His Excellency Mr. President,

Esteemed Guests,

I would like to welcome you to the swearing-in ceremony and extend to you my most sincere and respectful greetings.

I seize this opportunity to congratulate Mr. Yılmaz Akçil on his appointment as a Justice of the Constitutional Court, representing the Council of State quota. I wish his tenure to be prosperous for himself, his family, our Court, and our nation.

This ceremony holds a special significance for me, as Mr. Akçil will be the last justice I have the honour of robing. Thus, I will take this final opportunity to share my thoughts on the oath we take, the robe we wear, and the duties we are to perform.

It is well-known that upon assuming our roles as justices of the Constitutional Court, we pledge before the grand Turkish Nation to safeguard the Constitution, fundamental rights, and freedoms, and to execute our duties guided solely by our conscience.

Swearing-in, in one sense, signifies the act of making a pact and concluding a treaty, necessitating adherence to the pacta sunt servanda principle. Therefore, pacta sunt servanda, which means that promises must be fulfilled, is an indispensable moral and legal principle for societal and state life. In fact, the stability of the State is predicated on the protection of the constitution, regarded as a social contract, and the fundamental rights and freedoms that constitute its raison d’être, ultimately depending on the realisation of the pacta sunt servanda principle.

Today, we are witnessing the erosion of the pacta sunt servanda principle by the unsettling trends in our global landscape. Those who are directed by the fundamental commandment “Thou shalt not kill” have been mercilessly taking the lives of tens of thousands of children, women, and innocent people for months, casting aside all principles and values. Furthermore, they seek to justify their heinous acts by dehumanising their victims, referring to them not as human beings but as “human-like creatures”.

The cure for this widespread malaise, characterised by a breakdown of reason and conscience, can only come through a recommitment to moral principles and the pursuit of justice. Beydebâ, an esteemed philosopher from the Siyasetname (Book of Politics) tradition and the author of Kalila wa-Dimna (Kalila and Dimna), which was penned two thousand years ago, leaves us with guidance that remains profoundly relevant: “Do not do unto others what you would not want done to yourself. Justice is realised through this principle. Moreover, justice not only secures divine approval but also brings satisfaction to the human soul.”¹

It is widely acknowledged that the judiciary and judges play a crucial role in safeguarding fundamental rights and freedoms through the administration of justice. In this regard, the International Court of Justice’s (ICJ) decision, aligning with the imperative “Thou shalt not kill,” is recognised as a commendable step towards upholding judicial responsibility on a global scale, despite all its limitations.

Furthermore, the robe donned at the commencement of a judge’s duty symbolises justice and the profound responsibility it entails. It is believed that in the presence of this robe, justice will prevail, wrongs will be righted, and conflicts will be amicably resolved. This belief is why the esteemed philosopher Mawlana Jalaluddin Rumi described a judge as a “mercy” for the community and “a drop from the sea of justice”.²

A well-known tale effectively captures the essence and importance of the robes we wear. A wounded bird approached Solomon, alleging that a dervish had broken its wing. Solomon promptly called for the dervish and initiated the judgment.

The dervish defended himself as follows: “My Lord, my intention was to capture the bird. It didn’t flee initially, as if it would surrender, so I made my move, and that’s when its wing was broken.” The complainant bird immediately challenged these words, stating, “Had it been a hunter, I would have fled instantly. I stayed because I saw him in a dervish’s attire, thinking a dervish wouldn’t do any harm to me.”

Solomon deemed the explanation reasonable and ruled that the dervish’s arm be broken as punishment. Yet, the wounded bird contested this decision, saying, “My Lord, breaking his arm means he might repeat his actions once it heals. Instead, removing his dervish garb would ensure that future birds aren’t misled.”

This story imparts a significant lesson for us in the judiciary. Our robes symbolise the public’s trust in justice. Upon swearing our oath, it is our duty to refrain from any actions that might erode this trust, upholding our commitment to the pacta sunt servanda principle.

His Excellency Mr. President,

The Constitutional Court has successfully navigated through the severe challenges it encountered, particularly in the last decade, in both constitutionality review and individual application mechanism. On one hand, our Court has, for the first time, laid down the principles and fundamental criteria for reviewing dozens of emergency decree laws and presidential decrees. On the other hand, it has handled a substantial caseload of individual applications with outstanding competence, establishing benchmarks for safeguarding constitutional rights and freedoms.

It bears emphasising that the individual application mechanism marks one of the most pivotal reforms in the history of the Turkish judiciary. The aim behind establishing this mechanism, as articulated by the constitution-maker, is to “enhance the protection of the fundamental rights and freedoms of individuals” and “to reduce the number of applications” to the European Court of Human Rights by addressing grievances domestically.³

The Constitutional Court has adopted a rights-based approach in interpreting the Constitution, in line with the objectives set forth by the constitution-maker, and contributed to the resolution of numerous long-standing legal issues through its decisions/judgments.

In this respect, in the individual applications concerning a lawyer who was subjected to expulsion from a courtroom; a student who was expelled from the university and a public official who was dismissed from the office for wearing a headscarf, the Court found violations by concluding that there was no legal regulation as to the ban on headscarf and that the decisions of the courts cited as the grounds for such ban had failed to meet “lawfulness criteria”.⁴ Accordingly, interferences with the election of religious leaders in minority communities based on similar grounds were found to be in breach of the freedom of religion and conscience.⁵

In addition, the Court has so far rendered hundreds of thousands of decisions/judgments on rights and freedoms falling under the scope of the individual application mechanism, including but not limited to right to life, freedom of expression, right to property, and freedom of association, without any bias towards the identity of the applicant.

In this sense, the Court has assessed the alleged violations claimed by members of parliament and politicians from different orientations, including those sentenced to heavy penalties and those whose sentences have been finalised, and found violations in some of the applications.⁶ In the same vein, the Court found violations of the freedom of expression and the press in the applications lodged by media outlets, journalists or authors with differing political views.⁷

In brief, the Constitutional Court has meticulously examined the applications lodged by citizens from all walks of life, from public officials to merchants, workers and farmers, and has found violations of constitutional rights and freedoms in some applications before it.

These decisions/judgments have significantly fulfilled the intended function of the individual application mechanism in addressing issues within our national legal order, as envisioned by the constitution-maker.

His Excellency Mr. President,

At this juncture, I would like to once again point out misunderstandings about individual application, a mechanism creating an overwhelming impression on the legal agenda.

At the outset, it must be underlined that the Constitutional Court conducts a review of constitutionality in individual applications also known as constitutional complaints. In the constitutional review of norms, the Court examines the constitutionality of a law or a Presidential decree. In individual applications, however, the Court examines whether the acts of public authorities in the form of interpretation and implementation of these norms comply with the Constitution. It is quite apparent that the review of such compliance in individual applications is far from being an appellate remedy.

In this regard, as repeatedly expressed before, the individual application mechanism is not an appellate remedy. In cases not involving any issue as to the interpretation and application of the Constitution, the Constitutional Court does not, in principle, engage in the examination of the facts giving rise to an individual application and interpretation of the rules and principles applied thereto. Nor does it assess the evidence of a given case, or evaluate whether the decision reached at the end of proceedings is correct or justified. The Constitutional Court confines itself, within the scope of the duties and powers conferred upon it, to examining whether any constitutional right or freedom of an applicant has been violated during the proceedings.

Secondly, the Constitutional Court decides on any constitutional conflict brought before it through the individual application mechanism by interpreting the constitutional provisions, as is the case for the constitutionality review. Undoubtedly, all courts, including appellate bodies, engage in the interpretation of the Constitution during the judicial decision-making process that is the subject of an individual application. However, individual applications against court decisions involving such interpretation can only be lodged after the exhaustion of ordinary legal remedies, as enshrined in Article 148 of the Constitution. In this respect, it is exclusively the Constitutional Court that is empowered, within our legal system, to interpret the Constitution in a final and binding manner and to oversee judicial acts and actions of public power.

Lastly, the effective functioning of individual application mechanism is contingent upon the elimination of the violations and consequences thereof. Therefore, the Court’s constitutional and legal mandate extends beyond identifying violations to prescribing measures for their elimination and redress. Redressing a violation and the consequences thereof is, in principle, to ensure restoration of the original state prior to the violation, which necessitates –in cases where the violation stems from a court decision–, the revoking of the decision giving rise to the violation.

It should be noted that no one is obliged to appreciate the Court’s interpretation of the Constitution and constitutional provisions or its decisions/judgments. However, adherence to them is a constitutional obligation in a state governed by rule of law. As a matter of fact, as laid down in Article 153 of the Constitution, the Constitutional Court’s decisions and judgments are final and “binding on the legislative, executive, and judicial organs, as well as on the administrative authorities and real and legal persons.”

Besides, the well-functioning of constitutional jurisdiction that aims at ensuring the supremacy of the constitution and the protection of fundamental rights and freedoms depends on the proper enforcement of the decisions/judgments. Failure to comply with them would undermine the rule of law and render the proceedings meaningless.⁸

As a matter of fact, the enforcement of violation judgments is not only a consequence of Article 153 of the Constitution but, more importantly, reflects the Constitution’s role as a social contract that binds us all, legitimises our powers, and imposes an obligation of loyalty to this contract and the pacta sunt servanda principle.⁹

His Excellency Mr. President,

Esteemed Guests,

As a Justice of the Constitutional Court approaching the end of a twelve-year term of office, I would like to honour my duty of loyalty to my colleagues.

I would like to express my deep respect and heartfelt gratitude to our devoted vice-presidents, justices, rapporteur-judges and all my colleagues who, despite all difficulties and adversities, endeavour to fulfil their duty to protect the Constitution and the fundamental rights of our citizens in the best possible way, through a rights-based approach, in line with the oath they swore on taking office.

On this occasion, I would like to commemorate the retired justices, who recently lost their lives and to wish those who are still among us a healthy life.

I also wish Allah’s mercy upon those who lost their lives in the Kahramanmaraş earthquakes, the first year of which was two days ago, and my condolences to their families and our nation.

Let me also condemn the terrorist attack that took place two days ago at the entrance of the Çağlayan Courthouse in İstanbul and wish our judicial staff and law enforcement officers a speedy recovery. I wish mercy to the citizen who lost his life in the attack and a speedy recovery to our injured police officers and citizens.

Ending my speech, I would like to wish Justice Muammer Topal, who has already completed his term of office, and the recently-appointed Justice Yılmaz Akçil every success in their future professional lives.

I extend my gratitude for your participation in our ceremony and extend my wishes of health and prosperity to you all.

¹ Beydebâ, Kalila wa-Dimna (Kalila and Dimna), trans. Z. Eliaçık, (İstanbul: İnsan Yayınları, 2017), p. 308.

² Mawlana Jalaluddin Rumi, Mathnawi, 3^rd Edition, trans. D. Örs and H. Kırlangıç, (Konya: Konya Büyükşehir Belediyesi Kültür Yayınları, 2010), Volume II, Book VI, 1490, 1495, p. 376.

³ “Legislative Intent of the Bill” and “Report of the Constitutional Committee”, Constitution of the Republic of Türkiye (with annotations), (Ankara: Anayasa Mahkemesi Yayınları, 2018), pp. 922-923.

⁴ See Tuğba Arslan [Plenary], no. 2014/256, 25 June 2014, §§ 91, 98; Sara Akgül [Plenary], no. 2015/269, 22 November 2018; B.S., no. 2015/8491, 18 July 2018.

⁵ See Levon Berç Kuzukoğlu and Ohannes Garbis Balmumciyan [Plenary], no. 2014/17354, 22 May 2019.

⁶ See, for example, Mustafa Ali Balbay, no. 2012/1272, 4 December 2013; Mehmet Haberal, no. 2012/849, 4 December 2013; Sencer Başat and Others [Plenary], no. 2013/7800, 18 June 2014; Ayhan Bilgen [Plenary], no. 2017/5974, 21 December 2017; Eren Erdem, no. 2019/9120, 9 June 2020; Kadri Enis Berberoğlu (2) [Plenary], no. 2018/30030, 17 September 2020; Ömer Faruk Gergerlioğlu [Plenary], no. 2019/10634, 1 July 2021; Mustafa Hidayet Vahapoğlu, no. 2019/19608, 22 February 2022; Aykut Erdoğdu, no. 2019/14067, 20 June 2023; Şerafettin Can Atalay (2) [Plenary], no. 2023/53898, 25 October 2023.

⁷ See, for example, Emin Aydın [Plenary], no. 2013/2602, 23 January 2014; Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015; Ergün Poyraz (2) [Plenary], no. 2013/8503, 27 October 2015; Hakan Yiğit, no. 2015/3378, 5 July 2017; Özgen Acar and Others, no. 2015/15241, 31 October 2018; Ali İhsan Karahasanoğlu, no. 2017/21000, 20 November 2019; Uğurlu Gazetecilik Basın Yayın Matbaacılık Reklamcılık Ltd. Şti. (3), no. 2016/5653, 9 January 2020; Hacı Yakışıklı and Others, no. 2019/13768, 26 May 2021; Hüseyin Kocabıyık, no. 2020/15593, 22 November 2022; Özgür Boğatekin [Plenary], no. 2020/23730, 14 June 2023; Artı Media Gmbh [Plenary], no. 2019/40078, 14 September 2023.

⁸ See the Constitutional Court’s decision, E.2014/149, K.2014/151, 2 October 2014; Kadri Enis Berberoğlu (3) [Plenary], no. 2020/32949, 21 January 2021, § 101.

⁹ Şerafettin Can Atalay (3) [Plenary], no. 2023/99744, 21 December 2023, §§ 61-62.