CONSTITUTIONALITY REVIEW AND INDIVUAL APLICATION TO THE TURKISH CONSTITUTION COURT
CONSTITUTIONALITY REVIEW AND INDIVUAL APLICATION TO THE TURKISH CONSTITUTION COURT
The Plenary of the Turkish Constitution Court shall examine the constitutionality, in respect of both form and substance, of laws, Presidential decrees and the Rules of Procedure of the Grand National Assembly of Turkey. Constitutional amendments shall be examined and verified only with regard to their form.
However, Presidential decrees issued during a state of emergency or in time of war shall not be brought before the Constitutional Court alleging their unconstitutionality as to form or substance. In addition, no appeal to the Constitutional Court shall be made with regard to international agreements, on the grounds that they are unconstitutional.
There are two procedures for constitutionality review in Turkey. One of them is Action for Annulment and the other is Contention of Unconstitutionality. While the Action for Annulment is also known as abstract control of norms the Contention of Unconstitutionality is named as concrete control of norms. Because contention of unconstitutionality can be initiated by general administrative and military courts and any party involved in a case being under scrutiny before a court.
The President of the Republic, the two parliamentary political parties and groups having the greatest number of members in the Turkish Grand National Assembly and a minimum of one-fifth of the total number of members of the Turkish Grand National Assembly have the right to apply for annulment action to the Constitutional Court with the claim of unconstitutionality in the form or in the substance of articles or provisions of laws, Presidential decrees, the Rules of Procedure of the Grand National Assembly of Turkey. As a rule, the right to apply for annulment directly to the Constitutional Court lapses sixty days after publication in the Official Gazette of the relevant legislation. However, applications for annulment on the grounds of defect in form shall not be made after ten days have elapsed from the date of promulgation of the law. Verification as to form may be requested by the President of the Republic or by one-fifth of the members of the Grand National Assembly of Turkey.
Being different from the abstract control of norms, contention of unconstitutionality can be initiated only against laws and Presidential decrees. And it shall not be appealed by other courts to the Constitutional Court on the grounds of defect in form. In this procedure, if a court finds a quo that the law or the Presidential decree to be applied is unconstitutional, or if it is convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties, it postpones the consideration of the case until the Constitutional Court decides on the issue.
Within this framework, conditions for contention of unconstitutionality are as below:
– The case must be pending case,
– The case must be examined by a “court”,
– The contested law or Presidential decree must be applicable to the case,
– The disposition intended to apply must be considered as unconstitutional or the claim of unconstitutionality must be serious.
Upon review, the Court may either dismiss the case or annul the contested legal provision upon finding contrary to the Constitution.
Individual Application and Appeal to Constitution Court
Turkey became a party to the European Convention on Human Rights in 1954, recognized the right to individual application to the European Court of Human Rights in 1987 and the compulsory jurisdiction of this Court in 1990. With the constitutional amendment in 2004, the international agreements on fundamental rights and freedoms to which Turkey is a party to, especially the European Convention on Human Rights, were attributed a greater significance than that of domestic laws. The most recent development regarding the amendments referring to “universal standards” of fundamental rights is the introduction of individual application to the Constitutional Court with the constitutional amendment in 2010.
With the actual implementation of the individual application beginning from 23 September 2012, the constitutional jurisdiction review has been implemented against the infringements of rights caused by persons or institutions exerting public authority. Accordingly, as of 23 September 2012, every person may apply to the Constitutional Court in Turkey alleging that the public power has violated any one of his/her fundamental rights and freedoms secured under the Constitution which falls into the scope of the European Convention on Human Rights.
Kaya & Partner Hukuki Danışmanlık
Lawyers – Rechtsberatung