“Constitutional Court has Turned into an Institution Interacting with the Society through Individual Application”

The 6th Summer School of the Association of Asian Constitutional Courts and Equivalent Institutions (“the AACC”), organized by the Constitutional Court of the Republic of Turkey between 17-22 September 2018 within the scope of the activities of the Permanent Secretariat of the AACC, ended.

The 6th Summer School of the AACC started with the opening ceremony held in the Constitutional Court of the Republic of Turkey.

President of the Constitutional Court Mr. Zühtü Arslan, in his inaugural speech that he delivered in the opening ceremony of the 6th Summer School of the AACC, themed “Right to Liberty and Security” and held between 17 and 22 September 2018, stated that the summer schools were the organizations aiming at the exchange of information and experience between the constitutional courts and equivalent institutions and making contributions to the development of relations between the institutions.

President Mr. Arslan stated that the representatives from the constitutional courts and equivalent institutions of 18 countries attended the summer school of this year and added that there was a broader participation compared to the previous years, which was pleasing.

Mr. Arslan, pointing out the individual application system, stated that the individual application was a significant acquisition for the protection of fundamental rights. Underlining that the individual application system with approximately six years history had two important consequences, Mr. Arslan stated that the first consequence was the change of paradigms, where the ideological-oriented paradigm was abandoned and the right-oriented approach was adopted.

Indicating that “With the individual application, the Constitutional Court has departed from the elitist approach and turned into an institution interacting with the society and dealing with the alleged violations of rights suffered by the individuals in their daily lives.”, President Mr. Arslan stressed that the second consequence of the individual application system was the improvement of the standards in the protection of human rights and fundamental freedoms. Mr. Arslan noted that thus, there had been a significant decrease in the number of the applications lodged with the European Court of Human Rights (“the ECHR”) against Turkey, as well as in the number of violation judgments.

- “156.000 Individual Applications out of 200.000 have been Concluded”

President Mr. Arslan, pointing out that since 2012 when the individual application system came into effect, over 200 thousand applications were lodged with the Constitutional Court and 156.000 applications out of them were concluded, stated that “This is a historic success”.

Mr. Arslan, pointing out that the large part of the applications were concluded with the decision of inadmissibility, continued as follows:

“Applications can be lodged with the ECHR upon dismissal decisions of the Constitutional Court. However, we see that in very few of these applications, violation is found by the ECHR. This demonstrates how diligently the Constitutional Court examines the individual applications and how reasonable is the direction that it proceeds. I would like to reiterate once again that the individual application system is a significant acquisition for the rule of law and the protection of fundamental rights in our country. I am sure that as it is better comprehended, the individual application system will be more commonly adopted by especially our courts and all public institutions, lawyers and our citizens, and it will become much more functional.”

- “The Most Significant Matter to be Resolved in terms of Individual Application: Workload”

Mr. Arslan, pointing out that for such a difficult mechanism as individual application to become established, 6 years’ experience was not enough, stated that “We are at the beginning of the road and we have a lot of work to do”. Stressing that the increase in the workload with the effect of the state of emergency period declared in the aftermath of the coup attempt of July 15th and lifted recently was the most significant matter to be resolved within the scope of individual application, Mr. Arslan noted that a significant progress was achieved in this respect and that the rate of the applications dealt with increased by taking measures such as “list-based procedure” whereby a mass decision was rendered in respect of individuals with similar complaints”.

Stating that the number of individual applications pending before the Turkish Constitutional Court was about 43.000, which approximated to the annual number of individual applications lodged in the recent years, President Mr. Arslan noted “Tribunals which have been operating individual application system for many years, such as the Federal Constitutional Court of Germany and the Constitutional Court of Spain, receive 3.000-5.000 applications every year. Besides, the total number of applications lodged by 47 countries with the ECHR, which is 60.000, will be an indicator of the heavy workload of the Turkish Constitutional Court”.

President Mr. Arslan indicated that endeavour to eliminate human rights violations one by one was like a fight against mosquitos without draining the swamp. He also emphasized that the original purpose of individual application system was to prevent further violations by means of ensuring the elimination of issues that led to violations in the legal order and that they wished to achieve this objective through precedent judgments.

- “Criticisms concerning the Procrastination of Examination of Individual Applications Related to Detention do not Reflect the Truth”

President Mr. Arslan noted that the Turkish Constitutional Court treated, with priority, the applications related to detention and endeavoured to conclude such kind of applications within the shortest time possible.

Pointing out that the criticisms “the Constitutional Court has already procrastinated the individual applications on detention in spite of having previously concluded them within a shorter period” did not reflect the truth, Mr. Arslan stated that “The judgments rendered at the end of 2013 in respect of two applicants, who were elected as a member of parliaments while being detained on remand, were cited as “swift” decisions, whereas the violation judgments rendered at the beginning of this year in respect of two journalists detained on remand were cited as “procrastinated” decisions. These judgments have nothing in common, except for their being a violation judgment. In its judgments of 2013, the Constitutional Court found a violation due to the detention periods of almost 4,5 years by considering the facts that the applicants were elected as a member of parliament, thereby they exercised their rights to stand for election and to represent. On the other hand, the judgments, which were rendered at the beginning of this year, found a violation in the context of unlawfulness of detention as the detention orders and indictments were lack of strong suspicion of guilt”.

President Mr. Arslan emphasized that there were no significant differences between the periods when these individual applications were concluded. Accordingly, he added “One of the judgments of 2013 was adjudicated within approximately one year while the other was within over one year. The judgments of 2018 were adjudicated within one year and two months as well as within one year and four months. Regard being had to the then workload of the Constitutional Court, it will be easily seen how much these criticisms are unreasonable. During the period when the judgments of 2013 were rendered, the total number of pending applications was about 5.000, only 220 of which were concerning detention. During the period when the judgments of 2018 were rendered as well as the state of emergency was prevailing, over 5.000 out of 40.000 pending applications, in total, concerned detention. As a matter of fact, taking into account these facts and the Turkish Constitutional Court’s endeavours to render leading judgments on these matters, the ECHR did not consider the periods of almost 14 and 16 months, in the applications lodged by the same persons, as a breach of the European Convention on Human Rights”.

- “Individual Applications on Detention Lodged by Journalists will be Concluded within the Shortest Period”

Indicating that the Turkish Constitutional Court swiftly rendered its leading judgments on detention in spite of its workload brought along by the state of emergency, Mr. Arslan also noted “In light of the principles set out in these leading judgments, the Constitutional Court will, within the shortest period, conclude the individual applications on detention lodged by journalists who are detained on remand pending appeal or who have been recently released”. 

- Activities of the Summer School

During the event of the 6th Summer School of the AACC, the participants made presentations concerning the “Right to Liberty and Security” in their countries. Within the scope of the activities, a General Assessment Session and Certificate Ceremony were held on 19 September.

The event of the 6th Summer School of the AACC was ended with the social program during which the participants paid a visit to Konya between 20-22 September.

Association of Asian Constitutional Courts and Equivalent Institutions

Conference of Asian Constitutional Courts that was established to bring together the constitutional and supreme courts of the Asian countries in a common working environment became the Association of Asian Constitutional Courts and Equivalent Institutions with the Jakarta Declaration signed in 2010.

Constitutional Court of the Republic of Turkey became a member to the Association in 2012 and assumed the term presidency of the Association between 2012 and 2014.

The Association has 16 members in total, which are Independent Commission for Overseeing the Implementation of Constitution of Afghanistan, Constitutional Court of Azerbaijan Republic, Constitutional Court of the Republic of Indonesia, Supreme Court of the Philippines, Constitutional Council of the Republic of Kazakhstan, Constitutional Chamber of Supreme Court of Kyrgyz Republic, Constitutional Court of the Republic of Korea, Federal Court of Malaysia, Constitutional Court of Mongolia, Constitutional Tribunal of Myanmar, Constitutional Court of the Republic of Uzbekistan, Supreme Court of Pakistan, Constitutional Court of the Russian Federation, Constitutional Court of Tajikistan, Constitutional Court of Thailand and the Constitutional Court of the Republic of Turkey.

At the Preparatory Meeting of the Second Congress of the AACC organised in 2013 in Ankara where the Turkish Constitutional Court was carrying out the Term Presidency, it was decided that a “Summer School” event be organized as a future-proof cooperation activity, upon the proposal of the Turkish Constitutional Court in its capacity of the Term President. Accordingly, the 1st Summer School was held in Ankara between 6 and 13 October 2013.

Countries and institutions attending the 6th Summer School held this year are as follows:

1- Constitutional Court of Albania

2- European Court of Human Rights

3- Constitutional Court of Azerbaijan Republic

4- Constitutional Court of Bulgaria

5- Constitutional Court of the Republic of Indonesia

6- Supreme Constitutional Court of Palestine

7- Constitutional Court of Georgia

8- Constitutional Court of Montenegro

9- Constitutional Council of the Republic of Kazakhstan

10- Constitutional Chamber of Supreme Court of Kyrgyz Republic

11- Supreme Court of Northern Cyprus

12- Constitutional Court of the Republic of Korea

13- Constitutional Court of Kosovo

14- Federal Court of Malaysia

15- Constitutional Court of Mongolia

16- Constitutional Court of Tajikistan

17- Constitutional Court of Thailand

18- Constitutional Court of the Republic of Turkey

19- Constitutional Court of Ukraine

 

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