Individual Application to the Constitutional Court (Constitutional Complaint)

 What is a Constitutional Complaint?

In the event that one of the fundamental rights and freedoms guaranteed in the Constitution and one of the fundamental rights and freedoms under the European Convention on Human Rights is violated by the public power, the application/ remedy to be made to the Constitutional Court is called "individual application" or "constitutional complaint". Individual application is an extraordinary remedy, regulated under Articles 148 and 149 of the Constitution and Articles 45-51 of the Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court. Unfortunately, the fact that rights and freedoms are written in the Constitution is not enough to prevent violations. The constitutional complaint was introduced in order to establish mechanisms/institutional structure to ensure this. 

It is a secondary remedy. This is because other primary remedies must first be exhausted. In other words, it is obligatory to reach the right by going to other administrative and judicial authorities and courts. If this cannot be achieved, this procedure is used. 

It is a limited remedy. Because this legal remedy can only be used in cases where the fundamental rights and freedoms written in our Constitution and the fundamental rights and freedoms in the European Convention on Human Rights are violated by public power actions and transactions. Economic and Social Rights fall outside this scope. An application cannot be made directly against a legislative act such as a law or a general regulatory act such as a statute or regulation. However, if the implementation of these acts by the public power has caused a violation of rights, the right to individual application can be exercised against the implementation act. This remedy cannot be exercised against acts that the Constitution excludes from judicial review. In order to file an application, a current and personal right must be directly affected. 

Why it is important that the Constitutional Complaint Procedure is open

The main aim of the remedy is to prevent violations of rights primarily at the national level and thereby reduce the number of applications to the European Court of Human Rights. Turkey has the second highest number of applications against it after Russia. On the other hand, Turkey is the state with the highest number of violation judgments.  Another aim is to effectively limit state authority in terms of the rights and freedoms of individuals. 

An individual application may be filed within 30 days from the date on which all of these remedies are exhausted, if mandatory administrative and judicial remedies are provided for in the law, or within 30 days from the date on which the violation is learned, if no remedies are provided for. The application can be made to the Constitutional Court or through other courts in the province where the application is filed or through representative offices abroad. There is no obligation to apply with a lawyer. Filing an application does not stop the execution of the procedure. In very exceptional cases, upon the request of the applicant or ex officio, the court may issue an "injunction" to take the necessary measures. 

Two-stage proceedings before the Constitutional Court

The Constitutional Court conducts a two-stage proceeding. The first stage is the admissibility review and the second stage is the substantive review. In the first examination, it is decided whether the application is admissible, and in the second stage, it is decided whether there is a violation of fundamental rights. In the first stage, the subject matter of the application is examined in terms of time and place and it is decided whether it will be accepted or not. Here, especially the issues taken into consideration in other remedies will not be examined. The issue that the Constitutional Court will look at will be whether the situation/decision violates the right in the constitution. No appeal against the decisions is possible. Decisions are final. Examples from around the world show that approximately 95% of the applications are rejected as inadmissible in the first examination. 

According to the statistics of the Constitutional Court in Turkey, this rate is around 79.5% as of 2012-2023. An admissibility decision does not mean that there has been a violation of rights. In Turkey, a total of 551,000 individual applications have been filed since 2012 and 422,000 of these applications have been examined and decided by the Constitutional Court. The rate of cases decided is 76%. Since 2012, the highest number of applications has been for violation of the right to be tried within a reasonable time. The rate of violation determined by the Constitutional Court is 16.7% including the violation of the right to be tried within a reasonable time and 3% excluding the violation of the right to be tried within a reasonable time. It is seen that most applications to the Constitutional Court are made on the grounds of violation of the right to be tried within a reasonable time, violation of the right to a fair trial, violation of the right to freedom of expression and violation of the right to property (taken from the Constitutional Court Statistics).

The individual application to the Constitutional Court is expected to be an effective remedy, easily accessible and sufficient to provide a solution to the problem. It is also essential that the Court itself conducts a fair trial. Apart from this, it is clearly stated by the court that the Constitutional Court will not be a super appellate authority. The most important point is that the criteria of the European Court of Human Rights will be taken into account in the decisions of the Constitutional Court. This is because the ECHR has ruled against the Turkish State against the decisions of the national courts on the grounds of violation of rights. The Constitutional Court makes a great contribution to the solution of this problem.  

Human Rights in the Constitution

8. Below are the rights enshrined in both our Constitution and the European Convention on Human Rights and its Additional Protocols. In cases where these rights are violated by acts and actions of public power, a Constitutional Complaint can be filed. 

Right to life

Prohibition of torture and ill-treatment  

Prohibition of slavery and forced labor

Right to liberty and security

Right to a fair trial

Right to respect for private and family life

Freedom of thought, conscience and religion

Freedom of expression

Freedom of assembly and association

Right to marry

Right to effective remedy

Prohibition of discrimination

Right to property

Right to education

Freedom of movement

Trade Union Rights 

Right to liberty and security of person 

Presumption of Innocence 

The right to vote and to engage in political activity 

Principle of Legality of Crimes and Punishments 

Conclusion

In his speech in 2023, the President of the Constitutional Court said "From the very beginning of the process, we have been experiencing an incomparable workload problem. As of now, there are close to 100,000 pending files before the Court. How heavy this workload is can be better understood when compared to the workload faced by the ECtHR. There are currently 75,000 pending applications from 47 countries before the ECtHR."