INDIVIDUAL APPLICATION TO CONSTITUTIONAL COURT
Individual Application to Constitutional Court is governed in the Articles 148 and 149, the provisional Article 18 of Constitution of 1982, as well as the Articles 45 to 51 of the Law on Establishment of Constitutional Court and Adjudicatory Procedures number 6216. In addition, House Regulations of Constitutional Court includes the details related to this individual application procedure.
According to the statistics provided on the official website of Constitutional Court, 38,067 individual applications were made to Constitutional Court in the period between September 23rd, 2012 and April 10th, 2015; 34.482 of which were claims related to the violation of the right to a fair trial.
Application Process and Considerations are as follows:
First of all, the application must be based on the claim that rights and freedoms secured by the Constitution, European Convention on Human Rights and the additional protocols of which Turkey is a signatory country such as right to live, right to a fair trial, personal freedom and liberty, prohibition of torture, right of property, etc., are violated by the public force.
In addition, the violation is required to have happened in Turkey. One cannot refer to the Constitutional Court related to the violations occurred in other countries. This procedure to legal remedies is exceptional: only the claim related to violation of any rights indicated in the Constitution shall be the subject of application.
Who are entitled to apply?
Any natural or legal person, whose right is violated excluding the following exemptions, shall be able to make application in person or through an attorney.
The right to appeal for foreigners was accepted as only limited to the right of foreigners as described in the relevant legislation. Public corporate entities shall not make individual application as the applications are made due to violations performed by public force.
If the applicant passes away, the application may be continued by the heirs if there is legal interest in assertion of right by such heirs. Otherwise, the application shall be dismissed.
When to make the application?
In this regard, under the paragraph 5 of the Article 47 of the Law On Establishment of the Constitutional Court and Adjudicatory Procedures, the provision is as follows: “The individual application is required to be made within thirty days following the date when application procedures are exhausted and in case of no application procedure is envisaged, following the date when the violence is noticed. Those who are not able to appeal due to a just excuse shall be able to make application with the supporting evidence of a valid reason within fifteen days after the expiry of the reason. The court shall first accept or refuse the claim by examining the validity of applicant’s reason.”
How to make application?
The application is required to be made by using the “Individual Application Form” on the official website of Constitutional Court or with a petition prepared in the same format including all required information to be used in the application form. The detailed regulation related to the application form and its annexes is included in the article 59 of House Regulations of Constitutional Court.
The individual application shall be able to appeal either in person or by representative directly to Constitutional Court or through other courts or international representative offices. No legal regulations related to the performance of application by mail, telegram, electronic media shall be included so such means of application shall not be used.
Where the applicant cannot reach the documents referred as basis and indicated in the application form and/or its annexes for any reason, he/she shall be required to state his/her justifications. Where required by the Constitutional Court, these information and documents are collected ex-officio. The applicants shall inform the Constitutional Court in case of any change in their addresses or the conditions related to the application.
In case of missing document, a notification is sent to the application to complete them within 15 days pursuant to the article 66 of the House Regulations of Constitutional Court. It is required to complete the documents within this period of time; otherwise the application is refused for administrative reasons. It is possible to appeal to the Commission within seven days following the notification date of decision. Decisions made by the Commissions in this regard are final.
Examinations to Be Performed by the Court Following the Application:
Admissibility Examination
In order to make the applications be accepted, it is required to make an application complying with the principles indicated in our previous issue and to provide the required documents in full. If an application meets these conditions, it is possible for the Court to make an admissibility decision.
The Court may decide on inadmissibility if it is manifestly ill-founded or if it does not bear any significance for the interpretation or application of the Constitution or for the determination of the scope and limits of fundamental rights and the applicant did not suffer any significant damage.
The decisions on inadmissibility are final and notified to those concerned.
Examination on Basis
Following the decision, made on admissibility, the process starts for the examination on facts, phenomena and claims that are subject to the application.
During the examination of the individual applications, the commission and departments within the organization of the court conducting the examination on the basis, may perform any kind of research and examination whether a fundamental right is breached or not.
The court may request information, documents and evidences, deemed necessary related to the application from those concerned.
The examinations conducted by the court, related to individual applications made against a court decision are limited to whether a fundamental right is breached and how this breach will be recovered.
During the examination on individual applications, the appropriate provisions for the quality of the individual application in the relevant procedures and acts apply for the situations for which there are no provisions in the relevant act or on the House Regulations of the Constitutional Court.
The Constitutional Court’s Decision on Injunction
The overt arrangement is mentioned also for this subject in the paragraph 5 of the article 49 of the Law Related to Establishment of Constitutional Court and Adjudicatory Procedures.
Pursuant to this article: “During the examination on the basis, the departments can decide, directly or upon the request of the applicant, on the injunctions they deemed required to protect the fundamental rights of the applicant. In case of decision on injunction, it is required to make the decision related to the basis within six months at the latest. Otherwise, the decision on injunction is rescinded itself.”
Decisions to Be Made by the Constitutional Court
First of all, the decision is made on whether the right of the applicant is breached or not as a result of the examination conducted on the basis by the Court.
Where the court makes decision on breach, the requisitions to be performed are decided to remove the breach and its consequences.
If it is decided as a result of the examination that the breach is committed by a court decision, the file is submitted to the relevant court to remove the breach and its consequences, and to rehear the case. The court, obliged to rehear the case, makes decision in a way to remove the breach and its consequences, indicated by the Constitutional Court in its decision on breach, over the file if possible.
For the situations where there is no legal interest to rehear the case, it can decide award of damages in favor of the applicant or it can lead the applicant to file case in general courts.
Trial in Case of Examination on Individual Application
The Court conducts the examination over the file but it may make decision on trial when deemed necessary.
Waiver from Individual Application
Dismissal of case is decided in case of waiver from the case pursuant to the regulations in last paragraph of the article 50 of the Law Related to Establishment of Constitutional Court and Adjudicatory Procedures.
Sanction on Malicious Application
With the article 51 of the Law Related to Establishment of Constitutional Court and Adjudicatory Procedures, an overt regulation is decided related to this issue. According to this article: “In addition to the litigation expenses, it is also possible to decide a penalty fine of two thousand Turkish liras maximum against the applicants who are determined to have abused their right of individual application.”
According to the statistics provided by the Constitutional Court, 10.249 applications have been considered inadmissible and they have not been even examined.
Last but not least, European Court of Human Rights has accepted, in its recent decisions, the Individual Application to Constitutional Court as among the domestic remedies required to be exhausted before making application to it. Accordingly, in case of failure to make application in due form to the Constitutional Court and to exhaust the domestic remedies in due form pursuant to the law; it poses an obstacle to make application to European Court of Human Rights that is the next step.