TÜRKİYE ORTA ASYA HABER KKUORDİNATÖRÜ

IFJ-INTERNATIONAL FEDERATION OF JOURNALIST A GOVERNING PARTY OR AN OPPOSITION THAT DOES NOT RECOGNIZE THE CONSTITUTION AND CONSTITUTIONAL DECISIONS MAY BE TRIED IN THE CONSTITUTIONAL COURT LEGAL ASSESSMENT OF THE COURT OF APPEALS' DECISION TO FAIL TO COMPLY WITH A CONSTITUTIONAL COURT DECISION 1. The Process of Opening Individual Application to the Constitutional Court The Republic of Turkey became a party to the European Convention on Human Rights in 1954; it accepted the right of individual application to the European Court of Human Rights in 1987 and the compulsory jurisdiction of the European Court of Human Rights in 1990. In 2004, Article 90 of the Constitution was amended to read, "In disputes that may arise due to differing provisions on the same subject between international agreements and laws concerning fundamental rights and freedoms duly put into effect, the provisions of these international agreements shall prevail." The sentence "The sentence " was added, establishing that international agreements concerning fundamental rights and freedoms to which Turkey is a party take precedence over laws in our domestic law in terms of the hierarchy of norms. In 2010, the following paragraph was added to Article 148 of the Constitution: "Everyone may apply to the Constitutional Court alleging that any of the fundamental rights and freedoms guaranteed by the Constitution, within the scope of the European Convention on Human Rights, have been violated by public authority. Ordinary legal remedies must have been exhausted before filing an application." This clause opened the way for individual applications. As of September 23, 2012, individual applications can be made to the Constitutional Court alleging that any of the fundamental rights and freedoms guaranteed by the Constitution, within the scope of the European Convention on Human Rights, have been violated by public authority. 2. Basic Conditions for Filing an Individual Application There are two fundamental conditions for filing an individual application to the Constitutional Court. One of these is that the right or freedom allegedly violated must be a citizenship right recognized in the Constitution of the Republic of Turkey and must also be protected by the European Convention on Human Rights and its Additional Protocol. Another fundamental condition for filing an individual application is the exhaustion of domestic remedies. In the doctrine, domestic remedies are also referred to as ordinary legal remedies. Exhaustion of domestic remedies refers to the application of all legal remedies established in accordance with our current and applicable law, including first-instance courts, appeals, and cassation. Domestic remedies are considered exhausted upon the publication or notification of the final decisions of these courts. 3. Decisions That Can Be Made by the Constitutional Court Following Individual Applications Decisions that the Constitutional Court may issue following the merits review of individual applications are generally regulated in Article 50 of Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court. Article 50 of the Law stipulates that Constitutional Court Divisions may fundamentally decide whether a right has been violated or not. In the event of a decision alleging a violation of rights, the violation that gave rise to this decision and the steps to be taken to eliminate its consequences will be determined. In cases of rights violations arising from court decisions, a decision may be made regarding retrial, compensation, and the right to file a lawsuit in the general courts. Decisions on the merits of the sections, along with their reasons, are notified to the relevant parties and the Ministry of Justice and published on the Court's website. The Rules of Procedure specify which of these decisions will be published in the Official Gazette. 4. Binding Force of Constitutional Court Decisions Article 153 of the 1982 Constitution contains a provision regarding the nature of constitutional court decisions. The relevant article states: The Constitutional Court's decisions are final. Annulment decisions cannot be announced without stating the reasons. When annulling a law or a presidential decree, the Constitutional Court cannot, acting as a legislator, issue a ruling that would lead to a new practice. A law, presidential decree, or the Rules of Procedure of the Grand National Assembly of Turkey, or any of their provisions, shall cease to be valid on the date the annulment decision is published in the Official Gazette. In cases where necessary, the Constitutional Court may also determine the effective date of the annulment decision. This date cannot exceed one year from the date of publication of the decision in the Official Gazette. In cases where the effective date of the annulment decision is postponed, the Grand National Assembly of Turkey shall first discuss and decide on a proposed law (…) that would fill the legal gap created by the annulment decision. Annulment decisions are not retroactive. Constitutional Court decisions are immediately published in the Official Gazette and are binding on the legislative, executive, and judicial bodies, administrative authorities, and natural and legal persons.