(Oct. 12, 2012) On September 24, 2012, the day that new provisions allowing access by individuals to Turkey’s Constitutional Court came into effect, seven persons filed petitions with the Court. The aim of the newly applicable measures, which comprise articles 45 to 51 of the Law on the Establishment and Rules of Procedure of the Constitutional Court of Turkey (Law No. 6216), is to provide an alternative avenue for redress of grievances and thereby reduce the number of applications originating in Turkey filed with the European Court of Human Rights (ECHR). (7 File Petitions As Individuals Gain Access to Constitutional Court, TODAY’S ZAMAN (Sept. 25, 2012); Law on the Establishment and Rules of Procedure of the Constitutional Court of Turkey (Mar. 30, 2011), European Commission for Democracy Through Law (Venice Commission) website; Anayasa Mahkemesinin Kurulusu ve Yargilama Usulleri Hakkinda Kanun [Turkish text of the Law], RESMÎ GAZETE [Official Gazette], No. 27894 (Apr. 3, 2011).)
It is expected that from 50,000 to100,000 individual applications will be submitted to the Constitutional Court now that the new Law has taken effect. According to Hasim Kilic, the head of the Constitutional Court, this load “would be unmanageable.” (Zeynep Erkan, Constitutional Court to Address Individual Human Rights Cases, SES TÜRKIYE (Sept. 27, 2012).) “[T]he success or failure of the reform,” he stated, “would depend on the ability of lower courts and lawyers to carry out procedure in accordance with the [ECHR]. Otherwise, weighed down by applications, the Constitutional Court would only be able to review 1 to 2 percent of cases.” Kilic added, “[t]he Turkish legal system is a whole,” and any obstruction in the judicial process will affect the whole, so that “if [the problem of] extended detentions and trials aren’t solved, there is very little chance for the success of the individual applications process.” (Id.)
The Constitution prescribes under article 148 that individuals who claim that the state has violated their basic rights or freedoms, e.g., the right to life, the right to equality before the law, and freedom of expression, can file a lawsuit with the Constitutional Court, provided that they have exhausted all other administrative and judicial means to defend those rights. (7 File Petitions as Individuals Gain Access to Constitutional Court, supra; The Constitution of the Republic of Turkey (as last amended by Act No. 6214 of Mar. 17, 2011), Grand National Assembly website.)
Chapter 4 of Law No. 6216 is on individual petitions. It prescribes the right of individual application, reiterating and expanding upon the constitutional provision cited above, as well as stipulating the persons who are entitled to make such applications. (Law No. 6216, arts. 45 & 46.) Only “those whose actual and personal rights are directly affected by the alleged proceeding, act or negligence which has caused the violation” may file (art. 46(1)); public legal persons may not do so, and private law legal persons may apply “solely on the grounds that their rights concerning legal personality have been violated” (art. 46(2)). Foreigners are not permitted to file a suit with the Court “concerning rights exclusive to Turkish citizens” (art. 46(3)).
Other parts of Chapter 4 cover the application procedure; the admissibility and examination of individual applications; examination on the merits; judgments; and abuse of the right of application. According to the new Law, in general “individual applications may be filed directly or through courts or representations abroad,” with admissibility of application through other modes to be governed by the related regulation on Constitutional Court procedures (art. 47(1)). A Court rapporteur noted that applications submitted by mail or fax will not be accepted. (7 File Petitions as Individuals Gain Access to Constitutional Court, supra.) Guidelines to assist persons who wish to fill out applications of complaint to the Court have reportedly been prepared. (Constitutional Court Starts Accepting Individual Applications, ANADOLU AGENCY (Sept. 24, 2012).)
A fee is payable for each application, in the amount of TL172.5 (about US$96). (Id.; Law No. 6216, art. 47(2).) Acceptability of an application will depend on an investigation conducted by several commissions (set up from among members of a Chamber of the Court). (7 File Petitions as Individuals Gain Access to Constitutional Court, supra; Law No. 6216, art. 48(3).)
The Chambers conduct examination of admissible individual applications on the merits. (Law No. 6216, art. 49(1).) If an individual application is declared admissible, the Ministry of Justice is notified of it by means of a copy of the application for its information. (Id. art. 49(2).) If the human rights violation was caused by a Turkish court decision, the case file is sent back to the concerned court for review and possible retrial, “so that the violation and its results will be cleared up.” (Id. art. 50(2); Constitutional Court Starts Accepting Individual Applications, supra.) Applicants shown “to have clearly abused the right of individual application” may be fined an amount not to exceed TL2,000 (about US$1,100), in addition to being required to pay the cost of the Court proceedings. (Law No. 6216, art. 51(1).)
The new system will undergo a two-year surveillance period to evaluate the effectiveness of the Court reform. During that time, “direct applications to the European court will be effectively closed.” (Erkan, supra.)
Background on the Turkish Constitutional Court and Fundamental Rights Protection Under the Turkish Constitution
With the adoption of the May 7, 2010, amendments to the 1982 Constitution through a referendum approved on September 12, 2010, “the composition, powers and structure of the Court were changed considerably,” and so the 2011 law on the Court’s organization and procedures was enacted accordingly. (About the Court: Introduction, Constitutional Court of the Republic of Turkey website (last visited Oct. 10, 2012).) One of the key amendments was article 148, noted above, allowing individual applications to the Constitutional Court in order to better align the Court’s authority with that of its counterparts in many European countries.
A 2004 amendment to the Constitution, adopted as part of the process of Turkey’s accession to the European Union, had given precedence to the ECHR over domestic laws in the area of fundamental rights. (Erkan, supra.) Characterized by Hasim Kilic as “a revolution,” article 90, paragraph 5, of the Constitution as amended in 2004 states in part, “[i]n the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.” (The Constitution of the Republic of Turkey, supra; Erkan, supra.)
Because lower courts in Turkey failed to implement article 90 and follow the ECHR’s jurisprudence, however, there were nearly 19,000 cases filed against Turkey at the ECHR, second in number only to Russia. As a result, as of 2010, the ECHR had “issued 2,245 judgments against Turkey, many of which concerned ‘the right to a fair trial within a reasonable time.'” (Erkan, supra.) Hence the need for a new attempt to better administer such cases domestically and bolster the powers of Turkey’s Constitutional Court. Only recently, on October 10, 2012, the ECHR decided against Turkey in a case brought by a homosexual man alleging that he had been mistreated for his sexual orientation while in detention in a Turkish prison, in violation of the European Convention on Human Rights. (Maureen Cosgrove, ECHR Rules Detention of Gay Man Violated Rights Laws, PAPER CHASE NEWSBURST (Oct. 10, 2012).)