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(Oct 12, 2012) On September 24, 2012, the day that new provisions allowing access by individuals to Turkey's Constitutional Court came into effect, seven persons filed petitions with the Court. The aim of the newly applicable measures, which comprise articles 45 to 51 of the Law on the Establishment and Rules of Procedure of the Constitutional Court of Turkey (Law No. 6216), is to provide an alternative avenue for redress of grievances and thereby reduce the number of applications originating in Turkey filed with the European Court of Human Rights (ECHR). (7 File Petitions As Individuals Gain Access to Constitutional Court, TODAY'S ZAMAN (Sept. 25, 2012); Law on the Establishment and Rules of Procedure of the Constitutional Court of Turkey (Mar. 30, 2011), European Commission for Democracy Through Law (Venice Commission) website; Anayasa Mahkemesinin Kurulusu ve Yargilama Usulleri Hakkinda Kanun [Turkish text of the Law], RESMÎ GAZETE [Official Gazette], No. 27894 (Apr. 3, 2011).)
It is expected that from 50,000 to100,000 individual applications will be submitted to the
The Constitution prescribes under article 148 that individuals who claim that the state has violated their basic rights or freedoms, e.g., the right to life, the right to equality before the law, and freedom of expression, can file a lawsuit with the
Chapter 4 of Law No. 6216 is on individual petitions. It prescribes the right of individual application, reiterating and expanding upon the constitutional provision cited above, as well as stipulating the persons who are entitled to make such applications. (Law No. 6216, arts. 45 & 46.) Only "those whose actual and personal rights are directly affected by the alleged proceeding, act or negligence which has caused the violation" may file (art. 46(1)); public legal persons may not do so, and private law legal persons may apply "solely on the grounds that their rights concerning legal personality have been violated" (art. 46(2)). Foreigners are not permitted to file a suit with the Court "concerning rights exclusive to Turkish citizens" (art. 46(3)).
Other parts of Chapter 4 cover the application procedure; the admissibility and examination of individual applications; examination on the merits; judgments; and abuse of the right of application. According to the new Law, in general "individual applications may be filed directly or through courts or representations abroad," with admissibility of application through other modes to be governed by the related regulation on
A fee is payable for each application, in the amount of TL172.5 (about US$96). (
The Chambers conduct examination of admissible individual applications on the merits. (Law No. 6216, art. 49(1).) If an individual application is declared admissible, the Ministry of Justice is notified of it by means of a copy of the application for its information. (
The new system will undergo a two-year surveillance period to evaluate the effectiveness of the Court reform. During that time, "direct applications to the European court will be effectively closed." (Erkan, supra.)
Background on the
With the adoption of the May 7, 2010, amendments to the 1982 Constitution through a referendum approved on September 12, 2010, "the composition, powers and structure of the Court were changed considerably," and so the 2011 law on the Court's organization and procedures was enacted accordingly. (About the Court: Introduction, Constitutional Court of the
A 2004 amendment to the Constitution, adopted as part of the process of Turkey's accession to the European Union, had given precedence to the ECHR over domestic laws in the area of fundamental rights. (Erkan, supra.) Characterized by Hasim Kilic as "a revolution," article 90, paragraph 5, of the Constitution as amended in 2004 states in part, "[i]n the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail." (The Constitution of the
Because lower courts in Turkey failed to implement article 90 and follow the ECHR's jurisprudence, however, there were nearly 19,000 cases filed against Turkey at the ECHR, second in number only to Russia. As a result, as of 2010, the ECHR had "issued 2,245 judgments against Turkey, many of which concerned 'the right to a fair trial within a reasonable time.'" (Erkan, supra.) Hence the need for a new attempt to better administer such cases domestically and bolster the powers of Turkey's
|Author:||Wendy Zeldin More by this author|
|Topic:||Constitution More on this topic|
|Jurisdiction:||Turkey More about this jurisdiction|
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Last updated: 10/12/2012