A Cursory Review of the Execution of Judgments of the Turkish Constitutional Court *
7 September 2021
Ladies and gentlemen,
It is a great pleasure for me to address you at the opening session of the 9th International Summer School organized online by the Center for Training and Human Resources Development of the AACC.
Unfortunately for the last two years we have been conducting the summer schools through video-conference due to COVID 19 pandemic. I sincerely hope that next year we will have the programme in person at the building of the Turkish Constitutional Court (TCC).
I am very pleased to see that the number of the participants of the summer schools is gradually increasing. This year colleagues from 28 different courts and institutions are joining us. I am sure the enlargement of the summer school programs will contribute to the cooperation among our courts.
The topic of this year’s summer school of the AACC is a bit different from the previous years. So far, each year we discussed one of the fundamental rights and liberties.
This time you will share your views and experiences on the issue of execution of judgments with a special reference to the decisions of constitutional/supreme courts.
In this opening speech I would like to say a few words about the conceptual aspect of the topic as well as the practice of the execution of the judgments of the TCC.
Let me start my remarks with the observation on the nature of judicial judgments by citing the famous Federalist Paper number 78.
Hamilton, one of the founding fathers of the US, stated that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution”, simply because it has no control “over either the sword or the purse”. In other words, it has “neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments”. 1
This statement reveals that comparing with the executive and the legislative organs the judiciary is a restrained stakeholder in the power sharing system. That is why the same Federalist paper referred to Montesquieu who said “Of the three powers…, the judiciary is next to nothing”. 2
The legal experience since Hamilton has also showed us that judiciary depends not only on the aid of the executive arm but also on the supports of the legislative and even of the fellow judicial arms for the efficacy of its judgments. Now we can easily observe that judiciary is simply nothing without the proper execution of its judgments. Therefore, the execution of judgments by other branches of government is precondition for the efficacy of these judgments.
On the other side of the coin lies the fundamental right to fair trial which requires the execution of court judgments. As already expressed in the judgments of the TCC and European Court of Human Rights, the enforcement of judicial decisions is an indispensable part and parcel of a fair judicial process.
In this regard, the right to a court would be “illusory, if a … legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party.”3 Likewise the non-execution of the judgments will render meaningless not only the right to court, but also all substantial rights and liberties such as the right to the property and freedom of expression.
Therefore, judicial judgments must be duly respected and executed in order to uphold the principle of the rule of law and to protect rights and liberties of individuals.
After this brief conceptual introduction, I would like to summarize the current situation concerning the issue of execution of constitutional court judgments.
Article 153 of the Turkish Constitution clearly stipulates that decisions and judgments of the TCC shall be binding on the legislative, executive and judicial organs as well as all natural persons and legal entities.
There is no doubt that the most important aspect of the binding nature of the judgments is the proper execution of them. The effectiveness of the constitutional review and individual constitutional complaint depend upon the due respect and execution of the judgments delivered by the Constitutional Court.
I must note that the Law on Constitutional Court lays out the binding force of the TCC and the implementation of judgments in the field of constitutional complaints. According to Article 50 of the Law, upon finding a violation the Court must also rule on the requirements to remove the violation and the consequences thereof.
The TCC has interpreted and applied this provision in a number of judgments. It emphasized that in order to decide on the proper remedy, the Court must first determine the source of the violation. If the violation derives from the judicial decisions the TCC remands the judgment to the relevant court for retrial. Where the violation arises out of an act of the Parliament, the Court calls for the Parliament to alter the law in order to remedy the violation.
The TCC has also the power to order compensation in favor of the applicants for redressing the violation.
The provisions of the Law on Constitutional Court reflect the requirements of a violation judgment which were laid down in the case-law of the European Court of Human Rights. In accordance with Article 46 of the Convention, which imposes an obligation to abide the final judgments of the Court, a violation judgment “entails the duty of the state to end the violation, to provide redress to the victim and to prevent similar violations from occurring in the future”.4
Like some other states that adopt the constitutional complaint system, non-execution of violation judgments has inevitably brought about the concerns on the credibility of this system as an effective remedy. In a couple of cases the inferior courts whose decisions caused a violation were reluctant to abide by the judgments of the TCC in the way of reopening the trials of the applicants and remedying the underlying violation.
The reluctance and resistance of the courts to execute the judgments of TCC gave rise to new individual applications. The TCC has swiftly acted to declare more violations of relevant rights and liberties on the ground of non-enforcement of violation judgments, and ordered the courts along with a strong language to abide by the judgments and remedy the violations.5 In the end the courts executed the judgments of the TCC.
The European Court of Human Rights declared the individual application system in Turkey as an effective remedy by referring to Article 153 of the Turkish Constitution. Despite some problems in terms of implementation, the judgments of the TCC are to be properly executed by the relevant authorities, therefore the individual application remains an effective remedy which must be exhausted before launching a complaint to the Strasbourg Court.
Ladies and gentlemen,
The effectiveness of any legal system depends on the proper execution of the decisions of courts in general and constitutional/supreme courts in particular. This in turn requires a continuous cooperation and dialogue between state organs.
Therefore, we must discuss the problem of non-execution of judgments and seek for firm solutions to this problem by sincerely exchanging the experiences in respective states.
Before ending my speech, I would like to thank my colleagues at the Turkish Constitutional Court for organizing this online summer school programme.
I would also like to thank in advance for your valuable contributions. Let me also remind you that the paper and discussions of this meeting will be published in a book.
I wish you every success and a fruitful meeting.
Thank you for your attention.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Turkey|
* Opening Address at the 9th Summer School of the AACC on the “Current Problems in Execution of Judgments: Constitutional Justice”, Ankara, 7 September 2021 (online).
1 A. Hamilton, J. Madison, J. Jay, The Federalist Papers, (New York: Mentor Books, 1964), p. 465.
2 Ibid., p. 466.
3 Horny v. Greece, no. 18357/91, 19/3/1997, § 40; see also Kenan Yıldırım and Turan Yıldırım, no. 2013/711, 3/4/2014, § 42.
4 Ausra Padskocimaite, “Constitutional Courts and (Non)execution of Judgments of the European Court of Human Rights: A Comparison of Cases from Russia and Lithuania”, ZaöRV 77 (2017), 651-684, p. 653. www.zaoerv.de Retrieved on 6.9.2021.
5 Kadri Enis Berberoğlu (3), [Plenary], no. 2020/32949, 21/1/2021, §§ 101-117. For the press release of this judgment in English see https://www.anayasa.gov.tr/en/news/individual-application/press-release-concerning-the-judgment-finding-violations-of-the-right-to-be-elected-and-engage-in-political-activities-and-right-to-personal-liberty-and-security-due-to-the-failure-to-enforce-the-constitutional-court-s-judgment/