Paylaş | 24 September 2021
Pointing to the binding nature of the Constitutional Court’s judgments as clearly and precisely formulated in Article 153 of the Constitution, President of the Constitutional Court Mr. Zühtü Arslan stressed that no discretionary power was afforded to any institution, including the judiciary, in compliance with and proper execution of these judgments or nor was any exception introduced in this regard. President Arslan, noting that in case of a retrial order by the Constitutional Court, the inferior courts had no other option but to rehear the case, also stated “This is not an option but a constitutional and statutory obligation, as emphasised in the Court’s judgments”.
The project on “Supporting the Effective Implementation of Turkish Constitutional Court Judgments in the Field of Fundamental Rights”, which is co-funded by the European Union and the Council of Europe, was launched in Ankara. A conference was also held on the occasion of the launching of the project and the “9th Anniversary of the Entry into Force of the Individual Application System to Constitutional Court”.
Among those attending the launching ceremony were President of the Constitutional Court Mr. Zühtü Arslan, President of the Court of Cassation Mr. Mehmet Akarca, President of the Council of State Mr. Zeki Yiğit, Minister of Justice Mr. Abdulhamit Gül, Deputy Minister of Foreign Affairs and Director for EU Affairs Mr. Faruk Kaymakçı, Head of the European Union Delegation to Turkey Mr. Nikolaus Meyer-Landrut, Head of Ankara Program Office of the Council of Europe Mr. Cristian Urse, members of the higher judicial bodies, representatives from non-governmental organisations, bureaucrats, jurists, academics, as well as foreign guests. Deputy Secretary General of the Council of Europe Mr. Bjørn Berge also attended the conference online from Strasbourg.
Following the stand in silence, recitation of the Turkish National Anthem and listening of the Anthem of European Union, the conference proceeded with the opening remarks.
During his speech, Head of the European Union Delegation to Turkey Mr. Meyer-Landrut congratulated the Turkish Constitutional Court on its success in the individual application mechanism and stressed that individual application was a significant means, as a domestic remedy, for the protection of human rights. Deputy Minister of Foreign Affairs and Director for EU Affairs Mr. Faruk Kaymakçı stated that the legal system would be further strengthened by way of raising awareness of the Constitutional Court’s jurisprudence and individual application mechanism. Deputy Secretary General of the Council of Europe Mr. Bjørn Berge, stating that the Human Rights Action Plan previously declared was of an impressive nature attracting attention, also expressed his endorsem*nt for the enforcement of the Constitutional Court’s judgments.
Pointing to the individual application before the Constitutional Court as one of the paramount steps to be taken for the reinforcement of state of law, Minister of Justice Mr. Abdulhamit Gül emphasised that everyone and every institution were to comply with the Constitutional Court’s judgments as required by state of law.
State of law is not only a matter of discourse
In his opening remarks, President Arslan indicated that the execution of judicial decisions was an element that was complementary to the process of fair trial. Noting that the proper and effective execution of court decisions was one of the distinctive characteristics of a state of law, President Arslan further stated that state of law was not only a matter of discourse, and that the non-execution of the judgments finding a violation “amounted to a gross breach of the principle of rule of law as well as of the constitutional order predicated on this principle”.
Individual application is a great acquisition for our country
Indicating that the binding nature of the Constitutional Court’s judgments were formulated in a clear and precise manner in the Constitution, President Arslan noted that the last paragraph of Article 153 of the Constitution afforded no discretionary power to any institution, including the judiciary, or introduced no exception with respect to the duly execution of these judgments.
President Arslan, stating that individual application was a great acquisition for our country and its citizens, expressed that it was under the joint responsibility of all of us, notably of the Constitutional Court, to transfer such a great acquisition to next generations as an effective legal remedy.
Number of individual applications lodged with the Turkish Constitutional Court is higher than that of the cases brought before the European Court of Human Rights by 47 countries
Touching upon the difficulties faced in relation to individual application and giving comparative examples as to the workload, President Arslan pointed to the excessive number of pending applications before the Turkish Constitutional Court, which was higher than that of the cases brought before the European Court of Human Rights by 47 countries in total. He also provided a general elucidation of the nature of the individual application, which had been already laid down in the Court’s decision of 1 March 2012 in the case of a constitutionality review. He further emphasised:
“The ultimate aim pursued by the individual application institution is to ensure the prevention of further violations through the effective execution of the individual application judgments. Let me use swamp as a metaphor: the aim pursued by individual application is not to fight and wipe off mosquitoes one by one, but rather to drain the swamp that facilitates their breeding.”
Every judgment where the Constitutional Court finds a violation is also establishment of an unconstitutionality
Stating that every judgment where the Court found a violation was also establishment of an unconstitutionality, President Arslan recalled that it was incumbent on all relevant institutions and organisations of the State to eliminate the unconstitutionality, as well as to prevent the occurrence of further ones.
The project will promote the dialogue among the Constitutional Court and the stakeholders
Before concluding his speech, President Arslan, expressing his sincere belief that the four year lasting project would greatly contribute to the promotion of the constructive dialogue between the Court and the stakeholders as well as to the better understanding of the individual application mechanism’s erga omnes effect, extended his gratitude to those playing a part in the project.
Panel on the “Transformative Effects of Individual Application Judgments”
Following the opening remarks by President Arslan, the Project Coordinator Mr. Sergey Dikman delivered a presentation to offer an insight into the project.
At the afternoon sessions, a panel on the “Transformative Effects of Individual Application Judgments” was held. The first session titled “Erga Omnes and Inter Partes Effect of Individual Application Judgments” was moderated by Vice-President of the Constitutional Court Mr. Hasan Tahsin Gökcan while the second session titled “Execution of Individual Application Judgments in Comparative Law” was moderated by Justice of the Constitutional Court Mr. Engin Yıldırım. The programme ended with the closing remarks by Director of Human Rights of the Council of Europe Mr. Cristophe Poirel and Vice-President of the Constitutional Court Mr. Kadir Özkaya.
Stakeholders and Aim of the Project
The project adopted and implemented within the framework of the Instrument for Pre-Accession Assistance is fully funded by the European Union and the Council of Europe. The project, main beneficiary of which is the Turkish Constitutional Court, has several stakeholders consisting of institutions and non-governmental organisations, which include but are not limited to the Grand National Assembly of Turkey, courts, the Union of Turkish Bar Associations, the Justice Academy of Turkey and the Council of Prosecutors and Judges.
The project aims at raising awareness of judges, prosecutors, lawyers and other stakeholders concerning the jurisprudence of both the European Court of Human Rights and the Turkish Constitutional Court, ensuring the execution of the Constitutional Court judgments and effectively addressing the gaps in the field of human rights, as well as at reinforcing the cooperation between Turkish Courts, including the project stakeholders, and the courts of the EU member countries as well as the ECHR.
Click for the full text of the speech delivered by President Zühtü Arslan.
