Execution of Judgments Concerning Constitutional Complaints and Their Effects – Speech by Prof. Dr. Zühtü Arslan-Constitutional Court of Turkey-25/04/2016
The 54th Anniversary of the Constitutional Court of the Republic of Turkey International Symposium on “The Execution of Judgments Concerning Constitutional Complaints and Their Effects”
25 April 2016, Ankara
His Excellency Mr. President,
I would like to welcome you to our ceremony on the occasion of the 54th Anniversary of the Constitutional Court and I greet you with all my heart and respect.
The anniversaries of institutions provide prime opportunities to evaluate the contributions of such institutions to society and democratic system. If such anniversary is celebrated by a supreme court, then this evaluation must be with respect to the contributions to a series of values including justice, the rule of law and the fundamental rights and freedoms.
As known by all, the relations between the individual and the state are based on these series of values and there have been various manifestations of such relations depending on the time and place. These values of universal essence all have a corresponding equivalent in our culture. For instance, the understanding of “let people live, so that the state lives” which is deep-rooted in the souls of this land, expresses a human-centred state philosophy. Similarly, we notice the significance of law and justice for the state order in the famous “Kutadgu Bilig” (the Wisdom which brings Happiness) which was written a thousand years ago. In this famous work of Yusūf Khāss Ḥājib, the justice is laid down as the cornerstone of the state and political order, by his expression as “The basis of the State is justice and equity.”
Such an understanding shows that the raison d’être of the State is to let the people live by establishing justice. On the other hand, people may lead a peaceful life by enjoying their rights and freedoms in a secure way only in the existence of a state order. One of the most influential political theorists of the last century Hannah Arendt, on the basis of the bitter experiences of the Second World War, expresses that those who were displaced from their countries and became stateless were deprived of their most basic rights as well. In Arendt’s opinion, “the right to have rights” basically means every individual enjoys the fundamental rights and freedoms in their capacity as equal members of a political or legal community.
The importance of having a State with respect to enjoyment of fundamental rights becomes ever clear when we consider the refugee problems caused by the conflicts in our region.
His Excellency Mr. President,
It has become a common purpose of today’s democratic societies to maintain the lives of people and the States on the basis of justice. The Constitutional Courts are among the institutions established to achieve such purpose. Most of today’s democratic countries have a constitutional court examining the constitutionality of the laws. On the other hand, the constitutional complaint or individual application mechanism, which enables the individuals to directly access to constitutional courts with the allegations on violation of their constitutional rights, has gained widespread implementation and became a part of constitutional justice.
In order to evaluate the contribution of the Turkish Constitutional Court to justice, the rule of law and the fundamental rights and freedoms, we must take a look at the approach adopted and the judgments rendered by the Court in these two main fields of duty, namely the constitutionality review of laws and the examination of individual applications. As a matter of fact, the annual report of the Court for the year 2015, prepared as a first of its kind publication and distributed to the esteemed guests, makes such an evaluation possible by providing substantial information on the activities of our Court and its leading judgments.
In this context, in my speech I would like to dwell upon the current status of the individual application and the judgments rendered and the consequences of such judgments. However, before continuing with this issue, it would be useful to mention the principle of the rule of law which is one of the basic principles that the Constitutional Court takes as a reference in its norm review and examination of individual applications.
It must be noted that Turkish Constitutional Court acts on the basis of constitutional democracy as envisaged by the Constitution. The constitutional democracy, which is the prevalent understanding of democracy in our age, aims to realize the rule of law and to provide effective protection of fundamental rights and freedoms regardless of which form of government is adopted by the State. As a matter of fact, in one of its judgments the Constitutional Court noted that the idea of protecting the human rights and even of not being able to raise these rights as issues for voting underlies the basis of constitutional democracy.
It is known by all that the rule of law is the most important element of constitutional democracy. This principle, which is the most widely-relied principle in the Constitutional Court’s norm review with respect to relations between the individual and the State, expresses the rule of law in general terms and its implementation in actual terms.
The Roman jurist Ulpian formulated the basic tenets of the law and, in one sense, of justice as living honestly, doing no harm to others, and giving to each person what is due. The justice is the basis of the State and so is the law that of justice. The law is a vital need of every society like bread, water or air that we breathe. Therefore, ensuring and maintaining the rule of law is the guarantee of a country’s future.
The Court defines the state of law, in its various judgments, as “A state which is based on human rights, protecting and strengthening these rights and freedoms, abiding by the laws in its acts and actions, establishing a just and fair legal order in all fields of life and maintaining this in a progressive manner, ensuring the legal security, avoiding the unconstitutional behaviours and attitudes, ensuring the sovereignty of law on all state organs, deeming itself bound by the Constitution and the laws and being subject to judicial review”.
The Constitutional Court interpreted in its judgments such aspects of the state of law as legal security and independence of judiciary. The Court expressed the requirements of this principle by stating in one of its judgments “the principle of legal security requires that the legal norms be foreseeable, that the individuals have confidence in the State in all their acts and actions and that the state refrain from methods impairing such sense of confidence while making the legal regulations.”
On the other hand, the definition of the regimes as democratic state of law depends on the existence of independent and impartial judiciary and judges. As a matter of fact, a chapter of Mecelle (the civil code of the Ottoman Empire in the late 19th and early 20th centuries) titled “Conduct of judges” expresses “The judge must be impartial towards the two parties”. In other words, it appears that the judge must be obliged to secure the justice by observing complete impartiality towards the two parties.
The Constitutional Court defines the independence of the judiciary as “the basic and most effective guarantee of human rights and freedoms” and the aim of the judicial independence as “the administering of justice free from every form of direct or indirect influence, pressure, instruction and doubt”. As the Court emphasized in one of its judgments “The independence, being a characteristics of the judiciary, is that the judge decides freely and impartially without being exposed to any external influence other than the requirement prescribed in the Constitution and free from any reservations or concerns.”
On the other hand, the institutional independence and impartiality of the judiciary is not per se sufficient for realizing the rule of law completely. In addition to this, the judges exercising the judicial power must be virtuous in person.
In this context, the observations on the judge’s requirement of being virtuous as expressed many centuries ago by Ibn Rushd, one of the important figures of intellectual history, still applies to today. Being a physician and a judge by profession, Ibn Rushd states, when commenting on Plato’s “The Republic”, that ideal state knows neither physicians nor judges; however, they are required due to unhealthy diet and lack of mutual love and friendship among the people.
In the opinion of Ibn Rushd, one of the main virtues to be observed in a judge is that his nafs (self) is free from malice, in other words he must be moral and virtuous. The physician’s illness does no harm to the patient that he treats. However, a morally corrupt judge cannot be fair. As a matter fact, such a morally corrupt judge does not know the virtue and its source. On the other hand, a virtuous judge knows both his inner self and discerns the good and the evil in the others’ nafs through the experience that he accumulates.
Consequently, one cannot mention the state of law in the absence of independent and impartial justice. Undoubtedly, the state of law does not mean a “rule by judges” in the sense of a krytocracy.
His Excellency Mr. President,
As it is mentioned before, the main objective of the constitutional democracies is to ensure effective protection of fundamental rights and freedoms. With the constitutional amendments in 2010, the Constitutional Court was assigned the duty of examining individual applications which was a new and significant step towards realizing the said objective. We must present a quantitative and qualitative review of contributions by the Constitutional Court to the protection of these fundamental rights and freedoms within the scope of this new duty assigned to the Court.
When we look at the statistics, total number of applications filed to the Court since the beginning of the individual application practice (23 September 2012) is 59.833. 37.536 of these applications, in other words 63 % thereof, have been decided by our Court and 22.297 applications are pending.
I am more than happy to share with you that the annual ratio of applications decided by our Court against the number of applications filed is ever increasing year by year. The Court’s annual ratio to decide the applications filed was 50 % in 2013. This ratio increased to 53 % in 2014 and to 77 % in 2015. Accordingly, the Court’s capacity to keep up with the applications filed increased by 50 % in 2015. These figures show that the individual application mechanism has become manageable and sustainable. The measures taken by the Court in the last year with respect to the operation of individual application system made a significant contribution to achieving such progress.
The Court has ruled for violation of rights in its 1.215 judgments. Approximately 73 % of these judgments are on the right to a fair trial, 6 % of them on the right to liberty and security of person, 4 % on the right to property, 3 % on the right to life, 3 % on freedom of expression and 11 % on the other rights and freedoms.
I would like to express that 75 % of the violations of the right to fair trial are related to right to trial within a reasonable time. Of these violations, 55 % are related to trial proceedings lasted 5 to 10 years, 19 % 10 to 15 years, and 16 % are related to proceedings length of which is over 20 years.
As a matter of fact, the lengthy trial proceedings are a general and structural problem. The principles on right to a trial within a reasonable period of time have been established in details by the European Court of Human Rights (“ECtHR”) and the Turkish Constitutional Court. The applications within this scope are decided in line with the said principles and, when a violation of right is identified, the Court awards a just satisfaction as a natural consequence of decision.
In this context, the examination of applications related to right to trial within a reasonable time has become a well-established practice for the Constitutional Court. Further, the ECtHR does not examine this category of applications filed before a certain date and such applications are decided by awarding just satisfaction to be determined by a Commission of the Ministry of Justice established with Law No. 6384 dated 9/1/2013.
As it is known, perhaps the primary reason for such lengthy trial proceedings is the heavy workload of the judiciary. I would like to express that we welcome the positive steps taken to solve this problem. In this respect, we hope that the regional courts of appeal to become operational soon will contribute to deciding the cases within a reasonable period of time. Besides, I would like to share my opinion that it would be beneficial to adopt methods of alternative dispute resolutions, to develop the currently existing ones and to ensure their efficiency in practice.
His Excellency Mr. President,
I would like to touch upon three effects of the individual application, one of which is practical and the rest of which are transformative on our social life and legal system.
The practical effect of individual application is that it resulted in a considerable decrease in the number of applications filed against Turkey before the ECtHR. As it is specified in the legislative intent of the constitutional amendment adopted in 2010, one of the most important aims for introducing the individual application into Turkish legal system is to resolve the disputes on fundamental rights within our domestic law. The figures verify that we have achieved this practical goal to a considerable extent. The number of applications filed against Turkey before the ECtHR and assigned to a judicial formation has decreased to 2.208 in 2015 while it was approximately 9.000 in 2012.
As it is seen, the number of applications to the ECtHR has considerably decreased after the introduction of individual application. On the other hand, considering that we have decided on 37.536 applications so far, only a very limited number of these applications were further brought before the ECtHR. As a matter of fact, as seen in its various decisions, the Strasbourg Court declares the applications inadmissible for non-exhaustion of domestic remedies if an application is lodged directly with the ECtHR without applying to the Constitutional Court.
The first transformative effect of the individual application is that it is the engine and main instrument of the Constitutional Court’s paradigm shift. This paradigm adopts an approach which prioritizes the human together with his/her fundamental rights and freedoms. The individual application requires a “rights-based” approach by its very nature and this characteristic of the individual application also affected the constitutionality review conducted by the Court. Accordingly, the Court adopted an approach which prioritizes the rights and freedoms in carrying out the constitutionality review of the laws.
Another transformative effect of the individual application practice is that it has provided the individuals with direct access to constitutional justice after exhausting ordinary legal remedies. As it is known, the individual application paves the way for a constitutionality review which complements the norm review. The Court examines the constitutionality of a norm in abstract terms while carrying out the norm review whereas it examines the constitutionality of the acts and actions of public authorities in individual applications.
As a consequence of this process, the Constitutional Court became socialized, in other words it has become an institution which contacts the society and the daily lives of the people. Although the individual application attracted public attention through the applications filed by publicly-known persons, our Court has examined the applications filed by thousands of not so much known citizens on problems which may be faced by almost anyone in daily life and determined violation of certain rights in some of these applications. In this context, thousands of people, having exhausted ordinary legal remedies, apply to the Constitutional Court for various reasons varying from cadastral proceedings exceeding reasonable time period to confiscation of lands without expropriation, from permanent disabilities due to medical negligence to loss of their relatives in traffic accidents.
For instance, in an application, the applicant’s spouse died when the taxi she took was crashed by another vehicle. It was understood that the driving licence of the other vehicle’s driver had been temporarily seized in the past due to drunk driving, that he was drunk at the time of the accident and he caused the accident by driving well above the speed limit and running red light. The criminal proceedings against those causing the accident lasted for 8 years and one month and discontinued due to statute of limitations.
The Constitutional Court emphasized that the discontinuance of the proceedings due to statute of limitations would shatter the applicant’s (spouse of the victim) and the whole society’s confidence in the rule of law and that it would give an impression as unlawful actions are tolerated and the State remains indifferent to such actions. The Court ruled that the victim’s right to life was violated as the actions alleged to have caused his/her death went unpunished.
Although most of the applications relate to these kinds of problems that we may encounter in daily life, apart from these, we see that certain problems of the society which have become chronic and politicized are brought before the Constitutional Court through individual applications. The Court decided on many issues which occupied the public agenda for a long period of time such as headscarf, surname of a married woman, unlawful wiretapping and the press leak thereof, anonymous witness, the use of digital data as evidence in proceedings and internet journalism.
In reviewing all the applications, the Constitutional Court examined the allegations of the applicants on the violation of their rights with a “rights-based” approached with no regard to the applicants’ religious, political or ideological identity. A typical example of the paradigm shift and “rights-based” approach of the Constitutional Court can be tracked down in its judgment on an individual application related to headscarf.
The applicant, who is a lawyer, demanded to participate in a hearing with her headscarf like the way she wears in her daily life. The judge of the court did not permit her to participate in the hearing by referring to the judgments of the Constitutional Court and the European Court of Human Rights on the issue of headscarf. Then she filed an individual application with the Constitutional Court.
In its judgment on the said application, the Constitutional Court recalled the “liberal” understanding of secularism which allows for the religion’s visibility in the individual and public sphere as expressed previously in the Court’s constitutionality review on the provision of law publicly known as “4+4+4”. Acting on the reality of “the existence of different religions, faiths or disbeliefs in the society”, the Constitutional Court emphasized that the State must establish a political and legal order, where the individuals live together in peace with their faiths, by protecting the social diversity.
The Court concluded that the prevention of the lawyer from participating in the hearing by wearing her headscarf violates freedom of religion and conscience and the prohibition of discrimination.
His Excellency Mr. President,
The Constitutional Court rendered important judgments in certain individual applications which were subject to intense public debate and discussion. In this context, the Court ruled in the applications of the detained deputies that their right to liberty of person and right to be elected were violated as their detention exceeded reasonable time period. Similarly, the Court ruled that a retired Chief of Staff’s right to effective objection against deprivation of his liberty was violated as the justifications of the judgment convicting the said retired Chief of Staff was not announced for a long period of time. The Court ruled that the applicants’ right to a fair trial was violated in the cases where a large number of the Turkish Armed Forces staff were being tried and which were followed closely by the public.
On the other hand, the Constitutional Court rendered very important judgements on the freedom of expression as well. The Court emphasized in these judgments that the freedom of expression is a sine qua non element of a democratic society and that this freedom is a requirement of pluralism, tolerance and broad-mindedness. The Court noted that the freedom of expression is applicable not only to opinions that are favourably received but also to opinions and thoughts regarded by others as “disturbing”.
Nevertheless, the Court states in its judgments that the freedom of expression is not absolute in nature and may be restricted for the reasons prescribed in the Constitution. However, as per Article 13 of the Constitution, such restrictions shall not impair the very essence of the freedom of expression, shall not be contrary to the requirements of a democratic society and the principle of proportionality.
At this very point, I would like to touch briefly upon the relation between the freedom of expression and the terror which our country has been fighting against for many years. I participated in the conference on the freedom of expression organized by the Council of Europe in Strasbourg only three days after the terrorist attack to Ankara railroad terminal last year. In my speech at the opening of that conference, I referred to French thinker Lyotard who establishes a connection between terror and the freedom of expression, and I expressed that terrorism confines the people to a dark silence and destroys not only the individuals’ right to life, but also their freedom of expression, freedom to speech and address the society which are the most distinctive characteristics of human beings.
The freedom of expression, in democracies, allows for discussing the most bitter problems freely and defending the proposals and solutions. The prerequisite of such freedom is to abandon the terror, violence and the violent speech. As it is emphasized in the judgments of the Constitutional Court and the European Court of Human Rights, the expressions inciting terror and violence are not protected by the freedom of expression because the word is to be of no significance when the terror and violence emerges.
His Excellency Mr. President,
Consequently, the Constitutional Court contributes through its judgments to realizing such values as justice, rule of law and fundamental rights and freedoms which we mentioned at the beginning. We firmly believe that these judgments increase the individuals’ confidence in the State and the law by satisfying their sense of justice.
For these reasons, individual application can be defined as an important institution and achievement for our legal system. It has been known that the individual application system implemented in Turkey is cited among the best practices which may serve a model to other countries.
It is surely beyond doubt that the principal share of this success belongs to the legislative power which introduced the individual application to our legal system, in other words it belongs to the Grand National Assembly of Turkey and to our nation as the true holder of the sovereignty. Taking this opportunity, I extend my appreciation to all persons and institutions who contributed to introduction and effective implementation of individual application mechanism. I would also like to extend my special thanks to each and every one of our Court’s vice-presidents, justices, rapporteur-judges and assistant rapporteur-judges as well as the administrative staff for all their devoted efforts.
On this occasion, I would like to express my condolences to the relatives of Mr. Hasan Semih Özmert, retired President of our Court, and Mr. M. Yılmaz Aliefendioğlu and Mr. Hüseyin Karamüstantikoğlu, retired justices of our Court, who passed away last year. May Allah rest their souls in peace! I also pray for all our martyrs and all our veterans who passed away, especially for Gazi Mustafa Kemal Atatürk. May Allah rest their souls in peace!
Finally, I would like to express my thanks in advance to all Turkish and foreign speakers and participants to contribute the symposium which will start in the afternoon. I firmly believe that the presentations and discussions to take place during the symposium will make significant contributions to better understanding and implementation of the individual application.
I would like to welcome the esteemed foreign colleagues and guests and extend my thanks for their personal presence and honouring our anniversary.
His Excellency Mr. President,
Ending my word, I would like to express my gratitude for your participation to honour our anniversary. I extend my wishes of health and prosperity.
Prof. Dr. Zühtü ARSLAN
The Constitutional Court of the Republic of Turkey
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