Individual Application to Constitutional Court

According to Article 45 of the Code on Establishment and Procedure Rules of the Constitutional Court No. 6216 (“Code”), everyone can apply to the Constitutional Court on grounds that their fundamental rights and freedoms protected under the Turkish constitution, European Convention on Human Rights and additional protocols to which Turkey is a party are violated by public force. Any and all administrative and judicial remedies must be exhausted regarding the act, action or negligence caused the alleged violation before the individual application.

Individual application can only be filed by those whose current and personal rights are directly impacted by the act, action or negligence caused the alleged violation. Private legal persons can only file individual applications on grounds that the rights belonging to the legal person are violated.

According to the statistics published by the Constitutional Court regarding the period of 23.09.2012 – 30.06.2022[1], 428,554 individual applications have been filed within the said period, and 320,253 of these have been concluded. In other words, 74.7% of the individual applications filed within the said period have been concluded, where as 25.3% is still pending. As per the said statistics, the concluded applications have resulted as follows:

• 276,188 applications have been found inadmissible,
• No violations have been found in 902 applications,
• At least one right has been deemed violated in 28,838 applications,
• 12.843 applications have resulted with administrative rejection, and
• 1.482 applications have been concluded in other ways (discontinuance, closure of the case, rejection).

The distribution of violation decisions per rights and freedoms indicate that the right of trial within a reasonable time takes the first place among all violation decisions, which is followed by the right of property and the right to a fair trial.

Individual Application Procedure

Individual application procedure is regulated under Article 47 of the Code. According to the referred provision, the application petition must specify:

• ID and address information of the applicant and its representative, if any,
• Rights and freedoms alleged to be violated due to the act, action or negligence and the relevant Constitutional provisions,
• Grounds of the violation clams,
• Stages of exhausting all remedies,
• Date of exhausting the remedies, or the date of learning the violation if no remedies are applicable, and
• The damage, if any.

Originals or copies of the action or decision alleged to cause the violation and the evidence relied on must be affixed to the application petition. If the applicant is represented by a lawyer, the Power of Attorney must also be presented.

On the other hand, according to Article 59 of the Internal Regulation of the Constitutional Court, individual applications must be filed in official language by using the sample application form annexed to the Internal Regulation. The application form must include, among others:

• Chronologic summary of the events regarding the act, action or negligence alleged to cause the violation by public force,
• Concise explanations on which of the current and personal rights in scope of the individual application are violated and for what reasons, any reasonings and evidence,
• Fundamental rights alleged to be violated and any explanations by way of associating those with each other separately,
• Injunction request regarding the material and moral integrity, if any, as well as any justifications.

Application Term

According to Article 47 of the Code, in principle, individual applications must be filed within 30 days as of exhausting the legal remedies, or otherwise as of learning the violation if no legal remedies are available.

As per the Constitutional Court’s precedents, “the date of exhausting the legal remedies” must be construed as “the date of learning the reasoning of the final judgment”. Such learning can take place differently based on the specifics of each case[2]. Additionally, service of the decision is a way of learning the reasoning of the final judgment, but learning may not occur only via service. Other methods of learning are also possible. In this regard, in case of learning the final judgment’s reasoning before the service, the beginning of the prescribed time of 30 days set out for individual applications should be taken into account as the actual learning – not the date of service.

According to the Manual on Individual Application (Constitutional Complaint) Procedure published in scope of the Joint Project on Supporting the Individual Application to the Constitutional Court in Turkey states that, the Constitutional Court’s precedents sets forth that, among others, the following instances would be construed as the “date of learning the final judgment’s reasoning”:

• Date of service of the final judgment,
• Date on which the applicant obtained a copy of the final judgment from the file,
• Date which is declared by the applicant as the date of learning the judgment,
• Date of learning the final judgment’s result where it is possible to learn the reasoning of the court’s decision,
• Date of becoming aware where the applicant appears to be aware of the decision based on the content of the file,
• Pronouncement of the judgment during the hearing before the Court of Cassation,
• Date of service of the invitation writ,
• Date of service of the payment order,
• Date of obtaining a photocopy from the file.

Fees

According to Article 47 of the Code, individual applications are subject to fee. Receipt proving that the fee is paid must be affixed to the application form. According to the Judicial Fee Tariff of 2022, the fee set out for the applications before the Constitutional Court is TRY 664,10.

Admissibility criteria and examination of individual applications and examination on the merits

According to Article 48 of the Code, the court may give an inadmissibility decision regarding the individual applications that are (i) insignificant in terms of interpreting or applying the Turkish Constitution or determining the scope and limits of fundamental rights where the applicant did not incur a significant damage, and (ii) clearly devoid of grounds.

Under Article 48, individual applications that are deemed admissible are examined in terms of merits. During the examination on the merits, the court may decide to impose any compulsory injunction that are required for protecting the applicant’s fundamental rights ex-officio or upon the applicant’s request.

According to Article 50 of the Code, as result of the examination on the merits, the court may decide that the applicant’s right is violated or not violated. If the court finds a violation, it rules on the actions necessary to be taken to remove the violation and its consequences. If the violation detected by the court arises from a court decision, the case shall be returned to the relevant court for a re-trial to remove the violation and its consequences. Where there is no legal benefit in conducting a re-trial, the court may rule on a compensation in favour of the applicant or lead the applicant for initiating a lawsuit before the general courts.