Regional Meeting on “Violation Judgments Rendered through Individual Application Mechanism in Civil and Criminal Jurisdiction and Elimination of the Consequences of Violations”

(İstanbul, 14 February 2022)

Distinguished participants,

Ladies and gentlemen,

I would like to extend you all my most sincere and respectful greetings.

Let me firstly express my gratitude towards those who have contributed to the organisation of this meeting and you all for your participation. I wish that the meeting be successful and fruitful. 

As is known, law has been existing since the emergence of society. It will continue to prevail so long as society and state, the organised form of the former, exist.

In the most general sense, social function of law is to ensure people to live together in harmony and peace. It fulfils this function by securing the peaceful settlement of disputes. For this very reason, judge implementing law and notably adjudicating disputes is defined by Mawlana as God’s mercy (rahmet). According to Mawlana, “The judge is a mercy; he is a drop from the ocean of the justice of the Resurrection.”¹

The field where law is manifested in the most concrete way in today’s world is the fundamental rights and freedoms that we enjoy. As is known, law is the plural form of the notion of right. In this sense, we may reasonably say “Raison d'être of law is to protect rights”.

The events taking place notably during the first half of the last century have led to considerable structural changes in terms of the protection of rights and freedoms. Especially the massacres and gross violations of rights taking place in Europe between and during the two world wars have set the fundamental rights regime prevailing today by the second half of the twentieth century.

This regime has been operated and maintained by several national and international actors. On one hand, mechanisms for the protection of human rights have emerged at both universal and regional levels. Among these mechanisms, the most significant one for Turkey is the protection system afforded by the European Convention on Human Rights drafted under the roof of the Council of Europe, one of the founders of which is Turkey. Turkey, involving in the drafting process of this Convention, was among the 14 countries that signed and announced it on 4 November 1950.

On the other hand, the gross violations of rights caused by the authoritarian regimes in Europe have led, at the national level, to the foundation of constitutional courts. It is a well-known fact that in several countries, notably in Italy and Germany, constitutional courts have been founded so as to protect the constitution and fundamental rights and freedoms.

Esteemed participants,

Probably the most important characteristic of the rights regime, which has been formed since the second half of the last century, is in a sense the internationalisation of the human rights issue that has gone beyond the national boundaries. In this regard, the relation between the national judicial actors and supranational human rights bodies issuing decisions upon the endorsement of the contracting countries has come into prominence.

Individual application mechanism, adopted in Turkey by the constitutional amendment of 2010 and put into operation in 2012, has ushered in a new period in terms of this relation. By virtue of the paragraph added to Article 148 of the Turkish Constitution, everyone claiming to be the victim of an alleged violation of the fundamental rights and freedoms under the joint protection of the Constitution and the European Convention on Human Rights is granted the opportunity to lodge an individual application with the Constitutional Court. Taking this opportunity, I would like to note that Turkey is among the exceptional countries making an explicit and literal reference to the European Convention on Human Rights in their constitutions.

More importantly, it is indicated in the legislative intent of the constitutional amendment on individual application that this remedy aims at affording redress for the alleged violations within the national boundaries without the need for raising them before the European Court of Human Rights, which would thus “reduce the number of cases to be brought and violation judgments to be rendered against Turkey” by the Strasbourg Court. Beyond this practical objective, according to the constitution-maker, “the establishment of a well-functioning individual application mechanism also in Turkey will raise the standards based on rights and rule of law.”

Distinguished participants,

At the end of nearly ten years of experience in implementing the individual application mechanism, we should ask the following question: Has the individual application mechanism been operating well as envisaged by the constitution-maker and has it contributed to the improvement of the standard of rights? As one of the practitioners of the individual application mechanism from the very beginning, I consider that the answer is in the affirmative. Despite extraordinary difficulties, especially the ever-increasing workload, the Court has been endeavouring day and night to ensure a well-functioning and effective individual application mechanism.

However, it should be noted that the maintenance of a well-functioning and effective individual application mechanism cannot be achieved by the Court alone. At this point, it is of great importance that the violation judgments are properly understood and executed by the incumbent authorities.

Here, we can say that there are two serious interrelated threats to the individual application mechanism. The first of these is the increasing number of applications. Currently, there are about 66,000 pending applications before the Constitutional Court. Unfortunately, this number is expected to increase even more in 2022. As a matter of fact, the number of applications received in the first month of the new year is nearly 12,000.

The number of individual applications received by the Court only last month is far more than the total number of applications pending before the Federal Constitutional Court of Germany and Spanish Constitutional Court, which have been implementing the individual application mechanism for many years. Unfortunately, the only tribunal which may be considered to “compete” with the Court in terms of workload is the European Court of Human Rights, which has around 70,000 pending applications from 47 contracting states, including Turkey.

The second threat to the individual application mechanism is the failure to execute the violation judgments properly, especially to realise the erga omnes effect of the individual application. As is known, affording redress for the violations sustained by the applicant due to a given interference as found by the Court refers to the inter partes effect of the individual application. This is of course important, but not sufficient.

Besides, the principles and procedures indicated in the violation judgments should be taken into account by all administrative and judicial authorities, thereby preventing similar violations. This refers to the erga omnes effect that is the main purpose sought to be achieved through the individual application mechanism. In other words, the aim pursued by individual application is not to fight and wipe off mosquitoes one by one, but rather to drain the swamp that facilitates their breeding.

In fact, the erga omnes effect in terms of individual application is also a requirement of the principle of subsidiarity. As emphasised in the Court’s judgments, the protection of fundamental rights and freedoms is incumbent primarily on the public authorities and inferior courts. In case of a complaint as to the lack of such protection, then the Court will decide on whether there has been a violation, interpreting the relevant constitutional provisions.

After this stage, the administrative and judicial authorities are expected to perform their practices regarding the same and similar issues in line with the Court’s interpretation and assessment. According to the Court, “Otherwise, all disputes related to the same issue will be brought before the Court. Individual application remedy operating in this manner can in no way be sustained.”²

In brief, the maintenance of the individual application mechanism may only be achieved if the legislative, executive and judicial bodies fulfil their responsibilities in this sense. In cases where it is found that the violation has stemmed from a given law, it is of vital importance that the legislative body amend or annul the legal provisions leading to violations so as to prevent further violations.

In cases where the violation is caused by a decision of administrative and/or judicial authorities, taking of an action only by the incumbent authorities is not sufficient. Other bodies are also expected to make a decision in line with the Court’s judgments on the same matter without waiting for any application to be lodged.

In this scope, I would like to express that the courts of appeal, which have been operating since 2016 and have been an important acquisition for our judicial system, are entrusted with crucial tasks. It is known that the judgments of the regional courts of appeal as well as the regional administrative courts, which cannot be appealed, may be directly subject to individual application.

One of the issues arising through these applications is the failure to make a uniform case-law. In one of its violation judgments regarding this matter, the Court pointed out this problem, stating “It has been determined that the substantial and long-standing differences in terms of case-law among the chambers of the Court of Cassation are also the case among the chambers of the regional court of appeal functioning as the appellate court”. The Court concluded therein that the failure to resolve the aforementioned differences in case-law undermined the fairness of the proceedings, regardless of the given judgment.³ I believe that this problem will also be addressed in today’s sessions.

With these feelings and considerations, I once again wish that the regional meeting will be successful and fruitful. I would like to extend my gratitude to all participants, especially the moderators and speakers, for their contributions.

I wish you all health and prosperity.

¹ Mesnevî-i Ma’nevî, trans: H. Kırlangıç and D. Örs, Book VI, 1496.

² K.V. [Plenary], no. 2014/2293, 1 December 2016, § 53.

³ Aziz Buluntu and Fırat Savğa, no. 2017/22650, 13 February 2020, §§ 34-36.