Constitutional Court Individual Application in Turkey

I. What is an Individual Application to the Constitutional Court?

The Individual Application to the Constitutional Court, aimed at protecting fundamental rights and freedoms, was introduced into the 1982 Constitution of the Republic of Turkey through the referendum of September 12, 2010, and has been implemented since September 23, 2012. The third paragraph of Article 148 of the Constitution states: “Everyone may apply to the Constitutional Court with the claim that any of their fundamental rights and freedoms guaranteed in the Constitution, or any right within the scope of the European Convention on Human Rights, has been violated by public authority.”

Through individual application, anyone can apply to the Constitutional Court alleging violations of their rights and freedoms. The Constitutional Court defines individual application as a constitutional guarantee that identifies fundamental rights violations suffered by individuals and provides effective means to remedy the identified violation.

In Turkey, fundamental rights and freedoms are defined in the Constitution. Furthermore, to defend these fundamental rights and freedoms, rights holders are given the opportunity to file a lawsuit with the Constitutional Court, the highest court, through individual application.

II. Conditions for Individual Applications to the Constitutional Court in Turkey

1. Violation of a Fundamental Right Enshrined in the Constitution and the European Convention on Human Rights (Subject Matter Requirement for Application)

For an individual application to the Constitutional Court, the fundamental right or freedom alleged to have been violated must be one of the fundamental rights and freedoms guaranteed both in the Constitution and under the European Convention on Human Rights and its additional protocols. If an individual application alleges a violation of a right or freedom guaranteed in the Constitution but not recognized in the European Convention on Human Rights and its additional protocols, the application will be rejected on the grounds that it does not meet the necessary subject matter requirements.

The applicant’s fundamental right or freedom must have been wrongfully interfered with by a concrete public authority through an act, action, or omission.

Fundamental rights and freedoms covered by the European Convention on Human Rights and its additional protocols include:

• The right to life,
• Prohibition of torture,
• Prohibition of slavery and forced labor,
• Right to liberty and security,
• Right to a fair trial,
• No crime or punishment without law,
• Right to respect for private and family life,
• Freedom of thought, conscience and religion,
• Freedom of expression,
• Freedom of assembly and association,
• Right to marriage,
• Right to effective remedy,
• Prohibition of discrimination,
• Right to property,
• Right to education,
• Right to free elections.

It is possible to raise these rights through individual applications to the Constitutional Court. In this context, fundamental rights that are guaranteed in the Constitution but are not included in the European Convention on Human Rights and its additional protocols are also rights that cannot be subject to individual application;

• Freedom of work and contract,
• The right to work,
• Working conditions and the right to rest,
• The right to social security,
• The right to enter public service.

These rights cannot be the subject of an individual application to the Constitutional Court.

2. Exhaustion of Domestic Remedies

An individual application to the Constitutional Court is a secondary and exceptional means of seeking redress after exhausting all domestic legal remedies, based on the allegation that fundamental rights and freedoms have been violated by a public authority.

According to the principle of subsidiarity, the duty to ensure respect for, implement, and fulfill the fundamental rights and freedoms enshrined in the constitution primarily belongs to administrative authorities and judicial organs. Therefore, individuals are generally obliged to first raise their allegations of violations before administrative authorities and judicial organs and to take steps to remedy the violation.

The right to individual application is the last legal remedy at the national level to prevent violations of rights and freedoms. Before an individual application can be made to the Constitutional Court, ordinary legal remedies must have been exhausted and no solution reached. Therefore, the applicant must prove that effective remedies have been exhausted. The Constitutional Court may reject the application with a decision of inadmissibility, both during the admissibility and substantive examination stages, on the grounds that the remedies provided for in the law have not been exhausted.

3. Application must be submitted within 30 days of learning of the final decision (Time Limit Requirement for Application).

For an individual application to be examined by the Constitutional Court, it must first be filed within the prescribed time limit. Therefore, the court will investigate ex officio whether the application was filed within the time limit, and applications not filed within the time limit will be rejected.

The individual application must be filed within thirty days from the date on which all available remedies were exhausted; if no available remedy is provided, within thirty days from the date the violation was learned. As can be seen, the thirty-day period is absolute and constitutes a forfeiture period.

Those who could not apply within the time limit due to a valid excuse may apply within fifteen days from the date the excuse ceases to exist, along with evidence supporting their excuse. The court will first examine whether the applicant’s excuse is valid and will accept or reject the request accordingly. For the applicant to benefit from the delayed application procedure, they must clearly and explicitly state the nature of their excuse in the application petition. Evidence supporting the excuse must also be attached to the application petition.

4. The Violation Occurring in a Territory Under the Sovereignty of the Republic of Türkiye (Local Requirement for Application)

To be eligible for an individual application to the Constitutional Court, the violation of rights and freedoms must have occurred through the exercise of public power on behalf of the Republic of Turkey, and the violation must have taken place within the jurisdiction of the Republic of Turkey.

Violations of rights and freedoms occurring within the jurisdiction of the state, on territory controlled by the state, are subject to application. Therefore, the violation must have occurred on territory under the sovereignty of the Republic of Turkey, and the state must be competent and responsible.

5. Application Requirements Regarding the Individual

Anyone can file an individual application with the Constitutional Court. Therefore, Turkish citizens, foreign natural persons, and private and public legal entities can apply. The applicant must prove that they are a victim and that the violation was committed by public authority. Furthermore, the applicant’s right must have been directly affected, and the applicant must have suffered significant harm.

For an individual to file an individual application with the Constitutional Court, it is necessary that a current right of the applicant has been violated, that the applicant has been directly and personally affected by the violation, and that the applicant claims to be a victim as a result.

6. Application Requirement in Terms of Time

The Constitutional Court’s temporal jurisdiction begins on September 23, 2012. The Court can only examine applications filed against final actions and decisions that became final after this date. Accordingly, temporal jurisdiction is considered ex officio at every stage of an individual application.

If an action or decision concerning an alleged violation that occurred before September 23, 2012, becomes final after this date, the Constitutional Court has temporal jurisdiction and will examine the application. If domestic remedies were exhausted and the decision became final before September 23, 2012, the Court will not examine the application.

III. Constitutional Court Individual Application Form in Turkey

1. Completing the Individual Application Form

Applications to the Constitutional Court must be made in accordance with the conditions specified in the Law on the Establishment and Procedural Rules of the Constitutional Court and the Rules of Procedure of the Constitutional Court. First, the individual application form must be completed in Turkish.

The application form can be accessed on the Constitutional Court’s website. Individual applications can be made directly to the Constitutional Court, through courts, or via overseas representations. Generally, the application form, which serves as an application petition, must be completed accurately and correctly. If there are any deficiencies in the application form, you will be given 15 days to complete them.

The application form includes the following sections, which must be completed:

• If the applicant is a natural person, their Turkish Republic identity number, name, surname, mother’s name, father’s name, date of birth, gender, nationality, profession, address, telephone number, and email address are required.
• If the applicant is a legal entity, their MERSİS number, title, address, and the name, surname, Turkish Republic identity number, tax number, telephone number, and email address of the person authorized to represent the legal entity are required.
• If the application is made through a lawyer; Attorney’s name, surname, bar association and registration number, correspondence address, telephone number and email address
• A chronological summary of the events
• Which of the applicant’s fundamental rights was violated, the reason for the violation, and the supporting evidence
• The alleged violations of fundamental rights and the connection between these violations
• A chronological list of the stages of exhaustion of remedies
• The date on which remedies were exhausted or, if no remedy was provided, the date on which the violation was learned
• An explanation of why the application could not be made within the time limit due to an excuse
• The applicant’s requests
• The number of any other application the applicant has pending before the Court
• If there is a request to keep the applicant’s identity confidential in publicly available documents, the reasons for this request
• The signature of the applicant, their attorney, or legal representative. If there is a request for interim measures, the reasons for it.

2. Appendices

There are documents that must be attached to the application form. You must attach these documents in chronological order and numbered accordingly. It is especially important to include all documents that substantiate your claim of a human rights violation. You must list the documents you have attached on the first page of the application form. The documents you must attach to the application form are:

• For applications made through a lawyer, the following documents are required:
• Power of attorney
• Photocopy of the applicant’s identity card
• If the application is made by a legal representative on behalf of a legal entity, an official document showing that the representative is authorized to act
• Document showing the date of learning of the final decision
• Documents substantiating the alleged human rights violations in the application
• If a compensation claim is made, documents relating to the damage suffered
• Certified copies of ordinary and extraordinary appeal petitions. If the application could not be made within the deadline, documents proving the excuse, if any. If a request for legal aid is made, documents relating to this.

IV. The Individual Application Process to the Constitutional Court in Turkey

The individual application process consists of three stages: preliminary examination, admissibility examination, and examination of the merits.

1. Preliminary Review

The preliminary examination is the stage at which it is determined whether individual applications meet the necessary formal requirements. Formal deficiencies will be examined at this stage. If there are deficiencies, the applicant will be given time to complete them. The subject of the preliminary examination is whether the formal requirements regarding application fees, legal aid, representation, time limits, and application forms have been met. The preliminary examination is carried out by the individual application office. For applications that meet the formal requirements, the admissibility examination will proceed.

2. Admissibility Review

The Commissions conduct the admissibility review of individual applications. The admissibility review is the assessment of whether an individual application is sufficient for substantive examination. Te admissibility review examines whether the individual application meets the application requirements. Applications found admissible will proceed to substantive examination.

If, during the admissibility review, it is necessary to determine whether an application is important in terms of the application and interpretation of the Constitution or the determination of the scope and limits of fundamental rights, whether the applicant has suffered significant harm, or if the resolution of the application requires a principle decision or if the decision to be taken may conflict with another decision given by the Court, the Commissions send the application to the relevant Section without deciding on the admissibility issue.

3. Review of the Merits

Individual applications are decided by the Chambers. After a decision on the admissibility of an individual application is made, a copy of the application is sent to the Ministry of Justice. The Ministry of Justice, if it deems necessary, provides its opinion in writing to the Constitutional Court. This opinion is not binding.

In the examination of the merits, it is examined whether fundamental rights and freedoms have been violated by public authority, and whether there has been an interference that restricts rights and freedoms.

In the examination of the merits, the scope of protection of the fundamental right that may have been violated is first determined. Then, it is determined whether there has been an interference with the scope of protection of that right. If the action taken by the public authority has a restrictive effect on freedom, then there is an interference with the scope of protection. Finally, the constitutional justification of the interference is considered. The court thoroughly examines whether the fundamental rights of the individual applicant have been violated and decides whether a violation has occurred.

V. Decisions of the Constitutional Court

1. Interim Measures

The Constitutional Court can only issue interim measures if it is determined that there is a serious threat to the applicant’s life or physical or moral integrity. The Constitutional Court may issue interim measures upon the applicant’s request or on its own initiative. With an interim measure, the applicant will be protected against potential threats that may arise until the Constitutional Court renders its decision.

An interim measure is, by its nature, a side case. If the Constitutional Court issues an interim measure, it must give priority to the application and render its decision on the merits within six months at the latest. Otherwise, the interim measure is automatically lifted. An interim measure is not issued unless there is a serious threat to the person’s life or physical or moral integrity.

2. Abuse of Rights

If the Constitutional Court determines that the applicant has clearly abused their right to individual application, it may impose court costs and a disciplinary fine of no more than two thousand Turkish Lira against the applicants.

Behaviors that are clearly contrary to the purpose of the individual application procedure and that prevent the Court from properly evaluating the application are considered an abuse of the right to apply. The Constitutional Court rules that the right to apply has been abused in the following cases:

“relying on factual information that is deliberately untrue or submitting information and documents of this nature with the aim of misleading the Court; failing to provide information about an essential element in the evaluation of the application; preventing the Court from forming a correct opinion about the application by failing to inform the Court about new and important developments that have occurred in the evaluation process and that would affect the evaluation; using an insulting, threatening or provocative tone incompatible with the purpose of an individual application, while reserving the limits of civil and legitimate criticism; and submitting an application that is devoid of content incompatible with the purpose of identifying the violation and eliminating the violation and its consequences within the scope of this application process.”

3. Decisions Made During the Preliminary Review Phase

Administrative Refusal Decision

If there are procedural or formal deficiencies in an individual application, the applicant or their representative will be given a period not exceeding fifteen days to remedy these deficiencies during the preliminary examination phase. This period is final and cannot be extended. If the deficiencies are not remedied within this period, an administrative rejection decision will be issued regarding the application. The applicant has the right to appeal within 7 days of the rejection decision being served. The applicant’s appeal will be examined by the relevant commission. Tke commission’s decision is final.

4. Decisions Made During the Admissibility Review Phase

Decision of Inadmissibility

An application that does not meet the application requirements is deemed inadmissible. The Constitutional Court also issues inadmissibility decisions regarding decisions it finds manifestly unfounded.

The Constitutional Court issues inadmissibility decisions regarding individual applications on the grounds that they are manifestly unfounded, including: appeals to appellate courts; applications where there is no clear or apparent violation; unproven complaints; complex and contrived complaints; and applications where the intervention is clearly legitimate.

If an application contains more than one alleged violation, the Constitutional Court evaluates each allegation separately and may decide on admissibility for some allegations and inadmissibility for others.

Admissibility Decision

Applications that meet the requirements and are not clearly inadmissible will be deemed admissible. Following this, a substantive review will be conducted.

Decision of Dismissal

A decision of dismissal will be issued if the applicant withdraws from the case. The Chambers or Commissions may issue a decision of dismissal at any stage of the proceedings if: the applicant explicitly withdraws from the case; it is understood that the applicant has abandoned the case; the violation and its consequences have ceased to exist; there is no reason, for any other reason determined by the Chambers or Commissions, to justify continuing the examination of the application; or, in the event of the applicant’s death, the heirs or relatives do not declare their intention to pursue the application, or if they do declare it but do not have a legitimate interest. A decision of dismissal can be issued at any stage of the proceedings.

Decisions Made During the Merits Examination

Decision that No Violation Occurred

If the Constitutional Court concludes that the fundamental rights and freedoms that are the subject of the individual application have not been violated by public authorities, it will rule that no violation has occurred. This decision will not change the applicant’s situation, and the individual application will be terminated.

Violation Decision

A violation ruling is a declaratory judgment. The ruling determines the unconstitutionality of an action, deed, or decision taken against a person, or a decision that should have been taken but wasn’t.

If a violation ruling is issued, it orders the necessary measures to remedy the violation and its consequences. The Constitutional Court may decide to end an ongoing violation. However, this decision alone does not eliminate the damage already incurred.

If the identified violation stems from a court decision, the Constitutional Court decides to send the case back to the relevant court for a retrial to remedy the violation and its consequences. The court obligated to conduct the retrial must do so in a manner that remedys the violation and its consequences as explained in the Constitutional Court’s ruling. The Constitutional Court clarifies the difference between deciding on a retrial and conducting a retrial as follows: in the case of a decision to conduct a retrial, the existence of a reason for retrial is accepted, and the lower court has no discretionary power regarding the annulment of the previous decision.

In cases where there is no legal benefit in conducting a retrial, the Constitutional Court may award compensation in favor of the applicant. Compensation is awarded in cases where it is not possible to remedy the damage or restore the right in any other way.

For compensation to be awarded, the applicant must request compensation in the application form and attach documents relating to the damage suffered. In cases of multiple rights violations, the Constitutional Court may order a retrial for one of the violated rights and award compensation for the other.