11 Years of Individual Application in Türkiye^*

Distinguished Guests,
Esteemed Participants,
Ladies and Gentlemen,

I wish to extend a warm welcome to all of you at the International Conference we have organised to mark the 11^th anniversary of the individual application mechanism in Türkiye. I greet each one of you with the utmost respect.

I would like to begin my speech by commemorating the 750^th anniversary of the passing of the eminent philosopher Mawlana Jalaluddin Rumi, one of the spiritual luminaries of Anatolia. Rumi’s pluralistic philosophy, which places humanity and tolerance at its core, provides a timeless framework for coexisting with our differences – a challenge of paramount significance in today’s world.

In his monumental work, the Dîvân-ı Kebîr (Great Divan), Rumi, who considered the safeguarding of “the other” as one of the fundamental purposes of human existence, eloquently stated: “We are born into this world to elevate those who are despised, those who have fallen, and those who are trampled upon, to the garden of roses, and to bring them joy.”¹ Such profound sentiments, expressed by Rumi some eight centuries ago, continue to serve as a prescription for maladies such as racism, xenophobia, and Islamophobia, which take on new forms with each passing day.

Furthermore, Rumi’s concept of justice, characterised as “putting everything in its rightful place”, serves as the very essence (raison d’être) of constitutional justice, as well as all other branches of the judiciary. The primary mandate of constitutional courts is to effectively safeguard the rights and freedoms of individuals by upholding constitutional justice.

The individual application, also known as the constitutional complaint, has made the role of the constitutional justice in safeguarding fundamental rights and freedoms more prominent and visible.

In our country, the individual application is an institution introduced with the explicit goal of elevating the level of fundamental rights and freedoms, thereby offering a remedy for alleged violations of rights within our national borders. The legislative intent behind the constitutional amendment that established this institution explicitly underscores its purpose as “raising the standards relating to rights and the rule of law” and “enhancing the protection of fundamental rights and freedoms”.

During the 11 years of implementing the individual application, it has brought about substantial changes both at the societal and legal levels.

Foremost, the individual application has ushered transformative changes within the Constitutional Court itself. The Constitutional Court has evolved into an institution tasked with reviewing not only judicial decisions but also those made by the legislative and executive branches, ensuring their compliance with constitutional provisions pertaining to fundamental rights and freedoms. This transformation underscores its unwavering commitment to upholding the principle of the supremacy and binding nature of the Constitution as a whole.

The Constitutional Court has embraced a rights-based approach in fulfilling its duty to ensure the Constitution’s supremacy and protect fundamental rights and freedoms. More importantly, this rights-based approach, which dominates the individual application, has also permeated the domain of constitutionality review.

We can observe that the impact of individual application mechanism on constitutionality review is particularly embodied in two distinct areas. First and foremost, constitutional provisions related to the protection and restriction of fundamental rights and freedoms are, in a sense, solidified through individual applications addressing concrete grievances. These interpretations subsequently extend into the realm of constitutionality review, fostering consistency and synchronicity in the interpretation and application of the constitutional provisions in both areas.

The second impact of individual applications on constitutionality review is that the violations identified due to unlawfulness eventually result in annulment decisions. In fact, violation judgments in individual applications pertaining to various issues, such as the suspension of the pronouncement of the judgment and the failure to redress damages caused by mining activities, have led to the annulment of legal provisions responsible for such violations, using the same reasoning during the concrete review process.

Distinguished Guests,

The impact of the individual application extends far beyond the realm of constitutional justice; it has fundamentally reshaped our entire legal system. This transformation, often described as the constitutionalisation of law, arises as an inevitable consequence of reviewing judicial decisions through the lens of fundamental rights and freedoms. Thanks to the individual application, the constitutional provisions concerning fundamental rights and freedoms have gained greater significance and are being more widely employed and interpreted across various legal domains, ranging from criminal law to commercial law.

As emphasised in the judgments of the Constitutional Court, it is incumbent upon the courts to construe the legal provisions pertinent to the cases brought before them in alignment with constitutional principles and safeguards. In principle, interpreting legislation in accordance with the Constitution is a requisite of the Constitution’s supremacy and its binding authority. The Constitution is not merely a text formulated as a document, but rather a legal living instrument, which steers the legal system and is to be taken into consideration in case of all public acts and actions performed.²

On the other hand, constitutions do not comprehensively regulate all possibilities and developments. The text of the constitution remains fixed, while its interpretation remains dynamic. Consequently, courts may naturally interpret constitutional provisions in varying ways.

In this context, one of the Constitutional Court’s primary duties in the implementation of individual applications is to ensure legal certainty by establishing uniformity in the interpretation of constitutional provisions. Undoubtedly, like other constitutional bodies, courts possess the authority to interpret constitutional provisions when adjudicating disputes before them.³

Nevertheless, it is the Constitutional Court that holds the authority to settle disputes arising from different interpretations and provide definitive and binding interpretations of the Constitution.⁴ This is the sole means of achieving consistency in the various interpretations and applications of the constitutional principles.

Distinguished Guests,

One of the most significant accomplishments achieved through individual application is the integration of the Constitution into the lives of our citizens. I believe we can refer to this situation as the socialisation of the Constitution.

With the introduction of the individual application, it could be said that the events depicted in Oğuz Atay’s novel, Tehlikeli Oyunlar (Dangerous Games), were, in a sense, brought to life. The novel references Rıza, a shopkeeper who takes an interest in the constitution: “It was said that there was a small book, but it held immense judgment. Every matter was resolved in accordance with it. With this book, a person … could enjoy his rights.”⁵

Following the introduction of the individual application mechanism, the Constitution began to capture the attention not only of individuals like shopkeeper Rıza but of nearly everyone, becoming an integral part of every individual’s life. This development has not only raised public awareness of legal remedies but has also transformed the Constitutional Court into an institution that profoundly impacts the lives of our people and our society.

Throughout the past 11 years, individuals from diverse backgrounds have filed complaints with the Constitutional Court about alleged violations of their rights. These complaints encompass a wide spectrum, ranging from the unjust dismissal of a worker from their job to the confiscation of a farmer’s land without due expropriation, from the sanctioning of a local journalist for their article to the suspension of a student from school for participating in a demonstration.

The individual application has seen numerous submissions that allege violations of constitutional rights and freedoms in a wide range of areas, including the right to life, freedom of expression, the right to property, and freedom of religion. For instance, Ms. Sevim claimed that her rights were violated because she could not use her maiden name alone after her marriage, while Ms. Tuğba maintained that her rights were violated because she could not practice law as a lawyer in the courtroom while wearing a headscarf.⁶ Meanwhile, Mr. Binali asserted that his rights were violated when untreated sewage was discharged into a stream near his home, and Mr. Ahmet, alongside others, contended that their properties had been registered in the names of third parties following a cadastral survey.⁷

The Constitutional Court has found violations of rights in thousands, or even tens of thousands, of similar applications, resulting in judgments aimed at rectifying the grievances of the applicants. In these judgments, the Court has laid down fundamental principles governing constitutional rights and freedoms while also pinpointing the structural problems responsible for these violations.

Distinguished Guests,

On both societal and legal scale, the impact of this mechanism alone is undeniably substantial, providing compelling evidence that the individual application represents one of the greatest reforms and achievements in the history of our legal system. The Constitutional Court, from the outset, has been striving to implement individual applications effectively in the direction of better safeguarding and elevating the standards of fundamental rights and freedoms, as manifested in the will of the Constitution-maker.

In this regard, I would like to emphasise that, regardless of the vantage point, the 11-year journey of individual applications constitutes a story of success. When we consider the manifold challenges that have been faced, including the attempted coup against the democratic rule of law, the subsequent declaration of a state of emergency, extraordinary situations stemming from pandemics and earthquakes, and the mounting workload as a result of these, the significance of this achievement becomes even more conspicuous.

Among these challenges, it is vital to underscore the issue of workload. Over the past 11 years, more than 555,000 applications have been submitted to the Court, with roughly 425,000, or about 77%, having been adjudicated. Presently, there are approximately 130,000 pending applications before the Constitutional Court. In the previous year, our Court resolved approximately 74,000 applications, and as of the current year, about 52,000 applications have been adjudicated to date.

The Constitutional Court maintains its diligent efforts to efficiently manage the system it established to handle this substantial workload while adhering to a consistent and stable rights-based approach.

Nonetheless, as we have consistently emphasised, the effective operation of the individual application hinges upon recognising that it is not an ordinary legal remedy, but rather a subsidiary one. Indeed, in individual applications, the Constitutional Court does not directly engage in the first-hand examination of violations of rights, nor does it serve as an appellate body.

On the other hand, reducing the workload is contingent upon enforcing the judgments finding violations. In this regard, it is of paramount importance for legislative, executive, and judicial authorities to take measures to address the specific violations at their source while simultaneously preventing the emergence of new, similar violations.

Failure to take such measures could result in a recurring cycle where disputes related to the same constitutional issue, previously resolved, find their way back to the Constitutional Court. It is evident that this scenario will impede the continued effectiveness of the individual application process.⁸

For this very reason, it is the collective duty and responsibility of all our institutions and organisations, particularly the legislative and judicial branches, to pass on accomplishments facilitated by the individual application to future generations.

Distinguished Guests,

Before concluding my speech, despite all the challenges, I would like to extend my congratulations and heartfelt gratitude to all the dedicated employees of the Constitutional Court, including the vice-presidents, justices, and rapporteur-judges. They have tirelessly implemented the individual application as an effective means of safeguarding the rights and freedoms of our people, setting a global example of best practices.

Likewise, my sincere thanks go out to everyone who contributed to the integration and execution of the individual application mechanism within our legal system, with a special acknowledgment to the Grand National Assembly of Türkiye and all our institutions.

I would like to express my deep appreciation to the representatives of the Council of Europe and the European Union for their instrumental roles in the acceptance and execution of the project that supports various activities related to the individual application, including today’s conference.

I hope that this Conference, which promises to enhance our understanding and implementation of the individual application, will be successful and fruitful in every aspect. I would like to extend my gratitude in advance to my colleagues who have diligently organised the event, the session moderators, in particular the judges from the European Court of Human Rights, as well as academics from our country and abroad, and all participants for their valuable contributions.

I thank each and every one of you for your presence at the Conference and extend my well wishes for your health and well-being.

^* Opening speech at the “International Conference on the 11^th Anniversary of the Individual Application Mechanism in Türkiye”, Ankara, 13 October 2023.

¹ Dîvân-ı Kebîr (Great Divan), as cited in Ergin Ergül, Medeniyet Estetiği Dersleri (Lessons in Civilisation Aesthetics), II/842:836, 2^nd Edition, (Ankara: Adalet Yayınevi, 2023), p. 137.

² Mehmet Fatih Bulucu [Plenary], no. 2019/26274, 27 October 2022, § 76.

³ Hulusi Yılmaz [Plenary], no. 2017/17428, 1 December 2022, § 54.

⁴ Kadri Enis Berberoğlu (3) [Plenary], no. 2020/32949, 21 January 2021, § 71.

⁵ Oğuz Atay, Tehlikeli Oyunlar (Dangerous Games) (1973), 30^th Edition, (Istanbul: İletişim Yayınları, 2014), p. 57.

⁶ Sevim Akat Eşki, no. 2013/2187, 19 November 2013; Tuğba Arslan [Plenary], no. 2014/256, 25 June 2014.

⁷ Binali Özkaradeniz and Others [Plenary], no. 2014/4686, 1 February 2018; Ahmet Alanay and Others [Plenary], no. 2018/32667, 27 April 2023.

⁸ K.V. [Plenary], no. 2014/2293, 1 December 2016, § 53; İbrahim Er and Others [Plenary], no. 2019/33281, 26 January 2023, § 47.