Constitutional Court Individual Application Processes
1. Introduction
The institution of individual application , introduced into the Turkish legal system with the 2010 constitutional amendment , is a revolutionary mechanism in the protection of fundamental rights and freedoms. Since 2012, the Constitutional Court (AYM) has ceased to be merely a high court conducting normative review and has assumed the function of a court of fundamental rights adjudication to which individuals can directly apply .
However, in recent years, the debate has shifted from the question of "Does the Constitutional Court identify human rights violations?" to "Are the Constitutional Court's decisions actually implemented by lower judicial bodies?" Some decisions of the Court of Cassation and the Council of State have led to serious debates about the rule of law due to the partial or indirect application of the Constitutional Court's binding decisions on the grounds of "differences in interpretation."
This article examines the function of individual applications, the binding nature of Constitutional Court decisions, implementation problems, and the interaction between the Court of Cassation and administrative courts from a legal perspective.
2. Legal Nature of Individual Applications
2.1. Constitutional Basis
Article 148/3 of the Constitution:
"Everyone can apply to the Constitutional Court with the claim that their fundamental rights and freedoms under the European Convention on Human Rights have been violated by public authorities."
This provision has made individual applications a domestic legal remedy based on the ECHR in Turkey
2.2. Legal Basis
The individual application process is regulated in Articles 45-51 of Law No. 6216. The Constitutional Court examines applications only when there is an allegation of " violation of public power "; disputes between private individuals cannot be directly subject to individual applications.
2.3. The Purpose of Fundamental Rights Review
The aim is to ensure that the courts act in accordance with the Constitution and to establish an internal control mechanism within domestic law to remedy human rights violations . In this respect, individual applications serve as a "constitutional filter" before the European Court of Human Rights .
3. Binding Nature of Constitutional Court Decisions
3.1. Constitutional Basis
Article 153/6 of the Constitution:
"Decisions of the Constitutional Court are final. They are binding on the legislative, executive, and judicial branches, administrative authorities, and natural and legal persons."
Therefore, the Constitutional Court's decisions in which it found a violation of rights;
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the Court of Cassation, the Council of State, and all first instance courts .
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A retrial and redress of the violation are mandatory.
3.2. Law No. 6216, Article 50
"If it is determined that the violation stemmed from a court decision, the case will be sent to the relevant court for retrial."
This provision has made binding force a procedural necessity . However, in practice, the concept of "retrial" often remains formal, failing to produce results consistent with the substance of the decisions.
4. Constitutional Court Decisions on Fundamental Rights Regime
The Constitutional Court has established significant precedents in the last 10 years, particularly in the following fundamental rights areas:
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The right to a fair trial (Article 36 of the Constitution),
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Freedom of expression (Article 26),
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The right to assembly and demonstration (Article 34),
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Property rights (Article 35),
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Personal liberty and security (Article 19),
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Privacy of private life (Article 20).
These decisions are consistent with the case law of the European Court of Human Rights (ECtHR).
4.1. Freedom of Expression Decisions
Mehmet Altan (2018) and Şahin Alpay (2018) decisions, the Constitutional Court ruled that the freedom of expression and personal security rights of the detained journalists had been violated;
however, the Istanbul 26th Heavy Penal Courtdid not implement the release order on the grounds that "the decision has not yet become final."
This situation whether the Constitutional Court's decisions can be challenged by lower courts .
4.2. Property Rights and Expropriation Without Compensation
numbered 2019/31563 , the Constitutional Court determined that lengthy lawsuits stemming from expropriation without compensation violate the right to property.
Following this decision, the 6th Chamber of the Council of State adopted the Constitutional Court's jurisprudence and began applying the principle of "proportionality" in administrative compensation cases.
5. Problems in the Implementation of Constitutional Court Decisions
5.1. Resistance of the Judicial Organs
Some Supreme Court chambers and first instance courts limit the general effect of the Constitutional Court's decisions by considering them "specific to the concrete case"
Supreme Court 3rd Criminal Chamber, Case No. 2021/2243.:
"While Constitutional Court decisions are binding, each case must be evaluated in its own specific circumstances."
This approach is incompatible with the letter of Article 153 of the Constitution and undermines the principle of the rule of law
5.2. Reducing Retrial to Procedural Matters
Some courts, after the Constitutional Court finds a violation, decide to "uphold the previous judgment" without conducting a "retrial ." This practice renders the binding content of the Constitutional Court's decision ineffective and prevents the actual remedy of the violation of rights.
5.3. Harmonization Problems in Administrative Justice
Some chambers of the Council of State hold the view that Constitutional Court decisions "cannot be directly applied to administrative actions." However, Constitutional Court decisions on individual applications are binding not only on judicial but also on administrative courts.
Constitutional Court, Case No. 2017/13204 (Ali Rıza Özer decision):
“The finding of a violation is binding not only on judicial bodies but also on administrative authorities; the action must be reversed or corrected.”
6. The Influence of the Court of Cassation and the Council of State
6.1. The Approach of the Supreme Court
The Supreme Court of Appeals has gradually begun to accept the Constitutional Court's precedents more broadly.
In particular, fair trial and property rights now precedents ; and "references to Constitutional Court decisions" are made in grounds for reversal.
However, resistance is still observed in sensitive areas such as freedom of expression and social media posts . This means that the principle of judicial unity is being undermined, despite the constitutional guarantee provided by the Constitutional Court
6.2. Council of State and Administrative Court Practices
In its decision numbered 2022/4131 E., 2023/1425 K. , the 12th Chamber of the Council of State explicitly stated that "the Constitutional Court's violation decision regarding the disciplinary penalty of a public official necessitates the re-establishment of the process," thus taking an important step towards compliance with the Constitutional Court.
However, some chambers limit the Constitutional Court's "annulment or reversal of action" instructions to only compensation. This leads to the violation not being fully remedied
7. Compatibility of Constitutional Court Decisions with the European Court of Human Rights
The Constitutional Court's decisions are largely the European Convention on Human Rights (ECHR) and the case law of the European Court of Human .
However, in some cases, the Constitutional Court deviates from the ECtHR on the grounds of "local discretion."
In the Kavala v. Turkey (2022) decision, the ECHR considered the Constitutional Court's rejection of Kavala's application as a "lack of effective oversight." This decision undermined the international credibility of the individual application system
Therefore, it is essential for the sustainability of the system that the Constitutional Court makes decisions in coordination with the European Court of Human Rights in the future
8. The Issue of Applicability and Effectiveness
8.1. Distinction Between Normative and Concrete Effects
Constitutional Court decisions have a twofold impact:
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Normative effect – It sets precedents that guide other courts.
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Tangible effect – It directly restores the right of the individual whose right has been violated.
However, in practice, most decisions limited to specific cases and fail to create a systemic transformation.
Therefore, the normative impact capacity .
8.2. Compensation and Retrial
The Constitutional Court generally rules for "a retrial" or "payment of moral damages."
However, the failure to pursue these two avenues simultaneously reduces the enforceability of the decisions.
Constitutional Court, Case No. 2019/16893 (Ali Osman Decision):
"If compensation is insufficient to remedy the consequences of the violation, a retrial is mandatory."
9. The Need for Reform and Proposed Solutions
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Monitoring the Binding Nature of Decisions:
Whether Constitutional Court decisions are being implemented must be regularly reported to the Ministry of Justice or the High Council of Judges and Prosecutors. -
Review of Judicial Proceedings:
Disciplinary responsibility should be imposed on courts or administrations that fail to comply with a ruling of violation. -
Judiciary-Constitutional Court Dialogue:
A joint "constitutional judicial dialogue board" should be established between the Court of Cassation, the Council of State, and the Constitutional Court to ensure consistency in jurisprudence. -
Education and Awareness: First-instance judges should receive regular rights-based judicial training to understand the reasoning behind Constitutional Court decisions .
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ECHR Harmonization Mechanism:
Direct integration of ECHR judgments into the case law pool will increase the effectiveness of individual applications.
10. The Context of Fairness and the Rule of Law
The Constitutional Court has become the "last bastion of constitutional justice" in Turkey through its individual application system. However, the success of this system depends not only on the Constitutional Court's decisions but also on the lower judicial bodies internalizing these decisions .
The principle of fairnessrequires judicial bodies to act in accordance with the spirit of the Constitutional Court; to ensure "substantive justice, not just formal justice."
While the Supreme Court's recent increased reference to Constitutional Court precedents is a positive development, inconsistencies in practice are still observed in administrative courts and local courts
11. Conclusion and Evaluation
The Constitutional Court's individual application system is a vital mechanism for protecting fundamental rights in Turkey.
However, the effectiveness of this mechanism the full implementation, the substantive conduct of retrials , and the strengthening of the principle of judicial unity .
In conclusion:
According to Article 153 of the Constitution, Constitutional Court decisions are binding on all organs; legally, it is not possible to dispute this binding nature.
The adoption of Constitutional Court precedents by the Court of Cassation and the Council of State is fundamental to legal certainty.
In retrials, the focus should be on the actual remedy of the violation, not just a formality.
The Constitutional Court should produce decisions in coordination with the European Court of Human Rights and protect the credibility of fundamental rights judgments.
The right to seek justice includes not only the right to file a complaint, but also the right to demand the enforcement of judgments
In this respect, individual applications have become the conscience not only of the individual but also of the rule of law
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