decide in cases, where the CC had found a
violation stemming from a court decision and had sent the case back to the court of rst instance
for re-trial, if one party lodges an appeal against the new decision issued by this court. ey stated
that the CoC’s decision on the appeal against the initial decision issued by the court of rst instance
would be nal: since the CC has no authority to reverse court decisions, causa iudicata might
constitute an obstacle for the CoC to consider an appeal lodged against the new decision issued by
the court of rst instance.
e members of the Military Court of Cassation accepted the authority of the CC to send the case
back to the court of rst instance, when it nds a violation of a fundamental right, yet they opposed
that CC could remit cases to high courts, as this would result in the CC as being an additional court
of appeals superior to the other high courts and this superiority is not envisaged by the Constitution.
Similar problems were found at the High Administrative Court. e members of this court reported
that so far three court’s decisions were successfully challenged by individual applications. Aer the
cases were sent back by the CC to the High Military Administrative Court for retrial, the proceedings
were reopened. Yet, the 1st Chamber of the High Military Administrative Court, which is competent
for two cases, claimed that Art.50 §2 of CCL is unconstitutional, suspended the proceedings and
applied to the CC for a declaration of unconstitutionality. According to the members of this Chamber,
the original judgement is nal and still in force and this constitutes an obstacle for retrial, because
the CC does not enjoy the authority to reverse decisions. Furthermore, these members believe that
even the authority of the CC to send cases back to other courts for retrial as laid down in Art.50 § 2
CCL determines an improper interference by the CC into the competences of specialised courts and
makes the CC superior to the other Turkish high courts, although the Turkish Constitution does
not lay down a hierarchy between the Turkish high courts. e members of the 1st Chamber further
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reported that shortly before the mission they just learned that one of the applications to the CC had
been dismissed on procedural grounds, although the decisions had not yet been notied so far.
C
e fact that the CC does not enjoy the power to quash the courts’ judgments, the violations of
fundamental rights stems from is unfortunate. Quashing contesting courts’ decisions by the CC
would provide a more eective protection to the victims of a violation and would erase every
uncertainty about the interpretation of the legal framework by higher courts.
e legislator should then clarify the legal framework by explicitly giving the CC the authority to
quash court decision and to refer the matter to the court which is responsible for the violation.
Until this issue will be legally claried, the risk exists that re-trial of cases will not be enforced.
Although lower courts acknowledge that they have to do the necessary in obedience to the CC
decisions, the attitude of higher courts is dierent because they consider that the case has been
already set by a nal decision and, furthermore, that they cannot modify their legal interpretation
until the unconstitutional legal provision is removed.
Moreover, the legal reason why the “concerned court”, the case is referred to by the CC for retrial, is
to be always the rst instance court is not clear. e CC should be allowed to refer the case to the last
instance ordinary court, if the unconstitutionality lies only in the unconstitutional interpretation of
the law by that court and when there is no need to gather and examine further evidence. e CC
practice to send the case back to the rst instance court, irrespective of the -higher or lower - courts’
decision the violation of the fundamental right stems from, further implies the risk of lengthy trial.
• e CC should be empowered to formally quash the decisions of lower courts.
• If the violation of fundamental rights occurred only at the level of a high court, the
case should be returned to that court, not to the rst instance court.
VIII. B F O C C’ R
e decisions of the CC are binding over legislative, executive and judicial organs, administrative
authorities and persons and corporate bodies, as stated in Art. 153 of the Constitution. is
provision does not exclude the decisions emanating from the individual applications, too. However,
whether the individual application decisions of the CC are binding only inter partes or they have to
be complied with in all similar cases is a matter of discussion.
First instance judges and prosecutors said that, even if the CC’s decision about individual application
has direct eects only in the individual case, they would take into consideration the principle
established by the CC in their own decision-making about similar cases.
Civil judges explicitly remarked that the CC rulings are denitely binding in similar cases.
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e Individual Application to the Constitutional Court of Turkey
However criminal judges also stated that the principles established by the CC82 may be closely
referred to the specic characteristics of the individual case and that they would deviate from the
CC’s ruling when they deem it necessary.
e problem could particularly arise when the CC, in the context of an individual application,
ascertains a violation of fundamental rights that derives from the legislation. In such a situation,
judges and prosecutors are bound by the enacted legislation in so far as it is not annulled, abolished
or amended.
e opinions of the high courts’ members on the question of the binding force of the CC’s rulings
in similar cases have shown to be widely divergent.
Whereas the members of the Council of State reported to follow the CC’s case-law and to take it into
consideration in similar cases as they do for ECtHR judgments, most members of the CoC rejected
the idea of binding force of CC rulings beyond the individual case of the applicant, since there is no
clear legal provision stipulating that such rulings result in a general eect.
e members of the Military Cassation Court clearly refused to accept a binding force of CC’s rulings
beyond the individual case whenever the legal situation was in contradiction with the constitutional
standards. According to the members, it was for the legislator in the rst place to align the statutory
framework with the constitutional standards whereas any jurisdiction was bound to the law only,
not the constitutional standards. Feeling bound even to legal statutes that are unconstitutional and
that the legislator has omitted to abrogate, the members of the Military Cassation Court considered
it desirable to clearly give the CC the authority to nullify unconstitutional norms.
As to CC rulings pertaining to violations stemming from courts’ decisions, the members of the
Military Cassation Court, making reference to Art.90 of the Turkish Constitution, disapproved a
binding force in similar cases. e members indicated that, whereas this constitutional norm clearly
lays down the principle according to which international agreements and the ECHR prevail in case
of conict with national legal statutes, there is no similar provision for the case of conict between
the Constitution and legal statutes.
On the other hand, the members of the High Military Administrative Court stated they would
accept a binding force of the CC’s rulings beyond the individual case wherever they are persuaded
by the CC’s rulings.
C
An individual application ruling formally applies to the parties in the procedure only.
A dierent question is about the general impact of the CC judgments.
As to the binding force in similar cases of the CC’s rulings concerning the constitutionality of legal
interpretation, it ultimately depends on the attitude and willingness of each representative of the
judiciary to comply with CC case law and this compliance should be mainly guaranteed by the
higher courts, when they nally adjudicate the appeals against lower courts’ decision.
Although in general, concerned courts seem to have complied with the judgments by taking
individual measures, in the case of MP’s detention the Diyarbakır Assize Court declared that
82 For example in Balbay case.
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decisions taken under constitutional complaint system83are only binding in the relevant case.
e attitude of lower and higher courts’ judges to comply with the CC case-law should be promoted
trough training and mutual consultation among CC and high courts’ members.
e high courts should be persuaded by the CC about the binding force of the CC rulings in similar
cases. Art.11 §1 of the Turkish Constitution could serve as one argument for arming that it is
for the CC only to interpret the provisions of the Constitution in an authoritative way. e CC will
likely succeed in this endeavour by reasoning its decisions in a persuasive way.
e argument opposed by members of the Military Court of Cassation (Askeri Yargıtay), according
to which, unlike ECtHR decisions, no specic provision in the Turkish Constitution sets that the
CC decisions are binding and applicable to all similar cases, could be overcome by observing
that article 90 of the Turkish Constitution obliges courts to adapt their decisions to the ECHR
-that is an international Treaty-84; art. 90 of the Constitution does not explicitly refer instead to
the interpretation given by the ECtHR. Nonetheless, it is unanimously accepted that not only the
wording of the ECHR, but also its interpretation by the ECtHR has to be taken into consideration by
Turkish courts. e same should be for the CC ruling, the CC being the only judicial body entrusted
by the Constitution with interpreting the provisions of the same Constitution in an authoritative
way.
However, it has to me remarked that the CC should be empowered to annul the underlying law, in
order to allow the ordinary courts to adopt their decision on the basis of the new legislative situation.
Convincing regular courts to accept the binding eect of CC rulings beyond the individual case is a
necessary step in order to minimize the caseload before the CC. e caseload of the CC will only be
at a reasonable level if cooperation in the eld of fundamental rights protection is rooted in mutual
trust and willingness on both sides, on the part of the CC as well as on the part of the regular courts.
• e attitude of lower and higher courts’ judges to comply with the CC case-law should be
promoted trough training.
• In cases of violations stemming from courts’ decisions, the CC should make every
endeavour to persuade the regular courts to accept the binding eect of CC rulings beyond
the individual case.
VIII. . D B C C T
H C
F
e members of the CoC and the Council of State reported that they follow constantly the case-law
of the ECtHR.
e CoC has established a special human rights unit with the aim of raising awareness of court’s
members about the human rights standards and aligning its case law to that of ECtHR case law. e
83 Balbaycase.
84 e lastsentence of artcle 90 of the Consttuton of 1982, added on 7 May 2004 s as follows: “Inthecase of a
conctbetweennternatonalagreements, duly put ntoeect, concernngfundamentalrghtsandfreedomsandthelawsduetoderences
n provsons on thesamematter, theprovsons of nternatonalagreementsshallpreval.”
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unit invites the chambers of the Court of Cassation to publish their decisions referring to ECtHR
case-law on the courts’ websites and on its intranet. is openness to the Convention System is
strengthened by regular dialogue discussions the members of the CoC and the Council of State
carry out with members of the ECtHR.
e members expressed their wish to carry out similar discussions with the members of the CC.
e lawyers from the UTBA expressed their wish that regular meetings of members of the CC,
judges, prosecutors and lawyers are organised in order to allow every perspective be heard.
Many members of the CoC, the High Military Court and the High Administrative Court deem
the structure of the CC to be an obstacle for a successful implementation of the human rights
standards as laid down in the ECHR, as there is no legal provision stating that the members of
the CC have to be jurists and because the CC members have no specialisation in the subjects of
individual application. ey clearly expressed their concern that the CC might become a “super
appeal court” by improper intervention into the competences of the Turkish high courts that are
instead highly specialised. ey referred to Art.49 §6 2nd phrase of CCL according to which in
individual application, no examination may be conducted on matters which need to be dealt with
at the stage of legal remedies85.
Some CoC members proposed to entrust the specialised high courts, instead of the CC, with the
authority to decide on individual application.
C
ere is some reluctance amongst regular courts in Turkey to accept intervention from the part of
85 Similar problems arose quite shortly aer the establishment of the Federal Constitutional Court in Germany and the Court has
taken many steps in order to dene its position vis-à-vis the regular courts and other constitutional organs. ese steps could
serve as example for the CC as well.
One step consisted in clarifying the delimitation of competences between the Federal Constitutional Court and the regular courts.
In one of its rst decisions, the Court explained that the constitutional complaint, which is the German equivalent to the
individual application in Turkey, is not an additional appeal but a remedy aiming at the enforcement of fundamental rights
((Decisionof September 27, 1951, reg. nr. 1 BvR 61/51, BVerfGE 1, 4)). erefore, the Federal Constitutional Court described its
role in Germany’s judicial system as “guardian of the Constitution” ((Judgment of March 20, 1952, reg. nr. 1 BvL 12 and others,
BVerfGE 1, 184 (196)). In its famous Lüth-judgment, the Court reminded civil judges that in deciding every judge has to take
account of the eect of fundamental rights in the relevant provision of law (see Art.1 §3 of the Basic Law). Accordingly, the
Court explained in detail that and why it has the authority to verify whether a judge has fallen short to his obligation to properly
assess the scope and the eect of the fundamental rights in the relevant area (Judgmentof Januar y 15, 1958, reg. nr. 1 BvR 400/51,
BVerfGE 7, 198 (204 et seq.). is, as the Court has claried in a later ruling, does not entitle the Federal Constitutional Court
to an unlimited examination of rulings issued by the regular courts, the organisation of the procedure, the assessment of facts,
the interpretation of ordinary law and its application to the individual case being a task for the competent regular courts. Of
course, this does not exclude any examination of regular court decisions by the Federal Constitutional Court. e Court has
emphasized that it can intervene in case of a violation of constitutional law which means that it cannot intervene in cases where
a regular court has simply misinterpreted a provision stemming from ordinary law, but only if the regular court has failed to
take into account a fundamental right. e boundaries to the Federal Constitutional Court’s possibilities of intervention cannot
be drawn xedly. e judges at the regular courts enjoy a certain margin of discretion allowing them to take into account the
characteristics of the individual case. In general, as the Court has put it, the application of ordinary law to a specic case can
only be reviewed for constitutionality if a regular court’s decision demonstrates an error of interpretation that is not simply
questionable but dwells on a fundamentally wrong perception of the importance of a fundamental right, particularly of the scope
of its area of protection, and that is signicant for the individual case ((Decisionof June 10, 1964, reg. nr. 1 BvR 37/63, BVerfGE
18, 85 (92 et seq.)). Furthermore, the Court has explained that it can intervene in cases where a regular court has decided in an
arbitrary fashion, i.e. that the application of the law to the individual case and the procedure are incomprehensible in the light
of the principles of the Basic Law and one cannot but conclude that they dwell on irrelevant considerations ((DecisionofJuly
1, 1954, reg nr. 1 BvR 361/52, BVerfGE 4, 1 (7)). It must be noted that, in order to assess whether it can intervene or not, the
Federal Constitutional Court must examine the reasons given in the regular court rulings that are challenged.
e Federal Constitutional Court’s authority to verify whether a regular court has taken into account the fundamental rights of the
applicant includes the examination of federal court rulings as well, because these rulings are acts of public authority, any person
alleging that one of his or her fundamental rights has been infringed can challenge with a constitutional complaint before the
Federal Constitutional Court (cf. Art.93 §1 N°4a of the Basic Law). ough, at the outset, the Basic Law does not explicitly
determine a specic relation between the federal courts and does not set out a hierarchy, the Federal Constitutional Court
considers anybody of the judiciary, including the federal courts, bound to fundamental rights which imply that their decisions
can be subject to examination by the Federal Constitutional Court.
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e Individual Application to the Constitutional Court of Turkey
the CC. is reluctance should be taken seriously, as the individual application system will never
acquire full eectiveness if the CC does not succeed in persuading regular courts to take into account
its case-law on fundamental rights.
e CC should, through its rulings and through direct dialogue, persuade the high courts not come
to a conclusion that the CC is a super court of appeal which prevails over other high courts and
supervises their decisions.
During the meetings with the CC ocials and members in the rst visit in January, the delegation of
consultants was told that the CC members were well aware of the limit on their power in respect of
ordinary courts, as established by art. 148 paragraph 4 of the Constitution86. ey further stated that
they would not like to exceed their limits as it would inevitably increase the number of individual
applications which would endanger the sustainability of the individual application system87.
However, the perception of other high courts cannot be ignored; as such a negative perception
could result in a resistance against the CC and its decisions.
erefore the need for dialogue among the CC and the high courts is of vital importance, because,
as it has been said above, the eectiveness of the new remedy ultimately depends on the regular
courts’ willingness to cooperate in the protection of fundamental rights. Dialogue between the CC
and the regular courts within the frame of regular discussion meetings on dierent human rights
issues can contribute to the willingness of the latter in this respect, and in compliance with the
subsidiarity principle88.
Furthermore the high courts can play a crucial role in steering the courts of rst instance to
harmonise their own case law with that of the CC. In sum, when the Turkish high courts embrace
the CC case law, it would also motivate the lower courts to do so.
When consultation meetings are organised among CC and high courts’ members, it would be
important for the CC to make it clear that the CC’s jurisdiction does not cover facts denition.
erefore the CC should conduct its assessment based on the facts as they were considered by
the ordinary courts and that the CC is not enabled to decide the right interpretation of the legal
provisions, since this competence pertains exclusively to the ordinary courts; however establishing
whether a certain legal interpretation brings to the violation of a fundamental right belongs to the
competence of the CC.
86 According to which “in the individual application, judicial review shall not be made on matters required to be taken into account
during the process of legal remedies”.
87 Another important milestone in the history of the Federal Constitutional Court was reached when Gerhard Leibholz, one of the
rst members of the Federal Constitutional Court who was commissioned by his colleagues to develop a theory on the Court’s
status, published his so-called “status report” in 1957 ( (Gerhard Leibholz, Der Status des Bundesverfassungsgerichts: Gutachten,
Denkschrien und Stellungnahmen mit einer Einleitung, Jahrbuch des öentlichen Rechts der Gegenwart 6 (1957), 109-221)).
In his 111 pages report, Leibholz explained convincingly the way the Court sees himself and prepared the foundations of its self-
condent jurisprudence. According to the report, all constitutional organs must cooperate in harmony and omit everything that
might put another constitutional organ’s reputation – and hereby of the Constitution itself – at risk. Any constitutional organ,
that by words or by doing belittles another organ, would fall short of the “self-evident” obligation to show the respect every
constitutional organ has a right to. Even though Leibholtz’s report could not avert every opposition, it resulted in the acceptance
of the Federal Constitutional Court as a constitutional organ that vis-à-vis the other organs enjoys equal rights.
88 According to the Federal Constitutional Court, the rule regarding the exhaustion of remedies found in Art.90 §2 1st phrase of
the Federal Constitutional Court Act also expresses the principle of procedural subsidiarity according to which the Court only
examines the claims that the applicant has already raised properly before the regular courts. A strict application of this principle
does not only result in an ecient and rational division of labour between the Federal Constitutional Court and the regular
courts; it also gives the regular courts, who in general have more profound experience and knowledge of the realities in the
respective eld, the opportunity to explicitly take into account the claims of the applicant in the reasons of their rulings and to
explain why those claims do not alter the outcome of the case.
46
e Individual Application to the Constitutional Court of Turkey
• e CC should envisage holding regular dialogue meetings with high courts’ judges to
discuss recent developments in its case-law.
VIII. E CC J. E M
M I C C
Pursuant to article 23 of the Law no. 6216, the Secretariat General of the CC is authorised and
responsible for execution of the judgments of the Constitutional Court. In this context the
Secretariat General follows up the execution of every settled le by monitoring the enforcement of
the decisions by the courts or by the relevant Institutions. For example, if the local court has ruled
compensation of damages a copy of that decision is forwarded to the CC.
C
e enforcement of the CC rulings in the context of the individual application is monitored by the
Secretariat General of the CC. However, no formal mechanism is envisaged for the enforcement
of CC judgments. is mechanism should be established and the law should formally provide for
enforcement action plan and enforcement report by the concerned administrative Authorities.
Nevertheless, the consultants were reported by the CC members that the concerned Authorities
tend to respect the CC rulings and to comply with them; they emphasised that this is clear sign of
the eectiveness of the tool.
Yet, the Twitter case is paradigmatic. is case originates in the Turkish government’s decision
to block access to the social networking and micro blogging service Twitter. Aer Ankara’s
15th administrative court had issued a stay of execution ruling on March 26, the TİB - Turkey’s
telecoms authority- should implement the administrative court’s ruling within the following
30 days. e Minister of Justice reportedly said that he expected to read the ruling, to establish
whether “implementing the court orders is contrary to the Constitution”.89In the aermaths of the
administrative court’s stay of execution ruling, the CC ordered the Turkish authorities on April 2 to
li the ban on Twitter.90 e Prime Minister harshly slammed the decision and said publically that
the government would not oppose to it but that he personally did not “respect it”. He furthermore
criticised the CC for having handled the case with urgency whereas “a number of cases are pending”
and for having decided although all legal remedies had not been exhausted yet.91
• A formal mechanism should be introduced for the monitoring of the implementation of
CC rulings that provides for enforcement action plan and enforcement reports by the rel-
evant Authorities.
89 http://www.hurriyetdailynews.com/ankara-court-grants-stay-of-execution-for-governments-twitter-ban.aspx?pageID=238&nI
D=64121&NewsCatID=339
90 CC, decisionof April 2, 2014, Yaman Akdeniz et al., no. 2014/3986.
91 http://www.hurriyetdailynews.com/constitutional-court-ruled-to-unblock-twitter-before-elections-chief-judge-reveals.
aspx?pageID=238&nid=64639
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e Individual Application to the Constitutional Court of Turkey
VIII. T R M J’ D H
R I A P I T E
O T C C’ R
F
e Human Rights Department (HRDMoJ) of the Ministry of Justice (Adalet Bakanlığı İnsan
Hakları Daire Başkanlığı) in an important component of the individual application procedure.
It expresses opinions on admissible individual applications. e HRDMoJ may express opinion
with regard to the content of an admissible individual application when it is delivered to the MoJ
by the CC according to article 49 of the CCL and article 71 of the Rules. Although the MoJ can
submit its observations within 30 days and apply for an additional 30 days92, most observations are
submitted within 30 days. ere is an internal practice within the HRD to refrain from expressing
observations in cases of CC well established case-law. e Ministry considers its role in the
individual application mechanism before the CC to be an objective one, aiming at facilitating the
CC’s decision-making process. erefore, the observations submitted to the CC are not written
from a defendant’s perspective.
Furthermore it monitors the enforcement of ECtHR rulings and organises activities, such as
seminars and conferences, and conducts projects for preventing violations of human rights.
C
Whether, according to the current legal framework, the HRD should monitor the enforcement of
the CC rulings is questionable. Art.50 §3 CCL simply provides that the judgments of the Sections
on the merits together with their reasons are notied to the MoJ.
IX. P H R P, C C J
IX. D . I P
J R
F
One of the main reasons for human rights violations in Turkey is prolonged detention on remand93.
e length of such detention has oen been subject to the scrutiny of the ECtHR that repeatedly
found a violation of Art. 5/4 of the Convention.94
e criminal judges and public prosecutors met by the consultants said that the recent CC decisions
92 Art.71 §2 1st and 2nd phrases of the Rules of the Court.
93 e term “detention on remand” is intended to relate to the time spent in detention by the suspect from the police arrest until
the rst instance conviction and to the further period spent in detention during rst instance retrial, when the rst instance
decision is quashed by the Court of Cassation.
94 See the Case of Kalaylı v. Turkey, Application no. 43654/05, judgment of 11 October 2011, para. 21.
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e Individual Application to the Constitutional Court of Turkey
related to remand detention, such as the Balbay95 ruling and the decisions of 4 July 201396 about
detention on remand in terror related cases, are not entirely clear and not oer sucient guidelines
to establish in what cases the duration of pre-trial detention violates fundamental rights.
e criminal judges also added that a clear guidance in CC judgments may potentially create a unity
of practise among judges concerning detention periods. However they also said that prosecutors
and courts tend to prioritise cases if the defendants are kept in remand detention.
e 3rd Package of Judicial Reforms, adopted in June 201297, and the 4th Package of Judicial reforms,
adopted in April 201398, were aimed at aligning prosecutors and judges’ practices with the ECtHR
case law. Judges were requested to substantiate their detention on remand orders on concrete
grounds and to use detention on remand as an extrema ratio, by resorting to “protective measures”
alternative to pre-trial detention in compliance with the principle of proportionality
Istanbul judges and prosecutors released controversial statements about the impact of the 3rd and
4th packages on their works; in particular for the matters originated from structural problems of
the Turkish judicial system, such as lengthy detention on remand periods. Some prosecutors said
that the two packages had basically not produced any consequence on their activity. According to a
dierent prosecutor, instead, following the two packages, the rate of remand detention orders was
signicantly reduced, because judges tend to reject, much more than in the past, the prosecutors’
requests for pre-trial detention.
In general, criminal judges and prosecutors complained about their heavy workload and asserted
that the workload prevents them from following the case law of the ECtHR.
C
Judges seemed not be entirely acquainted with the recent case-law of the CC about detention on
remand and the case-law of the ECtHR in the criminal eld.
is may be a reason why the 3rd and 4th Packages of Judicial Reform, aimed at harmonising practices
and decisions of criminal judges and public prosecutors with the ECtHR case law, had limited
impact on their daily work.
95 See CC, decision of 4 December 2013, Mustafa Ali Balbay, no. 2012/1272. In its decision the CC referred to Article 19 par.7
(corresponding to Article 5 par. 3 of the European Convention) and Article 67 (partly corresponding to Article 3 of Protocol
no.1 of the European Convention) of the Turkish Constitution. e applicant in that case had been detained for 4 years and 5
months on terrorism related accusations. However, the CC indicated in its decision that the applicant may have been subject to
legal control mechanisms as a result of the amendment of the Criminal Procedure Code by virtue of the Law no.6352 which was
entered into force on 5 July 2012. Accordingly, the CC found that the legal control mechanisms were not duly taken into account
by the trial court which eventually violated the principle of proportionality (see paragraph 118 of the said judgment) with regard
to the applicant’s right to freedom in conjunction with the applicant’s right to carry out political activities as an MP. Indeed,
the CC also took into account the applicant’s status as an MP since he was elected as an MP on 2 June 2011, having he being
detained since 6 March 2009. However in the relevant judgment, the CC did not clearly refer to any maximum time limitation
concerning detention periods.
96 See CC, judgment of 4.7.2013, no. E:2012/100, K:2013/84. e CC annulled a legal provision contained in the Anti-terror Law
which allowed long pre-trial detention, up to 10 years. Although the CC found that 10 years in detention is disproportionate
time, it gave the Parliament 1 year time to amend this rule, according to Article 153 (3) of the Constitution. e CC made
also clear that detention time cannot exceed ve years, even if a person is tried for more than one criminal oence in a single
case. In a number of individual cases (amongst others, see CC, First Section, no. 2012/239, k.t. 2.7.2013, para. 54), the Court
has stated that if the detention time, pending trial, is separately assessed for every single criminal charge , the total detention
period becomes unforeseeable for the accused. us, it is also a violation of the principle of proportionality. e principle of
proportionality can been infringed, according to the CC ruling, also if total pre-trial detention time does not exceeds ve years.
As to latter category of cases, the CC leaves a certain margin appreciation to the rst instance courts (B. No: 2012/239,para.49).
However, the Court also stated that if the rst instance court decides to extend detention period, the reasons for the extension
must be relevant and sucient with reference to the concrete conditions of the case (B. No: 2012/1137, 2/7/2013, para. 63).
When the Court uses stereotype reasons for extension, these criteria are not met (No. 2012/1158, 21.11.2103, para. 56.).
97 Law No. 6352 published in the Ocial Gazette of Turkey on 5 June 2012.
98 Law No. 6459 published on 30 April 2013.
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e Individual Application to the Constitutional Court of Turkey
is proves that criminal judges and prosecutors need to be trained about human rights protection
and individual application mechanism.
• Prosecutors and criminal judges should be trained about human rights protection and
individual application mechanism.
IX. L- C T – R L
P
F
e civil judges met by the consultants were well aware of the problem of long trials.
ey admitted that Turkish justice system has some systemic problems such as “length of
proceedings”, that is mainly due to size of their workload. Judges explained that they have not only
too many cases to deal with, but they nd themselves compelled by many administrative and time-
consuming tasks, also because judicial clerks are not suciently qualied and trained to support
their work.
Civil judges are aware that, if these problems are not solved at rst instance level, a huge workload
of individual applications will be produced. Some civil judges adopt individual methods in order to
prevent long trials, such as the prioritisation of old-dated case les.
C
e problem of long trials in Turkey is a structural issue. In this situation, the existence of the
individual application will not help to solve the problem at its root cause. It will enable the party to
be granted pecuniary compensation; but cases will massively ow to the CC bringing the risk that
the Court will be paralysed.
erefore, structural measures should be taken.
First of all judges should be relieved of their administrative tasks.
e courts should be managed according to modern organisational criteria. Presidents of the courts
and courts’ managers should be introduced to this respect.
e High Council of Judges and Prosecutors (henceforth: HYSK) should promote and disseminate
good practices for the smooth case-management by judges, who should systematically monitor and
give priority to old cases.
A judicial remedy to speed up long proceedings could be introduced.
50
e Individual Application to the Constitutional Court of Turkey
• judges should be relieved of their administrative tasks.
• Courts should be managed according to modern organisational criteria.
• Presidents of the courts and courts’ managers should be introduced.
• e High Council of Judges and Prosecutors should promote and disseminate good
practices for the smooth case-management by judges, who should systematically monitor
and give priority to old cases.
• A judicial remedy to speed up long proceedings should be introduced.
• Further training on Art. 6 ECHR should be organised for judges and prosecutors.
IX. L- T – C D
F
Consultants were reported that Turkey lacks a remedy for citizens to claim for compensation in case
of long trials.
e only general remedy seems to be the individual application to the CC that could grant direct
compensation or send the case to the relevant rst instance court for the determination of the
amount of money to be awarded. If this second path is taken the citizen may nd himself again with
the problem of long-duration of proceedings.
C
A specic and speedy remedy to recognise compensation of damages for long trials should be
introduced, to be exhausted before the individual application is led, with the aim to disburden the
CC. For example the Human Right Compensation Commission (please see the following paragraph)
could be stabilised and its competence could be extended to cover all claims related to long duration
of trials.
• A specic and speedy remedy to grant compensation of damages for long trials should
be introduced with the aim to disburden the CC.
IX. L D T C D. T R
H R C C M J
F
ere have been some uncertainties about which authority would be the debtor of lawyer’s fees
and of any pecuniary compensation an applicant was awarded by the CC99. In the rst months
of implementation of individual application, the Ministry of Finance supported the idea that the
authority responsible for the violation should eectuate the payment. e position adopted by the
Ministry of Finance created serious practical problems, as many authorities, lacking an autonomous
99 Art.50 §2 2nd phrase CCL.
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e Individual Application to the Constitutional Court of Turkey
budget, were not in a nancial condition to pay and because it might be that more than one
authority was responsible for the violation of a fundamental right. In the course of the third visit,
the consultants were informed that, following a recent meeting between the Ministry of Finance
and the CC’s Secretary-General on the issue of payment, the Ministry of Finance declared that it
would have assumed the responsibility to pay.
e Human Rights Compensation Commission of Ministry of Justice was established by the Law nr.
6384 as a domestic remedy for paying compensation as a result of lengthy trials and non-fullment
of court decisions. e ECtHR case of Ümmühan Kaplan v. Turkey100, a pilot-case that identied
long duration of trials as a systemic problem in Turkey, was the basis for the establishment of this
domestic remedy. e ECtHR’s ruling in MüdürTurgut and Others v. Turkey101 conrmed that
application to that commission was a domestic remedy to be exhausted before ling an application
to the ECtHR.
is Commission is empowered to render compensation of damages in long trial cases in relation to
applications which were directed to the ECtHR before the individual application entered into force.
e Commission is composed of 5 members, 4 of which are judges and one is lay member appointed
by Ministry of Finance. e President of the Commission stressed that it is an independent body
and is not subject to the hierarchy of the MoJ. e decisions of the Commission are subject to
judicial scrutiny.
Until the beginning of April the Commission received 5,400 applications and 3,800 of them were
concluded. e Commission found violation in 3,081 applications and rejected 651. So far, 560
rulings of the Commission were objected by the applicants before Ankara District Administrative
Court that found 10 objections rightful; 467 were instead rejected and 84 cases are still pending.
e Commission operates and concludes an application on an average of 150 days; the compensation
is paid approximately 15 days later.
e President of the Commission said that the amount of the compensation awarded by the
Commission is intended not to be symbolic; it is established in compliance with the ECtHR
standards and was increased following a ruling of the Ankara administrative court. However it does
not cover attorney fees.
C
e uncertainties about the Authority in charge with the payment of pecuniary compensation
awarded by the CC could seriously undermine the eectiveness of the remedy. For this reason, the
declaration of the Ministry of Finance that it will take the responsibility to eectuate the payments
in the future is welcomed. e follow up of this statement should be closely monitored.
e Human Rights Compensation Commission of MoJ can be seen, both for the duration of the
proceeding and the amount of liquidated compensation, as an eective domestic remedy for
redressing the consequences suered by parties for long trials, although it should be extended to
fully cover attorney fees, in order to ensure the right of access to the remedy.
However, the Commission has been set up as a temporary remedy only and not as a general one, as
it relates only to a limited number of applications and, in particular, to those applications that were
100 Applcaton no. 24240/07, judgment of 20 March 2012.
101 Application no. 4860/09, judgment of 26 March 2013.
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e Individual Application to the Constitutional Court of Turkey
led to the ECtHR before the individual application entered into in force.
e remedy should instead be generalised and should be exhausted before an individual application
is led, until the systemic problem of long trials is solved in its origin, by the adoption of organisation
structural measures.
Until then, and without an eective internal domestic remedy in place, the CC runs the serious risk
to be blocked by an enormous number of claims for compensation of damages for long trials.
• e work of Human Rights Compensation Commission of the Ministry of Justice should
be extended to become a general internal remedy for claims of compensation of damages
in case of long trials and should also cover the repayment of attorney fees.
X. T
X. L P’ T H R P
I A
F
Lawyers from the İstanbul Bar Association (IBA) in February insisted that the facilities aimed at
increasing the awareness of the individual application system by the CC were not sucient. e vast
majority of the lawyers had not received any information and training on this issue.
Lawyers from the UTBA (Türkiye Barolar Birliği) also reported a similar situation. e local bars
and UTBA carried out a number of training courses for lawyers including training on individual
application system, but only a limited number of legal practitioners have beneted from them so far.
e UTBA ocials informed the delegation about previous and planned training facilities i.e.:
• a protocol was signed by the Ankara Bar Association and UTBA in March 2014 for an
individual application training and a 16-hour-training was provided for lawyers;
• a 26-hour certicate programme is to be held with Eskişehir, Bursa and Manisa Bar
Associations; on 7 October 2013, a meeting on individual application system was held in
Ankara Bar Education Center (Ankara Barosueğitim Merkezi- BEM);
• additional training courses will be pursued with the cooperation of UTBA and Ankara Bar
Association.
e Human Rights Oce at the Istanbul Bar Association reportedly receives many calls from
both young and experienced lawyers that mainly concern questions about individual application
procedure and admissibility criteria.
Lawyers were also concerned about the insuciency of courses on Human Rights in the Law
faculties and during the lawyers’ traineeship: currently only 8 hours of human rights training is
included in the programme for trainee lawyers.
e members of the Justice Academy (henceforth: JA) stated that the Academy has not planned any
53
e Individual Application to the Constitutional Court of Turkey
training for lawyers because no Bar Association has asked for this service. Since, as stated, the JA
can only organise training programmes upon request, its members deemed it is the responsibility
of the Bar that no training programme for lawyers has been planned or carried out so far by the JA
Prosecutors said that they had attended a three-day seminar on human rights, but no special training
on individual application. One of them also said that periodically they receive a booklet with the
last human rights decisions; however their allegedly high workload does not allow them to keep
updated reading the booklets
Judges also said that they did not receive any specic training on individual application and, when
the rst applications were led through their court, as they were not fully aware of the scope of
their task, they started to learn how to deal with this new tool by themselves. ey assumed that
the control on the formalities should be done by the CC and that they only had to undersign the
application and to control that fees were paid.
High Court judges were never involved in training about individual application.
e JA has a four-hour course on individual application for initial training but has not organised
any in-servicetraining on individual application so far.
C
e consultants acknowledged in the course of the three visits that there is a strong need to train
legal practitioners about individual application.
Although lawyer’s perception of the CC’s role in individual application process changed very quickly
since the rst visit in İstanbul with the İstanbul Bar, thanks to popular judgments like that on Twitter
case, however, concerns about lawyers’ awareness and knowledge of technical issues pertaining to
individual application are continuing.
Training performed by the BAR is not sucient.
e lack of sucient training for the lawyers may result in inadmissible applications to the detriment
of the applicants. Furthermore it may increase the workload of the CC as numerous applications
unnecessarily are sent to the CC.
Specic training should therefore be planned to target these concerns.
Individual application should be included in Law Schools curricula.
Trainee lawyers, as well as judges and prosecutors, should receive dedicated training in the course
of their pre-service training.
Professional lawyers should be rst trained in ECtHR and CC’s case-law on fundamental rights,
to enable them to allege the relevant case-law from the initial proceedings before the rst instance
courts.
Lawyers need to learn more regarding admissibility requirements. is training should focus on
the formalities required to correctly full the application; the admissibility criteria used by the CC;
the access to legal aid102 especially for foreigners; the CC power to sanction the abuse of the right
102 Please see chapter III.5 below.
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to an individual application103; the exhaustion of remedies before ling an individual application;
inadmissibility criteria and the CC case law about inadmissible petitions104.
e Bar should then regularly organise in-service training for lawyers about human rights and
individual application.
Furthermore individual application should become a regular subject both for pre-service and in-
service training of Judges and prosecutors. e training should mainly focus on CC remedies and the
enforcement of CC rulings, the retrial and the scope of the binding force of the CC’s judgments105.
e CC, the JA and the UTBA are expected to jointly conceive training programmes for serving
lawyers that should cover the constitutional standards of human rights protection as set in the CC’s
case-law. e JA should invite academics specialised in the eld of Constitutional Law to take part
in the preparation of the trainings.
It must be assured that legal practitioners from all over the country are reached by the training.
• Training on individual application should be included in Law School curricula and in the
pre-service training of trainee lawyers, judge and prosecutors.
• Specic training on individual application should be carried out for legal practitioners.
• e training of lawyers should focus on the formalities required to full correctly the
application; the admissibility criteria used by the CC; the access to legal aid specially
for foreigners; the CC power to sanction the abuse of the right to an IP; the exhaustion
of remedies before ling an IP; the inadmissibility criteria and the CC case law about
inadmissible claims.
• e training for judges and prosecutors should mainly focus on CC remedies, the
enforcement of CC rulings and the scope of the binding force of the CC’s judgments.
X. S R T L, J
P I A: S
T M
A) Common pre-service and in-service training for judges, prosecutors and lawyers.
(i) e ECtHR case law: according to article 90 of the Turkish Constitution,
ECHR bounds Turkish judges. e CC has so far proved that it follows the decisions of
the ECtHR in similar cases. A good knowledge of the ECtHR by lawyers, judges and
prosecutors would both help the eective protection of individual rights in early stages
of the judicial procedure and the reduction of the number of the individual applications
to the CC.
(ii) e CC case law: Although the number of the decisions of the CC is limited
at the moment, training on its decisions including admissibility requirements and
merits would contribute to the well-functioning of the judicial procedure as a whole
103 Under Article 83 of the Rules of the CC, the court has competence to impose a ne on an applicant up to TRL2.000 if the right
to individual application was abused by the applicant.
104 For specic training please see the following chapter.
105 For specic training please see the following chapter.
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e Individual Application to the Constitutional Court of Turkey
and would increase the protection of fundamental rights, as for the training on ECtHR
case law. is training could include case-law of other European Constitutional Courts
dealing with individual application systems.
(iii) Specic training on criminal issues that are important for the protection
of human rights such as: grounds for pre-trial detention and long pre-trial detention;
presumption of innocence; principle of equality of arms.
(iv) Specic training on civil issues that are important for the protection of
human rights such as: prioritisation of old cases by civil judges; case-management;
property rights.
B) Dedicated training for lawyers about the following specic aspects of individual application:
• e scope and the subjects of the individual application.
• Ways to lodge the individual application. Peculiarities if the applicant is not a Turkish
citizen.
• Accessibility conditions, including the criteria for the calculation of the time-limit.
• Fees and legal aid.
• Principle of subsidiarity: remedies to be exhausted before lodging an individual
application and exceptions.
• How to compile the application form and what documents to attach to it.
• Fines in case of abuse of individual application. Cases.
• Conditions and criteria to apply for an interim measure.
• Inadmissibility decisions: cases and procedures
• Applications which do not bear signicance for the enforcement and interpretation of
the Constitution or for the determination of the scope and limits of fundamental rights”
(48.2 CCL)106.
106 is issue could be construed more or less widely. For instance see Constitutional Court of Spain, Judgment No. 155/2009,
of June 25. “Although the appellant is required to satisfy, in accordance with the terms of art. 49.1 in ne OLCC, the burden
of justifying in the claim the special constitutional relevance of the appeal (OCC 188/2008 of 21 July; 289 and 290/2008 of
22 September) it is this Court which is responsible for perceiving in each case the existence or non existence of that “special
constitutional relevance”, that is, when, according to the terms of art. 50.1 b) OLCC, “the content justies a substantive decision
by the Constitutional Court, due to its special constitutional relevance” addressing for these purposes the three criteria which
are described in the precept: “for its importance for the interpretation of the Constitution, for its application or for its general
eectiveness, and for determining the content and scope of fundamental rights”. […] is Court considers it appropriate, given
the time which has elapsed since the reform of the appeal for protection, to put forward an interpretation of the requirement
of art. 50.1.b) OLCC]. In this sense it considers that it is appropriate to note that the content of the appeal for protection
justies a decision on the substance, based on its special constitutional relevance in cases referred to below, without that relation
being understood as a denitively closed range of cases in which an appeal for protection of fundamental rights has special
constitutional relevance, since that understanding is logically opposed to the dynamic nature of the exercise of our jurisdiction,
the performance of which, on the basis of casuistry presented, cannot rule out the need to describe or distil concepts, redene
cases considered, and add other new ones, or exclude any which had been initially excluded. Such cases would be the following;
a) that of an appeal which raises a problem or facet of a fundamental right subject to protection on which there is no case
law of the Constitutional court, a case already declared in JCC 70/2009 of 23 March; b) or that the occasion requires that the
Constitutional Court clarify or change its doctrine, as a consequence of a process of internal reection, as occurs in the case in
question, or due to the new social realities which have arisen, or regulatory changes relevant for the conguration of the content
of the fundamental right, or a change in the doctrine and theory of the guarantee bodies entrusted with the interpretation of
the international treaties and agreements referred to in art. 10.2 SC; c) or when infringement of the fundamental rights claimed
originates from the law or another provision of a general nature; d) or if the violation of the fundamental right derives from
reiterated case law interpretation of the law that the Constitutional court deems to be damaging to the fundamental right, and
on which it believes it necessary to declare another interpretation pursuant to the Constitution; e) or when the Constitutional
Court case law on the fundamental right alleged in the appeal is not being complied with in a general and reiterated manner by
ordinary Jurisdiction, or there are contradictory judgments on the fundamental right, either by interpreting the constitutional
doctrine in a dierent manner, or by applying it in some cases and not recognising it in others; f) or in the event that a court
clearly declines its duty to respect the case law of the Constitutional Court (art. 5 OLJ); or, in short when the matter raised,
despite the fact that it is not included in any of the aforementioned cases, transcends the case in question because it raises a legal
56
e Individual Application to the Constitutional Court of Turkey
• Manifestly ill founded applications. Cases.
• Procedure on the merit of the case. Hearings. Evidence.
• CC remedies in individual application cases.
• Compensation of damages: conditions, criteria and standards.
• Binding force and eects of CC ruling in the concerned case and in similar cases
• Enforcement of CC judgments.
C) Dedicated training for prosecutors and judges about the following specic aspects of
individual application:
• e scope and the subjects of the individual application.
• CC remedies in individual application cases.
• Compensation of damages for violation of fundamental rights.
• Retrial of cases following a CC ruling.
• e scope of the binding force of the CC’s judgments
• e enforcement of CC rulings.
Lawyers, judges and prosecutors should be specially trained in the eld of individual application
including training at least pertaining to the issues enumerated in this report.
X. T M. HELP
e HYSK, the JA and the UTBAwould be expected to cooperate in order to organise, at least for
some of topics listed above, a common training open to the attendance of judges, prosecutors and
lawyers. ereby, exchange of views, exchange of experiences and a constructive dialogue can be
realised.
Given the high number of legal professionals to be trained, the use of the HELP methodology and
platform is recommended in close coordination with the national training institutions (the JA and
the UTBA). Synergies are to be created with UYAP, especially for judges and prosecutors. HELP is
based on the principle of open education, which gives trainees the opportunity to develop a sense of
ownership over their education. e HELP methodology takes into account the heavy time pressure
imposed on legal professionals in their daily work. Its added value is that curricula are draed
on a tailor-made basis, meeting participants’ specic training needs and learning pace, allowing
exibility. Turkish judges, prosecutors and lawyers will have the possibility to attend a distance-
learning course if they wish to do so. A blended approach can also be adopted, which would include
both distance-learning and traditional face-to-face training sessions. Training materials will be
designed by Turkish experts, who are familiar with the individual application system and have a
deep knowledge of the ECHR and European human rights standards. e curriculum will have to
allow legal practitioners to put into practice the acquired knowledge in concrete situations, through
interactive and practical case studies.
issue which has general and relevant, social or economic repercussions, or has general political consequences, eects which
above all could lead in particular, although not exclusively, to specic electoral or parliamentary protection of rights”.
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e Individual Application to the Constitutional Court of Turkey
Initially a pool of trainers/tutors will be trained and then will have the opportunity to further
train judges, prosecutors and lawyers in dierent regions of Turkey. e aim is to ensure a large
dissemination of the curriculum and training materials on individual application.
In order to prevent divergent practices and case law; to establish informal confrontation and
dialogue; and to transfer knowledge and experience, consultation meetings should be organized
at regular intervals of time among the members of the high courts: CC, CoC, Council of State,
High Military Court and High Administrative Court. e most tting methodology for those
meeting would be, instead of programming traditional training, to foster scientic meetings with
the view of commenting on the CC’s decisions or CoC’s related judgments with these stakeholders
accomplishing an active role.
• Common training should be organised by the HYSK, the JA and the Bar open to the
attendance of judges, prosecutors and lawyers.
• HELP methodology and platform should be used for training judges, prosecutors and
lawyers on individual application system, also through distance-learning courses and
“train the trainers” modules.
• Judges from the CC and the high courts should be involved in “consultation meetings”
in order to prevent divergent practices and case law, to establish informal confronta-
tion and dialogue and to transfer knowledge and experience.
X. T J P: T R C
C, H C J P J
A
F
According to an amendment to art. 119 of the Law on Judges and Prosecutors, adopted in February
2014: “e vocational training of judges and prosecutors, which is both their right and duty, shall be
exercised by Justice Academy of Turkey. e procedures and principles regarding this training shall be
specied in a regulation prepared by Justice Academy of Turkey having received the opinion of the High
Council of Judges and Prosecutors” (art. 119).107
e previous version of the same article 119 of law on Judges and Prosecutors, as amended by
Law 6494 adopted by the Parliament on 27 June 2013 and published on Ocial Gazette on 7 July
2013108, provided that the in-service trainings should be conducted by the High Council of Judges and
Prosecutors and the procedures and principles for in-service trainings of judges and prosecutors should
be regulated by a by-law to be issued by High Council of Judges and Prosecutors receiving the opinion
of Turkish Justice Academy.
e regulation mentioned in the amended article 119 of the Law on Judges and Prosecutors has not
been introduced yet.
Members of the HYSK expressed their wish to support in-service training courses for judges
and prosecutors in the eld of the protection of fundamental rights but regretted that the last
107 Artcle 119 of Law no. 2802wasamendedbyartcle 3 of Lawnr. 6524, whchwaspublshed n the OcalGazette on 27 February
2014.
108 By Law 6494, theParlamentreplacedtheprovsonntroducedby a GovernentlegslatvedecreeandannulledbytheConsttutonal
Court.
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e Individual Application to the Constitutional Court of Turkey
amendments to the statutory framework of judicial training prevents the Council from carrying
out such courses, being it the sole responsibility of the Judicial Academy . e only task of HYSK
in relation to judicial training is the designation of judges and prosecutors who will take part in the
JA training109.
In February 2004 the Law on JA was changed as well and the control of the MoJ on the academy
was reinforced. Following this change, the President of the Academy and the main directors were
replaced by new incomers. Contrary to the HYSK, the new President of the JA assumed that,
following the recent legal amendments, the JA has simply become the exclusive provider of in-
service training for judges and prosecutors, whilst the competence to plan and decide the subjects
of in-service training still belongs to HYSK. e President said that the budget for the organisation
of the in-service training would be transferred from HYSK to the JA before the end of 2014.
C
e aim of in-service judicial training is to enhance professionalism of judges, public prosecutors
and lawyers through high quality education. Judicial Training is considered by the European
Commission a fundamental tool for the constitution of a “European Legal Culture” 110.
Large and increasing caseloads; frequent changes in legislation due to the process of approximation
of Turkey to the EU; the emergence of complex legal issues connected to the complexity of the
society, and the increasing media scrutiny of judicial decisions have increased the demand and need
for continuing judicial training in Turkey. In this context, the independent and eective exercise of
jurisdiction -which is required both by the EU standards and by the Turkish Constitution- confers
the right and the duty on judges and prosecutors to undergo judicial training, in order to acquire,
maintain and consolidate professional ability and develop their prociency.
e last amendments to the Law on Judges and Prosecutors and to the Law on JA caused uncertainties
in the interpretation and implementation of the legal framework about judicial in-service
training. In the current situation, a serious risk exists that the individual application system will
be implemented without the necessary training support being provided to judges and prosecutors
by the main judicial stakeholders. However, at the moment there is no planned programme for
individual application training.
In this situation JA is expected to ensure that the curricula about Human Rights protection,
developed under the past JA management, are used and adapted to the recent ECtHR and CC case-
law and to the needs of legal practitioners. e JA is further expected to cooperate in the framework
of future EU/Coe Projects on individual application and with the HELP Programme to ensure a
proper training on individual application for legal professionals.
• e JA is should ensure that the curricula about Human Rights protection, developed
under the past JA management, are used and adapted to the recent ECtHR and CC
case-law and to the needs of legal practitioners.
• e JA should cooperate in the framework of future EU/Coe Projects on individual
application and with the HELP Programme to ensure a proper training on individual
application for legal professionals.
109 Art. 9 of the Law No 6087 on the High Council of Judges and Prosecutors
110 Communication from the Commission to the European Parliament and the Council on judicial training in the European Union.
59
e Individual Application to the Constitutional Court of Turkey
L R:
Scope of the individual application
• Articles 148 (3) of the Constitution and 45 (1) CCL about the scope of individual application
should be interpreted in a way to ensure the incorporation of the rights guaranteed by the
ECHR and its Protocols into those secured by the Constitution.
• e exclusion of public legal persons and foreigners from the right to apply should be construed
in a very narrow sense in order to assure an eective protection of their fundamental rights
and freedoms.
Accessibility of individual application system
• Information desks at courts should be set up and equipped for providing practical instructions
on how to le a claim and how to access legal aid.
• Access to information about individual application should be improved in relation to potential
applicants who are in a vulnerable situation, especially foreigners who encounter a language
barrier and may be in a situation, like the connement in detention centres, which makes
dicult for them to access a lawyer or other sta with legal skills.
• CC should establish a press speaker.
Legal aid
• e scope of legal aid should be broadened in order to cover potential non-Turkish applicants.
• Legal provision should be adopted to allow the assistance in the individual application
proceeding by the same legal aid lawyer appointed in the previous process.
• Applicants should be allowed to ask for the suspension of the time-limit for ling an
individual application, when legal aid has been claimed, until a lawyer is appointed or, at
least, provisionally appointed.
Filing an individual application
• e CC internal rules should be changed so as to allow the ling of the application via regular
mail and , possibly, via certied e-mail or an alternative on-line application system.
• An alternative to the use of Turkish Language should be provided for foreigners who are not
able to have access to any legal assistance for preparation of a Turkish application.
• National guidelines that guarantee uniformity throughout all court registries should be
adopted.
• Within the applicable data protection rules UYAP should be used by the CC to retrieve
information needed for an application if the applicant is unable to provide that information
within the relevant time-limits.
• e CC rules should be amended to establish the CC Registry duty to retrieve ex ocio the
missing documents from UYAP.
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e Individual Application to the Constitutional Court of Turkey
• UYAP should be adapted to overcome the problems that foreigners or legal persons may
encounter when ling the individual application.
• It should be ocially claried what missing documents would cause the rejection of the
application.
Internal organisation and procedures of the Constitutional Court
• Specialization of the Commissions and Sections should be considered in the long run.
• e taking of any evidence should be carried out by the members of the Court.
• Members of the Court should take more responsibility in decisions draing, at least for
leading cases.
• e number of Reporter Judges working in the Research and Case-law Unit should be
increased.
• Reporter Judges working in the Research and Case-law Unit should receive dedicated
training on how to summarize court’s decisions.
• Once there is a body of well established case-law, the CC might consider introducing a
friendly settlement procedure.
External remedies to reduce the inux of cases to the CC
• Eective remedies inside the ordinary judicial procedures should be established to
denounce the delays and to speed up the long proceedings.
• A specic and speedy remedy to grant compensation of damages for long trials should be
introduced with the aim to disburden the CC.
• e work of Human Rights Compensation Commission of the Ministry of Justice should
be extended to become a general internal remedy for claims of compensation of damages
in case of long trials and should cover the repayment of attorney fees also.
• Organizational measures to monitor and give priority to old cases in ordinary courts
should be introduced.
• Judges should be relieved of their administrative tasks.
• Courts should be managed according to modern organisational criteria. Presidents of the
courts and courts’ managers should be introduced.
• e High Council of Judges and Prosecutors should promote and disseminate good
practices for the smooth case-management by judges.
Interim measures
• e CC should be empowered to decide to suspend, when necessary, the application of a
judicial decision in the context of interim measures.
• e automatic expiration of interim measures aer six months should be reconsidered.
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e Individual Application to the Constitutional Court of Turkey
Compensation of damages
• If the CC asks the applicant to le a case before the competent rst-instance court to
seek compensation for the damages the applicant suered, this rulings should be closely
monitored by the CC and a time limit should be set out as to the duration of the compensation
proceedings.
Annulment of underlying laws and regulations
• e CC should be formally empowered by the law to annul legal provisions leading to a
violation of fundamental rights.
Retrial
• e CC should be empowered to formally quash the decisions of lower courts.
• If the violation of fundamental rights occurred only at the Court of Cassation level or at
the level of another high court, the case should be returned to that court, not to the rst
instance court.
Binding force of CC rulings and dialogue among CC and high courts
• e attitude of lower and higher courts’ judges to comply with the CC case-law should be
promoted trough training.
• In cases of violations stemming from courts’ decisions, the CC should make every
endeavour to persuade the regular courts to accept the binding eect of CC rulings beyond
the individual case.
• e CC should envisage holding regular dialogue meetings with high courts’ judges to
discuss recent developments in its case-law.
Enforcement of CC rulings
• A formal mechanism should be introduced for the monitoring of the implementation of
judgments trough enforcement action plan and enforcement reports.
Training of legal practitioners
• Legal practitioners should regularly undergo dedicated training about the individual
application.
• Clerks at the courts’ registry/information desk should receive training about the new remedy,
on how to inform citizens about the individual application procedure, on how to upload the
claim and the documents in UYAP, and on how to collect fees.
• Training on individual application should be included in Law School curricula and in the
pre-service training of trainee lawyers, judges and prosecutors.
• e training of lawyers should focus on the formalities required to full correctly the
application; the admissibility criteria used by the CC; the access to legal aid specially for
foreigners; the CC power to sanction the abuse of the right to an individual application; the
exhaustion of remedies before ling an individual application; the inadmissibility criteria
and the CC case law about inadmissible claims.
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e Individual Application to the Constitutional Court of Turkey
• e training for judges and prosecutors should mainly focus on ECtHR case law, CC
remedies, the enforcement of CC rulings and the scope of the binding force of the CC’s
judgments.
• Lawyers, judges and prosecutors should be specially trained in the eld of individual
application including training at least pertaining to the issues enumerated in paragraph X.2
of this report.
Training methodologies
• Common training should be organised by the HYSK, the JA and the UTBA open to the
attendance of judges, prosecutors and lawyers.
• e JA is should ensure that the curricula about Human Rights protection, developed under
the past JA management, are used and adapted to the recent ECtHR and CC case-law and to
the needs of legal practitioners .
• e JA should cooperate in the framework of future EU/Coe Projects on individual
application and with the HELP Programme to ensure a proper training on individual
application for legal professionals.
• HELP111 methodology and platform should be used for training judges, prosecutors and
lawyers on individual application system, also through distance-learning courses and “train
the trainers” modules.
• Judges from the CC and the high courts should be involved in “consultation meetings” in
order to prevent divergent practices and case law, to establish informal confrontation and
dialogue and to transfer knowledge and experience.
111 http://helpcoe.org/sites/default/les/uploads-by-country/HELP%202014%20leaet.pdf
SUPPORTING INDIVIDUAL APPLICATION
TO THE CONSTITUTIONAL COURT OF TURKEY
Needs Assessment Report
on
The Individual Application to the Constitutional
Court of Turkey
Key consultant: Mr Luca Perilli, Italian Judge
Contrbutng consultants:
Ms Chrstane Schmaltz, Consttutonal Court of Germany
Mr Erol Pohlrech, Consttutonal Court of Germany
Mr Lus Pomed, Consttutonal Court of Span
Ms Eva Desdentado Daroca, Consttutonal Court of Span
Mr Juan Antono Hernández Corchete, Consttutonal Court of Span
Mr Kerem Altıparmak, Ankara Unversty
Mr Bülent Algan, Ankara Unversty
Mr Serkan Cengz, İzmr Bar Assocaton
is project is funded by the Council of Europe Human Rights Trust Fund and
implemented by the Council of Europe.
Avrupa Konseyi Program Osi / Council of Europe Programme Ofce
R.Tagore Cad. No: 10/8 Yıldızevler Mahallesi 06550 Çankaya, Ankara, Türkiye
Tel: (0) 312 468 84 64 • Faks: (0) 312 468 84 06
Rapor İngilizce Kapak.indd 1 19.11.2014 18:19:36