Swearing-in ceremony of the newly-elected Justice Mr. Basri Bağcı was held at the Grand Tribunal Hall of the Constitutional Court.

President of the Republic of Turkey Mr. Recep Tayyip Erdoğan, Speaker of the Turkish Grand National Assembly Mr. Mustafa Şentop, Vice-President Mr. Fuat Oktay, President of the Republican People’s Party Mr. Kemal Kılıçdaroğlu, President of the Court of Cassation Mr. Mehmet Akarca, President of the Council of State Mr. Zeki Yiğit, Minister of Justice Mr. Abdulhamit Gül and members of the high judiciary and other guests attended the ceremony.

President of the Constitutional Court Mr. Zühtü Arslan, the Deputy-presidents and the Justice Mr. Basri Bağcı welcomed the guests.

As part of COVID-19 precautions, the guests wore masks and were seated at intervals in accordance with the social distance rule.

During his speech at the ceremony, President Mr. Arslan congratulated Mr. Bağcı and wished him success, expressing his belief that Mr. Bağcı would contribute to the Constitutional Court with his vast professional experience as well as his profound knowledge in the field of human rights law.

“An Extraordinary Ceremony”

President Mr. Arslan, mentioning that an extraordinary swearing-in ceremony was being held under the measures of COVID-19, stated “I hope this will be the last ceremony we have held in this manner”. Pointing out that this ceremony represented the current situation very well, Mr. Arslan continued as follows:

 “The world has been fighting a dangerous pandemic for a considerable time. Maybe this is the first time in the history that we have been experiencing a global quarantine. Our daily routines and habits have changed. On the other hand, such periods, where the life has slowed down, led to self-examination by individuals, institutions, and even the whole society. In this regard, the current pandemic has reminded us of at least two things. First, the pandemic, which has spread all around the world and rendered helpless even the developed states, has shown how important the national and international solidarity is.

We all know that the concept of solidarity has a special place in our intellectual and spiritual roots. For example, Al-Farabi, a famous philosopher who lived eleven centuries ago, stated that the way to maintain a virtuous society and state is solidarity. According to Al-Farabi, a society in which people help each other to achieve the real happiness is a virtuous society. A nation where all cities help each other for the same purpose is a virtuous nation. Furthermore, a virtuous universal society can be achieved if all nations help each other to find the happiness.”

 “Protection of fundamental rights is not only legal but also a moral issue”

Mr. Arslan, emphasizing that another point reminded by the pandemic is the indispensable nature of fundamental rights and freedoms, added “By placing us, if you will, under house-arrest for a long time, the pandemic has once again shown us how valuable the fundamental rights and freedoms, such as personal freedom, freedom of movement and freedom of worship, and especially the right to life, which are preconditions for living humanely, are.”

Stating that the protection of rights and freedoms is one of the most important elements of democracy, President Mr. Arslan recalled that the Constitutional Court has, in its many judgments, described democracies as “the regimes in which fundamental rights and freedoms are ensured and guaranteed to the greatest extent”.

Mr. Arslan, specifying that the protection of fundamental rights is also a moral issue as well as a legal one, stated “We must admit that those who are not like us, do not think or live the way we do also enjoy rights. In other words, the notion of ​​rights requires the acknowledgement of the 'other' as the subject of the rights”.

“Racism and xenophobia are much more dangerous than the pandemic”

President Mr. Arslan stated that racism, xenophobia and Islamophobia, which stem from a sick image of “other” especially in the West, continue to endanger fundamental rights and freedoms. Noting that these concepts are fatal, Mr. Arslan continued as follows:

“Here we are talking about the attitude to destroy the 'other', which is, in the words of Lyotard, a postmodernist philosopher, “to treat her/him like a garbage” that will be burned in the end. Therefore, racism and xenophobia are much more dangerous than the current pandemic for the future of humanity. A virtuous society cannot be achieved through the mentality of killing the refugees arriving at the borders, where necessary, to deny their entry the country, and even showing them as the cause of the coronavirus, thus making them to be perceived as demons. Likewise, a virtuous universal society cannot be built with an approach that does not allow a person to breathe because of his/her colour or belief. The cure of this morbid mentality is a justice-based pluralist understanding that sees human as “the most honourable creature”. As emphasized by the Constitutional Court in one of its judgments, in a pluralistic society, the State is under an obligation to protect the differences and those who are different against any threat”.

 “Constitutional Court renders right-oriented decisions/judgments”

Pointing out that the duty of the Constitutional Court is to protect fundamental rights and freedoms and that therefore the Justices of the Court have sworn to protect the Constitution and fundamental rights and freedoms, Mr. Arslan stated “It should be noted with satisfaction that the Constitutional Court copes with the increasing workload in terms of both constitutionality review and individual application on one hand, and it renders right-oriented decisions/judgments on the other. The Turkish Constitutional Court has continued to discharge its functions with appropriate methods by taking the necessary precautions during the pandemic”.

Three elements of justice: Impartial judiciary, fair trial, enforcement of the judicial decisions

Emphasising that the foundation of a virtuous society and state where individuals may co-exist without being subject to discrimination and violence is justice, President Mr. Arslan noted “The justice symbol, a blindfolded lady carrying a set of scales in one hand and a sword in the other, represents impartial justice, fair trial and enforcement of the judicial decisions”.

President Mr. Arslan, pointed out that impartiality of a judge or a court primarily requires independence as laid down in Article 138 “No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions”.

“A State without law is similar to a patient assisted with a life-support system”

Citing that Jalaluddin Rumi defined the judge as “the scale of God” and stated that judge is “mercy” and “a drop from the ocean of justice on the day of judgment”, Mr. Arslan noted “Indeed, the law embodying the principle of fair trial is a mercy for the social and state life. That is why a state without law is like a patient assisted with a life-support system”. He further noted:  

“Justice requires implementation of judgments reached by the judge through the scale of justice. Two-edged sword symbolises the rule of law and binding authority of justice. As highlighted in the judgments rendered by the Turkish Constitutional Court, one of the important elements inherent in the right of access to a court is the effective enforcement of the judicial decisions. Otherwise, ensuring access to the court and holding a trial becomes futile.”

Pointing out that justice requires duly enforcement of the just decisions issued by the independent and impartial judiciary, President Mr. Arslan noted that ensuring and maintaining public confidence in judiciary is contingent upon the realisation of the three elements of justice.

"Nearly 40.000 individual applications were adjudicated last year"

Mr. Arslan stressed the fact that no country successfully implementing the individual application mechanism received such a considerable number of applications, as Turkey did. He continued:

“The Turkish Constitutional Court received nearly 43.000 individual applications only in 2019 during which approximately 40.000 applications were adjudicated. The Court has made a significant progress in concluding the received applications in the last two years, which is 93%. Nevertheless, even such an outstanding and great performance does not suffice for us. Our objective is to adjudicate, at least, as many applications as the Court receives within the year.”

President Mr. Arslan stated “More than half of the Court’s judgments finding a violation concern the right to a fair trial. It appears that the ratio of files involving a violation under this right is 52,1%, which demonstrates that there is an important issue with respect to fair trial that should be addressed.”

Noting that rendering decisions so as to protect fundamental rights and freedoms is not per se sufficient, President Mr. Arslan stated that it is of importance for ensuring, as well as good administration of, justice to also revise the practice in light of the decisions and judgments rendered through the individual application mechanism.

He further indicated that the Turkish Constitutional Court has been setting out basic criteria in consideration of the established case-law developed by the European Court of Human Rights with respect to the rights covered by the individual application mechanism; and that what is expected of the Turkish judiciary and the administration is to carry these standards and criteria into practice.

“Judicial and administrative authorities should take note of the principles set by the Constitutional Court”

President Arslan, pointing out that the individual application mechanism is not a remedy capable of addressing or redressing all human right violations in the country, stated that the judicial and administrative authorities should resolve the issues by taking into consideration the principles, criteria and procedures laid down by the Constitutional Court. He further emphasised that statutory amendments are also necessary to eliminate the violations resulting from legislation.  

He indicated that the ultimate aim of the individual application mechanism is to prevent occurrence of violations, rather than to address and eliminate all violations afterwards one by one. President Arslan continued “To attain this aim, all administrative and judicial authorities should consider the principles laid down in the Constitutional Court’s judgments in similar cases before them without awaiting further applications to be lodged. In cases where the violation results from legislation, the way to prevent new violations is undoubtedly introducing statutory amendments.”

After the speech of President Mr. Arslan, the swearing-in ceremony was proceeded with the presentation of the curriculum vitae of the new Justice Mr. Basri Bağcı who then took his oath. Mr. Bağcı was vested with his robe by President Mr. Arslan.

Click on the full text of the speech delivered by the President