INDIVIDUAL APPLICATION
TO THE TURKISH CONSTITUTIONAL COURT
Dr. Hüseyin EKİNCİ • Dr. Musa SAĞLAM
Publications of the Constitutional Court of Turkey
Ankara, 2015
© Publications of the Constitutional Court of Turkey
© Dr. Hüseyin EKİNCİ
© Dr. Musa SAĞLAM
ISBN: 978-975-7427-62-9
This work, including its cover design and the visuals used in
the cover, is protected under Law Nr. 5846 on “Intellectual
and Artistic Works”. The complete text of this book may not
be used as a chapter of another book and no part of this book
may be printed, published, reproduced or distributed by any
electronic, mechanical or other means without the written
permission of the Constitutional Court of the Republic of
Turkey and/or the authors.
The views and opinions expressed in this book are those of the
authors and are not binding upon the Constitutional Court of
the Republic of Turkey.
First part of the book has been transtlated by Deniz BIYIKLI
Cover Design: Gamze Tiraki
Page Layout : Gamze Tiraki
Printing and Binding
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FOREWORD TO THE ENGLISH EDITION
With the constitutional amendment adopted by the public
referendum on 12/9/2010, Turkish Constitutional Court was
authorized to conclude and finalize the individual applications
and the Court started to receive applications as of 23/9/2012. The
judgments rendered by the Court have increased the international
recognition of its successful performance with regards to
promoting the rule of law, fundamental rights and freedoms
and democracy in Turkey. Therefore, this legal institution has
attracted a great of deal of attention and interest.
As some of the judgments awarded in the result of individual
applications to the Constitutional Court became an item of
agenda at international legal circles, the foreign lawyers, jurists
and academicians developed a desire to better understand
this legal remedy. For that purpose, international conferences
and meetings have been held to discuss individual application
mechanism in Turkey and the representatives of our Court have
been invited to such gatherings to introduce their practices. In
this context, it has emerged as a need to supply better recognition
of the Court’s mechanism, individual application procedure, the
judgments and relevant legislation.
For that purpose, this English version of the book titled
“Individual Application to the Turkish Constitutional Court”,
which was previously published as reviewed third edition in
Turkish, compiles the English texts of the legislation relating
to individual application, namely, the Turkish Constitution,
Law Nr. 6216 on Establishment and Rules of Procedure of
the Constitutional Court, and the Internal Regulations of the
Constitutional Court.
We would like to extend our thanks and appreciation to Ms.
Deniz Bıyıklı for her meticulous translation of this book into
English, to the staff of Council of Europe’s Programme Office in
Ankara for their contributions in editing of the book. Our thanks
and appreciation also goes to Mr. M. Oğuz Kaya, Secretary
I
General of the Turkish Constitutional Court and Mr. Bahadır
Kılınç, Deputy Secretary General of the Turkish Constitutional
Court, Mr. Harun Şahin and to all staff of the Office of Foreign
Affairs at the Court. We would also like to thank last, but not
least, to the graphic designer of the book Ms. Gamze Tiraki and
all other staff of Kalkan Printing House for their diligent work in
this process. Our greatest wish is that this book makes a contribution to the
recognition of the basic issues on the structure and functioning of
the individual application mechanism in Turkey by international
law circles. 3/2/2015
II
Dr. Hüseyin EKİNCİ Dr. Musa SAĞLAM
FOREWORD
Individual application to the Constitutional Court is a
new legal remedy introduced into our legal system with the
adoption of the Law nr. 5982 dated 7/5/2010, “Amending Certain
Provisions of the Constitution of the Republic of Turkey” in
the public referendum held on 12/9/2010. This legal remedy, in
addition to being a new one, is different from both the currently
existing means of administrative and judicial remedies and the
individual application mechanism regulated under the European
Convention on Human Rights. Therefore, the public introduction
of this new legal remedy has been of crucial importance. For
that reason, a booklet titled “Individual Application to the
Constitutional Court in 66 Questions” was prepared just before
the actual implementation of individual application mechanism
(23/9/2012) so as to provide the public with detailed and objective
information on this new legal remedy.
However, during the period of more than one and a half
year since the Court started to receive individual applications,
the commissions and the sections of the Constitutional Court
have awarded many judgments which present the approach of
the Court as to the admissibility criteria as well as the essence
and contents of the rights that may be subject for individual
application. For instance, as of 7/4/2014, 6320 judgments have
been awarded (1658 of them are rejections on administrative
grounds, 4344 judgments awarded by the commissions and 318
judgments awarded by the sections). Accordingly, the Court has
concluded approximately 40% of the total number of applications.
As it is known, the sections of the Court award judgments of
precedent nature on the individual applications and these
precedent judgments constitute a basis for the conclusion of
applications on similar subjects before the commissions and the
sections later on. Therefore, it is helpful to examine the case-law
of the Court before filing an individual application. At that very
point it emerged as a need to revise the booklet titled “Individual
Application to the Constitutional Court in 66 Questions” by
taking the precedent judgments of the Court, especially the
sections, into consideration. This book, titled “Questions &
Answers on the Individual Application to the Constitutional
III
Court”, has been prepared to address this need.
The intended readers of this book are those who are going to
file an individual application to the Constitutional Court and the
lawyers to provide legal aid to these prospect applicants as well
as the people who have an interest to access basic information in
this field. The booklet aims to formulate the problems that the
relevant persons may encounter with regards to the individual
application in the form of questions and it presents answers to
these questions. Admittedly, one cannot claim that all possible
problems have been provided with a solution in more than one and
a half year implementation period of the individual application.
As the practice of individual application is ever-improving and
new troubles are encountered, new questions and problem may
emerge in time. The solutions to such questions and problems
will be provided by the case-law that the Constitutional Court
will continue to produce with its future precedent judgments.
In this regard, the judgments that the Constitutional Court will
award after the publication of this booklet must also be followed
closely.
This booklet “Questions & Answers on the Individual
Application to the Constitutional Court” is formulated in the
form of questions with a view to make it more comprehensible
and these questions are grouped under 10 headings for the
ease of access to the questions: Firstly, there are questions
related to general remarks on the individual application (I).
Then comes the questions related to scope of the Constitutional
Court’s jurisdiction in terms of ratione personae, ratione
temporis, ratione loci and ratione materiae (II) and the questions
introducing the units of the Court that examine the individual
applications (III). The subsequent headings deal with questions
related to formal (IV) and substantive (V) requirements of the
individual application and time limits for individual application
(VI). The questions on the procedures for lodging an individual
application to the Court (VII) and the procedures for the review
of such applications by the Court (VIII) are followed by the
questions related to the judgments of the Court and the results
of such judgments (IX). The final chapter deals with questions on
IV
the relation between the Constitutional Court and the European
Court of Human Rights in the context of individual application.
Certainly, when compared to the previous editions, each and
every chapter and question in this new booklet is updated and
supplemented with the judgments and the practices of the
Constitutional Court.
We believe that this booklet will be useful for the public
introduction of the individual application to the Constitutional
Court and would like express our gratitude to those who
provided contributions to the preparation of this booklet by
sharing their opinions and proposals. Our special thanks and
appreciation goes to our colleagues Mr. Mehmet Oğuz Kaya, Mr.
Mustafa Baysal, Mr. Hasan Tuna Göksu, Assoc. Prof. Dr. Serdar
Gülener and Dr. Recep Kaplan, who provided their generous
helps and support for the reviewing and revising of the third
edition. We also would like to express our thanks to all staff of
Kalkan Printing House for their precious efforts and meticulous
work. 17/4/2014
Dr. Hüseyin EKİNCİ
Dr. Musa SAĞLAM
V
VI
TABLE OF CONTENTS
I.GENERAL REMARKS ........................................................................1
1.What is individual application? ..........................................................1
2.What are the basic features of individual application?....................1
3.In which countries is the remedy of individual application
applicable? ................................................................................................2
4.Why is an individual application procedure needed in Turkey? ..2
5.What are the legal regulations concerning individual
application?...............................................................................................4
II.SCOPE
OF
THE
CONSTITUTIONAL
COURT’S
JURISDICTION ......................................................................................5
6.Which fundamental rights can be subject of an individual
application? ..............................................................................................5
7.What is the scope of right to remedies within the context of
individual applications?..........................................................................6
8.When can alleged violation of equality principle be claimed within
the context of individual application?...................................................7
9.When can violation of Article 40 “protection of fundamental rights
and freedoms” of the Constitution be claimed within the context of
individual application?............................................................................8
10.What is the scope of the right to life according to the Constitutional
Court?........................................................................................................8
11.How does the Constitutional Court define the scope of freedom
from torture and ill treatment?...............................................................9
12.Which aspects of liberty and security of the person have been
clarified by the Constitutional Court?.................................................10
13.What is the approach of the Constitutional Court as regards the
right to property?....................................................................................13
14.Against which acts of public authorities can an individual
application be filed? ..............................................................................14
15. Can an individual application be filed against general regulatory
procedures? ............................................................................................16
16. Which acts other than general regulatory acts are excluded from
individual application procedure? ......................................................17
VII
17.Who is eligible to file an individual application? .........................18
18.Are the citizens of foreign countries eligible for this right? .......19
19.Are legal persons eligible for individual application? ................19
20.Are public legal entities eligible for individual application? .....20
21.What are the specific cases concerning the Court’s competence
ratione personae? ...................................................................................21
22.What is the Court’s competence ratione loci? ..............................22
III. UNITS THAT EXAMINE INDIVIDUAL APPLICATIONS TO
THE CONSTITUTIONAL COURT ..................................................22
23.What is the composition of judicial and administrative units of
the Constitutional Court that deal with individual application? ...22
24.What is the composition of the Sections? ......................................23
25.What is the composition of Commissions? ...................................24
26.Which organs of the Constitutional Court examine individual
applications? ..........................................................................................24
27.Does the Plenary Assembly have any function related to
individual applications? .......................................................................25
28.How do rapporteurs function in individual applications? ........25
29.What is the composition of the Individual Application Office and
what are its procedures? .......................................................................26
30.What is the composition of the Commission Rapporteurs Office
and what are its procedures? ...............................................................27
31.What is the composition of the Section Rapporteurs Office and
what are its procedures? .......................................................................27
32.What is the composition of the Research and Case-law Unit and
what are its procedures? .......................................................................28
IV. FORMAL REQUIREMENTS OF INDIVIDUALAPPLICATION.28
33.What are the formal requirements of individual application?...28
34.How can you access and fill out the application form? ..............29
35. Is it obligatory to use the application form to file an application?.29
36. How to fill in the application form? ..............................................30
37.What are the consequences of an incorrect legal qualification of
VIII
subject incident of the alleged violation in application form?.........31
38. Is examination by the Court restricted to the issues specified in the
application form and particularly those specified upon request?...32
39.Is it obligatory to hire a lawyer in lodging an application or in
subsequent stages of application? Who can represent applicant in
court? .......................................................................................................33
40.Which documents should be annexed to the application form?.33
41.What should the applicant do if documents which should be
annexed to the application form are not accessible? .........................34
42.What should the applicant do in case of any subsequent changes
in the conditions related to an application?.........................................35
43.Is anonymity possible in application?............................................35
44.Is an application subject to a fee? What is the fee amount? .......36
45.What are the requirements of legal aid? Should related fees and
costs be paid in case of inadmissibility or non-violation decision?.37
46.Which procedures are followed for the application in case of
incomplete application form or its annexes? ......................................38
V.SUBSTANTIVE REQUIREMENTS FOR INDIVIDUAL
APPLICATION......................................................................................39
47.What are the substantive requirements for individual
application?.............................................................................................39
48.What does direct impact on an actual and personal right mean?.39
49.What does exhaustion of administrative and judicial remedies
mean? ......................................................................................................42
50.What are the features of remedies to be exhausted?.....................43
51.How does the Court rule when administrative and judicial
remedies are not referred to at all? ......................................................45
52.What are the judicial authorities competent and authorized for
the exhaustion of remedies? .................................................................47
53.If there is more than one remedy, should they all be exhausted?.48
54.What does individual exhaustion of administrative and judicial
remedies mean? .....................................................................................50
55.How does the Court rule in applications lodged during an
ongoing trial? .........................................................................................51
IX
56. Is the remedy of revision of decision an obligatory remedy to be
exhausted? ..............................................................................................52
57.Can an individual application be filed against interim decisions
of courts? .................................................................................................53
58.Does the Constitutional Court examine an individual application
when the applicant refers to precautionary administrative and
judicial remedies but waives them without waiting for their
conclusion? .............................................................................................54
59.Are there any exceptions in the rule of exhaustion of remedies?
If so, what are the exceptions? .............................................................55
60.When violation of a fundamental right is claimed in individual
application, is it obligatory to file the same claim before other judicial
authorities as well? ................................................................................60
61.Can individual application be filed against a public act which
becomes a final decision due to applicant’s failure in exhausting
remedies? ................................................................................................62
62.Can individuals file an application against decisions for retrial?.63
63.What does insignificance of application mean (constitutionally
and with regard to damage suffered)? ...............................................64
VI.TIME LIMITS FOR INDIVIDUAL APPLICATION.................66
64. What is the last day for the finalization of acts of public authorities
that can be subject to individual application to the Constitutional
Court? ......................................................................................................66
65.When an applicant resorts to an ineffective or extraordinary legal
remedy against a finalized act of public authority, does it have an
impact on the finalization? ...................................................................70
66.Can an individual application be lodged against an act where
finalized decision is notified after 23/9/2012?.....................................71
67.Is there any time restriction for individual application? When do
these restrictions start? ..........................................................................72
68.What are the principles concerning definition of starting and
ending dates for time limit for application? ......................................73
69.Is it obligatory to deliver the notification to the applicant even
when the applicant is represented by a lawyer in the initiation of
application time? ...................................................................................76
70.What is the starting date for the 30-day time limit for applications
X
if the applicant did not resort to remedy of revision of decision in
civil, administrative and military trials? ............................................76
71.Do remedies of: objection against the Chief Public Prosecutor of
Court of Cassation; retrial; or writ has an impact on 30-day time
limit for application? .............................................................................78
72.How does the Court decide if the remedies have not been
exhausted yet when the application is filed and the remedies are
exhausted when the application is pending in the Court? ..............81
73.Is it possible to compensate when the applicant fails to lodge an
application due to impediments within time limits prescribed?.....82
VII. LODGING INDIVIDUAL APPLICATIONS ..........................84
74. How can an individual application be lodged? Is it obligatory to
lodge an application personally to the Constitutional Court?.........84
75.How can detainees and convicts in prisons lodge their
applications? ..........................................................................................84
76.Which procedures are followed in court(s) or representation(s)
abroad receiving application forms? ...................................................85
77.Is it possible to lodge individual application by mail? ...............85
78.What are the most common shortcomings in lodging applications?.86
79.Is there any additional advance or cost payment other than
application fee in applications deposited through other courts or
representations abroad? .......................................................................87
80.How will the applicants correspond with the Constitutional
Court? ......................................................................................................88
81. Is the applicant informed on subsequent stages of application?.88
82.When should applicants expect their applications to be
concluded? ..............................................................................................89
VIII. EXAMINATION OF INDIVIDUAL APPLICATIONS ........89
83. What is the scope of the examination by the Constitutional Court
within the context of individual application? ....................................89
84.Is individual application to the Constitutional Court a new
remedy of objection or appeal? ............................................................90
85.What are the procedures related to registration and administrative
review of individual applications? ......................................................93
XI
86.What does administrative rejection of application mean? Can it
be appealed? ...........................................................................................93
87.How are individual application files distributed to Sections and
Commissions? ........................................................................................94
88.In which order are individual applications examined? ..............95
89.Who has the burden of proof in the examination of individual
applications? ..........................................................................................95
90.Is the Constitutional Court entitled to collect information and
documents ex officio and to hear related persons? ...........................96
91.Is the Constitutional Court entitled to hear witnesses, assign
experts, fact-finding or to hold hearings? ..........................................97
92.Will information and documents received by the Constitutional
Court during the examination of individual applications be shared
with the applicant? ................................................................................97
93.Does lodging an individual application cease execution of a
public act? ...............................................................................................98
94.What are the requirements for the Constitutional Court to
indicate interim measures in individual applications? ....................98
95.Can the Constitutional Court resort to friendly settlement similar
to applications before the ECtHR? ....................................................100
96.Is it possible to waive from individual application? What would
be the consequences? ...........................................................................101
IX.JUDGMENTS OF THE CONSTITUTIONAL COURT IN
INDIVIDUAL APPLICATIONS ......................................................102
97.Which judgments can be rendered for individual applications?102
98.Can an application considered as admissible by Commissions be
found inadmissible later? ...................................................................103
99.In which cases can admissibility and merits be examined
together? ...............................................................................................103
100.What is the difference between admissibility decision and
decision on merits? ..............................................................................104
101. What are the most common reasons for inadmissibility? .......104
102. Can a decision of strike-out be given for individual
applications?.........................................................................................106
XII
103.Which decisions can be given by the Constitutional Court on
the merits of a case and what are the features of such decisions? .107
104.What are the consequences of violation decisions given by
Sections?................................................................................................107
105.Can the Constitutional Court rule for compensation when a
violation is established consequent to examination of application?.108
106. Who is liable for trial costs in an individual application? How
does the Court decide on attorney fees and trial costs?...................108
107.To whom are the decisions notified?............................................109
108.Which judgments should be published?......................................110
109. Is it possible to appeal against Court decisions? Do the decisions
have a binding effect? Can an identical issue be repeatedly submitted
in individual application?....................................................................110
110.How can one access individual application judgments of the
Constitutional Court?...........................................................................111
111.How are the judgments executed (implemented)?....................111
112.Is there any sanction in case of the misuse of right of individual
application? Are the applicants of inadmissible applications subject
to any other sanction?..........................................................................111
X.THE RELATION BETWEEN THE EUROPEAN COURT OF
HUMAN RIGHTS AND THE CONSTITUTIONAL COURT
WITHIN THE CONTEXT OF INDIVIDUAL APPLICATION....112
113.Does individual application to the Constitutional Court impede
application to the European Court of Human Rights?....................112
114.Is individual application to the Constitutional Court recognized
as a domestic remedy that should be exhausted before lodging an
individual application to the European Court of Human Rights?..113
115.What would be the consequences if the applicant lodges an
application both to the Constitutional Court and the European
Court of Human Rights on the same matter?....................................114
116.Does individual application make proceedings longer, does it
lead to delays in the finalization of judicial decisions?....................115
117.Does the Constitutional Court take the Constitution or the
European Convention on Human Rights as a basis in examining
individual applications? .....................................................................116
XIII
APPANDICES
1.The Constitution of the Republic of Turkey..................................121
2.Code on Establishment and Rules of Procedures of the
Constitutional Court ...........................................................................247
3.Internal Regulation of the Constitutional Court ..........................311
XIV
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
I. GENERAL REMARKS
1. What is individual application?
Individual application can be described as an exceptional and
subsidiary remedy that can be exercised following the exhaustion
of other remedies by individuals whose fundamental rights and
freedoms are violated as a result of a procedure, act or neglect of
public authorities.
Law no. 5982 which introduced significant amendments in
the judicial provisions of 1982 Constitution was adopted by the
referendum on 12/9/2010. One of the most striking regulations
introduced with this Law is the enforcement of the right to
individual application as a new remedy which has been discussed
in our country since 1960s.
Upon enforcement of this regulation, individuals may file an
individual application to the Constitutional Court upon violation
of any of their fundamental rights and freedoms as protected
by the European Convention on Human Rights (ECHR) and
guaranteed under the Constitution.
2. What are the basic features of individual application?
Basic features of individual application can be listed as
follows:
a. Individual application is a specific remedy which is available
for those whose rights prescribed under the Constitution are
violated and which has different aspects in terms of its method
and consequences when compared with other remedies.
b. The underlying reason of individual application is to prevent
violation of fundamental rights and freedoms guaranteed under
the Constitution and to redress existing violations and their
consequences.
c. In principle, individual application can be filed against the
acts of publ1ic authorities. Therefore, the fundamental aim is to
secure rights of an individual who may be vulnerable against
public authorities.
d. Individual application is a subsidiary legal remedy. All
1
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
administrative and judicial authorities are primarily liable to
prevent violation of human rights. Thus, administrative and
judicial authorities are more effective in the prevention of
concrete violations of rights. Therefore, related authorities are
expected to redress such violations before relevant complaints
are filed to the Constitutional Court.
e. Individual application is not (an additional) remedy of
appeal. Claimed violation of any of the rights described in the
Constitution rather than redressing any unlawfulness that may
emerge during the proceedings in a legal remedy can be a subject
of an individual application.
3. In which countries is the remedy of individual application
applicable?
Notwithstanding the differences in practices in various
countries, individual application procedure is available in
more than 40 countries such as Germany, Austria, Spain and
Switzerland in Continental Europe as well as most of the Eastern
European countries such as Hungary, Czech Republic, Slovak
Republic and in South Korea.
Common law does not technically have individual application
procedure, however, legal remedies defined as “writ of certiorari,
writ of mandamus or writ of prohibition” have similar functions.
4. Why is an individual application procedure needed in
Turkey?
The most valuable aim of introducing individual application
procedure is to put an end to violations of fundamental rights
arising from acts of public authorities within our national law.
Accordingly, applications to the European Court of Human
Rights (ECtHR) against Turkey are also expected to decrease.
Turkey ratified the European Convention Human Rights
in 1954 and recognized the right to individual petition to the
ECtHR in 1987, and mandatory judicial power of the ECtHR
in 1990. Before the introduction of the individual application
procedure, for instance by the end of 2011, the number of
2
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
pending applications before the ECtHR against our country
reached nearly 20 thousand. Most of them were related to the
functioning of the judiciary.
Considering practices in other countries, it is noted that
the number of cases filed to the ECtHR against countries with
effective individual application remedy in their domestic laws is
quite low (such as Germany and Spain).
Various organs of the Council of Europe recall the liabilities
of State Parties to establish mechanisms which will enable
implementation of the ECHR in domestic law. In Recommendation
Decision no. 2004 (6) of the Council of Europe Committee of
Ministers, it is noted that an individual application procedure
should be introduced in domestic law in order to reduce the
backlog of the ECtHR.
In the Interlaken Declaration adopted by the Council of Europe
Committee of Ministers on 19/2/2010, State Parties undertake to
establish mechanisms at the earliest which will implement the
ECHR in their domestic laws and effectively redress violation
of fundamental rights. Thus, following İzmir Conference in
April 2011 and Brighton Conference in April 2012 which were
organized with the same concerns, Protocol No. 15 was drafted
and opened for signature in order to put these principles into
practice. The following paragraph is added to the Preamble of
the ECHR with Article 1 of this Protocol:
“Affirming that the High Contracting Parties, in accordance with
the principle of subsidiarity, have the primary responsibility to secure
the rights and freedoms defined in this Convention and the Protocols
thereto, and that in doing so they enjoy a margin of appreciation, subject
to the supervisory jurisdiction of the European Court of Human Rights
established by this Convention.”
On the other hand, paragraph 82 of Report on Individual Access
to Constitutional Justice adopted in 85th Plenary Session of the
Venice Commission underlines that recognition of the right
to individual application to constitutional courts is the most
important and effective mechanism.
The constitutional amendment which was drafted by the
Constitutional Court in our country in 2004 and covered
3
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
individual application was referred to positively in the opinion
29/6/2004, no. 296/2004 of the Venice Commission. Furthermore,
the Venice Commission evaluated Law on the Establishment
and Roles of Procedure of the Constitutional Court no. 6216,
30/3/2011 in its opinion no. 612/2011, 18/10/2011 and noted that
regulations concerning individual application follow the wellknown examples in other European countries and are in line
with the European standards.
Therefore, institutions of the Council of Europe consider that
State Parties are essentially required to establish mechanisms
which will put an end to violations of human rights in
their domestic laws. Right to individual application to the
Constitutional Court is clearly the most important mechanism.
Furthermore, individual application will enhance law and
democracy standards with effective protection of human rights
in our country. Individual application which has is an important
instrument in the protection of fundamental rights and freedoms
at national level has two different functions. Firstly, it is an
instrument for every individual to enjoy their fundamental
rights and freedoms (which also implies its subjective aspect)
and secondly, it is a mechanism of interpreting and protecting
the Constitution (which indicates its objectivity). These two
aspects of individual application are complementary. Indeed,
the Court also deals with the interpretation and updating of the
constitutional law by means of protection of individual rights
with this remedy. Therefore, individual application has an
important function in ensuring unity in practice when rights and
freedoms regulated in fundamental texts are put into action.
5. What are the legal regulations concerning individual
application?
Individual application was introduced in our legal system
with the provisions in provisional article 18 and Articles 148 and
149 of 1982 Constitution amended with Law no. 5982 adopted
with the constitutional referendum on 12/9/2010.
Particularly, Articles 45 to 51 in Law no. 6216 stipulates
regulations which make Constitutional provisions about
4
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
individual application more concrete.
Internal Rules of the Constitutional Court (Internal Rules)
published in Official Gazette no. 28351 on 12/7/2012 present
detailed provisions on the functioning of individual application.
At this point, individual application judgments of the
Constitutional Court reveal the Court’s approach on related
issues as well as the description and contents of related rights.
As the leading judgments given by the “Sections” of the Court
provide a basis for the settlement of subsequent applications,
it is useful to review the case-law of the Court before filing an
individual application.
II. SCOPE OF THE CONSTITUTIONAL COURT’S
JURISDICTION
6. Which fundamental rights can be subject of an individual
application?
Individual application can be lodged by those who claim to
suffer violation of any of their fundamental rights and freedoms
in the Constitution and secured under the ECHR and its
additional Protocols ratified by Turkey, by public authorities.
The Constitutional Court’s individual application judgment
no. 2012/1049, 26/3/2013 declares that “For the examination of
merits of an individual application to the Constitutional Court, the
right alleged to be intervened by public authorities should be guaranteed
by the Constitution and secured under the European Convention on
Human Rights (Convention) and its additional protocols signed by
Turkey. In other words, it is not possible to give admissibility decision
for an application filed for alleged violation of a right that is not jointly
covered by the Constitution and the Convention.”
Within this framework, the rights defined under the
Constitution such as right to life, freedom from torture and
punishment, freedom from compulsory labour, right to liberty
and security of the person, right to seek remedy, lawfulness
of offences and punishment, right to respect for private and
family life, home and correspondence, freedom of religion and
conscience, freedom of expression, freedom of assembly and
5
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
association, right to property, right to free election, protection
of fundamental rights and freedoms, right to education and
equality can be given as an example. The Constitutional Court
declared in its judgments delivered up to now that only some of
these rights can be subject of individual applications.
7. What is the scope of right to remedies within the context of
individual applications?
The right to remedies and its scope were assessed in many
judgments of the Constitutional Court. (E.g. Application No:
2012/1049, 26/3/2013). According to the Court, the scope and
contents of this right should be defined within the framework
of ECHR Article 6 “right to fair trial” and case-law of the ECtHR
since the scope of the right to fair trial is not regulated under
the Constitution. Moreover, in terms of the Plenary Assembly
judgments, the Court evaluated the right to fair trial within
the context of the ECHR and the ECtHR judgments. (See CC,
E.2008/12, Judgment no. 2011/104, 16/6/2011).
In the ECHR, it is stated that “rights and principles related to fair
trial are applicable in settlement of disputes related to civil rights and
liabilities and of merits of a “crime offence” and the scope of the right is
restricted accordingly. Based on this expression, it is clear that in order
to file an individual application on the grounds of alleged violation of
right to remedies, applicant should either be a part of a dispute related
to civil rights and liabilities or a decision should have been given on a
crime offence against the applicant. Therefore, the applications based
on alleged violations of fair trial other than those given above cannot
be subject of individual applications since they will be beyond the scope
of the Constitution and the Convention.” (Application No: 2012/917,
16/4/2013; Application No: 2012/1049, 26/3/2013).
Two aspects given in related judgments should be underlined:
Firstly, alleged violations related to fair trial in a dispute which is
not considered as relevant to civil rights and liabilities cannot be
reviewed by the Court.
Secondly, right to fair trial does not cover claims of individuals
who are victims, suffer damage arising from offence, file a
complaint about or are involved in a criminal case and claim the
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
prosecution or punishment of third parties.
8. When can alleged violation of equality principle be claimed
within the context of individual application?
Alleged violations of equality principle are assessed together
with the provisions in the Constitution and the ECHR and
concluded with the definition of common protection area of
both texts. In other words, in alleged violations of equality
principle, the equality principle regulated under Article 10 in
the Constitution and prohibition of discrimination regulated
under Article 14 in the ECHR are taken into account together
and it is decided whether or not the claims fall under the scope
of individual application in terms of its subject (ratione materiae).
Therefore, the applicants can claim violation of equality
principle only in relation to a right that is under the common
protection area of the Constitution and the ECHR. Otherwise, it
would mean consideration of principle of equality in an abstract
manner and implementation of Article 1 “general prohibition
of discrimination”, Protocol No. 12 which has not been ratified
by Turkey yet, in individual applications, despite the clear
provisions in the Constitution and Law no. 6216.
In other words, in order to discuss whether or not the equality
principle is violated, an individual is required to show that (s)
he suffered from a treatment against the equality principle with
regard to any fundamental right and freedom that falls under the
scope of individual application. Therefore, the equality principle
does not have an independent protective function within the
framework of individual application but is a complementary
right. (Application No: 2012/1049, 26/3/2013).
As a conclusion, alleged violation of the equality principle can
be claimed within the framework of an alleged violation of any
of the rights that fall under the scope of individual application
(such as right to remedies, crime and lawfulness of sentence, right
to respect for private and family life, home and communication).
However, any of the rights in the application which constitute
a basis for the complaint on violation of the equality principle
or prohibition of discrimination such as right to life, freedom
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
from torture and ill treatment etc. is not necessarily required to
be violated.
9. When can violation of Article 40 “protection of fundamental
rights and freedoms” of the Constitution be claimed within the
context of individual application?
Provisions of the Constitution and the ECHR should be
assessed together in defining the contents of the principle of
protecting fundamental rights and freedoms as regulated in
Article 40 of the Constitution and their common protection area
should be clarified. Therefore, Article 40 of the Constitution and
the right to effective remedy regulated under Article 13 of the
ECHR are evaluated together and it is decided whether or not the
alleged violation of this right falls within the scope of individual
application. So it is not possible to review the claims on violation
of this right concretely and such claims must be considered in
relation to the other fundamental rights and freedoms under the
Constitution and the Convention. In order to discuss whether
or not the right to effective remedy is violated, the individual
should clarify in terms of which fundamental right and freedom
his/her right to effective remedy is restricted.
In other words, the right to effective remedy does not have an
independent protective function but is one of the complementary
rights that secure the enjoyment and protection of fundamental
rights and freedoms as well as remedies. In this framework, it is
not possible to review application in terms of right to effective
remedy if there is no intervention against the applicant’s right
which falls under the scope of individual application (Application
No: 2012/1049, 26/3/2013).
10. What is the scope of the right to life according to the
Constitutional Court?
The right to life is one of the fundamental rights protected
under individual rights. It is under the common protection area
of the Constitution and the Convention, belongs in the solid core
of rights and is one of the fundamental values of democratic
societies. According to the Court, this right which is related to life
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
and corporeal integrity brings positive and negative obligations
to public authorities (Application No: 2012/752, 17/9/2013).
Under the right to life, public authorities have the obligation
not to take the lives of individuals in their jurisdiction intentionally
and unlawfully (negative obligation).
Furthermore, the State is obligated to protect the right to life
of all individuals in its jurisdiction against risks that may arise
from acts of public authorities, other individuals and even the
state itself (positive obligation). As per this obligation, public
authorities are liable to follow an effective official prosecution to
ensure detection and punishment of those responsible for every
unnatural death case. The main objective of such prosecution is
to secure effective implementation of law that protects the right
to life and to ensure that in incidents where public authorities
or institutions are involved, they account for deaths that occur
under their responsibility (Application No: 2012/752, 17/9/2013).
11. How does the Constitutional Court define the scope of
freedom from torture and ill treatment?
Freedom from torture and ill treatment, which aims to protect
human dignity and physical integrity and constitutes one of the
fundamental values of democratic societies, is regulated as “no
one shall be subjected to “torture” and “ill treatment” and no
one shall be subjected to penalties and treatments “contradicting
with human dignity” in the third paragraph of Article 17 in the
Constitution. According to the Court, there is an intensity
difference among the expressions used in this paragraph. The
heaviest attacks against a person’s physical integrity and dignity
can be defined as “torture”; inhumane treatments which are not
as severe but still result in damage or intensive physical effects
in a person’s body or lead to intensive mental suffering can be
defined as “ill treatment” and degrading and insulting treatments
which are less severe can be defined as “treatment or punishment
which contradicts with human dignity” (Application No: 2012/969,
17/9/2013).
The Court expresses that a minimum level of significance
should be reached to consider a treatment within the scope
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
of freedom from a torture and ill treatment. An assessment is
made with the consideration of concrete characteristics of each
case when defining whether or not this minimum threshold is
exceeded. In this context, elements such as the time period of
treatment, its physical and mental impacts as well as the sex,
age and medical status of the victim are important (Article No:
2012/969, 17/9/2013).
On the other hand, similarly to the right to life, freedom from
torture and ill treatment implies negative and positive obligations
for the public authorities. Negative obligation introduces a
liability for the public authorities not to make any treatment which
falls under the scope of freedom from torture and ill treatment
against anyone. Positive obligation includes the liability for the
state to protect an individual against such treatments of public
authorities and other individuals. Additionally, States are liable
to follow an effective official prosecution when individuals are
subjected to treatment violating Article 17 of the Constitution.
Prosecution followed within the framework of this liability
should allow detection and punishment of those responsible.
If this is not possible, the related article becomes ineffective in
practice despite its great significance and public authorities will
enjoy their actual immunity and be able to misuse the rights of
individuals under their control. This is not acceptable in a rule of
law State based on human rights (See Application No: 2012/752,
17/9/2013)
12. Which aspects of liberty and security of the person have
been clarified by the Constitutional Court?
According to the Constitutional Court, the objective of Article
19 of the Constitution, titled “liberty and security of the person”
is to protect individuals against arbitrary deprivation from
freedom. Restrictions on liberty of person can be applicable only
in exceptional cases stipulated under this article. In this context,
the first paragraph of the given article stipulates the principle that
everyone has the right to liberty and security of person while the
second and third paragraphs list the cases where individuals can
be deprived of their liberties in a restricted manner provided that
related forms and conditions will be defined in law. Therefore,
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
restrictions on liberty and security of person can be applicable
only in any of the cases specified under this article. However,
these restrictions should be in line with the objective of the article
and should not lead to arbitrary practices (Application No:
2012/239, 2/7/2013).
The court clarified some of the important issues related to the
liberty and security of the person in its individual application
judgments given for more than a year. The first issue is the
lawfulness of detention.
According to the rule of describing the formalities and
conditions of deprivation from liberty in law as given in the
second and third paragraphs of Article 19 of the Constitution, the
Court examines whether or not detention of the applicant has “legal”
grounds and whether or not the law is adequately accessible,
transparent and foreseeable in order to prevent arbitrariness in
cases where deprivation from liberty is allowed by law (Article
No: 2012/239, 2/7/2013).
It is noted that maximum detention periods are stipulated
for some offences in the related laws. Exceeding maximum
detention periods in such offences is also considered as an issue
in terms of the lawfulness of detention (Article No: 2012/1137,
2/7/2013).
The second issue is related to the reasonability of detention
period. Paragraph 7 of Article 19 of the Constitution secures
that those detained in a criminal investigation have the right
to request trial within reasonable time and to be released
during investigation or prosecution. Reasonability of detention is
evaluated based on the characteristics of each case. Continuation
of detention can be justified only in case of a real public interest
that takes precedence over the right to liberty and security of
person secured under Article 19 of the Constitution despite the
presumption of innocence (Application No: 2012/239, 2/7/2013).
The date when the applicant is first arrested and detained,
and the date of arrest if the applicant is directly arrested are
considered as a basis in the calculation of reasonable period
for detention. The date when the person is released or the first
instance court gives a judgment is considered as the end of the
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
detention period (Application No: 2012/239, 2/7/2013).
It should also be noted that upper limits stipulated by law for
detention period can be applicable for exceptional cases where
reasonable time is not exceeded. In other words, such a provision
does not definitely mean that a person can be detained until the
end of maximum detention period. On the contrary, if detention
exceeds a reasonable period even in cases where the upper limit
is not exceeded, it can be concluded that a constitutional right
was violated (Application No: 2012/239, 2/7/2013).
Thirdly, the Court clarified the detention status. If a person
deprived of liberty within the framework of the principles given
above is convicted with a first instance court judgment in a case
where s(he) put on trial under detention, detention ends as of
this date. Because in this case, the legal status of the person is no
longer under the scope of “detention based on a criminal offence”.
Upon conviction, the detention ends depending on the strong
suspicion of offence by the person and the reason for detention. So
finalization of conviction judgment is not required additionally
(Application No: 2012/726, 2/7/2013).
A fourth issue is related to whether or not remedy of
compensation stipulated in Articles 141 and 142 of the Turkish
Criminal Procedure Code of 4/12/2004, no. 5271 is a remedy
which should be exhausted for complaints related to detention.
The Constitutional Court does not consider the remedy of
compensation as an effective remedy in terms of ongoing detention.
The basic aim of complaints in individual applications filed for
alleged unlawfulness of ongoing detention is to define whether or
not there is a reason or there are reasons that justify unlawfulness
or continuation of detention. When such reasons are established,
the existence of legal reasons presented as a justification for the
continuation of detention of the concerned person will end and
it may result in the release of the person. However, since this
is not allowed by the remedy of compensation stipulated in the
given articles of Criminal Procedure Code, the person may file
an application to the Constitutional Code after exhausting the
mechanisms of appeal regulated in law as long as the detention
continues (Application No: 2012/726, 2/7/2013).
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
Additionally, according to the Constitutional Court, if the
applicant is released or convicted, the review of the complaint
related to the conviction is limited to establishment of
unlawfulness if any and settlement of compensation at a specific
amount for the applicant when needed. Therefore, remedy of
compensation which is foreseen after the release or conviction of
the detainee can be considered as an effective remedy that should
be exhausted. This is due to the fact that this remedy enables
both establishment of unlawfulness of the detention period that
the applicant is exposed to (that contradicts with the principles
and procedures stipulated by law or exceeds reasonable period)
and the compensation of the damage suffered. In the context of
a concrete incident, existence of instance court judgments which
reveal that this remedy of compensation is effective both in
theory and practice is obviously required. Therefore, individual
application should be filed after trying application remedies with
recognized effectiveness with regard to such claims of violations
(Application No: 2012/726, 2/7/2013).
In its judgments given up to now, the Court declared that this
remedy should be exhausted before an individual application is
filed if the judgment was finalized in a proceeding where the
subject trial of the complaint was made. It further decided that
this remedy is not required to be exhausted as there is no example
of practice for the decisions that have not been finalized.
13. What is the approach of the Constitutional Court as
regards the right to property?
Article 35 of the Constitution stipulates that everyone has
a right to property, this right can only be restricted by law for
public interest and enjoyment of the right to property cannot
be against the public interest. Right to property is a right which
enables a person to use anything under his/her property as (s)
he wishes, to use and save their products provided that rights of
others will not be damaged and restrictions imposed by law will
be followed. Additionally, right to property is not an absolute
right and can be restricted for public interest. This restriction
should be reasonable and proportionate (Application No:
2012/1315, 16/4/2013).
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
According to the Constitutional Court, the subject of the
complaint should be covered under the common protection
area of the Constitution and the ECHR for the examination
of merits of an individual application with alleged violation
of right to property. In this context, according to the Court,
an applicant who claims that his/her right to property was
violated is primarily required to prove existence of a right that is
defined as property and secured under the Constitution and the
Convention. Therefore, the legal status of the applicant is firstly
reviewed in terms of whether or not the applicant has an interest
in the property that requires protection as per Article 35 of the
Constitution. In this context, if an act of public authority subject
to the complaint does not enable the applicant to acquire right to
property over it and does not provide a legal expectation for the
applicant under Article 35 of the Constitution and Article 1 in
Protocol No. 1 of the ECHR, then the application is found to be
inadmissible due to “incompetence ratione materiae”(Application
No. 2013/382, 16/4/2013).
14. Against which acts of public authorities can an individual
application be filed?
Claims of violations that can be the subject of individual
application will be examined only if there is an act, action or
neglect by the bodies who exercise the public power of the State of
Republic of Turkey or an act or neglect that can be attributed to
public authority. As per paragraph 2 of Article 45 in Law no.
6216, the subject of the individual applications is acts, procedures
and neglects by “public authorities”. Organs who exercise “public
power” as given in the paragraph are legislation, execution and
judiciary bodies included under state legal persons and affiliated
authorities of these bodies as well as local administration
institutions (Application No: 2012/171, 12/2/2013).
Subject of an individual application can be a positive act such
as an act, action or procedure by public authority or a negative
act such as non-execution of a required procedure or an act. For
instance, the State is liable to protect individuals against violations
of rights that may arise from public authorities and other
individuals within the context of the right to life and freedom
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
from torture and ill treatment. Public authorities are required to
follow an effective official investigation in the event of violation
of these rights (See Application No: 2012/752, 17/9/2013). So as
the State is required to act immediately in case of such a violation
of right, its failure in acting or delays in execution of the required
actions can be considered as a violation.
Similarly, activities which can be considered as neglect by
public authorities can be subject of individual application only
in cases where public bodies are obliged to follow a procedure.
One of the first issues to be considered is the failure in settlement
of trials in a reasonable time period. It is obvious that trial
within reasonable period is one of the elements of right to fair
trial. Furthermore, judiciary is liable to settle proceedings with
minimum cost and at the earliest time possible as per Article 141
of the Constitution. In assessment of reasonable period, the Court
determines not only the approach of the judiciary bodies but also
whether or not there is a neglect that results in a delay which
can be attributed to all State bodies executing public power.
Even state courts are liable to prevent acts and procedures of
parties which can lead to delays in trials by means of referring to
related procedural facilities (Application No: 2012/13, 2/7/2013).
The Constitutional Court examines the documents in the
application file in the assessment of complaints related to this
issue and reaches a conclusion after investigating whether or
not there is a neglectful act that can result in delay of the trial
or an incompleteness that can be attributed to the authorities
(Application No: 2013/1134, 16/5/2013).
On the other hand, individual application cannot be filed in
principle against acts of private persons. However, the State can
be liable for the violations of rights that may arise due to acts of
persons when the public transfers its liabilities to private persons
or institutions.
Another exception to the rule which stipulates that individual
application cannot be filed against acts of private persons or
institutions is that public authorities have a positive obligation in
prevention of violations of constitutional rights under the scope
of individual application procedure by private persons. Positive
obligations of public authorities in the protection of fundamental
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
rights can be defined only after an examination specific to the
related right.
Finally, acts which can be the subject of individual
application are mandatory acts of public authorities which are
binding for individuals. Acts which do not have a binding effect
(such as general directives, internal opinions, expert reports,
recommendations and advices etc.) cannot be the subject of
individual application since the act which is the subject of an
individual application is required to violate a fundamental
constitutional right of an individual.
15. Can an individual application be filed against general
regulatory procedures?
Since individual application procedure is not regulated as
a remedy that allows the claim of concrete unconstitutionality
of a public regulation, legislative procedures (laws, bylaws etc.)
and regulatory procedures of administration (internal rules,
regulations etc.) cannot be subject of an individual application
directly. The Constitutional Court also rules for inadmissibility
of applications about direct annulment of legislation procedures
on the grounds of “incompetence ratione materiae”. In this context,
the Court found the request of an applicant for direct annulment
of related law based on its alleged unconstitutionality as
inadmissible on the grounds that an individual application
cannot be filed to the Constitutional Court with the claim that
a legislation act is directly and concretely unconstitutional
(Application No: 2012/837, 5/3/2013).
However, this case does not prevent an individual application
against the practical procedure if the legislation act or regulatory
procedure is imposed on person and results in violation of a
right. In other words, if an act of legislation leads to violation of a
fundamental right and freedom, an individual application can be
filed against acts, actions or neglects in the implementation of the
legislation act rather than directly against the act of legislation
itself. In order to resort to individual application remedy in such
a manner, legal remedies which can be applicable for the related
acts, actions or neglects should be exhausted with priority. In
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
such cases, individual application is considered to be filed not
directly against the legislation act itself but against an act, action
or neglect in its implementation (Application No: 2012/837,
5/3/2013).
Thus, in a judgment of the Court, the complaint of an
applicant claiming that his/her right to remedies was restricted
by a decision on payment of attorney costs based on the Decree
having the Force of Law no. 659 in a proceeding filed against
the administration was not considered as an application directly
against the act of legislation. The Court found that the related
provision of Decree having the Force of Law was implemented
in a proceeding before the competent court and accordingly an
act (court decision) for the implementation of this Decree was
present, and decided that the review should be made on the
basis of this act. In other words, the Court’s judgment considered
whether or not the decision of the instance court on payment
of attorney costs was proportionate in terms of the right to seek
remedies (Application No: 2013/1613, 2/10/2013).
16. Which acts other than general regulatory acts are excluded
from individual application procedure?
An individual application cannot be filed in any way
whatsoever against judgments of the Constitutional Court
and acts excluded from judicial review by the Constitution. In
this respect, the type of review by the Constitutional Court is
insignificant. Judgments of the Constitutional Court cannot be
the subject of an individual application regardless of whether
the judgment is given when the Court acts as a Supreme Court
or within the framework of review of the constitutionality or
financial audit of political parties. Furthermore, by which body
of the Constitution Court the related judgments are made does
not make any difference, so it does not matter whether they are
given by a commission, a section or plenary assembly.
On the other hand, acts which are explicitly excluded from
judicial review by the Constitution such as acts by the President
of Republic in his/her own competence, promotion procedures
and acts of the Supreme Military Council regarding promotion
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
and retirement due to lack of tenure; decisions of the High
Council for Judges and Prosecutors other than those related
to penalty of dismissal from the profession cannot be brought
to the Constitutional Court through the individual application
procedure.
The Constitutional Court renders inadmissibility decisions
on the grounds of “incompetence ratione materiae” in applications
filed against acts of public authorities which are excluded from
judicial review by the Constitution. For instance, article 59 of
the Constitution stipulates that the decision of the Sports Board
of Arbitration cannot be appealed to any judicial authority.
Therefore, when the objection by the applicant who was the
president of a sports federation against the penalty of deprivation
from a right given upon the decision of the Sports General
Directorate Central Commission of Penalties as a consequence
of the investigation filed due to the acts of applicant’s Office
was rejected by the Sports General Directorate Arbitration
Committee, the Court decided that this act of dismissal could
not be a subject of an individual application (Application No:
2012/620, 12/2/2013).
In another judgment, an application filed against the decision
of the HCJP to dismiss the appeals against non-execution of
complaints concerning judges was found inadmissible. In
its review, the Constitution Court underlined that decisions
by the HCJP other than penalty of dismissal from profession
are excluded from judicial review as per Article 159 of the
Constitution, considered the subject act of the application had
identical characteristics and concluded that it cannot be subject
of individual application (Application No: 2013/1581, 16/4/2013).
17. Who is eligible to file an individual application?
According to the Law on the Establishment and Roles of
Procedure of the Constitutional Court, “every person” may file an
individual application alleging that 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 was violated.
However, the expression of “everyone” has some restrictions
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
arising from the features of individual application and Law no.
6216 brings a clarifying regulation on this issue.
18. Are the citizens of foreign countries eligible for this right?
Foreigners’ right to apply is recognized as restricted to only
the rights granted to foreigners in our national law: “Foreigners
are not eligible to file an individual application in relation to the rights
that are only granted to Turkish citizens”.
Therefore, applications by foreigners on issues applicable only
for Turkish citizens such as the right to vote and to be elected are
rejected. However, foreigners may apply to the Constitutional
Court with the claim that the right to life or freedom from
torture and ill treatment was violated as a result of acts of public
authorities.
For instance, the Constitutional Court reviewed an application
filed by a United States of America citizen against the expulsion
and prohibition from entering the country. In its judgment, the
Court did not consider any problem in terms of competence
ratione personae, however, it examined the part of the application
related to interim measure independent from admissibility
and ruled for the rejection of the request for interim measure
(Application No: 2013/1243, 16/4/2013).
In return, it should be noted that foreigners may file individual
application on rights granted in a restricted manner (right to
assembly and demonstration march, freedom of settlement and
movement etc.) only within the limits recognized by law.
19. Are legal persons eligible for individual application?
Legal persons (associations, foundations, commercial
partnerships etc.) may file individual application on the grounds
that the rights granted only for legal persons such as freedom of
association or right to legal remedies were violated. For instance,
the Constitutional Court considered in its judgment that the
violation claimed by a foundation which is a legal person was
related to the rights granted to its legal entity and reviewed the
application in terms of its merits. In the reviewed application,
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
the applicant foundation claimed that its right to freedom of
religion and conscience, right to legal remedies and right to
property were violated as a result of the rejection of the case filed
by the foundation in 2009 for the registration and annulment of
title deed following the registration of an immoveable used by
it and under its property on behalf of the Treasury as a result of
land surveying study. (Application No: 2013/757, 13/6/2013).
Furthermore, legal persons are not entitled to file an individual
application to defend the rights of their members, in other words
against procedures which do not result in direct effects on their
legal entities and from which they do not directly suffer although
the status of their members might be affected. Such applications
are found inadmissible on the grounds of “incompetence ratione
personae” (Application No: 2012/95, 25/12/2012).
20. Are public legal entities eligible for individual application?
Since individual application is a remedy stipulated against
violations of rights arising from exercise of public power, public
legal persons who enjoy privileges and liabilities provided by
public power are not entitled to the right to individual application.
Therefore, applications filed by public legal persons are found
inadmissible on the grounds of “incompetence ratione personae”.
The Court underlined that the term “public legal persons” include
local administrations as well as central administrative units. In
this respect, strictness or impreciseness of tutelage control over
local administrations or type of legal relation of the related
administration is of no importance. In this context, the Court
ruled for inadmissibility of an application filed by a village
legal entity on the grounds of given reasons. (Application No:
2012/22, 25/12/2012).
On the other hand, the Court considers that the notion of
public legal person covers professional organizations with
the characteristics of public institutions. As per article 135
of the Constitution, chambers of commerce and trade which
are professional organizations with characteristics of public
institutions are also public legal entities and are not entitled to
individual application (Application No: 2012/743, 5/3/2013).
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
21. What are the specific cases concerning the Court’s
competence ratione personae?
Individual application is a remedy to redress violations of
rights suffered by individuals and therefore review of the case
is ceased and a decision to strike out is given in principle for
application upon death of applicant. However, the subject right
of the individual application can be transferred to the heritor
owing to the nature of the right and if the inheritors have an
interest in the sustainment of the review, a decision to strike
out is not given for the application and the review of the case is
sustained.
The related victim status is closely related to the complaints in
the application which are connected to rights that can or cannot
be transferred. So inheritors should apply to the Constitutional
Court with a petition including their related claims and certificate
of inheritance.
Similarly, the possibility of application can be discussed if
the violated fundamental right has characteristics that require
protection on behalf of the deceased following their death.
However, a distinction should be made between applications
made on behalf of the deceased and those made by the inheritors
or representatives of the deceased with the claim that their rights
were violated by death. As known, the kin of a person who dies
in exceptional cases and particularly under conditions that lead
to a violation of right to life may file an individual application
with the claim that their rights were violated within the context
of Article 17 of the Constitution.
Thus, in one its judgments, the Court recognized that kin of
the person whose right was violated may file an application on
behalf of the deceased on the grounds of violation of right to life.
Due to the nature of the right to life, the Court considers that an
application related to the right to life of the person who lost his/
her life can only be filed by the relatives of the deceased who
became a victim due to the death incident. No incompleteness
was found in terms of the individual application eligibility in
the application filed by the spouse, children and siblings of the
person who died in a concrete incident.
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
However, the Court asks the kin of the deceased to take
necessary initiatives related to the death incident before instance
courts for the admissibility of the application (Application No:
2012/752, 17/9/2013).
22. What is the Court’s competence ratione loci?
The act which is subject of an individual application is required
to be an act of public authorities in geographical areas where
the State of the Republic of Turkey exercises its sovereignty.
Those who claim violation of their rights within the territory
of another State recognized by Turkey due to the acts of public
authorities of that State cannot file an individual application to
the Constitutional Court.
Thus, the Constitutional Court underlined in its judgment
that it does not have the competence to examine individual
applications filed against the acts of foreign states or international
or transnational organizations. A similar application filed with
the claim of violation was based on the act of deduction in
retirement pension by the State of France. The court declared
that the claimed violation of fundamental right based on this act
cannot be attributed to the Republic of Turkey and found the
application inadmissible due to “incompetence of the Constitutional
Court” (Application No: 2012/171, 12/2/2013).
III.
UNITS
THAT
EXAMINE
INDIVIDUAL
APPLICATIONS TO THE CONSTITUTIONAL COURT
23. What is the composition of judicial and administrative
units of the Constitutional Court that deal with individual
application?
The Constitutional Court consists of Plenary Assembly, two
sections and six commissions. The Plenary Assembly, in charge
of remedying inconsistencies that occur or might occur among
the judgments of sections, has 17 members. It convenes with the
participation of President and minimum of twelve members and
renders judgments with the absolute majority of its participants
in principle. Sections are responsible for examination of merits
22
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
in individual applications while the commissions deal with their
admissibility examination.
Additional new units were established under the body of
the Court in order to assist judicial and administrative studies
upon enforcement of individual application procedure. These
units where requisite number of rapporteur judges and staff are
employed are Individual Application Unit, Commission Rapporteurs
Office, Sections Rapporteurs Office and Research and Case-law Unit.
24. What is the composition of the Sections?
Sections are composed of seven members excluding the
deputy presidents, convene with a minimum of four members
under the chairmanship of a deputy president and give decisions
with the absolute majority of the participants. Members other
than the deputy president who will attend the meeting are
selected in monthly rotations and based on their seniority. As of
the date of examination of individual applications, the sections
are composed of the first four members on the seniority list of
that date under the chairmanship of the Deputy President.
In subsequent months, members who will participate in
monthly Section meetings are selected on the basis of the
participation of each member in turn and replacement of the
most senior member of the Section with the most senior member
who did not participate in that monthly meeting. These lists are
drafted annually in principle and announced to the members, as
the participant members with excuses are replaced by the most
senior of those who did not participate in that monthly meeting.
If the requisite number is not achieved even with the
participation of all members assigned for the section then
members from other Sections are assigned. In this case, upon
recommendation of the Chairman of the Section, the Court
President assigns members from other sections who do not
participate in that monthly meeting according to their seniority
ranking in order to replace those who could not attend the
meeting. When a new member participates in the Section,
necessary amendments are made on the list by the Chairman of
the Section.
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
25. What is the composition of Commissions?
Commissions consist of two members, convene with the
participation of two members and give decisions in unanimity.
They are named in numbers together with the Section under
which they are functioning. The Chairman of the Section cannot
be assigned in commissions.
Members of commissions are selected based on the
seniority ranking in monthly rotations. As of the starting date
of examination of individual applications, commissions were
established each with two members from Sections excluding
those with the lowest seniority. In subsequent months, members
who will participate in monthly commission meetings are
selected starting from the members who did not previously
attend meetings according to their seniority ranking and starting
from the member with the highest seniority provided that each
member participates in meetings alternately. These lists are
prepared annually in principle and announced to the members,
and the members who are expected to participate in meetings but
have an excuse are replaced with members who are not included
in the commissions of that month.
26. Which organs of the Constitutional Court examine
individual applications?
In principle, admissibility of individual applications are
examined by Commissions each consisting of two members
while the merits are examined by Sections that convene with
four members under the chairmanship of a Deputy President.
Additionally, when the admissibility of applications is not
settled by Commissions then admissibility and merits of such
applications are examined by Sections when needed. When
Sections report an obstacle against admissibility or if such occurs
subsequently, they are entitled to decide on the admissibility of
applications in any stage of examination.
Commissions render admissibility or inadmissibility decisions
in unanimity. When unanimity cannot be achieved, the matter
is referred to a Section provided that the failure in achievement
of unanimity is specified. Furthermore, the commissions refer
24
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
the application to a Section without settling its admissibility
when a leading judgment is required to define whether or not
the applicant suffered significant damage, for the settlement of
the case or if the judgment to be rendered may contradict with
another judgment of the Court.
27. Does the Plenary Assembly have any function related to
individual applications?
The Plenary Assembly does not have any function in ruling
on the admissibility and merits of individual applications. The
only judicial competence of the Plenary
Assembly related to individual applications is to solve
inconsistencies between individual application judgments of
Sections. Accordingly, if a section considers that its decision
about an application might contradict with a previous judgment
of the Court, it may bring the case to the Plenary Assembly before
ruling on the application.
On the other hand, the Plenary Assembly is also entitled to
authorize another Section if a section fails to deal with a task
falling under the scope of its competence due to an increase in
work that cannot be solved with normal engagement or in case
of an imbalance of the workload among the sections or an actual
or legal inability. Sections may also refer their cases to Plenary
Assembly for review when deemed necessary. Examination and
settlement of such cases are also included under the functions of
the Plenary Assembly.
28. How do rapporteurs function in individual applications?
Rapporteurs assigned in Commissions and Sections are liable
for functions related to individual applications as stipulated by
Law no. 6216 and Internal Rules of Court. They draft admissibility
decisions or decisions on merits in individual applications and
participate in meetings where these drafts are discussed.
Individual application rapporteurs correspond with the
relevant institutions and organizations to request information
and documents required to be included in application files. They
25
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
make and follow up necessary notifications.
When needed, heads of sections might assign tasks of hearing
witnesses or experts and similar tasks to the rapporteurs provided
that the scope and nature of the tasks required are specified with
the approval of President.
Individual application rapporteurs are assigned in various
units recently established for more rapid and effective settlement
of applications. Those functioning under the body of the
Commission Rapporteurs Office draft decisions on admissibility
of applications while the rapporteurs under the Section
Rapporteurs Office draft decisions on merits. Rapporteurs
working in the Research and Case-law Unit assist these units in
individual application activities besides their other functions.
On the other hand, rapporteur(s) are also assigned for Individual
Application Office established to correspond for the registration
and completion of administrative issues as well as definition and
solution of incomplete aspects in individual applications.
29. What is the composition of the Individual Application
Office and what are its procedures?
The Individual Application Office consists of rapporteurs,
assistant rapporteurs and administrative staff of requisite
numbers under the supervision of the Chief Rapporteur of
Commissions. It is responsible for the correspondences required
for the registration of applications as well as definition and
solution of incomplete issues.
This Office receives applications filed through other courts or
foreign representations and the direct individual applications to
the Court, classifies documents in files, scans them electronically
and registers them into the system. If there are any incomplete
issues reported in the administrative review of files, these are
corrected and the files without any incomplete issues or in which
such incomplete issues have been corrected are referred to the
Commission Rapporteurs Office.
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
30. What is the composition of the Commission Rapporteurs
Office and what are its procedures?
The Commission Rapporteurs Office is responsible for the
admissibility review of applications referred to the Commissions
by the Individual Application Office.
Previous leading judgments of Sections are observed in
the drafting of decisions by the Commission Rapporteurs
Office. Files received by the unit are examined according to the
previously established areas of expertise among the rapporteurs,
and “admissibility”, “inadmissibility”, “unification”, “referral to
section for leading judgment” or “strike out” decisions are drafted.
On the other hand, a mechanism is set up to control draft
decisions based on each inadmissibility reason in order to
improve the quality of draft decisions. Drafts elaborated by
assigned rapporteurs are checked in terms of their contents,
compliance with case-law, legal language and spelling rules and
presented for the evaluation of Commission members following
the completion of procedures.
31. What is the composition of the Section Rapporteurs Office
and what are its procedures?
The Section Rapporteurs Office is responsible for drafting
decisions on examination of merits of individual applications
in principle. Furthermore, it drafts decisions on examination
of both admissibility and merits of applications referred to
Section when commission members require a leading judgment
on admissibility, admissibility examination is related to merits
of application or when unanimity cannot be achieved on draft
inadmissibility decision.
Draft decisions to be presented to Sections are elaborated
by rapporteurs in the Section Rapporteurs Office who are
categorized according to their areas of expertise based on the
subject rights in individual applications.
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
32. What is the composition of the Research and Case-law
Unit and what are its procedures?
Research and Case-law Unit works in close cooperation
with Commissions and Sections in individual application and
undertakes responsibilities in ensuring compliance with caselaw and quality of judgments.
Decisions drafted in Commission and Section Rapporteurs
Offices to be submitted to Sections are sent to the Research and
Case-law Unit to determine their compliance with case-law and
formal requirements. Drafts are reviewed by groups established
based on admissibility criteria and subject rights in individual
applications. Consequently, opinions drafted as a report are
submitted to the related rapporteur and Section members.
On the other hand, the Research and Case-law Unit prepares
reports based on comparative legal examination of topics as
requested by the President and Deputy Presidents in terms of its
research function and which can be discussed at the Court and
these reports are presented to the members and rapporteurs of
the Court.
IV. FORMAL
APPLICATION
REQUIREMENTS
OF
INDIVIDUAL
33. What are the formal requirements of individual
application?
Individual applications must be lodged with an Individual
Application Form or a petition containing all information
required to be specified in the application form and with an
identical format. Information requested in this form should be
complete, legible and signed by the applicant. If the applicant
has a lawyer or a legal representative, the form should be signed
by them.
The form should contain only the information related
to merits of application and concise information required
for settlement of application. It should not exceed 10 pages
in total excluding annexes. If the number of pages is more
than specified, the applicant is required to add a summary of
28
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
maximum 10 pages under the section titled “remarks”. Since
failure to enclose this summary of 10 pages is considered as a
deficiency or incompleteness, the application might be rejected if
this deficiency is not remedied within the prescribed time.
On the other hand, documents prescribed in Article 59
of Internal Rules of Court or their certified copies should be
annexed to the application form when required by the content
of the file. Documents annexed to the application form should be
numbered by date and each document should be specified in a
list of contents under descriptive headings.
Application Guide explains how to fill an individual
application form to be submitted to the Constitutional Court.
This guide which was distributed to all courthouses and prisons
can also be downloaded from the web site of the Court (http://
www.anayasa.gov.tr/BireyselBasvuru/Formlar Belgeler/index.
html).
34. How can you access and fill out the application form?
Application form is given in the annex of the Internal Rules of
Court. This form can also be downloaded from the website of the
Constitutional Court (www.anayasa.gov.tr).
Individual application forms can be filled out electronically
and printed to be signed. It can also be filled out using a
typewriter or by hand.
If the application form is filled in by hand, due attention should
be paid to its legibility. It should be noted that the forfeiture of
rights might be experienced particularly due to illegibility of
dates and figures.
35. Is it obligatory to use the application form to file an
application?
In principle, individual applications must be made with the
application form and all fields in the form should be duly and
completely filled in.
However, in obligatory cases, applicants may also file their
29
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
applications with a petition with an identical format that contains
all the information which is required to be specified in the form.
Since not using the form in filing an application might lead to
errors, this method is recommended only for exceptional cases.
36. How to fill in the application form?
In applications filed by a real person, the applicant is required
to specify ID number, full address and contact information on
the application form.
As legal persons may file an individual application via their
organs authorized for representation within the framework of
related legislation, documents that provide evidence of the
authority to represent within the framework of charter of legal
person should be annexed to the form.
If more than one person is authorized to represent a legal
person, personal information should be given for each person.
As the communities without legal entity cannot be represented
directly, separate application forms should be signed by those
constituting this community or to file an application on behalf
of them or they are required to file an application by means
of an attorney duly authorized to represent individuals in the
community.
Furthermore, if the application is not filed via a lawyer, fields
where information related to attorney will be given should
not be filled in on the form. It should be noted that specifying
information about the attorney who represented an applicant in
stages before the application although the individual application
is not filed by means of an attorney may result in incorrect
notification, unnecessary correspondences as well as loss of time
and even forfeiture.
Which rights are violated on which grounds and related
justifications and concise explanations on evidence should be
specified under “Remarks” part of the form. It is not sufficient
to write merely the name of the right and each claim of
violation should be specified individually together with related
justification.
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
The Constitutional Court is not bound by its classification of
the right alleged to result in violation of a fundamental right of an
applicant. However, acts of public authorities which constitute a
basis for the alleged violation and the fundamental right alleged
to be violated should be specified in the petition. On the other
hand, as the Constitutional Court considers the Constitution as
a basis for its examination of individual applications and the
ECHR is considered as a basis only in definition of rights that are
the subject of the application as well as their scope, the applicant
is not necessarily required to make a reference to the articles of
the ECHR.
Due attention should be paid in giving information about
remedies exhausted for the subject of the application in the
relevant part of the form. If the applicant claims that there is
no administrative and judicial remedy to be exhausted on the
matter, related justifiable reasons should also be specified on the
form.
The request for the establishment of a violation of a
constitutional right and for ruling on what should be done to
redress the violation should be specified in the conclusion part
of the form. Here, the applicants should refrain from general
and unclear expressions and should clearly and concretely
specify their claims. Additionally, after summarizing final
claims, applicant should also specify other claims such as legal
aid, interim measures, hearing, fact-finding and expert review,
ruling for compensation and trial costs etc.
37. What are the consequences of an incorrect legal
qualification of subject incident of the alleged violation in
application form?
The Constitutional Court is not bound by the qualification
made by applicants in relation to the alleged public act and
fundamental right violation. The competence of determining
tangible cases and notions as well as their legal qualification falls
under the jurisdiction of the Constitutional Court. Therefore,
incorrect legal qualifications by the applicant do not result in
any forfeiture in principle. Thus, an applicant claimed that
31
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
right to property, right to fair trial and principles of equality
and legal judge assurance were violated in a judgment of the
Constitutional Court. However, the Court underlined that it is
not bound by the legal qualification of incidents by the applicant
and considered the complaints of the applicant merely within
the framework of right to property and fair trial (Application No:
2013/1586, 17/9/2013).
However, the correct qualification of cases, well-based
claims and presenting legal grounds of related remarks in the
application form can be obviously achieved through the correct
legal qualification of the violation claim. In order to prevent
such mistakes, it might be useful to review the texts of the
Constitutional Court and the ECtHR as well as the case-law of
the Constitutional Court before lodging an application and to
receive legal assistance when needed.
38. Is examination by the Court restricted to the issues
specified in the application form and particularly those specified
upon request?
Although the Court is not bound by the legal qualification
stated by the applicant, it cannot examine issues that are not
claimed by the applicant. In principle, examination by the court
is restricted to claims and requests made in the form. Therefore,
it is important for the applicants to precisely present their
explanations and claims related to the complained act of public
authority and damages suffered.
The Court cannot be expected to examine issues beyond those
claimed by the applicant and to rule for more than claimed.
For instance, in an application lodged for alleged violation
of right to freedom and security, although the Court ruled for
compensation for the applicant in similar applications due to
the fact that final claims of the applicant were restricted to the
ascertainment of fundamental right violation and release, it did
not rule for compensation in this file (Application No: 2012/521,
2/7/2013).
Although the Court ruled for compensation for the
applicant additionally in similar applications, it did not rule for
32
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
compensation in an application filed with the claim of violation
of right to freedom and security due to the fact that the claims
of the applicant are limited to the establishment of the violation
of a fundamental right and release (Application No: 2012/521,
2/7/2013).
39. Is it obligatory to hire a lawyer in lodging an application
or in subsequent stages of application? Who can represent
applicant in court?
In principle, applications should be lodged and executed by
the applicant personally in individual application. Although
a lawyer may be hired in lodging and application or during
subsequent stages of examination, this is not considered as an
obligation.
In applications lodged by a lawyer, the related power of
attorney should be enclosed to the application form. A specific
authority for individual application is not obligatory in the letter
of attorney. Therefore, the lawyer who represented the applicant
in ordinary courts can lodge an individual application with
a valid letter of attorney presented to these courts even if it is
before the application.
Applications can be lodged and executed by a legal
representative provided that documentation supporting the
competence to represent applicant is submitted.
If the applicant has a lawyer or a legal representative,
correspondence or notifications to them are considered to be
delivered to the applicant.
40. Which documents should be annexed to the application
form?
Originals or certified copies of the following documents
should be annexed to the application form:
a. Document of attorneyship in applications lodged by means
of a legal representative or a lawyer.
b. Proof of payment of fee.
33
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
c. Copy of ID, applicable ID if applicant is a foreigner.
d. Certificate of attorneyship to represent legal person, if
applicable
e. Letter of notification if the final decision or procedure was
notified.
f. Originals or certified copies of supporting documents.
g. Documents providing evidence of loss suffered in case of
claim for compensation.
h. Documents providing evidence of impediment if the
application was not lodged in due time.
41. What should the applicant do if documents which should
be annexed to the application form are not accessible?
The applicant is entitled to present documents supporting
alleged violation in the annex of the application form. However,
if documents supporting the claims of the applicant are kept by
a public institution and if such information or documents are
not provided to the applicant despite all legal attempts of the
applicant to access them, the applicant is required to specify
reasons for failure in accessing them together with the related
evidence in the form. If the Court decides that the supply and
examination of information or documents are required to
conclude the application, it may ex officio request the related
information and documents from the relevant institution or
organization.
In case of failure in submission of these documents in due
time despite the notification for the completion of incomplete
documents in an application, then the application is rejected due
to incompleteness. If the applicant fails to access a document to
be annexed to the application file due to a reason beyond his/
her control, this should be notified together with justification
and evidence within the time prescribed by the Court. If the
Court considers the claimed impediment as reasonable, it will
directly request this document with making from the related
persons or institutions. If the applicant fails to present his/her
reason for not accessing the document within due time together
34
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
with its justification and documents if any, the application might
be rejected on the grounds of a failure in remedying incomplete
aspects of the application within due time.
42. What should the applicant do in case of any subsequent
changes in the conditions related to an application?
In case of subsequent changes in issues presented in the
application form and its annexes or when a completely new
situation arises, the applicant should notify the Constitutional
Court in written form at the earliest. The most common example
is changes of address. If the applicant does not notify his/her
actual address to the Court, correspondences to the applicant are
made to the address registered on the form and this may lead to
various problems.
All responsibilities arising from failure in notifying such
subsequent changes to the Constitutional Court lie with the
applicant.
43. Is anonymity possible in application?
An applicant cannot conceal his/her identity information
on documents required for application to the Court. Such
applications would not even be registered on the grounds that
they fail to meet application requirements.
However, applicants have the right to request anonymity of
their identity only in the documents accessible by the public in
subsequent stages of the application. An applicant who requests
anonymity should declare his/her request and specify the
reasons for this request which is considered as an exception to
the principle of publicity of trials on the application form. This
request is reviewed by Commissions or Sections who will rule
on the application.
Requests for anonymity can be accepted only in exceptional
cases and when its underlying reasons are recognized. When
needed, anonymity can be decided for public hearings,
procedures and documents.
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
Name, surname and citizenship number of the applicant
are given in court judgments. All decisions of Sections are
published on the Court’s website and those classified as leading
are published in the Official Gazette. In order to protect personal
data of the applicant in these publications, citizenship numbers
are removed from the judgment wording.
Requests for anonymity in applications examined by
Commissions and Sections are evaluated separately and removal
of the name and surname of the applicant in publications both
in the Official Gazette and the Court’s web site can be decided
when the request is approved. In this case, only initials of the
applicant’s name or “X”, “Y” and “Z” letters are used (e.g.
Application No: 2013/2355, 7/11/2013).
44. Is an application subject to a fee? What is the fee amount?
Individual application is subject to a fee and the individual
application fee prescribed in the tariff under Act of Fees should
be deposited to the specified locations. However, it should be
noted that the individual application fee is increased at a rate of
re-evaluation calculated and announced for each year starting
from the beginning of every year ( 206,10 TL for 2014).
As the application fee is collected to launch the application
process, it cannot be returned after the application is introduced
except in cases of excessive or undue payments. In this context,
settlement of the application process in preliminary examination,
admissibility examination or examination of merits or rendering
a decision of strike-out due to waiver from application are of no
importance (Application No: 2012/69, 12/2/2013).
In cases where the applicant cannot pay the stipulated fee,
legal aid may be claimed. In this case, the applicant should
declare his/her situation under the final claims section on the
last page of the application form and enclose the supporting
documents.
36
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
45. What are the requirements of legal aid? Should related
fees and costs be paid in case of inadmissibility or non-violation
decision?
As per Civil Procedure Code no. 6100, those who are partially
or completely unable to meet trial costs and to follow up trials
without significantly putting the living costs of himself/herself
and his/her family into difficulty can benefit from legal aid
provided that their claims and defences are not manifestly illfounded. In other words, inability to pay trial costs and wellfounded claims should co-exist in order to benefit from legal
aid. An applicant who claims legal aid is required to submit
documents issued by officials to provide evidence of the
applicant’s economic situation failing to meet trial costs in the
annex of the application form.
These documents are assessed by the related units of the
Court and the applicant’s moveable or immovable assets, regular
income under social security are investigated by means of UYAP.
In evaluating legal aid claims, Sections or Commissions consider
whether or not the applicant benefited from legal aid in other
stages of trials related to the subject of the individual application
and whether or not there is a drastic change in the economic
situation of the applicant in time if the applicant did not benefit
from such an aid. Therefore, the applicant is requested to
document drastic changes in his/her economic situation if he/she
did not receive legal aid before.
The fact that an application should not be ill-founded, which
is the second requirement to benefit from legal aid, is evaluated
with the examination of application form, its annexes as well as
enclosed files of proceedings. The Court emphasizes that illfounded subject claim of the legal aid has a meaning different
from “manifestly ill-founded” defined in the rule stipulated as
“the Court may rule for inadmissibility of manifestly ill-founded
applications” in paragraph (2) of Article 48 in Law no. 6216
related to individual applications. Ill-founded individual
application to the Constitutional Court bears a meaning
restricted to the evaluation to be made in this decision scope
and does not necessarily result in that the claim of legal aid is
manifestly ill-founded. Furthermore, it is clear that ill-founded
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
subject of an application where legal aid is requested would not
be determinant in admissibility of the individual application
(Application No: 2012/1081, 17/9/2013).
In applications lodged with the request of legal aid, the
provisional exemption of the applicant from individual application
fee is decided first and then admissibility examination of the
application is initiated. In other words, examination of whether
or not legal aid claim is ill- founded is made independently and
prior to admissibility examination.
When the request for legal aid is rejected after its examination,
the applicant is notified to complete the incomplete fee within
a stipulated time not exceeding 15 (fifteen) days as per the
provisions in Law no. 6216 and Internal Rules of Court. If the fee
is not duly completed within the prescribed time, the application
is rejected due to incompleteness as per the provisions of Law
no. 6216 and Internal Rules of Court.
If it is decided to grant a legal aid, all trial costs namely
including the application fee are suspended. Trial costs are
regulated under the final judgment. In principle, when the
application is rejected, trial costs rest on the applicant and their
payment in monthly equal instalments in a maximum of one
year might be decided. If it is reported that collection of trial
costs paid by State or exempted due to legal aid decision results
in suffering of the beneficiary of legal aid, partial or complete
exemption of the applicant from fee payment might be decided.
46. Which procedures are followed for the application in case
of incomplete application form or its annexes?
The application form and its annexes should be filled in
completely in accordance with principles described in Law no.
6216 and Internal Rules.
Following the receipt of individual applications, this form and
its annexes are reviewed by related units of the Constitutional
Court to define whether or not anything is missing. In case of any
incompleteness, a specific time period is granted to the applicant
or his/her lawyer or legal representative if any in order to
complete or solve incomplete aspects of the application provided
38
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
that the time period does not exceed 15 days. In case of failure in
completing notified incomplete aspects of the application in due
time, the application is rejected administratively without any
further examination.
Thus, the Court decided for the rejection of the application on
the grounds that related incomplete aspects of the application
were not completed by the applicant in due time despite the fact
that incomplete aspects were noted in the application during the
preliminary examination which were expected to be completed
within 15 days and a letter specifying that the application
would be administratively rejected otherwise (Application No:
2012/1087, 25/3/2013).
V. SUBSTANTIVE REQUIREMENTS FOR INDIVIDUAL
APPLICATION
47. What are the substantive requirements for individual
application?
The most significant and prioritized requirements for
individual application are as follows:
a. Direct impact on an actual and personal right of applicant,
b. Exhaustion of all administrative and judicial remedies
prescribed by laws to redress violation and its consequences by
the applicant,
c. Importance of the application in terms of constitution and
the damage suffered.
48. What does direct impact on an actual and personal right
mean?
“Individual application can only be introduced by those whose actual
and personal rights are directly affected by an act, action or neglect
claimed to result in violation”. Only individuals who personally
become a victim due to violation of a fundamental right may
resort to the remedy of individual application. Therefore,
individual application is not designed as an abstract application
or actio popularis. Because in actio popularis, individuals may
39
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
go to constitutional courts with the alleged unconstitutionality
of an abstract norm regardless of whether or not their rights
are violated. In one of the individual application judgments
of a similar nature, the Constitutional Court clearly expressed
that individual application was not regulated as a remedy
that enabled a claim of concrete unconstitutionality of a public
regulation (Application No: 2012/837, 5/3/2013).
“Directly affecting” means that a fundamental right is violated
by an act or procedure which is the subject of individual
application and which affects a right of an applicant without
any need for another decision or procedure. According to this
principle, even if another procedure is required for an act of
public power (e.g. general regulatory procedures) to affect an
individual, individual application cannot be lodged against
this public act since it does not directly result in an effect and
consequence on fundamental rights. As a consequence of
implementation of this principle, applications of individuals
which are not directly related to individual procedures that are
subject of individual applications will be found inadmissible and
rejected.
If any of the fundamental rights of the applicant is damaged by
a procedure objected in the admission of individual application,
this implies the requirement that “an individual right is affected”.
As a consequence of this principle, legal persons (associations,
professional organizations etc.) can lodge an application on the
grounds that merely the rights of a legal entity were violated
(Application No: 2012/95, 25/12/2012).
The requirement of existence of a procedure alleged to
constitute a basis for violation of a fundamental right at the time
of application and the requirement that it points out a danger
present at the time of application are expressed as “affecting an
actual right”. In this context, individuals cannot file individual
application for procedures which were and can never be
implemented for them. This requirement brings an obligation to
the Constitutional Court to re-assess whether there has actually
been a violation of applicant’s right in every application.
Thus, in an application lodged by an inhabitant of a belde
(more populous villages with municipalities of their own) on
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
the grounds that the legal entity of a belde was annulled by law
no. 6360 and transformed into a village, the Constitutional Court
discussed whether or not the applicant’s “actual and personal right
was directly affected” in terms of competence ratione personae. In
this judgment, the Court stated that the applicant did not present
well-founded and convincing reasons for the direct impact the
on applicant’s actual and personal right and only mentioned the
possibility of experiencing problems in accessing basic public
services such as education, health, transportation, environment
etc.
The Court established that the related Law did not lead to
any consequence in terms of the public services specified by
the applicant and these public services should be rendered by
related administrative units regardless of the establishment of a
municipality in a residential area, and concluded that an actual
and personal right of the applicant was not directly violated
(Application No: 2013/469, 16/4/2013).
In another judgment, the Court made more comprehensive
explanations on the above mentioned issues within the context of
notion of victim. According to the Court, the notion of “victim”
should be interpreted and implemented in a manner independent
from rules such as rules of interest in cases or capacity to sue and
far from excessive formality on the basis of autonomous notions
theory of the ECtHR. Furthermore, the Court considered that
when the applicant only claims that he/she is a victim, this is not
sufficient for the admissibility of the application, and remarked
that the applicant is required to show that he/she is directly
affected by the violation and to convince the Court on this issue.
Due to given reasons, the Court decided that the application was
inadmissible due to “incompetence ratione personae” without any
need to review other admissibility conditions as it is understood
that the applicant cannot be individually affected by the court
judgment claimed to result in a violation (Application No:
2013/1977, 9/1/2014).
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
49. What does exhaustion of administrative and judicial
remedies mean?
Anyone who claims that any of his/her fundamental
constitutional rights was violated is first required to use other
administrative and judicial mechanisms that primarily have
competence in this area and in case of failure in finding a solution
at this point, can bring his/her claim to the Constitutional
Court. Therefore, before resorting to this remedy, individuals
are obliged to exhaust “all administrative and judicial remedies
prescribed by law” for a procedure, act or neglect that are claimed
to cause violation.
Remedies should be followed and exhausted until the last
stage before lodging an application and in accordance with
the procedural rules stipulated by law. Because there is an
opportunity and possibility to redress violation of a fundamental
right claimed by applicant during this process. Therefore, the
application is considered as inadmissible in cases where the
remedies are not exhausted.
Even when a legal remedy is concluded and exhausted before
an application lodged without complete exhaustion of remedies
is found admissible by the Constitutional Court, examination
of the application is made based on the situation on the date of
application and such applications are found inadmissible on the
grounds of non- exhaustion of remedies. Besides this case-law
of the Constitutional Court, it should be noted that applications
lodged before exhaustion of all effective and accessible remedies
against the subject act of public authorities in violation will be
rejected without any further examination on merits. Therefore,
due care should be paid to lodge an individual application after
ensuring certainty in exhaustion of remedies (Application No:
2012/254, 6/2/2014).
In cases where the application fails to meet substantive
conditions in instance courts, procedural rules are not followed
in an application or where the application is rejected due to
procedural faults, remedies cannot be considered as duly
exhausted.
If the procedural faults in this process are not
considered to have an effect on merits by the superior judicial
authority and the application is examined in terms of its merits,
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
the Court may decide that the remedies were exhausted. In a
judgment, the Constitutional Court underlined that the principle
of exhaustion of remedies require compliance with procedural
rules stipulated in the law system, because conditions and terms
related to the procedure should be respected for the exhaustion
of remedies. The application will be found inadmissible on the
grounds of non- exhaustion of remedies in cases where the
applicant fails to meet procedural requirements due to his/her
own neglect (B. No: 2013/7521, 4/12/2013).
Legislative organs, administrations and other judicial
authorities are primarily and obviously responsible to prevent
human rights violations, to enforce laws and to ensure precedence
of the Constitution. Thus, legislative organs, administrative and
ordinary judicial authorities are in a more effective position in
preventing violation of individual rights. These authorities are
expected to redress these violations before such complaints
are brought to the Constitutional Court. For instance the
officer, police station chief, public administration superior are
responsible to avoid ill treatment against a citizen who is detained
in any place in the country; the public prosecutor is responsible
for investigation if there is such a treatment and first instance
and court of appeals are responsible for trial and redressing a
violation and its consequences. If a violation and its consequences
are not redressed even after these stages, individual application
can be introduced as the last and final solution.
50. What are the features of remedies to be exhausted?
According to the Constitutional Court, applicants are required
to exhaust ordinary remedies. Therefore, mere existence of a
remedy does not obligate its exhaustion. These remedies should
be accessible, capable of redressing violation of a fundamental
right and offer reasonable chances of success in solving
complaints of the applicant when exhausted. In other words,
regulation of a remedy in legislation is not sufficient to consider
it as an effective remedy. In other words, the stipulation of a
remedy in legislation is not sufficient to consider it as effective,
it should also be proved to be effective in practice or at least not
proved to be ineffective (Application No: 2013/1158, 21/11/2013).
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
The Court stated in one of its judgments that this rule is
not applicable decisively and concrete application conditions
should be taken into account in controlling the compliance with
the rule. Therefore, a remedy to be exhausted should exist and
furthermore the individual conditions of the applicant as well
as the conditions for implementation of the remedy should
be considered realistically. So in the evaluation, fulfilment of
requirements by the applicant in order to comply with this rule
should be reviewed with the consideration of the characteristics
of application (Application No: 2013/2355, 7/11/2013).
Effectiveness and accessibility of a remedy is determined
according to the characteristic of alleged violation. For instance,
Criminal Procedure Code no. 5271, Article 141, sub-article (1),
paragraph (d) enables claim of compensation for a detainee for
whom the final verdict is not given within reasonable time. This
remedy cannot be considered as an effective remedy in cases
where an applicant whose pre-trial detention is ongoing requests
ruling for his/her release and compensation with the claim that
his/her detention is not legal or is unfair. Thus, this remedy only
guarantees to redress pecuniary and non-pecuniary damages
but does not provide any opportunity in terms of release of
the person even when it is reported that his/her detention is
against the law. In this case, this remedy cannot be considered as
effective in terms of the applicant’s concrete claim and therefore
is not required to be exhausted necessarily as long as the pre-trial
detention of the applicant does not end before the examination
of merits of an individual application.
However, as the detainee status of the applicant becomes
null and void when released or convicted, this remedy
stipulated in Article 141 of Law no. 5271 may also become an
effective remedy that should be exhausted. In this context, the
Constitutional Court ruled for effectiveness of this remedy by
examining examples in practice. The Court considers how the
Court of Cassation perceives “The motion for compensation may
be filed within 3 months after the notification of the final decisions or
judgments to the related parties, or at any case within one year after
the final decision. Compensation can be requested within three months
as of the notification of the finalization of judgment or judgment to the
related party and in any case within one year following finalization
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
date of judgment or decision” provision as stipulated in Article 142
(1), Law no. 5271 which regulates the requirements of a motion
for compensation. Within this framework, the Court accepted
that there is no example in practice showing that the remedy
stipulated in said articles of Law no. 5271 is effective before the
decision of applicant’s conviction was finalized (Application
No: 2012/1158, 21/11/2013). Therefore, the Court decided that
provisions of the Criminal Procedure Code do not offer an
effective remedy for pre-trial detention complaints in terms of
files which are at appeal stage.
However, as this remedy enables the definition of the length
of pre-trial detention of the applicant as well as compensation of
the damage suffered by the applicant following the finalization
of the decision, it offers an accessible and available solution as
well as a reasonable chance of success for the complaints of the
applicant. Individual applications filed without referring to legal
remedies that offer effective and accessible solution possibility
cannot be examined by the Court due to the subsidiarity principle
of the individual application remedy (Application No: 2012/338,
2/7/2013).
On the other hand, when examining the alleged violations
of right to trial within reasonable time, the Constitutional Court
rules that individuals may refer to individual application before
the case claimed to be violated is concluded. Furthermore, it noted
that there is no effective legal remedy related to examination of
claims of violation of this right in our country. In other words, it
decided that provisions related to the responsibility of the state in
general in the Constitution and in our laws do not offer accessible
and reasonable chance of success in theory and practice and that
individuals may directly refer to the Constitutional Court in
relation to this issue (Application no: 2012/13, 2/7/2013).
51. How does the Court rule when administrative and judicial
remedies are not referred to at all?
An opportunity should be given to administrative and judicial
authorities to remedy violations of rights arising from acts of
public authorities before an individual application is lodged
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
to the Constitutional Court and individuals should refer to the
Court after exhaustion of these remedies. Applications directly
lodged to the Court without following this principle are found
inadmissible on the grounds of non-exhaustion of remedies
and are rejected without any examination of the merits of the
application. For instance, an application lodged with the claim
that the enrolment request of the applicant was rejected by the
University administration although the applicant was granted the
right to have external transfer to a second education programme
of a university was found inadmissible by the Court due to the
fact that the applicant directly lodged an individual application
without referring to administrative and judicial remedies against
the administrative act as stipulated by law. In this judgment,
the Court emphasized that individual application is a subsidiary
remedy and remedies were not exhausted due to the fact that the
applicant did not refer to the administrative authorities against
the related administrative act and no action was brought against
the courts (Application No: 2012/74, 5/3/2013).
In another application, the Court pointed out that the applicant
should bring their complaints about a project implemented in the
region where the applicant’s immoveable property was located
(tendering process, unearned income etc.) primarily before the
competent and authorized first instance courts and should duly
refer to appeal in due time when the applicant is unsatisfied
with the judgments of the first instance courts. The court noted
that the applicant failed to submit any documentary evidence
that the applicant’s complaints about the related project were
previously brought before a court and further expressed that the
remedies were not exhausted for the complaints specified in the
application (Application No: 2013/1205, 17/9/2013).
Furthermore, the Court decided that in case of introduction
of a new and effective remedy in law system subsequently the
individuals should also exhaust this remedy before lodging
an individual application. For example, the Court approved
that an applicant did not take any legal action with the claim
of compensation upon rejection of his objection against cadastre
survey indicating that the immoveable properties possessed
by the applicant are located within the territory of forest found
the application inadmissible on the grounds that the remedy of
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
compensation introduced with recent case-law of the Court of
Cassation was not exhausted.
In this judgment, the Constitutional Court first reported that
the General Civil Assembly of the Court of Cassation introduced
amendments in their case-law and ruled that State would be
responsible for the violations of rights arising from erroneous
land registrations. Individuals may claim compensation as per
Article 1007 of Turkish Civil Law no. 4721 if land registrations are
annulled due to the fact that a place with a title deed is located
on forest land. The Court further noted that this remedy is still
referred to regularly and the applicant may claim compensation
within a time lapse of 10 years as of the finalization of decision for
the cancellation of title deed. It was decided that the application
lodged without referring to this remedy was inadmissible due
to non-exhaustion of remedies (Application No: 2012/1315,
16/4/2013).
52. What are the judicial authorities competent and
authorized for the exhaustion of remedies?
The legal action against a public act is required to be brought
before a competent and authorized judicial authority. In this
context, various judgments of the Constitutional Court clarify
what the notion of competent and authorized judicial authorities
mean.
For example, a complaint was filed by an applicant with the
claim that the applicant’s right to property was violated due to
confiscation without expropriation in a legal action filed against
the applicant by the related municipality in relation to the request
for estimation of cost of expropriation for an expropriated
immovable property and registration of the immovable property.
This application was found inadmissible on the grounds of nonexhaustion of remedies.
It is clear that as per Case-law Unification Decision of the
Court of Cassation of 16/5/1956, no. 1/6, a lawsuit can be filed
against the administration in case of alleged confiscation of
immoveable property without any expropriation decision by
the administration, and furthermore legal action can be filed on
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
collection of the value of the immoveable property in case there
is a consent on this act, however, the given case is not in that
nature but the first instance court’s objection to the request filed
by the applicant on this issue is based on the fact that the said
case filed by the administration is related to value assessment
and registration.
With the consideration of this fact, the Constitutional Court
ruled for the inadmissibility of the application on the grounds
that the claim of violation of fundamental rights and freedoms
were lodged without exhaustion of remedies at competent
instance courts (Application No: 2012/946, 26/3/2013).
53. If there is more than one remedy, should they all be
exhausted?
According to the Court, the rule for exhaustion of remedies
means exhaustion of available and effective remedies which offer a
reasonable chance of success and a solution for the complaints of the
applicant. Since conditions of the concrete case should be taken
into account in the related examination, not only the existence
of remedies, but the contexts of their functioning as well as
the individual conditions of the applicant should be assessed
realistically. In other words, whether or not the applicant
fulfilled the requirements for the exhaustion of remedies should
be examined duly with the consideration of the circumstances of
each concrete case (Application No: 2013/2355, 7/11/2013).
The State has positive obligations to establish effective
mechanisms against interventions to fundamental rights by
third parties. However, this obligation does not necessarily
require criminal investigation and prosecution. Protection of
individuals can also be possible with civil justice depending on
the characteristics of unfair interventions by third parties. In other
words, positive obligation can be protected with civil justice.
Thus, both criminal and civil protections are prescribed against
the misuse of trust or fraud acts. These acts are considered as
an offence in terms of criminal law while they are defined as an
unfair act in terms of civil law and can be subject to compensation
claims. In such cases, individuals can file civil actions and receive
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
compensation based on the alleged intervention to their rights
by third parties (Application No: 2013/2925, 10/12/2013).
The Court ruled that not all of the remedies serving the same
purpose are required to be exhausted with the consideration of
characteristics of case if there are more than one available remedy
for some complaints (Application No: 2013/2355, 7/11/2013).
However, if there is more than one available remedy to redress
the alleged violation, the Court compares them within the context
of the concrete case and analyses efficiency of proceedings to
define the remedy to be exhausted. Therefore, the applicant is
required to file an individual application after exhausting the
effective remedies.
For example, the Court reported in one of its judgments
that the applicant filed a criminal complaint due to defamation
against the applicant but did not file any civil lawsuit. According
to the Court criminal investigation is not the only remedy that
is accessible in terms of the concrete complaint, satisfactory in
redressing violation and offering reasonable success possibility
for the complaints of the applicant. The applicant may file a civil
lawsuit to receive a just satisfaction for these complaints. Based
on these grounds, the Court declared inadmissibility of the
individual application lodged before any civil lawsuit was filed
for the related claims (Application No: 2013/1123, 2/10/2013).
In another judgment, an application lodged by the applicant
to complain about the decision that no prosecution was required
consequent to the criminal investigation made for the criminal
complaint of the applicant filed due to attack on the applicant’s
honour and reputation by a national newspaper was found
inadmissible due to the fact that the applicant did not file any
civil lawsuit. The Court concluded in its assessment on the
efficiency of both remedies in terms of disputes of a similar
nature to the related claim of violation that remedy of civil
compensation is an available and effective remedy that can offer
higher satisfaction compared to criminal justice (Application No:
2013/2355, 7/11/2013).
Furthermore, the Court stressed that ruling only for payment
of compensation would not be sufficient in alleged violation
of the obligation to conduct effective investigation in cases
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
related to death incidents where life is ended intentionally or
consequent to an attack or ill treatment, and that the State has a
positive obligation to establish effective and preventive criminal
system. In context of Article 17 of the Constitution, the State is
liable to establish effective mechanisms to protect individuals’
right to life and to take effective administrative and judicial
measures that will allow cease of violations of this right, detection
and conviction of those who are responsible (Application No:
2012/752, 17/9/2013).
54. What does individual exhaustion of administrative and
judicial remedies mean?
An individual who lodges an individual application to the
Constitutional Court should first express his/her claim before
competent and authorized judicial authorities as per legal
provisions, refer to legal remedies in case this claim is rejected
and thereby exhaust them. In case of non-exhaustion of remedies,
for example when the appeal request of an inheritor is rejected
without any examination due to the fact that the heir does not
have any request for intervention, the application is found
inadmissible on the grounds of non-exhaustion of remedies.
Similarly, the party of a case who did not go to appeal cannot
lodge an individual application on the same issue. The Court
reported in one of its judgments that a decision of a first instance
court in the subject case of an individual application was
appealed only by the second applicant and the first applicant
did not refer to remedy of appeal against this decision. It further
concluded that the application was inadmissible on the grounds
that the first applicant did not duly exhaust remedies in the case
(Application No: 2012/1027, 12/2/2013).
The Court recognizes that relatives of deceased persons
within the context of right to life have the title of victim with
regard to individual application and can refer to individual
application. However, in order to be able to file an individual
application, these persons are required to have duly participated
in the investigation conducted in relation to the death incident.
For example, the Court found in an application that siblings of
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
the deceased did not submit any complaint petition for the death
case and did not submit any documentary evidence proving their
efforts to have an investigation followed. So their application
was found inadmissible by the Court on the grounds that the
remedies were not exhausted individually. However, in the
same application, complaints of the spouse and children of the
deceased who duly exhausted remedies were found admissible
and examined in relation to Article 17 of the Constitution
(Application No: 2012/752, 17/9/2013).
55. How does the Court rule in applications lodged during an
ongoing trial?
In applications to the Constitutional Court, the Court initially
examines whether or not all remedies were exhausted against
the subject public act or procedure in the application. When it
is determined that the remedies were exhausted in line with
the related procedural provisions, the application is examined
in terms of its merits if other admissibility conditions are also
fulfilled. Therefore, it is not possible to lodge an individual
application to the Constitutional Court on an issue which is
pending in instance courts. Because remedy of individual
application can be used in principle only when alleged violations
of fundamental rights and freedoms cannot be redressed with
ordinary supervision mechanisms. Therefore, if an application
is lodged when the case filed against the subject public act or
procedure in the application is pending then this application
is found inadmissible on the grounds of non-exhaustion of
remedies (Application No: 2012/726, 2/7/2013).
If the subject act of public authorities or court decision in
the application is not final, inadmissibility decision is given
on the grounds of non-exhaustion of remedies. For example,
the judgment of a competent and authorized Court of Assize
to launch a final investigation for an applicant functioning
as a notary public based on the accusation of misuse of Office
cannot be considered as a final judgment for the conviction of
the applicant, and therefore the Constitutional Court decided
that related remedies were not exhausted. In this judgment, the
Court noted that with the subject procedure of the application,
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
the trial of the applicant as a defendant became applicable with
the decision on initiation of a final investigation at the end of
the investigation conducted duly according to law due to notary
public services of the applicant. The claims that this case was a
punishment and violated presumption of innocence were found
to be lacking legal grounds by the Court and it further noted that
the trial process prescribed for the applicant was not followed
and concluded completely. Therefore, the application was found
inadmissible on the grounds that remedies were not exhausted
and the application was manifestly ill-founded (Application No:
2012/363, 5/3/2013).
In another judgment, the Court ruled that the judicial
supervision of the administrative act that the applicant requested
the Constitutional Court to annul was ongoing in administrative
judicial organs and instance court did not deliver any judgment
on the merits of the dispute yet. Therefore, the application was
found inadmissible on the grounds that the remedies were
not exhausted by the applicant (Application No: 2013/1243,
16/4/2013).
56. Is the remedy of revision of decision an obligatory remedy
to be exhausted?
Before lodging an individual application against an act of
public authorities, remedies applicable for decisions given
by instance courts should also be exhausted. At this point,
the applicant is expected to exhaust all ordinary remedies.
Although the doctrine of revision of decision is considered as
an ordinary legal remedy, the Constitutional Court accepts that
it is not obligatory to exhaust this remedy in terms of individual
application against the civil justice, administrative and military
administrative justice decisions. In other words, applications
lodged to the Constitutional Court within the application term
following the decision for approval of appeal without referring to
this remedy in terms of decisions that may be subject to revision
of decision are rejected on the grounds of non-exhaustion of
remedies (Application No: 2012/73, 5/3/2013).
Furthermore, individual application cannot be filed within
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
this process if this remedy which is not obligatory to be
exhausted was referred to once. Within this framework, if this
legal remedy which is prescribed in civil, administrative or
military administrative justice was referred to against a decision
that may be subject to revision, it is clear that the conclusion
of the request for revision of decision should be finalized and
therefore this remedy should be exhausted before filing an
individual application to the Constitutional Court. Thus, the
Constitutional Court ruled that inadmissibility should be
declared for an individual application that is filed before the
legal remedy of a case considered as effective and sufficient to
reach a conclusion is settled and before a decision is rendered
on this issue. (Application No: 2013/1177, 26/3/2013). In another
judgment, an application filed while the process of revision of
decision was ongoing was found inadmissible by the Court on
the grounds that the case was pending in the Court of Cassation
(Application No: 2012/403, 26/3/2013).
On the other hand, even when this remedy is referred to
despite the fact that the remedy of revision of decision is not
applicable following the appeal examination against the subject
decision of an individual application, it is still considered as a
fact that the remedies were exhausted with the decision of the
appeal authority. Therefore, in such cases, the approval decision
of the Court of Cassation is considered as the finalization date
of the judgment while the notification or communication of
this decision is considered as the starting date of the individual
application period. An individual application is required to be
lodged within 30 days as of the notification or communication
of the related decision and if the application term of 30 days
is missed due to time loss arising from resorting to remedy of
revision of decision which is not applicable for such decisions
then the rejection of the application will become unavoidable
(Application No: 2013/7583, 25/12/2013).
57. Can an individual application be filed against interim
decisions of courts?
Whether or not an individual application can be filed against
interim decisions of instance courts without waiting for final
53
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
judgment is another issue of discussion. It is obvious that interim
decisions given either by first instance courts or authorities
examining objections within the process ending with delivery
of judgment in trial can be objected or appealed only together
with the actual judgment. Therefore, interim decisions of first
instance courts can be subject of individual applications only
together with the actual judgment and following exhaustion
of all legal remedies. As underlined in the judgments of the
Constitutional Court, such an interim decision cannot be the
basis of an individual application in a manner independent from
the actual judgment.
For instance, in one of its judgments, the Constitutional Court
ruled that interim decisions related to recusation of a judge
and incompetence of the court which are subjects in an alleged
violation can only be subjected to appeal examination together
with actual judgment and such interim decisions cannot be a
subject of individual application in a manner independent from
the actual judgment (Application No: 2012/670, 26/3/2013).
On the other hand, due to the weight of intervention arising
from this rule in terms of some interlocutory decisions of courts
and the significance in the violation of fundamental rights that are
subject to intervention, some exceptions can be observed, such as
detention decisions. The Court recognized that individuals may
refer to the Constitutional Court about their complaints on the
interlocutory decisions with the consideration of the significance
of intervention and right related to deprivation of freedom of an
individual even if the actual case is not concluded (Application
No: 2012/726, 2/7/2013).
58. Does the Constitutional Court examine an individual
application when the applicant refers to precautionary
administrative and judicial remedies but waives them without
waiting for their conclusion?
The principle of exhaustion of remedies is an admissibility
criterion that underlines the subsidiarity of individual
application. Therefore, only referring to a legal remedy does
not mean exhaustion of that remedy. Exhaustion of remedies
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
means waiting for the conclusion of that remedy and acting in
compliance with methods, formal requirements, time and other
conditions prescribed for the examination.
Although this principle does not have to be exhausted
before lodging an application, it is also applicable for remedies
remaining under the free will of the applicant and resorted to
for the applicant’s claims. For instance, if the applicant refers to
the procedure of revision of decision which is precautionary for
the applicant then this procedure should be exhausted before
referring to individual application. If the applicant waives the
remedy of decision revision which the applicant considers as
effective and sufficient to reach a conclusion and ends the process
in free will then the application is considered as inadmissible
on the grounds of non-exhaustion of remedies (Application No:
2012/26, 26/3/2013).
59. Are there any exceptions in the rule of exhaustion of
remedies? If so, what are the exceptions?
In principle, remedies are exhausted sometimes after the
appeal and decision revision stages and they sometimes end with
the objection to a judicial act in a first instance court. However,
absolute implementation of the principle to exhaust remedies
may hinder effective use and protection of fundamental rights
and freedoms. This rule is in fact designed in a manner that will be
applicable in cases where there is an effective remedy to redress
violation of a fundamental right. Therefore, it is recognized that
there are some exceptions to the rule of exhaustion of remedies.
However, this issue is not regulated either in the Constitution or
in Law no. 6216.
Exemption of individuals from the obligation to exhaust other
legal remedies prescribed by law under specific and exceptional
conditions is a requirement of the approach that the rule on
exhaustion of legal remedies should be implemented with certain
flexibility and far from excessive formalities by taking the aim of
individual application into account.
The criteria applied in the definition of exemptions in relation
to this issue can be listed as the existence of a possibility that
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
strict compliance with the rule of exhaustion of administrative
and judicial remedies may result in damages that cannot be
compensated; related remedies might actually be ineffective and
finally the consequence of application should have a general
significance. However, it should also be noted that the subjective
approach of an applicant based on opinions or doubts about the
fact that exhaustion of remedies is not necessary, or existence of
systematic problems on this issue, do not necessitate exemption
from the obligation to exhaust administrative and judicial
remedies.
The following are considered as exceptions to for the rule of
exhaustion of remedies in the judgments of the Constitutional
Court:
a. Complaints about the right to trial within reasonable time
One of the exceptions to the rule of exhaustion of remedies
is to lodge an individual application with the claim that the
obligation to trial within reasonable time is not fulfilled in
ongoing trials. Thus, in such cases, the requirement of exhaustion
of remedies would not redress consequences of acting against
the obligation to trial within reasonable time. On the contrary,
it may lead to prolongation of the trial activity that is claimed to
be unreasonable, greater damages awarded to the applicant and
more significant violation consequences.
In case there is an administrative or judicial remedy that
ensures trial within reasonable time, in other words, which has
an impact to prevent prolongation of trial or which can define
and compensate damages occurring as a result of failure in
trial within reasonable time, exhaustion of this remedy will be
required before an individual application is lodged. However,
the Turkish law system does not have any effective remedy that
can prevent prolongation of trial or compensate damages arising
from prolongation of trial (Application No: 2012/13, 2/7/2013).
With regard to the right to trial within reasonable time, the
legal remedy introduced with the Law on Settlement of Some
Applications to the European Court of Human Rights with
Compensation Payments of 9/1/2013, no. 6384 is recognized by
the European Court of Human Rights as a remedy that should be
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
exhausted for such claims of violation (Müdür Turgut et al. / Turkey,
Application No: 4860/09, 6/3/2013). Additionally, Article 1 and
paragraph (1) of Article 9 in the related Law stipulates that this
law will be applicable for applications registered in the ECtHR
as of 23/9/2012. Furthermore, according to Article 2, paragraph
(2) of the same Law, such a remedy has not been created yet even
if provisions of this law can be applicable upon decision of the
Board of Ministers for the other areas of violations to be proposed
by the Ministry of Justice with the consideration of the intensity
of violation decisions delivered in line with the established caselaw of the ECtHR in relation to the rights protected under the
ECHR and its additional protocols ratified by Turkey,. This
issue is considered as an exception to the exhaustion of remedies
due to the fact that there is no effective remedy that can redress
violation and its consequences with regard to the applications
filed for alleged violation of right to trial within reasonable time
(Application No: 2012/13, 2/7/2013).
b. Complaints on pre-trial detention
The rule of exhaustion of remedies is a specific issue for
complaints related to pre-trial detention. To consider this issue
more concretely, it should be noted that when, for instance, an
appeal filed to a higher judicial authority by a person arrested by
a criminal court of peace is rejected, this decision will be final and
there is no possibility of objection against this decision. Whether
or not this person can directly file an individual application to
the Constitutional Court following this stage and which aspects
of such an application will be examined by the Constitutional
Court should be discussed.
Firstly, it is obvious that the decision of the court examining
the objection against the decision of arrest is final since there is
no other authority or office to refer to in terms of the subject of
the application. Following this decision, it is recognized that an
individual application may be filed to the Constitutional Court.
Issues which may become the subject of complaint in such
applications and can be examined by the Constitutional Court
can be summarized as follows:
Existence of strong criminal suspicion and presence of any of the
reasons for pre-trial detention: According to the Court, a strong
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
indication of criminality of persons should be present in order
to refer to the interim measure of pre-trial detention. However,
this is not sufficient on its own and it should also contribute
to prevention of escape of persons as well as destruction or
tampering evidence. These reasons for pre-trial detention which
are initially required are also considered as sufficient for the
prolongation of pre-trial detention up to certain period of time. It
would be sufficient if instance courts present existence of reasons
for pre-trial detention based on this decision given initially for a
certain period of time. However, after a certain period of time,
reasonable justifications should be submitted for the ongoing
presence of reasons for pre-trial detention in decisions related to
prolongation (Application No: 2012/239, 2/7/2013).
Complaints about reasonable time: The merits of the case can
be examined depending on the specifics of a case, if pre-trial
detention is assessed to be long. However, leading judgments
of the Constitutional Court clarifies for which reasons and
as of when the pre-trial detentions will be considered “long”
in such applications. The Court first examines whether or not
justifications for the sustainment of pre-trial detention are
“relevant” and “sufficient” in such complaints, because instance
courts should show that reasons for pre-trial detention still exist
together with relevant justifications. If these justifications are
considered as “relevant” and “sufficient”, the Court examines
whether or not the trial process is conducted with due care.
Factors such as complexity of case, relevance with organized
crimes or number of defendants are taken into account in the
assessment of this due care. Therefore, the Court reaches a
conclusion on whether or not the time period is reasonable
by taking all relevant aspects of the issue into consideration
(Application No: 2012/239, 2/7/2013). Complaints related to long
lasting trials which are filed after the declaration of principles by
Sections and which do not meet related conditions can be found
inadmissible by the Commissions on the grounds that they are
manifestly ill-founded.
Complaints about procedures followed by the authority that
examines the objection: Complaints can be filed against violation
of fundamental rights that arise from procedural acts during the
process of examination of objection against pre-trial detention,
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because the Constitutional Court requires that principles of
“adversarial trial” and “equality of arms” are respected in the
examination related to review of pre-trial detention. For example,
absence of a hearing, opinion of the prosecutor not being notified
to the defendant etc. might create problems in this respect.
According to the Court, the principle of equality of arms should
be required between Public Prosecutor and detainee in case of
objection against pre-trial detention. Thus the Court decided that
Article 19, paragraph 8 of the Constitution was violated due to
the failure in notification of the opinions submitted by the Office
of Chief Public Prosecutor to the applicants (Application No:
2012/1158, 21/11/2013).
Another issue that should be underlined at this point is that
a defendant who was under pre-trial detention in an ongoing
case filed an individual application to the Constitutional Court
with the claim of long pre-trial detention only after a few
months following the applicant’s detention. In such cases, the
Constitutional Court may reject the case without any examination
on the grounds that the application is ill-grounded in this respect
as the term of pre-trial detention would not reach a stage that can
be considered as “long” if there is a strong criminal suspicion on
the commitment of crime. Furthermore, if the applicant fails to
object to detention in due time, a complaint on this issue might
be rejected without any need for examination as the remedies
would not have been exhausted.
c. A remedy not considered as effective by applicant
When a first instance court gives a decision to abide by after
the appeal stage or an obligation to rule in accordance with
the decision given during the appeal stage (decisions of the
General Assembly of Civil or Criminal Chambers in the Court
of Cassation), the Court does not consider re-appeal as a remedy
that should be exhausted. Because “authorities of appeal rendered
a judgment for the same decision and instance court also rendered a
judgment in line with the decision of the authority of appeal. In this
context, remedy of appeal against the last decision rendered by the court
cannot be considered as an effective remedy and … application lodged
before referring to appeal against the last decision rendered by the court
cannot be considered as inadmissible on the grounds of non-exhaustion
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
of remedies.” According to the court, the applicant met the
requirements in ordinary courts in terms of current admissibility
criteria. Expecting an applicant to refer to remedy of appeal
again might create a disproportionate obstacle against the right
to individual application (Application No: 2013/7523, 4/12/2013).
In a concrete case, an applicant appealed the decision of
first instance delivered against the applicant for compensation
payment and this decision was quashed by the 4th Civil Chamber
of the Court of Cassation. Upon resistance of the court against this
decision of quashing, the General Assembly of Civil Chambers
of Court of Cassation considered the court’s decision to resist
as appropriate. So the decision of the 4th Civil Chamber of the
Court of Cassation was annulled and the file was sent to the 4th
Civil Chamber for review of the compensation amount. Upon
decision of the said Chamber to quash the decision in terms of
the amount of the compensation, the first instance court abided
by this decision of quashing and ruled for partial admissibility
of the case. The applicant did not consider any legal interest in
appealing this decision and directly filed an application to the
Constitutional Court without referring to the appeal again. The
Constitutional Court did not consider any problem in exhaustion
of remedies (Application No: 2013/7523, 4/12/2013).
60. When violation of a fundamental right is claimed in
individual application, is it obligatory to file the same claim
before other judicial authorities as well?
Individual application is a substantive and exceptional legal
remedy. Individuals are first required to file their claims of
violation of rights at first instance courts and supreme courts.
They may refer to this remedy only when alleged violation of
rights is not responded to by other judicial organs. Therefore,
an individual application would be rejected if filed without
allowing other judicial authorities to examine alleged violation
of rights and redress consequences of violation when necessary.
If an alleged violation that is not duly filed to other judicial
authorities is not brought to the Constitutional Court by means
of individual application, the Court will find this application
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
inadmissible on the grounds of non-exhaustion of remedies
and reject the case without examining merits of the claim due to
given reasons.
On the other hand, it is clear that this issue is not taken into
account in many applications. For example, an applicant filed
an individual application to the Constitutional Court for his/her
complaints related to a project implemented in the area where the
applicant’s immoveable property was located, without resorting
to competent and authorized first instance courts and exhausting
legal remedies in case of dissatisfaction with the decision of first
instance court, and this application was found inadmissible by
the Constitutional Court. The Court noted that the applicant
failed to submit any documentary evidence proving that the
applicant referred to ordinary courts for his/her complaints
related to the said project, but only filed a case in administrative
judiciary for the annulment of the expropriation decision which
was ongoing. In this case, the Court concluded that the remedies
were not exhausted for the complaints of the applicant in relation
to with the said project (Application No: 2013/1205, 17/9/2013).
The Constitutional Court indicates that alleged violation
should be brought not only to the authority of first instance trial
but also to the superior authorities that examine first instance
decisions. Similarly, claims on violation of rights that are alleged
to occur in first instance courts should also be brought to the
authorities who have the competence to examine and review that
decision. For example, an applicant complained that confidential
information presented by the defendant administration was not
notified to the applicant in a trial in the First Chamber of High
Military Administrative Court. However, the Constitutional
Court noted that the applicant requested a revision of decision,
but the applicant did not claim in this request that the related
confidential information was not notified to him/her and
this information was considered as a basis for the judgment.
Therefore, the application was found inadmissible due to “nonexhaustion of remedies” in terms of this complaint (Application
No: 2012/660, 7/11/2013).
A similar approach is applicable also for cases where the
applicant does not personally exhaust legal remedies related to
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
the subject of the application. The result remains the same even
when those who are not party to the case in first instance and
authorities of appeal file an application together with individuals
who are party to the case and exhausted remedies. Application
will be found inadmissible for those persons (Application No:
2013/1205, 17/9/2013). Thus, in one of the Court’s judgments, it
is reported that no judgment was rendered for the requests of
7 applicants and their witnesses– other than 14 applicants who
filed a case in first instance court- to be a party to the case, in
other words 7 applicants were not previously a party to the
case in a competent court about their complaints submitted as
a subject in their individual application. Therefore, the Court
ruled for the inadmissibility of the application on the grounds of
“non-exhaustion of remedies” without examining the application
with regard to other admissibility requirements as the individual
application was lodged by 7 applicants without exhausting all
legal remedies stipulated by law against the subject procedure of
the application (Application No: 2013/1258, 13/6/2013).
61. Can individual application be filed against a public act
which becomes a final decision due to applicant’s failure in
exhausting remedies?
An applicant cannot bring a claim of violation to the
Constitutional Court unless all facilities offered by substantive
and procedural law to redress violation are utilized and
accordingly other judicial organs are allowed to redress
violation. Admission of a contrary case would not comply with
subsidiarity of individual application.
Furthermore, individuals are required to act in accordance
with procedural provisions prescribed by legislation concerning
administrative and judicial remedies that should be exhausted
before an individual application, particularly in accordance with
time limits. If such a petition is rejected in previous stages due
to failure in complying with time limits of appeal or objection,
individual application will be also rejected due to failure in duly
exhausting remedies.
Thus, the Constitutional Court found an application
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
inadmissible on the grounds that it was filed before appeal which
is a legal remedy prescribed by law against a court decision
alleged to result in violation of a fundamental right (Application
No: 2012/1027, 12/2/2013).
On the other hand, resorting to a legal remedy does not
imply exhaustion of that remedy. For the exhaustion of a legal
remedy, the applicant should wait for the conclusion of the
remedy and should act in compliance with procedures and other
requirements prescribed during the examination stage.
62. Can individuals file an application against decisions for
retrial?
Contrary to the ECtHR, the Constitutional Court does not
consider complaints on violation of right to fair trial during
the process of examining the request for retrial beyond its
incompetence ratione materiae and examines such complaints
(Application No: B. No: 2013/781, 26/3/2013).
However, two aspects of the issue should be specifically
underlined:
Firstly, the Court examines rejection decisions rendered
because of the fact that conditions do not arise for the retrial
request, only within the context of fair trial elements ( right to
reasoned judgment etc.) and gives inadmissibility decisions
(Application No: 2013/664, 17/9/2013). The basic motive here is
to prevent arbitrariness that may arise during the retrial phase.
Secondly, instance courts may render decisions with the
examination of merits of application in retrials. Since no such
application has been filed yet, the related principles of the
Constitutional Court are not established yet. However, the
Constitutional Court may also examine alleged violation of any
of the rights in individual application in terms of the reason for
retrial where a first instance court accepts the request for retrial
and conducts an examination on merits.
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
63. What does insignificance of application
(constitutionally and with regard to damage suffered)?
mean
Examination of individual applications constitutes the majority
of the workload of the constitutional courts where individual
application is in force. Due to this intensity, constitutional courts
may face threat of failure in focusing on their basic functions.
On the other hand, the majority of individual applications to
the constitutional courts are related to subjects about which the
courts had previously settled and defined basic principles. In
areas where the constitutional courts have established case-law,
identical subjects are not naturally expected to be submitted for
examination with repetitive applications.
The German and Spanish Constitutional Courts, which have
encountered such a problem as well as the European Court of
Human Rights adopted “significance of application in terms of
respect to human rights and constitution” as a new admissibility
criterion although it is expressed in different forms. Some of these
courts and countries render judgments within the framework of
this criterion and also require consideration of “damage suffered
by the applicant”.
In Turkey, the Constitutional Court may rule for the
inadmissibility of an individual application when the subject
brought to the Court by means of individual application “does
not have significance in terms of implementation and interpretation of
the Constitution or definition of the scope and limits of fundamental
rights (insignificance in terms of constitution) and when the applicant
does not suffer a significant damage (insignifance of damage suffered
by the applicant)” as per Article 48, paragraph (2) of Law no. 6216.
The “and” conjunction which interlinks these two criteria
implies that both conditions should co-exist in order to deliver
an inadmissibility decision for an individual application in
this context. An application that meets all of the remaining
admissibility criteria will not be found inadmissible if a significant
damage is suffered by the applicant even when the application
does not have significance in terms of constitution. Similarly, if
it is significant in terms of constitution the application will be
examined even if the damage suffered by the applicant is minor.
Even in cases where the application meets all other
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
admissibility criteria (exhaustion of remedies, rules related
to competence, manifestly ill-founded etc.) and presence of
violation of fundamental rights and freedoms clearly exists,
applications which do not meet constitutional significance
and significant damage criteria will not be examined by the
Constitutional Court.
This provision shows that the Court is not designed as a
protector of rights and freedoms for every concrete case, and the
role of ensuring harmonization and standardization of rights and
freedoms in our country with universal values with the adoption
of the Constitution’s interpretation on fundamental rights and
freedoms by instance courts is attributed to the Court.
Furthermore, the regulation seeks a balance between the
two missions of admissibility criteria. The provision focuses
on objectivity of individual application and aims not to ignore
its subjectivity as well. In other words, the legislature does
not want to neglect individual application’s mission to protect
fundamental rights and freedoms.
In this framework, the presence of constitutional significance
can be a matter of concern in the examination of the application
if this examination is required for settlement of an individual
application, definition of general principles containing rules
on fundamental rights that constitute a basis for application,
definition of whether or not public authority is under a positive
or negative obligation because of this rule and definition of a
violation in a concrete case.
On the other hand, it may also be concluded that settlement
of new applications of the same nature does not bear any
constitutional significance after the clarification of obligations of
public in terms of a specific intervention of a fundamental right
and selection of interim measures which should be indicated.
However, only the existence of such a case does not mean
that subsequent applications will be rejected on these grounds.
The second condition for inadmissibility of an application due to
insignificance is that the applicant should not suffer significant
damage due to the related violation of right. Establishment of
whether or not damage suffered by the applicant is insignificant
requires definition of the weight of damage suffered with regard
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
to both pecuniary and non-pecuniary aspects. However, if it is
concluded that there is no damage significant in both aspects,
it may also be concluded that there is no significant damage in
terms of the applicant.
VI. TIME LIMITS FOR INDIVIDUAL APPLICATION
64. What is the last day for the finalization of acts of public
authorities that can be subject to individual application to the
Constitutional Court?
The starting date for the competence of the Constitutional
Court in individual applications is 23/9/2012. So the Court can
examine individual applications to be lodged against final
acts and decisions that are finalized after 23/9/2012. Therefore,
decisions finalized before 23/9/2012 cannot be examined by the
Constitutional Court.
Petitions filed to the Constitutional Court for individual
application without considering this fact are rejected due to
incompetence ratione temporis.
The Constitutional Court expressed in one of its judgments
that selection of a final date for the Court’s competence ratione
temporis in individual applications and non-implementation
of this competence retrospectively are requirements of legal
certainty. Because the principle of legal certainty requires that
legal norms are predictable, individuals trust the State in all acts
and procedures and the State avoids methods that may harm
this sense of trust in legal regulations (Application No: 2012/51,
25/12/2012).
When an act of public authorities will be considered as
finalized in terms of individual application is an issue that should
be underlined significantly and clarified with the judgments of
the Constitutional Court. The Court rules whether or not the
subject procedure in the application falls under its competence
ratione temporis with defining as of which date the act of public
authorities is finalized specifically with the consideration of the
nature of related legislation and individual application facility.
Concept of “finalization” which is important in defining the
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
Constitutional Court’s competence ratione temporis differs from
that used in other areas of law in certain aspects. In other words,
a different finalization in terms of individual application, i.e. an
autonomous concept is a matter of concern.
The Constitutional Court clarified what finalization in terms
of individual application means in its case-law introduced
upon admission of initial applications. Case-law of the Court
introduces the following principles on finalization according to
the type of acts of public authorities:
a. In criminal justice, judgments which can be subject to
appeal are finalized with decision of approval in principle while
those which can be subject to objection are finalized with the
rejection of objection:
Since appeal is the last ordinary legal remedy that should be
exhausted for judgments that can be appealed in criminal justice,
the judgments of first instance courts are finalized as of the date
of approval by the related criminal chamber of the Court of
Cassation.
An applicant’s application to the Office of Chief Public
Prosecutor in the Court of Cassation against this decision with
the request of resorting to the remedy of objection would not
change the finalization date of final judgment as this request is
under the discretion of the Chief Public Prosecutor (Application
No: 2012/162, 12/2/2013).
On the other hand, judgments which cannot be appealed in
criminal justice but can be subject to remedy of objection only
are considered as finalized in terms of individual application
when the objection is rejected. For example, remedy of objection
is applicable against the decisions for delayed announcement of
judgment as per Criminal Procedure Code no. 5271, Article 231,
paragraph (12). Upon refusal of objection against a decision of
a first instance court for delayed announcement of judgment,
the related judgment is finalized. Thus, the issue of competence
ratione temporis in an application filed upon decision of a court
which reviewed a first instance court’s decision upon objection
was evaluated by the Constitutional Court on the basis of the
decision of the last court. (Application No: 2012/969, 18/9/2013).
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
Similarly, an applicant who was under pre-trial detention
during investigation stage due to some offences attributed to the
applicant filed an individual application to the Constitutional
Court upon refusal of claim for release and objections against this
decision. The Court noted that the related act of public authorities
was finalized on the date when the objections against the
decision to refuse the applicant’s claim for release were rejected
and this date was before the date of 23/9/2012, and decided that
the application was inadmissible due to incompetence ratione
temporis (Application No: 2012/260, 26/372013).
In relation to this judgment, it should be noted that in case of
continuation of detention after 23/9/2012 if the applicant requests
release and this request is rejected then the applicant can file an
individual application to the Constitutional Court in 30 days.
The Court’s case-law concludes that competence ratione temporis
is limited to acts of public authorities finalized after 23/9/2012
and procedure concerning rejection of request for release cannot
be examined just like other acts of public authorities that are
finalized before this date.
Another judgment discussing the issue of finalization is
related to an application where a judge who resigned from the
profession claimed re-admission to the profession and this claim
was rejected by the High Council of Judges and Prosecutors
on 22/6/2011. The application filed against this act which was
finalized as of 22/6/2011 due to the inapplicability of legal
remedies for the Council was found inadmissible by the Court
on the grounds of incompetence ratione temporis (Application
No: 2012/475, 5/3/2013).
b. Finalization of decisions which can be appealed in civil
justice and administrative justice is defined depending on
whether or not revision of decision is applied:
Ordinary legal remedies in administrative justice and civil
justice are appeal and revision of decision. Judgments which
can be subject to revision of decision are finalized as of the date
of refusal decision given consequent to a request for revision of
decision (See Application No: 2013/1213, 4/12/2013) or as of the
date of appeal approval decision if the applicant did not resort
to revision of decision (See Application No: 2012/73, 5/3/2013).
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
In this case, judgments which can be but are not subjected to
remedy of revision of decision are finalized as of the date of
approval of appeal.
c. Finalization of judgments rendered by High Military
Administrative Court is defined depending on whether or not
remedy of revision of decision is applied:
A judicial act is considered as finalized when a case filed to the
High Military Administrative Court against an administrative
act falling under the competence of military administrative
judiciary or request for revision of decision against this case is
refused. In a judgment, the Court noted that decision of refusal
by the High Military Administrative Court against a request for
revision of decision was given before 23/9/2012 and ruled for
the inadmissibility of application due to incompetence ratione
temporis (Application No: 2012/329, 12/2/2013).
On the other hand, if revision of decision is not requested
against the decisions of the High Military Administrative Court,
these decisions will be considered as finalized on the date they
are rendered and will result in all judgments and consequences
of a final decision. So a decision of refusal was given by the
High Military Administrative Court against a case filed by an
applicant who was discharged when working in the Ministry of
National Defence in order to return to office according to Law
no. 6191 enforced in 2011. Since the decisions given by chambers
or General Assembly of Chambers of this Court are final when
they are delivered as per Article 6, Law no. 1602, these decisions
are considered as finalized as of the date of their delivery
(Application No: 2012/947, 12/2/2013).
d. Decisions for detention are considered as finalized upon
rejection of objections against such decisions:
At this stage, the Constitutional Court adopted a different
approach for the protective measures of detention (Application
No: 2012/239, 2/7/2013) and prohibition of travelling abroad (See
Application No: 2012/1051, .../2/2014). It did not wait for the
conclusion of the actual case where these measures were taken
and adopted that individual application can be filed against
such decisions as of the settlement of remedy of objection that
is prescribed due to the weight of intervention to the freedom of
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
person under detention.
65. When an applicant resorts to an ineffective or extraordinary
legal remedy against a finalized act of public authority, does it
have an impact on the finalization?
The Constitutional Court stated that resorting to extraordinary
legal or ineffective remedies against acts finalized before the
critical date of 23/9/2012 or execution of the finalized decision
after this date principally will not result in discussion of the
decision finalized previously. In this context, resorting to
extraordinary legal remedies such as retrial, objection to the
Office of Chief Public Prosecutor in the Court of Cassation,
reverse in the interest of law etc. does not have any impact on
the finalization of decision in principle.
Recalling that appeal is an ordinary legal remedy that should
be exhausted for the finalization of judgments in criminal
procedure law, the Court clearly expressed that an applicant’s
request for retrial as per article 311, Criminal Procedure Code
no. 5271 would not affect finalization of judgment on 24/6/2009
(Application No: 2012/829, 5/3/2013).
Similarly, application to institutions or organs which do
not have competence in the execution of judgment against the
finalized judgment is not an effective legal remedy. Decision on
refusal of such an application does not offer individuals a new
opportunity to file an individual application to the Constitutional
Court. Firstly, the remedy which should be exhausted should
be able to provide a solution to the subject situation of the
application to the Constitutional Court, in other words, it should
be capable of remedying the issue alleged to violate fundamental
constitutional rights and redressing violation.
Therefore,
applications to the institutions and organs which do not have
competence to offer an effective solution to the subject case of
the application will not provide reanimation of the case and
consideration of the application within the scope of competence
ratione temporis (Application No: 2012/317, 16/4/2013).
In another judgment, the Court stated that reversing in the
interest of law as regulated under Articles 309 and 310, Criminal
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
Procedure Law no. 5271 is a remedy prescribed for decisions
given by judges and courts and finalized without review by
appeal, and ensures supervision of such decisions by the Court
of Cassation. It further underlined that this remedy stipulated
in order to redress unlawfulness in finalized judgments and to
ensure implementation of laws equally throughout the country
is implemented against finalized judgments and therefore it is an
extraordinary legal remedy. Additionally, the Court expressed
that besides having a nature of an extraordinary legal remedy,
reversing in the interest of law is not a remedy that can be
directly accessed by individuals and therefore it is not a remedy
that should be necessarily exhausted. Due to this fact, the Court
defined its competence ratione temporis on the basis of the date
when the Court of Cassation approves the finalized decision
that is subjected to the remedy of reversing in the interest of law
(Application No: 2013/4669, 25/2/2014 (K.K.)).
On the other hand, if a legal remedy is not prescribed against
an act of public authorities, it is considered to be finalized when
the act is executed in principle. When the applicant resorts to a
remedy that is not effective for such an act, this would not have
any impact on the finalization of the act as well.
In a judgment, the Court approved that disciplinary sentence
given according to Article 171 of Military Criminal Law no.
1632 was finalized on the date of its notification to the offender
according to repealed Article no. 171 in the same law which
was in force on the date of enforcement of sentence. Therefore,
resorting to remedy of administrative complaint on a date after
the initiation of the Constitutional Court’s competence ratione
temporis against the imprisonment given and executed in
2008 did not have any impact on the finalization of sentence
(Application No: 2012/595, 26/3/595).
66. Can an individual application be lodged against an act
where finalized decision is notified after 23/9/2012?
The Constitutional Court ruled that when a decision finalized
according to the above procedures after 23/9/2012 is notified
after this critical date, this will not have any effect on finalization.
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
According to the Court, notification of the decision does not
have any impact on the finalization of judgment and only
enables parties to be informed on the judgment (Application No:
2012/947, 12/2/2013).
67. Is there any time restriction for individual application?
When do these restrictions start?
Individual application is required to be lodged on “date
of exhaustion” of all remedies if administrative and judicial
remedies are prescribed by laws, and in 30 (thirty) days “as of
the date when the violation is found out if legal remedies are not
prescribed”. Applications exceeding this time limit are rejected
without any further examination.
As a rule, notification or pronouncement of final decision is
considered as a basis in the estimation of starting date for 30day period. The date when the application is submitted to the
premises stipulated by law and registered is considered as the
date when the application is filed. This date is specified on the
document of receipt issued to the applicant by the authority
receiving application documents. In cases where the period
between these two dates exceeds thirty days, the application is
rejected without any further examination.
Despite the criticisms that 30-day application period is of a
restrictive nature for the applicants, specification of such a time
limit is important in terms of ensuring certainty in legal affairs.
Furthermore, this period prescribed by law for the preparation
of application petition and its annexes is considered to allow
sufficient time. Thus, in Hasan Uzun/Turkey judgment of the
ECtHR, it is noted that the time limit for application regulated
as thirty days in the legislation is a reasonable period and that it
should be taken into account that the applicant has an additional
time of 15 days in case of failure in filing an application provided
that impediments are validly justified (Hasan Uzun/Turkey,
Application No: 10755/2013, 30/4/2013).
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68. What are the principles concerning definition of starting
and ending dates for time limit for application?
The conclusions in judgments of the Constitutional Court
concerning the start and end of time limit for application can be
listed as follows:
The date when an individual has access to or is provided with
the opportunity to access the decision and its contents that leads
for violation of a fundamental right is considered as a basis for
the start of time limit for application.
a. Access to decision and its contents:
An individual’s access to the decision and its contents alleged
to be leading to violation of a fundamental right is considered
as a basis for the start of time limit for application. If the subject
decision in the application was not notified to the related parties
due to its nature (as in criminal cases), the 30-day time limit starts
as of the date when the applicant can definitely have access to the
contents of the decision. If this date is not defined, the date when
the related party declares that he/she has access to the decision
and its contents is considered as a starting date for the time limit
(Application No: 2013/99, 20/3/2014).
b. Notification on only the conclusion decision in revision of
the decision:
Informing on the conclusion of remedy in revision of decision
is sufficient to start the time limit for application and it is not
obligatory to submit the complete decision in the notification. The
Court has considered the notification providing the information
on rejection with reference to the date and number of the decision
of the related chamber regarding the request for revision of the
decision of subject file of the application in the notification sent
to the applicant by the first instance court following the decision
for rejection of the request for revision of the decision adequate
to start the time limit for application.
The Court has considered that with said notification, the
applicant learnt that the request for revision of the decision of the
applicant has been rejected and thus, the means of appeal against
the action of the public force, which is alleged as having caused
the violation, have been exhausted, and it has been emphasized
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
that the time limit for application will start as of the date on
which the application or his/her attorneys will be have access to
the final decision (2013/1557, 16/4/2013).
c. Notification of committal order to the detainees or prisoners
convicted for other offenses in prisons:
In criminal execution law, the committal order is a document
specifying how long a convicted person will be imprisoned due
to a finalized court decision given as per Law no. 5275, Article 20,
paragraph (4). The document shows the nature of the sentence
given, the court giving the sentence and information on related
award if it was subjected to the Court of Cassation phase.
Therefore, the date of notification of the committal order to the
convicted person should be considered as the date when the final
decision of the Court of Cassation is notified to the applicants at
the latest (Application No: 2013/2470, 17/9/2013).
d. Starting date of time limit in case of resorting to
extraordinary legal remedies:
It is clear that in cases of resorting to extraordinary legal
remedies, a decision finalized before instance courts in principle
cannot be brought before the Constitutional Court. However,
if the Constitutional Court did not establish the date of the
applicant’s access to final decision in any other way and if the
applicant resorted to an extraordinary legal remedy then the
Constitutional Court considers the date of resorting to this
extraordinary remedy as “the latest date of access”. In such cases,
the Court acts according to the principle that an applicant should
be informed on the decision finalized in ordinary legal remedies
in order to resort to reversing a decision in the interest of law or
retrial against a decision.
If the time period between the date of resorting to extraordinary
legal remedy and the date of application to the Court exceeds
30-day time limit, the Court may decide for inadmissibility of
application due to lapse of time without any further examination
for practical reasons (Application No: 2013/2001, 16/5/2013).
e. Issue of defining dates of notification and access:
If an applicant claims a date for notification or access to
the decision, documentary evidence proving the date should
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
be submitted. In this sense, burden of proof initially rests on
the applicant. Receipt of notification can be considered as
documentary evidence proving this situation. The applicant can
access this receipt of notification from the file in the registry of
instance court.
If the date of notification of the final decision to the applicant
is not clear in the file and if it is observed that the 30-day time
limit prescribed for individual application is exceeded when the
date specified as the date of notification by the applicant in the
application form is taken as a basis, the Constitutional Court
does not conduct any further examination and rules for the
inadmissibility of the application due to “lapse of time”. (B. No:
2013/1267, 13/6/2013)
f. Applications that cannot be subject to appeal:
In cases where only objection can be made against first
instance court decisions, applicants are expected to resort to this
remedy of objection and file their applications according to the
decision to be given for objection and within 30 days as of the
notification of this decision.
In a judgment, the Court noted that an applicant for whom the
first instance court delayed announcement of judgment resorted
to remedy of objection against this decision and upon refusal of
the objection, the applicant filed an individual application in due
time as of the notification of decision (Application No: 2012/969,
18/9/2013
g. Date of application:
The date when the application registered by institutions
prescribed by law and a receipt document is issued to the
applicant is considered as the date of application. If registration
date is specified by the unit official on the application form when
the document is received, this date should be identical with
the date on the receipt document. Date specified on the receipt
document issued to the applicant is considered as a basis in the
estimation of the 30-day time limit for application. The date on
the application form or fee collection receipt is of no significance
in the estimation of the time limit. In case of conflict between the
dates on such documents and on the receipt document, the latter
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
is taken as a basis.
69. Is it obligatory to deliver the notification to the applicant
even when the applicant is represented by a lawyer in the
initiation of application time?
The Constitutional Court considers the date of notification to
the lawyer of an applicant represented by a lawyer as the starting
date of the 30-day time limit for application. Applications lodged
after 30 days following notification of the final decision to the
lawyer are rejected due to lapse of time even if the applicant
claims that the (s)he had access to the decision at a later date.
Thus, in a judgment, the objection of an applicant who claimed
that the final decision was notified to the applicant’s lawyer and
the applicant did not have access to the decision due to the fact
that the applicant was out of town for business on that date
was found unacceptable by the Court. In the judgment, it was
noted that the notification is delivered to the attorney in cases
which are followed by means of an attorney according to the
rule stipulated in Notifications Law no. 7201, Article 11 and if the
applicant resorts to a legal remedy depending on the contents of
the document notified, time limits prescribed in law start as of the
related date (Application No: 2012/1075, 12/2/2013). Therefore, it
is underlined that notification to the attorney in cases followed
by means of an attorney is sufficient for the start of the time limit
for application (Application No: 2013/1999, 9/1/2014). In another
judgment of the Court, it is expressed that since notification
is delivered to the attorney in cases followed by means of an
attorney according to the rule stipulated in Law no. 7201, Article
11 and if the applicant resorts to a legal remedy depending on
the contents of the document notified, the time limits prescribed
by law start as of this date (Application No: 2013/1999, 9/1/2014).
70. What is the starting date for the 30-day time limit for
applications if the applicant did not resort to remedy of revision
of decision in civil, administrative and military trials?
As a rule, ordinary remedies are considered to be exhausted with
the decision appealed and approved in civil, administrative and
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
military administrative cases. In other words, the Constitutional
Court states that legal remedy of revision of decision which is an
ordinary legal remedy is not compulsory to be exhausted in civil,
administrative and military administrative cases. Following this
phase, the applicant may lodge an individual application without
resorting to the remedy of revision of decision. Thereby, the 30day time limit for individual application starts with notification,
pronouncement of final decision delivered consequent to appeal
review or applicant’s access to this decision.
The Court’s judgments underline the fact that the expression
of “date of exhaustion of remedies” stipulated for the start of
time limits for individual application in Internal Rules, Article
64, paragraph (1) should be understood as the date when the
final decision claimed to result in violation is accessed. It is
further stated when applicants who do not resort to remedy of
revision of decision because they do not consider as an effective
remedy against a judgment that can be subjected to revision of
decision, they are considered as having access to the decision
claimed to result in violation on the date when they have access
to appeal approval decision and if they prefer to resort to the
right to individual application to the Constitutional Court
without resorting to the remedy of revision of decision, they
are required to comply with 30-day time limit for application
as of the date of their access to the decision (Application No:
2013/1936, 18/9/2013).
Although decisions of instance courts are finalized at the
end of revision of decision, as the applicants are informed of the
decision claimed to result in violation with the appeal approval
decision when they do not resort to revision of decision, they are
required to lodge an application within 30 days as of this date.
In other words, the legal time limit ( fifteen days according to
the rule) prescribed for the remedy of revision of decision that
the applicants do not resort to because they do not consider it
as an effective remedy cannot be added to the 30-day time limit
stipulated for individual application ( Similarly Application No:
2013/1582, 7/11/2013).
The expression of “finalization of related decision” in Internal
Rules, Article 64, paragraph (1) regulating basic principles for
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
the starting date of 30-day time limit for application leads to
different interpretations, this expression was deleted from the
wording with the amendment in ınternal Rules introduced upon
its publishment in Official Gazette no. 28932 on 5/3/2014.
It should be stressed at this point that before the amendment
in Rules, the Court interpreted the expression of “as of the date
of exhaustion of remedies and finalization of related decision”
in the Internal rules as exhaustion of all remedies before lodging
an individual application. Additionally, if the applicants do not
resort to the remedy of appeal because they do not consider is
as an effective remedy, they are required to lodge an application
within 30 days as of their access to the decision given by instance
courts and brought before the Constitutional Court with the claim
of being a final decision (Application No: 2013/7521, 4/12/2013).
71. Do remedies of: objection against the Chief Public
Prosecutor of Court of Cassation; retrial; or writ has an impact
on 30-day time limit for application?
If the applicant does not file an individual application after
the notification, pronouncement of or access to the decision
exhausting ordinary legal remedies, but first resorts to
extraordinary legal remedies and then to individual application
after notification of the decision of this authority, the 30-day
time limit will be most probably exceeded after the exhaustion of
ordinary legal remedies and the application will be inadmissible
due to lapse of time. In such applications, the Constitutional
Court does not examine the merits of the application and the
examination is limited to the formal revision of application in
terms of time limits.
Related case-law of the Constitutional Court on this issue are
introduced with various judgments of the Court:
a. To lodge an objection to the Chief Public Prosecutor of the
Court of Cassation:
Appeal is the last remedy to refer to in criminal justice and
only the Chief Public Prosecutor of the Court of Cassation is
entitled to file objection against decisions subjected to appeal
review as per Criminal Procedure Code no. 5271, Article 308.
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So the applicant’s request to resort to remedy of objection is a
request to mobilize the discretion of the Chief Public Prosecutor
of the Court of Cassation. Therefore, the Constitutional Court
did not consider applications lodged within this framework as
a remedy that should be exhausted before lodging an individual
application and remarked that resorting to this remedy does
not have any effect on the time limits for individual application
(Application No: 2013/2001, 16/5/2013).
In an application lodged in this context, the Constitutional
Court underlined that remedies are exhausted with the approval
of the decision of the first instance criminal court by the related
chamber of the Court of Cassation (Application No: 2013/1267,
13/6/2013). In this judgment, notification date of the decision of
the related criminal Chamber of Court of Cassation is not clear
in the file and it is further noted that the applicant should be
considered to have access to the final decision on the date at the
latest when the applicant resorted to the Office of Chief Public
Prosecutor of the Court of Cassation to request an objection. In
this case, it was concluded that although individual application
to the Constitutional Court should have been lodged within 30
days as of this date against the related decision, lapse of time was
noted in the application due to exceeding this date (Application
No: 2013/2001, 16/5/2013).
b. Reversing in the interest of law
The right to request the Court of Cassation to reverse decisions
which are rendered by a judge or court and finalized without
being subjected to appeal review as per Law no. 5271, Article 309
in criminal procedure law remains only under the discretion of
the Ministry of Justice. Therefore, similar to the objection by the
Chief Public Prosecutor of the Court of Cassation, the applicant’s
request for reversing in the interest of law should be considered
as a request to mobilize the discretion of the Ministry of Justice.
As the applications filed in this context are not recognized as a
remedy to be exhausted before individual application, resorting
to this remedy will not have any impact on the time limits for the
individual application.
In a judgment of the Constitutional Court, it is reported that
the remedy was exhausted with the rejection of the applicant’s
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objection by the first instance court of assize in a concrete case
and the rejection decision was notified to the applicant. The
Court therefore expressed that remedy was exhausted with the
final decision on the rejection of objection by the court of assize
and the time limit for the individual application should start as
of the notification date of this decision. According to the Court,
applicant’s resort to the remedy of reversing in the interest of law
against the decision on delaying pronouncement of judgment
according to Law no. 5271, Article 309 during this intermediate
period does not suspend the time limit and change the starting
date for application since it is not a legal remedy that should be
exhausted (Application No: 2013/1751, 13/6/2013).
c. Retrial
It is obvious that retrial examination which is regulated under
Law no. 5271, Article 311 is not an ordinary criminal proceedings
in a classic sense but is an extraordinary legal remedy which
implies annulment of final judgment substantively due to some
severe faults or defects related to trial and retrial of a dispute
that was previously settled with a final judgment in the context
of conditions for retrial. In an application lodged by the applicant
due to rejection of the applicant’s request for retrial against a
decision finalized with exhaustion of remedies previously, the
Constitutional Court does not examine claims of violations
related to the actual trial due to lapse of time. For example, in an
application where the applicant’s request for retrial was rejected,
the alleged violation of right to property claimed in relation to
the actual case was found inadmissible and was not examined by
the Court (Application No: 2013/4413, 21/11/2013).
In applications lodged within 30-day time limit following
the objection of request for retrial, the Constitutional Court
examined the complaints about the process related to retrial
in a manner independent from the actual case. In such cases,
complaints of applicants filed within the framework of the
elements of right to fair trial in relation to the decision rendered
consequent to examination of retrial (right to reasoned judgment
etc.) are considered independently from the actual trial and
the application is examined in terms of whether or not there
is a violation of right in this sense. For instance, in one of its
judgments, the Court examined the claims that the applicant’s
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
request for retrial was examined and concluded without any
hearing and the objection was rejected by the authority without
any justification (Application No: 2013 / 723, 21/11/2013).
The Constitutional Court reiterated that examination of the
request for retrial by instance courts is not related to the merits
of dispute and is limited to the examination of whether or not
conditions for retrial are met. Therefore, it is expressed that
examination of alleged violations of constitutional rights related
to retrial should be limited only to this phase (Application No:
2013 / 723, 21/11/2013).
In this context, the Constitutional Court considers the
institution of retrial independent from the case-law of the ECtHR
which considers it beyond the protection scope of Article 6 of the
Convention. Underlining its competence to define the scope of
Article 36 of the Constitution independently, the Court evaluates
individual applications filed for retrial with an approach differing
from the case-law of the ECtHR and examines them though in a
restricted manner (Application No: 2013/723, 21/11/2013).
On the other hand, in cases where the request for retrial is
deemed appropriate by the Court and the subject dispute of
the final judgment is re-considered, in other words where the
finalized judgment can be subject to discussion, this judgment
will be able to be controlled by means of individual application.
In an application filed within this framework, certain aspects
of the dispute previously settled with a final judgment can be
examined by the Constitutional Court within the context of
retrial and in certain limits.
72. How does the Court decide if the remedies have not been
exhausted yet when the application is filed and the remedies are
exhausted when the application is pending in the Court?
In principle, the Court gives an inadmissibility decision on
the grounds of non-exhaustion of remedies when an applicant
lodges an application without exhausting remedies and when
the applicant’s case is pending in instance courts. However,
clarification is needed on what should be done if the applicant
exhausts remedies after going to the Constitutional Court and
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
before an inadmissibility decision is given by the Court.
The Constitutional Court reiterated that applicants are
required to bring their claims to the appeal authorities and
exhaust remedies against instance court decisions that can be
subject to objection. In a judgment discussing this issue, the
Court agreed that remedy of objection which was available on the
date of individual application and not claimed to be ineffective
was not exhausted and decided that exhaustion of this remedy
at a stage when the application is not concluded yet would not
redress the defects about the procedure. According to the Court,
an applicant’s resort to remedy of objection after or together with
individual application, conclusion of the objection before a final
decision is given for the application by the Court and notification
of the situation to the Constitutional Court would not change
the reality that the remedies were not exhausted when the
application was filed (Application No: 2012/254, 6/2/2014).
On the other hand, the Constitutional Court adopted a
different method due to the nature of the remedy of decision
revision. According to the Court, as an applicant may file an
individual application even if remedy of revision of decision
is available against the decision of approval after the delivery
of approval decision by supreme courts, in cases where the
applicant both files an individual application and resorts to
remedy of revision of decision, if the revision of decision is
concluded and notified to the Court before the Constitutional
Court gives inadmissibility decision, the individual application
cannot be found inadmissible on the grounds of non-exhaustion
of all remedies (Application No: 2013/841, 23/1/2014).
73. Is it possible to compensate when the applicant fails to
lodge an application due to impediments within time limits
prescribed?
Applicants are required to follow time limits for application.
Additionally, in case of failure in complying with time limits due
to justifiable impediments such as force majeure or severe illness,
the applicants may lodge an application together with evidence
documenting their impediments in addition to the application
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form and its annexes within 15 (fifteen) days at the latest as of the
expiry date of impediment.
It is not possible to define in advance which cases can be
considered as justifiable impediments. Therefore, the Court
should evaluate whether or not the claimed impediment is
justifiable in each case with the consideration of the nature of
event (Application No: 2013/6325, 15/4/2014).
In such exceptional cases, the Constitutional Court first
examines the impediment and documents submitted by the
applicant and either approves or rejects the impediment. Only
after this examination, the application is examined in terms of
its admissibility and merits. Furthermore, a single draft can be
elaborated on the impediment and admissibility and a decision
can be rendered for both if it is in compliance with the nature of
the application.
On the other hand, if the applicant or applicant’s attorney is in
another city or abroad during the time limits for application then
this will not be considered as a justifiable impediment. Thus, in a
judgment, the applicant did not have access to the final decision
because the final judgment was notified to the applicant’s
attorney and the applicant did not have access to the judgment
because of being in an office out of town for work to be done
for the applicant’s employer on related dates. So the applicant
requested consideration of this case as a justifiable impediment
and this request was not approved by the court. It is clear that
when notification is delivered to attorney in cases followed by
means of an attorney according to the rule prescribed in Law no.
7201, Article 11 and resorting to a remedy is an option depending
on the contents of the document delivered then the time limits
prescribed by law start as of this date. The Court expressed that
presence of the applicant in another city on the given dates is not
of a nature that can hinder lodging an individual application and
cannot be considered as a justifiable impediment (Application
No: 2012/1075, 12/2/2013).
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VII. LODGING INDIVIDUAL APPLICATIONS
74. How can an individual application be lodged? Is
it obligatory to lodge an application personally to the
Constitutional Court?
An individual application can be lodged either directly to
the Constitutional Court or by means of other courts or Turkish
representations abroad in accordance with the requirements
described in Law and Internal Rules with application form
published on the website of the Court and enclosed to the Internal
Rules. Furthermore, applicants are not obliged to lodge their
applications by means of instance courts which deliver decisions
related to their applications. Applications can be lodged from
any court.
No significant problem was reported in terms of access of
applicants to the Court during the implementation of this method
related to lodging application as adopted by law and Internal
Rules up to now. In a case where this issue was discussed, the
ECtHR reiterated that applicants are entitled to deposit their
applications with any national court and thus do not need travel
to the Constitutional Court, and expressed that the method
implemented for application is not complex (Hasan Uzun/Turkey,
Application No: 10755/2013, 30/4/2013).
According to the statistics on applications lodged in 2013,
nearly 75% of the applications were deposited through courts,
nearly 25% were directly lodged to the Constitutional Court
while the rate of applications deposited through consulates was
less than 1%.
75. How can detainees and convicts in prisons lodge their
applications?
Application forms, guides and other information documents
were distributed to the prisons and detention houses to enable
access to the information and documents in order to inform
detainees and convicts in prisons who constitute quite a sensitive
category in terms of protection of human rights.
It is obvious that applications can be deposited only to courts
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
and representations abroad in addition to the Constitutional
Court according to the Internal Rules. However, in order to
redress any inconvenience that may arise from implementation
of this rule for the detainees and convicts in prisons and detention
houses, they are allowed to lodge their applications through
prisons and detention houses.
Such applicants who particularly do not have the opportunity
to deposit their applications by means of a lawyer can submit
their duly prepared application forms and annexes to the
administration of prisons and detention houses. Related
application documents received by the administration of prison
and detention house are transmitted to the Constitutional Court
by means of the Office of Chief Public Prosecutor.
76. Which procedures are followed in court(s)
representation(s) abroad receiving application forms?
or
Application forms and annexes submitted to courts or
representations abroad are transmitted to the Constitutional
Court in electronic and physical form following their registration.
Authorities where the application document is delivered are
responsible only for the receipt, registration and transmission
of the application form to the Constitutional Court. These
authorities are not entitled or responsible for any examination of
application documents and annexes.
Therefore, liability to lodge an application duly completely
rests on the applicant and it should be further noted that these
authorities do not have any liability other than duly transmitting
documents to the Constitutional Court. If cases and other trial
procedures are conducted in electronic environment in the
authority where the application is lodged, data on application
forms and annexes are registered and stored via UYAP (National
Judiciary Informatics System).
77. Is it possible to lodge individual application by mail?
Individual applications can be lodged with submission of
application forms and annexes to the Constitutional Court, other
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
courts or representations abroad.
Application via mail, telegraph or electronic communication
means is not allowed.
However, the Plenary Assembly of the Constitutional Court
may decide in future to enable lodging individual applications
by these methods or by a secure electronic signature in electronic
form. Currently, application via mail is not allowed and
applications lodged by mail are rejected as they do not comply
with the procedure.
Thus the Constitutional Court did not process nearly six
hundred applications which were reported to be lodged via
mail and therefore failed in following procedures prescribed
for application. With the consideration that total number of
applications in a year is nearly ten thousand according to
statistics for 2013, it can be said that applications filed via mail is
nearly 6% which is not quite low.
78. What are the most common shortcomings in lodging
applications?
Shortcomings in filling application forms which may also lead
to loss of right is an important issue. The Constitutional Court
prepared an application guide on how to fill in the individual
application form and this guide was published on the website of
the Court and distributed to locations that can be easily accessed
by the applicants ( courthouses, prisons and detention houses
etc.).
As per Article 59 of Internal Rules of the Constitutional Court,
individual applications should be lodged with the application
form as a rule and all fields on the form should be duly completed.
Still, it is reported that some applicants did not use the form for
application, some made very short remarks on related fields
in the application form and submitted individual petitions for
their claims and requests while some applicants made remarks
on issues which are independent from information requested in
the application form and will not be taken into account in the
evaluation of the application.
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
However, the applicants are requested to present their
complaints and requests with concise information within the
framework of topics in the application form. The Constitutional
Court is not bound with the applicant’s classification for the
violation of fundamental right and it should be noted that the
applicant’s failure in duly formulating complaints and requests
in the application form or submission of incomplete or incorrect
information and documents may lead to loss of rights.
On the other hand, presentation of the decision of instance
courts or justifications in expert reports verbatim and even
adding witness statements comprehensively may unnecessarily
make the application form longer. The application form should
be limited to ten pages in principle. Still, if the application form
exceeds ten pages, then summary of the “Remarks” section on
the form should be annexed to the form provided that it will
not exceed ten pages. Therefore, applicants should give concise
information on the form and should make references to the
documents annexed to the form when needed.
If the applicants fail to access “application form” due to any
reason whatsoever, they may lodge their applications with a
petition in an identical format which will cover all information
required to be given on the form. However, this should be
preferred in exceptional cases.
79. Is there any additional advance or cost payment other
than application fee in applications deposited through other
courts or representations abroad?
An individual application to the Constitutional Court does
not lead to any cost such as advance payment for mail cost or
sending mail stamps except the application fee. It should be
noted that mail costs related to individual applications lodged
through other courts and consulates should be paid in advance
by the person requesting notification according to Article 5
“payment of fees and costs in advance” in Notifications Law no.
7201, date 11/2/1959 and delivery cost might be requested. So the
applicants are not obliged to deposit any advance payment for
mail costs or to send stamps except the cost of documents to be
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sent to the Constitutional Court.
80. How will the
Constitutional Court?
applicants
correspond
with
the
Requests for information, documents and other requests
related to the applications must be made in writing. Verbal
requests are not taken into account. Applicants, their legal
representatives or lawyers may not come to the Court in person
to be informed on the outcome of their applications.
Additionally, correspondence with the Constitutional Court
should be in compliance with the procedure on how to lodge an
individual application. In other words, such requests should be
directly filed in writing to the Constitutional Court or through
other courts or representations abroad.
So documents sent by post cannot be taken into account in
the examination of the application and cannot be included in
the file. In this framework, the Individual Application Office
sends a letter to the applicants to specify incomplete issues in
the applications if any and notes that documents send by mail
will not be taken into account. As incomplete aspects of the
application cannot be completed with documents sent by mail,
such applications are administratively rejected (Application No:
2012/533, 22/4/2013 [İ.R.]).
On the other hand, time limits prescribed by the Constitutional
Court for the consummation of the individual application
files are final and information and documents failed to be sent
duly within stipulated time are not taken into account in the
examination of the application and are not included in the file.
81. Is the applicant informed on subsequent stages of
application?
When an application is registered, the applicant is sent a letter
giving information about registration, application number and is
requested to specify this number in following correspondences.
No other information is given by the Court verbally or in
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writing to the applicants about their applications. It should
be noted that decisions of Sections and Commissions on
admissibility and merits are notified to the applicants.
In the near future, a web page is planned to be designed in
order to enable applicants to question the current stage of their
applicants before the Constitutional Court via internet.
82. When should applicants expect their applications to be
concluded?
Examination of applications to the Constitutional Court is not
bound by any time limit. Therefore it is not possible to estimate
in advance when an application might be concluded. The
examination may vary depending on various factors such as the
time period of trial before the Court, nature of the application, due
care shown by the parties in submitting necessary information to
the Court or hearings.
On the other hand, the Constitutional Court may examine
applications not only according to their dates of receipt but
also with the consideration of criteria such as significance and
urgency.
VIII. EXAMINATION OF INDIVIDUAL APPLICATIONS
83. What is the scope of the examination by the Constitutional
Court within the context of individual application?
Examination by the Constitutional Court does not cover
definition of substantive concepts constituting basis for judicial
decision or rules applicable for the case or evaluation of the
discretion competence of the judge or judges rendering decision.
Examination is only related to the accuracy of the alleged
violation of a constitutional fundamental right.
In other words, the Court is entitled to control whether or not
any of the constitutional rights of applicant was violated in the
context of a concrete case presented to the Court. It may also
grant interim measures to redress violation if such is established.
Within this framework, the Court expressed in one of its
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judgments that the applicant did not express claim of violation
of a constitutional right and applications covering review of
instance court decisions were beyond the scope of the Court’s
competence according to the Constitution and law, and
therefore such applications were found inadmissible due to
being manifestly ill-founded. The judgment underlined that
the Constitutional Court was entitled to control whether or not
constitutional provisions concerning fundamental rights and
freedoms in the context of individual application were respected
by instance courts, and that applications to be filed with the claim
of incorrect conclusion of trials falling under the competence of
instance courts cannot be taken into consideration and examined
(Application No: 2013/539, 16/5/2013).
Therefore, “in principle, proof of substantive cases and
notions in proceedings in instance courts, evaluation of
evidence, interpretation and implementation of legal rules and
fairness of conclusion reached by instance courts on a dispute
cannot be subject to individual application examination.” The
only exception is violation of the rights and freedoms in the
Constitution by the findings and conclusions of instance courts
and when these decisions obviously contain misuse of discretion
or clear arbitrariness by nature in a manner that ignores justice
and common sense” (Application No: 2013/539, 16/5/2013).
84. Is individual application to the Constitutional Court a
new remedy of objection or appeal?
The Constitutional Court is not a superior authority of appeal
that can review court decisions in terms of all unlawfulness.
Thus, Article 148 of the Constitution stipulates that “in the
individual application, judicial review shall not be made on
matters required to be taken into account during the process of
legal remedies”. Therefore, issues reviewed by supreme judicial
organs during appeal review as per law are beyond the scope of
the review of the Constitutional Court.
On the other hand, individuals who claim that their
fundamental rights and freedoms are violated with the acts
of instance courts may lodge an individual application to
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the Constitutional Court which is a constitutional right. The
Constitutional Court, which receives this application, is
entitled to investigate in its review whether or not any of the
fundamental rights and freedoms of the individual was violated.
If the Court concludes a violation, it may rule for what should be
done to redress the violation of right. So individual application
is an exceptional judicial remedy that enables the Constitutional
Court to review alleged violation of a fundamental right within
the perspective of specific constitutional law and fundamental
rights.
Therefore, aspects of court decisions not related to fundamental
rights cannot be examined by the Constitutional Court. This
shows that court decisions brought before the Constitutional
Court can be reviewed only in relation to certain matters. So an
application on claims related to matters required to be taken into
account only during the process of ordinary legal remedies is
rejected primarily and without any further review of its merits
by the Constitutional Court.
The basic difference between individual application and
appeal is that remedy of appeal controls whether or not law
and procedure is implemented accurately while individual
application controls whether or not a fundamental right of an
individual is violated as a consequence of a judicial decision.
Appeal courts are entitled to ensure accurate implementation
and interpretation of laws. However, the Constitutional Court
reviews applications with focusing on fundamental rights rather
than accurate implementation of law. In this sense, a violation of
a right may arise even when the laws are accurately implemented
either by administration or courts and violation of a right that
should be examined in the context of individual application may
not arise even if the laws are not enforced accurately.
Thus, the Constitutional Court pointed out that complaints
related to matters that should be taken into account during
the process of legal remedies cannot be examined in individual
applications as per the fourth paragraph of Constitutional
Article 148 and stated that applications with such nature may
be declared inadmissible due to being manifestly ill-founded
(Application No: 2013/6401, 23/1/2014).
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In this context, the Court also expressed matters that are taken
into account in the context of complaints on remedies: proof of
substantive cases and concepts in proceedings, evaluation of
evidences, interpretation and implementation of legal rules and
fairness of conclusions reached by instance courts in disputes.
Additionally, such non-examinations are not of absolute nature
and there is an exception: “clear misuse of discretion in the
findings and conclusions of instance courts in a manner that
ignores justice and common sense and ipso facto violation of the
rights and freedoms in individual application” (Application
No: 2012/1027, 12/2/2013). In this sense, applications having the
nature of complaints on legal remedies cannot be examined by
the Constitutional Court unless exceptional cases given above
are not established.
In the evaluation of whether or not there is an exceptional
case as defined above, the Constitutional Court concludes with
the consideration of issues such as “(whether or not) applicant is
informed on evidence and opinions presented by prosecution
and the party requesting intervention…., has the opportunity to
present his/her own evidence and claims…, to object effectively
against evidences and claims presented by prosecution and
the party requesting intervention…. or (whether or not) the
applicant’s claims on settlement of dispute are heard by instance
court or (whether or not) the applicant presented a fact or
evidence on ill- founded decision” (Application No: 2013/6401,
23/1/2014).
In summary, the Constitutional Court does not review
the fairness of the decision or conclusion of instance courts as
a consequence of a trial within the context of right to fair trial
but the fairness of the trial process and procedure. Nevertheless
inadmissibility of the majority of individual applications lodged
to now and their low rate of success is a clear indicator of the
fact that the function of this judicial institution is perceived
incorrectly or as a type of appeal by the applicants.
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85. What are the procedures related to registration and
administrative review of individual applications?
In applications directly lodged to the Constitutional Court, a
receipt document is issued to the applicant following the receipt
of the individual application document and the file is referred
to the officers for preliminary review. In applications lodged
through other courts and consulates, preliminary review starts
when the file is transmitted to the Constitutional Court both
through UYAP system and physically.
Staff responsible for preliminary review prepare a preliminary
review form for the file under the supervision of the relevant
rapporteur judge and information required for statistics of the
Court is registered in the system. If any incomplete aspects are
reported in the application form and its annexes, the process of
completion is started. If the application is lodged in due time and
no incompleteness is reported in the file, the application file is
immediately transferred to the Office of Commission Rapporteur
Judges for examination on admissibility.
86. What does administrative rejection of application mean?
Can it be appealed?
In cases of failure in lodging an application in due time or
fulfilment of formal requirements for the individual application
form and its annexes and completion of the incomplete
aspects within final time limits prescribed, the application is
administratively rejected.
A letter for completion of incomplete aspects of application
sent by the Constitutional Court to the applicant or applicant’s
attorney clearly indicates that incomplete aspects are established
during preliminary review which is required to be completed
within final time limits prescribed as 15 days, otherwise the
application will be rejected administratively. If it is established
that the applicant still fails to complete within the stipulated
time, in other words fails to lodge a complete application, the
application is declared as administratively inadmissible and this
decision is notified to the applicant (Application No: 2012/1087,
25/3/2013).
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The administrative inadmissibility decision also declares that
this decision can be appealed in the Constitutional Court within
seven days following its notification, appeals are not subject to
any fee and should be made in accordance with the procedure
prescribed for lodging individual application. It is also notified
that the petition will not be processed otherwise. Appealing
administrative inadmissibility decision should be made with a
petition in accordance with the procedure related to individual
application.
An appeal filed duly by the applicant against the procedure
of administrative inadmissibility decision is reviewed and
decided by the related Commissions and this decision is final.
At this point, fairness of administrative inadmissibility decision
is primarily reviewed and rejection of the appeal is decided if
this decision is found to be in accordance with the procedure
(Application No: 2013/1936, 18/9/2013). If an appeal is approved,
examination on application’s admissibility and merits if needed
is started.
87. How are individual application files distributed to
Sections and Commissions?
Applications registered and numbered by the Individual
Application Office are automatically distributed to Sections and
Commissions. Therefore, if an administrative inadmissibility
decision is not given when an application is registered to the
Court’s IT System and numbered by the Individual Application
Office, the Commission which will examine its admissibility and
the Section which will evaluate its merits if it is found admissible
will be selected. Files which should be unified due to their
natures are finalized after they are unified with the application
file registered first.
Applications are distributed among rapporteur judges in
Commissions and Sections by the related chief rapporteur judge
of the Section with the consideration of expertise and workload
of rapporteur judges.
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88. In which order are individual applications examined?
As underlined previously, individual applications are
examined and settled according to the order of their registration
by the Individual Application Office. Furthermore, the
Constitutional Court may adopt a different order for examination
in line with criteria defined with the consideration of significance
and urgency of application subjects.
For instance, applications on alleged violation of an
applicant’s right to life, integrity of pecuniary and non-pecuniary
entity as well as freedom and security of person are considered
as applications that have significance and urgency, and such
applications can be examined and settled with priority.
Furthermore, a decision for interim measures which can be
given restrictedly in cases where right to life and pecuniary and
non-pecuniary entity are under serious threat can be settled with
priority due to its nature (Application No: 2013/9673, 30/12/2013).
89. Who has the burden of proof in the examination of
individual applications?
In principle, the applicant is entitled to proof claims with
submitting evidence related to the subject of the application and
to proof legal claims with explaining which constitutional rights
were violated on which grounds (Application No: 2013/2355,
7/11/2013).
Thus, in a judgment, the alleged violation of several
constitutional provisions which was expressed only with
references made by the applicant concretely was not found
sufficient by the Court and the Court required a clarification on
how the given provisions were violated within the context of a
concrete event. The Court particularly requires concrete evidence
and convincing justifications on how and why the applicant’s
right was endangered by the subject incident of claimed violation
(Application No: 2013/2355, 7/11/2013). The mere presence of
applicant’s claim on a concrete incident is not sufficient and
this claim should also be “justifiable claim” (Application No:
2013/1845, 7/11/2013).
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On the other hand, the applicant is required to submit evidence
constituting a basis for the claim to the court in addition to the
information given in application form. Furthermore, in case of
the applicant’s failure in accessing documents constituting basis
for the claim due to compulsory reasons beyond the applicant’s
control, the Court may ex officio request the documents. However,
related justifications should be specified in the application form.
The Constitutional Court prefers to collect these information
and documents ex officio only if it is convinced that the
justifications of the applicant are realistic and acceptable
(Application No: 2013/976, 9/1/2014). In a judgment where these
issues were discussed, the Court stated that the applicant failed
to submit documents supporting complaints on trial process
(such as official minutes of hearings and court decisions) as well
as information and justifications that will make unfair conviction
claim more concrete, and to present on which grounds the
right was violated and related justifications. Therefore, the
Court considered the application as a complaint that was not
proved and found it inadmissible. Additionally, the Court
underlined that the applicant did not mention any difficulty in
accessing information and documents that should be presented
(Application No: 2013/976, 9/1/2014).
90. Is the Constitutional Court entitled to collect information
and documents ex officio and to hear related persons?
The Constitutional Court directly corresponds with legislative,
executive, judicial organs, public administrations, public officers,
banks and other real and legal entities during the execution of its
functions. It may request any information and document needed
and examine all kinds of documents, records and procedures.
It may invite public officials of any grade and degree to receive
information and ask administrations and other legal entities to
send representatives.
If the Court is of the opinion that an applicant or public
authority refrains from submitting requested information or
documents or conceal evidence or does not effectively intervene
in the trial in any way whatsoever despite being called, it reaches
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related conclusions and gives decision.
On the other hand, the Constitutional Court may have access
to the files of supreme courts and first instance courts through the
UYAP system provided that the files are registered to the system.
The case file as well as documents related to its preliminary
and execution phases of case can be accessed with this system.
Additionally, particularly the authenticity of documents and
information given on the application form or its annexes can be
checked with this method.
91. Is the Constitutional Court entitled to hear witnesses,
assign experts, fact-finding or to hold hearings?
It is clearly known that Commissions have to give admissibility
decisions for applications via files.
As a rule, the Sections examine applications via files and
may hold hearings ex officio or when needed upon request of an
applicant or Ministry of Justice. In case of deciding for a hearing,
the venue, date and time of hearing are notified to the related
persons. Minutes are kept during the hearing. Copies of minutes
can be provided upon request to the applicant, Ministry of Justice
and other related persons, if any.
The Constitutional Court may exceptionally hear witnesses,
assign expert or decide for fact-finding during the examination
of individual applications.
92. Will information and documents received by the
Constitutional Court during the examination of individual
applications be shared with the applicant?
Information and documents provided ex officio for the
application under examination by the Constitutional Court
or submitted by related persons for the file are notified to the
applicant in order to enable the applicant to submit opinions
within a period of 15 days when required by fair trial.
Furthermore, following submission of a copy of an admissible
application to the Ministry of Justice for information purposes, if
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the Ministry of Justice gives opinions in writing, these opinions
are also notified to the applicant so that the applicant can submit
evaluations if any within 15 days. However, since no new
information is included in the file in cases where the Ministry
does not submit any opinion, no notification will be made to the
applicant in this sense.
If the applicant presents violation claims different from his/
her previous complaints in reply to these notifications, these
will be evaluated and settled individually within the context of
admissibility criteria.
93. Does lodging an individual application cease execution of
a public act?
Since lodging an individual application does not directly have
an effect on a finalized public act, execution of this act cannot
be ceased. In principle, procedure in the application sustains its
validity until the final decision of the Constitutional Court and
there continues to be effective. The only exception to this case
is indication of interim measures as described under the next
question.
94. What are the requirements for the Constitutional Court to
indicate interim measures in individual applications?
The Constitutional Court rarely grants interim measures in
exceptional cases. In case of any serious threat against the life
or pecuniary or non-pecuniary integrity of an applicant, it may
grant necessary interim measures in its own motion during the
examination of merits by the Sections or upon request of the
applicant.
For such exceptional cases, mechanisms are adopted to
foster examination of the merits of an application: When interim
measures are not indicated and it is noted that there is a serious
threat against the life or pecuniary or non-pecuniary integrity
of applicant, the Commissions immediately examine the
admissibility of the application and the application is referred to
the related Section to grant interim measures.
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The Constitutional Court distinguishes examination on
admissibility and merits from the part of the application related
to interim measures in case of applications requesting interim
measures, separately considers and concludes the request for
interim measures depending on the urgency of the case. In
individual application file no. 2013/6782 where the applicant went
to the Constitutional Court with a request for interim measures
against the procedure of deportation, the Court completely
distinguished examination of the request for interim measures
from admissibility and rendered an exclusive decision on this
matter. In other words, the Court granted interim measures,
notified it to the applicant and left the admissibility aspect aside.
The application was taken into consideration urgently and with
priority and whether or not there was a serious threat against
the life or pecuniary and non-pecuniary integrity of applicant
in case of deportation was evaluated in the light of information
and documents presented in the case file in addition to the
documents immediately requested from competent units. It was
concluded that no well-founded justification was submitted in
relation to the serious possible threat against the applicant’s life
or pecuniary and non-pecuniary integrity in case of deportation
and the request for interim measures was therefore rejected.
In individual application judgment no. 2013/1243, the Court
established that administrative judicial remedies and request for
stay of execution were available against the act of deportation
which was an administrative procedure, however resorting to
administrative legal remedy did not enable automatic suspension
of decision for deportation. It also expressed that the applicant
cannot be required to wait for settlement of the case before
administrative judicial authorities in order to request interim
measures in individual application.
Thus, in a judgment, the Court ruled for “approval of
interim measure request” due to the severity of the applicant’s
claim about a threat against the applicant’s life or pecuniary or
non-pecuniary integrity, non-execution of the administrative
procedure related to deportation of the applicant to Algeria until
a new decision is given by the court and notification of interim
measures to the Ministry of Internal Affairs for urgent execution
of decision (Application No: 2013/9673, 30/12/2013).
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When a Section indicates interim measures, related persons
and institutions are notified for its execution.
On the other hand, a decision should be given in six months
at the latest on the merits of the application for which interim
measures were indicated. When no new decision is given on the
continuation of interim measures, decision for interim measures
automatically becomes null and void in cases where it is decided
that the applicant’s right was not violated or when a decision to
strike-out is given for the application.
As a conclusion, within the framework of the Constitutional
Court’s legislation and case-law, an individual application can
be lodged to the Court against the decision for deportation with
direct request for interim measure without any obligation to
exhaust other remedies. Applications where interim measure is
requested can be settled in a short period of time as required
by the case and interim measures can be granted immediately
depending on the nature of the application.
95. Can the Constitutional Court resort to friendly settlement
similar to applications before the ECtHR?
Friendly settlement of applications before the Constitutional
Court has not been regulated. However, if the Constitutional
Court establishes that violation and its consequences were
redressed with a procedure other than the Court, i.e. establishes
that victim title was removed, it may give a decision of strike-out
for the application.
A commission was established in the Ministry of Justice
under Law no. 6384 in order to examine applications lodged
to the ECtHR before 23/9/2012 for complaints on right to trial
within reasonable time and to settle disputes with compensation
payments when a violation is established. Jurisdiction of this
commission might also be extended with the decision of the
Board of Ministers in order to cover applications to the ECtHR
containing complaints about violation of other fundamental
rights. It is considered that introducing a similar remedy for
applications to the Constitutional Court with similar nature will
both provide earlier settlement of such disputes and contribute
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in reducing excessive workload of the Constitutional Court.
96. Is it possible to waive from individual application? What
would be the consequences?
It is possible to waive from individual application. Decision
of strike-out is given when applicant waives from case.
However, decision of strike-out is not given when it is
required to implement or interpret the Constitution or define
the scope and limits of fundamental rights or when respecting
human rights is required about an application waived. The
Constitutional Court may decide to continue examination and
this application may be concluded on its merits.
A petition sent by the applicant to declare that (s)he waived
from the conclusion of his/her claim was considered as waiving
from application by the Constitutional Court according to
Law no. 6216, Article 50, paragraph (5) and Internal Rules,
article 80, paragraph (1), sub-paragraph (a) and since the Court
did not establish any issue that may require sustainment of
an application’s examination as per Internal Rules, Article
80, paragraph (2), it rendered a decision of strike-out for the
application (Application No: 2012/69, 12/2/2013).
On the other hand, whether or not an application fee can be
reimbursed in case of waiving from the application is another
question of discussion. Reimbursement of an application fee
if the application is settled with a decision of strike-out is not
regulated under Law no. 6216 and Internal Rules. Therefore,
Civil Procedure Code no. 6100, Article 312 is taken as a basis for
the solution of this problem according to Law no. 6216, Article
49 which stipulates that “provisions of related procedural
laws complying with the nature of individual application are
applicable in the examination of individual application if it is
not regulated under this law and Internal Rules”. This article
which stipulates that “party which issues declaration of waiver or
acceptance is obliged to pay trial costs as if a judgment was rendered
against that party in the proceedings. If waiver and acceptance is only
related to a part of the conclusion, sentence to pay trial costs is defined
accordingly” regulates that the waiver party will be responsible
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for the trial costs.
If the application fee is not reimbursed despite a decision of
strike-out, this is directly related to the purpose of collecting
the application fee. It is known that the individual application
fee is collected to initiate the application process. This process
should not be necessarily concluded with examination on merits,
it may also be concluded as a result of preliminary review or
admissibility examination. Therefore, the Court decided that
an individual application fee cannot be reimbursed in case
of waiving from application excluding cases of surcharge or
unjustifiable fee collection (Application No: 2012/69, 12/2/2013).
IX. JUDGMENTS OF THE CONSTITUTIONAL COURT
IN INDIVIDUAL APPLICATIONS
97. Which judgments can be rendered for individual
applications?
Following the completion of registration, numbering,
scanning of applications and procedures required to complete
applications, if any, by the Individual Application Office,
applications are referred to the Office of Commission Rapporteur
Judges. However, if there is a lapse of time or the application
is not completed in due time despite the related notification,
administrative rejection decision is drafted and submitted to the
Chief Rapporteur of Commissions for signature.
If administrative rejection decision is objected, the
Commissions initially decide on the approval or rejection of
this objection. Decision of strike-out is one of the decisions that
can be given by commissions. Additionally, Commissions give
admissibility and inadmissibility decisions for applications with
the consideration of principles established by Sections. Decisions
can be given in commissions only when there is unanimity
and the file is referred to a Section for settlement of dispute if
unanimity cannot be achieved.
On the other hand, when an application is significant both
in terms of the Constitution and damage suffered, requires a
leading judgment or when a possible decision may contradict
with previous decisions according to Internal Rules, Article
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33, paragraph (3), the Commissions do not decide on the
admissibility of the application and may decide to transfer it to
a Section.
For the applications transferred to Sections upon decision
of Commissions, Sections may give two types of decisions on
whether or not a fundamental right was violated. Additionally,
when Sections decide violation of a right, it may also rule for
compensation upon request of the applicant. If violation and
its consequences cannot be redressed only with compensation,
a decision can be given to send the file to the related court for
retrial.
On the other hand, Sections may decide on the inadmissibility
of an application or may give a decision of strike-out if the
requirements are fulfilled.
98. Can an application considered as admissible by
Commissions be found inadmissible later?
In principle, admissibility is decided by Commissions.
Nevertheless, if an obstacle against admissibility is reported
during the examination on merits or such a case arises after the
admissibility decision, the Sections may give inadmissibility
decision before settling merits of application regardless of its
current stage.
To date, a partial inadmissibility decision has not be given
when a part of the application is considered as admissible during
the admissibility examination by a Commission and the complete
file has been transferred to a Section for common evaluation of
various aspects in the application. This practice aims to avoid
loss of time that partial admissibility or inadmissibility decisions
may create and possible confusions during examination on
merits.
99. In which cases can admissibility and merits be examined
together?
As a rule, Commissions examine admissibility of applications
while Sections make examinations on merits. Additionally, in
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case of failure in reaching unanimity by Commissions or when
Commissions do not give admissibility decision and decide to
transfer an application to Sections according to Internal Rules,
Article 33, paragraph (3), Sections examine admissibility and
merits individually in principle. However, Sections decide
to examine admissibility and merits together on the grounds
that admissibility of a concrete application is based on merits
or on other grounds. Thus, the Court frequently followed this
procedure up to now (See Application No: 2013/2116, 23/1/2014).
100. What is the difference between admissibility decision
and decision on merits?
Individual applications before the Constitutional Court are
subject to a two-stage examination excluding the preliminary
stage. An application is firstly examined in terms of fulfilment
of admissibility requirements (non-exhaustion of remedies,
rules about competence etc.). Applications that fail to meet
these requirements are concluded with inadmissibility decision
without any further examination. This decision which is final
and given by Commissions in principle is given without any
examination on the merits of the application. Admissibility
decision only means that an application meets requirements for
the examination on merits.
Examination on whether or not there is a violation of a
fundamental right in the subject incident of the application
is made during the examination on the merits by Sections.
This decision establishes whether or not there is a violation of
fundamental right and what should be done to redress it if a
violation is established.
101. What are the most common reasons for inadmissibility?
Remedy of individual application to the Constitutional Court
is a new right to remedy which is not completely understood by
the majority of the public. Many applications that do not meet
admissibility conditions were filed to the Constitutional Court
particularly due to uncertainties arising from the fact that caselaw has not been established yet according to the provisions
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in the Constitution and Law no. 6216. Therefore, the rate of
inadmissible applications up to date constitutes a majority.
Following the initial survey by the Individual Application
Office, nearly 1150 administrative rejection decisions were
rendered as of January, 2014 due to failure in completing the
incomplete aspects of applications and lapse of time.
The most common reason for inadmissibility decisions is
incompetence ratione temporis in terms of the admissibility
criteria related to the Court’s competence. Although it is clearly
defined in Law no. 6216, Article 74 and repeatedly clarified by
the Court, applications related to decisions finalized before
23/9/2012 initially constituted the majority of the applications
found inadmissible due to incompetence ratione temporis.
Incompetence ratione personae and materiae are among the
other reasons for inadmissibility decisions given with regard
to competence. Particularly numerous applications lodged by
public legal persons and applications that contain certain claims
on violations of rights that are not directly related to the legal
entities of civil legal persons were rejected by the Court due to
incompetence ratione personae.
Furthermore, due to the fact that the rights that can be subject
to individual application and its scope are not clearly defined in
the Constitution and Laws, competence ratione materiae should
be taken into consideration in almost every new application
related to different rights. No decision has been given yet on the
Court’s competence ratione loci.
It is reported that subsidiarity of individual application
is ignored by many applicants. Another justification for
inadmissibility decisions is the non-exhaustion of remedies duly
prescribed by law.
On the other hand, if it is clearly reported in the examination
made in line with the Constitutional and established case-law of
the ECtHR and the Constitutional Court that there is no violation
of a fundamental right in the application which however meets
other formal admissibility criteria, such applications are decided
to be inadmissible on the grounds of being manifestly ill-founded.
In this context, most of the claims on violation of fundamental
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rights expressed by applications have the nature of complaints
against appeal authorities or legal remedies. Applications which
are categorized as complaints which do not clearly contain
a violation and as unjustified complaints are considerable.
However, the Court has not given an inadmissibility decision
with reference to the criteria of being manifestly ill-founded due
to complex and far-fetched complaints.
Few decisions of strike-out have been given by Sections of
the Constitutional Court as per Internal Rules, Article 80 (See
Application No: 2013/66, 16/5/2013).
On the other hand, the Court has not given any inadmissibility
decision on the grounds of misuse of right to individual
application, repetitive applications or insignificance of
application in terms of implementation and interpretation of the
Constitution and on the grounds that the applicant did not suffer
significant damage.
102. Can a decision of strike-out be given for individual
applications?
A decision of strike-out can be given for an individual
application when the Constitutional Court establishes that there
is no justification to sustain examination of the application.
For example, when there is no reason that justifies continuing
examination of the application due to the applicant clearly
waiving from the case, the applicant not prosecuting the case,
removal of violation and its consequences or on other grounds of
similar nature established by the Constitutional Court, decision
of strike-out is given for the application.
As underlined in a decision of strike-out of the Court, when
it is decided that a case filed by an applicant to a first instance
court will be considered as not being filed in a manner that does
not comply with the legal and procedural provisions and when
this decision is approved by the Court of Cassation, this will
violate the right to fair trial. However, it was established by the
Constitutional Court that after filing an individual application,
the request to revise substantive mistake in the subject decision
was approved by the Court of Cassation and the decision of the
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first instance court to consider the case as not filed was reversed,
the subject case file in the individual application was re-admitted
by the first instance court and was still pending. Therefore, the
Court considered that there was no longer any reason that justifies
examination of the application and rendered a decision of strikeout for the application (Application No: 2013/66, 16/5/2013).
103. Which decisions can be given by the Constitutional
Court on the merits of a case and what are the features of such
decisions?
Sections may give two types of decisions on violation or nonviolation of a fundamental right in an admissible application.
As the decision of non-violation by a public act means that
a constitutional right under the scope of individual application
was not violated by the act, it does not lead to any change in the
rights of individuals. An act of the public authorities which is
presented as a subject in an individual application is sustained
to be executed and it continues to produce similar consequences.
However, as a decision of violation of a fundamental right
creates a new situation, the Constitutional Court should rule on
what should be done to redress the violation and its consequences.
104. What are the consequences of violation decisions given
by Sections?
When the Constitutional Court establishes that a fundamental
right was violated by a public act, it should first decide on
whether or not retrial is required to redress this violation.
If there is no legal interest in retrial, it may rule for
compensation of the applicant. However, if further examination
is required to estimate the amount of compensation, the Section
may instruct that a case be filed in ordinary courts without
rendering a decision on this issue.
If retrial is a legal requirement, the Constitutional Court
sends the file to the related court in order to redress violation and
its consequences. The related court re-opens proceedings in a
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manner that will put an end to the violation and its consequences
explained in the decision of the Section and urgently rules on the
basis of the file, if possible.
On the other hand, the decision of the Constitutional Court
specifies what should be done to redress a violation and its
consequences when required.
105. Can the Constitutional Court rule for compensation
when a violation is established consequent to examination of
application?
The Constitutional Court may rule for pecuniary or nonpecuniary compensation when such is needed to redress a
violation upon request of the applicants in a file where a violation
was found. For the Court to rule for pecuniary compensation,
the applicant is required to enclose related documents to the
application in order to evidence damage and to display sufficient
causal connection between the damage and alleged violation
(See Application No: 2013/817, 19/12/2013).
On the other hand, if the Court establishes that the applicant
suffered from a non-pecuniary damage due to violation of a
fundamental right, it will rule for payment of a non-pecuniary
compensation at an amount close to that ruled by the ECtHR
with the consideration of the severity of the violation and nonpecuniary damage suffered. In applications with complaints
particularly on long trials, the Court may decide for nonpecuniary compensation for the applicant if it concludes that
the applicant’s right to trial within reasonable time was violated
(Application No: 2013/772, 7/11/2013).
106. Who is liable for trial costs in an individual application?
How does the Court decide on attorney fees and trial costs?
In cases which are not regulated under Law no. 6216 and
Internal Rules, the Constitutional Court may enforce related
provisions of other procedural laws depending on the nature
of individual application. Within the context of procedural
codes in Turkey, if a violation decision is given then a judgment
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should be rendered for payment of attorney fee and trial costs
for the applicant without considering whether or not there is
such a request. So if a violation is established in an application
the Constitution Court rules for the payment of the application
fee paid by the applicant and an attorney fee defined according
to Minimum Fee Tariff for Lawyers of respective year to the
applicant if (s)he was represented by a lawyer (See Application
No: 2013/2168, 23/1/2014).
However, if the application is found inadmissible or violation
of a fundamental right is established by the Court in the merits
of application then trial costs are covered by the applicant (See
Application No: 2013/6401, 23/1/2014).
In applications where an applicant benefits from legal aid, if
the application is found inadmissible or it is decided that there
is no violation of a right according to the merits of the case
then the Court may rule for the payment of trial costs by the
public authorities or the applicant depending on the nature of
the application and the economic status of the applicant (See
Application No: 2013/1343, 24/1/2014).
If an application is rejected and when deemed appropriate by
the Court, it may rule for payment of trial costs within maximum
one year in equal monthly instalments by the applicant enjoying
legal aid. If the Court clearly recognizes that collection of an
application fee which could not be collected due to a legal aid
decision and trial costs which were paid by the State or exempted
will result in the suffering of the applicant who received legal
aid then the Court may rule for exemption of the applicant from
the application fee partially or completely (See Application No:
2013/4320, 31/12/2013).
107. To whom are the decisions notified?
A copy of decisions given by Sections and Commissions is
sent to the applicant, Ministry of Justice and other concerned
parties. In cases where the Court establishes the presence of a
violation and considers that there is a legal interest in retrial to
redress the violation, a copy of the decision is sent to the instance
court giving the decision that led to the violation in order to meet
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the requirements of the decision (See Application No: 2013/3282,
23/1/2014).
If the applicant has a lawyer or a legal representative, all
kinds of notifications and correspondence are sent to the lawyer
or representative. As emphasized previously, correspondence
or notifications to a lawyer or representative is considered to be
delivered to the applicant himself/herself.
108. Which judgments should be published?
All judgments of Sections are published on the website of
the Constitutional Court. Commission judgments which have
principal significance in terms of admissibility are published.
On the other hand, Section judgments agreed by the Head of
Section, which have the nature of leading judgments or principal
significance in presenting case-law, are published on the Official
Gazette.
109. Is it possible to appeal against Court decisions? Do
the decisions have a binding effect? Can an identical issue be
repeatedly submitted in individual application?
Admissibility decisions or decisions on merits given by
Sections and Commissions are final and cannot be appealed.
These decisions have a binding effect on legislative, executive
and judicial organs, administrative authorities, real and legal
persons, just as the other judgments of the Constitutional Court.
Requests having the nature of an appeal against decisions of
Commissions and Sections are not examined and a notification
letter is sent by the Court’s Secretariat to the applicant to inform
him/her that the related decision is final and cannot be appealed.
On the other hand, decisions of Office of Commission Rapporteur
Judges given for administrative rejection of the application
can be appealed within 7 days as of the notification of these
decisions. Such appeals are examined and finally concluded by
Commissions (See Application No: 2013/1936, 18/9/2013).
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
110. How can one access individual application judgments of
the Constitutional Court?
All decisions given by Sections are accessible on the website
of the Constitutional Court. Additionally, leading or pilot
judgments of Sections can be accessed in the Official Gazette.
Commission decisions follow leading judgments of Sections
are not published but notified to the applicants, in principle.
111. How are the judgments executed (implemented)?
The General Secretariat of the Constitutional Court is entitled
to follow up execution of judgments according to Law no.
6216 and the Internal Rules. Within this framework, violation
judgments are registered to the system and closely followed
up in subsequent stages of execution. The General Secretariat is
also responsible for the solution of problems experienced in the
execution of judgments.
Thus, requirements of many violation judgments, namely
those given for members of parliament detained for different cases
(Application No: 2012/1272, 4/12/2013) and judgments related
to interim measures (Application No: 2013/9673, 30/12/2013) in
the context of freedom and security of person were executed by
related authorities.
112. Is there any sanction in case of the misuse of right of
individual application? Are the applicants of inadmissible
applications subject to any other sanction?
Misuse of the right of application is not protected by law
and considered as a conduct that requires sanctions. Abusive,
misleading and similar conducts of the applicant at any stage of
the application will be considered as misuse of right.
If the Constitutional Court establishes misuse of right by
the applicant, the application is rejected and the applicant is
sentenced to a disciplinary fine of maximum two thousand
Turkish Liras in addition to the trial costs. This sentence, which
is a disciplinary fine, is of a final nature and cannot be appealed.
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
However, the Constitutional Court has not given such a
decision yet.
The case-law of the ECtHR might be helpful in defining which
conduct can be considered as misuse of right of application.
According to the ECtHR, any conduct of an applicant that is
manifestly contrary to the purpose of the right of individual
application as provided for in the Convention and impedes
the proper functioning of the Court or the proper conduct of
the proceedings before it constitutes an abuse of the right of
application. (Mirolubovs et al. /Latvia, Application No: 798/05,
15/9/2009). Conduct considered as misuse of the right to
application by the ECtHR are as follows: misleading information,
use of offensive language against the Court and national
government officials, violation of obligation to keep friendly
settlement proceedings confidential, and applications that are
manifestly vexatious or devoid of any real purpose.
X. THE RELATION BETWEEN THE EUROPEAN COURT
OF HUMAN RIGHTS AND THE CONSTITUTIONAL COURT
WITHIN THE CONTEXT OF INDIVIDUAL APPLICATION
113. Does individual application to the Constitutional Court
impede application to the European Court of Human Rights?
The protection mechanism established by the ECtHR is
a subsidiary mechanism and according to Article 1 of the
Convention, State parties are primarily obliged to protect rights
regulated under the ECHR. Since its foundation, the ECtHR has
emphasized that its competence is a subsidiary competence and
alleged violations of fundamental rights should be primarily
examined and settled in domestic laws of State parties (Hasan
Uzun/ Turkey, Application No: 10755/2013, 30/4/2013).
The ECtHR attributed great significance to this subsidiarity
principle and expressed that it is entitled to supervise fulfilment
of obligations by Contracting States. The Court declared that it
cannot replace Contracting States and thus states are liable to
protect rights and freedoms secured under the Convention.
“States are not obliged to account for their acts in front of an
international organization before having the opportunity to
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redress the situation in their domestic law order. Those who
would like to enjoy the Court’s supervising competence in
terms of complaints against the State are liable to exhaust legal
remedies offered by the legal system of their countries” (Hasan
Uzun/Turkey, Application No: 10755/2013, 30/4/2013).
On the other hand, individual application to the Constitutional
Court differs from individual application to the ECtHR.
Individual application to the ECtHR is a natural consequence of
being a party to the ECHR and States cannot prevent resort to
this remedy as long as they remain a party.
Upon introduction of the remedy of individual application to
the Constitutional Court in Turkey, individuals may apply to the
Constitutional Court and also to the ECtHR. It is not impeded
by any regulation. However, as the individual application to
the Constitutional Court has become a part of domestic law,
it is considered as a remedy that should be exhausted before
applying to the ECtHR.
Therefore, interpretation that an individual application
hinders applying to the ECtHR is incorrect. If it is considered that
a judgment delivered by the Constitutional Court consequent to
individual application did not put an end to violation of a right
and there is an ongoing unjust treatment, there is no obstacle to
the related parties resorting to the ECtHR after the delivery of
judgment. In other words, individuals can ultimately apply to
the ECtHR.
114. Is individual application to the Constitutional Court
recognized as a domestic remedy that should be exhausted
before lodging an individual application to the European Court
of Human Rights?
The ECtHR decided in its Hasan Uzun/Turkey judgment of
30/4/2013 that individual application to the Constitutional Court
is a remedy which should be exhausted before applying to the
ECtHR.
In this judgment, the applicant claimed that his rights defined
in Articles 6 and 14 of the ECHR were violated by the procedure
of fact-finding in the proceedings related to rectification of the
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
land registry. Considering that the file was approved by the
Court of Cassation after 23/9/2012 when the Constitutional Court
started to receive individual applications, the ECtHR declared
the application inadmissible on the grounds of non-exhaustion
of individual application to the Constitutional Court.
In the judgment, the ECtHR established that the remedy of
individual application was an accessible domestic legal remedy
and offered available proceedings for the complaints of the
applicant. It assessed the provisions in Law no. 6216 and Internal
Rules of the Constitutional Court within the context of its own
case-law and decided that this remedy should be exhausted
before resorting to the ECtHR.
The ECtHR considered that it did not have any available
element to declare that the remedy of individual application to
the Constitutional Court may not duly evaluate complaints filed
within the context of the ECHR, find a violation and redress its
consequences, and it stipulated that the applicant was ultimately
required to exhaust the related remedies related to this protection
provided.
Furthermore, the ECtHR expressed that it reserved the right
to examine whether or not judgments of the Constitutional
Court are compatible with its case-law and that effectiveness
of this remedy both in theory and in practice can be presented
with the evaluations to be made in relation to complaints filed
by applicants who exhausted current domestic legal remedies.
115. What would be the consequences if the applicant
lodges an application both to the Constitutional Court and the
European Court of Human Rights on the same matter?
The Constitutional Court requires applicants to notify
whether or not they have also lodged an application to the
ECtHR. If so, this does not have any impact on the applicant’s
application to the Constitutional Court. The Court is liable to
consider the application deposited even if the case is pending
in the ECtHR. However, considering the ECtHR’s Hasan Uzun/
Turkey judgment, it should be noted that the ECtHR will decide
on admissibility of the application after examining whether or
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not national legal remedies and ultimately individual application
to the Constitutional Court were exhausted when an application
is filed to the ECtHR.
116. Does individual application make proceedings longer,
does it lead to delays in the finalization of judicial decisions?
Above all, individual application is beyond ordinary legal
remedies and therefore does not have any impact on the
finalization of court decisions. Therefore, the argument that
this remedy will make proceedings longer is not valid. Judicial
decisions will become executable following the exhaustion of
ordinary legal remedies and will have a binding effect for all
parties. İndividual application against this decision by related
parties will not impede execution of the decision and extension of
proceedings is not a matter of concern. It is a well-known fact that
the Court may grant interim measures in cases of intervention to
an applicant’s life as well as integrity of an applicant’s pecuniary
and non-pecuniary assets, in other words in exceptional cases.
Moreover, a decision to be given in such cases will not have a
negative impact on the rights of other individuals. The State’s
conduct incompatible with its negative or positive obligations
may result in indication of interim measures by the Court.
With regard to the argument that individual application
results in delays in applications to the ECtHR, the conclusion of
individual applications should be expected to be more rapid in
the Constitutional Court. Therefore, individuals will have the
opportunity to find responses for their claims on violation of
rights in domestic law without waiting for the settlement of their
proceedings in the ECtHR.
After the decision of the Constitutional Court to establish a
violation and to redress its consequences, applicants will not
need to apply to the ECtHR.
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117. Does the Constitutional Court take the Constitution
or the European Convention on Human Rights as a basis in
examining individual applications?
In the examination of individual applications, the
Constitutional Court will give its decisions in accordance with
the Constitutional Court. ECHR is a criterion to be referred
to in defining the rights that can be the subject of individual
applications.
According to the Constitutional Court, a right alleged to
be violated by the public authorities should be secured by the
Constitution and fall under the scope of the European Convention
on Human Rights and its additional protocols to which Turkey
is a party. In other words, an admissibility decision cannot be
given for an application filed with the claim of violation of a right
that is beyond the scope of the Constitution and the ECHR (See
Application No: 2012/917, 16/4/2013).
For example, the Constitutional Court evaluated the right to
legal remedies regulated under Article 36 in the Constitution
within the context of Article 6 “Right to fair trial” in the ECHR.
Therefore, it is expressed that individuals may claim violation
of the right to fair trial only if they are involved in disputes
and criminal charges related to civil rights and obligation (See
Application No: 2013/1123, 2/10/2013).
On the other hand, all administrative and judicial authorities
are obliged to comply with the ECHR and therefore in
delivering a judgment, the Constitutional Court should
interpret constitutional provisions and reach a conclusion in
accordance with the ECHR to the greatest possible extent. The
Constitutional Court adopts this interpretation particularly in
problematic areas related to Turkey before the ECtHR, such as
freedom and security of the person, and the right to fair trial
excluding cases where provisions of the ECHR and case-law of
the ECtHR clearly contradict the Constitution. This is obviously
an obligation when it is considered that minimum standards
in the field of human rights are defined by the ECtHR. In this
context, in evaluating whether or not the right to trial within
reasonable time was violated as an element of the right to fair trial
in one of its judgments, the Court implemented related criteria
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INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
of the ECtHR: complexity of case,(incidents and notions related
to the case, number of parties in the case, qualification of legal
issues which should be solved etc.), applicant’s attitude, that
of the judicial and other public authorities, qualification of the
applicant’s interest in rapid settlement of the case (Application
No: 2012/13, 2/7/2013).
In another judgment, the Court presented the criteria applied
in its evaluation of reasonable time periods for detention within
the context of the case-law of the ECtHR: strong suspicion of
having committed an offence (existence of convincing reasons
for commitment of offence) should continue to exist during
detention. For the detention of those with “strong indications” of
having committed an offence, one or more of the cases stipulated
in law that require detention in order to prevent them from
fleeing and to prevent destruction or modification of evidence
should exist. Additionally, if these grounds are “relevant” and
“sufficient”, evaluation should be made on whether or not
“due care” is shown in the acts of related authorities. All of
these elements referred to by the ECtHR are taken into account
by the Constitutional Court in order to evaluate reasonable
time. In a concrete event, the Court evaluated whether or not
justification made in the decision of the first instance court had a
real legal interest that may justify long detention of the applicant
and outweigh freedom and security of person despite the
presumption of innocence (Application No: 2012/239, 2/7/2013).
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BIBLIOGRAPHY
ALİYEV; Cabir; Anayasa Şikayeti [Constitutional Complaint],
Beta, İstanbul, 2010
DOĞRU, Osman, Anayasa Mahkemesine Bireysel Başvuru
Rehberi [A Guide for the Individual Application to the
Constitutional Court], Legal, İstanbul 2012
GÖREN, Zafer, Bireysel Başvuru, Türk Anayasa Yargısında
[Individual Application in Turkish Constitutional Justice], Yetkin
Ankara, 2013
GÖZTEPE, Ece, Anayasa Şikayeti [Constitutional Complaint],
AÜHF, Ankara, 1998
İNCEOĞLU, Sibel (Editor), İnsan Hakları Avrupa Sözleşmesi
ve Anayasa [European Convention on Human Rights and the
Constitution], Council of Europe, 2013, Ankara
KARAMAN, Ebru, Karşılaştırmalı Anayasa Yargısında
Bireysel Başvuru Hakkı [Right to Individual Application in
Comparative Constitutional Justice], On İki Levha, İstanbul, 2013
KILINÇ, Bahadır, “Karşılaştırmalı Anayasa Yargısında
Bireysel Başvuru (Anayasa Şikayeti) Kurumu ve Türkiye
Açısından Uygulanabilirliği”, Anayasa Yargısı Dergisi, C. 25
2008, s. 19-59
ÖZBEY, Özcan, Türk Hukukunda Anayasa Mahkemesine
Bireysel Başvuru Hakkı [Right to Individual Application to
the Constitutional Court in Turkish Law], Adalet Yayınevi, 2.
Edition, Ankara, 2013
SAĞLAM, Musa (Editor), Bireysel Başvuru, İnceleme
Usulü ve Kabul Edilebilirlik Kriterleri [Individual Application,
Examination Procedure and Admissibility Criteria], 2nd Edition,
AYM Yayınları, Ankara, 2013
SAĞLAM, Musa (Editor), Bireysel Başvuru İncelemeleri
[Individual Application Review], AYM Yayınları, Ankara, 2014
ŞİRİN, Tolga, Türkiye’de Anayasa Şikayeti, İnsan Hakları
Avrupa Mahkemesi ve Almanya Uygulaması ile Mukayeseli Bir
İnceleme [Constitutional Complaint in Turkey, a Comparative
Analysis with the Practices of European Court of Human Rights
118
INDIVIDUAL APPLICATION TO THE TURKISH CONSTITUTIONAL COURT
and German Constitutional Court], On İki Levha, İstanbul, 2013
URAL, Sami Sezai, Hak ve Özgürlüklerin Korunması
Bağlamında Bireysel Başvuru [Individual Application in the
Context of the Protection of Rights and Freedoms], Seçkin,
Ankara, 2013
YOKUŞ, Sevtap (Editor), Anayasa Mahkemesine Bireysel
Başvuru; Anayasal Şikayet [Individual Application to the
Constitutional Court; Constitutional Complaint], Seçkin, Ankara,
2014
ELECTRONIC REFERENCES
http://www.inhak.adalet.gov.tr/tematik/tematik.html
http://aihm.anadolu.edu.tr/
http://www.anayasa.gov.tr/
http://hudoc.echr.coe.int/
http://www.tbmm.gov.tr/
119
APPANDICES
1. The Constitution of the Republic of Turkey
2. Code on Establishment and Rules of Procedures of the
Constitutional Court
3. Internal Regulation of the Constitutional Court
120
THE CONSTITUTION OF
THE REPUBLIC OF TURKEY1
1
This text is taken from the official website of Turkey Grand National Assembly
http://www.tbmm.gov.tr (19/1/2015)
121
122
THE CONSTITUTION OF THE REPUBLIC OF TURKEY
CONSTITUTION OF
THE REPUBLIC OF TURKEY
PREAMBLE ....................................................................................133
PART ONE
General Principles
I.Form of the State: Art 1................................................................135
II.Characteristics of the Republic: Art 2.......................................135
III.Integrity, official language, flag, national anthem, and capital
of the State: Art 3 ............................................................................135
IV.Irrevocable provisions: Art 4 ...................................................135
V.Fundamental aims and duties of the State: Art 5 ........................135
VI.Sovereignty: Art 6 .....................................................................136
VII.Legislative power: Art 7 ..........................................................136
VIII.Executive power and function: Art 8 ...................................136
IX.Judicial power: Art 9 .................................................................136
X.Equality before the law: Art 10 .................................................136
XI.Supremacy and binding force of the Constitution: Art 11 .....137
PART TWO
Fundamental Rights and Duties
CHAPTER ONE
General Provisions
I.Nature of fundamental rights and freedoms: Art 12 ...............138
II.Restriction of fundamental rights and freedoms: Art 13 ........138
III.Prohibition of abuse of fundamental rights and freedoms: Art
14 ......................................................................................................138
IV.Suspension of the exercise of fundamental rights and
freedoms: Art 15 .............................................................................139
V.Status of aliens: Art 16 ................................................................139
CHAPTER TWO
Rights and Duties of the Individual
I.Personal inviolability, corporeal and spiritual existence of the
individual: Art 17 ..........................................................................139
II.Prohibition of forced labour: Art 18 .........................................140
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THE CONSTITUTION OF THE REPUBLIC OF TURKEY
III.Personal liberty and security: Art 19 .......................................140
IV.Privacy and protection of private life
A.Privacy of private life: Art 20 ....................................................142
B.Inviolability of the domicile: Art 21 ..........................................143
C.Freedom of communication: Art 22 .........................................143
V.Freedom of residence and movement: Art 23 ..........................143
VI.Freedom of religion and conscience: Art 24 ...........................144
VII.Freedom of thought and opinion: Art 25 .............................145
VIII.Freedom of expression and dissemination of thought: Art
26 ..................................................................................................145
IX.Freedom of science and the arts: Art 27 ..................................146
X.Provisions relating to the press and publication
A.Freedom of the press: Art 28 .....................................................146
B.Right to publish periodicals and non-periodicals: Art 29 ......147
C.Protection of printing facilities: Art 30 ....................................148
D.Right to use media other than the press owned by public
corporations: Art 31 .......................................................................148
E.Right of rectification and reply: Art 32 ....................................148
XI.Rights and freedoms of assembly
A.Freedom of association: Art 33 .................................................148
B.Right to hold meetings and demonstration marches: Art 34 .....149
XII.Right to property: Art 35 .........................................................150
XIII.Provisions on the protection of rights
A.Freedom to claim rights: Art 36 ...............................................150
B.Principle of natural judge: Art 37 .............................................150
C.Principles relating to offences and penalties: Art 38 ..............150
XIV.Right to prove an allegation: Art 39 ......................................151
XV.Protection of fundamental rights and freedoms: Art 40 ......151
CHAPTER THREE
Social and Economic Rights and Duties
I.Protection of the family, and children’s rights: Art 41 ............152
II.Right and duty of education: Art 42 ........................................152
III.Public interest
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THE CONSTITUTION OF THE REPUBLIC OF TURKEY
A.Utilization of the coasts: Art 43 ................................................153
B.Land ownership: Art 44 .............................................................153
C.Protection of agriculture, animal husbandry, and persons
engaged in these activities: Art 45.................................................154
D.Expropriation: Art 46 .................................................................154
E.Nationalization and privatization: Art 47 ...............................155
IV. Freedom of work and contract: Art 48 ..................................155
V.Provisions relating to labour
A.Right and duty to work: Art 49 .................................................156
B.Working conditions and right to rest and leisure: Art 50 .....156
C.Right to organize unions: Art 51 ..............................................156
D.Activities of unions(Repealed on July 23, 1995; Act No. 4121)
VI.Collective labour agreement, right to strike, and lockout
A.Rights of collective labour agreement and collective agreement:
Art 53 ...............................................................................................157
B.Right to strike, and lockout: Art 54 ...........................................158
VII.Provision of fair wage: Art 55 .................................................159
VIII.Health, the environment and housing
A.Health services and protection of the environment: Art 56 ...159
B.Right to housing: Art 57 .............................................................159
IX.Youth and sports
A.Protection of the youth: Art 58..................................................160
B.Development of sports and arbitration: Art 59 .......................160
X.Social security rights
A.Right to social security: Art 60...................................................160
B.Persons requiring special protection in the field of social
security: Art 61 ................................................................................160
C. Turkish citizens working abroad: Art 62................................161
XI.Protection of historical, cultural and natural assets: Art 63 ..161
XII.Protection of arts and artists: Art 64 .....................................161
XIII.The extent of social and economic duties of the State: Art 65.161
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CHAPTER FOUR
Political Rights and Duties
I.Turkish citizenship: Art 66 ..........................................................162
II.Right to vote, to be elected and to engage in political activity:
Art 67................................................................................................162
III.Provisions relating to political parties
A.Forming parties, membership and withdrawal from
membership in a party: Art 68 ......................................................163
B.Principles to be observed by political parties: Art 69..................163
IV.Right to enter public service
A.Entry into public service: Art 70 ..............................................164
B.Declaration of assets: Art 71 ......................................................166
V.National service: Art 72 .............................................................166
VI.Duty to pay taxes: Art 73 ..........................................................166
VII.Right of petition, right to information and appeal to the
Ombudsperson: Art 74 ..................................................................166
PART THREE
Fundamental Organs of the Republic
CHAPTER ONE
Legislative Power
I.The Grand National Assembly of Turkey
A.Composition: Art 75 ..................................................................168
B.Eligibility to be a deputy: Art 76 ..............................................168
C.Election term of the Grand National Assembly of Turkey: Art
77 ......................................................................................................169
D.Deferment of elections for the Grand National Assembly of
Turkey and by-elections: Art 78 ....................................................169
E.General administration and supervision of elections: Art 79 ....170
F.Provisions relating to membership
1.Representing the nation: Art 80 .................................................171
2.Oath-taking: Art 81 .....................................................................171
3.Activities incompatible with membership: Art 82 .....................171
4.Parliamentary immunity: Art 83 ...............................................172
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5.Loss of membership: Art 84 .......................................................173
6.Application for annulment: Art 85 ...........................................173
7.Salaries and travel allowances: Art 86 ......................................173
II.Duties and powers of the Grand National Assembly of Turkey
A.General: Art 87 ...........................................................................174
B.Introduction and deliberation of bills: Art 88 .........................174
C.Promulgation of laws by the President of the Republic: Art 89...175
D.Ratification of international treaties: Art 90 ............................175
E.Authorization to issue decrees having the force of law: Art 91.176
F.Declaration of state of war and authorization to deploy the
armed forces: Art 92 .......................................................................177
III.Provisions relating to the activities of the Grand National
Assembly of Turkey
A.Convening and recess: Art 93 ...................................................178
B.Bureau of the Assembly: Art 94 .................................................178
C.Rules of Procedure, political party groups and security affairs:
Art 95................................................................................................179
D.Quorums and majority for decisions: Art 96 ..........................180
E.Publicity and publication of debates: Art 97 ............................180
IV. Ways of obtaining information and supervision by the Grand
National Assembly of Turkey
A.General: Art 98 ............................................................................180
B.Censure: Art 99 ............................................................................181
C.Parliamentary investigation: Art 100........................................182
CHAPTER TWO
The Executive Power
I.President of the Republic
A.Qualifications and impartiality: Art 101 .................................183
B.Election: Art 102 .........................................................................183
C.Oath-taking: Art 103 ..................................................................184
D.Duties and powers: Art 104 ......................................................184
E.Presidential accountability and non-accountability: Art 105 .....186
F.Acting for the President of the Republic: Art 106 .......................187
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G.General Secretariat of the President of the Republic: Art 107 .187
H.State Supervisory Council: Art 108 ..........................................187
II.Council of Ministers
A.Formation: Art 109 .....................................................................188
B.Taking office and vote of confidence: Art 110 ..........................188
C.Vote of confidence while in office: Art 111 ..............................189
D.Functions and political responsibilities: Art 112 .....................189
E.The formation of ministries, and ministers: Art 113................189
F.Provisional Council of Ministers during elections: Art 114 ...190
G.Regulations: Art 115...................................................................191
H.Renewal of elections to the Grand National Assembly of
Turkey by the President of the Republic: Art 116.......................191
I. National defence
1.Offices of Commander-in-Chief and Chief of the General Staff:
Art 117..............................................................................................192
2.National Security Council: Art 118 ...........................................192
III.Extraordinary administration procedures
A.States of emergency
1.Declaration of state of emergency because of natural disaster or
serious economic crisis: Art 119 ...................................................193
2.Declaration of state of emergency because of widespread acts
of violence and serious deterioration of public order: Art 120 ..193
3.Rules regarding the states of emergency: Art 121 .....................194
B.Martial law, mobilization and state of war: Art 122 ................194
IV.Administration
A.Fundamentals of the administration 1
1.Integrity of the administration and public legal personality: Art
123 ...................................................................................................196
2.By-laws: Art 124 ..........................................................................196
B.Judicial review: Art 125...............................................................196
C.Establishment of the administration
1.Central administration: Art 126 ................................................197
2.Local administrations: Art 127 ..................................................197
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D.Provisions relating to public servants
1.General principles: Art 128 .......................................................199
2.Duties and responsibilities, and guarantees in disciplinary
proceedings: Art 129 ......................................................................199
E.Institutions of higher education and their higher bodies
1.Institutions of higher education: Art 130 .................................200
2.Superior bodies of higher education: Art 131...........................201
3.Institutions of higher education subject to special provisions:
Art 132..............................................................................................202
F.Radio and Television Supreme Council, institutions of radio
and television, and public affiliated news agencies: Art 133 ....202
G.The Atatürk High Institution of Culture, Language and
History: Art 134...............................................................................203
H.Professional organizations having the characteristics of public
institutions: Art 135 ........................................................................203
I.Presidency of Religious Affairs: Art 136 ...................................204
J.Unlawful order: Art 137 ..............................................................205
CHAPTER THREE
Judicial Power
I.General provisions
A.Independence of the courts: Art 138.........................................205
B.Security of tenure of judges and public prosecutors: Art 139.206
C.Judges and public prosecutors: Art 140 ...................................206
D.Publicity of hearings and the necessity of justification for
verdicts: Art 141 ..............................................................................207
E.Formation of courts: Art 142 .....................................................207
F.State Security Courts: Art 143 ....................................................207
G.Supervision of judicial services: Art 144 .................................207
H.Military justice: Art 145 .............................................................208
II. Higher courts
A.Constitutional Court
1.Formation: Art 146 ......................................................................208
2.Term of office of the members and termination of membership:
Art 147..............................................................................................210
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3.Functions and powers: Art 148 .................................................211
4.Procedure of functioning and trial: Art 149 ............................212
5.Annulment action : Art 150.........................................................213
6.Time limit for annulment action: Art 151 .................................214
7.Claim of unconstitutionality before other courts: Art 152 ....214
8.Decisions of the Constitutional Court: Art 153 ........................215
B.High Court of Appeals: Art 154 ................................................215
C.Council of State: Art 155 ............................................................216
D.High Military Court of Appeals: Art 156 ................................217
E.High Military Administrative Court: Art 157 ...........................218
F.Court of Jurisdictional Disputes: Art 158 .................................218
III.High Council of Judges and Prosecutors: Art 159 .................219
IV.Court of Accounts: Art 160 .......................................................222
PART FOUR
Financial and Economic Provisions
CHAPTER ONE
Financial Provisions
I.Budget
A.Preparation and implementation of the budget: Art 161 .......223
B.Debate on the budget: Art 162...................................................223
C.Principles governing budgetary amendments: Art 163 .........224
D.Final accounts: Art 164...............................................................224
E.Scrutiny of state economic enterprises: Art 165 ......................225
CHAPTER TWO
Economic Provisions
I.Planning; Economic and Social Council : Art 166.....................225
II.Supervision of markets and regulation of foreign trade: Art
167 ....................................................................................................226
III.Exploration and exploitation of natural resources: Art 168...226
IV.Forests and the forest villagers
A.Protection and development of forests: Art 169 .....................226
B.Protection of forest villagers: Art 170 .......................................227
V.Developing cooperativism: Art 171 .........................................228
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VI.Protection of consumers, tradespeople and artisans
A.Protection of consumers: Art 172 .............................................228
B.Protection of tradespeople and artisans: Art 173 .....................228
PART FIVE
Miscellaneous Provisions
I.Preservation of Reform Laws: Art 174 ......................................229
PART SIX
Provisional Articles
Provisional Article 1 .....................................................................230
Provisional Article 2 .....................................................................230
Provisional Article 3 ......................................................................232
Provisional Article 4 ......................................................................232
Provisional Article 5 .....................................................................232
Provisional Article 6 .....................................................................232
Provisional Article 7 ....................................................................232
Provisional Article 8 ......................................................................232
Provisional Article 9 .....................................................................233
Provisional Article 10 ....................................................................233
Provisional Article 11 ...................................................................233
Provisional Article 12 ....................................................................234
Provisional Article 13 ....................................................................234
Provisional Article 14 ....................................................................234
Provisional Article 15 ....................................................................234
Provisional Article 16 ....................................................................234
Provisional Article 17 ....................................................................235
Provisional Article 18 ....................................................................235
Provisional Article 19 ....................................................................237
PART SEVEN
Final Provisions
I.Amending the Constitution, participation in elections and
referenda: Art 175 ..........................................................................242
II.Preamble and headings of articles: Art 176 ............................243
III.Entry into force of the Constitution: Art 177 .........................243
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PROVISIONAL ARTICLES NOT INCLUDED IN THE
CONSTITUTION OF THE REPUBLIC OF TURKEY
Provisional Article of Act No. 4709 dated October 3, 2001
Provisional Article .........................................................................245
Provisional Article of Act No. 4777 dated December 27, 2002
Provisional Article 1.......................................................................245
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CONSTITUTION OF THE REPUBLIC
OF TURKEY2
PREAMBLE
(As amended on July 23, 1995; Act No. 4121)
Affirming the eternal existence of the Turkish Motherland
and Nation and the indivisible unity of the Sublime Turkish
State, this Constitution, in line with the concept of nationalism
introduced by the founder of the Republic of Turkey, Atatürk,
the immortal leader and the unrivalled hero, and his reforms and
principles;
Determining to attain the everlasting existence, prosperity,
material and spiritual well-being of the Republic of Turkey, and
the standards of contemporary civilization as an honourable
member with equal rights of the family of world nations;
The absolute supremacy of the will of the nation, the fact that
sovereignty is vested fully and unconditionally in the Turkish
Nation and that no individual or body empowered to exercise
this sovereignty in the name of the nation shall deviate from the
liberal democracy indicated in the Constitution and the legal
system instituted according to its requirements,
The separation of powers, which does not imply an order of
precedence among the organs of the State, but refers solely to the
exercising of certain state powers and discharging of duties, and
is limited to a civilized cooperation and division of functions;
and the fact that only the Constitution and the laws have the
supremacy;
(As amended on October 3, 2001; Act No. 4709) That no
protection shall be accorded to an activity contrary to Turkish
national interests, Turkish existence and the principle of its
indivisibility with its State and territory, historical and moral
values of Turkishness; the nationalism, principles, reforms and
civilizationism of Atatürk and that sacred religious feelings shall
2
The Constitution was adopted by the Constituent Assembly on October 18, 1982
to be submitted to referendum and published in the Official Gazette dated
October 20, 1982 and numbered 17844; republished in the repeating Official
Gazette dated November 9, 1982 and numbered 17863 in the aftermath of its
submission to referendum on November 7, 1982 (Act No. 2709).
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absolutely not be involved in state affairs and politics as required
by the principle of secularism;
That every Turkish citizen has an innate right and power, to lead
an honourable life and to improve his/her material and spiritual
wellbeing under the aegis of national culture, civilization, and
the rule of law, through the exercise of the fundamental rights
and freedoms set forth in this Constitution, in conformity with
the requirements of equality and social justice;
That all Turkish citizens are united in national honour
and pride, in national joy and grief, in their rights and duties
regarding national existence, in blessings and in burdens, and
in every manifestation of national life, and that they have the
right to demand a peaceful life based on absolute respect for one
another’s rights and freedoms, mutual love and fellowship, and
the desire for and belief in “Peace at home; peace in the world”;
With these IDEAS, BELIEFS, and RESOLUTIONS to be
interpreted and implemented accordingly, thus commanding
respect for, and absolute loyalty to, its letter and spirit;
Has been entrusted by the TURKISH NATION to the
democracy-loving Turkish sons’ and daughters’ love for the
motherland and nation.
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PART ONE
General Principles
I. Form of the State
ARTICLE 1- The State of Turkey is a Republic.
II. Characteristics of the Republic
ARTICLE 2- The Republic of Turkey is a democratic, secular
and social state governed by rule of law, within the notions of
public peace, national solidarity and justice, respecting human
rights, loyal to the nationalism of Atatürk, and based on the
fundamental tenets set forth in the preamble.
III. Integrity, official language, flag, national anthem, and
capital of the State
ARTICLE 3- The State of Turkey, with its territory and nation,
is an indivisible entity. Its language is Turkish.
Its flag, the form of which is prescribed by the relevant law,
is composed of a white crescent and star on a red background.
Its national anthem is the “Independence March”.
Its capital is Ankara.
IV. Irrevocable provisions
ARTICLE 4- The provision of Article 1 regarding the form of
the State being a Republic, the characteristics of the Republic in
Article 2, and the provisions of Article 3 shall not be amended,
nor shall their amendment be proposed.
V. Fundamental aims and duties of the State
ARTICLE 5- The fundamental aims and duties of the State
are to safeguard the independence and integrity of the Turkish
Nation, the indivisibility of the country, the Republic and
democracy, to ensure the welfare, peace, and happiness of the
individual and society; to strive for the removal of political,
economic, and social obstacles which restrict the fundamental
rights and freedoms of the individual in a manner incompatible
with the principles of justice and of the social state governed
by rule of law; and to provide the conditions required for the
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development of the individual’s material and spiritual existence.
VI. Sovereignty
ARTICLE 6- Sovereignty belongs to the Nation without any
restriction or condition.
The Turkish Nation shall exercise its sovereignty through the
authorized organs, as prescribed by the principles set forth in the
Constitution.
The exercise of sovereignty shall not be delegated by any
means to any individual, group or class. No person or organ
shall exercise any state authority that does not emanate from the
Constitution.
VII. Legislative power
ARTICLE 7- Legislative power is vested in the Grand
National Assembly of Turkey on behalf of Turkish Nation. This
power shall not be delegated.
VIII. Executive power and function
ARTICLE 8- Executive power and function shall be exercised
and carried out by the President of the Republic and the Council
of Ministers in conformity with the Constitution and laws.
IX. Judicial power
ARTICLE 9- Judicial power shall be exercised by independent
courts on behalf of the Turkish Nation.
X. Equality before the law
ARTICLE 10- Everyone is equal before the law without
distinction as to language, race, colour, sex, political opinion,
philosophical belief, religion and sect, or any such grounds.
(Paragraph added on May 7, 2004; Act No. 5170) Men and
women have equal rights. The State has the obligation to ensure
that this equality exists in practice. (Sentence added on September
12, 2010; Act No. 5982) Measures taken for this purpose shall not
be interpreted as contrary to the principle of equality.
(Paragraph added on September 12, 2010; Act No. 5982)
Measures to be taken for children, the elderly, disabled people,
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widows and orphans of martyrs as well as for the invalid and
veterans shall not be considered as violation of the principle of
equality.3
No privilege shall be granted to any individual, family, group
or class.
State organs and administrative authorities are obliged to act
in compliance with the principle of equality before the law in all
their proceedings.2
XI. Supremacy and binding force of the Constitution
ARTICLE 11- The provisions of the Constitution are
fundamental legal rules binding upon legislative, executive
and judicial organs, and administrative authorities and other
institutions and individuals.
Laws shall not be contrary to the Constitution.
3
The phrase “and in benefiting from all kinds of public services” was added
after the phrase “in all their proceedings” by the first Article of Act No. 5735
dated February 9, 2008 and annulled by the decision of the Constitutional
Court dated June 5, 2008 numbered E. 2008/16, K. 2008/116 (Official Gazette
numbered 27032 of October 22, 2008).
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PART TWO
Fundamental Rights and Duties
CHAPTER ONE
General Provisions
I. Nature of fundamental rights and freedoms
ARTICLE 12- Everyone possesses inherent fundamental
rights and freedoms, which are inviolable and inalienable.
The fundamental rights and freedoms also comprise the
duties and responsibilities of the individual to the society, his/
her family, and other individuals.
II. Restriction of fundamental rights and freedoms
ARTICLE 13- (As amended on October 3, 2001; Act No. 4709)
Fundamental rights and freedoms may be restricted only
by law and in conformity with the reasons mentioned in the
relevant articles of the Constitution without infringing upon
their essence.
These restrictions shall not be contrary to the letter and spirit
of the Constitution and the requirements of the democratic
order of the society and the secular republic and the principle of
proportionality.
III. Prohibition of abuse of fundamental rights and freedoms
ARTICLE 14- (As amended on October 3, 2001; Act No. 4709)
None of the rights and freedoms embodied in the Constitution
shall be exercised in the form of activities aiming to violate the
indivisible integrity of the State with its territory and nation, and
to endanger the existence of the democratic and secular order of
the Republic based on human rights.
No provision of this Constitution shall be interpreted in
a manner that enables the State or individuals to destroy the
fundamental rights and freedoms recognized by the Constitution
or to stage an activity with the aim of restricting them more
extensively than stated in the Constitution.
The sanctions to be applied against those who perpetrate
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activities contrary to these provisions shall be determined by
law.
IV. Suspension of the exercise of fundamental rights and
freedoms
ARTICLE 15- In times of war, mobilization, martial law, or
a state of emergency, the exercise of fundamental rights and
freedoms may be partially or entirely suspended, or measures
derogating the guarantees embodied in the Constitution may be
taken to the extent required by the exigencies of the situation, as
long as obligations under international law are not violated.
(As amended on May 7, 2004; Act No. 5170) Even under the
circumstances indicated in the first paragraph, the individual’s
right to life, the integrity of his/her corporeal and spiritual
existence shall be inviolable except where death occurs through
acts in conformity with law of war; no one shall be compelled
to reveal his/her religion, conscience, thought or opinion, nor be
accused on account of them; offences and penalties shall not be
made retroactive; nor shall anyone be held guilty until so proven
by a court ruling.
V. Status of aliens
ARTICLE 16- The fundamental rights and freedoms in respect
to aliens may be restricted by law compatible with international
law.
CHAPTER TWO
Rights and Duties of the Individual
I. Personal inviolability, corporeal and spiritual existence of
the individual
ARTICLE 17- Everyone has the right to life and the right to
protect and improve his/her corporeal and spiritual existence.
The corporeal integrity of the individual shall not be violated
except under medical necessity and in cases prescribed by law;
and shall not be subjected to scientific or medical experiments
without his/her consent.
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No one shall be subjected to torture or mal-treatment; no one
shall be subjected to penalties or treatment incompatible with
human dignity.
(As amended on May 7, 2004; Act No. 5170) The act of
killing in case of self-defence and, when permitted by law as a
compelling measure to use a weapon, during the execution of
warrants of capture and arrest, the prevention of the escape of
lawfully arrested or convicted persons, the quelling of riot or
insurrection, or carrying out the orders of authorized bodies
during martial law or state of emergency, do not fall within the
scope of the provision of the first paragraph.
II. Prohibition of forced labour
ARTICLE 18- No one shall be forced to work. Forced labour
is prohibited.
Work required of an individual while serving a sentence or
under detention provided that the form and conditions of such
labour are prescribed by law; services required from citizens
during a state of emergency; and physical or intellectual work
necessitated by the needs of the country as a civic obligation
shall not be considered as forced labour.
III. Personal liberty and security
ARTICLE 19- Everyone has the right to personal liberty and
security.
No one shall be deprived of his/her liberty except in the
following cases where procedure and conditions are prescribed
by law:
Execution of sentences restricting liberty and the
implementation of security measures decided by courts; arrest
or detention of an individual in line with a court ruling or an
obligation upon him designated by law; execution of an order
for the purpose of the educational supervision of a minor, or for
bringing him/her before the competent authority; execution of
measures taken in conformity with the relevant provisions of
law for the treatment, education or rehabilitation of a person of
unsound mind, an alcoholic, drug addict, vagrant, or a person
spreading contagious diseases to be carried out in institutions
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when such persons constitute a danger to the public; arrest or
detention of a person who enters or attempts to enter illegally
into the country or for whom a deportation or extradition order
has been issued.
Individuals against whom there is strong evidence of having
committed an offence may be arrested by decision of a judge
solely for the purposes of preventing escape, or preventing
the destruction or alteration of evidence, as well as in other
circumstances prescribed by law and necessitating detention.
Arrest of a person without a decision by a judge may be executed
only when a person is caught in flagrante delicto or in cases where
delay is likely to thwart the course of justice; the conditions for
such acts shall be defined by law.
Individuals arrested or detained shall be promptly notified, in
all cases in writing, or orally when the former is not possible, of
the grounds for their arrest or detention and the charges against
them; in cases of offences committed collectively this notification
shall be made, at the latest, before the individual is brought
before a judge.
(As amended on October 3, 2001; Act No. 4709) The person
arrested or detained shall be brought before a judge within
at latest forty-eight hours and in case of offences committed
collectively within at most four days, excluding the time required
to send the individual to the court nearest to the place of arrest.
No one can be deprived of his/her liberty without the decision
of a judge after the expiry of the above specified periods. These
periods may be extended during a state of emergency, martial
law or in time of war.
(As amended on October 3, 2001; Act No. 4709) The next of kin
shall be notified immediately when a person has been arrested
or detained.
Persons under detention shall have the right to request trial
within a reasonable time and to be released during investigation
or prosecution. Release may be conditioned by a guarantee as to
ensure the presence of the person at the trial proceedings or the
execution of the court sentence.
Persons whose liberties are restricted for any reason are
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THE CONSTITUTION OF THE REPUBLIC OF TURKEY
entitled to apply to the competent judicial authority for speedy
conclusion of proceedings regarding their situation and for their
immediate release if the restriction imposed upon them is not
lawful.
(As amended on October 3, 2001; Act No. 4709) Damage
suffered by persons subjected to treatment other than these
provisions shall be compensated by the State in accordance with
the general principles of the compensation law.
IV. Privacy and protection of private life
A. Privacy of private life
ARTICLE 20- Everyone has the right to demand respect for
his/her private and family life. Privacy of private or family life
shall not be violated. (Sentence repealed on May 3, 2001; Act No.
4709)
(As amended on October 3, 2001; Act No. 4709) Unless there
exists a decision duly given by a judge on one or several of the
grounds of national security, public order, prevention of crime,
protection of public health and public morals, or protection of
the rights and freedoms of others, or unless there exists a written
order of an agency authorized by law, in cases where delay is
prejudicial, again on the above-mentioned grounds, neither the
person, nor the private papers, nor belongings of an individual
shall be searched nor shall they be seized. The decision of the
competent authority shall be submitted for the approval of the
judge having jurisdiction within twenty-four hours. The judge
shall announce his decision within forty-eight hours from the
time of seizure; otherwise, seizure shall automatically be lifted.
(Paragraph added on September 12, 2010; Act No. 5982)
Everyone has the right to request the protection of his/her personal
data. This right includes being informed of, having access to and
requesting the correction and deletion of his/her personal data,
and to be informed whether these are used in consistency with
envisaged objectives. Personal data can be processed only in
cases envisaged by law or by the person’s explicit consent. The
principles and procedures regarding the protection of personal
data shall be laid down in law.
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B. Inviolability of the domicile
ARTICLE 21- (As amended on October 3, 2001; Act No. 4709)
The domicile of an individual shall not be violated. Unless
there exists a decision duly given by a judge on one or several
of the grounds of national security, public order, prevention
of crime, protection of public health and public morals, or
protection of the rights and freedoms of others, or unless there
exists a written order of an agency authorized by law in cases
where delay is prejudicial, again on these grounds, no domicile
may be entered or searched or the property seized therein. The
decision of the competent authority shall be submitted for the
approval of the judge having jurisdiction within twenty-four
hours. The judge shall announce his decision within fortyeight hours from the time of seizure; otherwise, seizure shall be
automatically lifted.
C. Freedom of communication
ARTICLE 22- (As amended on October 3, 2001; Act No. 4709)
Everyone has the freedom of communication. Privacy of
communication is fundamental.
Unless there exists a decision duly given by a judge on one
or several of the grounds of national security, public order,
prevention of crime, protection of public health and public
morals, or protection of the rights and freedoms of others, or
unless there exists a written order of an agency authorized by
law in cases where delay is prejudicial, again on the abovementioned grounds, communication shall not be impeded nor its
privacy be violated. The decision of the competent authority shall
be submitted for the approval of the judge having jurisdiction
within twenty-four hours. The judge shall announce his decision
within forty-eight hours from the time of seizure; otherwise,
seizure shall be automatically lifted.
Public institutions and agencies where exceptions may be
applied are prescribed in law.
V. Freedom of residence and movement
ARTICLE 23- Everyone has the freedom of residence and
movement.
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Freedom of residence may be restricted by law for the
purpose of preventing crimes, promoting social and economic
development, achieving sound and orderly urbanization, and
protecting public property.
Freedom of movement may be restricted by law for the
purpose of investigation and prosecution of an offence, and
prevention of crimes.
(As amended on October 3, 2001; Act No. 4709, and as amended
on September 12, 2010; Act No. 5982) A citizen’s freedom to leave
the country may be restricted only by the decision of a judge
based on a criminal investigation or prosecution.
Citizens shall not be deported, or deprived of their right of
entry into the homeland.
VI. Freedom of religion and conscience
ARTICLE 24- Everyone has the freedom of conscience,
religious belief and conviction.
Acts of worship, religious rites and ceremonies shall be
conducted freely, as long as they do not violate the provisions
of Article 14.
No one shall be compelled to worship, or to participate in
religious rites and ceremonies, or to reveal religious beliefs and
convictions, or be blamed or accused because of his religious
beliefs and convictions.
Religious and moral education and instruction shall be
conducted under state supervision and control. Instruction in
religious culture and morals shall be one of the compulsory
lessons in the curricula of primary and secondary schools.
Other religious education and instruction shall be subject to the
individual’s own desire, and in the case of minors, to the request
of their legal representatives.
No one shall be allowed to exploit or abuse religion or
religious feelings, or things held sacred by religion, in any manner
whatsoever, for the purpose of personal or political interest or
influence, or for even partially basing the fundamental, social,
economic, political, and legal order of the State on religious
tenets.
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VII. Freedom of thought and opinion
ARTICLE 25- Everyone has the freedom of thought and
opinion.
No one shall be compelled to reveal his/her thoughts and
opinions for any reason or purpose; nor shall anyone be blamed
or accused because of his/her thoughts and opinions.
VIII. Freedom of expression and dissemination of thought
ARTICLE 26- Everyone has the right to express and
disseminate his/her thoughts and opinions by speech, in
writing or in pictures or through other media, individually
or collectively. This freedom includes the liberty of receiving
or imparting information or ideas without interference by
official authorities. This provision shall not preclude subjecting
transmission by radio, television, cinema, or similar means to a
system of licensing.
(As amended on October 3, 2001; Act No. 4709) The exercise
of these freedoms may be restricted for the purposes of national
security, public order, public safety, safeguarding the basic
characteristics of the Republic and the indivisible integrity of the
State with its territory and nation, preventing crime, punishing
offenders, withholding information duly classified as a state
secret, protecting the reputation or rights and private and family
life of others, or protecting professional secrets as prescribed by
law, or ensuring the proper functioning of the judiciary.
(Repealed on October 3, 2001; Act No. 4709)
Regulatory provisions concerning the use of means to
disseminate information and thoughts shall not be deemed as
the restriction of freedom of expression and dissemination of
thoughts as long as the transmission of information and thoughts
is not prevented.
(Paragraph added on October 3, 2001; Act No. 4709) The
formalities, conditions and procedures to be applied in exercising
the freedom of expression and dissemination of thought shall be
prescribed by law.
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IX. Freedom of science and the arts
ARTICLE 27- Everyone has the right to study and teach,
express, and disseminate science and the arts, and to carry out
research in these fields freely.
The right to disseminate shall not be exercised for the purpose
of changing the provisions of articles 1, 2 and 3 of the Constitution.
The provision of this article shall not preclude regulation by
law of the entry and distribution of foreign publications in the
country.
X. Provisions relating to the press and publication
A. Freedom of the press
ARTICLE 28- The press is free, and shall not be censored. The
establishment of a printing house shall not be subject to prior
permission or the deposit of a financial guarantee.
(Repealed on October 3, 2001; Act No. 4709)
The State shall take the necessary measures to ensure freedom
of the press and information.
In the limitation of freedom of the press, the provisions of
articles 26 and 27 of the Constitution shall apply.
Anyone who writes any news or articles which threaten
the internal or external security of the State or the indivisible
integrity of the State with its territory and nation, which tend
to incite offence, riot or insurrection, or which refer to classified
state secrets or has them printed, and anyone who prints or
transmits such news or articles to others for the purposes above,
shall be held responsible under the law relevant to these offences.
Distribution may be prevented as a precautionary measure by
the decision of a judge, or in case delay is deemed prejudicial,
by the competent authority explicitly designated by law. The
authority preventing the distribution shall notify a competent
judge of its decision within twenty-four hours at the latest. The
order preventing distribution shall become null and void unless
upheld by a competent judge within forty-eight hours at the
latest.
No ban shall be placed on the reporting of events, except by
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the decision of judge issued within the limits specified by law, to
ensure proper functioning of the judiciary.
Periodical and non-periodical publications may be seized
by a decision of a judge in cases of ongoing investigation or
prosecution of crimes specified by law; or by order of the
competent authority explicitly designated by law, in situations
where delay may constitute a prejudice with respect to the
protection of the indivisible integrity of the State with its territory
and nation, national security, public order or public morals and
for the prevention of crime. The competent authority issuing
the order to seize shall notify a competent judge of its decision
within twenty-four hours at the latest; the order to seize shall
become null and void unless upheld by a judge within fortyeight hours at the latest.
General provisions shall apply when seizing and confiscating
periodicals and non-periodicals for reasons of criminal
investigation and prosecution.
Periodicals published in Turkey may be temporarily
suspended by court ruling if found to contain material which
contravenes the indivisible integrity of the State with its territory
and nation, the fundamental principles of the Republic, national
security and public morals. Any publication which clearly
bears the characteristics of being a continuation of a suspended
periodical is prohibited; and shall be seized by decision of a
judge.
B. Right to publish periodicals and non-periodicals
ARTICLE 29- Publication of periodicals or non-periodicals
shall not be subject to prior authorization or the deposit of a
financial guarantee.
Submission of the information and documents specified by
law to the competent authority designated by law is sufficient
to publish a periodical. If these information and documents are
found to contravene the laws, the competent authority shall
apply to the court for suspension of publication.
The principles regarding the publication, the conditions of
publication and the financial resources of periodicals, and the
profession of journalism shall be regulated by law. The law
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shall not impose any political, economic, financial, and technical
conditions obstructing or making difficult the free dissemination
of news, thoughts, or opinions.
Periodicals shall have equal access to the means and facilities
of the State, other public corporate bodies, and their agencies.
C. Protection of printing facilities
ARTICLE 30- (As amended on May 7, 2004; Act No. 5170)
A printing house and its annexes, duly established as a press
enterprise under law, and press equipment shall not be seized,
confiscated, or barred from operation on the grounds of having
been used in a crime.
D. Right to use media other than the press owned by public
corporations
ARTICLE 31- Individuals and political parties have the right
to use mass media and means of communication other than
the press owned by public corporations. The conditions and
procedures for such use shall be regulated by law.
(As amended on October 3, 2001; Act No. 4709) The law shall
not impose restrictions preventing the public from receiving
information or accessing ideas and opinions through these
media, or preventing public opinion from being freely formed,
on the grounds other than national security, public order, or the
protection of public morals and health.
E. Right of rectification and reply
ARTICLE 32- The right of rectification and reply shall be
accorded only in cases where personal reputation and honour
is injured or in case of publications of unfounded allegation and
shall be regulated by law.
If a rectification or reply is not published, the judge decides,
within seven days of appeal by the individual involved, whether
or not this publication is required.
XI. Rights and freedoms of assembly
A. Freedom of association
ARTICLE 33- (As amended on October 3, 2001; Act No. 4709)
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Everyone has the right to form associations, or become a
member of an association, or withdraw from membership
without prior permission.
No one shall be compelled to become or remain a member of
an association.
Freedom of association may be restricted only by law on
the grounds of national security, public order, prevention of
commission of crime, public morals, public health and protecting
the freedoms of other individuals.
The formalities, conditions, and procedures to be applied in
the exercise of freedom of association shall be prescribed by law.
Associations may be dissolved or suspended from activity by
the decision of a judge in cases prescribed by law. However, where
it is required for, and a delay constitutes a prejudice to, national
security, public order, prevention of commission or continuation
of a crime, or an arrest, an authority may be vested with power
by law to suspend the association from activity. The decision of
this authority shall be submitted for the approval of the judge
having jurisdiction within twenty-four hours. The judge shall
announce his/her decision within forty-eight hours; otherwise,
this administrative decision shall be annulled automatically.
Provisions of the first paragraph shall not prevent imposition
of restrictions on the rights of armed forces and security forces
officials and civil servants to the extent that the duties of civil
servants so require.The provisions of this article shall also apply
to foundations.
B. Right to hold meetings and demonstration marches
ARTICLE 34- (As amended on October 3, 2001; Act No. 4709)
Everyone has the right to hold unarmed and peaceful
meetings and demonstration marches without prior permission.
The right to hold meetings and demonstration marches shall be
restricted only by law on the grounds of national security, public
order, prevention of commission of crime, protection of public
health and public morals or the rights and freedoms of others.
The formalities, conditions, and procedures to be applied in
the exercise of the right to hold meetings and demonstration
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marches shall be prescribed by law.
XII. Right to property
ARTICLE 35- Everyone has the right to own and inherit
property.
These rights may be limited by law only in view of public
interest.
The exercise of the right to property shall not contravene
public interest.
XIII. Provisions on the protection of rights
A. Freedom to claim rights
ARTICLE 36- (As amended on October 3, 2001; Act No. 4709)
Everyone has the right of litigation either as plaintiff or defendant
and the right to a fair trial before the courts through legitimate
means and procedures.
No court shall refuse to hear a case within its jurisdiction.
B. Principle of natural judge
ARTICLE 37- No one may be tried by any judicial authority
other than the legally designated court.
Extraordinary tribunals with jurisdiction that would in effect
remove a person from the jurisdiction of his legally designated
court shall not be established.
C. Principles relating to offences and penalties
ARTICLE 38- No one shall be punished for any act which
does not constitute a criminal offence under the law in force at
the time committed; no one shall be given a heavier penalty for
an offence other than the penalty applicable at the time when the
offence was committed.
The provisions of the above paragraph shall also apply to the
statute of limitations on offences and penalties and on the results
of conviction.
Penalties, and security measures in lieu of penalties, shall be
prescribed only by law.
No one shall be considered guilty until proven guilty in a
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court of law.
No one shall be compelled to make a statement that would
incriminate himself/herself or his/her legal next of kin, or to
present such incriminating evidence.
(Paragraph added on October 3, 2001; Act No. 4709) Findings
obtained through illegal methods shall not be considered
evidence.
Criminal responsibility shall be personal.
(Paragraph added on October 3, 2001; Act No. 4709) No one
shall be deprived of his/her liberty merely on the ground of
inability to fulfil a contractual obligation.
(Paragraph added on October 3, 2001; Act No. 4709, and
repealed on May 7, 2004; Act No. 5170)
(As amended on May 7, 2004; Act No. 5170) Neither death
penalty nor general confiscation shall be imposed as punishment.
The administration shall not impose any sanction resulting in
restriction of personal liberty. Exceptions to this provision may
be introduced by law regarding the internal order of the armed
forces.
(As amended on May 7, 2004; Act No. 5170) No citizen shall
be extradited to a foreign country because of an offence, except
under obligations resulting from being a party to the International
Criminal Court.
XIV. Right to prove an allegation
ARTICLE 39- In libel and defamation suits involving
allegations against persons in the public service in connection
with their functions or services, the defendant has the right
to prove the allegations. A plea for presenting proof shall not
be granted in any other case, unless finding out whether the
allegation is true or not would serve the public interest, or unless
the plaintiff consents.
XV. Protection of fundamental rights and freedoms
ARTICLE 40- Everyone whose constitutional rights and
freedoms have been violated has the right to request prompt
access to the competent authorities.
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(Paragraph added on October 3, 2001; Act No. 4709) The State
is obliged to indicate in its proceedings, the legal remedies and
authorities the persons concerned should apply and time limits
of the applications.
Damages incurred to any person through unlawful treatment
by public officials shall be compensated for by the State as per
the law. The state reserves the right of recourse to the official
responsible.
CHAPTER THREE
Social and Economic Rights and Duties
I. Protection of the family, and children’s rights4
ARTICLE 41- (Paragraph added on October 3, 2001; Act No.
4709) Family is the foundation of the Turkish society and based
on the equality between the spouses.
The State shall take the necessary measures and establish the
necessary organization to protect peace and welfare of the family,
especially mother and children, and to ensure the instruction of
family planning and its practice.
(Paragraph added on September 12, 2010; Act No. 5982) Every
child has the right to protection and care and the right to have
and maintain a personal and direct relation with his/her mother
and father unless it is contrary to his/her high interests.
(Paragraph added on September 12, 2010; Act No. 5982)
The State shall take measures for the protection of the children
against all kinds of abuse and violence.
II. Right and duty of education
ARTICLE 42- No one shall be deprived of the right of
education.
The scope of the right to education shall be defined and
regulated by law.
Education shall be conducted along the lines of the principles
4
152
The phrase “and children’s rights” was added by the fourth Article of Act No.
5982 dated September 12, 2010.
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and reforms of Atatürk, based on contemporary scientific and
educational principles, under the supervision and control of
the State. Educational institutions contravening these principles
shall not be established.
The freedom of education does not relieve the individual
from loyalty to the Constitution.
Primary education is compulsory for all citizens of both sexes
and is free of charge in state schools.
The principles governing the functioning of private primary
and secondary schools shall be regulated by law in keeping with
the standards set for the state schools.
(Paragraph added on February 2, 2008; Act No. 5735, and
annulled by the decision of the Constitutional Court dated June
5, 2008 numbered E. 2008/16, K. 2008/116)
The State shall provide scholarships and other means of
assistance to enable students of merit lacking financial means to
continue their education. The State shall take necessary measures
to rehabilitate those in need of special education so as to render
such people useful to society.
Training, education, research, and study are the only activities
that shall be pursued at institutions of education. These activities
shall not be obstructed in any way.
No language other than Turkish shall be taught as a mother
tongue to Turkish citizens at any institution of education.
Foreign languages to be taught in institutions of education and
the rules to be followed by schools conducting education in a
foreign language shall be determined by law. The provisions of
international treaties are reserved.
III. Public interest
A. Utilization of the coasts
ARTICLE 43- The coasts are under the authority and disposal
of the State. In the utilization of sea coasts, lake shores or river
banks, and of the coastal strip along the sea and lakes, public
interest shall be taken into consideration with priority.
The width of coasts and coastal strips according to the purpose
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of utilization and the conditions of utilization by individuals
shall be determined by law.
B. Land ownership
ARTICLE 44- The State shall take the necessary measures
to maintain and develop efficient land cultivation, to prevent
its loss through erosion, and to provide land to farmers with
insufficient land of their own, or no land. For this purpose, the
law may define the size of appropriate land units, according to
different agricultural regions and types of farming. Provision of
land to farmers with no or insufficient land shall not lead to a fall
in production, or to the depletion of forests and other land and
underground resources.
Lands distributed for this purpose shall neither be divided
nor be transferred to others, except through inheritance, and
shall be cultivated only by the farmers to whom the lands have
been distributed, and their heirs. In the event of loss of these
conditions, the principles relating to the recovery by the State of
the land thus distributed shall be prescribed by law.
C. Protection of agriculture, animal husbandry, and persons
engaged in these activities
ARTICLE 45- The State facilitates farmers and livestock
breeders in acquiring machinery, equipment and other inputs in
order to prevent improper use and destruction of agricultural
land, meadows and pastures and to increase crop and livestock
production in accordance with the principles of agricultural
planning.
The State shall take necessary measures for the utilization of
crop and livestock products, and to enable producers to be paid
the real value of their products.
D. Expropriation
ARTICLE 46- (As amended on October 3, 2001; Act No. 4709)
The State and public corporations shall be entitled, where
the public interest requires, to expropriate privately owned real
estate wholly or in part and impose administrative servitude on
it, in accordance with the principles and procedures prescribed
by law, provided that the actual compensation is paid in advance.
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The compensation for expropriation and the amount
regarding its increase rendered by a final judgment shall be paid
in cash and in advance. However, the procedure to be applied for
compensation for expropriated land for the purposes of carrying
out agriculture reform, major energy and irrigation projects, and
housing and resettlement schemes, afforestation, and protecting
the coasts, and tourism shall be regulated by law. In the cases
where the law may allow payment in instalments, the payment
period shall not exceed five years, whence payments shall be
made in equal instalments.
Compensation for the land expropriated from the small
farmer who cultivates his/her own land shall be paid in advance
in all cases.
An interest equivalent to the highest interest paid on public
claims shall apply in the instalments envisaged in the second
paragraph and expropriation costs not paid for any reason.
E. Nationalization and privatization5
ARTICLE 47- Private enterprises performing services of
public nature may be nationalized in exigencies of public interest.
Nationalization shall be carried out on the basis of real value.
The methods and procedures for calculating real value shall be
prescribed by law.
(Paragraph added on August 13, 1999; Act No. 4446) Principles
and rules concerning the privatization of enterprises and assets
owned by the State, state economic enterprises, and other public
corporate bodies shall be prescribed by law.
(Paragraph added on August 13, 1999; Act No. 4446) Those
investments and services carried out by the State, state economic
enterprises and other public corporate bodies, which could
be performed by or delegated to persons or corporate bodies
through private law contracts shall be determined by law.
IV. Freedom of work and contract
ARTICLE 48- Everyone has the freedom to work and conclude
contracts in the field of his/her choice. Establishment of private
5
The phrase “and privatization” was added by the first Article of Act No. 4446
dated August 13, 1999.
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enterprises is free.
The State shall take measures to ensure that private enterprises
operate in accordance with national economic requirements and
social objectives and in security and stability.
V. Provisions relating to labour
A. Right and duty to work
ARTICLE 49- Everyone has the right and duty to work.
(As amended on October 3, 2001; Act No. 4709) The State
shall take the necessary measures to raise the standard of living
of workers, and to protect workers and the unemployed in
order to improve the general conditions of labour, to promote
labour, to create suitable economic conditions for prevention of
unemployment and to secure labour peace.
(Repealed on October 3, 2001; Act No. 4709)
B. Working conditions and right to rest and leisure
ARTICLE 50- No one shall be required to perform work
unsuited to his/her age, sex, and capacity.
Minors, women, and physically and mentally disabled
persons, shall enjoy special protection with regard to working
conditions.
All workers have the right to rest and leisure.
Rights and conditions relating to paid weekends and holidays,
together with paid annual leave, shall be regulated by law.
C. Right to organize unions
ARTICLE 51- (As amended on October 3, 2001; Act No. 4709)
Employees and employers have the right to form unions
and higher organizations, without prior permission, and they
also possess the right to become a member of a union and to
freely withdraw from membership, in order to safeguard and
develop their economic and social rights and the interests of
their members in their labour relations. No one shall be forced to
become a member of a union or to withdraw from membership.
The right to form a union shall be solely restricted by law
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on the grounds of national security, public order, prevention of
commission of crime, public health, public morals and protecting
the rights and freedoms of others.
The formalities, conditions and procedures to be applied in
exercising the right to form union shall be prescribed by law.
(Repealed on September 12, 2010; Act No. 5982)
The scope, exceptions and limits of the rights of civil servants
who do not have a worker status are prescribed by law in line
with the characteristics of their services.
The regulations, administration and functioning of unions
and their higher bodies shall not be inconsistent with the
fundamental characteristics of the Republic and principles of
democracy.
D. Activities of unions
ARTICLE 52- (Repealed on July 23, 1995; Act No. 4121)
VI. Collective labour agreement, right to strike, and lockout
A. Rights of collective labour agreement and collective
agreement6
ARTICLE 53- Workers and employers have the right to
conclude collective labour agreements in order to regulate
reciprocally their economic and social position and conditions
of work.
The procedure to be followed in concluding collective labour
agreements shall be regulated by law.
(Paragraph added on July 23, 1995; Act No. 4121, and repealed
on September 12, 2010; Act No. 5982)
(Repealed on September 12, 2010; Act No. 5982)
(Paragraph added on September 12, 2010; Act No. 5982) Public
servants and other public employees have the right to conclude
collective agreements.
(Paragraph added on September 12, 2010; Act No. 5982) The
6
The phrase “and collective agreement” was added by the sixth Article of Act No.
5982 dated September 12, 2010.
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parties may apply to the Public Servants Arbitration Board if a
disagreement arises during the process of collective agreement.
The decisions of the Public Servants Arbitration Board shall be
final and have the force of a collective agreement.
(Paragraph added on September 12, 2010; Act No. 5982) The
scope of and the exceptions to the right of collective agreement,
the persons to benefit from and the form, procedure and entry
into force of collective agreement and the extension of the
provisions of collective agreement to those retired, as well as
the organization and operating procedures and principles of the
Public Servants Arbitration Board and other matters shall be laid
down in law.
B. Right to strike, and lockout
ARTICLE 54- Workers have the right to strike during the
collective bargaining process if a disagreement arises. The
procedures and conditions governing the exercise of this right
and the employer’s recourse to a lockout, the scope of, and the
exceptions to them shall be regulated by law.
The right to strike and lockout shall not be exercised in a
manner contrary to the rules of goodwill, to the detriment of
society, and in a manner damaging national wealth.
(Repealed on September 12, 2010; Act No. 5982)
The circumstances and workplaces in which strikes and
lockouts may be prohibited or postponed shall be regulated by
law.
In cases where a strike or a lockout is prohibited or postponed,
the dispute shall be settled by the Supreme Arbitration Board at
the end of the period of postponement. The disputing parties may
apply to the Supreme Arbitration Board by mutual agreement
at any stage of the dispute. The decisions of the Supreme
Arbitration Board shall be final and have the force of a collective
labour agreement.
The organization and functions of the Supreme Arbitration
Board shall be regulated by law.
(Repealed on September 12, 2010; Act No. 5982)
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Those who refuse to go on strike shall in no way be barred
from working at their workplace by strikers.
VII. Provision of fair wage
ARTICLE 55- Wages shall be paid in return for work.
The state shall take the necessary measures to ensure that
workers earn a fair wage commensurate with the work they
perform and that they enjoy other social benefits.
(As amended on October 3, 2001; Act No. 4709) In determining
the minimum wage, the living conditions of the workers and the
economic situation of the country shall also be taken into account.
VIII. Health, the environment and housing
A. Health services and protection of the environment
ARTICLE 56- Everyone has the right to live in a healthy and
balanced environment.
It is the duty of the State and citizens to improve the natural
environment, to protect the environmental health and to prevent
environmental pollution.
The State shall regulate central planning and functioning of
the health services to ensure that everyone leads a healthy life
physically and mentally, and provide cooperation by saving and
increasing productivity in human and material resources.
The State shall fulfil this task by utilizing and supervising the
health and social assistance institutions, in both the public and
private sectors.
In order to establish widespread health services, general
health insurance may be introduced by law.
B. Right to housing
ARTICLE 57- The State shall take measures to meet the need
for housing within the framework of a plan that takes into account
the characteristics of cities and environmental conditions, and
also support community housing projects.
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IX. Youth and sports
A. Protection of the youth
ARTICLE 58- The State shall take measures to ensure the
education and development of the youth into whose keeping
our independence and our Republic are entrusted, in the light
of positive science, in line with the principles and reforms of
Atatürk, and in opposition to ideas aiming at the destruction of
the indivisible integrity of the State with its territory and nation.
The State shall take necessary measures to protect youth from
addiction to alcohol and drugs, crime, gambling, and similar
vices, and ignorance.
B. Development of sports and arbitration7
ARTICLE 59- The State shall take measures to develop the
physical and mental health of Turkish citizens of all ages, and
encourage the spread of sports among the masses.
The state shall protect successful athletes.
(Paragraph added on March 17, 2011; Act No. 6214) The
decisions of sport federations relating to administration and
discipline of sportive activities may be challenged only through
compulsory arbitration. The decisions of Board of Arbitration
are final and shall not be appealed to any judicial authority.
X. Social security rights
A. Right to social security
ARTICLE 60- Everyone has the right to social security.
The State shall take the necessary measures and establish the
organisation for the provision of social security.
B. Persons requiring special protection in the field of social
security
ARTICLE 61- The State shall protect the widows and orphans
of martyrs of war and duty, together with invalid and war
veterans, and ensure that they enjoy a decent standard of living.
The State shall take measures to protect the disabled and
secure their integration into community life.
7
160
The phrase “and arbitration” was added by the first Article of Act No. 6214 dated
March 17, 2011.
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The aged shall be protected by the State. State assistance to,
and other rights and benefits of the aged shall be regulated by
law.
The State shall take all kinds of measures for social resettlement
of children in need of protection.
To achieve these aims the State shall establish the necessary
organizations or facilities, or arrange for their establishment.
C. Turkish citizens working abroad
ARTICLE 62- The State shall take the necessary measures to
ensure family unity, the education of the children, the cultural
needs, and the social security of Turkish citizens working abroad,
and to safeguard their ties with the home country and to help
them on their return home.
XI. Protection of historical, cultural and natural assets
ARTICLE 63- The State shall ensure the protection of the
historical, cultural and natural assets and wealth, and shall take
supportive and promotive measures towards that end.
Any limitations to be imposed on such privately owned
assets and wealth and the compensation and exemptions to be
accorded to the owners of such, because of these limitations,
shall be regulated by law.
XII. Protection of arts and artists
ARTICLE 64- The State shall protect artistic activities and
artists. The State shall take the necessary measures to protect,
promote and support works of art and artists, and encourage the
spread of appreciation for the arts.
XIII. The extent of social and economic duties of the State8
ARTICLE 65- (As amended on October 3, 2001; Act No. 4709)
The State shall fulfil its duties as laid down in the Constitution
in the social and economic fields within the capacity of its financial
resources, taking into consideration the priorities appropriate
with the aims of these duties.
8
The heading of this Article, which was stipulated as “XIII. Limits of social and
economic rights”, was amended by the twenty second Article of Act No. 4709
dated October 3, 2001.
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CHAPTER FOUR
Political Rights and Duties
I. Turkish citizenship
ARTICLE 66- Everyone bound to the Turkish State through
the bond of citizenship is a Turk.
The child of a Turkish father or a Turkish mother is a Turk.
(Sentence repealed on October 3, 2001; Act No. 4709)
Citizenship can be acquired under the conditions stipulated
by law, and shall be forfeited only in cases determined by law.
No Turk shall be deprived of citizenship, unless he/she
commits an act incompatible with loyalty to the motherland.
Recourse to the courts in appeal against the decisions and
proceedings related to the deprivation of citizenship shall not be
denied.
II. Right to vote, to be elected and to engage in political
activity.
ARTICLE 67- In conformity with the conditions set forth in
the law, citizens have the right to vote, to be elected, to engage
in political activities independently or in a political party, and to
take part in a referendum.
(As amended on July 23, 1995; Act No. 4121) Elections and
referenda shall be held under the direction and supervision of
the judiciary, in accordance with the principles of free, equal,
secret, direct, universal suffrage, and public counting of the
votes. However, the law determines applicable measures for
Turkish citizens abroad to exercise their right to vote.
(As amended on May 17, 1987; Act No. 3361, and on July 23,
1995; Act No. 4121) All Turkish citizens over eighteen years of
age shall have the right to vote in elections and to take part in
referenda.
The exercise of these rights shall be regulated by law.
(As amended on July 23, 1995; Act No. 4121, and on October
3, 2001; Act No. 4709) Privates and corporals at arms, cadets, and
convicts in penal execution institutions excluding those convicted
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of negligent offences shall not vote. The necessary measures to be
taken to ensure the safety of voting and the counting of the votes
in penal execution institutions and prisons shall be determined
by the Supreme Board of Election; such voting is held under the
on-site direction and supervision of authorized judge.
(Paragraph added on July 23, 1995; Act No. 4121) The electoral
laws shall be drawn up so as to reconcile the principles of fair
representation and stability of government.
(Paragraph added on October 3, 2001; Act No. 4709)
Amendments to the electoral laws shall not apply to the elections
to be held within one year from the entry into force date of the
amendments.
III. Provisions relating to political parties
A. Forming parties, membership and withdrawal from
membership in a party
ARTICLE 68- (As amended on July 23, 1995; Act No. 4121)
Citizens have the right to form political parties and duly join
and withdraw from them. One must be over eighteen years of
age to become a member of a party.
Political parties are indispensable elements of democratic
political life.
Political parties shall be formed without prior permission, and
shall pursue their activities in accordance with the provisions set
forth in the Constitution and laws.
The statutes and programs, as well as the activities of political
parties shall not be contrary to the independence of the State, its
indivisible integrity with its territory and nation, human rights,
the principles of equality and rule of law, sovereignty of the
nation, the principles of the democratic and secular republic; they
shall not aim to promote or establish class or group dictatorship
or dictatorship of any kind, nor shall they incite citizens to crime.
Judges and prosecutors, members of higher judicial organs
including those of the Court of Accounts, civil servants in public
institutions and organizations, other public servants who are not
considered to be labourers by virtue of the services they perform,
members of the armed forces and students who are not yet in
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higher education, shall not become members of political parties.
The membership of the teaching staff at higher education to
political parties is regulated by law. This law shall not allow those
members to assume responsibilities outside the central organs of
the political parties and it also sets forth the regulations which
the teaching staff at higher education institutions shall observe as
members of political parties in the higher education institutions.
The principles concerning the membership of students at
higher education to political parties are regulated by law.
The State shall provide the political parties with adequate
financial means in an equitable manner. The principles regarding
aid to political parties, as well as collection of dues and donations
are regulated by law.
B. Principles to be observed by political parties
ARTICLE 69- (As amended on July 23, 1995; Act No. 4121)
The activities, internal regulations and operation of political
parties shall be in line with democratic principles. The application
of these principles is regulated by law.
Political parties shall not engage in commercial activities.
The income and expenditure of political parties shall be
consistent with their objectives. The application of this rule is
regulated by law. The auditing of acquisitions, revenue and
expenditure of political parties by the Constitutional Court in
terms of conformity to law as well as the methods of audit and
sanctions to be applied in case of inconformity to law shall be
indicated in law. The Constitutional Court shall be assisted by
the Court of Accounts in performing its task of auditing. The
judgments rendered by the Constitutional Court because of the
auditing shall be final.
The dissolution of political parties shall be decided finally by
the Constitutional Court after the filing of a suit by the office of
the Chief Public Prosecutor of the High Court of Appeals.
The permanent dissolution of a political party shall be
decided when it is established that the statute and program of
the political party violate the provisions of the fourth paragraph
of Article 68.
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The decision to dissolve a political party permanently owing
to activities violating the provisions of the fourth paragraph of
Article 68 may be rendered only when the Constitutional Court
determines that the party in question has become a centre for
the execution of such activities. (Sentence added on October 3,
2001; Act No. 4709) A political party shall be deemed to become
the centre of such actions only when such actions are carried
out intensively by the members of that party or the situation is
shared implicitly or explicitly by the grand congress, general
chairpersonship or the central decision-making or administrative
organs of that party or by the group’s general meeting or group
executive board at the Grand National Assembly of Turkey or
when these activities are carried out in determination by the
abovementioned party organs directly.
(Paragraph added on October 3, 2001; Act No. 4709) Instead
of dissolving it permanently in accordance with the abovementioned paragraphs, the Constitutional Court may rule the
concerned party to be deprived of state aid wholly or in part
with respect to intensity of the actions brought before the court.
A party which has been dissolved permanently shall not be
founded under another name.
The members, including the founders of a political party
whose acts or statements have caused the party to be dissolved
permanently shall not be founders, members, directors or
supervisors in any other party for a period of five years from the
date of publication
of the Constitutional Court’s final decision with its justification
for permanently dissolving the party in the Official Gazette.
Political parties that accept aid from foreign states,
international institutions and persons and corporate bodies of
non-Turkish nationality shall be dissolved permanently.
(As amended on October 3, 2001; Act No. 4709) The
foundation and activities of political parties, their supervision
and dissolution, or their deprival of state aid wholly or in part as
well as the election expenditures and procedures of the political
parties and candidates, are regulated by law in accordance with
the above-mentioned principles.
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IV. Right to enter public service
A. Entry into public service
ARTICLE 70- Every Turk has the right to enter public service.
No criteria other than the qualifications for the office
concerned shall be taken into consideration for recruitment into
public service.
B. Declaration of assets
ARTICLE 71- Declaration of assets by persons entering
public service and the frequency of such declarations shall be
determined by law. Those serving in the legislative and executive
organs shall not be exempted from this requirement.
V. National service
ARTICLE 72- National service is the right and duty of every
Turk. The manner in which this service shall be performed, or
considered as performed, either in the armed forces or in public
service, shall be regulated by law.
VI. Duty to pay taxes
ARTICLE 73- Everyone is under obligation to pay taxes
according to his financial resources, in order to meet public
expenditure.
An equitable and balanced distribution of the tax burden is
the social objective of fiscal policy.
Taxes, fees, duties, and other such financial obligations shall
be imposed, amended, or revoked by law.
The Council of Ministers may be empowered to amend the
percentages of exemption, exceptions and reductions in taxes,
fees, duties and other such financial obligations, within the
minimum and maximum limits prescribed by law.
VII. Right of petition, right to information and appeal to the
Ombudsperson9
ARTICLE 74- (As amended on October 3, 2001; Act No. 4709)
Citizens and foreigners resident in Turkey, with the condition of
9
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The phrase,“right to information and appeal to the Ombudsperson” was added
by the eighth Article of Act No. 5982 dated September 12, 2010.
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observing the principle of reciprocity, have the right to apply in
writing to the competent authorities and to the Grand National
Assembly of Turkey with regard to the requests and complaints
concerning themselves or the public.
(As amended on October 3, 2001; Act No. 4709) The result of
the application concerning himself/herself shall be made known
to the petitioner in writing without delay.
(Repealed on September 12, 2010; Act No. 5982)
(Paragraph added on September 12, 2010; Act No. 5982)
Everyone has the right to obtain information and appeal to the
Ombudsperson.
(Paragraph added on September 12, 2010; Act No. 5982) The
Institution of the Ombudsperson established under the Grand
National Assembly of Turkey examines complaints on the
functioning of the administration.
(Paragraph added on September 12, 2010; Act No. 5982) The
Chief Ombudsperson shall be elected by the Grand National
Assembly of Turkey for a term of four years by secret ballot. In
the first two ballots, a two-thirds majority of the total number of
members, and in the third ballot an absolute majority of the total
number of members shall be required. If an absolute majority
cannot be obtained in the third ballot, a fourth ballot shall be
held between the two candidates who have received the greatest
number of votes in the third ballot; the candidate who receives
the greatest number of votes in the fourth ballot shall be elected.
(Paragraph added on September 12, 2010; Act No. 5982)
The way of exercising these rights referred to in this article,
the establishment, duties, functioning of the Ombudsperson
Institution and its proceedings after the examination and
the procedures and principles regarding the qualifications,
elections and personnel rights of the Chief Ombudsperson and
ombudspersons shall be laid down in law.
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PART THREE
Fundamental Organs of the Republic
CHAPTER ONE
Legislative Power
I. The Grand National Assembly of Turkey
A. Composition
ARTICLE 75- (As amended on May 17, 1987; Act No. 3361,
and on July 23, 1995; Act No. 4121) The Grand National Assembly
of Turkey shall be composed of five hundred and fifty deputies
elected by universal suffrage.
B. Eligibility to be a deputy
ARTICLE 76- (As amended on October 13, 2006; Act No. 5551)
Every Turk over the age of twenty-five is eligible to be a deputy.
(As amended on December 27, 2002; Act No. 4777) Persons
who have not completed primary education, who have been
deprived of legal capacity, who have not performed compulsory
military service, who are banned from public service, who have
been sentenced to a prison term totalling one year or more
excluding involuntary offences, or to a heavy imprisonment;
those who have been convicted for dishonourable offences such
as embezzlement, corruption, bribery, theft, fraud, forgery,
breach of trust, fraudulent bankruptcy; and persons convicted
of smuggling, conspiracy in official bidding or purchasing, of
offences related to the disclosure of state secrets, of involvement
in acts of terrorism, or incitement and encouragement of such
activities, shall not be elected as a deputy, even if they have been
granted amnesty.
Judges and prosecutors, members of the higher judicial
organs, lecturers at institutions of higher education, members of
the Council of Higher Education, employees of public institutions
and agencies who have the status of civil servants, other public
employees not regarded as labourers on account of the duties
they perform, and members of the armed forces shall not stand
for election or be eligible to be a deputy unless they resign from
office.
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C. Election term of the Grand National Assembly of Turkey
ARTICLE 77- (As amended on October 21, 2007; Act No.
5678) Elections for the Grand National Assembly of Turkey shall
be held every four years.
The Assembly may decide to hold a new election before the
termination of this period, or elections shall be renewed according
to the decision taken by the President of the Republic, under the
conditions set forth in the Constitution. A deputy whose term of
office expires is eligible for re-election.
In the event of a decision to hold new elections, the powers of
the Assembly shall continue until the election of a new Assembly.
D. Deferment of elections for the Grand National Assembly
of Turkey and by-elections
ARTICLE 78- If holding new elections is deemed impossible
because of war, the Grand National Assembly of Turkey may
decide to defer elections for a year.
If the grounds do not disappear, the deferment may be
repeated in compliance with the procedure for deferment.
By-elections shall be held when vacancies arise in the
membership of the Grand National Assembly of Turkey. Byelections shall be held once in every election term and cannot
be held unless thirty months elapse after the general election.
However, in cases where the number of vacant seats reaches five
per cent of the total number of seats, by-elections decided to be
held within three months.
By-elections shall not be held within one year before general
elections.
(Paragraph added on December 27, 2002; Act No. 4777) Apart
from the above specified situations, if all the seats of a province
or electoral district fall vacant in the Assembly, a by-election
shall be held on the first Sunday after ninety days following the
vacancy. The third paragraph of Article 127 of the Constitution
shall not apply for elections held per this paragraph.
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E. General administration and supervision of elections
ARTICLE 79- Elections shall be held under the general
administration and supervision of the judicial organs.
(As amended on October 21, 2007; Act No. 5678) The Supreme
Board of Election shall execute all the functions to ensure the
fair and orderly conduct of elections from the beginning to the
end, carry out investigations and take final decisions, during and
after the elections, on all irregularities, complaints and objections
concerning the electoral matters, and receive the electoral records
of the members of the Grand National Assembly of Turkey and
presidential election. No appeal shall be made to any authority
against the decisions of the Supreme Board of Election.
The functions and powers of the Supreme Board of Election
and other electoral boards shall be determined by law.
The Supreme Board of Election shall be composed of seven
regular members and four substitutes. Six of the members shall
be elected by the General Board of High Court of Appeals, and
five of the members shall be elected by the General Board of
Council of State from amongst their own members, by the vote
of the absolute majority of the total number of members through
secret ballot. These members shall elect a chairperson and a vicechairperson from amongst themselves, by absolute majority and
secret ballot.
Amongst the members elected to the Supreme Board of
Election by the High Court of Appeals and by the Council of
State, two members from each group shall be designated by lot
as substitute members. The Chairperson and Vice-Chairperson
of the Supreme Board of Election shall not take part in this
procedure.
(As amended on October 21, 2007; Act No. 5678) The general
conduct and supervision of a referendum on laws amending the
Constitution and of election of the President of the Republic
by people shall be subject to the same provisions relating to the
election of deputies.
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F. Provisions relating to membership
1. Representing the nation
ARTICLE 80- Members of the Grand National Assembly
of Turkey shall not represent their own constituencies or
constituents, but the nation as a whole.
2. Oath-taking
ARTICLE 81- Members of the Grand National Assembly of
Turkey, on assuming office, shall take the following oath:
“I swear upon my honour and integrity, before the great
Turkish Nation, to safeguard the existence and independence of
the state, the indivisible integrity of the country and the nation,
and the absolute sovereignty of the nation; to remain loyal to
the supremacy of law, to the democratic and secular republic,
and to Atatürk’s principles and reforms; not to deviate from the
ideal according to which everyone is entitled to enjoy human
rights and fundamental freedoms under the notion of peace and
prosperity in society, national solidarity and justice, and loyalty
to the Constitution.”
3. Activities incompatible with membership
ARTICLE 82- Members of the Grand National Assembly
of Turkey shall not hold office in state departments and other
public corporate bodies and their subsidiaries; in corporations
and enterprises where there is direct or indirect participation
of the State or public corporate bodies; in the enterprises and
corporations where the State and other public corporate bodies
take part directly or indirectly; in the executive and supervisory
boards of public benefit associations whose private resources of
revenues and privileges are provided by law; of the foundations
receiving subsidies from the state and enjoying tax exemption;
of the professional organizations having the characteristics of
public institutions and trade unions; and in the executive and
supervisory boards of aforementioned enterprises and
corporations which they have a share and in their higher
bodies. Nor shall they be representatives, accept any contracted
engagement of the boards stated above directly or indirectly,
serve as a representative, or perform as an arbitrator therein.
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Members of the Grand National Assembly of Turkey shall
not be entrusted with any official or private duties involving
proposal, recommendation, appointment, or approval by
the executive organ. A deputy’s acceptance of a temporary
assignment, not exceeding a period of six months, given by the
Council of Ministers on a specific matter, is subject to the decision
of the Assembly.
Other duties and activities incompatible with membership in
the Grand National Assembly of Turkey shall be regulated by
law.
4. Parliamentary immunity
ARTICLE 83- Members of the Grand National Assembly of
Turkey shall not be liable for their votes and statements during
parliamentary proceedings, for the views they express before
the Assembly, or, unless the Assembly decides otherwise, on the
proposal of the Bureau for that sitting, for repeating or revealing
these outside the Assembly.
A deputy who is alleged to have committed an offence before
or after election shall not be detained, interrogated, arrested or
tried unless the Assembly decides otherwise. This provision
shall not apply in cases where a member is caught in flagrante
delictorequiring heavy penalty and in cases subject to Article 14
of the Constitution as long as an investigation has been initiated
before the election. However, in such situations the competent
authority has to notify the Grand National Assembly of Turkey
of the case immediately and directly.
The execution of a criminal sentence imposed on a member
of the Grand National Assembly of Turkey either before or after
his election shall be suspended until he ceases to be a member;
the statute of limitations does not apply during the term of
membership.
Investigation and prosecution of a re-elected deputy shall be
subject to the Assembly’s lifting the immunity anew.
Political party groups in the Grand National Assembly
of Turkey shall not hold debates or take decisions regarding
parliamentary immunity.
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5. Loss of membership
ARTICLE 84- (As amended on July 23, 1995; Act No. 4121)
The loss of membership of a deputy who has resigned shall be
decided upon by the Plenary of the Grand National Assembly
of Turkey after the Bureau of the Grand National Assembly of
Turkey attests to the validity of the resignation.
The loss of membership, through a final judicial sentence or
deprivation of legal capacity, shall take effect after the Plenary
has been notified of the final court decision on the matter.
The loss of membership of a deputy who insists on holding a
position or carrying out a service incompatible with membership
according to Article 82 shall be decided by the Plenary through
secret voting, upon the submission of a report drawn up by the
authorized committee setting out the factual situation.
Loss of membership of a deputy who fails to attend
Parliamentary proceedings without excuse or leave of absence
for five sessions, in a period of one month shall be decided upon
by the Plenary with a majority of the total number of members
after the Bureau of the Assembly determines the situation.
(Repealed on September 12, 2010; Act No. 5982)
6. Application for annulment
ARTICLE 85- (As amended on July 23, 1995; Act No. 4121)
If the parliamentary immunity of a deputy has been lifted or
if the loss of membership has been decided according to the first,
third or fourth paragraphs of Article 84, the deputy in question
or another deputy may, within seven days from the date of the
decision of the Plenary, appeal to the Constitutional Court, for the
decision to be annulled on the grounds that it is contrary to the
Constitution, law or the Rules of Procedure. The Constitutional
Court shall make the final decision on the appeal within fifteen
days.
7. Salaries and travel allowances
ARTICLE 86- (As amended on November 21, 2001; Act No.
4720) Salaries, travel allowances and retirement procedures of
the members of the Grand National Assembly of Turkey shall
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be regulated by law. The monthly amount of the salary shall
not exceed the salary of the most senior civil servant; the travel
allowance shall not surpass half of that salary. The members of
the Grand National Assembly of Turkey and retired members
are affiliated with the Pension Fund of the Turkish Republic, and
the affiliation of those whose membership have expired continue
upon their request.
(As amended on November 21, 2001; Act No. 4720) The salaries
and allowances to be paid to the members of the Grand National
Assembly of Turkey shall not necessitate the termination of
pensions and similar payments entitled by the Pension Fund of
the Turkish Republic.
A maximum of three months’ salaries and travel allowances
may be paid in advance.
II. Duties and powers of the Grand National Assembly of
Turkey
A. General
ARTICLE 87- (As amended on October 3, 2001; Act No. 4709,
and on May 7, 2004; Act No. 5170) The duties and powers of
the Grand National Assembly of Turkey are to enact, amend,
and repeal laws; to scrutinize the Council of Ministers and the
ministers; to authorize the Council of Ministers; to issue decrees
having the force of law on certain matters; to debate and adopt the
budget bills and final accounts bills; to decide to issue currency
and declare war; to approve the ratification of international
treaties, to decide with the majority of three-fifths of the Grand
National Assembly of Turkey to proclaim amnesty and pardon;
and to exercise the powers and carry out the duties envisaged in
the other articles of the Constitution.
B. Introduction and deliberation of bills
ARTICLE 88- The Council of Ministers and deputies are
empowered to introduce bills.
The procedure and principles regarding the deliberation
of government bills and private members’ bills in the Grand
National Assembly of Turkey shall be regulated by the Rules of
Procedure.
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C. Promulgation of laws by the President of the Republic
ARTICLE 89- The President of the Republic shall promulgate
the laws adopted by the Grand National Assembly of Turkey
within fifteen days.
(As amended on October 3, 2001; Act No. 4709) The
President of the Republic shall send the laws that he deems, in
whole or in part, unsuitable for promulgation, along with the
justification, back to the Grand National Assembly of Turkey
for reconsideration in the same period. In case of being partially
deemed unsuitable by the President of the Republic, the Grand
National Assembly of Turkey may discuss only those articles.
Budget laws shall not be subject to this provision.
If the Grand National Assembly of Turkey adopts the law sent
back for reconsideration without any amendment, the law shall
be promulgated by the President of the Republic; if the Assembly
makes a new amendment to the law, the President of the Republic
may send the amended law back for reconsideration.
Provisions relating to constitutional amendments are
reserved.
D. Ratification of international treaties
ARTICLE 90- The ratification of treaties concluded with
foreign states and international organisations on behalf of the
Republic of Turkey shall be subject to adoption by the Grand
National Assembly of Turkey by a law approving the ratification.
Agreements regulating economic, commercial or technical
relations, and covering a period of no more than one year, may
be put into effect through promulgation, provided they do not
entail any financial commitment by the State, and provided they
do not interfere with the status of individuals or with the property
rights of Turks abroad. In such cases, these agreements shall be
brought to the knowledge of the Grand National Assembly of
Turkey within two months of their promulgation.
Implementation agreements based on an international
treaty, and economic, commercial, technical, or administrative
agreements, which are concluded depending on the authorization
as stated in the law, shall not require approval of the Grand
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National Assembly of Turkey. However, economic, commercial
agreements or agreements relating to the rights of individuals
concluded under the provision of this paragraph shall not be put
into effect unless promulgated.
Agreements resulting in amendments to Turkish laws shall be
subject to the provisions of the first paragraph.
International agreements duly put into effect have the force
of law. No appeal to the Constitutional Court shall be made
with regard to these agreements, on the grounds that they are
unconstitutional. (Sentence added on May 7, 2004; Act No. 5170)
In the case of a conflict between international agreements, duly
put into effect, concerning fundamental rights and freedoms and
the laws due to differences in provisions on the same matter, the
provisions of international agreements shall prevail.
E. Authorization to issue decrees having the force of law
ARTICLE 91- The Grand National Assembly of Turkey may
empower the Council of Ministers to issue decrees having the
force of law. However, with the exception of martial law and
states of emergency, the fundamental rights, individual rights
and duties included in the first and second chapters and the
political rights and duties listed in the fourth chapter of the
second part of the Constitution, shall not be regulated by decrees
having the force of law.
The empowering law shall define the purpose, scope, and
principles of the decree having the force of law, the operative
period of the empowering law, and whether more than one
decree will be issued within the same period.
Resignation or fall of the Council of Ministers, or expiration of
the legislative term shall not cause the termination of the power
conferred for the given period.
When approving a decree having the force of law by the Grand
National Assembly of Turkey before the end of the prescribed
period, it shall also be stated whether the power has terminated
or will continue until the expiry of the period.
Provisions related to issuing decree having the force of
law issued by the Council of Ministers meeting under the
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chairpersonship of the President of the Republic in time of
martial law or states of emergency, are reserved.
Decrees having the force of law shall come into force on the
day of their publication in the Official Gazette. However, a later
date may be indicated in the decree as the date of entry into force.
Decrees shall be submitted to the Grand National Assembly
of Turkey on the day of their publication in the Official Gazette.
Empowering laws, and decrees having the force of law which
are based on them, shall be debated in the committees and in the
Plenary of the Grand National Assembly of Turkey with priority
and urgency.
Decrees not submitted to the Grand National Assembly of
Turkey on the day of their publication shall cease to have effect
on that day and decrees rejected by the Grand National Assembly
of Turkey shall cease to have effect on the day of publication of
the resolution in the Official Gazette. The amended provisions of
the decrees that are approved as amended shall go into force on
the day of their publication in the Official Gazette.
F. Declaration of state of war and authorization to deploy
the armed forces
ARTICLE 92- The power to authorize the declaration of a
state of war in cases deemed legitimate by international law and
except where required by international treaties to which Turkey
is a party or by the rules of international courtesy to send the
Turkish Armed Forces to foreign countries and to allow foreign
armed forces to be stationed in Turkey, is vested in the Grand
National Assembly of Turkey.
If the country is subjected to sudden armed aggression, while
the Grand National Assembly of Turkey is adjourned or in recess,
and it thus becomes imperative to decide immediately on the use
of the armed forces, the President of the Republic can decide on
the use of the Turkish Armed Forces.
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III. Provisions relating to the activities of the Grand
National Assembly of Turkey
A. Convening and recess
ARTICLE 93- (As amended on July 23, 1995; Act No. 4121)
The Grand National Assembly of Turkey shall convene of its
own accord on the first day of October each year.
The Assembly may be in recess for a maximum of three
months in a legislative year; during adjournment or recess it may
be summoned by the President of the Republic either on his own
initiative or at the request of the Council of Ministers.
The Speaker of the Assembly may also summon the Assembly
either on his own initiative or at the written request of one fifth
of the members.
The Grand National Assembly of Turkey convened during
an adjournment or recess shall not adjourn or go into recess
again before having given priority consideration to the matter
requiring the summons.
B. Bureau of the Assembly
ARTICLE 94- The Bureau of the Assembly of the Grand
National Assembly of Turkey shall be composed of the Speaker,
vicespeakers, secretaries, and quaestors elected from among
members of the Assembly.
The Bureau of the Assembly shall be so composed as to ensure
proportionate representation to the number of members of each
political party group in the Assembly. Political party groups
shall not nominate candidates for the Office of the Speaker.
(As amended on September 12, 2010; Act No. 5982) Two
elections to the Bureau of the Grand National Assembly of
Turkey shall be held in one legislative term. The term of office of
those elected in the first round is two years and the term of office
of those elected in the second round shall continue until the end
of that legislative term. (As amended on October 3, 2001; Act No.
4709) The candidates from among the members of the Assembly
for the Office of the Speaker of the Grand National Assembly of
Turkey shall be announced, within five days of the convening
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of the Assembly, to the Bureau of the Assembly. Election of the
Speaker shall be held by secret ballot. In the first two ballots, a
two-thirds majority of the total number of members, and in the
third ballot an absolute majority of the total number of members
is required. If an absolute majority cannot be obtained in the third
ballot, a fourth ballot shall be held between the two candidates
who have received the highest number of votes in the third
ballot; the member who receives the greatest number of votes in
the fourth ballot shall be elected as Speaker. The election of the
Speaker shall be completed within five days after the expiry of
the period for the nomination of candidates.
The quorum required for election, the number of ballots
and its procedure, the number of vice-speakers, secretaries and
quaestors, shall be determined by the Rules of Procedure.
The Speaker and vice-speakers of the Grand National
Assembly of Turkey cannot participate, within or outside the
Assembly, in the activities of the political party or party group in
which they are a member; nor in parliamentary debates, except
in cases required by their functions; the Speaker and the vicespeaker who is presiding over the session shall not vote.
C. Rules of Procedure, political party groups and security
affairs
ARTICLE 95- The Grand National Assembly of Turkey shall
carry out its activities in accordance with the provisions of the
Rules of Procedure drawn up by itself.
The provisions of the Rules of Procedure shall be drawn up in
such a way as to ensure the participation of each political party
group in all the activities of the Assembly in proportion to its
number of members. Political party groups shall be constituted
only if they have at least twenty members.
All security and administrative services of the Grand National
Assembly of Turkey regarding all buildings, installations,
annexes and lands shall be organised and directed by the Office
of the Speaker of the Assembly. Sufficient forces to ensure
security and other such services shall be allocated to the Office of
the Speaker of the Assembly by the relevant authorities.
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D. Quorums and majority for decisions
ARTICLE 96- (As amended on October 21, 2007; Act No. 5678)
The Grand National Assembly of Turkey shall convene with at
least one-third of the total number of members for all its affairs,
including elections it holds. Unless otherwise stipulated in the
Constitution, the Grand National Assembly of Turkey shall take
decisions by an absolute majority of those present; however, the
majority for decision can, under no circumstances, be less than
one plus a quarter of the total number of members.
Members of the Council of Ministers may delegate a minister
to vote on their behalf in sessions of the Grand National Assembly
of Turkey that they are unable to attend. However, a minister
shall not cast more than two votes including his/her own.
E. Publicity and publication of debates
ARTICLE 97- Debates held in the Plenary of the Grand
National Assembly of Turkey shall be public and shall be
published verbatim in the Journal of Minutes.
The Grand National Assembly of Turkey may hold closed
sittings in accordance with the provisions of the Rules of
Procedure; the publication of debates of such sittings shall be
subject to the decision of the Grand National Assembly of Turkey.
Public debates in the Assembly may be freely published
through all means, unless a decision to the contrary is adopted
by the Assembly upon a proposal of the Bureau.
IV. Ways of obtaining information and supervision by the
Grand National Assembly of Turkey
A. General
ARTICLE 98- The Grand National Assembly of Turkey
shall exercise its supervisory power by means of question,
parliamentary inquiry, general debate, censure and parliamentary
investigations.
A question is a request for information addressed to the
Prime Minister or ministers to be answered orally or in writing
on behalf of the Council of Ministers.
A parliamentary inquiry is an examination conducted to
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obtain information on a specific subject.
A general debate is the consideration of a specific subject
relating to the community and the activities of the State at the
Plenary of the Grand National Assembly of Turkey.
The form of presentation, content, and scope of the motions
concerning question, parliamentary inquiry and general debate,
and the procedures for answering, debating and inquiring them,
shall be regulated by the Rules of Procedure.
B. Censure
ARTICLE 99- A motion of censure shall be tabled on behalf
of a political party group or by the signature of at least twenty
deputies.
A motion of censure shall be printed and circulated to
members within three days after being tabled; inclusion of a
motion of censure on the agenda shall be debated within ten
days of its circulation. In this debate, only one of the signatories
to the motion, one deputy on behalf of each political party group,
and the Prime Minister or one minister on behalf of the Council
of Ministers, may take the floor.
Together with the decision to include the motion of censure
on the agenda, the date for debating it shall also be decided;
however, the debate on censure shall not take place sooner than
two days after the decision to place it on the agenda and shall not
be deferred more than seven days.
During the debates on the censure, a motion of no-confidence
with a statement of reasons tabled by deputies or party groups,
or the request for a vote of confidence by the Council of Ministers
shall be put to the vote only after a full day has elapsed.
In order to unseat the Council of Ministers or a minister, a
vote of an absolute majority of the total number of members is
required in the voting, in which only the votes of no-confidence
shall be counted.
Other provisions concerning censure, as long as they are
consistent with the smooth functioning of the Assembly and
do comply with the above-mentioned principles, shall be
determined in the Rules of Procedure.
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C. Parliamentary investigation
ARTICLE 100- (As amended on October 3, 2001; Act No.
4709) Parliamentary investigation may be requested against the
Prime Minister or ministers through a motion tabled by at least
one-tenth of the total number of members of the Grand National
Assembly of Turkey. The Assembly shall debate and decide on
this request through secret ballot within one month at the latest.
If a decision to launch an investigation is made, the
investigation shall be conducted by a committee of fifteen
members, chosen by lot, for each political party in the Assembly,
separately from among three times candidates nominated
for each seat reserved to party groups in proportion to their
strength. The committee shall submit its report on the result
of the investigation to the Assembly within two months. If the
investigation is not completed within the time allotted, the
committee shall be granted a further and final period of two
months. (Sentence added on October 3, 2001; Act No. 4709) At
the end of this period, the report shall be submitted to the Office
of the Speaker of the Grand National Assembly of Turkey.
(As amended on October 3, 2001; Act No. 4709) Following
its submission to the Office of the Speaker, the report shall be
distributed to the members within ten days and debated within
ten days after its distribution and, if deemed necessary, a decision
may be taken to bring the person involved before the Supreme
Court. The decision to bring a person before the Supreme Court
shall be taken through a secret ballot only by an absolute majority
of the total number of members.
Political party groups in the Assembly shall not hold
discussions or take decisions regarding parliamentary
investigations.
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CHAPTER TWO
The Executive Power
I. President of the Republic
A. Qualifications and impartiality
ARTICLE 101- (As amended on October 21, 2007; Act No.
5678)The President of the Republic shall be elected by the public
from among the members of the Grand National Assembly of
Turkey who are over forty years of age and have completed
higher education, or from among Turkish citizens who fulfil
these requirements and are eligible to be deputies.
The President of the Republic’s term of office shall be five
years. A person may be elected as President of the Republic for
two terms at most.
Nomination of a candidate for the Presidency from among
the members of the Grand National Assembly of Turkey or
from outside of the Assembly shall require a written proposal of
twenty deputies. Furthermore, political parties with more than
ten percent of the valid votes in sum in the latest parliamentary
elections may nominate a joint candidate.
If the President-elect is a member of a party, his/her relationship
with his party shall be severed and his/her membership of the
Grand National Assembly of Turkey shall cease.
B. Election
ARTICLE 102- (As amended on October 21, 2007; Act No.
5678)
The election of the President of the Republic shall be concluded
within sixty days before the term of office of the incumbent
President of the Republic expires; or within sixty days after the
presidency falls vacant for any reason.
In presidential elections conducted by universal suffrage, the
candidate who receives the absolute majority of the valid votes
shall be elected President of the Republic. If this majority cannot
be obtained in the first ballot, the second ballot shall be held on
the second Sunday following this ballot. The two candidates
who receive the greatest number of votes in first ballot run for
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the second ballot, and the candidate who receives majority of
valid votes shall be elected President of the Republic.
If one of the candidates who gains the right to run for the second
ballot dies or loses his/her eligibility, the second ballot shall be
conducted by substituting the vacant candidacy in conformity
with the ranking in the first ballot. If only one candidate
remains for the second ballot, this ballot shall be conducted as
a referendum. If the candidate receives the majority of the valid
votes, he/she shall be elected President of the Republic.
The term of office of the incumbent President of the Republic
shall continue until the President-elect takes the office.
The procedures and principles concerning presidential
elections shall be regulated by law.
C. Oath-taking
ARTICLE 103- On assuming office, the President of the
Republic shall take the following oath before the Grand National
Assembly of Turkey:
“In my capacity as President of the Republic, I swear upon my
honour and integrity before the Great Turkish Nation and before
history to safeguard the existence and independence of the state,
the indivisible integrity of the country and the nation, and the
absolute sovereignty of the nation, to abide by the Constitution,
the rule of law, democracy, the principles and reforms of Atatürk,
and the principles of the secular republic, not to deviate from
the ideal according to which everyone is entitled to enjoy human
rights and fundamental freedoms under conditions of national
peace and prosperity and in a spirit of national solidarity and
justice, and do my utmost to preserve and exalt the glory and
honour of the Republic of Turkey and perform without bias the
functions that I have assumed.”
D. Duties and powers
ARTICLE 104- The President of the Republic is the head of
the State. In this capacity, he/she shall represent the Republic of
Turkey and the unity of the Turkish Nation; he/she shall ensure
the implementation of the Constitution, and the regular and
harmonious functioning of the organs of the State.
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To this end, the duties he/she shall perform, and the powers
he/she shall exercise, in accordance with the conditions stipulated
in the relevant articles of the Constitution are as follows:
a) Those relating to legislation:
To deliver, if he/she deems it necessary, the opening speech
of the Grand National Assembly of Turkey on the first day of the
legislative year,
To summon the Grand National Assembly of Turkey, when
necessary,
To promulgate laws,
To send laws back to the Grand National Assembly of Turkey
to be reconsidered,
To submit to referendum, if he/she deems it necessary, laws
regarding amendment to the Constitution.
To appeal to the Constitutional Court for the annulment part
of whole or certain provisions of laws, decrees having the force of
law and the Rules of Procedure of the Grand National Assembly
of Turkey on the grounds that they are unconstitutional in form
or in content,
To decide to renew elections for the Grand National Assembly
of Turkey.
b) Those relating the executive:
To appoint the Prime Minister and to accept his/her
resignation,
To appoint and dismiss ministers on the proposal of the Prime
Minister,
To preside over the Council of Ministers or to call the Council
of Ministers to meet under his/her chairpersonship whenever he/
she deems it necessary,
To accredit representatives of the Turkish State to foreign states
and to receive the representatives of foreign states appointed to
the Republic of Turkey,
To ratify and promulgate international treaties,
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To represent the Office of Commander-in-Chief of the Turkish
Armed Forces on behalf of the Grand National Assembly of
Turkey,
To decide on the use of the Turkish Armed Forces,
To appoint the Chief of the General Staff,
To call the National Security Council to meet,
To preside over the National Security Council,
To proclaim martial law or state of emergency, and to issue
decrees having the force of law, by the decisions of the Council
of Ministers under his/her chairpersonship,
To sign decrees,
To remit or commute the sentences imposed on certain
individuals, on grounds of chronic illness, disability or old age,
To appoint the members and the chairperson of the State
Supervisory Council,
To instruct the State Supervisory Council to carry out
inquiries, investigations and inspections,
To appoint the members of the Council of Higher Education,
To appoint president of universities.
c) Those relating to the judiciary:
To appoint the members of the Constitutional Court,
onefourth of the members of the Council of State, the Chief
Public Prosecutor and the Deputy Chief Public Prosecutor of the
High Court of Appeals, the members of the High Military Court
of Appeals, the members of High Military Administrative Court
and the members of the High Council of Judges and Prosecutors.
The President of the Republic shall also exercise powers
of election and appointment, and perform the other duties
conferred on him/her by the Constitution and laws.
E. Presidential accountability and non-accountability
ARTICLE 105- All presidential decrees, except those which
the President of the Republic is empowered to enact individually
without the signatures of the Prime Minister and the minister
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concerned in accordance with the provisions of the Constitution
and other laws, shall be signed by the Prime Minister and the
ministers concerned; the Prime Minister and the minister
concerned shall be accountable for these decrees.
No appeal shall bemade to any judicial authority, including
the Constitutional Court, against the decisions and orders signed
by the President of the Republic on his/her own initiative.
The President of the Republic may be impeached for high
treason on the proposal of at least one-third of the total number
of members of the Grand National Assembly of Turkey, and
by the decision of at least three-fourths of the total number of
members.
F. Acting for the President of the Republic
ARTICLE 106- In the event of a temporary absence of the
President of the Republic on account of illness, travel abroad
or similar circumstances, until the President of the Republic
resumes his/her functions, and in the event that the Presidency
falls vacant as a result of death or resignation or for any other
reason, until the election of a new President of the Republic, the
Speaker of the Grand National Assembly of Turkey shall serve as
Acting President of the Republic and exercise the powers of the
President of the Republic.
G. General Secretariat of the President of the Republic
ARTICLE 107- The establishment, the principles of
organization and functioning, and the personnel appointment
proceedings of General Secretariat of the Presidency shall be
regulated by presidential decrees.
H. State Supervisory Council
ARTICLE 108- The State Supervisory Council which shall
be attached to the Office of the Presidency of the Republic, with
the purpose of ensuring the lawfulness, regular and efficient
functioning and improvement of administration, conduct all
inquiries, investigations and inspections of all public bodies
and organizations, all enterprises in which those public bodies
and organizations share more than half of the capital, public
professional organizations, employers’ associations and
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labour unions at all levels, and public welfare associations and
foundations, upon the request of the President of the Republic.
The armed forces and judicial organs are outside the
jurisdiction of the State Supervisory Council.
The members and the Chairperson from among the
members of the State Supervisory Council shall be appointed
by the President of the Republic from among those with the
qualifications set forth in the law.
The functioning of the State Supervisory Council, the term
of office of its members, and other personnel matters relating to
their status shall be regulated by law.
II. Council of Ministers
A. Formation
ARTICLE 109- The Council of Ministers shall consist of the
Prime Minister and the ministers.
The Prime Minister shall be appointed by the President of
the Republic from among the members of the Grand National
Assembly of Turkey.
The ministers shall be nominated by the Prime Minister and
appointed by the President of the Republic, from among the
members of the Grand National Assembly of Turkey, or from
among those eligible to be elected as deputies; and they can be
dismissed, by the President of the Republic, upon the proposal of
the Prime Minister when deemed necessary.
B. Taking office and vote of confidence
ARTICLE 110- The complete list of the Council of Ministers
shall be submitted to the Grand National Assembly of Turkey. If
the Grand National Assembly of Turkey is in recess, it shall be
summoned.
The program of the Council of Ministers shall be read out by
the Prime Minister or by one of the ministers before the Grand
National Assembly of Turkey within a week, at the latest, of the
formation of the Council of Ministers and a vote of confidence
shall be held. Debate on the vote of confidence shall begin after
two complete days elapse from the date the program is read out
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and the vote shall be held after one complete day elapses from
the end of debate.
C. Vote of confidence while in office
ARTICLE 111- If the Prime Minister deems it necessary,
he/she may ask for a vote of confidence in the Grand National
Assembly of Turkey after discussing the matter in the Council of
Ministers.
The request for a vote of confidence shall not be debated
before one complete day elapses from the time of its submission
to the Grand National Assembly of Turkey and shall not be put
to the vote until one complete day elapses after debate.
A request for a vote of confidence shall be rejected only by an
absolute majority of the total number of members.
D. Functions and political responsibilities
ARTICLE 112- The Prime Minister, as chairperson of
the Council of Ministers, shall ensure cooperation among
the ministries, and supervise the implementation of the
government’s general policy. The Council of Ministers has
collective responsibility for the implementation of this policy.
Each minister shall be responsible to the Prime Minister, for
the conduct of affairs under his/her jurisdiction, and for the acts
and activities of his/her subordinates.
The Prime Minister shall ensure that the ministers exercise
their functions in accordance with the Constitution and the laws
and shall take corrective measures to this end.
The members of the Council of Ministers who are not deputies
shall take their oaths before the Grand National Assembly of
Turkey, as written in Article 81, and during their term of office as
ministers, they shall abide by the rules and conditions to which
deputies are subject and shall enjoy parliamentary immunity.
They receive the same salaries and allowances as members of the
Grand National Assembly of Turkey.
E. The formation of ministries, and ministers
ARTICLE 113- The formation, abolition, functions, powers
and organisation of the ministries shall be regulated by law.
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A minister may temporarily act for another if a ministerial
position becomes vacant or if the minister is on leave or excused.
However, a minister shall not act for more than one minister.
A minister who is brought before the Supreme Court by
decision of the Grand National Assembly of Turkey, shall lose
his/her ministerial status. If the Prime Minister is brought before
the Supreme Court, the Government shall be considered to have
resigned.
If a ministerial position becomes vacant for any reason, a new
appointment shall be made within fifteen days at the latest.
F. Provisional Council of Ministers during elections
ARTICLE 114- The Ministers of Justice, Internal Affairs,
and Transportation shall resign prior to general elections to the
Grand National Assembly of Turkey. Three days before elections
begin or in the event of a decision to hold new elections before
the end of the election term, within five days of this decision, the
Prime Minister shall appoint independent persons from within
or outside the Grand National Assembly of Turkey to these
ministries.
In the event of a decision to hold new elections under Article
116, the Council of Ministers shall resign and the President of the
Republic shall appoint a Prime Minister to form a provisional
Council of Ministers.
The provisional Council of Ministers shall be composed of
members of the political party groups in proportion to their
parliamentary membership with the exception of the ministers
of Justice, Internal Affairs, and Transportation, who shall be
independent persons appointed from within or outside the
Grand National Assembly of Turkey.
The number of members to be taken from political party
groups shall be determined by the Speaker of the Grand National
Assembly of Turkey, and shall be communicated to the Prime
Minister. Party members who do not accept the ministerial posts
offered to them or who subsequently resign shall be replaced by
independent persons from within or outside the Grand National
Assembly of Turkey.
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The provisional Council of Ministers shall be formed within
five days of publication in the Official Gazette of the decision to
hold new elections.
The provisional Council of Ministers shall not be subject to a
vote of confidence.
The provisional Council of Ministers shall remain in office
for the duration of the elections and until the new Assembly
convenes.
G. Regulations
ARTICLE 115- The Council of Ministers may issue regulations
indicating the implementation of laws or designating matters
ordered by law, as long as they do not conflict with laws, and are
examined by the Council of State.
Regulations shall be signed by the President of the Republic
and promulgated in the same manner as laws.
H. Renewal of elections to the Grand National Assembly of
Turkey by the President of the Republic
ARTICLE 116- In cases where the Council of Ministers fails
to receive a vote of confidence under Article 110 or falls by a
vote of no-confidence under Article 99 or 111, if a new Council
of Ministers cannot be formed within forty-five days or fails to
receive a vote of confidence, the President of the Republic, in
consultation with the Speaker of the Grand National Assembly
of Turkey, may decide to renew the elections.
If a new Council of Ministers cannot be formed within fortyfive days of the resignation of the Prime Minister without being
defeated by a vote of no-confidence or also within forty-five days
of elections for the Bureau of the newly elected Grand National
Assembly of Turkey, the President of the Republic may likewise,
in consultation with the Speaker of the Grand National Assembly
of Turkey, decide to renew the elections.
The decision on the renewal of elections shall be published in
the Official Gazette and the election shall be held.
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I. National defence
1. Offices of Commander-in-Chief and Chief of the
General Staff
ARTICLE 117- The Office of Commander-in-Chief is
inseparable from the spiritual existence of the Grand National
Assembly of Turkey and is represented by the President of the
Republic.
The Council of Ministers shall be responsible to the Grand
National Assembly of Turkey for national security and for the
preparation of the armed forces for the defence of the country.
The Chief of the General Staff is the commander of the armed
forces, and in time of war, exercises the duties of Commander-in
Chief on behalf of the President of the Republic.
The Chief of the General Staff shall be appointed by the
President of the Republic following the proposal of the Council
of Ministers. His/her duties and powers shall be regulated by
law. The Chief of the General Staff shall be responsible to the
Prime Minister in the exercise of his/her duties and powers.
The functional relations of the Ministry of National Defence
with the Chief of the General Staff and the Commanders of the
Armed Forces and its scope of jurisdiction shall be regulated by
law.
2. National Security Council
ARTICLE 118- (As amended on October 3, 2001; Act No.
4709) The National Security Council shall be composed of the
Prime Minister, the Chief of the General Staff, deputy prime
ministers, ministers of Justice, National Defence, Internal Affairs,
and Foreign Affairs, the commanders of the Land, Naval and Air
Forces and the General Commander of the Gendarmerie, under
the chairpersonship of the President of the Republic.
Depending on the particulars of the agenda, ministers and
other persons concerned may be invited to meetings of the
Council and their views heard.
(As amended on October 3, 2001; Act No. 4709) The National
Security Council shall submit to the Council of the Ministers
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the advisory decisions taken with regard to the formulation,
determination, and implementation of the national security
policy of the State and its views on ensuring the necessary
coordination. The Council of Ministers shall evaluate decisions
of the National Security Council concerning the measures that
it deems necessary for the preservation of the existence and
independence of the State, the integrity and indivisibility of the
country, and the peace and security of society.
The agenda of the National Security Council shall be drawn
up by the President of the Republic taking into account the
proposals of the Prime Minister and the Chief of the General
Staff.
In the absence of the President of the Republic, the National
Security Council shall convene under the chairpersonship of the
Prime Minister.
The organization and duties of the General Secretariat of the
National Security Council shall be regulated by law.
III. Extraordinary administration procedures
A. States of emergency
1. Declaration of state of emergency because of natural
disaster or serious economic crisis
ARTICLE 119- In the event of natural disaster, dangerous
epidemic diseases or a serious economic crisis, the Council of
Ministers meeting under the chairpersonship of the President of
the Republic may declare a state of emergency in one or more
regions or throughout the country for a period not exceeding six
months.
2. Declaration of state of emergency because of widespread
acts of violence and serious deterioration of public order
ARTICLE 120- In the event of serious indications of
widespread acts of violence aimed at the destruction of the
free democratic order established by the Constitution or of
fundamental rights and freedoms, or serious deterioration of
public order because of acts of violence, the Council of Ministers,
meeting under the chairpersonship of the President of the
Republic, after consultation with the National Security Council,
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may declare a state of emergency in one or more regions or
throughout the country for a period not exceeding six months.
3. Rules regarding the states of emergency
ARTICLE 121- In the event of a declaration of a state of
emergency under the provisions of Articles 119 and 120 of the
Constitution, this decision shall be published in the Official
Gazette and shall be immediately submitted to the Grand
National Assembly of Turkey for approval. If the Grand
National Assembly of Turkey is in recess, it shall be immediately
assembled. The Assembly may alter the duration of the state
of emergency, may extend the period for a maximum of four
months each time at the request of the Council of Ministers, or
may lift the state of emergency.
The financial, material and labour obligations which are to
be imposed on citizens in the event of the declaration of state of
emergency under Article 119 and the manner how fundamental
rights and freedoms shall be restricted or suspended in line
with the principles of Article 15, how and by what means the
measures necessitated by the situation shall be taken, what sorts
of powers shall be conferred on public servants, what kinds of
changes shall be made in the status of officials as long as they are
applicable to each kinds of states of emergency separately, and
the extraordinary administration procedures, shall be regulated
by the Act on State of Emergency.
During the state of emergency, the Council of Ministers,
meeting under the chairpersonship of the President of the
Republic, may issue decrees having the force of law on matters
necessitated by the state of emergency. These decrees shall be
published in the Official Gazette, and shall be submitted to
the Grand National Assembly of Turkey on the same day for
approval; the time limit and procedure for their approval by the
Assembly shall be indicated in the Rules of Procedure.
B. Martial law, mobilization and state of war
ARTICLE 122- The Council of Ministers, under the
chairpersonship of the President of the Republic, after
consultation with the National Security Council, may declare
martial law in one or more regions or throughout the country
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for a period not exceeding six months in the event of widespread
acts of violence which are aimed at the destruction of the free
democratic order or the fundamental rights and freedoms
embodied in the Constitution and more dangerous than the
cases necessitating a state of emergency; or in the event of war,
the emergence of a situation necessitating war, an uprising, or
the spread of violent and strong rebellious actions against the
motherland and the Republic, or widespread acts of violence
of internal or external origin threatening the indivisibility of
the country and the nation. This decision shall be published
immediately in the Official Gazette, and shall be submitted for
approval to the Grand National Assembly of Turkey, on the
same day. If the Grand National Assembly of Turkey is not in
session, it shall be immediately assembled. The Grand National
Assembly of Turkey may, when it deems necessary, reduce or
extend the period of martial law or lift it.
During the period of martial law, the Council of Ministers,
meeting under the chairpersonship of the President of the
Republic, may issue decrees having the force of law on matters
necessitated by the state of martial law.
These decrees shall be published in the Official Gazette and
shall be submitted for approval to the Grand National Assembly
of Turkey on the same day. The time limit and procedure for
their approval by the Assembly shall be indicated in the Rules
of Procedure.
Extension of the period of martial law, for a maximum of four
months each time, shall require a decision by the Grand National
Assembly of Turkey. In the event of state of war, the limit of four
months does not apply.
In the event of martial law, mobilization and state of war,
the provisions to be applied and conduct of affairs, relations
with the administration, the manner in which freedoms are to
be restricted or suspended and the obligations to be imposed
on citizens in a state of war or in the event of emergence of a
situation necessitating war, shall be regulated by law.
The martial law commanders shall exercise their duties under
the authority of the Chief of the General Staff.
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IV. Administration
A. Fundamentals of the administration
1. Integrity of the administration and public legal personality
ARTICLE 123- The administration forms a whole, with regard
to its constitution and functions, and shall be regulated by law.
The organization and functions of the administration are
based on the principles of centralization and decentralization.
Public corporate bodies shall be established only by law, or
by the authority expressly granted by law.
2. By-laws
ARTICLE 124- The Prime Ministry, the ministries, and
public corporate bodies may issue by-laws in order to ensure
the implementation of laws and regulations relating to their
jurisdiction, as long as they are not contrary to these laws and
regulations.
The law shall designate which by-laws are to be published in
the Official Gazette.
B. Judicial review
ARTICLE 125- Recourse to judicial review shall be available
against all actions and acts of administration. (Sentences added
on August 13, 1999; Act No. 4446) In concession, conditions and
contracts concerning public services and national or international
arbitration may be suggested to settle the disputes arising from
them. Only those disputes involving an element of foreignness
may be submitted to international arbitration.
The acts of the President of the Republic in his/her own
competence, and the decisions of the Supreme Military Council
are outside the scope of judicial review. (Sentence added on
September 12, 2010; Act No. 5982) Nonetheless, recourse to
judicial review shall be available against all decisions taken by
the Supreme Military Council regarding expulsion from the
armed forces except acts regarding promotion and retiring due
to lack of tenure.
Time limit to file a lawsuit against an administrative act
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begins from the date of written notification of the act.
(As amended on September 12, 2010; Act No. 5982) Judicial
power is limited to the review of the legality of administrative
actions and acts, and in no case may it be used as a review of
expediency. No judicial ruling shall be passed which restricts the
exercise of the executive function in accordance with the forms
and principles prescribed by law, which has the quality of an
administrative action and act, or which removes discretionary
powers.
A justified decision regarding the suspension of execution of
an administrative act may be issued, should its implementation
result in damages which are difficult or impossible to compensate
for and, at the same time, the act would be clearly unlawful.
The law may restrict the issuing of an order on suspension of
execution of an administrative act in cases of state of emergency,
martial law, mobilization and state of war, or on the grounds of
national security, public order and public health.
The administration shall be liable to compensate for damages
resulting from its actions and acts.
C. Establishment of the administration
1. Central administration
ARTICLE 126- In terms of central administrative structure,
Turkey is divided into provinces on the basis of geographical
situation, economic conditions, and public service requirements;
provinces are further divided into lower levels of administrative
districts.
The administration of the provinces is based on the principle
of devolution of powers. Central administrative organizations
comprising several provinces may be established to ensure
efficiency and coordination of public services. The functions and
powers of these organizations shall be regulated by law.
2. Local administrations
ARTICLE 127- Local administrations are public corporate
bodies established to meet the common local needs of the
inhabitants of provinces, municipal districts and villages, whose
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principles of constitution and decision-making organs elected by
the electorate are determined by law.
The formation, duties and powers of the local administrations
shall be regulated by law in accordance with the principle of
local administration.
(As amended on July 23, 1995; Act No. 4121) The elections for
local administrations shall be held every five years in accordance
with the principles set forth in Article 67. However, general
elections or by-elections for local administrative bodies or for
members thereof, which are to be held within a year before or
after the general elections or by-elections for deputies, shall be
held simultaneously with the general elections or by-elections
for deputies. Special administrative arrangements may be
introduced by law for larger urban centres.
Loss of status and objections regarding the acquisition of the
status of elected organs of local administrations shall be decided
by judiciary. However, as a provisional measure until the final
court judgment, the Minister of Internal Affairs may remove
from office those organs of local administration or their members
against whom an investigation or prosecution has been initiated
on grounds of offences related to their duties.
The central administration has the power of administrative
tutelage over the local administrations in the framework of
principles and procedures set forth by law with the objective of
ensuring the functioning of local services in conformity with the
principle of the integrity of the administration, securing uniform
public service, safeguarding the public interest and meeting local
needs properly. The formation of local administrative bodies
into a union with the permission of the Council of Ministers
for the purpose of performing specific public services; and the
functions, powers, financial and security arrangements of these
unions, and their reciprocal ties and relations with the central
administration, shall be regulated by law. These administrative
bodies shall be allocated financial resources in proportion to
their functions.
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D. Provisions relating to public servants
1. General principles
ARTICLE 128- The fundamental and permanent functions
required by the public services that the State, state economic
enterprises and other public corporate bodies assigned to perform
in accordance with principles of general administration, shall be
carried out by public servants and other public employees.
The qualifications, appointments, duties and powers, rights
and responsibilities, salaries and allowances of public servants
and other public officials, and other matters related to their status
shall be regulated by law. (Sentence added by September 12,
2010; Act No. 5982) However, provisions on collective agreement
concerning financial and social rights are reserved.
The procedure and principles governing the training of high
rank administrators shall be specially regulated by law.
2. Duties and responsibilities, and guarantees in disciplinary
proceedings
ARTICLE 129- Public servants and other public officials are
obliged to carry out their duties with loyalty to the Constitution
and the laws.
Public servants, other public officials and members of public
professional organizations or their higher bodies shall not be
subjected to disciplinary penalties without being granted the
right of defence.
(As amended on September 12, 2010; Act No. 5982)
Disciplinary decisions shall not be exempt from judicial review.
Provisions concerning the members of the armed forces,
judges and prosecutors are reserved.
Compensation suits concerning damages arising from
faults committed by public servants and other public officials
in the exercise of their duties shall be filed only against the
administration in accordance with the procedure and conditions
prescribed by law, as long as the compensation is recoursed to
them.
Prosecution of public servants and other public officials for
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alleged offences shall be subject, except in cases prescribed by
law, to the permission of the administrative authority designated
by law.
E. Institutions of higher education and their higher bodies
1. Institutions of higher education
ARTICLE 130- For the purpose of training manpower to
meet the needs of the nation and the country under a system
of contemporary education principles, universities comprising
several units and having scientific autonomy and public legal
personality shall be established by the State and by law, to
educate at different levels based on secondary education, to
conduct research, to issue publications, to act as consultants, and
to serve the country and humanity.
Institutions of higher education may be established, under
the supervision and control of the State, by foundations in
accordance with the procedures and principles set forth in the
law as long as they do not pursue profit.
The law shall provide for a balanced geographical distribution
of universities throughout the country.
Universities, members of the teaching staff and their
assistants may freely engage in all kinds of scientific research
and publication. However, this shall not include the liberty to
engage in activities against the existence and independence of
the State, and against the integrity and indivisibility of the nation
and the country.
Universities and units attached to them are under the
supervision and inspection of the State and their security is
ensured by the State.
University presidents shall be elected and appointed by the
President of the Republic, and faculty deans by the Council
of Higher Education, in accordance with the procedures and
provisions of the law.
The administrative and supervisory organs of the universities
and the teaching staff may not for any reason whatsoever be
removed from their office by authorities other than those of the
competent organs of the universities or by the Council of Higher
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Education.
(As amended on October 29, 2005; Act No. 5428) The budgets
drawn up by universities, after being examined and approved
by the Council of Higher Education shall be submitted to the
Ministry of National Education, and shall be put into effect and
supervised in conformity with the principles applied to central
government budget.
The establishment of institutions of higher education, their
organs, their functioning and elections, their duties, authorities
and responsibilities, the procedures to be followed by the state in
the exercise of the right to supervise and inspect the universities,
the duties of the teaching staff, their titles, appointments,
promotions and retirement, the training of the teaching staff, the
relations of the universities and the teaching staff with public
institutions and other organizations, the level and duration of
education, admission of students into institutions of higher
education, attendance requirements and fees, principles relating
to assistance to be provided by the State, disciplinary and
penalty matters, financial affairs, personnel rights, rules to be
abided by the teaching staff, the assignment of the teaching staff
in accordance with inter-university requirements, the pursuance
of training and education in freedom and under guarantee and
in accordance with the requirements of contemporary science
and technology, and the use of financial resources provided by
the State to the Council of Higher Education and the universities,
shall be regulated by law.
Institutions of higher education established by foundations
shall be subject to the provisions set forth in the Constitution
for institutions of higher education established by the State, as
regards the academic activities, recruitment of teaching staff and
security, except for financial and administrative matters.
2. Superior bodies of higher education
ARTICLE 131- The Council of Higher Education shall
be established to plan, organize, administer, and supervise
education provided by institutions of higher education, to
orient teaching activities, education and scientific research, to
ensure the establishment and development of these institutions
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in conformity with the objectives and principles set forth by
law, to ensure the effective use of the resources allotted to the
universities, and to plan for the training of the teaching staff.
(As amended on May 7, 2004; Act No. 5170) The Council
of Higher Education is composed of members appointed by
the President of the Republic from among candidates who are
nominated by the Council of Ministers and universities, and
in accordance with the numbers, qualifications and election
procedures prescribed by law, priority being given to those
who have served successfully as faculty members or university
presidents, and of members directly appointed by the President
of the Republic.
The organization, functions, authority, responsibilities and
operating principles of the Council shall be regulated by law.
3. Institutions of higher education subject to special provisions
ARTICLE 132- Institutions of higher education attached to
the Turkish Armed Forces and to the national police organization
are subject to the provisions of their respective special laws.
F. Radio and Television Supreme Council, institutions of
radio and television, and public affiliated news agencies10
ARTICLE 133- (As amended on July 8, 1993; Act No. 3913)
Radio and television stations shall be established and operated
freely in conformity with rules to be determined by law.
(Paragraph added on June 21, 2005; Act No. 5370) The Radio
and Television Supreme Council, established for the purpose
of regulation and supervision of radio and television activities,
is composed of nine members. The members are elected, on
the basis of number of members allocated to each political
party group, by the Plenary of the Grand National Assembly
of Turkey from among the candidates, twice the number of
which is nominated by political party groups in proportion to
their number of members. The formation, duties and powers of
the Radio and Television Supreme Council, and qualifications,
election procedures and term of office of its members shall be
regulated by law.
10 The phrase “The Radio and Television Supreme Council” was added by the first
Article of Act No. 5370 dated June 21, 2005.
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The unique radio and television institution established by the
State as a public corporate body and the news agencies which
receive aid from public corporate bodies shall be autonomous
and their broadcasts shall be impartial.
G. The Atatürk High Institution of Culture, Language and
History
ARTICLE 134- The “Atatürk High Institution of Culture,
Language and History” shall be established as a public corporate
body, under the moral aegis of Atatürk, under the supervision of
and with the support of the President of the Republic, attached
to the Office of the Prime Minister, and composed of the Atatürk
Research Centre, the Turkish Language Institution, the Turkish
History Institution and the Atatürk Culture Centre, in order
to conduct scientific research, to produce publications and to
disseminate information on the thought, principles and reforms
of Atatürk, Turkish culture, Turkish history and the Turkish
language.
The financial interests bequeathed by Atatürk in his will to
the Turkish Language Institution and Turkish History Institution
are reserved and shall be allocated to them accordingly.
The establishment, organs, operating procedures and
personnel matters of the Atatürk High Institution of Culture,
Language and History, and its authority over the institutions
within it, shall be regulated by law.
H. Professional organizations having the characteristics of
public institutions
ARTICLE 135- Professional organizations having the
characteristics of public institutions and their higher bodies are
public corporate bodies established by law, with the objectives
of meeting the common needs of the members of a given
profession, to facilitate their professional activities, to ensure
the development of the profession in keeping with common
interests, to safeguard professional discipline and ethics in order
to ensure integrity and trust in relations among its members and
with the public; their organs shall be elected by secret ballot by
their members in accordance with the procedure set forth in the
law, and under judicial supervision.
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Persons employed in principal and permanent positions
in public institutions, or in state economic enterprises shall
not be required to become members of public professional
organizations.
(As amended on July 23, 1995; Act No. 4121) These professional
organizations shall not engage in activities outside the aims for
which they are established.
(As amended on July 23, 1995; Act No. 4121) Political parties
shall not nominate candidates in elections for the organs and
higher bodies of these professional organizations.
(As amended on July 23, 1995; Act No. 4121) The rules
concerning the administrative and financial supervision of these
professional organizations by the State shall be prescribed by
law.
(As amended on July 23, 1995; Act No. 4121) The responsible
organs of professional organizations which engage in activities
beyond their objectives shall be dissolved by court decision at
the request of the authority designated by law or the public
prosecutor, and new organs shall be elected in their place.
(As amended on July 23, 1995; Act No. 4121) However, where
it is required for and delay constitutes a prejudice to national
security, public order, prevention of commission or continuation
of a crime, or an arrest, an authority may be vested with power
by law to suspend the professional organizations and their
higher bodies from activity. The decision of this authority shall
be submitted for the approval of the judge having jurisdiction
within twenty-four hours. The judge shall announce his/her
decision within forty-eight hours; otherwise, this administrative
decision shall be annulled automatically.
I. Presidency of Religious Affairs
ARTICLE 136- The Presidency of Religious Affairs, which
is within the general administration, shall exercise its duties
prescribed in its particular law, in accordance with the principles
of secularism, removed from all political views and ideas, and
aiming at national solidarity and integrity.
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J. Unlawful order
ARTICLE 137- If a person employed in any position or status
in public services finds an order given by his/her superior to be
contrary to the provisions of by-laws, regulations, laws, or the
Constitution, he/she shall not carry it out, and shall inform the
person giving the order of this inconsistency. However, if his/
her superior insists on the order and renews it in writing, his/
her order shall be executed; in this case the person executing the
order shall not be held responsible.
An order which in itself constitutes an offence shall under
no circumstances be executed; the person who executes such an
order shall not evade responsibility.
Exceptions designated by law relating to the execution of
military duties and the protection of public order or public
security in urgent situations are reserved.
CHAPTER THREE
Judicial Power
I. General provisions
A. Independence of the courts
ARTICLE 138- Judges shall be independent in the discharge
of their duties; they shall give judgment in accordance with the
Constitution, laws, and their personal conviction conforming
with the law.
No organ, authority, office or individual may give orders
or instructions to courts or judges relating to the exercise of
judicial power, send them circulars, or make recommendations
or suggestions.
No questions shall be asked, debates held, or statements made
in the Legislative Assembly relating to the exercise of judicial
power concerning a case under trial.
Legislative and executive organs and the administration shall
comply with court decisions; these organs and the administration
shall neither alter them in any respect, nor delay their execution.
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B. Security of tenure of judges and public prosecutors
ARTICLE 139- Judges and public prosecutors shall not be
dismissed, or unless they request, shall not be retired before the
age prescribed by the Constitution; nor shall they be deprived of
their salaries, allowances or other rights relating to their status,
even as a result of the abolition of a court or a post.
Exceptions indicated in law relating to those convicted for an
offence requiring dismissal from the profession, those who are
definitely established as unable to perform their duties because
of illhealth, or those determined as unsuitable to remain in the
profession, are reserved.
C. Judges and public prosecutors
ARTICLE 140- Judges and public prosecutors shall serve
as judges and public prosecutors of civil and administrative
judiciary. These duties shall be carried out by professional judges
and public prosecutors.
Judges shall discharge their duties in accordance with the
principles of the independence of the courts and the security of
the tenure of judges.
The qualifications, appointment, rights and duties, salaries
and allowances of judges and public prosecutors, their
promotion, temporary or permanent change in their posts or
place of duties, the initiation of disciplinary proceedings against
them and the imposition of disciplinary penalties, the conduct
of investigation concerning them and the subsequent decision to
prosecute them on account of offences committed in connection
with, or in the course of, their duties, the conviction for offences
or instances of incompetence requiring their dismissal from the
profession, their in-service training, and other matters relating
to their personnel status shall be regulated by law in accordance
with the principles of the independence of the courts and the
security of tenure of judges.
Judges and public prosecutors shall serve until they are over
the age of sixty-five. The mandatory retirement age, promotion
and retirement of military judges shall be prescribed by law.
Judges and public prosecutors shall not assume any official or
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private occupation other than those prescribed by law.
Judges and public prosecutors shall be attached to the
Ministry of Justice with respect to their administrative functions.
Those judges and public prosecutors working in administrative
posts of judicial services shall be subject to the same provisions
as other judges and public prosecutors. Their categories and
grades shall be determined according to the principles applying
to judges and public prosecutors, and they shall enjoy all the
rights accorded to judges and public prosecutors.
D. Publicity of hearings and the necessity of justification
for verdicts
ARTICLE 141- Court hearings shall be open to the public. It
may be decided to conduct all or a part of a hearing in a closed
session, but only in cases where absolutely necessitated by public
morals or public security.
Special provisions regarding the trial of minors shall be laid
down in the law.
The decisions of all courts shall be written with a justification.
It is the duty of the judiciary to conclude trials as quickly as
possible and at minimum cost.
E. Formation of courts
ARTICLE 142- The formation, duties and powers, functioning
and trial procedures of the courts shall be regulated by law.
F. State Security Courts
ARTICLE 143- (Repealed on May 7, 2004; Act No. 5170)
G. Supervision of judicial services11
ARTICLE 144- (As amended on September 12, 2010; Act
No. 5982)
Supervision of judicial services and public prosecutors
with regard to their administrative duties shall be carried out
by the Ministry of Justice through judiciary inspectors and
11 The heading of this Article, which was stipulated as “G. Supervision of Judges
and Public Prosecutors”, was amended by fourteenth Article of Act No. 5982 dated September 12, 2010.
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internal auditors who are from the profession of judge and
public prosecutor, and inquiry, inspection and investigation
proceedings through judiciary inspectors. Relating procedures
and principles shall be regulated by law.
H. Military justice
ARTICLE 145- (As amended on September 12, 2010; Act
No. 5982)
Military justice shall be exercised by military courts and
military disciplinary courts. These courts shall have jurisdiction
to try military offences committed by military personnel and
offences committed by military personnel against military
personnel or related to military services and duties. Cases
regarding crimes against the security of the State, constitutional
order and its functioning shall be heard before the civil courts in
any case.
Non-military persons shall not be tried in military courts,
except during a state of war.
The offences and persons falling within the jurisdiction
of military courts in state of war, formation of military courts
and, when necessary, the appointment of judges and public
prosecutors of civil judiciary to military courts shall be regulated
by law.
The formation of military justice organs, their functioning,
matters relating to the status of military judges, relations between
military judges acting as military prosecutors, and the military
command under which they serve, shall be regulated by law in
accordance with the principles of the independence of courts
and the security of tenure of judges.
II. Higher courts
A. Constitutional Court
1. Formation
ARTICLE 146- (As amended on September 12, 2010; Act
No. 5982)
The Constitutional Court shall be composed of seventeen
members.
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The Grand National Assembly of Turkey shall elect, by
secret ballot, two members from among three candidates to be
nominated by and from among the president and members of
the Court of Accounts, for each vacant position, and one member
from among three candidates nominated by the heads of the
bar associations from among self-employed lawyers. In this
election to be held in the Grand National Assembly of Turkey,
for each vacant position, two thirds majority of the total number
of members shall be required for the first ballot, and absolute
majority of total number of members shall be required for the
second ballot. If an absolute majority cannot be obtained in
the second ballot, a third ballot shall be held between the two
candidates who have received the greatest number of votes in
the second ballot; the member who receives the greatest number
of votes in the third ballot shall be elected.
The President of the Republic shall appoint three members
from High Court of Appeals, two members from Council of
State, one member from the High Military Court of Appeals,
and one member from the High Military Administrative Court
from among three candidates to be nominated, for each vacant
position, by their respective generalassemblies, from among
their presidents and members; three members, at least two of
whom being law graduates, from among three candidates to be
nominated for each vacant position by the Council of Higher
Education from among members of the teaching staff who are
not members of the Council, in the fields of law, economics
and political sciences; four members from among high level
executives, self-employed lawyers, first category judges and
public prosecutors or rapporteurs of the Constitutional Court.
In the elections to be held in the respective general assemblies
of the High Court of Appeals, Council of State, High Military
Court of Appeals, High Military Administrative Court, the
Court of Accounts and the Council of Higher Education for
nominating candidates for membership of the Constitutional
Court, three persons obtaining the greatest number of votes shall
be considered to be nominated for each vacant position. In the
elections to be held for the three candidates nominated by the
heads of bar associations from among self-employed lawyers,
three persons obtaining the greatest number of votes shall be
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considered to be nominated.12
To qualify for appointments as members of the Constitutional
Court, members of the teaching staff shall be required to possess
the title of professor or associate professor; lawyers shall be
required to have practiced as a lawyer for at least twenty years;
high level executives shall be required to have completed higher
education and to have worked for at least twenty years in public
service, and first category judges and public prosecutors with at
least twenty years of work experience including their period of
candidacy, provided that they all shall be over the age of forty
five.
The Constitutional Court shall elect a president and two
deputy presidents from among its members for a term of four
years by secret ballot and by an absolute majority of the total
number of its members. Those whose term of office ends may be
re-elected.
The members of the Constitutional Court shall not assume
other official and private duties, apart from their fundamental
duties.
2. Term of office of the members and termination of
membership13
ARTICLE 147- (As amended on September 12, 2010; Act
No. 5982) The members of the Constitutional Court shall be
elected for a term of twelve years. A member shall not be reelected. The members of the Constitutional Court shall retire
when they are over the age of sixty-five. The appointment of the
members to another office whose term of office expires prior to
their mandatory age of retirement and matters regarding their
personnel status shall be laid down in law.
Membership in the Constitutional Court shall terminate
12 The phrase “… one member shall vote for only one candidate; …” following the
phrase “for each vacant position” in the first sentence of this paragraph, and the
phrase “each head of bar shall vote for only one candidate, and …” following
the phrase “in the election to be held” in the second sentence of same paragraph
were annulled by the decision of the Constitutional Court dated July 7, 2010
numbered E. 2010/49, K. 2010/87 (Official Gazette numbered 27659 of August 1,
2010.)
13 The heading of this Article, which was stipulated as “2. Termination of
membership”, was amended by the seventeenth Article of Act No. 5982 dated
September 12, 2010.
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automatically if a member is convicted of an offence requiring
his/her dismissal from the judicial profession, and by a decision
of an absolute majority of the total number of members of the
Constitutional Court if it is definitely established that he/she is
unable to perform his/her duties on account of ill-health.
3. Functions and powers
ARTICLE 148- (As amended on September 12, 2010;
Act No. 5982) The Constitutional Court shall examine the
constitutionality, in respect of both form and substance, of laws,
decrees having the force of law and the Rules of Procedure of the
Grand National Assembly of Turkey, and decide on individual
applications. Constitutional amendments shall be examined and
verified only with regard to their form. However, decrees having
the force of law issued during a state of emergency, martial law
or in time of war shall not be brought before the Constitutional
Court alleging their unconstitutionality as to form or substance.
The verification of laws as to form shall be restricted to
consideration of whether the requisite majority was obtained
in the last ballot; the verification of constitutional amendments
shall be restricted to consideration of whether the requisite
majorities were obtained for the proposal and in the ballot, and
whether the prohibition on debates under expedited procedure
was observed. 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. 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; and it
shall not be appealed by other courts to the Constitutional Court
on the grounds of defect in form.
(Paragraph added on September 12, 2010; Act No. 5982)
Everyone may apply to the Constitutional Court on the grounds
that one of the fundamental rights and freedoms within the
scope of the European Convention on Human Rights which
are guaranteed by the Constitution has been violated by public
authorities. In order to make an application, ordinary legal
remedies must be exhausted.
(Paragraph added on September 12, 2010; Act No. 5982) In
the individual application, judicial review shall not be made on
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matters required to be taken into account during the process of
legal remedies.
(Paragraph added on September 12, 2010; Act No. 5982)
Procedures and principles concerning the individual application
shall be regulated by law.
(As amended on September 12, 2010; Act No. 5982) The
Constitutional Court in its capacity as the Supreme Court shall
try, for offences relating to their functions, the President of
the Republic, the Speaker of the Grand National Assembly of
Turkey, members of the Council of Ministers; presidents and
members of the Constitutional Court, High Court of Appeals,
Council of State, High Military Court of Appeals, High Military
Administrative Court, High Council of Judges and Prosecutors,
Court of Accounts, and Chief Public Prosecutors and Deputy
Public Prosecutors.
(Paragraph added on September 12, 2010; Act No. 5982) The
Chief of General Staff, the commanders of the Land, Naval and
Air Forces and the General Commander of the Gendarmerie shall
be tried in the Supreme Court for offences regarding their duties.
The Chief Public Prosecutor of the High Court of Appeals or
Deputy Chief Public Prosecutor of the High Court of Appeals
shall act as prosecutor in the Supreme Court.
(As amended on September 12, 2010; Act No. 5982) Application
for judicial review may be made against the decisions of the
Supreme Court. Decisions taken by the General Assembly
regarding the application shall be final.
The Constitutional Court shall also perform the other duties
given to it by the Constitution.
4. Procedure of functioning and trial
ARTICLE 149- (As amended on September 12, 2010; Act
No. 5982)
The Constitutional Court consists of two sections and
the General Assembly. The sections convene under the
chairpersonship of the deputy president with the participation
of four members. The General Assembly shall convene
with the participation of at least twelve members under the
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chairpersonship of the President of the Constitutional Court or a
deputy president designated by the President. The sections and
the General Assembly shall take decisions by absolute majority.
Committees may be established to examine the admissibility of
the individual applications.
The General Assembly shall hear the cases and applications
concerning political parties, actions for annulment and objection,
and trials where the Constitutional Court acts as the Supreme
Court; the sections shall take the decision on individual
applications.
Annulment of constitutional amendments, dissolution of
political parties, or their deprivation from state aid, shall be
decided with a two-thirds majority of members attending the
meeting.
Applications for annulment on the grounds of defect in form
shall be examined and decided with priority by the Constitutional
Court.
The formation of the Constitutional Court, trial procedures
of the General Assembly and the sections, disciplinary matters
of the President, the deputy presidents, and members shall
be regulated by law; principles of functioning of the Court,
formation of the sections and committees, and the division of
labour shall be set out by the internal regulations to be drawn
up by the Court.
The Constitutional Court shall examine cases without
holding a hearing, except where it acts as the Supreme Court.
Nonetheless, it may be decided to hold a hearing for individual
applications. When it deems necessary, the Court may also
call on those concerned and those having knowledge relevant
to the case, to hear their oral explanations, and in lawsuits on
dissolution of a political party, the Court shall hear the defence
of the chairperson of the political party or of a proxy appointed
by the chairperson, after hearing the Chief Public Prosecutor of
the High Court of Appeals.
5. Annulment action
ARTICLE 150- The President of the Republic, parliamentary
groups of the ruling party or parties and of the main opposition
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party, and a minimum of one-fifth of the total number of members
of the Grand National Assembly of Turkey shall have the right to
apply for annulment action directly to the Constitutional Court,
based on the assertion of the unconstitutionality, in form and in
substance, of laws, of decrees having the force of law, of Rules
of Procedure of the Grand National Assembly of Turkey or of
certain articles or provisions thereof. If more than one political
party is in power, the right of the parties in power to apply for
annulment action shall be exercised by the party having the
greatest number of members.
6. Time limit for annulment action
ARTICLE 151- The right to apply for annulment directly to
the Constitutional Court shall lapse sixty days after publication
in the Official Gazette of the contested law, the decree having the
force of law, or the Rules of Procedure.
7. Claim of unconstitutionality before other courts
ARTICLE 152- If a court hearing a case finds that the
law or the decree having the force of law to be applied is
unconstitutional, or if convinced of the seriousness of a claim
of unconstitutionality submitted by one of the parties, it shall
postpone the consideration of the case until the Constitutional
Court decides on the issue.
If the trial court is not convinced of the seriousness of the
claim of unconstitutionality, such a claim, together with the court
judgment, shall be decided upon by the competent authority of
appeal.
The Constitutional Court shall decide on the matter and declare
its judgment within five months of receiving the contention. If
no decision is reached within this period, the trial court shall
conclude the case under legal provisions in force. However, if
the trial court receives the decision of the Constitutional Court
until the judgment on the merits of the case is final, the trial court
is obliged to comply with it.
No claim of unconstitutionality shall be made with regard to
the same legal provision until ten years elapse after publication
in the Official Gazette of the decision of the Constitutional Court
dismissing the application on its merits.
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8. Decisions of the Constitutional Court
ARTICLES 153- The decisions of the Constitutional Court are
final. Decisions of annulment shall not be made public without a
written justification.
In the course of annulling the whole, or a provision, of laws
or decrees having the force of law, the Constitutional Court
shall not act as a lawmaker and pass judgment leading to new
implementation.
Laws, decrees having the force of law, or the Rules of Procedure
of the Grand National Assembly of Turkey or provisions thereof,
shall cease to have effect from the date of publication in the
Official Gazette of the annulment decision. Where necessary, the
Constitutional Court may also decide on the date on which the
annulment decision shall come into effect. That duration shall
not be more than one year from the date of publication of the
decision in the Official Gazette.
In the event of the postponement of the date on which an
annulment decision is to come into effect, the Grand National
Assembly of Turkey shall debate and decide with priority on
the government bill or private members’ bill, designed to fill the
legal void arising from the annulment decision.
Annulment decisions cannot be applied retroactively.
Decisions of the Constitutional Court shall be published
immediately in the Official Gazette, and shall be binding on the
legislative, executive, and judicial organs, on the administrative
authorities, and on persons and corporate bodies.
B. High Court of Appeals
ARTICLE 154- The High Court of Appeals is the last instance
for reviewing decisions and judgments given by civil courts that
are not referred by law to other civil judicial authority. It shall
also be the first and last instance court for dealing with specific
cases prescribed by law.
Members of the High Court of Appeals shall be appointed by
the High Council of Judges and Prosecutors from among first
category judges and public prosecutors of the civil judiciary, or
those considered members of this profession, by secret ballot and
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by an absolute majority of the total number of members.
The First President, first deputy presidents and heads of
departments shall be elected by the General Assembly of the
High Court of Appeals from among its own members, for a term
of four years, by secret ballot and by an absolute majority of the
total number of members; they may be re-elected at the end of
their term of office.
The Chief Public Prosecutor and the Deputy Chief Public
Prosecutor of the High Court of Appeals shall be appointed
by the President of the Republic for a term of four years from
among five candidates nominated for each office by the General
Assembly of the High Court of Appeals from among its own
members by secret ballot. They may be re-elected at the end of
their term of office.
The organization and the functioning of the High Court of
Appeals, the qualifications and procedures of the election of its
president, deputy presidents, heads of departments, members,
Chief Public Prosecutor and Deputy Chief Public Prosecutor
shall be regulated by law in accordance with the principles of
the independence of courts and the security of tenure of judges.
C. Council of State
ARTICLE 155- The Council of State is the last instance for
reviewing decisions and judgments given by administrative
courts and not referred by law to other administrative courts. It
shall also be the first and last instance for dealing with specific
cases prescribed by law.
(As amended on August 13, 1999; Act No. 4446) The Council
of State shall try administrative cases, give its opinion within two
months on government bills submitted by the Prime Minister
and the Council of Ministers and the conditions and the contracts
under which concessions are granted concerning public services,
examine draft regulations, settle administrative disputes, and
discharge other duties, as prescribed by law.
Three-fourths of the members of the Council of State shall
be appointed by the High Council of Judges and Prosecutors
from among the first category administrative judges and public
prosecutors, or those considered to be of this profession; and the
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remaining quarter by the President of the Republic from among
officials meeting the requirements designated by law.
The President, Chief Public Prosecutor, deputy presidents,
and heads of departments of the Council of State shall be elected
by the General Assembly of the Council of State from among its
own members for a term of four years by secret ballot and by an
absolute majority of the total number of members. They may be
re-elected at the end of their term of office.
The organization and functioning of the Council of State, the
qualifications and procedures of election of its President, Chief
Public Prosecutor, deputy presidents, heads of departments,
and members, shall be regulated by law in accordance with the
principles of specific nature of the administrative jurisdiction,
and of the independence of the courts and the security of tenure
of judges.
D. High Military Court of Appeals
ARTICLE 156- The High Military Court of Appeals is the last
instance for reviewing decisions and judgments given by military
courts. It shall also be the first and last instance for dealing with
specific cases designated by law concerning military persons.
Members of the High Military Court of Appeals shall be
appointed by the President of the Republic from among three
candidates nominated for each vacant office by the General
Assembly of the High Military Court of Appeals from among
military judges of the first category, by secret ballot and by an
absolute majority of the total number of members.
The President, Chief Public Prosecutor, Second President and
heads of departments of the High Military Court of Appeals
shall be appointed according to rank and seniority from among
the members of the High Military Court of Appeals.
(As amended on September 12, 2010; Act No. 5982) The
organization and functioning of the High Military Court of
Appeals, and disciplinary and personnel matters of its members
shall be regulated by law in accordance with the principles of the
independence of the courts and the security of tenure of judges.
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E. High Military Administrative Court
ARTICLE 157- The High Military Administrative Court
shall be the first and last instance for the judicial supervision of
disputes arising from administrative acts and actions involving
military persons or relating to military service, even if such acts
and actions have been carried out by non-military authorities.
However, in disputes arising from the obligation to perform
military service, there shall be no condition that the person
concerned be a member of the military body.
Members of the High Military Administrative Court who
are military judges shall be appointed by the President of the
Republic from a list of three candidates nominated for each
vacant office by the President and members of the Court, who are
also military judges, by secret ballot and by an absolute majority
of the total number of such members, from among military
judges of the first category; members who are not military judges
shall be appointed by the President of the Republic from a list of
three candidates nominated for each vacant office by the Chief
of the General Staff from among officers holding the rank and
qualifications prescribed by law.
The term of office of members who are not military judges
shall not exceed four years.
The President, Chief Public Prosecutor and heads of
departments of the Court shall be appointed from among
military judges according to rank and seniority.
(As amended on September 12, 2010; Act No. 5982) The
organization, functioning and trial procedures of the High
Military Administrative Court, and disciplinary and personnel
matters of its members shall be regulated by law in accordance
with the principles of the independence of the courts and the
security of tenure of judges.
F. Court of Jurisdictional Disputes
ARTICLE 158- The Court of Jurisdictional Disputes shall be
empowered to deliver final judgments in disputes between civil,
administrative, and military courts concerning their jurisdiction
and judgments.
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The organization of the Court of Jurisdictional Disputes, the
qualifications and electoral procedure of its members, and its
functioning shall be regulated by law. The office of president
of this Court shall be held by a member delegated by the
Constitutional Court from among its own members.
Decisions of the Constitutional Court shall take precedence
in jurisdictional disputes between the Constitutional Court and
other courts.
III. High Council of Judges and Prosecutors
ARTICLE 159- (As amended on September 12, 2010; Act
No. 5982)
The High Council of Judges and Prosecutors shall be
established and shall exercise its functions in accordance with
the principles of the independence of the courts and the security
of the tenure of judges.
The High Council of Judges and Prosecutors shall be
composed of twenty-two regular and twelve substitute members;
shall comprise three chambers.
The President of the Council is the Minister of Justice. The
Undersecretary to the Ministry of Justice shall be an ex-officio
member of the Council. For a term of four years, four regular
members of the Council, the qualities of whom are defined by
law, shall be appointed by the President of the Republic from
among members of the teaching staff in the field of law, and
lawyers; three regular and three substitute members shall be
appointed by the General Assembly of the High Court of Appeals
from among members of the High Court of Appeals; two regular
and two substitute members shall be appointed by the General
Assembly of the Council of State from among members of the
Council of State; one regular and one substitute member shall
be appointed by the General Assembly of the Justice Academy
of Turkey from among its members; seven regular and four
substitute members shall be elected by civil judges and public
prosecutors from among those who are first category judges and
who have not lost the qualifications required for being a first
category judge; three regular and two substitute members shall
be elected by administrative judges and public prosecutors from
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among those who are first category judges and who have not lost
the qualifications required for being a first category judge. They
may be re-elected at the end of their term of office.14
Election of members to the Council shall be held within sixty
days before the expiry of the term of office of the members. In
case of vacancies for members appointed to the Council by the
President of the Republic prior to the expiry of the term of office,
new members shall be appointed within sixty days following the
vacancy. In case of vacancy for other members, the remaining
term of office shall be completed by the substitute.
In the elections in which every member shall vote for the
members to be elected to the High Council by general assemblies
of the High Court of Appeals, the Council of State and the Justice
Academy of Turkey and in which every judge and prosecutor
shall vote for the members to be elected to the High Council
from among first category judges and public prosecutors of civil
and administrative courts; the candidates receiving the greatest
number of votes shall be elected as regular and substitute
members respectively. These elections shall be held once for each
term and by secret ballot.15
The regular members of the Council, other than the Minister
of Justice and the Undersecretary to the Ministry of Justice, shall
not assume any duties other than those prescribed by law or be
appointed or elected to another office by the Council during their
term of office.
The administration and the representation of the Council
are carried out by the President of the Council. The President
of the Council shall not participate in the work of the chambers.
The Council shall elect the heads of chambers from among its
members and one Deputy President from among the heads of
chambers. The President may delegate some of his/her powers
14 The phrase “…economics and political sciences…” following the phrase “law,” in
the third sentence of this paragraph, and the phrase “…high level executives…”
following the phrase “the teaching staff,” in the same sentence were annulled by
the decision of the Constitutional Court dated July 7, 2010 numbered E. 2010/49,
K. 2010/87 (Official Gazette numbered 27659 of August 1, 2010).
15 The phrase “…for only one candidate…” following the phrase “each judge
and public prosecutor;” was annulled by the decision of the Constitutional
Court dated July 7, 2010 numbered E. 2010/49, K. 2010/87 (Official Gazette
numbered 27659 of August 1, 2010).
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to the Deputy President.
The Council shall make the proceedings regarding the
admission of judges and public prosecutors of civil and
administrative courts into the profession, appointment, transfer
to other posts, the delegation of temporary powers, promotion,
and promotion to the first category, decision concerning those
whose continuation in the profession is found to be unsuitable,
the imposition of disciplinary penalties and removal from office;
it shall take final decisions on proposals by the Ministry of Justice
concerning the abolition of a court, or changes in the territorial
jurisdiction of a court; it shall also exercise the other functions
given to it by the Constitution and laws.
Supervision of judges and public prosecutors with regard
to the performance of their duties in accordance with laws,
regulations, by-laws and circulars (administrative circulars, in the
case of judges); investigation into whether they have committed
offences in connection with, or in the course of their duties,
whether their behaviour and conduct are in conformity with
requirement of their status and duties and if necessary, inquiries
and investigations concerning them shall be carried out by the
Council’s inspectors, upon the proposal of the related chambers
and with the permission of the President of the High Council
of Judges and Prosecutors. The inquiries and investigations may
also be carried out by a judge or public prosecutor who is senior
to the judge or public prosecutor to be investigated.
The decisions of the Council, other than dismissal from the
profession, shall not be subject to judicial review.
A Secretariat General shall be established under the Council.
The Secretary General shall be appointed by the President of the
Council from among three candidates proposed by the Council
from among first category judges and public prosecutors.
The Council is empowered to appoint, with their consent, the
Council’s inspectors, judges, and public prosecutors to temporary
or permanent functions in the Council.
The Minister of Justice is empowered to appoint judges, public
prosecutors, judiciary inspectors, and internal auditors from the
profession of judge and public prosecutor, with their consent, to
temporary or permanent functions in the central, affiliated, or
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relevant institutions of the Ministry of Justice.
The election of the members of the Council, formation of
the chambers and the division of labour between chambers, the
duties of the Council and its chambers, quorum for meetings and
decisions, operating procedures and principles, objections to be
made against the decisions and proceedings of the chambers
and the examination procedure for these objections, and the
establishment and the duties of the Secretariat General shall be
laid down in law.
IV. Court of Accounts
ARTICLE 160- (As amended on October 29, 2005; Act No.
5428) The Court of Accounts shall be charged with auditing, on
behalf of the Grand National Assembly of Turkey, revenues,
expenditures, and assets of the public administrations financed by
central government budget and social security institutions, with
taking final decisions on the accounts and acts of the responsible
officials, and with exercising the functions prescribed in laws in
matters of inquiry, auditing and judgment. Those concerned may
file, only for once, a request for reconsideration of a final decision
of the Court of Accounts within fifteen days of the date of written
notification of the decision. No applications for judicial review of
such decisions shall be filed in administrative courts.
In case of conflict between the decisions of the Council of State
and the Court of Accounts, regarding taxes, similar financial
obligations and duties, the decision of Council of State shall
prevail.
(Paragraph added on October 29, 2005; Act No. 5428)
Auditing and final decision on the accounts and acts of local
administrations shall be conducted by the Court of Accounts.
The establishment, functioning, auditing procedures,
qualifications, appointments, duties and powers, rights and
obligations and other personnel matters of the members and
guarantees of the President and the members of the Court shall
be regulated by law.
(Paragraph repealed on May 7, 2004; Act No. 5170)
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PART FOUR
Financial and Economic Provisions
CHAPTER ONE
Financial Provisions
I. Budget
A. Preparation and implementation of the budget
ARTICLE 161- The expenditure of the State and of public
corporations, other than state economic enterprises, shall be
determined by annual budgets.
(As amended on October 29, 2005; Act No. 5428) The beginning
of the fiscal year and the preparation, implementation, and
control of the central government budget shall be defined by law.
The law may prescribe special periods and procedures for
investments relating to development plans, or for business and
services expected to last more than one year.
No provisions other than those pertaining to the budget shall
be included in the Budget Act.
B. Debate on the budget
ARTICLE 162- (As amended on October 29, 2005; Act No.
5428) The Council of Ministers shall submit central government
budget bill and the report indicating the national budgetary
estimates to the Grand National Assembly of Turkey at least
before seventy-five days from the beginning of the fiscal year.
The budget bill and the report shall be examined by the
Committee on Budget, composed of forty members. In the
composition of this Committee, the proportional representation
of the political party groups and independent members in the
Assembly shall be ensured, as long as at least twenty-five seats
are allocated to the ruling party group or groups.
The budget bill adopted by the Committee on Budget within
fifty-five days shall thereafter be debated and adopted by the
Plenary before the beginning of the fiscal year.
(As amended on October 29, 2005; Act No. 5428) Members
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of the Grand National Assembly of Turkey shall express their
opinions, in the Plenary, on public administrations’ budgets
during the debates on the entirety of each budget; the various
chapters and motions for amendments shall be read out and
voted without debate.
During debates in the Plenary on the budget bill, members of
the Grand National Assembly of Turkey shall not make proposals
that entail an increase in expenditure or a decrease in revenue.
C. Principles governing budgetary amendments
ARTICLE 163- (As amended on October 29, 2005; Act No.
5428) The appropriation granted by the central government
budget shall indicate the limit of expenditure allowed. No
provision shall be included in the budget to the effect that the
limit of expenditure may be exceeded by a decision of the Council
of Ministers. The Council of Ministers shall not be empowered to
amend the budget by a decree having the force of law. In motions
of amendment entailing an increase in appropriations under the
budget of the current fiscal year, and, in government bills and
private members’ bills entailing financial burden in the budgets
of the current or following fiscal year, the financial resources to
meet the stated expenditure shall be indicated.
D. Final accounts
ARTICLE 164- Final accounts bills shall be submitted to the
Grand National Assembly of Turkey by the Council of Ministers
within seven months of the end of the relevant fiscal year, unless
a shorter period is prescribed by law. The Court of Accounts shall
submit its statement of general conformity to the Grand National
Assembly of Turkey within seventy-five days of the submission
of the final accounts bill to which it is related.
The final accounts bill shall be placed on the agenda of the
Committee on Budget together with the budget bill of the new
fiscal year. Committee on Budget shall submit the budget bill to
the Plenary in conjunction with the final accounts bill; the Plenary
shall debate and decide on the final accounts bills in conjunction
with the budget bill of the new fiscal year.
The submission of the final accounts bills and the statement
of general conformity to the Grand National Assembly of Turkey
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shall not preclude the auditing and trial of the accounts for the
relevant fiscal year that have not been concluded by the Court of
Accounts, and shall not mean that a final decision has been taken
on these accounts.
E. Scrutiny of state economic enterprises
ARTICLE 165- The principles governing the scrutiny of the
accounts of public institutions and partnerships where more
than half of the capital directly or indirectly belongs to the State,
by the Grand National Assembly of Turkey, shall be regulated
by law.
CHAPTER TWO
Economic Provisions
I. Planning; Economic and Social Council16
ARTICLE 166- Planning the economic, social and cultural
development, in particular the rapid, balanced and harmonious
development of industry and agriculture throughout the country
and the efficient use of national resources by taking inventory
of and evaluating them, and the establishment of the necessary
organization for this purpose are the duties of the State.
Measures to increase national savings and production, to
ensure stability in prices and balance in external payments, to
promote investment and employment shall be included in the
plan; in investments, public interests and necessities shall be
taken into account and the efficient use of resources shall be
proposed. Development activities shall be realized according to
this plan.
The procedure and principles governing the preparation
of development plans, their approval by the Grand National
Assembly of Turkey, their implementation and revision, and the
prevention of amendments disrupting the unity of the plan shall
be regulated by law.
(Paragraph added on September 12, 2010; Act No. 5982) The
Economic and Social Council shall be established to provide the
government with consultative opinions in the formulation of
16 The phrase;“Economic and Social Council” was added by the twenty third
Article of Act No. 5982 dated September 12, 2010.
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economic and social policies. The establishment and functioning
of the Economic and Social Council shall be laid down in law.
II. Supervision of markets and regulation of foreign trade
ARTICLE 167- The State shall take measures to ensure and
promote the sound and orderly functioning of the markets for
money, credit, capital, goods and services; and shall prevent the
formation of monopolies and cartels in the markets, emerged in
practice or by agreement.
In order to regulate foreign trade for the benefit of the economy
of the country, the Council of Ministers may be empowered by
law to introduce additional financial impositions on imports,
exports and other foreign trade transactions, except taxes and
similar impositions, or to lift them.
III. Exploration and exploitation of natural resources
ARTICLE 168- Natural wealth and resources shall be under
the authority and at the disposal of the State. The right to explore
and exploit these belongs to the State. The State may delegate this
right to persons or corporate bodies for a certain period. Of the
natural wealth and resources, those to be explored and exploited
by the state in partnership with persons or corporate bodies,
and those to be directly explored and exploited by persons or
corporate bodies shall be subject to the explicit permission of
the law. The conditions to be observed in such cases by persons
and corporate bodies, the procedure and principles governing
supervision and control by the State, and the sanctions to be
applied shall be prescribed by law.
IV. Forests and the forest villagers
A. Protection and development of forests
ARTICLE 169- The State shall enact the necessary legislation
and take the measures required for the protection and extension of
forests. Burnt forest areas shall be reafforested; other agricultural
and stockbreeding activities shall not be allowed in such areas.
All forests shall be under the care and supervision of the State.
The ownership of state forests shall not be transferred. State
forests shall be managed and exploited by the State in accordance
with the law. Ownership of these forests shall not be acquired
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by prescription, nor shall servitude other than that in the public
interest be imposed in respect of such forests.
Acts and actions that might damage forests shall not be
permitted. No political propaganda that might lead to the
destruction of forests shall be made; no amnesties or pardons
specifically for offences against forests shall be granted. Offences
committed with the intention of burning or destroying forests or
reducing forest areas shall not be included within the scope of
amnesties or pardons.
The reducing of forest areas shall be prohibited, except in
respect of areas whose preservation as forests is considered
scientifically and technically useless but conversion into
agricultural land has been found to be definitely advantageous,
and in respect of fields, vineyards, orchards, olive groves or
similar areas which technically and scientifically ceased to be
forest before December 31, 1981 and whose use for agricultural
or stockbreeding purposes has been found advantageous, and in
respect of built-up areas in the vicinity of cities, towns or villages.
B. Protection of forest villagers
ARTICLE 170- Measures shall be introduced by law to secure
cooperation between the State and the inhabitants of villages
located in or near forests in the supervision and exploitation of
forests for the purpose of ensuring conservation of forests and
their integrity, and improving the living conditions of these
inhabitants; the law shall also regulate the exploitation of areas
which technically and scientifically ceased to be forests before
December 31, 1981; the identification of areas whose preservation
as forest is considered scientifically and technically useless, their
exclusion from forest boundaries and their improvement by the
State for the purpose of settling all or some of the inhabitants of
forest villages in them, and their allocation to these villages.
The State shall take measures to facilitate the acquisition of
equipment and other inputs by these inhabitants.
The land owned by villagers resettled outside a forest shall
immediately be reafforested as a State forest.
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V. Developing cooperativism
ARTICLE 171- The State shall take measures, in keeping
with national economic interests, to ensure the development of
cooperativism, which shall be primarily aiming at increase in
production and protection of consumers.
(Repealed on July 23, 1995; Act No. 4121)
VI. Protection of consumers, tradespeople and artisans
A. Protection of consumers
ARTICLE 172-The State shall take measures to protect and
inform consumers; shall encourage their initiatives to protect
themselves.
B. Protection of tradespeople and artisans
ARTICLE 173- The State shall take measures to protect and
support tradespeople and artisans.
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PART FIVE
Miscellaneous Provisions
I. Preservation of Reform Laws
ARTICLE 174- No provision of the Constitution shall be
construed or interpreted as rendering unconstitutional the
Reform Laws indicated below, which aim to raise Turkish society
above the level of contemporary civilization and to safeguard
the secular character of the Republic, and whose provisions
were in force on the date of the adoption of the Constitution by
referendum:
1. Act No. 430 of March 3, 1340 (1924) on the Unification of
the Educational System,
2. Act No. 671 of November 25, 1341 (1925) on the Wearing
of Hats,
3. Act No. 677 of November 30, 1341 (1925) on the Closure of
Dervish Monasteries and Tombs, the Abolition of the Office of
Keeper of Tombs and the Abolition and Prohibition of Certain
Titles,
4. The principle of civil marriage according to which the
marriage act shall be concluded in the presence of the competent
official, adopted with the Turkish Civil Code No. 743 of February
17, 1926, and Article 110 of the Code,
5. Act No. 1288 of May 20, 1928 on the Adoption of
International Numerals,
6. Act No. 1353 of November 1, 1928 on the Adoption and
Application of the Turkish Alphabet,
7. Act No 2590 of November 26, 1934 on the Abolition of Titles
and Appellations such as Efendi, Beyor Pasha,
8. Act No. 2596 of December 3, 1934 on the Prohibition of the
Wearing of Certain Garments.
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PART SIX
Provisional Articles
PROVISIONAL ARTICLE 1- On the duly proclamation
of the adoption of the Constitution as the Constitution of the
Republic of Turkey by referendum, the Chairperson of the
Council of National Security and Head of State at the time of the
referendum, shall assume the title of President of the Republic
and shall exercise the constitutional functions and powers of
the President of the Republic for a period of seven years. The
oath taken as Head of State on September 18, 1980 shall remain
valid. At the end of the period of seven years, the election for the
Presidency of the Republic shall be held in accordance with the
provisions set forth in the Constitution.
The President of the Republic shall also hold the
chairpersonship of the Council of National Security formed on
December 12, 1980, under Act No. 2356, until the convening of
the Grand National Assembly of Turkey and the formation of the
Bureau following the first general elections.
If the Presidency of the Republic falls vacant for any reason
before the Grand National Assembly of Turkey convenes and
assumes its functions at the end of the first general elections, the
most senior member of the National Security Council shall act
as President of the Republic and exercise all his constitutional
functions and powers until the Grand National Assembly of
Turkey convenes and elects a new President of the Republic in
accordance with the Constitution.
PROVISIONAL ARTICLE 2- The Council of National Security
formed on December 12, 1980 under Act No. 2356 shall continue
to exercise its functions under Act No. 2324 on the Constitutional
Order and Act No. 2485 on the Constituent Assembly until the
convening of the Grand National Assembly of Turkey and the
formation of the Bureau following the first general elections held
under the Political Parties Act and the Elections Act prepared in
accordance with the Constitution.
After the adoption of the Constitution, Article 3 of Act No.
2356 relating to the procedure for winning a seat on the Council
of National Security that falls vacant for any reason shall cease
to apply.
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After the Grand National Assembly of Turkey has convened
and assumed its functions, the Council of National Security shall
become the Presidential Council for a period of six years, and the
members of the Council of National Security shall acquire the
title of members of the Presidential Council. The oath they took
on September 18, 1980 as members of the Council of National
Security shall remain valid. Members of the Presidential
Council shall enjoy the rights and immunities conferred by
the Constitution on members of the Grand National Assembly
of Turkey. The legal existence of the Presidential Council shall
terminate on the expiry of the period of six years.
The functions of the Presidential Council shall be as follows:
a) To examine laws adopted by the Grand National Assembly
of Turkey and submitted to the President of the Republic
concerning: the fundamental rights and freedoms and duties
set forth in the Constitution, the principle of secularism, the
preservation of the reforms of Atatürk, national security and
public order, the Turkish Radio and Television Corporation,
international treaties, the sending of armed forces to foreign
countries and the admission of foreign forces in Turkey,
emergency rule, martial law and the state of war, and other laws
deemed necessary by the President of the Republic, within the
first ten days of the period of fifteen days granted to the President
of the Republic for his consideration;
b) On the request of the President of the Republic and within
the period specified by him:
To consider and give an opinion on matters relating to the
renewal of general elections, the exercise of emergency rule
and the measures to be taken during a state of emergency,
the management and supervision of the Turkish Radio and
Television Corporation, the training of the youth and the conduct
of religious affairs;
c) According to the request of the President of the Republic, to
consider and investigate matters relating to internal or external
security and such other matters deemed necessary, and to submit
its findings to the President of the Republic.
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PROVISIONAL ARTICLE 3- On the convening of the Grand
National Assembly of Turkey and the formation of the Bureau
following the first general elections held in accordance with the
Constitution:
a) Act No. 2324 of October 27, 1980 on the Constitutional
Order,
b) Act No. 2356 of December 12, 1980 on the Council of
National Security,
c) Act No. 2485 of June 29, 1981 on the Constituent Assembly,
shall cease to have effect and the legal existence of the Council
of National Security and the Consultative Assembly shall
terminate.
PROVISIONAL ARTICLE 4- (Repealed on September 6,
1987; Act No. 3361)
PROVISIONAL ARTICLE 5- On the tenth day following
proclamation of the results of the first general elections by the
Supreme Board of Election, the Grand National Assembly of
Turkey shall convene of its own accord at the building of the
Grand National Assembly of Turkey in Ankara at 15.00 hours.
The eldest deputy shall preside this session. At this session, the
deputies shall take their oaths.
PROVISIONAL ARTICLE 6- Until the Grand National
Assembly of Turkey, formed in accordance with the Constitution,
adopts the Rules of Procedure, which shall govern its sessions
and proceedings, those provisions of the Rules of Procedure of
the National Assembly that were in force before September 12,
1980, and that are not contrary to the Constitution shall apply.
PROVISIONAL ARTICLE 7- The present Council of
Ministers shall continue in office until the convening of the
Grand National Assembly of Turkey and the formation of the
new Council of Ministers following the first general elections.
PROVISIONAL ARTICLE 8- Laws relating to the formation,
duties, powers and functioning of the new organs, institutions
and agencies established under the Constitution and other
laws whose introduction or amendment is provided for in the
Constitution, shall be enacted during the period of Constituent
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THE CONSTITUTION OF THE REPUBLIC OF TURKEY
Assembly, starting from the date of the adoption of the
Constitution; laws that cannot be dealt with during this period
shall be enacted within the year following the first session of the
newly elected Grand National Assembly of Turkey.
PROVISIONAL ARTICLE 9- Within a period of six years
following the formation of the Bureau of the Grand National
Assembly of Turkey, which is to convene after the first general
elections, the President of the Republic may send back to the Grand
National Assembly of Turkey any constitutional amendments. In
this case, the re-submission of the constitutional amendment in
its unchanged form to the President of the Republic by the Grand
National Assembly of Turkey is only possible with a threefourths majority of the votes of the total number of members.
PROVISIONAL ARTICLE 10- Local elections shall be held
within a year of the first session of the Grand National Assembly
of Turkey.
PROVISIONAL ARTICLE 11- Regular and substitute
members of the Constitutional Court who were in office on the
date of the adoption of the Constitution by referendum shall
continue to hold office and exercise their functions. The members
previously elected by the Constitutional Court to specific offices
shall retain the status thus acquired.
No election shall be held to fill the vacant seats of the regular
members of the Constitutional Court until the number of these
members falls to eleven, nor shall an election be held to fill
the vacant seats of substitute members until the total number
of regular and substitute members falls to fifteen. Until the
Constitutional Court adapts to the new system, the principles
and order of precedence set forth in the Constitution shall
be observed in the elections which are to be held because the
number of regular members has fallen below eleven, or because
the total number of regular and substitute members has fallen
below fifteen.
Until the number of regular members of the Constitutional
Court falls to eleven, the quorum prescribed by Act No. 44 of
April 22, 1962, shall be observed in all cases and proceedings.
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PROVISIONAL ARTICLE 12- Persons appointed by the
Head of State as regular and substitute members of the High
Council of Judges and Prosecutors from among the members
of the High Court of Appeals and the Council of State under
Provisional Article 1 of Act No. 2461 of May 13, 1981, on the High
Council of Judges and Prosecutors; as Chief Public Prosecutor
and Deputy Chief Public Prosecutor in accordance with the
Provisional Article appended to Act No. 1730 on the High Court
of Appeals under Act No. 2483 of June 25, 1981; and as President,
Chief Public Prosecutor, deputy presidents and heads of division
of the Council of State under Provisional Article 14, paragraph 2
of Act No. 2575 of January 6, 1982 on the Council of State shall
continue to exercise their functions until the end of the term of
office for which they were elected.
The provisions of the provisional articles of Act No. 2576 of 6
January 1982 concerning the appointment of the presidents and
members of administrative courts shall also remain in force.
PROVISIONAL ARTICLE 13- The elections of one regular
and one substitute member to be elected to the High Council of
Judges and Prosecutors from among the members of the High
Court of Appeals shall take place in twenty days following the
entry into force of the Constitution.
Until the elected members assume the office, the quorum for
meetings of the Council shall be met with the participation of
substitute members.
PROVISIONAL ARTICLE 14- The obligation of the unions to
deposit their revenues in the state banks shall be fulfilled within
two years of the entry into force of the Constitution, at the latest.
PROVISIONAL ARTICLE 15- (Repealed on September 12,
2010; Act No. 5982)
PROVISIONAL ARTICLE 16- Persons who fail to participate
in the referendum on the Constitution without valid legal or
actual reasons despite being entitled to vote and being included
in the register of electors and the polling station register
compiled for the referendum, shall neither participate nor stand
for election in general elections, by-elections, local elections or
referendums for a period of five years following the referendum
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on the Constitution.
PROVISIONAL ARTICLE 17- (Added on May 10, 2007; Act
No. 5659)
In the first general elections held after the entry into force of
this Act on the addition of a provisional article to the Turkish
Constitution, the last paragraph of Article 67 of the Constitution
shall not be applied to the provisions of Parliamentary Elections
Act No. 2839, dated June 10, 1983, concerning the inclusion of
independent candidates on joint ballot paper.
PROVISIONAL ARTICLE 18- (Added on September 12,
2010; Act No. 5982)
The current substitute members of the Constitutional Court
shall acquire the status of regular members on the date of entry
into force of this Act.
Within thirty days of the date of entry into force of this
Act, the Grand National Assembly of Turkey shall elect one
member each from among three candidates nominated by the
General Assembly of the Court of Accounts and the heads of bar
associations.
In order to nominate candidates for the election of the
members to be held by the Grand National Assembly of Turkey:
a) The President of the Court of Accounts shall announce the
beginning of the application process for candidacy within five
days of the date of entry into force of this Act. Candidates shall
apply to the Presidency within five days of the announcement.
The General Assembly of the Court of Accounts shall hold
elections within five days of the final date of application. The
three candidates obtaining the greatest number of votes shall be
nominated in these elections in which each member of the Court
of Accounts may vote.17
b) The Head of the Turkish Union of Bar Associations shall
announce the beginning of the application process for candidacy
within five days of the date of entry into force of this Act.
17 The phrase “…for only one candidate…” following the phrase “Each
member of the Court of Accounts” in the last sentence of this subparagraph was
annulled by the decision of the Constitutional Court dated July 7, 2010 numbered
E. 2010/49, K. 2010/87 (Official Gazette numbered 27659 of August 1, 2010).
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Candidates shall apply to the Turkish Union of Bar Associations
within five days of announcement. The election shall be held at
the place and time indicated in the announcement of the Turkish
Union of Bar Association within five days following the final
date of application by the heads of the Bar Associations. The
three candidates obtaining the greatest number of votes shall
be nominated in these elections in which each head of bar may
vote.18
c) The names of those nominated through the elections held
in accordance with subparagraphs (a) and (b) shall be notified
to the Office of the Speaker of the Grand National Assembly of
Turkey by the Presidency of the Court of Accounts and of the
Turkish Union of Bar Associations on the day following the
elections.
ç) Elections shall be held at the Grand National Assembly of
Turkey within ten days of the notification made in accordance
with subparagraph (c). In elections held for each vacant position,
a twothirds majority of the total number of members in the first
ballot and the absolute majority of the total number of members
is required in the second ballot; in case the absolute majority of
the total number of members is not attained in the second ballot,
a third ballot shall be held between two candidates obtaining the
greatest number of votes in the second ballot; the candidate who
obtains the greatest number of votes in the third ballot shall be
elected.
Following the vacancy of the positions allocated to the High
Court of Appeals and the Council of State, the President of the
Republic shall choose one member for each vacancy, from among
three candidates to be nominated for each vacant position by
the Council of Higher Education from among members of the
teaching staff in the fields of law, economics and political sciences
who are not members of the Council of Higher Education.
The current members, as well as substitute members elected
from the quotas allocated to institutions that have nominated
members for the Constitutional Court shall be taken into
18 The phrase “…for only one candidate…” following the phrase “Each head of
bar” in the last sentence of this subparagraph was annulled by the decision of the
Constitutional Court dated July 7, 2010 numbered E. 2010/49, K. 2010/87 (Official
Gazette numbered 27659 of August 1, 2010).
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consideration in the final election.
The status of those who have been appointed to certain posts
in the Constitutional Court shall continue until the end of their
term of office. Those who are members on the date of entry into
force of this Act shall continue in their post until the statutory
age limit.
Necessary legal arrangements on individual applications
shall be completed within two years. Individual applications
shall be accepted as from the date of the entry into force of the
implementing law.
PROVISIONAL ARTICLE 19- (Added on September 12,
2010; Act No. 5982)
The members of the High Council of Judges and Prosecutors
shall be elected within thirty days as of the date of entry into
force of this Act in accordance with the principles and procedures
indicated below:
a) President of the Republic shall appoint four members, for
whom there is no impediment to becoming a judge, from among
teaching staff working in the field of law for at least fifteen
years and lawyers who have completed fifteen years of active
professional service.19
b) The General Assembly of the High Court of Appeals shall
select three regular and two substitute members from among
members of the Court. The First President of the High Court of
Appeals shall announce the beginning of the application process
for candidacy within seven days of the entry into force of this Act.
The candidates shall apply to the First Presidency within seven
days of the date of the announcement. The General Assembly of
the High Court of Appeals shall hold elections within fifteen days
from the final date of application. In the elections, where each
19 The phrase “…economics and political sciences…” following the phrase “law,”,
and the phrase “…high level executives…” following the phrase “teaching staff”
in the first sentence of this sub-paragraph, and the second sentence “The President
of the Republic shall elect member of the Council, to be elected from high level
executives, from among take office as minister, undersecretary to ministry, deputy
undersecretary to ministry, governor, General Secretary of the Presidency, and
director-general of public institutions, head of supervisory board.” were annulled
by the decision of the Constitutional Court dated July 7, 2010 numbered E.
2010/49, K. 2010/87 (Official Gazette numbered 27659 of August 1, 2010).
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member of the High Court of Appeals may vote, the candidates
with the greatest number of votes are elected as regular and
substitute members respectively.20
c) The General Assembly of the Council of State shall select
one regular and one substitute member from among members of
the Court. The President of the Council of State shall announce
the beginning of the application process for candidacy within
seven days of the entry into force of this Act. The candidates
shall apply to the Presidency within seven days of the date of
the announcement. The General Assembly of the Council of State
shall hold elections within fifteen days from the final date of
application. In the elections, where each member of the Council of
State may vote, the candidates with the greatest number of votes
are elected as regular and substitute members respectively.21
ç) The General Assembly of the Turkish Justice Academy
shall select one regular and one substitute member from among
its members to the Supreme Council of Judges and Prosecutors.
The President of the Justice Academy of Turkey shall announce
the beginning of the application process for candidacy within
seven days of the entry into force of this Act. The candidates
shall apply to the Presidency within seven days of the date of the
announcement. The General Assembly of the Justice Academy of
Turkey shall hold elections within fifteen days from the final date
of application. In the elections, where each member may vote,
the candidates with the greatest number of votes are elected as
regular and substitute members respectively.22
d) Seven regular and four substitute members shall be elected
by civil judges and public prosecutors under the direction and
supervision of the Supreme Board of Election from among civil
20 The phrase “…for only a member…” following the phrase “Each member of the
High Court of Appeals” in the last sentence of this subparagraph was annulled by the decision of the Constitutional Court dated July 7, 2010 numbered E.
2010/49, K. 2010/87 (Official Gazette numbered 27659 of August 1, 2010).
21 The phrase “…for only a member…” following the phrase “Each member of the
Council of State” in the last sentence of this subparagraph was annulled by
the decision of the Constitutional Court dated July 7, 2010 numbered E. 2010/49,
K. 2010/87 (Official Gazette numbered 27659 of August 1, 2010).
22 The phrase “…for only a member…” following the phrase “Each member”
in the last sentence of this subparagraph was annulled by the decision of the
Constitutional Court dated July 7, 2010 numbered E. 2010/49, K. 2010/87 (Official
Gazette numbered 27659 of August 1, 2010).
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judges and public prosecutors who are first category judges and
have not lost the qualifications for being first category judges.
Within five days of the date of entry into force of this Act, the
Supreme Board of Election shall announce the beginning of the
application process for candidacy. The candidates shall apply
within three days of the date of announcement. The Supreme
Board of Election shall examine the applications, finalize and
announce the list of candidates within two days following the
expiry of the date of application. Objections to this list may be
made within the following two days. The objections shall be
examined and finalized and the definitive list of candidates
shall be announced within two days following the expiry of
the objection period. Judges and public prosecutors working
in provinces or districts shall vote in elections to be held, under
the direction and supervision of the provincial election boards,
in each province and district on the second Sunday following
the date of announcement of the definitive list by the Supreme
Board of Election. The provincial election boards shall establish
ballot box committees according to the number of judges and
public prosecutors that are to vote in that province. Provincial
election boards shall decide on complaints and objections
about proceedings, measures, and decisions of the ballot box
committees. Candidates shall not conduct campaigns; they may
post their résumé on an internet site allocated for this purpose
within the framework of the principles and procedures defined
by the Supreme Board of Election. The candidates obtaining the
greatest number of votes are elected as regular and substitute
members respectively. The Supreme Board of Election shall
determine other matters concerning the ballot papers. The
Supreme Board of Election may have the ballot papers printed or
may have these printed through provincial election boards as it
may deem appropriate. In the elections to be held, the provisions
of the Act No. 298, Basic Rules on Elections and Voting Registers,
dated April 4, 1961, that are not in conflict with this subparagraph
shall apply.23
e) Three regular and two substitute members shall be elected
23 The eleventh sentence in the this subparagraph “Each electorate shall vote
for only one candidate in this elections.” was annulled by the decision of the
Constitutional Court dated July 7, 2010 numbered E. 2010/49, K. 2010/87 (Official
Gazette numbered 27659 of August 1, 2010)
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by civil judges and public prosecutors under the direction and
supervision of the Supreme Board of Election from among civil
judges and public prosecutors who are first category judges
and have not lost the qualifications for being first category
judges. In the elections, in provinces where there are regional
administrative courts, held under the direction and supervision
of the provincial election boards, judges and public prosecutors
working in these regional administrative courts and in courts
subject to authority of those courts shall vote. The provisions of
subparagraph (d) shall apply to these elections as well.
The regular members of the High Council of Judges and
Prosecutors elected in accordance with subparagraphs (a), (ç),
(d) and (e) of the first paragraph, shall begin to hold office on the
working day following the date of entry into force of this Act.
Regular and substitute members of the High Council of
Judges and Prosecutors elected from the High Court of Appeals
and Council of State, incumbent on date of entry into force of this
Act, shall continue their duties until the end of their term of office.
The members elected in accordance with subparagraph (b) of the
first paragraph shall replace, in sequence, the members elected
from High Court of Appeals whose term of office have expired,
and the members elected in accordance with subparagraph (c)
of the first paragraph shall replace, in sequence, the members
elected from Council of State whose terms of office have expired.
The term of office of the members elected according to
subparagraph (b) and (c) of the first paragraph and who took
office in accordance with the third paragraph ends when the
term of office of those elected in accordance with subparagraph
(a), (ç), (d) and (e) of the first paragraph expires.
Regular members elected to the High Council of Judges and
Prosecutors shall have the same financial, social and pension
rights determined for the Head of Chamber of the High Court
of Appeals in the relevant legislation, until the necessary
arrangements are made in related laws. Furthermore, regular
members of the Council, except for the President, shall receive
additional compensation on a monthly basis in the amount to be
calculated by multiplying the index of 30000 by the coefficient
applied to salaries of civil servants.
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Until arrangements are made in the relevant laws, the High
Council of Judges and Prosecutors:
a) Shall operate in the form of a board in accordance with
legal provisions in force as long as they are not contrary to the
provisions of the Constitution,
b) Shall convene under the presidency of the Minister of
Justice within one week following the date of holding office of
the regular members in accordance with the second paragraph
and shall elect a temporary deputy chairperson,
c) Shall convene with at least fifteen members and take
decisions by the absolute majority of the total number of
members,
ç) The secretariat functions shall be conducted by the Ministry
of Justice.
Until inspectors of the Council and judiciary inspectors are
appointed, the existing judiciary inspectors shall carry out their
duties under the title of inspector of the Council and judiciary
inspector.
The provisions of this Article shall be applied until the
necessary arrangements are made in the relevant laws.
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THE CONSTITUTION OF THE REPUBLIC OF TURKEY
PART SEVEN
Final Provisions
I. Amending the Constitution, participation in elections and
referenda
ARTICLE 175- (As amended on May 17, 1987; Act No. 3361)
Amendment to the Constitution shall be proposed in writing
by at least one-third of the total number of members of the Grand
National Assembly of Turkey. Bills to amend the Constitution
shall be debated twice in the Plenary. The adoption of a bill for
an amendment shall require a three-fifths majority of the total
number of members of the Assembly by secret ballot.
The consideration and adoption of bills for the amendments
to the Constitution shall be subject to the provisions governing
the consideration and adoption of laws, with the exception of the
conditions set forth in this Article.
The President of the Republic may send back the laws on the
amendments to the Constitution to the Grand National Assembly
of Turkey for reconsideration. If the Assembly readopts, by a
two-thirds majority of the total number of members, the law sent
back by the President of the Republic without any amendment,
the President of the Republic may submit the law to referendum.
If a law on the amendment to the Constitution is adopted
by a three-fifths or less than two-thirds majority of the total
number of members of the Assembly and is not sent back by the
President of the Republic to the Assembly for reconsideration,
it shall be published in the Official Gazette and be submitted to
referendum.
A law on the Constitutional amendment adopted by a twothirds majority of the total number of members of the Grand
National Assembly of Turkey directly or upon the sending back
of the law by the President of the Republic or its articles deemed
necessary may be submitted to a referendum by the President
of the Republic. A law on the amendment to the Constitution or
the related articles that are not submitted to referendum shall be
published in the Official Gazette.
Entry into force of the laws on the amendment to the
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Constitution submitted to referendum shall require the
affirmative vote of more than half of the valid votes cast.
The Grand National Assembly of Turkey, in adopting the law
on the Constitutional amendment shall also decide on which
provisions shall be submitted to referendum together and which
shall be submitted individually, in case the law is submitted to
referendum.
Every measure including fines shall be taken by law to secure
participation in referenda, general elections, by-elections and
local elections.
II. Preamble and headings of articles
ARTICLE 176- The preamble, which states the basic views
and principles the Constitution is based on, shall form an integral
part of the Constitution.
The headings of articles merely indicate the subject matter
of the articles, their order, and the connections between them.
These headings shall not be regarded as a part of the text of the
Constitution.
III. Entry into force of the Constitution
ARTICLE 177- On its adoption by referendum and its
publication in the Official Gazette, this Constitution shall become
the Constitution of the Republic of Turkey and shall come into
force in its entirety, subject to the following exceptions and the
provisions relating to entry into force of these exceptions:
a) The provisions of Part Two Chapter II relating to personal
liberty and security, the press and publication, and the right and
freedom of assembly.
The provisions of Chapter III relating to labour, collective
labour agreements, the right to strike, and lockout.
These provisions shall come into force when the relevant laws
are promulgated, or when the existing laws are amended, and
in any case, at the latest, when the Grand National Assembly of
Turkey assumes its functions. However, until their entry into
force, existing laws and the decrees and decisions of the Council
of National Security shall apply.
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b) The provisions of Part Two relating to political parties and
the right to engage in political activities, shall come into force on
the promulgation of the new Political Parties Act, which is to be
prepared in accordance with these provisions.
The provisions on right to vote and to be elected shall come
into force on the promulgation of the Elections Act also to be
prepared in accordance with these provisions.
c) The provisions of Part Three, relating to legislative power:
These provisions shall come into force on the proclamation
of the results of the first general elections. However, the
provisions relating to the functions and powers of the Grand
National Assembly of Turkey which take place in this section
shall be exercised by the Council of National Security until the
Grand National Assembly of Turkey assumes its functions; the
provisions of Act No. 2485 of June 29, 1981 on the Constituent
Assembly being reserved.
d) The provisions of Part Three relating to the functions and
powers of the President of the Republic and to the State Supervisory
Council under the heading “President of the Republic”; to
regulations, National Defence, procedures governing emergency
rule under the heading “Council of Ministers”; to all other
provisions under the heading “Administration”, except local
administration, and except the Atatürk High Institution of
Culture, Language and History; and all the provisions relating
to the judiciary, except the State Security Courts, shall come
into force on publication in the Official Gazette of the adoption
by referendum of the Constitution. The provisions concerning
the President of the Republic and the Council of Ministers
which have not gone into effect shall come into force when the
Grand National Assembly of Turkey assumes its functions; the
provisions relating to local administrations and to the State
Security Courts shall come into force on the promulgation of the
relevant laws.
e) If new legislation, or amendments to existing legislation
are required in connection with the constitutional provisions
which are to come into force on the proclamation of the adoption
by referendum of the Constitution or in connection with existing
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or future institutions, organizations and agencies, the procedure
to be followed shall be subject to those provisions of existing
laws which are not unconstitutional, or to the provisions of the
Constitution, in accordance with Article 11 of the Constitution.
f) The provision of second paragraph of Article 164 regulating
the procedure for the consideration of final accounts bill shall
come into force in 1984.
PROVISIONAL ARTICLES NOT INCLUDED IN THE
CONSTITUTION OF THE REPUBLIC OF TURKEY
Provisional Article of Act No. 4709 dated October 3, 2001
PROVISIONAL ARTICLE - A) The last paragraph added to
the Article 67 of the Constitution by Article 24 of this Act shall
not be implemented at the first general election to be held after
this Act goes into effect.
B) The amendments made by Article 28 of this Act to Article
87 of the Constitution shall not apply to those who perpetrate
the acts described in Article 14 of the Constitution before this Act
goes into effect.
Provisional Article of Act No. 4777 dated December 27, 2002
PROVISIONAL ARTICLE 1- The last paragraph of Article
67 of the Constitution of the Republic of Turkey shall not be
implemented in the first by-elections to be held during the 22nd
term of the Grand National Assembly of Turkey.
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CODE ON ESTABLISHMENT AND RULES OF
PROCEDURES OF THE CONSTITUTIONAL COURT24
24 This text is taken from the official website of the Turkish Constitutional Court
(19.1.2015) www.anayasa.gov.tr
247
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CODE ON ESTABLISHMENT AND RULES OF
PROCEDURES OF THE CONSTİTUTİONAL COURT
SECTION ONE
General Provisions
CHAPTER ONE
Aim, Scope and Definitions
Aim and scope: Art 1......................................................................255
Definitions: Art 2.............................................................................255
CHAPTER TWO
Duties, Authorities and the Budget of the Court
The duties and authorities of the court: Art 3............................256
The budget of the court: Art 4.......................................................257
Internal regulation: Art 5.............................................................. 258
SECTION TWO
Membership to the Constitutional Court,
CHAPTER ONE
Qualities, Election and Appointment of the Members
Composition of the Court and competence of the members for
being elected: Art 6.........................................................................259
Election of members: Art 7.................................................................
Notification to those elected as members and non-acceptance of
the duty by those elected: Art 8....................................................260
Taking oath: Art 9...........................................................................261
Duration of membership and its guarantee: Art 10...................262
Membership becoming vacant and termination of membership:
Art 11................................................................................................262
The election of the president, deputy presidents and of the
president and the deputy president of the court of disputes: Art
12.......................................................................................................263
The duties and authorities of the president: Art 13...................263
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CODE ON ESTABLISHMENT AND RULES OF PROCEDURES OF THE CONSTITUTIONAL COURT
The duties and authorities of the deputy president: Art 14.....264
Liabilities of the Members: Art15.................................................264
CHAPTER TWO
Provisions Concerning Disciplinary Procedures and Crimes
and Punishments
Inspection and prosecution about the president and the
members: Art 16..............................................................................265
Judicial investigation and prosecution Art 17............................266
Disciplinary investigation procedures: Art 18............................267
Disciplinary penalties and their execution: Art 19.....................269
SECTION THREE
Organizational Structure
CHAPTER ONE
Organization of the Court
Organization: Art 20.......................................................................270
General Assembly: Art 21..............................................................270
Sections and commissions: Art 22................................................271
CHAPTER TWO
The Secretariat General, Rapporteurs and Deputy
Rapporteurs
Duties of the Secretary General and the deputies of the
Secretary General: Art 23...............................................................271
Rapporteurs: Art 24........................................................................272
Assignment of rapporteurs, their staffing rights, disciplinary
and penal works: Art 25.................................................................273
Duties of rapporteurs: Art 26........................................................274
Assistant rapporteurs and candidates: Art 27............................275
Higher Disciplinary Board: Art 28...............................................276
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CODE ON ESTABLISHMENT AND RULES OF PROCEDURES OF THE CONSTITUTIONAL COURT
CHAPTER THREE
Service Units
Service Units: Art 29.......................................................................277
The Court staff and appointment thereof: Art 30......................278
Provisional assignment: Art 31.....................................................278
Contracted personnel: Art 32........................................................279
Service provision: Art 33...............................................................279
Appointment of administrative staff to the staff positions of the
Ministry of Justice: Art 34..............................................................279
SECTION FOUR
Procedures of Examination and Trial
CHAPTER ONE
Action for annulment
Those who are authorized to lodge action for annulment: Art 35
...........................................................................................................280
Action for annulment regarding its form and its limit: Art 36...280
Period for filing an action of annulment: Art 37.........................281
Principles to be observed during the lodging of an action for
annulment: Art 38...........................................................................281
Rectification of shortcomings and providing opinions: Art 39..282
CHAPTER TWO
Remedy of objection
Contradiction with the Constitution being asserted by courts:
Art 40................................................................................................283
Circumstances preventing application: Art 41...........................284
CHAPTER THREE
Common Provisions Concerning Actions of Annulment and
Objection
Arrangements contradiction with the Constitution of which
cannot be propounded: Art 42......................................................285
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CODE ON ESTABLISHMENT AND RULES OF PROCEDURES OF THE CONSTITUTIONAL COURT
Examination over the file and not being affixed by justification:
Art 43................................................................................................286
Negotiations on the files that have been taken on the agenda:
Art 44................................................................................................286
CHAPTER FOUR
Individual Application
Individual application right: Art 45.............................................287
Persons who have the right of individual application: Art 46....287
Individual application procedure: Art 47...................................288
Conditions for and examination of the admissibility of
individual applications: Art 48.....................................................289
Examination on Merits: Art 49......................................................289
Decisions: Art 50.............................................................................290
Misuse of the right of application: Art 51...................................291
CHAPTER FIVE
Cases of Banning of Political Parties and Abolition of
Immunity
Cases of Banning of Political Parties: Art 52...............................291
Passing a warning to political parties: Art 53.............................291
Request of annulment in cases of abolition of immunity and
foreclosure of membership to the parliament: Art 54...............292
SECTION SIX
Financial Supervision of Political Parties
Financial supervision of political parties: Art 55.......................294
The initial and principal examination in financial supervision:
Art 56................................................................................................294
SECTION SEVEN
Trial by the Supreme Court
Hearing: Art 57................................................................................295
Re-examination: Art 58..................................................................295
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CODE ON ESTABLISHMENT AND RULES OF PROCEDURES OF THE CONSTITUTIONAL COURT
SECTION EIGHT
Other Issues in Relation to Trial
Circumstances Preventing from Participating in the Hearing or
in Other Businesses: Art 59...........................................................297
Rejection of the President and the members: Art 60..................297
Refrain: Art 61.................................................................................298
The liability to give information and documents and information
with the quality of State secrets: Art 62.........................................298
Avail of vehicles, tools and staff: Art 63......................................299
Fee exemption: Art 64....................................................................299
CHAPTER NINE
Decisions
The form of the vote and quorum for decision: Art 65.............299
Decisions of the Court: Art 66.......................................................300
Retrial: Art 67..................................................................................301
SECTION FIVE
Financial Provisions, Staff and Personal Actions
CHAPTER ONE
Financial, Social and Other Rights
Financial rights: Art 68...................................................................302
Monthly salary chart: Art 69.........................................................302
Permission: Article 70.....................................................................304
Health affairs and treatment: Art 71............................................305
Awarding of certificates of the day of establishment and of
honor: Art 72....................................................................................305
Being sent to foreign countries: Art 73........................................305
Staff positions: Art 74.....................................................................306
Transitional provisions: Provisioanl Art 1..................................306
Amended and abolished provisions: Art 75...............................308
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Force: Art 76....................................................................................309
Execution: Art 77............................................................................309
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CODE ON ESTABLISHMENT AND RULES OF PROCEDURES OF THE CONSTITUTIONAL COURT
CODE ON ESTABLISHMENT AND RULES OF
PROCEDURES OF THE CONSTITUTIONAL COURT
Code No: 6216
Date of Ratification
: 30/03/2011
SECTION ONE
General Provisions
CHAPTER ONE
Aim, Scope and Definitions
Aim and scope
ARTICLE 1 - The aim and scope of this Code is to regulate the
principles pertaining to the structure of the Constitutional Court,
its duties, trial procedures, President, deputy presidents and the
selection of its members, disciplinary and staffing affairs and
rapporteurs, deputy rapporteurs and the quality, appointment,
duties and responsibilities of their staff, their disciplinary and
staffing affairs.
Definitions
ARTICLE 2 - (1) In the implementation of this Code;
a) President shall mean: the President of the Constitutional
Court,
b) Presidency shall mean: the Presidency of the Constitutional
Court,
c) Deputy president shall mean: the members who are elected
by the General Assembly for four years to act as presidents of
sections and as deputies to the President,
ç) Section shall mean: The board that is composed of seven
members under the presidency of a deputy president and that
has the authority to convene under the deputy president with
the participation of four members and make decisions regarding
individual applications,
A) The general assembly shall mean:
composed of the seventeen members,
The board that is
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e) The internal regulations shall mean: the Internal Regulation
of the Constitutional Court,
f) Seniority shall mean: The time that has passed since
election as a member of the Constitutional Court or being older,
in terms of age, than those that have been elected on the same
date,
g) the Commission shall mean: the boards that are established
so as to carry out the examination of admissibility of individual
applications,
ğ) the Court shall mean: the Constitutional Court,
h) Member shall mean: all of the members including the
president and the deputy presidents,
ı) Supreme Court shall mean: The General Assembly of the
Court that is tasked to process persons that have been specified
in clauses six and seven of article 148 of the Constitution for
crimes relating to their duties.
CHAPTER TWO
Duties, Authorities and the Budget of the Court
The duties and authorities of the court
ARTICLE 3- (1) The duties and authorities of the court are as
follows:
a) To process actions of annulment that have been lodged
upon the claim that the codes, decrees in the force of law, the
Internal Regulation of the Grand National Assembly of Turkey
or certain articles or provisions are in breach of the Constitution
regarding their form and principle; and amendments to the
Constitution regarding their form only.
b) To decide on matters that have been forwarded to it by
courts by way of objection as per article 152 of the Constitution.
c) To make a ruling concerning individual applications that
have been made as per article 148 of the Constitution.
ç) To process as the Supreme Court, the President of the
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Republic, the Speaker of the Grand National Assembly of
Turkey, members of the Council of Ministers, the presidents and
members, chief prosecutors of the Supreme Court of Appeals, the
Council of State, the Military Court of Appeals, the High Military
Administrative Court, the deputy of the Chief Prosecutor of the
Republic, the presidents and members of the High Council of
Judges and Prosecutors and the Supreme Court of Accounts,
the Chief of General Staff, commanders of the Army, Navy and
the Air Forces, the General Commander of the Gendarmarie for
crimes regarding their duties.
d) To make a ruling regarding actions for the banning and
deprivation from the State assistance of political parties and
regarding cautionary appeals and requests for the determination
of the status of dissolution.
e) To control and to ensure the performance of the control
regarding the congruity with the law of acquisition of property
of political parties and their revenues and expenditures.
f) In the event of decision by the Grand National Assembly
of Turkey to lift the legislative immunity of members of the
parliament or to revoke their status as members of the parliament
or to lift the the immunity of the ministers who are not members
of the parliament, to make a ruling regarding the requests
of annulment by the member of the parliament concerned
or by another member of the parliament regarding a breach
of the provisions of the Constitution, a code or of the Internal
Regulations of the Grand National Assembly of Turkey.
g) To elect among its members the President of the Court of
Constitution and deputy presidents and the President of the
Court of Disputes and the Deputy President thereof.
ğ) To perform other tasks that have been assigned to it in the
Constitution.
The budget of the court
ARTICLE 4- (1) The Court is managed with its own budget
within the central administration budget.
(2) The Secretary General of the Court shall be present at the
talks concerning the budget at the Grand National Assembly of
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Turkey.
Internal regulation
ARTICLE 5 - (1) Within the scope of this Code;
a) The internal order of the court, its operation, organization,
working procedures, books and records that shall be kept,
the order of flow of documents including electronic medium,
archiving thereof, the library of the Court, its Secretariat General
and the administrative organization, duties and responsibilities
of administrative staff,
b) Keeping of the staff files of the President, members,
rapporteurs and deputy rapporteurs, disciplinary affairs, their
leaves and health situations, the form and place of the garments
that they shall wear,
c) Working and trial procedures and principles of the court,
management and recording of sessions,
shall be regulated by way of an Internal Regulation that shall
be accepted by the General Assembly.
(2) The Internal Regulation shall be published in the Official
Gazette.
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SECTION TWO
Membership to the Constitutional Court,
CHAPTER ONE
Qualities, Election and Appointment of the Members
Composition of the Court and competence of the members
for being elected
ARTICLE 6- (1) The Court is composed of seventeen members.
(2) In order to be able to be elected as a member of the Court,
one shall have one of the qualities listed below:
a) Being a member of the Supreme Court of Appeals, Council
of State, the Military Court of Appeals, the High Military
Administrative Court or being the President of the Supreme
Court of Accounts or a member thereof.
b) To be in service at the Court for at least five years as a
rapporteur.
c) To have turned forty-five years of age, accomplished higher
education and not to have a condition that prevents from being
accepted in the profession of justice.
1) To have earned the title of a professor or that of an associate
professor in the branches of law, economy or political sciences of
higher education institutions.
2) To have worked as an independent lawyer for a duration of
at least twenty years.
3) Regarding members who will be elected from high level
administrators who have worked in public service at least for
twenty years, to be the president or a member of the Higher
Education Council, or the rector or the dean of a higher education
institution or an undersecretary, deputy undersecretary,
ambassador or a governor,
4) To a first class judge or for prosecutors, to have worked at
least for twenty years including candidacy.
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Election of members
ARTICLE 7- (1) The Grand National Assembly of Turkey
shall elect; two members from the President and members of
the General Assembly of the Supreme Court of Accounts among
three candidates that it shall nominate for each vacant position;
and a member from among three candidates that the chairpersons
of bar associations shall nominate among independent lawyers
by way of a secret voting. In such election that shall take place
at the Grand National Assembly of Turkey, at the first round of
votes for each vacant membership, a majority by two thirds of
the total number of members and in the second vote, the absolute
majority of the total number of members are sought. If, in the
second voting, the absolute majority cannot be achieved, a third
voting for the two candidates who have received the most votes;
in the third vote, the candidate that receives the most votes shall
be elected as member. The voting shall continue until equality
between the candidates who have received equal number of
votes in the second and third round of votes is disrupted.
(2) The President of the Republic shall select; two members
from the Supreme Court of Appeals, one member from the
Military Court of Appeals, one member from the Military High
Administrative Court among three members that they shall
nominate among their presidents and members as candidates
for each of the vacant positions; three members from among
the candidates that shall be nominated by the Higher Education
Council for each of the vacant positions whereby at least two
thereof shall be from the teaching staff at the law, economy and
political sciences branches and who are not their members; four
members among high level administrators, independent lawyers,
first class judges and prosecutors and among the rapporteurs of
the Constitutional Court who have served no less than five years
as rapporteurs.
(3) The three persons to receive the most of the votes in the
elections that shall be carried out for the nomination of candidates
for membership of the Court by the general assemblies of the
Supreme Court of Appeals, the Council of State, the Military
Court of Appeals, the Military High Administrative Court, the
Supreme Court of Accounts and by the presidents of the Higher
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Education Council and the bar associations. Elections that shall
take place as per this clause shall be carried out in a single round
and each member can cast a vote for three candidates for each
vacant membership. The voting shall continue until equality
between the candidates who have received equal number votes
is disrupted.
Notification to those elected as members and non-acceptance
of the duty by those elected
ARTICLE 8- (1) Members who have been selected by the
Grand National Assembly of Turkey and the members who
have been selected by the President of the Republic shall be
notified to the Court in writing by the Grand National Assembly
of Turkey and by the Presidency of the Republic, respectively.
The Presidency of the Constitutional Court shall make an
announcement regarding the situation to those who have been
elected.
(2) The names and surnames of the elected shall be published
in the Official Gazette.
(3) In the event of non-acceptance of such duty by s/he who
is elected as a member of the Court, such matter shall be notified
in writing by the President, to the Grand National Assembly
of Turkey, should s/he be elected by it; to the Presidency of the
Republic should s/he be elected by the President of the Republic
and to the respective institution or board if s/he has been
nominated as a candidate.
(4) The new member shall be elected as per the procedure set
out in article 7, within one month from such notification. In
cases where boards that shall nominate are on holiday, such
duration shall commence as of the end of the holiday.
Taking oath
ARTICLE 9- (1) Before the members take office, they shall
take the oath below in the presence of the President of the
Republic, the Speaker of the Grand National Assembly of
Turkey, the Prime Minister, the presidents and chief prosecutors
of high judicial bodies, the Minister of Justice and other high
level administrators that are included in the State protocol and
those who participate from among retired members and others
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concerned who shall be invited by the President; and before the
President of the Constitutional Court and the members thereof:
“I hereby swear on my dignity and honor before the great
Turkish Nation that I shall protect the Constitution of the
Republic of Turkey and the fundamental rights and freedoms and
I shall perform my duty in righteousness, fairness, impartiality
and with a sense of respect for the truth, free from all impacts
and concerns and with an understanding of the law which is in
harmony with the basic principles on which the Constitution
relies and following only the orders of my own conscience.”
Duration of membership and its guarantee
ARTICLE 10- (1) The members of the Court shall be elected
for twelve years. A person cannot be elected as a member twice.
(2) The President and the members cannot be dismissed; they
cannot be forwarded for retirement before the completion of
their office or before the age of sixty-five.
(3) Duties of the President and of the members shall cease
only in cases prescribed in the Constitution and in this Code.
Membership
membership
becoming
vacant
and
termination
of
ARTICLE 11- (1) The President, two months prior to the
termination of the office of a member or in the event of a vacancy
otherwise, immediately, informs such consequence in writing to
those who are authorized to elect and nominate a member and
within two months starting from such date and an election is
carried out from the source of membership as per the procedure
set out in article 7.
(2) The President and members can either request their
retirement in writing or similarly withdraw from their duty
without being bound by duration and acceptance; their office
shall end at the end of twelve years starting from the date of their
election and they shall retire in any case when they turn the age
of sixty-five.
(3) Presidency and membership shall terminate automatically
upon conviction of or loss of Turkish citizenship because of a
crime that, regarding the Code on Judges and Prosecutors No.
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2802 and dated 24/2/1983, requires expulsion from profession;
and it shall terminate upon the decision by the absolute majority
of the total number of members of the Court in cases where it is
firmly understood that the duty cannot be performed for health
reasons; or it shall terminate as per article 19 upon the decision
of the General Assembly when the member has been punished
with an invitation to self-withdraw from membership or when s/
he is considered as resigned.
(4) Of the member who will be nominated by the Military
Supreme Court of Appeals and the Military High Administrative
Court, all rights regarding retirement arising from being a
member of the military are reserved.
The election of the president, deputy presidents and of the
president and the deputy president of the court of disputes
ARTICLE 12- (1) The President and deputy presidents, the
president of the court of disputes and his/her deputy shall be
elected among the members with secret vote and with the
absolute majority of the total number of members for four years.
(2) A member whose term expires may be re-elected.
Elections shall be completed within the two months before such
duties end.
(3) Matters pertaining to elections shall be regulated by an
Internal Regulation.
The duties and authorities of the president
ARTICLE 13- (1) The duties and authorities of the court are
as follows:
a) To set the agenda of the General Assembly and the sections
whenever required.
b) To preside over the General Assembly and the Supreme
Court; to task, if s/he deems necessary, one of the deputy
presidents for his/her place.
c) To assign and dismiss the Secretary General and the
deputies of the Secretary General.
ç) To represent the Court.
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d) To approve court regulations.
e) To supervise the compliance of expenditures with the
Court budget.
f) To assign members from the other section in cases where
one of the sections cannot convene due to an actual or legal
impossibility.
g) To appoint the Court staff.
ğ) To ensure effective and orderly working of the Court and
to take precautions that s/he deem necessary to such end.
h) To give information and to make statements to the press if
s/he deems necessary, or to task a deputy president, a member or
a rapporteur for this purpose.
The duties and authorities of the deputy president
ARTICLE 14- (1) Duties and authorities that belong to the
president shall be performed by the senior deputy president in
cases of vacant Presidency; in cases where the President is in
excused absence or on leave, such duties and authorities shall
be performed by the deputy president who shall be determined
by the President. In the absence of deputy presidents the most
senior member shall preside over the Court.
(2) The duties and authorities of the deputy presidents are as
follows:
a) To preside over sections and in cases deemed necessary by
the President, over the General Assembly or the Supreme Court.
b)To determine the agenda of the section of which they are
chairs.
c) To ensure that members serve in turns at the commissions
that shall be formed from within the sections.
ç) To perform other duties that are assigned by this Code and
that are offered by the President.
Liabilities of the Members
ARTICLE 15 - (1) Member;
a) Must act in compliance with the honor and solemnity of the
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profession of justice; they shall not enroll in any activities that
are contradictory to their duties,
b) Shall attend the sessions unless they have a valid excuse,
c) Shall not reveal their opinions and thoughts on matters that
are being handled at the Court,
ç) Shall preserve the secrecy of the session and the vote,
d) Shall not cast reticent votes during voting,
e) Shall not take on any official or private duty whatsoever apart
from their duties; they can attend to national and international
congresses, conferences and similar scientific conventions upon
the President’s permission.
(2) Cases of membership to associations pursuing sports,
social and cultural aims shall not constitute duties under the
condition that one does not accepts duties at the executive and
auditing boards thereof.
CHAPTER TWO
Provisions Concerning Disciplinary Procedures and Crimes
and Punishments
Inspection and prosecution about the president and the
members
ARTICLE 16- (1) Opening an investigation for the crimes
arising from the duties of the President and the members, or
that are alleged to have been committed during their offices, and
for their personal crimes and disciplinary actions, shall depend
on the decision of the General Assembly. However, in cases
of in flagrante delicto that fall under the competence of the
high criminal court, the investigation shall be conducted as per
general provisions.
(2) The President shall not process information and complaints
that have been received or that are understood to originate
from aliases, that are not signed, that do not have an address
and that do not involve a certain event or a cause and evidence
and grounds of which have not been demonstrated. However,
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in the event of reliance of such information and complaints on
material evidence, the required investigation and research shall
be conducted about such issue.
(3) In cases required, the President can have one of the
members perform a preliminary examination before taking the
matter to the General Assembly. The member who has been
assigned to carry out the examination to determine whether or
not there is grounds for opening an investigation shall inform the
President of the situation after completing his/her investigation.
(4) The matter shall be put on the agenda by the President
and discussed at the General Assembly. The member processed
shall not attend such discussion. In the event of a decision
by the General Assembly that there is no grounds for opening
an investigation, this decision shall be notified to the member
concerned and to informing and complaining parties.
(5) In the event of a decision for opening an investigation,
the General Assembly shall chose from the members, three
persons to set up the Investigation Board. The senior member
shall preside over the Investigation Board. The Investigation
Board shall have all the authorities that the Code of Criminal
Procedure dated 4/12/2004 and numbered 5271 bestow upon the
prosecutor of the Republic. Procedures that the Board requests
to be performed regarding the investigation shall be performed
immediately by the authorized judicial offices in their stead.
(6) Principles regarding the performance of preliminary
investigation, selection of the members of the Investigation
Board, performance of the investigation and taking of other
required decisions shall be regulated by the Internal Regulation.
(7) In the event of seeing or learning about acts of the President
similar to those written above, the procedures that have to be
carried out by the President shall be performed by the senior
deputy of the president.
Judicial investigation and prosecution
ARTICLE 17- (1) With the exception of cases of in flagrante
delicto relating to personal crimes that fall under the jurisdiction
of the high criminal court, protective measures concerning the
President and members as a result of crimes arising from their
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duties or that are alleged to have been committed during their
offices and their personal crimes can be decided only as per the
provisions of this article.
(2) In cases of in flagrante delicto that fall under the
competence of the high criminal court, the investigation shall be
conducted as per general provisions. In the event of preparation
of an indictment, prosecution shall be done by the Penal General
Assembly of the Supreme Court of Appeals.
(3) In case of crimes and personal crimes arising from duty
or that are alleged to have been committed in the course of duty
except for the case of in flagrante delicto regarding personal
crimes that fall under the competence of the high criminal court,
if the Investigation Board requests that protective measures that
have been specified in the Code No. 5271 and in other codes
be taken during the investigation, the General Assembly shall
decide on such issue.
(4) If the Investigation Board, after it completes the
investigation, does not deem the lodging of a public action
necessary it rules that there is no need for prosecution. If the
Board considers it necessary that a public action be lodged, it
shall send the indictment and the file to the Constitutional Court
in case of crimes that are in relation to their duties so that it sits as
the Supreme Court, and in case of personal crimes, it sends them
to the Presidency so as to be forwarded to the Penal General
Assembly of the Supreme Court of Appeals. Decisions that are
to be given by the Investigation Board shall be notified to the
accused and the plaintiff, if any.
Disciplinary investigation procedures
ARTICLE 18- (1) A disciplinary investigation within the
framework of the rules that are specified in article 16 shall be
carried out regarding the attitudes and conduct of the President
and the members that are not in compliance with the dignity and
the honor of the profession of justice or that lead to hindrance
of the service.
The General Assembly, depending on the
information at hand, the evidence and the nature of the attitude
and conduct relied upon, shall decide whether or not there is
room for a disciplinary investigation.
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(2) Penal investigation and prosecutions shall not prevent
the performance and application of disciplinary procedures
separately. Disciplinary investigation shall not be opened in
cases where one year has passed from when actions requiring
disciplinary investigation have been found out about.
Disciplinary penalties shall not be ruled in cases where five years
have passed from when the act that requires disciplinary penalty
has been committed. If the action that requires a disciplinary
penalty also constitutes a crime and the law stipulates a longer
statue of limitations for this crime and if a penal investigation or
a penal prosecution is opened, this period of statue of limitations
shall apply instead of the period that is specified in this clause.
Regarding those concerning whom the General Assembly
has decided to wait for the outcome of the prosecution, the
competence to rule for penalty shall be subject to statute of
limitations when one year passes from the finalization of the
decision of the court that executes the prosecution.
(3) If the General Assembly decides that a disciplinary
investigation be opened, the Investigation Board collects
information concerning the matter and determines the factual
evidence, hears persons hearing of whom it deems necessary,
under oath; and upon acknowledging due action, invites the
person concerned to make his/her defense within a matter of a
period which shall not be less than fifteen days. The person
concerned, starting from the moment when his/her defense
is requested, shall be authorized to examine the prosecution
documents.
(4) Public administrations, public officials, other real and
legal persons including the banks must respond to the questions
of the Investigation Board and to its requests regarding the
investigation.
(5) At the end of investigation, the Investigation Board shall
prepare a report demonstrating the information and evidence
that it has gathered and which includes its opinion regarding
whether or not a disciplinary penalty is required and forward
such report and its annexes to the Presidency so that it is
forwarded to the General Assembly.
(6) The President shall inform the person concerned in
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writing about the outcome of the investigation and invites him/
her to deliver his/her oral or written defense before the General
Assembly in a period of time that it shall determine and which
shall not be less than five days.
(7) Depending on the outcome of the disciplinary investigation
that has been carried out, the General Assembly decides that
the investigation be extended if such is needed; or the file be
suspended if it deems that the attitude or conduct relied upon
are not proven, or it decides on a disciplinary penalty if they are
proven.
Disciplinary penalties and their execution
ARTICLE 19- (1) In cases where the President and the
members take on an official or a special duty apart from their
essential duty or in the event that their attitudes and conduct
are proven to be incongruous with the oath that they have taken
or with the dignity and honor of membership and when they
are established to hinder the service, depending on the nature
of the act one of the penalties to warn, condemn or to invite to
withdraw from membership shall be decided upon.
(2) In order for the penalty to invite to withdraw from
membership to be decided on two thirds majority of the votes of
the General Assembly is sought.
(3) The person concerned, against the decision of the General
Assembly regarding the disciplinary penalty, can make an
application to the General Assembly for a re-examination in
fifteen days from the date of notification of the decision to him/
her. The decision that will be taken after the re-examination of
the General Assembly shall be final. The decision of the General
Assembly shall be notified by the President to the person
concerned.
(4) The member concerning whom the penalty to invite to
withdraw from membership has been given shall be considered
as resigned if s/he fails to comply with such decision in one
month from the date of notification and s/he shall be considered
as on leave for such duration.
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SECTION THREE
Organizational Structure
CHAPTER ONE
Organization of the Court
Organization
ARTICLE 20- (1) The organization of the Constitutional Court
shall comprise of the Presidency, the General Assembly, sections,
commissions, the Secretariat General and administrative units.
General Assembly
ARTICLE 21- (1) The General Assembly is composed of
seventeen members of the Court. The General Assembly shall
convene under the presidency of the President or the deputy
president that shall be determined by him/her at least with
twelve members.
(2) Such are the duties of the General Assembly:
a) To hear actions of annulment and objection and to handle
trials that will be conducted as the Supreme Court.
b) To conduct financial audits concerning political parties, to
conclude actions and applications.
c) To accept or amend the Internal Regulation.
ç) To elect the president, deputy presidents and the president
the deputy presidents of the court of disputes.
d) To distribute work among the sections, to convene at the
beginning of the year to give some of the works to the other
section if the incoming workload of one section has increased
during the year to the extent that cannot be handled with the
normal pace of work, creating an imbalance of work among the
sections.
e) To make final decisions regarding conflicts about the
distribution of the workload among sections, to assign another
section to the task in cases where a section, as a result of an actual
or a legal impossibility, fails to handle a work that falls under its
duty.
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f) To make decisions about the members concerning the
opening of a disciplinary or a penal investigation, measures of
investigation and prosecution and to order a disciplinary penalty
when required or the termination of membership.
g) To have objections examined.
Sections and commissions
ARTICLE 22- (1) At the Court there shall be two sections under
the presidency of a deputy president, with seven members each
and which shall make rulings regarding individual applications.
Sections shall convene under the presidency of a deputy
president, with the participation of four members.
(2) Issues concerning the formation of sections and
commissions and the distribution of work shall be regulated
with the Internal Regulation.
CHAPTER TWO
The Secretariat General, Rapporteurs and Deputy
Rapporteurs
Duties of the Secretary General and the deputies of the
Secretary General.
ARTICLE 23- (1) A General Secretariat unit shall be
established under the Presidency. The working principles of
the units that are under the Secretariat General shall be regulated
with a regulation.
(2) The Secretary General shall be assigned by the president
from the rapporteurs. In cases where the Secretary general is off
duty, the deputy Secretary General who shall be determined by
the Secretary general shall substitute for him/her.
(3) The Secretary General is assigned with and authorized to;
a) Record and direct applications,
b) Conduct administrative affairs regarding the meetings of
the General Assembly and the units,
c) Ensure that verdicts and reports are automated and
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archived,
ç) Carry out Court’s correspondence,
d) Follow-up the implementation of the decisions of the Court
and to inform the General Assembly on this matter,
e) Spend the budget and to inform the President on this
matter,
f) Conduct institutional, scientific, administrative, financial
and technical affairs of the Court,
g) Arrange protocol affairs,
ğ) Ensure direction and management of staff,
h) Carry out other works as assigned by the President within
the framework of the provisions of the Code, Internal Regulations
and regulations,
Under the supervision and control of the President.
(4) Among the rapporteurs, three deputy Secretary Generals
shall be assigned by the President. Issues pertaining to the
duties of and the distribution of work among deputy Secretary
Generals shall be arranged via regulation.
Rapporteurs
ARTICLE 24- (1) At the Court, an adequate number of
rapporteurs to assist with judicial and administrative works
shall be assigned or appointed.
(2) In order to be able to be a rapporteur at the Court, one
shall have one of the qualities listed below:
a) To be a judicial or an administrative judge or a prosecutor or
a Supreme Court of Accounts auditor, chief auditor or a specialist
auditor who has worked with success in his/her profession for at
least five years,
b) To be research assistants at the law, economy or political
sciences departments of higher education institutions who
have completed their studies as associate professors, assistant
associate professors or their doctoral studies.
c) To be an assistant rapporteur who has worked, with the
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exception of the duration of candidacy, successfully for at least
five years.
(3) To have been awarded a minimum of (C)-level certificate at
the Foreign Language Proficiency Exam for State Employees and
to have completed graduate studies shall be preferable during
assignment and appointment as a rapporteur.
(4) Rapporteurs shall be accountable, administratively, to the
President and they shall perform their duties in compliance with
the tenure of judges.
Assignment of rapporteurs, their staffing rights, disciplinary
and penal works
ARTICLE 25- (1) Those who wish to work as rapporteurs
shall submit their requests regarding this issue to the Presidency.
(2) Rapporteurs shall be assigned by the institution they are
attached to upon due opinion of the President.
(3) With the exception of cases provisions regarding which
are present in this Code, provisions concerning the professions
their perform shall be applied to issues regarding the staffing of
assigned rapporteurs and the durations they serve at the Court
as rapporteurs shall be considered as time they have served in
their profession. Written information that shall be given by the
President shall be taken as basis in the promotion and upgrade
progress.
(4) Duration for the promotion of rapporteurs who are
appointed to the staff positions of the Court shall be two years.
(5) Including those who are assigned, the monthly salaries
and other financial rights of rapporteurs shall be covered from
the budget of the Court.
(6) Actions concerning the right of legal leave and health issues
of the assigned rapporteurs shall be executed by the Presidency
and their institutions shall be informed for entry to their staffing
files.
(7) The method pursued in their assignment shall be applied
when the rapporteurs who have been assigned as per sub-clauses
(a) and (b) of clause two of article 24 leave. During appointments
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that will be made as per codes that they are subject to after they
leave their duties; their grade and seniority, their works at the
Court and their own wishes shall be taken into account.
(8) Rapporteurs who have been assigned as per subclauses (a) and (b) of clause two of article 24 are appointed as
Court rapporteurs upon their request and due opinion of the
Presidency. Of rapporteurs who have been appointed as such,
their attachment to their previous institution shall be terminated.
(9) Concerning the retirement rights and guarantees of those
who have been appointed to the staff position of rapporteurs of
the Court, they shall be subject to provisions regarding the first
class, selected first-class, second class and third class judges and
prosecutors in their seniority, class and grades. In addition to
additional indicators, the condition ‘to have lost their right to be
elected for the membership of the Supreme Court of Appeals and
the Council of State’ that is sought in judges and prosecutors who
have been selected as first-class shall be applied for appointed
rapporteurs as ‘not having lost their qualities for selection for
first-class.’
(10) In cases where there are no provisions in this Code
regarding the monthly salaries, allowances, financial, social and
retirement rights, investigation and prosecution procedures
regarding their judicial crimes and other rights of the rapporteurs
who have been appointed to the Court, the provisions of the
Code No. 2802 shall be applied.
(11) The rapporteurs who have been assigned as per subclauses (a) and (b) of clause two of article 24 shall be processed,
upon the acknowledgment of the President, by the institutions to
which they are attached in compliance with the provisions of the
legislation regarding themselves in the event of crimes arising
from their duty or crimes that they have committed during their
office and their personal crimes.
Duties of rapporteurs
ARTICLE 26- (1) Rapporteurs
merits examination reports of the
them by the President and attend
have been specified in the Code
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shall prepare the initial and
files that have been given to
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regarding individual applications.
(2) Whenever needed, rapporteurs can be given tasks such as
hearing witnesses or experts and similar tasks by the President.
(3) Rapporteurs can be assigned to commissions by the
President.
(4) Rapporteurs can tutor and give courses and conferences
at universities, the Justice Academy of Turkey and at similar
institutions and organizations under the condition that the
President gives permission thereto.
(5) They perform other tasks assigned by the Code, Internal
Regulation, regulation or the President.
Assistant rapporteurs and candidates
ARTICLE 27- (1) At the Court, an adequate number of
rapporteurs to assist with judicial and administrative works
shall be assigned or appointed.
(2) Those who pass the entrance tests among those who have
attended higher education of at least four years in areas of law,
political sciences, economy, management and economic and
administrative sciences or those who are graduates of foreign
institutions of education that are accepted as equivalents thereof
or those who have completed a faculty of law and took tests for
classes that were lacking against the curricula of faculties of law in
Turkey, receiving thus a certificate of achievement, are appointed
by the President, as candidates for assistant rapporteurs. In
order to be able to take the test, one must have completed or
deferred his/her military service or be exempted therefrom, and
not have turned the age of thirty as of the last day of the month of
January in the year when the entrance exam took place for those
who have completed undergraduate and graduate education
and the age of thirty-five for those who have completed their
doctoral education, and to have the general qualities that are
specified in article 48 of the Code dated 14/7/1965 and No. 657
on Civil Servants.
(3) The entrance exam comprises of the written exam and the
interview.
(4) The interview shall proceed by evaluating the candidate
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regarding his/her;
a) Capacity to grasp and summarize a subject, his/her ability
to express and his/her discerning power,
b) Worthiness, ability to represent, suitability of his/her
conduct and reactions to the profession,
c) Self-confidence, ability to convince and persuasiveness,
ç) General ability and general culture.
d) Openness to scientific and technological developments,
and by scoring each separately. Candidates shall be evaluated
by the commission for each of the qualities written above over
twenty points each and the scores given shall be separately put
in the minutes. Apart from this, no recording system regarding
the interview shall be used.
(5) Assistant rapporteurs and assistant rapporteur candidates
are included in the class of general administrative services in
the Code No. 657 and not the rapporteurship class and grades.
To them, the provisions of the Code No. 657 which are not
contradictory to this Code shall apply.
(6) In order for the assistant rapporteurs to be able to be
appointed as rapporteurs, they must have worked in such office
actively at least for five years and the thesis of professional
nature that they shall prepare must be accepted. Those who
comply with these conditions can be appointed as rapporteurs
by the proposal of the Secretary general and upon the approval
of the President, with a consideration of the situation of the staff
position.
(7) The procedures and principles of the entrance exam
for assistant rapporteur candidacy, the form and terms of the
candidacy training, the procedures and principles of the exam
that will take place at the end of the duration of candidacy, the
form and content of the theses that assistant rapporteurs shall
prepare and other issues shall be arranged with a regulation.
Higher Disciplinary Board
ARTICLE 28- (1) With the exception of the President, deputy
president, members and those who have been listed in sub-
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clauses (a) and (b) of clause two of article 24, disciplinary affairs
of the staff employed at the Court shall be conducted by the
Higher Disciplinary Board.
(2) The Board shall comprise of three rapporteurs to be
determined upon the proposal of the Secretary General and the
approval of the President. The senior rapporteur among them
shall preside over the Board.
(3) Regarding circumstances that require disciplinary penalty
and penalties to be ruled, provisions of the Code No.657 that are
not contradictory to this Code shall be applied. The working
procedures and principles of the Board and other issues shall be
arranged with a regulation.
CHAPTER THREE
Service Units
Service Units
ARTICLE 29- (1) Service units of the Court are as follows:
a) Office of the Chief Clerk
b) Administrative and Financial Affairs Directorate
c) Staff Directorate
ç) Publication and Public Relations Directorate
d) Foreign Relations Directorate
e) Strategy Development Directorate
f) Technical Services Directorate
g) Office of the Executive Assistant
ğ) Office of the Press Advisor
(2) Whenever needed, new units can be established upon the
proposal of the President and with the decision of the General
Assembly.
(3) The duties and responsibilities of service units are indicated
in the regulation.
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The Court staff and appointment thereof
ARTICLE 30- (1) In the performance of its duties the Court
shall employ adequate number of staff who will work in legal,
administrative and financial areas. Regarding such staff, the
provisions of the Code No. 657 which are not contradictory to
this Code are applied.
(2) Appointment of staff shall be done by the President upon
the proposal of the Secretary General.
Provisional assignment
ARTICLE 31- (1) In cases when needed during the
performance of the Court of its duties as given to it by the
Constitution and in this Code; judges, prosecutors and auditors
of the Supreme Court of Accounts, of those working at public
institutions and organizations who hold the status of civil servant
and other public officials can be assigned to the Court under the
condition that their monthly salaries, allowances, all sorts of
raises, compensations and other financial and social rights and
assistances are paid by their institutions. In assignments that
will be made within the framework of this provision the consent
of the public official shall be sought. Duration of assignments
made as such shall not exceed one year. However, whenever
necessary, this period may be extended in six monthly terms.
(2) President’s assignment request within this scope shall be
carried out within ten days by respective institutions and boards
unless there is a legal obstacle. The institutions of persons
concerned shall take the duration of provisional assignment into
consideration regarding the promotion and retirement of such
persons and thus, their staffing rights shall be sustained.
(3) During provisional assignment, the President shall inform
respective institutions and organizations in writing, which shall
be principal regarding promotion and grade advances.
(4) Regarding those who are assigned provisionally to other
institutions and of judges, prosecutors, Supreme Court of
Accounts professionals, the difference between their net monthly
salaries of rapporteurs and other payments; and regarding civil
servants and other public officials, that between the monthly
salaries touched by equivalent civil servants and other payments
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shall separately be paid. The provisions concerning monthly
salaries shall be applied regarding payments that will be made
as per this clause and no other taxes except for the stamp tax shall
be imposed, it shall not be taken into consideration in any which
way whatsoever during the calculation of another payment.
Contracted personnel
ARTICLE 32- (1) At the Presidency of the Court, press
advisors and interpreters can be employed, as long as such
staff positions are provided for, without being subject to the
provisions concerning the employment of contracted personnel
in the Code NO. 657 and in other codes.
(2) The gross contract price that shall be paid in line with the
provisions of the contract to persons who shall be employed as
such shall be determined by the Presidency so as not to be in
excess of the gross average monthly salaries that have been set
up for grade one assistant rapporteurs.
Service provision
ARTICLE 33- (1) The President shall be authorized to
employ local and foreign experts for works that require specific
professional knowledge and expertise, by way of provision of
services under the condition that this is exclusive to compulsory
and exceptional cases as mandated for the preparation,
realization, management and operation of projects in areas the
Court requires.
Appointment of administrative staff to the staff positions of
the Ministry of Justice
ARTICLE 34- (1) With the exception of those who are
appointed as per clause of article 27, staff working at the service
units of the Court who are subject to the Code No. 657 can be
appointed by the Ministry of Justice to the central and provincial
staff positions of the Ministry upon the proposal of the Secretary
General and the due opinion of the President.
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SECTION FOUR
Procedures of Examination and Trial
CHAPTER ONE
Action for annulment
Those who are authorized to lodge action for annulment
ARTICLE 35- (1) Those who are directly authorized to lodge
actions for annulment upon the claim that the codes, decrees in
the power of law, the Internal Regulation of the Grand National
Assembly of Turkey and certain articles or provisions thereof are
contradictory to Constitution are as follows:
a) President of the Republic
b) Parliamentary groups of the ruling and the main opposition
party
c) Members of the Grand National Assembly of Turkey who
constitute at least one fifths of the absolute number of members
thereof
(2) In the event of presence of more than one political parties
in government, the party which has the most number of members
shall exercise the right of action of the governing parties.
(3) The President of the Republic or the members of the
parliament that constitute at least one fifths of the absolute
number of members at the Grand National Assembly of Turkey
shall be authorized to lodge actions of annulment with the claim
that amendments to the Constitution and codes are contradictory
with the Constitution regarding their form.
Action for annulment regarding its form and its limit
ARTICLE 36- (1) Supervision regarding form shall be limited
to the majority of proposals in Constitutional amendments,
majority of amendments and whether or not the condition
to negotiate urgently has been adhered to; whether or not the
final voting of the codes or the Internal Regulation of the Grand
National Assembly of Turkey has been carried out with the
prescribed majority and whether or not the decrees in the force
of law are passed within the duration of time prescribed in the
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code and whether or not the signatures of the President of the
Republic and the members of the Cabinet are present.
(2) Actions of annulment against constitutional amendments
can be lodged only with the claim of contradiction regarding
form.
(3) Actions for annulment that are based on deformity shall be
adjudicated first by examination by the Court.
(4) Actions for annulment that are based on deformity shall
not be claimed by the Court.
Period for filing an action of annulment
ARTICLE 37- (1) The right to directly lodge an action of
annulment with the claim that constitutional amendments and
codes are contradictory with the Constitution regarding their
form shall foreclose in ten days starting from the day on which
these are published in the Official Gazette; and the right to
directly lodge an action of annulment with the claim that decrees
in the force of law and the Internal Regulation of the Grand
National Assembly of Turkey or certain articles and provisions
thereof are contradictory regarding their form and merits and
the codes regarding their form only, with the Constitution shall
foreclose in sixty days starting from the publication of these in
the Official Gazette.
Principles to be observed during the lodging of an action
for annulment
ARTICLE 38- (1) The action for annulment that will be
lodged with the claim that codes, decrees in the force of laws, the
Internal Regulation of the Grand National Assembly of Turkey
or certain articles or provisions thereof are contradictory with
the Constitution shall be lodged upon the decision to be taken
with the absolute majority of the by the plenaries of the political
parties that are written in sub-clause (b) of clause one of article
35.
(2) In the event of the case being lodged by the members of
the Grand Turkish National Assembly as written in sub-clause
(c) of clause one of article 35, names of two members shall be
shown in the petition so that the Court can notify them.
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(3) Action for annulment shall be considered as lodged on the
date when the lawsuit petition containing the cancellation of the
constitutional amendments and codes, decrees in the force of law
and the Internal Regulation of the Grand National Assembly of
Turkey or certain articles or provisions thereof for such being
in contradiction with the Constitution is forwarded to the Office
of the Chief Clerk by the Secretariat General. To those lodging
the case, a document concerning that the application has been
registered shall be given by the Secretariat General.
(4) If the case is being lodged by members of the parliament
amounting up to at least one fifths of the total number of the
members of the Grand National Assembly of Turkey, together
with the lawsuit petition, the number, names and surnames, their
constituency and their signatures must be available and each
page of such petition involving signatures must be approved by
the Speaker of the Grand National Assembly of Turkey or by an
official that the latter shall appoint by way of putting their seal
and signature as to the fact that those whose signatures are there
are members of the parliament and that those signatures belong
to them and as such, this petition must be given to the Secretariat
General.
(5) In case of actions lodged by the political party groups,
approved samples of the decision of the group General Assembly
and approved sample documents bearing witness that those
whose signatures are on the lawsuit petition are group chairs
or deputies of the latter shall be given to the Secretariat General
together with the lawsuit petition.
(6) In case of actions for annulment, with which articles of the
Constitution the provisions contradiction with the Constitution
of which are claimed are contradictory to, and the justification
thereof must be demonstrated.
Rectification of shortcomings and providing opinions
ARTICLE 39- (1) Whether or not the lawsuit petition meets
the criteria specified in article 38 shall be examined by the Court
in ten days starting from the date off registration. If there are
shortcomings in the lawsuit petition, these shall be ascertained
with a decision and those concerned shall be notified that such
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shortcomings have to be rectified in no less than fifteen days.
(2) If the case has been lodged by the members of the
parliament amounting up to at least one fifths of the total number
of members of the Grand National Assembly of Turkey, the
notification regarding the rectification of the shortcomings must
be made to the members of the parliament who, in the lawsuit
petition, have been determined as the addressees of notifications
and if such information has not been ascertained in the petition,
the notification shall be made to the two members whose names
and surnames are written at the very beginning of the petition.
(3) In the event that the shortcomings are not rectified within
the duration of time specified in clause one it shall be decided that
the General Assembly considers that the action for annulment
has not been lodged at all. Such decision shall be notified to
those concerned.
(4) In actions for annulment, in cases where the Court decides
that the merits be re-examined, the lawsuit petition and its
annexes shall be sent to the Office of the Speaker of the Grand
National Assembly of Turkey, the Prime Ministry and to the
groups of the political parties that are authorized to lodge actions
for annulment. Such offices can report their written opinions
regarding the action for annulment to the Court for evaluation.
CHAPTER TWO
Remedy of objection
Contradiction with the Constitution being asserted by
courts
ARTICLE 40- (1) If a court which is seeing a case finds that
the provisions of a code or a decree in the force of law that will be
applied in this case are contradictory with the Constitution or if
it deems that the claim of contradiction with the Constitution as
claimed by one of the parties is serious, it shall send;
a) The original of the justified application decision whereby to
which articles of the Constitution that the rules the cancellation
of which are requested are contradictory,
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b) The approved sample of the minutes regarding the
application decision,
c) The approved samples of the lawsuit petition, the
indictment or the case-lodging documents together with the
respective sections of the file,
to the Constitutional Court by affixing to an index.
(2) If the allegation as to contradiction with the Constitution is
not considered as serious by the by the Court handling the case,
such request on this issue shall be rejected also by giving the
justifications thereof. This issue with the main judgment can be
subjected to appeals.
(3) The Secretariat General forwards the incoming documents
to the office of the executive assistant and informs the applicant
court with a letter regarding the consequence.
(4) Within ten days starting from the registration of the
incoming documents their compliance with the application
methodology is examined. Applications of objection which are
expressly bereft of any ground or that are not in compliance with
the methodology shall be rejected by the Court with justifications
thereof without proceeding with the main examination.
(5) The Constitutional Court makes a ruling and announces
such ruling within five months starting from its full receipt of
the affair. If a decision is not made within such duration, the
court concerned finalizes the case as per effective provisions.
However, if the ruling of the Constitutional Court comes until
the finalization of the decision regarding the merits, the court
must accord with this.
Circumstances preventing application
ARTICLE 41- (1) An application of objection with the claim
that the same provision of the law is contradictory with the
Constitution cannot be made unless ten years have passed after
the publication in the Official Gazette of the decision of rejection
that the court has made by considering the merits of the affair.
(2) In the event of other files being present at the Court that
applies to the remedy of objection whereby the rule which is
the subject of the objection will be applied, the application of
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objection that has been made shall be considered as a preventive
issue for such files as well.
CHAPTER THREE
Common Provisions Concerning Actions of Annulment and
Objection
Arrangements contradiction with the Constitution of which
cannot be propounded
ARTICLE 42- (1) Actions of annulment regarding the form
and the merits against international agreements that have been
enacted in due procedure cannot be lodged and the allegation of
contradiction with the Constitution cannot be alleged by courts.
(2) Moreover, contradiction with the Constitution of the
provisions of;
a) The Code on the Unity of Education No. 430 and dated 3
March 1340,
b) The Code on Wearing the Hat No. 671 and dated 25
November 1925,
c) The Code on Banning of Monasteries Lodges and Tombs
and Interdiction and Abolishing of Tomb-keeping and Certain
Titles No. 677 and dated 30 November 1925,
ç) the principle of civil marriage that has been enacted with
the Turkish Civil Code No. 743 and dated 17 February 1926
regarding the establishment of the bond of marriage before a
marriage registry officer and the provision of article 110 of the
same law,
d) The Code on the Accepting International Numbers No.
1288 and dated 20 May 1928,
e) The Code on Accepting and Using the Turkish Letters No.
1353 and dated 1 November 1928,
f) The Code Regarding the Abolishing of Titles and Nicknames
such as Bey Pacha No. 2590 and dated 26 November 1934,
g) The Code Regarding the Restriction of Wearing of Certain
Garments No. 2596 and dated 3 December 1934,
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which were in force on the date of 7 November 1982 cannot
be claimed.
Examination over the file and not being affixed by
justification
ARTICLE 43- (1) The investigation cases and applications
for objection the examination shall be carried out over the file.
Also in cases it deems necessary, the Court can summon those
concerned and those who are knowledgeable about the matter so
as to make oral explanations.
(2) The oral explanation shall be delivered by the President
of the Republic or by an official as deemed appropriate by the
President of the Republic.
(3) The Court has no obligation to rely on the justifications
that have been propounded regarding the contradiction of the
codes, decrees in the force of law and the Internal Regulations of
the Grand National Assembly of Turkey with the Constitution.
The Court can make a ruling regarding contradiction with the
Constitution under the condition that it is bound by the request.
(4) If the application has been made only against certain
articles or provisions of the code, the decree in the force of law
or the Internal Regulation of the Grand National Assembly of
Turkey whereby, however, the annulment of such articles or
provisions results in certain or all of the other provisions of the
code, the decree in the force of law of the Internal Regulations
of the Grand national Assembly of Turkey, the Court, under the
condition that such circumstance is notified in its justification,
can make a ruling regarding the annulment of the other or the
entirety of the related provisions of the code, decree in the force
of law or the Internal Regulation of the grand national Assembly
of Turkey which have lost their application capacity.
Negotiations on the files that have been taken on the agenda
ARTICLE 44- (1) The negotiations of the Court are confidential
and shall be recorded using technical equipment as deemed
appropriate by the President. The principles regarding the
preservation and use of such recordings shall be arranged by
way of regulation.
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(2) The order and management of the negotiations shall be
ensured by the President or in cases where s/he cannot attend
the meeting, by the deputy president that s/he shall assign.
Members are given turns in speech depending on the order of
requests.
CHAPTER FOUR
Individual Application
Individual application right
ARTICLE 45 – (1) Everyone can apply to the Constitutional
Court based on the claim that any one of the fundamental rights
and freedoms within the scope of the European Convention on
Human Rights and the additional protocols thereto, to which
Turkey is a party, which are guaranteed by the Constitution has
been violated by public force.
(2) All of the administrative and judicial application remedies
that have been prescribed in the code regarding the transaction,
the act or the negligence that is alleged to have caused the
violation must have been exhausted before making an individual
application.
(3) Individual applications cannot be made directly
against legislative transactions and regulatory administrative
transactions and similarly, the rulings of the Constitutional
Court and transactions that have been excluded from judicial
review by the Constitution cannot be the subject of individual
application.
Persons who have the right of individual application
ARTICLE 46- (1) The individual application may only be
lodged by those, whose current and personal right is directly
affected due to the act, action or negligence that is claimed to
result in the violation.
(2) Public legal persons cannot make individual applications.
Legal persons of private law can make individual application
only with the justification that only the rights of the legal person
they are have been violated.
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(3) Foreigners cannot make individual applications regarding
rights that have been vested only to Turkish citizens.
Individual application procedure
ARTICLE 47- (1) Individual applications can be made
directly in compliance with the conditions specified in this Code
and the Internal Regulation or through courts or representations
abroad. Procedures and principles regarding the admission of
the application in other ways shall be regulated with the Internal
Regulation.
(2) Individual applications are subject to fees.
(3) In the petition for application information on the
identification and address of the applicant and his/her
representative, if any, the right and freedom that is alleged to
have been violated because of a transaction, act or of negligence
and the provisions of the Constitution relied upon, the stages
regarding the exhaustion of application remedies, the date on
which the remedies for application have been exhausted or if
remedy of application has not been envisaged, the date on which
the violation has been acknowledged and the damage incurred,
if any, must be indicated. Evidence relied upon and the originals
or samples of the transaction or the decisions that are claimed
to have led to the violation and the document regarding the
payment of thee fee must be attached to the application.
(4) If the applicant is being represented by an attorney, the
proxy must be submitted.
(5) The individual application should be made within thirty
days starting from the exhaustion of legal remedies; from the
date when the violation is known if no remedies are envisaged.
Those who fail to apply within due duration upon just excuse can
apply in fifteen days starting from the ending date of such excuse
and with evidence bearing proof of their excuses. The Court
shall accept or reject such request first by way of examination of
the admissibility of the applicant’s excuse.
(6) In the event of any shortcomings in the application
documents, through the office of the Chief Clerk the Court shall
grant the applicant or his/her representative, if any, time so as
such time is not in excess of fifteen days and in the event that
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such shortcoming is not remedied within such time without
a valid excuse, s/he is informed that a decision regarding the
rejection of the application will be made.
Conditions for and examination of the admissibility of
individual applications
ARTICLE 48- (1) In order for the decision of admissibility
regarding the individual application be taken the conditions
prescribed in articles from 45 to 47 must be fulfilled.
(2) The Court can decide that applications which bear no
importance as to the application and interpretation of the
Constitution or regarding the definition of the borders of basic
rights and freedoms and whereby the applicant has incurred
no significant damages and the applications that are expressly
bereft of any grounds are inadmissible.
(3) Examination of admissibility shall be performed by
commissions. Concerning applications that have been concluded
unanimously to fail to fulfill the criteria for admissibility, a
decision of inadmissibility shall be taken. Files regarding which
unanimity could not be achieved shall be forwarded to sections.
(4) Decision of inadmissibility shall be final and it shall be
notified to those concerned.
(5) The conditions of the examination of admissibility and
the procedures and principles thereof and other issues shall be
regulated by the Internal Regulation.
Examination on Merits
ARTICLE 49- (1) The merits examination of individual
applications admissibility of which has been decided shall be
carried out by the sections. The President shall employ measures
required for a balanced distribution of such workload between
the sections.
(2) In the event of a decision whereby the application is
deemed admissible, a sample of the application shall be sent
to the Ministry of Justice for information. In cases it deems
necessary, the Ministry of Justice shall inform the Court in
writing regarding its opinion.
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(3) During their examination of individual applications,
commissions and sections can carry out all sorts of research
and examination regarding whether or not a basic right has
been violated. Information, documents and evidence that are
deemed as necessary for the application shall be requested from
those concerned.
(4) The Court, although it makes such examination over the
file, can also decide to hold a hearing if it deems it necessary.
(5) During the merits-examination the sections can decide, ex
officio or upon the request of the applicant, on measures that
they deem to be essential for the protection of the basic rights
of the applicant. In the event of a decision for such a measure,
the decision regarding the merits shall be made latest within six
months. Otherwise, the decision for the measure is automatically
lifted.
(6) Examination of the sections of individual applications
regarding a court decision shall be limited to whether or not a
basic right has been violated and the determination of how such
violation can be remedied. Examination on issues that have to
be observed in legal remedies shall not be performed.
In the examination of individual applications, in circumstances
where this Code and Internal Regulation do not contain any
provisions, the provisions of relevant procedural laws which are
suitable to the nature of the individual application are applied.
(8) The conditions of the examination of admissibility and
the procedures and principles thereof and other issues shall be
regulated by the Internal Regulation.
Decisions
ARTICLE 50- (1) At the end of the examination of the merits
it is decided either the right of the applicant has been violated or
not. In cases where a decision of violation has been made what is
required for the resolution of the violation and the consequences
thereof shall be ruled. However, legitimacy review cannot be
done, decisions having the quality of administrative acts and
transactions cannot be made.
(2) If the determined violation arises out of a court decision,
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the file shall be sent to the relevant court for holding the retrial
in order for the violation and the consequences thereof to be
removed. In cases where there is no legal interest in holding
the retrial, the compensation may be adjudged in favor of the
applicant or the remedy of filing a case before the general courts
may be shown. The court, which is responsible for holding the
retrial, shall deliver a decision over the file, if possible, in a way
that will remove the violation and the consequences thereof that
the Constitutional Court has explained in its decision of violation.
(3) The decisions of the sections regarding the merits shall
be notified to those concerned and the Ministry of Justice with
the justifications thereof and they shall be published on the web
page of the Court. Issues pertaining to which of such decisions
are to be published in the Official Gazette are indicated in the
Internal Regulation.
(4) Differences between the case-laws of commissions shall
be settled by the sections to which they are attached; and the
differences of case-laws between the sections shall be settled by
the General Assembly. Other issues in relation thereto shall be
regulated by an Internal Regulation.
(5) In the event of waiver from the case non-suit shall be
decreed.
Misuse of the right of application
ARTICLE 51- (1) Against the applicants who have been found
to have expressly misused the right of application a disciplinary
penalty so as not to be in excess of two thousand Turkish Lira can
be ruled apart from the expenses for action.
CHAPTER FIVE
Cases of Banning of Political Parties and Abolition of
Immunity
Cases of Banning of Political Parties
ARTICLE 52- (1) The Court, upon the action lodged by
the Chief Prosecutor of the Republic at the Supreme Court of
Appeals, can decide with the two thirds majority of the members
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who have attended to the meeting that a political party be
banned as a result of circumstances prescribed in article 69 of
the Constitution or that it be divested partially or entirely, of the
State assistance, depending on the gravity of the acts which are
the subject of action.
(2) Cases concerning the banning of political parties shall
be examined by the General Assembly over the file by way
of application of the provisions of the Code No. 5271 that are
befitting to the case and ruled.
(3) The rapporteur who is assigned by the President prepares
the initial examination report and submits it to the Presidency.
In the event of making of a decision to accept the indictment
following the initial examination, the indictment and the
attachments thereof shall be sent to the political party concerned
and their defense as to the procedure and merits shall be obtained.
In cases where the litigated party provides a written defense,
such defense shall be sent to the office of the Chief Prosecutor
of the Republic at the Supreme Court of Appeals. Also, after
the Chief Prosecutor of the Republic at the Supreme Court of
Appeals, the oral defense of the general chair of the party the
banning of which is requested or that of an attorney who shall
be appointed by him/her shall be heard. Those about whom
political ban is requested can submit their defense concerning
the allegations in writing.
(4) The General Assembly, in cases that it deems necessary,
can summon those concerned and those who are knowledgeable
about such matter to hear their oral explanations.
(5) The decision that has been made at the end of the case
regarding the banning a political party shall be notified to the
political party concerned through the Chief Prosecutor of the
Republic at the Supreme Court of Appeals and published in the
Official Gazette.
Passing a warning to political parties
ARTICLE 53- (1) The Chief Prosecutor of the Republic at
the Supreme Court of Appeals can address the Court regarding
the ruling for a warning against a political party with the claim
that such political party has acted in violation of the imperative
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provisions of the Political Parties Code No. 2820 dated 22/4/1983
with the exception of article 101 therein and of the imperative
provisions of other codes in relation to political parties.
Following the obtainment of the defense of the political party
within the duration of time to be assigned by the Court, if any
violations are found, a decision of warning regarding the political
party concerned shall be given so that the violation concerned is
rectified.
(2) The decision shall be notified to the political party
concerned through the Chief Prosecutor of the Republic at the
Supreme Court of Appeals and published in the Official Gazette.
Request of annulment in cases of abolition of immunity
and foreclosure of membership to the parliament
ARTICLE 54- (1) Against the decisions of the Grand National
Assembly of Turkey regarding the abolition of legislative
immunity or foreclosure of membership to the parliament, the
member of the parliament concerned or the minister who is not a
member of the parliament or another member of the parliament
can address the Court in seven days starting from the date on
which such decision is made for annulment with the claim that
such decision is in violation of the Constitution, the code or the
Internal Regulation of the Grand National Assembly of Turkey.
Such request shall be ruled definitively within fifteen days.
(2) The Court in case of requests for annulment shall get
required documents brought in without waiting for submission
by the person concerned.
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SECTION SIX
Financial Supervision of Political Parties
Financial supervision of political parties
ARTICLE 55- (1) The Court receives help from the Supreme
Court of Appeals so as to supervise the acquisition of property of
political parties and the legality of the revenues and expenditures
thereof.
(2) Political parties shall send to the Presidency of the
Constitutional Court in compliance with the Code No. 2820,
approved samples of each of the consolidated final account and
the final accounts of the party headquarters and the provincial
organization which includes the subordinate districts until the
end of the month of June. The Court sends such documents
that have been sent to it for examination to the Presidency of the
Supreme Court of Accounts.
(3) Reports concerning the examination that has been carried
out at the Supreme Court of Accounts shall be sent to the Court
for ruling.
The initial
supervision
and principal examination
in
financial
ARTICLE 56- (1) Examination of the final accounts of political
parties shall be carried out as per the provisions of the Code No.
2820.
(2) The reports regarding the examination that has been
carried out shall be sent to the political party concerned which is
requested to forward its opinions thereon latest in two months.
(3) The Court evaluates the opinions of the political parties
regarding the examination during the financial supervision.
(4) Samples of each of the decisions of the Court regarding the
financial supervision shall be sent to the political party concerned
and to the office of the Chief Prosecutor of the Republic at the
Supreme Court of Appeals so that it goes in the file of records.
(5) Decisions taken at the end of financial supervision shall be
published in the Official Gazette.
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SECTION SEVEN
Trial by the Supreme Court
Hearing
ARTICLE 57- (1) During its work as the Supreme Court, the
General Assembly sits and makes rulings in compliance with the
codes that are in effect.
(2) In the event also of presence of other substantial
circumstances that are in violation of the law other than the
reasons for returning the indictment that is in the Code No.
5271, the Supreme Court can decide that the indictment or other
documents to substitute for the indictment be returned.
(3) In cases where a accused who has been questioned at the
Supreme Court does not attend subsequent hearings or in cases
where, also, such presence is not deemed to be necessary by
the Supreme Court, the public case can be finalized in absentia
thereof even if there is no requests for the excuse from hearings.
The defendant can always be readily present at the hearing.
(4) During the session, technical equipment as deemed
appropriate by the President can be used for recording. Each
page of the minutes of the hearing that shall be drawn up by
reliance on such recording shall be signed by the President and
those who have drawn up such minutes.
(5) At the Supreme Court, the duty of prosecution shall be
carried out the Chief Prosecutor of the Republic at the Supreme
Court of Appeals of the deputy Chief Prosecutor of the Republic
at the Supreme Court of Appeals. Those who have been tasked
among the Prosecutors of the Republic at the Supreme Court
of Appeals can also participate in the hearing together with
the Chief Prosecutor of the Republic at the Supreme Court of
Appeals of the deputy Chief Prosecutor of the Republic at the
Supreme Court of Appeals.
Re-examination
ARTICLE 58- (1) The application for a re-examination of
the decision by the Supreme Court can be made by the Chief
Prosecutor of the Republic at the Supreme Court of Appeals,
or the deputy Chief Prosecutor of the Republic at the Supreme
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Court of Appeals, the accused, the defendant, the participant
and his/her attorney.
(2) The application for re-examination shall be made within
fifteen days starting from the announcement of the verdict by
way of submitting a petition to the Supreme Court. If the verdict
has been pronounced in the absence of those who have a right to
apply for re-examination, the period shall commence from the
date of notification.
(3) The Supreme Court shall perform the re-examination
over the file. Upon the request of the Chief Prosecutor of the
Republic at the Supreme Court of Appeals or the deputy Chief
Prosecutor of the Republic at the Supreme Court of Appeals, of
the accused or the participant, it can be decided that the ex officio
examination be made by holding a hearing.
(4) In the event that it is decided that the examination be made
by holding a hearing, the date of the hearing shall be notified
to the Chief Prosecutor of the Republic at the Supreme Court
of Appeals or the deputy Chief Prosecutor of the Republic at
the Supreme Court of Appeals, to the accused, the participant,
defendant and the attorney. As may the accused be present
in the trial, so may s/he have himself/herself represented by a
defense counsel.
(5) At the hearing the Chief Prosecutor of the Republic at the
Supreme Court of Appeals or the deputy Chief Prosecutor of the
Republic at the Supreme Court of Appeals, the accused in case
that s/he is present, the defense counsel, the participant and the
attorney declare their claims and defenses; the party who has
applied for a re-examination is heard first. In any event, the final
say shall belong to the accused.
(6) The re-examination shall be carried out only within
the boundaries of the issues written in the application. If the
application is found to be admissible, the decision is also made
regarding the subject of the application. Decisions that are taken
upon the application of re-examination shall be final.
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SECTION EIGHT
Other Issues in Relation to Trial
Circumstances Preventing from Participating in the Hearing
or in Other Businesses
ARTICLE 59- (1) The President and the members shall not
hear;
a) Cases and affairs which belong to them or relate to them,
b) Cases and affairs of their spouses even if the bond of
marriage between them no longer exists, his/her antecedents
and descendants regarding blood and kinship, peripheral kins
up to the fourth degree (including such degree) regarding blood
and even if the bond of marriage that gives rise to such kinship
no longer exists, regarding in-law kinship, peripheral kins up to
the third degree (including such degree) or of persons between
whom there is filial bond,
c) To cases and affairs whereby s/he acts as the attorney,
guardian or trustee of the owners of the case or of the affair,
ç) To cases and affairs that s/he has heard as the judge,
prosecutor, arbitrator or where s/he has made a statement as
witness or expert,
d) To cases and affairs where s/he has provided his/her
advisory opinion,
Rejection of the President and the members
ARTICLE 60- (1) The president and the members can be
rejected upon the claim regarding the presence of circumstances
verifying the presumption that they cannot act in impartiality.
(2) In this case at the General Assembly or at the sections,
without the participation of the member concerned, a final
decision is made regarding the subject of rejection.
(3) Rejection is personal. Requests regarding the rejection
of such a number of members to prevent the convention of the
General Assembly or the sections shall not be heard.
(4) In the petition of rejection, the reasons must be expressly
shown and the evidence be informed therein. Petitions that
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lack such conditions shall be rejected. Oath shall not constitute
evidence.
(5) If the request for rejection is understood to be made in bad
faith and not accepted on grounds of merits, a disciplinary fine
of five hundred Turkish Lira to five thousand Turkish Lira shall
be ruled on for each of the requesters.
(6) Within the meaning of this Code disciplinary fine refers
to a fine which is given against the applicants whose express
misuse of the right of application or the request of rejection has
been determined, and which is final the moment that it is given
and which must be immediately executed. This fine cannot be
transformed into alternative sanctions and is not included in
criminal records.
(7) The disciplinary fine is collected according to the Law on
the Collection Procedure of Public Receivables the provisions of
dated 21/7/1953 and numbered 6183.
Refrain
ARTICLE 61- (1) In the event of the President and the
members refraining from hearing the case or the affair by
reliance on reasons that are written in articles 59 and 60, the
General Assembly shall make its final decision regarding such
issue with the participation of the President or the members who
has requested refrain. However, the member who has requested
refrain cannot participate in the vote.
The liability to give information and documents and
information with the quality of State secrets
ARTICLE 62- (1) The Court, during the performance of the
tasks that have been given to it, shall be authorized to correspond
directly with legislative, executive and judicial organs, public
administrations, public officials, banks and other real and legal
persons, to request information and documents, to examine
all sorts of documents, records and transactions that it deems
necessary, to summon all degrees and classes of public officials
and persons concerned and to request representatives from the
administration and other legal persons. Concerning those who
fail to carry out such requests of the Court in the specified time
frame, a direct investigation as per general provisions shall be
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carried out.
(2) Information pertaining to the case and affairs that the
Court is tasked with hearing cannot be held confidential against
the Court on grounds that these are State secrets.
(3) In the event that such information qualifies as State secret,
the witness shall be heard by the Court without the presence
of even the stenographer and the court clerk. The President,
the judge or chief judge shall later on have only the information
of the quality to clarify the alleged crime from said testimonies
recorded in the court record. Information the disclosure of
which might harm the foreign affairs of the State, its national
defense and national security, and which is of a quality which
might create peril in its constitutional order and foreign affairs
shall be considered as State secret.
(4) Such provisions shall also apply to those the verbal
explanations of whom are addressed and also to experts.
Avail of vehicles, tools and staff
ARTICLE 63- (1) In cases required by the case, the President
can place a request for the avail of vehicles, tools, stenographers
and technical staff during cases for the banning of political
parties and during verbal explanations. Such requests shall be
carried out immediately.
Fee exemption
ARTICLE 64- (1) Applications other than individual
applications to be made to the Court, the decisions to be taken
and transactions that will be performed in relation thereto shall
not be subject to fees.
CHAPTER NINE
Decisions
The form of the vote and quorum for decision
ARTICLE 65- (1) The General Assembly and sections make
their decisions with the absolute majority of the participants. In
case of equality of votes, the decision is considered as taken in
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the direction of the view of the President.
(2) In order for decisions regarding annulment in amendments
to the Constitution, banning of political parties or bereaving them
of the State assistance the two thirds majority of the members
participating in the meeting shall be sought.
(3) Voting starts with the least senior member.
Decisions of the Court
ARTICLE 66- (1) Decisions of the Court are final.
The
decisions of the Court are binding for the legislative, executive
and judicial organs of the State, administrative offices, real and
legal persons.
(2) Annulment decisions shall not be executed retrospectively.
(3) The code the revocation of which has been ruled by the
Court, decree in the force of law or the Internal Regulation of
the Grand National Assembly of Turkey or certain articles or
provisions thereof shall lose force on the date of its publication
in the Official Gazette. In cases the Court deems necessary, the
date on which the annulment decision shall become effective can
be separately decided so as not to be in excess of one year starting
from the day on which it was published in the Official Gazette.
(4) When the Court is annulling a code, a decree in the force
of law or entirety or a provision of the Internal Regulation of the
Grand National Assembly of Turkey, it cannot deliver judgment
so as to lead to a new application with an act such as that of the
law maker.
(5) Verdicts of the Court shall be written together with the
justification thereof. Decisions of annulment shall not be made
public without writing their justification.
(6) Principles pertaining to the preparation and negotiation of
draft verdicts shall be demonstrated in the Internal Regulation.
(7) Verdicts shall be signed by the president and the members
who take part in the examination or the trial. Those who oppose
shall deliver their reasons for opposition to the verdict within the
duration of time specified in the Internal Regulation. Verdicts
shall be notified to those concerned in such form.
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(8) Reasoned decisions that are taken at the end of annulment
and objection applications shall be published in the Official
Gazette immediately.
Retrial
ARTICLE 67- (1) Retrial against the decisions of the Court
in cases for banning political parties and the decisions that the
Court has taken as the Supreme Court can be requested as per
the provisions of the Code No. 5271.
(2) In cases where the European Court of Human Rights
rules that the political party banning decision of the Court or
a decision that the Court has taken as the Supreme Court was
ruled by way of violation of the European Human Rights
Convention and its Protocols, retrial of the case can be requested
from the Constitutional Court within one year starting from
the finalization of the verdict of the European Court of Human
Rights.
(3) If the Court deems that such retrial request is substantial
and worthy of admission it shall decide on a retrial. Such request
shall be concluded as per general provisions.
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SECTION FIVE
Financial Provisions, Staff and Personal Actions
CHAPTER ONE
Financial, Social and Other Rights
Financial rights
ARTICLE 68- (1) The monthly salaries and allowances, other
financial, social rights and assistances of the President of the
Constitutional Court, deputy presidents, members, rapporteurs
of the Constitutional Court, assistant rapporteurs and assistant
rapporteur candidates shall be subject to the provisions of this
Code.
Monthly salary chart
ARTICLE 69- (1) Up to;
a) %100 to the President of the Constitutional Court,
b) %90 to the deputy Presidents of the Constitutional Court,
c) %86 to the members of the Constitutional Court,
ç) %79 to rapporteurs first-class,
d) %65 to rapporteurs selected as first-class,
e) %55 to other rapporteurs first-class,
f) %53 to rapporteurs second-class,
g) %51 to rapporteurs third-class,
ğ) %49 to rapporteurs fourth-class,
h) %47 to rapporteurs fifth-class,
ı) %45 to rapporteurs sixth-class,
i) %43 to rapporteurs seventh-class,
j) %41 to rapporteurs eight-class,
k) %65 to assistant rapporteurs first-class,
l) %56 to assistant rapporteurs second-class,
m) %54 to assistant rapporteurs third-class,
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n) %52 to assistant rapporteurs fourth-class,
o) %50 to assistant rapporteurs fifth-class,
ö) %47 to assistant rapporteurs sixth-class,
p) %46 to assistant rapporteurs seventh-class,
r) %44 to assistant rapporteurs eight-class,
s) %37 to assistant rapporteur candidates,
of each item of disbursement that constitutes a comparative
salary shall be paid. In the calculation of the bonus which is
among the items of disbursement under this article, one twelfths
of the total amount of the bonus in a financial year inside the
comparative monthly salary shall be taken into consideration.
(2) Rapporteurs of the Constitutional Court and assistant
rapporteurs shall earn the right to the monthly salary that
corresponds to their new grade starting from the 15th of the
month that follows the dates of effectiveness of their promotion.
(3) To the ratios of monthly salaries touched by rapporteurs
first-class, two points shall be added every three years under the
condition that the ratio that will serve as the basis of the payment
does not exceed 83% and that they shall not lose their qualities
for selection as first-class.
(4) Among the disbursement items those which are not subject
to tax shall also be not subject to tax in payments that will be
made as per this article.
(5) A judicial allowance up to 10% of their gross monthly
salaries shall be given to the President of the Constitutional
Court, deputy Presidents, members and to rapporteurs among
those the titles of which have been specified in clause one.
(6) Payment to the rapporteurs and rapporteurs who come
from higher education institutions or from the Supreme Court
of Accounts shall be made on the basis of monthly salaries and
allowances that are paid to rapporteur-judges and rapporteurprosecutors of the same grade and seniority.
(7) To those to whom payments are made as per this article;
payments that are made within the scope of the decree in the
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force of law No. 375 and dated 27/6/1989 (with the exception
of the foreign language compensation) and compensation for
representation, office and high-justice shall not be paid and
payments as per article 152 of the Code No. 657 shall not be made.
(8) Additional indicators of the President and the members of
the Constitutional Court are (9.000) and (8.000) respectively, and
their high-justice indicator is (17.000).
(9) A monthly additional allowance that amounting up to the
outcome of multiplication of the indicative figure of (40.000) with
the coefficient that is applied to the salaries of civil servants shall
be given to the President, deputy presidents and the members;
and amounting up to the outcome of multiplication of the
indicative figure of (10.000) with the coefficient that is applied
to the salaries of civil servants shall be given to rapporteurs.
The provision of the Code No. 2802 regarding earning the right
to such allowance and the payment thereof shall be applied
whereby such allowance, with the exception of the stamp tax,
shall not be subject to any tax or any cuts whatsoever.
(10) In cases where this Code does not have any provisions, the
provisions, depending on the issue, of the Code No. 2802 and the
Code No. 657 shall be applied regarding the time of payment of
the salaries of those who are paid as per this article, under which
circumstances these shall be recalled and regarding social rights
and assistances and earning the right to salary and allowances in
case of appointment from assistance and from other institutions.
(11) An additional payment which shall be found by way of
multiplication of the indicative figure of (5.000) with the monthly
coefficient that is applied to the salaries of civil servants shall be
paid to staff who are subject to the Code No. 657 every month.
The amount of additional payment, with the exception of stamp
tax, shall not be subject to any tax or cuts whatsoever. The
additional payment shall not be taken into consideration during
the calculation of another payment.
Permission
ARTICLE 70- (1) The President and the members have the
right to an annual leave of forty days under the condition that
businesses that are handled as the Supreme Court or that are
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time-bound according to the Constitution are not hampered.
(2) Sickness and excused leaves shall be subject to general
provisions. Annual and excused leaves shall be given by the
President.
Health affairs and treatment
ARTICLE 71- (1) Health expenditures of the President and
the members and the retired thereof and those whom they are
liable to look after shall be paid from the budget of the Court
within the framework of provisions and principles to which the
members of the Grand National Assembly of Turkey are subject.
Awarding of certificates of the day of establishment and of
honor
ARTICLE 72- (1) The 25th day of the month of April every
year is the day of establishment of the Court. The day of
establishment shall be celebrated with ceremonies; seminars,
conferences and similar events can be organized.
(2) Certificates of honor and gifts that symbolize the memory
of their past services shall be given to each of the retired
Presidents, deputy presidents and members.
(3) Each year, adequate amount of allowance shall be
appropriated for the budget of the Court so as to meet the costs
of the ceremony that will be organized to this end, and of the
gifts. Expenditures that will be made for this purpose are not
subject to the Public Procurement Code No: 4734 dated 4/1/2002.
Being sent to foreign countries
ARTICLE 73- (1) Rapporteurs and assistant rapporteurs
can be assigned by the Presidency abroad up to two years so
as to augment their knowledge and etiquette and for purposes
of graduate studies, scientific research or to work at the courts
of foreign countries, universities or international organizations
or for education purposes within the framework bilateral
cooperation.
Such durations, if deemed necessary by the
Presidency, can be doubled.
(2) Within this scope, regarding the financial rights, liabilities,
compulsory services, meeting the expenditures and the transfer
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of their monthly salaries and allowances provisions regarding
civil servants shall be applied.
(3) The upgrade and promotion, retirement, monthly salary,
allowance and all other staffing rights and liabilities of those sent
to foreign countries shall continue.
Staff positions
ARTICLE 74- (1) Determination, formation, use and
cancellation of the staff positions that belong to the Court and
other issues pertaining to staff positions shall be regulated as per
the provisions of the Decree in the Force of Law dated 13/12/1983
and No. 190.
Transitional provisions
PROVISIOANL ARTICLE 1- (1) The duties of those
occupying, at the Constitutional Court the staff position offices
titles of which are; Deputy General Secretary, Chief Clerk, Director
of Press and Public Relations, Director of Verdicts, Executive
Assistant, Director of Archives, Financial Affairs Director, ICT
Director, Logistics Director, Staff and Training Director, Director
of Publications, Library Director, Director for Administrative
Affairs, Manager, Properties Accountant and Civil Defense Expert
shall terminate on the date of publication of this Code. These
shall be appointed within the Court or within the organization of
the Ministry of Justice, to staff positions suitable for their grades
latest in six months. Until the transaction of appointment is
completed, they can be assigned to tasks that are befitting for
their statuses. Until they are appointed to a new staff position,
they shall continue to receive their monthly salaries, additional
indicators and all sorts of raises and compensations and other
financial rights which belong to their previous staff position. In
the event of the monthly salaries, additional indicators, all sorts
of raises and compensations and the total of other rights of the
new staff positions of staff concerned that they are appointed
to being less than the monthly salaries, additional indicators, all
sorts of raises and compensations and the total of other rights of
their previous staff positions, the difference in between shall be
paid without incurring any cuts as long as they remain in such
staff positions that they are appointed to.
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Of those who, on the date of publication of this Code, are in
such staff positions which belong to the Presidency, and whose
staff position and work title has not changed shall be considered
as appointed to the staff positions of the Presidency with the
same work title.
(3) Until re-arrangements and appointments are made
according to this Code performance of the tasks that have been
assigned to the changing or newly-established units of the Court
shall be continued by other units that have been carrying such
tasks on previously. The Presidency shall adopt its organization
and staff positions to this Code in six months at the latest. Within
this framework, staff position changes shall be executed as per
the provisions of the said Decree in the Force of Law without
applying the provision of the last clause of article 9 of the Decree
in the Force of Law No. 190.
(4) The President and the Deputy President who are in office
on the date when this Code enters into force shall fulfill the time
that is valid on the date of their election.
(5) The Internal Regulations and the regulations prescribed
in this Code shall be prepared by the Presidency and enter
into force in six months at the latest. Until the new Internal
Regulation and the regulation enter into force, application of the
provisions of the existing Internal Regulation and the regulation
shall continue to be implemented.
(6) The references in the legislation to Code on Establishment
and Rules of Procedures of the Constitutional Court No. 2949
and dated 10/11/1983 shall be considered as references made
to this Code except for their provisions that are contrary to this
Code.
(7) Regarding treatment expenses that have been made before
the date of entry into force of this Code the provisions of article
14 of the Code No. 2949 that has been revoked with this Code
shall be taken as basis.
(8) The court shall examine the individual applications to be
lodged against the last actions and decisions that were finalized
after 23/9/2012.
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Amended and abolished provisions
ARTICLE 75- (1) Code on Establishment and Rules of
Procedures of the Constitutional Court dated 10/11/1983 and
numbered 2949 has been abolished.
(2) The expression “Constitutional Court” in article 13 of the
Passport Code No. 5682 and dated 15/7/1950 has been amended
as “with the President and the members of the Constitutional
Court.”
(3) The expressions of “Constitutional Court” in articles 1
and 2 of the Code of Judges and Prosecutors No. 2802 and dated
24/2/1983; the expressions the “President of the Constitutional
Court,” “Deputy President of the Constitutional Court,”
“members of the Constitutional Court” and the expressions
“the President of the Constitutional Court,” “the President of
the Court of Disputes” and “the members of the Constitutional
Court” in the additional indicator chart in the said Code have
been removed from the text.
(4) The expressions “the President of the Constitutional Court,”
“the President of the Court of Disputes” and “the members of
the Constitutional Court” that are found in article 1 of the Decree
in the Force of Law about High Judgeship Compensation No.
270 and dated 23/1/1987 have been removed from the text.
(5) The expression “to the Office of the Press Advisor of the
Constitutional Court” has been added to succeed the expression
“to the Secretariat General” in article 59 of the Passport Code No.
657 and dated 14/7/1965.
(6) The staff positions in chart (I) that is annexed to the Decree
in the Force of Law on the General Staff Positions and Procedure
No: 190 dated 13/12/1983 have been annulled and removed from
the chart concerned. The staff positions that are found in the list
No. (I) that is annexed to this Code have been formed and added
to the Presidency of the Constitutional Court section of the chart
No. (II) of the Decree in the Force of Law No. 190, and the staff
positions that are found in the list No. (2) have been formed and
added to the Presidency of the Constitutional Court section in
chart No. (I), the staff positions that are found in the list No. (5)
have been abolished and removed from the Presidency of the
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CODE ON ESTABLISHMENT AND RULES OF PROCEDURES OF THE CONSTITUTIONAL COURT
Constitutional Court section of the chart No. (II) of the Decree in
the Force of Law No. 190.
The staff positions that are found in the annexed list No. (3)
have been formed and added to the Ministry of Justice section of
chart (II) that is annexed to the Decree in the Force of Law No.
190, the staff positions that are found in the list No. (4) have been
formed and added to the Presidency of the Supreme Court of
Accounts section of the chart No. (II).
(7) To the section under the title No. (5) in the chart No. (II) of
the Code No. 657 the expression “Managers of the Presidency of
the Constitutional Court” has been added.
(8) The expression “in individual applications to the
Constitutional Court” to succeed the expression “in judicial
matters” has been added to the first sentence of the section “A)
Court Fees” in the Tariff No. (1) which is connected to the Fees
Code No. 492 and dated 2/7/1964 and the sub-clause below has
been added to the clause titled “I-Application fee.”
“ 4. 150,00 TRY in the Constitutional Court”
Force
ARTICLE 76- (1) Of this Code;
a) Articles 45 to 51 on the date of 23/9/2012,
b) Other provisions on the date of their publication,
enter into force.
Execution
ARTICLE 77- (1) The Council of Ministers executes the
provisions of this Code.
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COURT25
25 This text is taken from the official website of the Turkish Constitutional Court
(19.1.2015) www.anayasa.gov.tr
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INTERNAL REGULATION OF THE CONSTITUTIONAL
COURT
SECTION ONE
General Provisions
CHAPTER ONE
Purpose, Scope and Definitions
Purpose and scope: Art 1...............................................................319
Legal grounds: Art 2.......................................................................319
Definitions: Art 3.............................................................................319
CHAPTER TWO
Membership to the Constitutional Court
Notification to those selected as members: Art 4.......................323
Refusal of the selected to accept the duty: Art 5........................323
Oath taking: Art 6.......................................................................... 323
Disease impeding duty: Art 7.......................................................324
CHAPTER THREE
Election, Duties and Authority of the President and Deputy
Presidents and the Liabilities of the Members
Elections and the preparation of ballots: Art 8...........................324
Counting of the votes: Art 9..........................................................325
Duties and authority of the President: Art 10............................326
Duties and authorities of Deputy Presidents: Art 11.................327
Liabilities of Members: Art 12.......................................................328
CHAPTER FOUR
Provisions Regarding Crimes and Punishments and
Disciplinary Actions
Judicial investigation and protection measures: Art 13............329
Judicial investigation procedure: Art 14......................................329
Decisions of the Investigation Board: Art 15..............................331
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Decision to initiate a disciplinary investigation: Art 16............331
Procedure for disciplinary investigation: Art 17........................332
Joint conduct of criminal and disciplinary investigations: Art 18..334
Statute of limitations in disciplinary investigations: Art 19.....334
Actions requiring disciplinary sanction and the disciplinary
sanctions: Art 20..............................................................................334
Summon to withdraw from membership: Art 21......................335
Objection to disciplinary sanctions: Art 22.................................335
SECTION TWO
Organizational Structure
CHAPTER ONE
General Assembly, Sections and Commissions and Their
Functioning
Organization: Art 23.......................................................................336
General Assembly: Art 24..............................................................336
Duties and liabilities of the General Assembly: Art 25.............336
Research and Case Law Unit (Re-CL): Art 26.............................337
Composition of the Sections: Art 27............................................338
Duties and authorities of the Sections: Art 28............................338
Convening and agenda of the Sections: Art 29..........................339
Working procedure of the Sections: Art 30.................................340
Office of the Sections rapporteur: Art 31.....................................340
Composition of Commissions: Art 32..........................................341
Duties and working procedure of the Commissions: Art 33....342
Office of the Commissions rapporteur: Art 34...........................342
CHAPTER TWO
Secretariat General, Rapporteurs and Deputy Rapporteurs
Secretariat General, its establishment and duties: Art 35.........343
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Deputy Secretary Generals: Art 36...............................................345
Rapporteurs in Chief and their duties: Art 37...........................345
Rapporteurs and their duties: Art 38...........................................346
Deputy rapporteurs: Art 39...........................................................347
Promotion and grade advancement of assigned rapporteurs and
deputy rapporteurs: Art 40...........................................................348
Supreme Disciplinary Board: Art 41............................................348
Judicial investigation and prosecution regarding rapporteurs:
Art 42................................................................................................349
Judicial investigation and prosecution regarding deputy
rapporteurs and civil servants: Art 43.........................................350
SECTION THREE
Examination and Trial Procedures
CHAPTER ONE
Procedural Provisions Regarding Actions for Annulment and
Actions of Objection
Reception of applications: Art 44.................................................351
Petition of action for annulment and its annexes: Art 45.........351
Decision on application for objection and its annexes: Art 46.352
Assigning rapporteurs to files: Art 47.........................................353
Preparation of preliminary examination reports: Art 48..........353
Deficiencies in application: Art 49...............................................353
Preparation of examination reports on merits: Art 50..............354
CHAPTER TWO
Financial Inspection of Political Parties
Preliminary examination in financial inspection: Art 51..........355
Examination on merits in financial inspection: Art 52..............357
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CHAPTER THREE
Provisions Regarding the Functioning of the General
Assembly
Agenda of the General Assembly: Art 53....................................359
Meetings and deliberations: Art 54..............................................359
Failure to participate in meetings: Art 55....................................360
Voting: Art 56..................................................................................361
Decision: Art 57...............................................................................361
Printing and publishing of decisions: Art 58..............................362
CHAPTER FOUR
Individual Application
Individual application form and its annexes: Art 59.................362
Principles regarding the preparation of the form and its
annexes: Art 60................................................................................364
Representation of the applicant: Art 61.......................................365
Individual application fee and legal aid: Art 62.........................365
Places where the application can be made: Art 63.....................365
Application period and excuse: Art 64........................................366
Individual Application Bureau: Art 65........................................366
Preliminary examination of the form and its annexes and
deficiencies: Art 66..........................................................................367
Distribution of individual applications to Sections and
Commissions: Art 67......................................................................367
Order of examination of applications: Art 68.............................368
Correspondence: Art 69.................................................................368
Request for information, documents and notification: Art 70.368
Notification to the Ministry of Justice: Art 71.............................369
Voting and decision in Sections and Commissions: Art 72.....369
Cautionary judgment: Art 73........................................................370
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Hearing: Art 74................................................................................371
Pilot decision procedure: Art 75...................................................371
Preparation of draft decisions: Art 76..........................................372
Format of decisions of Commissions: Art 77..............................372
Format of decisions of Sections: Art 78.......................................373
Decision of violation and removal of violation: Art 79.............374
Decision of dismissal: Art 80.........................................................374
Signing, notification and publication of the decision: Art 81...375
Clarification and correction of material mistakes: Art 82.........375
Misuse of the right to application: Art 83...................................376
Application of general provisions: Art 84...................................376
SECTION FOUR
Final Provisions
CHAPTER ONE
Miscellaneous Provisions
Books and registries to be kept and archive: Art 85..................377
Daily working duration: Art 86....................................................377
Annual and excused leaves of members and rapporteurs: Art 87....377
Security measures to be taken at the Court premises: Art 88..378
Library and Publication Affairs: Art 89.......................................378
Assignments abroad: Art 90..........................................................378
Garments: Art 91.............................................................................379
Emblem and badge of the Court: Art 92.....................................380
Certificate of honor: Art 93............................................................380
Funeral ceremonies: Art 94............................................................380
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CHAPTER TWO
Amendment, Entry into Force and Enforcement of the Internal
Regulation
Amendment of the Internal Regulation: Art 95..........................380
Abolished legislation: Art 96.........................................................381
Entry into force: Art 97...................................................................381
Enforcement: Art 98.......................................................................381
Annexes
Annex - 1: Individual Appalication Form....................................385
Annex -2: Members’ Robe.............................................................393
Annex -3: Raporteurs’ Robe..........................................................394
Annex -4: The Badge of the Court................................................395
Annex -5: The Text of the Certificate of Honor...........................396
List Indicating the Date of Entry Into Force of the Legislation
Provisions That Makes Additions and Amendments to the
Internal Regulation of the Constitutional Court........................397
318
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INTERNAL REGULATION OF THE CONSTITUTIONAL
COURT26
SECTION ONE
General Provisions
CHAPTER ONE
Purpose, Scope and Definitions
Purpose and scope
ARTICLE 1- (1) The purpose and scope of this internal
regulation shall be to regulate the internal order of the
Constitutional Court, its functioning, its organization, the
composition of the Sections and Commissions, its procedures
and principles of working and trial, the books and records to be
kept, the flow order and archiving of the documents including
electronic media, the library of the Court, the Secretariat
General and the administrative organization, the duties and
responsibilities of administrative staff, the keeping of the
personal files of the President, Deputy Presidents, members and
rapporteurs and deputy rapporteurs, their disciplinary affairs,
leaves, the garments they shall wear and the times and places
where these shall be worn, the principles of management and
registry of deliberations and hearings.
Legal grounds
ARTICLE 2- (1) This internal regulation has been prepared
based on article 149 of the Constitution of the Republic of Turkey
dated 7/11/1982 and numbered 2709, and article 5 of the Code
on the Establishment and Trial Procedures of the Constitutional
Court dated 30/3/2011 and numbered 6216.
Definitions
ARTICLE 3- (1) In the implementation of this Internal
Regulation;
26 Based on the Code Dated : 7/11/1982, No : 2709, 30/3/2011 No : 6216
Date of the Official Gazette Published: 12/7/2012, No : 28351
Published in the Code Edition: 5 Volume : 52
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a) Research and Case Law Unit (Re-CL): shall refer to the
unit assigned to carry out activities to develop and promote
the case law by monitoring the decisions of the Court, make
recommendations to prevent discrepancies in the case law and
prepare statistics and research reports to this end,
b) President: shall refer to the President of the Constitutional
Court,
c) Presidency: shall refer to the Presidency of the Constitutional
Court,
ç) Deputy President: shall refer to the members elected
by the General Assembly for a four-year term to carry out the
presidency of the Sections and to substitute the President,
d) Rapporteur in Chief: shall refer to rapporteurs assigned
by the President to ensure the orderly and efficient functioning of
the activities of the rapporteurs and deputy rapporteurs within
the individual application units and Ar-İç and the working
groups established within the Court, to assist the President and
the Presidents of the Sections in matters related to the functioning
of the General Assembly and the Sections,
e) Applicant: shall refer to the real or legal person who is
stipulated in article 46 of the Code and who carries out an
individual application to the Court with the claim that one of
the fundamental rights and liberties referred to by the relevant
article of the Constitution has been violated by the public power,
f) Individual application rapporteur:
shall refer to the
rapporteurs of the Sections and Commissions,
g) President of Section: shall refer to each of the Deputy
Presidents who chair the Sections,
ğ) Section: Shall refer to the boards which are composed
of seven members under the chairmanship of the president of
Section and have the authority to make decisions regarding the
merits of applications, the admissibility of which has been ruled
on by the Commissions which convene with the participation
of the relevant President of Section and four members, the
admissibility and merits of applications which have been referred
to rule on the matter of their admissibility,
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h) Sections rapporteur: shall refer to rapporteurs who are
assigned to prepare draft decisions regarding the merits of the
applications, the admissibility of which has been ruled on by the
Commissions and their admissibility, when necessary, under
the oversight of the rapporteur in chief and make the required
correspondence and presentations,
ı) Working group: shall refer to a group which has been
established to carry out activities and formulate opinions in order
to ensure coherence in implementation and labor productivity in
the solution of problems which emerge in legal, administrative
or technical matters,
i) General Assembly rapporteur: shall refer to rapporteurs
assigned by the President to carry out judicial and administrative
activities in matters which fall under the jurisdiction of the
General Assembly,
j) General assembly shall refer to the assembly composed of
seventeen members,
k) Secretary General: shall refer to the Secretary General of
the Constitutional Court,
l) Deputy Secretary General:
shall refer to the Deputy
Secretary Generals of the Constitutional Court,
m) Grouping: shall refer to assembling individual applications
of similar quality under certain headings in order to carry out the
examinations regarding their admissibility and merits in a more
expedient and consistent fashion,
n) Internal Regulation: shall refer to the Internal Regulation
of the Constitutional Court,
o) Code: shall refer to the Law on the Establishment and
Trial Procedures of the Constitutional Court dated 30/3/2011 and
numbered 6216,
ö) Seniority: shall refer to the time which has elapsed since
the date of selection as a member of the Constitutional Court or
being older than those selected on the same date; seniority in
Deputy Presidency shall refer to the time which has elapsed in
the capacity of Deputy President or the time which has elapsed
since the date of selection as a member if they were selected on
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the same date, to the total time spent in the capacity of Deputy
President in the event of reelection,
p) Commission:
shall refer to boards composed of two
members in order to carry out the admissibility examination of
individual applications,
r) Commissions rapporteur: shall refer to rapporteurs who are
assigned to prepare draft decisions regarding the admissibility
of applications registered by the Individual Application Bureau
under the oversight of the rapporteur in chief and make the
required correspondence and presentations,
s) Court: shall refer to the General Assembly, Sections and
Commissions and the Constitutional Court composed thereof,
ş) Rapporteur:
shall refer to rapporteurs appointed or
assigned by the President to assist the judicial and administrative
activities of the Court as per articles 24 and 25 of the Code,
t) Deputy rapporteur: shall refer to deputy rapporteurs
appointed by the President to assist the judicial and administrative
activities of the Court as per article 27 of the Code,
u) Convention:
shall refer to the Convention for the
Protection of Human Rights and Fundamental Freedoms dated
4 November 1950 and the additional protocols thereof to which
Turkey is a party,
ü) National Judiciary Informatics System (UYAP): shall refer
to the informatics system established with the aim of carrying
out judicial services on electronic media,
v) Member: shall refer to all members including the President
and deputy presidents,
y) Supreme Court:
shall refer to the General Assembly
assigned to carry out the trial of individuals stipulated in
subparagraph (ç) of paragraph one of article 3 of the Code in
relation to their crimes related to their duties.
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CHAPTER TWO
Membership to the Constitutional Court
Notification to those selected as members
ARTICLE 4- (1) Upon notification of the circumstance of
being elected to the membership of the Court in writing to
the Court by the Presidency of the Grand National Assembly
of Turkey for members elected by the Grand National
Assembly of Turkey; upon written notification to the Court
by the Presidency of the Republic for members selected by
the President of the Republic, the President shall notify the
situation in writing to those selected, stating that they must take
office within a month starting from the date of notification.
Refusal of the selected to accept the duty
ARTICLE 5- (1) In the event that a selected member fails
to take office within a month without a valid excuse or states
in writing that s/he does not accept the duty, this matter shall
be notified in writing by the President to the Presidency of
the Grand National Assembly of Turkey in the event that the
concerned has been elected by the Grand National Assembly of
Turkey, to the Presidency of the Republic in the event that s/he
has been selected by the President of the Republic and to the
relevant institution or board in the event of a nomination.
Oath taking
ARTICLE 6- (1) The members cannot take part in the activities
of the Court unless they take the oath.
(2) The President shall invite to the oath taking ceremony the
President of the Republic, the Speaker of the Grand National
Assembly of Turkey, the Prime Minister, the presidents and chief
public prosecutors of supreme judiciary bodies, the Minister
of Justice and other high-ranking officials who are part of the
State protocol and retired members and a limited number of
individuals to be stated by the member who will take the oath.
(3) After the speech by the President, the curriculum vitae of
the selected member shall be read in the presence of the Assembly
and the guests.
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(4) The selected member shall take the oath as stipulated in
article 9 of the Code in the presence of the guests and in front of
the President, Deputy Presidents and members.
(5) The members, rapporteurs and deputy rapporteurs shall
participate in the oath taking ceremony in their garments.
(6) After the oath taking ceremony, the curriculum vitae of the
newly selected member shall be made public via TRT and news
agencies.
Disease impeding duty
ARTICLE 7- (1) In the event that it is conclusively understood
through a medical board report of an official general hospital that
a member will not be able to assume office due to health reasons,
paragraph three of article 11 of the Code shall be applied.
(2) These individuals shall be referred to the medical board of
a hospital whose qualities are stipulated in paragraph one upon
their own request or upon the decision to be made by the General
Assembly. The report of the medical board shall be taken as the
basis for the action to be carried out.
(3) However, upon the request of these individuals or in the
event that it is deemed to be necessary by the General Assembly,
the concerned shall be reexamined by the medical board of
another official general hospital. In the event that a discrepancy
emerges between the reports, this discrepancy shall be resolved
by another official general hospital and the relevant action shall
be carried out accordingly.
CHAPTER THREE
Election, Duties and Authority of the President and Deputy
Presidents
and the Liabilities of the Members
Elections and the preparation of ballots
ARTICLE 8- (1) The President and the Deputy Presidents, the
President and Deputy President of the Court of Jurisdictional
Disputes shall be elected for a period of four years by the General
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Assembly from amongst the members by secret vote and with
simple majority of the total number of members. Those the
term of whom expires can be re-elected. No candidates shall be
nominated in these elections.
(2) The elections shall be included in the agenda by the
President within the two months preceding the date on which
these duties will expire. The venue, date and time of the election
shall be notified to the members in writing at least seven days in
advance. The President shall be authorized to carry out election
affairs.
(3) When there is a vacancy in the Presidency, Deputy
Presidencies, the Presidency of the Court of Jurisdictional
Disputes or the Deputy Presidency of the Court of Jurisdictional
Disputes, new elections shall be held for a period of four years
within the framework of the provisions contained in this article.
(4) In the elections to be held, ballots of the same size, which
separately bear the names and surnames of the members, are
printed in the same manner on the same color of paper and
stamped with the seal of the Court shall be distributed to the
members in an envelope. The elections shall be held separately
and these ballots distributed to the members shall be used in the
voting.
Counting of the votes
ARTICLE 9- (1) A Counting Board shall be constituted of the
three members with the lowest seniority to be assigned in the
counting of the votes. The counting of the votes shall be done by
this Board, the result shall be determined via minutes.
(2) The Counting Board shall first determine whether the
number of ballots is equal to the number of members participating
in the voting. In the event that the number of ballots is higher
than the number of voting members, the voting shall be renewed.
The ballots which are not in compliance with the due method
shall be considered null and void.
(3) If the results of the counting demonstrate that the election
will not be concluded on that day, the voting can be postponed
to another date to be determined by the President. This period
cannot be more than seven days.
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(4) The result of the election shall be notified in writing to
those elected and be published in the Official Gazette.
Duties and authority of the President
ARTICLE 10- (1) The duties and authority of the President
shall be as follows:
a) To represent the Court.
b) To ensure the efficient and orderly functioning of the Court
and to take the measures s/he will consider appropriate to this
end.
c) To determine the agenda of the General Assembly and,
when necessary, of the Sections.
ç) To preside over the General Assembly and the Supreme
Court; to assign one of the Deputy Presidents, when s/he shall
deem necessary, to execute these duties in his/her place.
d) To assign and dismiss the Secretary General, the Deputy
Secretary Generals and rapporteurs in chief.
e) To approve the regulations of the Court.
f) To inspect the conformity of expenditures with the budget
of the Court.
g) To assign members from another Section in the event that
one of the Sections shall fail to convene due to actual or legal
impossibility.
ğ) To take necessary precautions in order to ensure the
balanced distribution of the work load among the Sections in line
with the leading decision of the General Assembly.
h) In the event that it is determined that the work load of
one of the Sections has increased to such a degree as not to be
fulfilled with normal working and that a work load imbalance
has occurred between the Sections, to convene the General
Assembly to discuss this matter.
ı) In cases where it is considered that a case law discrepancy
has occurred or will occur between the decisions of the Sections,
to convene the General Assembly to discuss this matter.
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i) To make arrangements regarding the functioning and
organization of individual application by taking into account the
opinions of the Presidents of the Sections.
j) To appoint the Court staff.
k) To provide information and interviews regarding the
Court to the press and the public opinion or to assign Deputy
Presidents, members or rapporteurs to this end in circumstances
to be deemed necessary.
l) To take or make others take security measures regarding
the Court.
m) To fulfill other duties prescribed in the Code and in the
Internal Regulation.
(2) The duties and authority pertaining to the President shall
be fulfilled by the senior Deputy President in the event that
the Presidency is vacant; these shall be fulfilled by the Deputy
President to be determined by the President in the event that
the President is on excused absence or leave. In the event that
the Deputy Presidents are not present either, the most senior
member shall preside over the Court.
Duties and authorities of Deputy Presidents
ARTICLE 11- (1) The duties and authorities of Deputy
Presidents shall be as follows:
a) To preside over the General Assembly or the Supreme
Court in circumstances deemed to be necessary by the President.
b) To preside over the sessions of the Section of which s/he is
a member and to manage the affairs of the Section.
c) To determine the agenda of the Section of which s/he is
the President in such a way as not to disrupt the working of the
General Assembly.
ç) To preside over the hearings of the Section.
d) To determine the Commissions in which the members of
the Section will serve.
e) To make sure that the members of the Section take turns in
serving in Commissions and to prepare lists to this end.
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f) To ensure the efficient and orderly functioning of the
Commissions and to take the measures s/he will consider
appropriate to this end.
g) In cases where it is considered that a case law discrepancy
has occurred or will occur between the decisions of the
Commissions, to convene the Section to discuss this matter.
ğ) To take necessary precautions for the balanced distribution
of work load among the Commissions.
h) To fulfill the duties assigned with the Code and the Internal
Regulation and other affairs entrusted by the President.
(2) In cases where the Deputy Presidency is vacant, the
Deputy President is on excused absence or leave, the duties and
authority pertaining to the Deputy President shall be fulfilled by
the most senior member.
Liabilities of Members
ARTICLE 12- (1) The members;
a) Shall be obliged to act according to the solemnity and honor
of the profession of judgeship; they cannot engage in any activity
that does not comply with their duties,
b) Shall participate in sessions unless they have a valid excuse,
c) Cannot declare their thoughts and opinions regarding
current matters which are being deliberated at the Court or
which may be carried to the attention of the Court,
ç) Shall preserve the secrecy of sessions and voting,
d) Cannot cast an abstention vote in votes,
e) Cannot assume any official or private duty apart from their
duties; can participate in national or international congresses,
conferences and similar scientific meetings with the permission
of the President.
(2) They can become members of associations with sports,
social and cultural purposes on the condition that they do not
assume duties in executive and inspection boards.
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CHAPTER FOUR
Provisions Regarding Crimes and Punishments and
Disciplinary Actions
Judicial investigation and protection measures
ARTICLE 13- (1) Initiating an investigation into crimes
alleged to be arising from the duties of the members or to be
committed during their duties and their individual crimes shall
be conditional of the decision of the General Assembly. However,
in circumstances of in flagrante delicto, which fall under the
jurisdiction of the assize court, the conduct of the investigation
shall be subject to general provisions.
(2) Protection measures regarding the members due to crimes
alleged to be arising from the duties of the members or to be
committed during their duties and their individual crimes can
only be decided upon as per the provisions of article 17 of the
Code. In circumstances of in flagrante delicto, which fall under
the jurisdiction of the assize court, the application for protection
measures shall be subject to general provisions.
(3) If the Investigation Board, during investigation, places
a request to the effect that the protection measures contained
within the Code of Criminal Procedure dated 4/12/2004 and
numbered 5271 and other codes be taken in crimes arising from
duties or alleged to be committed during duties and individual
crimes apart from cases of in flagrante delicto, which fall under
the jurisdiction of the assize court, a decision shall be made by
the General Assembly regarding this matter.
Judicial investigation procedure
ARTICLE 14- (1) If a notification or complaint is brought
forward as a result of crimes arising from the duties of the
members or committed by the members during their duties and
their individual crimes apart from cases of in flagrante delicto,
which fall under the jurisdiction of the assize court, or if such
a circumstance is learned about, an action shall be carried out
according to the following provisions.
a) The President shall not put into effect notifications or
complaints brought forward or understood to be brought
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forward under a pseudonym, devoid of signature and address,
or not containing a specific incident, or reason and the evidence
and justification of which are not demonstrated. However, in
the event that these notifications and complaints are based on
concrete evidence, the necessary examination and investigation
shall be carried out regarding the matter.
b) When necessary, the President can have a member carry
out a preliminary examination before taking the matter to the
General Assembly. The assigned member must be more senior
than the Deputy President or member regarding whom the
investigation is carried out. In the event that an investigation is
carried out regarding the most senior member, this duty shall be
assigned to one of the Deputy Presidents.
c) The assigned member can request all kinds of information
and documents regarding the examination from the concerned
through the Presidency as per article 62 of the Code.
ç) After completing his/her examination, the assigned member
shall prepare a preliminary examination report containing the
facts, claims and evidence and submit it to the President without
declaring his/her own opinion.
d) The preliminary examination report shall be incorporated
into the agenda by the President and discussed at the General
Assembly. The member regarding whom the action is carried out
cannot participate in the deliberations at the General Assembly
regarding this matter.
e) In the event that it is decided by the General Assembly that
there are no grounds for initiating an investigation, the reasoned
decision shall be notified to the concerned member and to those
who have brought forward the notification and complaint.
f) In the event that it is decided to initiate an investigation,
the General Assembly shall elect three individuals from amongst
the members via secret vote to make up the Investigation Board.
g) At the end of the vote at the General Assembly, the votes
that each of the members has received shall be written next to
their names and the three candidates with the highest number of
votes shall be considered to be elected as members of the Board.
In the event of equality of votes, the more senior member shall be
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considered to be elected. The senior member shall preside over
the Investigation Board.
ğ) The Investigation Board shall carry all of the authority
bestowed upon the Public prosecutor by the Code numbered
5271. The actions requested by the Board to be carried out in
relation to the investigation shall be immediately fulfilled by the
judicial authorities with local authority.
(2) In the event that the above prescribed situation and
behaviors of the President are observed or learned about, the
actions required to be carried out by the President shall be
executed by the senior Deputy President.
Decisions of the Investigation Board
ARTICLE 15- (1) If the Investigation Board does not deem
it necessary to file a public action after having completed
the investigation, it shall decide that there are no grounds for
initiating prosecution.
(2) If the Investigation Board deems it necessary to file a public
action, it shall send the indictment and the file it will prepare to
the Court to carry out the trial in its capacity as the Supreme
Court in crimes related to their duties, to the Presidency in order
to be entrusted to the Assembly of Criminal Chambers of the
Supreme Court of Appeals in other crimes.
(3) The actions and decisions of the Investigation Board shall
be final; the decisions shall be notified to the suspect and the
complainant, if any.
(4) The members who have taken part in the Investigation
Board cannot assume duties in the trial to be conducted by the
Court in its capacity as the Supreme Court.
(5) The provisions of the Code and other codes which suit the
nature of the trial shall be applied in the trial to be conducted by
the Court in its capacity as the Supreme Court.
Decision to initiate a disciplinary investigation
ARTICLE 16- (1) Initiating an investigation regarding the
members on grounds of their disciplinary actions shall be
conditional of the decision of the General Assembly.
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Procedure for disciplinary investigation
ARTICLE 17- (1) If a notification or complaint is brought
forward as a result of actions of the members which require
disciplinary sanction, or if such a circumstance is learned
about, an action shall be carried out according to the following
provisions.
a) The President shall not put into effect notifications or
complaints brought forward or understood to be brought
forward under a pseudonym, devoid of signature and address,
or not containing a specific incident or reason, and the evidence
and justification of which are not demonstrated. However, in
the event that these notifications and complaints are based on
concrete evidence, the necessary examination and investigation
shall be carried out regarding the matter.
b) When necessary, the President can have a member carry
out a preliminary examination before taking the matter to the
General Assembly. The assigned member must be more senior
than the Deputy President or the member regarding whom the
investigation is carried out. In the event that the investigation is
carried out regarding the most senior member, this duty shall be
assigned to the senior Deputy President.
c) The assigned member can request all kinds of information
and documents regarding the examination from the concerned
through the Presidency as per article 62 of the Code.
ç) After completing his/her examination, the assigned member
shall prepare a preliminary examination report containing the
facts, claims and the evidence and shall submit it to the President
without declaring his/her own opinion.
d) The preliminary examination report shall be incorporated
into the agenda by the President and be discussed at the General
Assembly. The member regarding whom the action is carried out
cannot participate in the deliberations at the General Assembly
regarding this matter.
e) In the event that it is decided by the General Assembly that
there are no grounds for initiating an investigation, the reasoned
decision shall be notified to the concerned member and to those
who have brought forward the notification and complaint.
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f) In the event that it is decided to initiate an investigation,
the General Assembly shall elect three individuals from amongst
the members via secret vote to make up the Investigation Board.
g) At the end of the vote at the General Assembly, the votes that
each of the members has received shall be written next to their
names and the three candidates receiving the highest number of
votes shall be considered to be elected as members of the Board.
In the event of equality of votes, the more senior member shall be
considered to be elected. The most senior member shall preside
over the Investigation Board.
ğ) The Investigation Board shall gather the information
regarding the matter and determine the evidentiary proof, hear
under oath the individuals considered necessary to be heard.
h) As per paragraph (4) of article 18 of the Code, the Investigation
Board can make requests regarding the investigation from public
administrations, public officials, other real and legal persons.
ı) The Investigation Board shall invite the concerned to
deliver his/her defense within the period to be provided on
the condition that it will not be fewer than fifteen days after
having notified him/her of the alleged situation and behavior.
The concerned shall be authorized to examine the investigation
documents starting from the moment when his/her defense has
been requested.
i) At the end of the examination, the Investigation Board shall
prepare a report demonstrating the information and evidence it
has gathered and containing its opinion as to whether there are
grounds for imposing a disciplinary sanction or not and shall
submit the report and its annexes to the Presidency in order to be
communicated to the General Assembly.
j) The President shall notify in writing the outcome of the
investigation to the concerned and shall invite the concerned to
provide his/her written defense in front of the General Assembly
within the period s/he will determine, on the condition that it
will not be fewer than five days.
k) The General Assembly shall rule on the expansion of
the investigation, if necessary, according to the outcome of
the disciplinary investigation that has been conducted, on the
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removal of the file from proceedings if it does not consider proven
the alleged situation and behavior, on the disciplinary sanction
befitting the action in the event that it considers it proven.
(2) In the event that the above prescribed situation and
behaviors of the President are observed or learned about, the
actions required to be carried out by the President shall be
executed by the senior Deputy President.
Joint conduct of criminal and disciplinary investigations
ARTICLE 18- (1) Criminal investigations and prosecutions
shall not thwart the separate conduct and imposition of
disciplinary actions.
Statute of limitations in disciplinary investigations
ARTICLE 19- (1) If a year has elapsed since the date on which
actions requiring a disciplinary investigation became known, a
disciplinary investigation cannot be initiated. No disciplinary
penalty can be imposed if five years have elapsed as of the date
of committal of the action which requires a disciplinary sanction.
(2) If the action which requires a disciplinary sanction also
constitutes a crime, if a longer period of statute of limitations
is prescribed in the code regarding this crime and if a criminal
investigation or prosecution is initiated, the periods of statute of
limitations pertaining to the case shall be applied instead of the
period stipulated in paragraph one.
(3) For those regarding whom it has been decided by the
General Assembly to wait for the outcome of the criminal
prosecution, the authority to impose sanctions shall become
subject to statute of limitations after one year has elapsed since
the finalization of the decision of the court which conducted the
prosecution.
Actions requiring disciplinary sanction and the disciplinary
sanctions
ARTICLE 20- (1) In the event that the President, Deputy
Presidents and members assume an official or private duty apart
from their primary duties or that their situations and behavior
which do not befit the solemnity and honor of membership and
disrupt the service have been considered to be proven, one of the
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sanctions of warning, condemnation or summoning to withdraw
from membership shall be decided upon according to the nature
of the action.
(2) The decisions regarding the imposition of the disciplinary
sanctions of warning and condemnation shall be made with the
vote of the absolute majority of the General Assembly.
Summon to withdraw from membership
ARTICLE 21- (1) The two thirds majority vote of the General
Assembly shall be sought in order to decide upon the sanction of
summoning to withdraw from membership.
(2) The member regarding whom the sanction of summoning
to withdraw from membership has been decided upon shall be
considered to have resigned if s/he does not abide by this within
a month starting from the date of notification and s/he shall be
considered to be on leave during this period.
Objection to disciplinary sanctions
ARTICLE 22- (1) The concerned can make an application for
reexamination to the General Assembly within ten days starting
from the date of notification of the decision to him/her against
the decision of the General Assembly regarding a disciplinary
sanction.
(2) The decision made as a result of the reexamination to be
carried out by the General Assembly shall be final. The decision
of the General Assembly shall be notified to the concerned and
be executed by the President.
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SECTION TWO
Organizational Structure
CHAPTER ONE
General Assembly, Sections and Commissions and Their
Functioning
Organization
ARTICLE 23- (1) The organization of the Court shall be
composed of the Presidency, the General Assembly, Sections,
Commissions, the Secretariat General and the administrative
service units.
General Assembly
ARTICLE 24- (1) The General Assembly shall convene with
a minimum of twelve members, except for the President, under
the chairmanship of the President or the Deputy President to be
determined by the President.
Duties and liabilities of the General Assembly
ARTICLE 25- (1) The duties and authority of the General
Assembly shall be as follows:
a) To take charge of actions for annulment and actions of
objection as well as the trials to be carried out in the capacity of
Supreme Court.
b) To rule on the cases and applications regarding political
parties, to carry out financial auditing.
c) To accept or amend the Internal Regulation.
ç) To elect the President and Deputy Presidents as well as the
President and Deputy Presidents of the Court of Jurisdictional
Disputes.
d) To rule on case law discrepancies between the decisions
made by the Sections regarding individual applications.
e) To ensure the division of labor between the Sections.
f) To definitively rule on division of labor discrepancies which
occur between the Sections upon the call of the President.
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g) To assign another Section in the event that the work load
of one of the Sections increases to such a degree as not to be
fulfilled with normal working and that a work load imbalance
occurs between the Sections or that a Section fails to take charge
of an action which falls under its duty due to actual or legal
impossibility.
ğ) To decide on the initiation of disciplinary or criminal
investigations regarding the members, investigation and
prosecution measures, and the imposition of disciplinary
sanctions or the termination of membership when necessary.
h) To examine objections.
ı) To fulfill the duties attributed to the General Assembly in
the Code and the Internal Regulation.
Research and Case Law Unit (Re-CL)
ARTICLE 26- (1) The Research and Case Law Unit shall
be composed of a sufficient number of rapporteurs, deputy
rapporteurs and personnel under the supervision of a rapporteur
in chief.
(2) The duties of the Research and Case Law Unit shall be as
follows:
a) To examine reports and draft decisions prior to them
being discussed at the General Assembly or in the Sections with
a view to the coherence and development of case law as well
as the legal language and drafting rules and, when deemed
necessary, to prepare opinions within a week after these have
been communicated to the Section in order to be presented to the
General Assembly or the Section along with the report or draft
decision.
b) To notify the relevant President of Section or the President
with a report in the event that it has observed a case law
discrepancy between decisions made by the Commissions or
Sections.
c) To prepare research and examination reports on the
preparation of reports and decisions upon the request of the
President or the Deputy Presidents and to make these available
to all members, rapporteurs and deputy rapporteurs.
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ç) To follow the decisions which have been made by the General
Assembly, the Sections and Commissions and are of significance
with a view to the case law, and to prepare documents and carry
out the necessary work in order to inform those serving at the
various units of the Court regarding this matter.
d) To follow the case law of the European Court of Human
Rights as well as other international jurisdictional bodies and
other Supreme Courts, to prepare information notes regarding
matters deemed to be of significance for the case law of the Court.
e) To determine the decisions of principal nature and
significance made by the General Assembly, the Sections and
Commissions to be published annually.
Composition of the Sections
ARTICLE 27- (1) Two Sections shall be established at the
Court that are composed of the members except for the President
in order to examine individual applications. Each Section shall
be composed of a Deputy President and seven members. The
Sections shall be entitled the First Section and the Second Section.
(2) The members who will serve in the Sections except for
the Deputy Presidents shall be determined by the President
according to the path through which they have been elected and
the principle of balanced distribution between the Sections.
(3) It can be decided by the President to change the Section
of members upon the request of the concerned member or the
recommendation of one of the Deputy Presidents.
Duties and authorities of the Sections
ARTICLE 28- (1) The duties of the Sections shall be as follows:
a) To carry out the examination on merits of the applications
deemed to be admissible by the Commissions.
b) To jointly carry out the examination of admissibility and on
merits of the applications the admissibility of which could not be
ruled upon by the Commissions when deemed necessary.
(2) The Sections can make a decision of inadmissibility
regarding an application at any stage of the examination in the
event that they determine an obstacle to admissibility or that this
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situation emerges later on.
(3) If the decision to be made by one of the Sections regarding
an ongoing application will clash with a decision previously
made by the Court, the relevant Section can bring this matter
to the attention of the General Assembly before ruling on the
application.
Convening and agenda of the Sections
ARTICLE 29- (1) The Sections shall convene under the
chairmanship of the Deputy President and with the participation
of four members. In circumstances where the Deputy President
is absent, the most senior member shall preside over the Section.
(2) The members of Sections, except for the Deputy President,
shall be listed according to seniority with the purpose of forming
the committees within the Sections. The meetings during the
first month shall be held by the committee that is composed
of the first four members according to the ranking in the list,
and the Deputy President. In the following months, it shall
be ensured that each member who has not participated in the
meetings serves in rotation according to the seniority ranking
starting with the most senior member . The President of the
Section shall prepare the list demonstrating the schedule for
this rotation at the beginning of each year. In the event that a
new member joins the Section, the President of the Section shall
make the necessary arrangement accordingly. The lists shall be
announced to the members.
(3) In the event that the meeting quorum of the Section cannot
be obtained, the President of the Section shall assign the members
from within the Section who do not participate in the meetings
to participate in the meeting according to seniority ranking,
in the event that this is not possible, the President shall assign
members from the other Section upon the recommendation of
the President of Section.
(4) The meeting schedule of the Section shall be determined
and announced by the President of the relevant Section in such a
way as not to disrupt the workings of the General Assembly and
by obtaining the opinion of the President.
(5) The President of the Section shall determine the meeting
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agenda of the Section. When necessary, the Section can decide
to incorporate certain actions into the agenda as well. The draft
decisions shall be included in the agenda after fifteen days have
elapsed since the date on which they were submitted to the
Section.
Working procedure of the Sections
ARTICLE 30- (1) During the Section meetings, the case file
shall be explained in detail by the Section rapporteur according
to the list of agenda items.
(2) The President of the Section shall give the floor to the
members who request the floor regarding the matter to explain
their opinions in the order in which they have made their request.
After the completion of the deliberations, the decision shall be
made by means of voting starting with the junior member. This
situation shall be determined by the President via minutes.
(3) According to the outcome of the voting, the examination of
the prepared draft decision shall be proceeded to. The President
of the Section shall ask the members to convey their amendment
proposals that they wish to see enacted by stating page and
paragraph number, if any. These recommendations shall be
voted by the committee. The text which has been adopted in
line with the decision made by the committee shall be sent to
the rapporteur in chief in order for the correction actions to be
taken. After the corrections have been made, the decision shall
be submitted to the signature of the committee.
Office of the Sections rapporteur
ARTICLE 31- (1) An office of the Sections rapporteur composed
of a sufficient number of rapporteurs, deputy rapporteurs and
personnel shall be established under the supervision of the
rapporteur in chief with the purpose of concluding individual
applications in a more expedient manner.
(2) The Sections rapporteurs can be divided into working
groups under the coordination of a rapporteur according to their
fields of expertise.
(3) The duties of the office of the Sections rapporteur shall be
as follows:
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a) To group or examine one by one the applications the
admissibility of which has been ruled upon by the Commissions
and to prepare and submit to the Sections the draft decisions on
their merits.
b) To prepare and submit to the Commissions the draft
decisions regarding admissibility in the event that this is deemed
to be appropriate by the Commissions Rapporteur in Chief.
(4) In the event that admissibility depends on the merits or
that the nature of the application so require, the draft decisions
regarding admissibility and the merits can be jointly prepared.
The draft decisions thus prepared by the Sections rapporteurs
shall be submitted to the Sections to be discussed.
(5) The distribution of the applications pending at the
Sections amongst the rapporteurs and deputy rapporteurs shall
be ensured by the Rapporteur in Chief. The nature of the matter,
the experience and expertise of the rapporteur shall be taken into
consideration when assigning a rapporteur. Attention shall be
paid to order and the balanced execution of actions amongst
the rapporteurs and deputy rapporteurs in the distribution of
assignments.
Composition of Commissions
ARTICLE 32- (1) Three Commissions per Section which serve
under the Sections shall be established in order to carry out the
admissibility examinations of individual applications. These
shall be named by way of being enumerated along with the
Section to which they are answerable. The President of Section
shall not assume duties in the Commissions. The senior member
shall preside over the Commissions.
(2) The members of Sections, except for the Deputy President,
shall be listed according to seniority with the purpose of forming
the Commissions. The least senior member according to the
ranking in the list cannot participate in the meetings during the
first month. In the following months, it shall be ensured that
each member who has not participated in the meetings serves in
rotation according to the seniority ranking starting with the most
senior member . The President of the Section shall prepare the
list demonstrating the schedule for this rotation at the beginning
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of each year. In the event that a new member joins the Section,
the President of the Section shall make the necessary arrangement
accordingly. The lists shall be announced to the members.
(3) In the event that there are vacancies in the membership
of the Commissions, the member who does not participate in
the meeting shall replace the missing member in the relevant
Commission pertaining to the Section.
(4) The General Assembly can decide to change the
Commissions which are answerable to the Sections and the
number of members composing the Commissions.
In this
case, the Commissions shall be re-established in line with the
procedure stipulated in the above paragraphs.
Duties and working procedure of the Commissions
ARTICLE 33- (1) The draft decisions on admissibility and
the draft decisions or lists of inadmissibility prepared by the
rapporteurs of the Commissions shall be ruled upon by the
Commissions.
(2) The Commissions shall decide unanimously.
When
unanimity cannot be ensured, the matter shall be transferred to
the Section by stating that unanimity could not be ensured.
(3) The Commissions shall send an application to the
relevant Section without ruling on the matter of admissibility
upon determining whether the pending application bears
significance in terms of the implementation and interpretation
of the Constitution or determining the scope and limitations of
the fundamental rights or whether the applicant has suffered
considerable damage and in the event that the solution of the
application requires a principal decision or that the decision to
be made is of the quality to potentially contradict with a decision
previously made by the Court.
Office of the Commissions rapporteur
ARTICLE 34- (1) An office of the Commissions rapporteur
composed of a sufficient number of rapporteurs, deputy
rapporteurs and personnel shall be established under the
supervision of the rapporteur in chief with the purpose of
concluding individual applications in a more expedient manner.
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(2) The duties of the office of the Commissions rapporteur
shall be as follows:
a) To determine the files which require more detailed
examination by the Commissions, to examine files by grouping
or one by one and to determine the applications which are of an
inadmissible nature.
b) To prepare and submit to the Commissions the admissibility
draft decisions regarding the applications which meet the
admissibility criteria, and the inadmissibility draft decisions or
lists regarding the applications which do not meet these criteria.
(3) The admissibility draft decisions pertaining to applications
whose admissibility cannot be concluded by the Commissions
and the applications covered under groupings shall be prepared
by the office of the Commissions rapporteur on the condition that
this be deemed appropriate by the Commissions Rapporteur in
Chief.
(4) In circumstances where the work load allows or labor
productivity requires, on the condition that the Commissions
Rapporteur in Chief deems appropriate, all kinds of draft
decisions can be prepared by the office of the Commissions
rapporteur in order to be submitted to the Sections.
(5) The distribution of the applications pending at the
Commissions amongst the rapporteurs and deputy rapporteurs
shall be ensured by the Rapporteur in Chief. The nature of the
matter as well as the experience and expertise of rapporteurs
shall be taken into consideration when assigning a rapporteur.
Attention shall be paid to order and the balanced execution of
actions amongst the rapporteurs and deputy rapporteurs in the
distribution of assignments.
CHAPTER TWO
Secretariat General, Rapporteurs and Deputy Rapporteurs
Secretariat General, its establishment and duties
ARTICLE 35- (1) The duty of the Secretariat General shall
be fulfilled by a rapporteur to be deemed appropriate by the
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President. In the event that the Secretary General is not on duty,
the Deputy Secretary General to be determined by the Secretary
General shall substitute him/her.
(2) The Secretary General can leave the duty of the Secretariat
General upon his/her own request, s/he can also be replaced
without providing justification when deemed necessary by the
President.
(3) Under the supervision and inspection of the President, the
Secretary General shall be assigned and authorized;
a) To register and transfer applications,
b) To manage the administrative affairs regarding the
meetings of the General Assembly and the Sections,
c) To ensure the automation and archiving of the decisions
and reports,
ç) To handle the correspondence of the Court,
d) To follow up on the implementation of the decisions of the
Court and to inform the General Assembly regarding the matter,
e) To spend the budget and to provide information to the
President regarding the matter,
f) To manage the institutional, scientific, administrative,
financial and technical affairs of the Court,
g) To manage protocol affairs,
ğ) To command and control the personnel,
h) To carry out other actions assigned by the President
within the framework of the provisions of the Code, the Internal
Regulation and regulations.
(4) The Secretariat General shall be composed of the
Secretary General, the Deputy Secretary General and a sufficient
number of personnel to be assigned by the Presidency. The
duties of the civil servants and attendants working in the
organization of the Secretariat General and how these duties
are to be conducted shall be regulated with the regulation to be
issued by the Presidency.
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(5) The Secretary General shall prepare draft regulations with
a view to executing the duties assigned to him/her by the Code
and the Internal Regulation. These drafts shall enter into force
with the approval of the President.
(6) The Secretary General shall represent the Constitutional
Court at the committees and the General Assembly of the Grand
National Assembly of Turkey.
Deputy Secretary Generals
ARTICLE 36- (1) The Deputy Secretary Generals shall be
assigned by the President from amongst rapporteurs.
(2) The Deputy Secretary Generals can leave their duties upon
their own requests, they can also be replaced without providing
justification when deemed necessary by the President.
(3) The Deputy Secretary Generals shall execute the duties
assigned by the President and the Secretary General within the
framework of the provisions of the Code, the Internal Regulation
and regulations. They shall be answerable to the President and
the Secretary General regarding the orderly execution of these
tasks.
(4) The division of labor between the Deputy Secretary
Generals shall be determined with the proposal of the Secretary
General and the approval of the President.
(5) Each of the Deputy Secretary Generals shall be responsible
for the following fields of activity:
a) Managing in an orderly and harmonious manner the
tasks regarding the functioning of the General Assembly and of
individual applications and overseeing the work of rapporteurs.
b) Managing international relations.
c) Managing administrative, financial and other affairs.
Rapporteurs in Chief and their duties
ARTICLE 37- (1) The Rapporteurs in Chief shall be assigned
by the President from amongst rapporteurs. (2) The Rapporteurs
in Chief can leave their duties upon their own request, they can
also be replaced without providing justification when deemed
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necessary by the President.
(2) There shall be four rapporteurs in chief at the Court to
serve at the General Assembly, the Sections, the Commissions
and at Re-CL. The rapporteurs in chief shall be assigned to
ensure the orderly and efficient functioning of the activities of the
rapporteurs and deputy rapporteurs in their respective sections
and the working groups established within the Court.
(3) At times when the rapporteur in chief is not present, the
most senior rapporteur of the unit in question shall fulfill the
duties of the rapporteur in chief.
(4) The Sections Rapporteur in Chief shall make notifications
to the Ministry of Justice on behalf of the President of Section in
order to obtain its opinion regarding the applications concerning
which a decision of admissibility has been made.
Rapporteurs and their duties
ARTICLE 38- (1) The rapporteurs shall execute the tasks
assigned by the President within the framework of the Code and
the Internal Regulation.
(2) Where in the General Assembly, the Sections, the
Commissions or other rapporteur units the rapporteurs will
serve shall be decided by the President by taking into account
their seniority and experience. It shall be ensured that the
rapporteurs rotate between different units at intervals to be
deemed appropriate in order to enhance the experience of
rapporteurs and achieve efficiency in their work.
(3) The rapporteurs of the General Assembly shall be assigned
tasks which fall under the authority of the General Assembly.
They shall prepare the reports of preliminary examination and
examination on merits, draft decisions and other procedures
regarding the files assigned to them by the President, and
participate in meetings.
(4) The individual application rapporteurs shall be divided
into two as Commissions rapporteurs and Sections rapporteurs
and shall carry out the duties regarding individual application
prescribed in the Code and in the Internal Regulation.
A
sufficient number of individual application rapporteurs shall be
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assigned to serve at the Sections and Commissions.
(5) The individual application rapporteurs shall prepare the
draft decisions regarding the admissibility or the inadmissibility
of individual applications and shall participate in meetings.
(6) The individual application rapporteurs shall serve under
the supervision of the rapporteurs in chief. In order to ensure
efficiency in the preparation of draft decisions, the President shall
decide upon the recommendation of the rapporteur in chief and
also by taking into account the opinion of the Deputy Presidents
either that the Sections rapporteurs be divided into specialty
groups or that working groups be formed from rapporteurs.
(7) The individual application rapporteurs shall oversee the
correspondence for requesting the information and documents
deemed to be necessary to be included in the files regarding
applications. They shall oversee and follow up the necessary
notifications.
(8) Duties such as hearing witnesses or experts or similar other
duties can be assigned to the individual application rapporteurs
when necessary by the Presidents of Sections with the approval
of the President on the condition that the scope and nature of the
requested task are demonstrated.
Deputy rapporteurs
ARTICLE 39- (1) A sufficient number of deputy rapporteurs
shall serve at the Court in order to assist the judicial and
administrative tasks.
(2) Deputy rapporteurs shall be assigned by the President to
relevant units in order to fulfill the duties regarding individual
applications stipulated in the Code and the Internal Regulation
and to assist the rapporteurs.
(3) Deputy rapporteurs shall carry out their duties under
the supervision of the rapporteur, if determined, to whom they
are answerable and under the supervision of the Rapporteur in
Chief in other circumstances.
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Promotion and grade advancement of assigned rapporteurs
and deputy rapporteurs
ARTICLE 40- (1) As per subparagraph (c) of paragraph
two of article 24 and paragraph eight of article 25 of the Code,
the decisions regarding the grade and level advancement of
the assigned rapporteurs, their designation to first class and
their promotion to first class shall be made by the President
according to the principles outlined in the Code on Judges and
Prosecutors dated 24/2/1983 and numbered 2802 by taking into
account their occupational circumstances and other information
and documents regarding their activities in professional and
academic matters.
(2) As per subparagraph (c) of paragraph two of article 24 and
paragraph eight of article 25 of the Code, the matters regarding
which there are no provisions in the Code numbered 2802
concerning the assigned rapporteurs shall be regulated via a
regulation.
(3) The promotion and grade and level advancement of
deputy rapporteurs shall be carried out within the framework of
the provisions of article 27 of the Code.
Supreme Disciplinary Board
ARTICLE 41- (1) With the exception of members and the
rapporteurs assigned as per subparagraphs (a) and (b) of
paragraph two of article 24 of the Code, the disciplinary affairs
of the personnel employed at the Court shall be carried out by
the Supreme Disciplinary Board. However, actions regarding
the rapporteurs assigned as per subparagraphs (a) and (b) of
paragraph two of article 24 of the Code due to their disciplinary
acts shall be carried out upon the notification of the President
by the institutions to which they are answerable and as per the
provisions of the relevant applicable legislation.
(2) The Supreme Disciplinary Board shall be composed
of three individuals, one from amongst the deputy Secretary
Generals to be recommended by the Secretary General and
approved by the President and two others to be determined
from amongst rapporteurs who have served at least three years
at the Court. The deputy Secretary General shall preside over
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the Board. The members of the Board shall be appointed for a
period of two years.
(3) At the end of the examination and investigation carried
out by the Supreme Disciplinary Board, whether there are
grounds for the imposition of a disciplinary sanction or not and
the disciplinary sanction in line with the nature and severity of
the act in the event that a disciplinary sanction is deemed to be
necessary shall be determined.
(4) The provisions of the Code on Civil Servants dated
14/7/1965 and numbered 657 which are not contrary to the Code
shall be applied regarding the circumstances which require
disciplinary sanctions and the sanctions to be imposed.
(5) The working procedure and principles of the Board and
other matters are regulated via a regulation.
Judicial investigation and prosecution regarding rapporteurs
ARTICLE 42- (1) Actions regarding the rapporteurs assigned
as per subparagraphs (a) and (b) of paragraph two of article 24
of the Code due to crimes arising from their duties or committed
during their duties and their individual crimes shall be carried
out upon the notification of the President by the institutions
to which they are answerable and as per the provisions of the
relevant applicable legislation.
(2) The conduct of examination and investigation regarding
rapporteurs who have been appointed due to crimes arising
from their duties or committed during their duties shall
depend on the authorization of the President. The President
can have the examination and investigation conducted via the
Secretary General or a rapporteur who is more senior than the
one regarding whom the examination and investigation will be
carried out. Upon the report to be prepared by the Secretary
General or the rapporteur who has conducted the examination
and investigation, whether or not the conduct of prosecution is
necessary shall be appraised by the Presidency and the relevant
documentation shall either be sent to relevant authorities or be
removed from proceeding. In the event that the conduct of
prosecution is deemed to be necessary, the documentation shall
be sent to the Office of the Chief Public Prosecutor of Ankara in
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order to be acted upon as per article 89 of the Code numbered
2802.
(3) The investigation regarding the individual crimes of the
appointed rapporteurs shall be conducted by the Office of the
Chief Public Prosecutor of Ankara.
(4) In cases of in flagrante delicto, which fall under the
jurisdiction of the assize court, the investigation shall be
conducted as per general provisions. The investigation shall be
conducted in person by the authorized Public prosecutors.
Judicial investigation and prosecution regarding deputy
rapporteurs and civil servants
ARTICLE 43- (1) The criminal prosecution regarding crimes
arising from the duties of deputy rapporteurs and civil servants
assigned at the Court shall be conducted as per the provisions of
the Code on the Trial of Civil Servants and other Public Officials
dated 2/12/1999 and numbered 4483.
(2) The authority to grant permission for investigation within
the framework of the Code numbered 4483 shall belong to the
President. The President can assign one or more rapporteurs
in order to conduct a preliminary examination regarding the
concerned when s/he deems necessary.
(3) The President shall decide to grant or not to grant
permission for investigation depending on the preliminary
examination report.
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SECTION THREE
Examination and Trial Procedures
CHAPTER ONE
Procedural Provisions Regarding Actions for Annulment and
Actions of Objection
Reception of applications
ARTICLE 44- (1) The actions for annulment shall be
conducted with the submission of the petition to the Secretariat
General in person by at least one of the members of the Grand
National Assembly of Turkey who have been authorized to file
the case. In actions for annulment to be filed by the President
of the Republic, the application petition shall be submitted by
the individual authorized in this matter by the President of the
Republic. A document attesting to the fact that the application
has been made shall be provided to the individual who submits
the application petition.
(2) The objection applications shall be made by the relevant
Court either through the postal channel or via UYAP.
(3) The case shall be considered to be filed on the date when
the petitions regarding applications for annulment and objection
are transferred by the Secretariat General to the Registrar’s Office.
Petition of action for annulment and its annexes
ARTICLE 45- (1) The application petition for an action for
annulment shall contain the following matters:
a) The rules the annulment of which is requested and the
articles of the Constitution to which each of these is contrary,
b) Regarding the provisions the contrariety of which to the
Constitution is alleged, the separate and clear demonstration
with justification of which articles of the Constitution these are
contrary to and for what reason,
c) If there is a request for stay of execution, the explanation of
the irrevocable damages which will occur in the event that the
execution is not stayed,
ç) A registration sample of the petition on electronic media,
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d) A list of contents where the documents submitted in the
case file are listed under headings according to their dates.
(2) If the case is filed by at least one fifth of the full number
of members of the Grand National Assembly of Turkey, the
following documents shall be annexed to the petition:
a) The rules the annulment of which is requested and the
articles of the Constitution to which each of these is contrary,
b) An approval document signed and sealed by the Speaker
of the Grand National Assembly of Turkey or an official to be
determined by him/her attesting to the fact that the signatures on
the petition belong to the concerned,
c) A list containing the names and surnames as well as the
constituencies and signatures of the individuals who file the case,
ç) A document demonstrating the names of the deputy or
deputies to whom notifications regarding the case will be made.
(3) If the case is filed by political party groups, the following
documents shall be annexed to the petition:
a) Approved copies of the decision of the group general
assembly,
b) Copies of the approved document attesting to the fact
that the individuals with signatures on the petition are group
chairpersons or deputy chairpersons.
Decision on application for objection and its annexes
ARTICLE 46- (1) The application for objection shall be filed
by the courts with a reasoned decision. The reasoned decision
must contain;
a) Regarding the provisions the contrariety of which to the
Constitution is alleged, the separate and clear demonstration
with justification of which articles of the Constitution these are
contrary to and for what reason,
b) If there is a request for stay of execution, the explanation
of the irrevocable damages which will occur in the event that the
execution is not stayed.
(2) In the application for objection, the original of the reasoned
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decision of application shall be submitted to the Court along
with the following documents:
a) An approved copy of the minutes regarding the application
decision,
b) The approved copies of the petition, the indictment or the
documents filing the case and the relevant parts of the file,
c) A list of contents where the documents submitted in the
case file are listed under headings according to their dates.
Assigning rapporteurs to files
ARTICLE 47- (1) The case files shall be distributed to
rapporteurs by the President by taking into account their fields of
specialty, the number of assignments they have and the features
of the file.
(2) If deemed necessary, multiple rapporteurs can be assigned
for a single case file. In this case, the reports to be prepared shall
be signed jointly by the relevant rapporteurs.
Preparation of preliminary examination reports
ARTICLE 48- (1) The rapporteur to be assigned by the
President shall prepare the preliminary examination report
within five days.
(2) Whether or not the petition or the application for objection
fulfill the conditions stipulated in the Code shall be indicated
and the type of decision which is deemed necessary to be made
and its justifications shall be explained in the report.
(3) An opinion shall be expressed in the report as to making
one of the decisions of proceeding to the merits, rejecting the
application, granting a period for the correction of deficiencies,
considering the case not filed or deciding that there are no
grounds for a decision.
(4) When deemed necessary, an additional period can be
granted by the President for the preparation of the report.
Deficiencies in application
ARTICLE 49- (1) If it is determined in the preliminary
examination conducted by the Court that the application contains
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deficiencies;
a) A period no less than fifteen days shall be granted to the
concerned for the correction of the deficiency in the action for
annulment. It shall be decided by the General Assembly to
consider the case not filed if the deficiency has not been corrected
despite the fact that a warning regarding the matter that the case
would be considered not filed unless the deficiencies are corrected
within the provided period was made in the notification to the
concerned,
b) In actions regarding the objection remedy, it shall be
decided that the application be rejected without proceeding to
the examination on merits.
(2) The decision issued as per subparagraph (b) of the above
paragraph shall not prevent the court from filing an application
again after having remedied the deficiencies.
Preparation of examination reports on merits
ARTICLE 50- (1) The applications regarding which the
preliminary examination has been completed and it has been
decided by the General Assembly to proceed to the merits shall
be submitted to their rapporteurs for the preparation of the
report on the merits of the file. The rapporteurs shall notify the
results of their examination on merits to the Presidency along
with a report containing their own opinions.
(2) The period in which the report on the merits will be
prepared starting from the date when it was decided to examine
the merits shall be determined by the President by taking into
account the opinion of the rapporteur. The rapporteur who fails
to prepare the report on the merits within this period shall notify
in writing to the Presidency the reasons for the delay and the
period in which the examination can be completed. If necessary,
this period can be extended by the President to a sufficient degree.
(3) The following matters must be included in the examination
report on the merits:
a) The period pertaining to the preliminary examination,
b) The meaning and scope of the rule,
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c) The evaluation of the claims of contrariety to the
Constitution.
(4) The rapporteur shall abide by the rules of scientific
reference in his/her report.
(5) The rapporteur shall also prepare the draft decision along
with the report in circumstances where the nature of the task
allow for the preparation of the draft decision.
(6) The rapporteur shall be present during the discussion
on the merits of the task s/he has examined and shall make the
necessary explanations.
CHAPTER TWO
Financial Inspection of Political Parties
Preliminary examination in financial inspection
ARTICLE 51- (1) As per article 74 of the Code on Political
Parties dated 22/4/1983 and numbered 2820, political parties shall
submit to the Court until the end of June the document signed
by their chairpersons and the following documents in its annex,
a) An approved copy of the decision made by the central
decision making and administrative boards (competent bodies
which are authorized in the party by-law to approve final
accounts) attesting to the fact that the final accounts of the party
headquarters and provincial organizations have been inspected,
approved and consolidated,
b) An approved copy of the annual final account which has
been agreed upon and consolidated,
c) An approved copy of the final account of the party
headquarters,
ç) Approved copies of the final accounts of provincial
organizations which also cover the respective sub-provinces and
have been signed by provincial officers and the compendium list
of the final accounts of provincial organizations to be prepared
by the headquarters,
d) Lists demonstrating the values, dates and manner of
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acquisition of the immovable properties, movable properties
with a value exceeding one hundred liras, real estate and all
sorts of rights acquired by the party headquarters and provincial
organizations within the same accounting period,
e) The inventory record on cash balance on hand demonstrating
the end-of-year existing cash balance which bears the signatures
of the secretary general and the general accountant of the party
and the reconciliation documents regarding the bank accounts
approved by bank officials.
(2) The above mentioned documents shall be sent by the
Court to the Presidency of the Court of Accounts in order to be
inspected.
(3) The inspectors to be assigned by the Presidency of the
Court of Accounts shall inspect the final accounts handed over
to them with a view to whether these have been prepared as per
articles 73 and 74 of the Political Parties Code numbered 2820,
whether the carry over amounts are accurate and whether the
final accounts tables contain a material mistake or inconsistency
which has an impact on the result. When necessary, they can
request information from the officials at all levels of the relevant
political parties regarding these matters. It shall be compulsory
to provide without delay the requested information and the
documents and papers which form the basis of these.
(4) The assigned inspectors shall benefit from the political
party registration file kept by the Chief Prosecution Service of
the Supreme Court of Appeals in order to be able to determine
whether the political parties have sent all the final accounts
pertaining to the provinces where they are organized.
(5) The inspectors shall submit to the Presidency the reports
they will prepare within two months at the latest starting from
the date when the final accounts have been handed over to them;
they shall demonstrate deficiencies, mistakes or inconsistencies,
if any, and how these can be remedied.
(6) The rapporteurs to be assigned by the Presidency shall be
present during the preliminary examination meetings regarding
the reports and make the necessary explanations.
(7) An appropriate period not exceeding one month shall be
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given by the Court to the political party for the completion of
deficiencies and the correction of mistakes and inconsistencies.
(8) In the event that it is understood that there are no
deficiencies, mistakes or inconsistencies in the final accounts
or that these are remedied according to the due procedure,
it shall be decided to examine the merits of the affair. In this
decision, an appropriate period not exceeding one month shall
be given to the concerned party for sending the revenue and
expenditure documents of the party headquarters and provincial
organizations and the book entries where these are kept. This
decision shall be notified to the concerned party.
Examination on merits in financial inspection
ARTICLE 52- (1) The revenue and expenditure documents
and book entries shall be sent by the party to the Presidency
of the Court of Accounts for the conduct of the examination
on merits. The revenue and expenditure documents and book
entries of the headquarters and provincial organizations of
parties shall be examined. The principles and procedures of
the inspection to be carried out and the matter regarding which
provincial organizations will be examined shall be determined
by the Presidency of the Court of Accounts unless otherwise
decided by the Court.
(2) The examination regarding the merits of the affair shall be
conducted with a view to whether the revenues and expenditures
of political parties are accurate and in compliance with the Code.
The examination of accuracy shall comprise the examination
conducted on the books and documents which form the basis
for the final accounts. The examination of compliance with the
Code shall be geared towards determining whether or not the
revenues and expenditures have been made in compliance with
the Political Parties Code.
(3) The assigned inspectors shall examine the party books,
revenue and expenditure entries and related documents
pertaining to the headquarters of parties and the provincial
organizations foreseen to be examined and compare these with
the final accounts. When necessary, they can request information
from the officials at all levels of the relevant political parties
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regarding these matters. It shall be compulsory to provide
without delay the requested information and the documents and
papers which form the basis of these.
(4) The examination reports containing the matters and
findings spotted during the examinations shall be sent by the
inspectors to the concerned political parties and the parties shall
be requested to provide their opinions regarding these matters
by taking into consideration the scope of the report within two
months at the latest.
(5) The inspectors shall submit their reports on the merits
which contain the opinions of the concerned political parties and
their own thoughts to the Court. A copy of the documents related
to the matters included in the report, the examination report sent
to the party and the response of the party shall be included in the
annex of the report. The provincial organizations the revenue
and expense documents and book entries of which have been
examined shall be demonstrated in the report.
(6) The rapporteurs to be assigned by the Presidency shall
be present during the discussion of these reports prepared by
the inspectors of the Court of Accounts and make the necessary
explanations.
(7) A copy of the decisions regarding the financial inspection
by the Court shall be sent to the headquarters of the concerned
political party, a copy shall be sent to the Presidency of the Court
of Accounts and a copy shall be sent to the Office of the Chief
Public Prosecutor of the Supreme Court of Appeals in order to be
included in the registration file of the party in question.
(8) The revenue and expenditure documents and book
entries pertaining to the accounts of the party regarding which a
decision has been sent shall be returned to the concerned party
by the Presidency of the Court of Accounts.
(9) The financial inspection decisions shall be published in the
Official Gazette.
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CHAPTER THREE
Provisions Regarding the Functioning of the General
Assembly
Agenda of the General Assembly
ARTICLE 53- (1) It shall be incumbent on the Presidency to
set the date of General Assembly meetings and to arrange the
agenda. When necessary, the General Assembly can also decide
to incorporate certain actions into the agenda as well.
(2) A copy of each of the reports and decisions prepared by
rapporteurs and submitted to the Presidency and the agenda
prepared by the Presidency shall be distributed to the members
at least a week prior to the date of the meeting.
(3) The President can set the date and agenda of the meeting
without being bound by the procedure and period stipulated
in this article in circumstances which are urgent and which are
expected to be damaging if delayed. The General Assembly
shall separately determine the day of deliberation in the event
that it does not agree with this opinion and does not accept the
actions carried out by the Presidency.
(4) The agenda shall be sent to the members and rapporteurs
in print or on electronic media and be published on the website
of the Court.
(5) The members can examine the files at all times if they
request to do so.
Meetings and deliberations
ARTICLE 54- (1) The members shall be present in
deliberations, hearings and sessions where oral explanations are
made, according to their seniority.
(2) If one of the members claims prior to the beginning of a
deliberation that s/he has not been able to sufficiently examine
the affair at hand, the deliberation of the affair in question shall
be postponed to another day. A member who has joined the
board later can also request the postponement of the deliberation
for the same reason. This postponement can be done only once.
(3) The deliberation shall be initiated and managed by the
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President. Those requesting the floor shall be given the floor
in the order in which they have requested it. Those who wish
to speak regarding the procedure shall be given the floor with
priority. The speech of the member who is talking shall not
be interrupted. However, speeches outside the subject can be
interrupted by the President.
(4) Voting shall be proceeded to upon the completion of the
deliberation.
(5) The deliberations of the Court shall be secret and recorded
via the technical equipment to be deemed appropriate by the
President.
The principles regarding the preservation and
utilization of these records shall be regulated via a regulation.
(6) The Court can defer to another day or postpone in order
to be discussed on a date to be determined by the Presidency
the deliberation of an affair which is included in the agenda, the
completion of an already initiated deliberation or an affair the
deliberation of which has not yet been initiated.
(7) A member who has been present during the initiation
of the deliberations cannot leave the Board until the affair in
question has been concluded unless s/he has a very important
excuse. The member who has not been able to participate in
the deliberations due to his/her excuse cannot be present during
the deliberation of the same affair by stating that his/her excuse
has ended unless the meeting quorum obliges. A member who
has newly taken office by taking the oath cannot participate in
already initiated deliberations except for those in the Supreme
Court unless the numbers oblige.
(8) Members who have not yet taken the oath can follow the
meetings and deliberations on the condition that they do not
declare their opinions and participate in the voting.
Failure to participate in meetings
ARTICLE 55- (1) Members who will not be able to participate
in meetings due to their excuses shall notify this to the Presidency
as soon as possible. Disease, circumstances such as being on
leave or on duty as well as force majeure and other sudden and
important incidents shall be considered as excuses.
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(2) The President shall appraise the validity of an excuse.
Voting
ARTICLE 56- (1) It shall be possible to resort to electronic
voting in the event that the President deems appropriate and the
nature of the affair allows. In circumstances where an open vote
is carried out, the voting shall start from the least senior member.
Abstention votes shall not be cast.
(2) Those who remain in minority regarding matters of duty
and procedure shall be obliged to participate in the deliberation
and voting on the merits.
Decision
ARTICLE 57- (1) In circumstances where there are no
additional provisions in the Constitution and the Code, the
decisions shall be made with a simple majority. In the event of
equality of votes, the decision shall be made in line with the side
which the President has opted for.
(2) Those who agree with the decision, those who remain in
minority and the summary of the decision shall be demonstrated
via minutes. These minutes shall be signed by the President
before the meeting is adjourned.
(3) After the merits of the affair have been concluded, the
draft decision shall also be deliberated if one has been submitted
by the rapporteur. When necessary, the President can assign
one of the members who agree with the decision to the drafting
of the decision with the rapporteur.
(4) The names and surnames of the rapporteurs shall appear
in the decision.
(5) In the event that disagreement arises over the text of the
decision, the President shall determine the final version of the
decision.
(6) On the condition that the members who have participated
in the committee submit jointly or separately their dissenting
vote texts or different or additional justifications, if any, to
the Presidency within ten days after the General Assembly
has determined the final version of the decision, these shall be
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incorporated into the decision. In the event that dissenting votes
and different or additional justifications are not submitted to the
Presidency within this period, the decision shall be published
without these being added to it.
Printing and publishing of decisions
ARTICLE 58- (1) The decisions shall be printed on one side of
papers bearing the emblem of the Court and each page shall be
stamped with the seal of the Court.
(2) The reasoned decisions made regarding the merits in
applications for annulment and objection shall be published
in the Official Gazette. Which of the other decisions will be
published in the Official Gazette shall be determined by the
Presidency. The copies of the decisions to be published in the
Official Gazette shall bear the signatures of the President and the
deputy Secretary General responsible for judicial affairs.
(3) The copies of decisions thus prepared shall be submitted to
the relevant unit of the Office of the Prime Minister in exchange
for signature and published without being split into parts in the
first issue of the Official Gazette to be printed.
(4) Errors in printing and material mistakes shall be corrected
in the first issue of the Official Gazette to be printed upon the
correspondence of the Presidency.
CHAPTER FOUR
Individual Application
Individual application form and its annexes
ARTICLE 59- (1) The applications shall be made in the official
language using the application form which is published on the
website of the Court and the copy of which is available in the
annex (Annex-1) of the Internal Regulation.
(2) The application form shall contain the following matters:
a) The name, surname, the Republic of Turkey identification
number, date and place of birth, nationality, gender, occupation
and address, telephone numbers and electronic mail address, if
any.
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b) If the applicant is a legal person, its title, address and the
identification information pertaining to the individual who is
authorized to represent the legal person, telephone numbers and
electronic mail address, if any.
c) If the applicant has a legal representative or an attorney, the
name, occupation and address, telephone number and electronic
mail address, if any, of the legal representative or the attorney.
ç) A chronologically ordered summary of the incidents
pertaining to the act, action or neglect of the public power alleged
to have caused the violation.
d) Which of the rights within the framework of individual
application is violated for what reason and concise explanations
pertaining to relevant justifications and evidences.
e) The grounds pertaining to the claim of direct damage to a
current and individual fundamental right of the applicant.
f) The stages pertaining to the exhaustion of legal remedies.
g) The date on which legal remedies were exhausted or the
date on which the violation became known if no legal remedies
were set forth.
ğ) If the application was not made in its due period due to an
excuse, the relevant explanations.
h) The demands of the applicant.
ı) If the applicant has another application pending at the
Court, its number.
i) The demand for keeping the identity secret in documents
which are open to the public and its justifications, if any.
j) Whether the applicant wishes to be notified via text message
(SMS) or electronic mail.
k) The signatures of the attorney or the legal representative of
the applicant, if any.
(3) The following documents or their approved copies shall
be annexed to the application form:
a) The document attesting to the authority to represent
the applicant in applications which are pursued via a legal
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representative or attorney.
b) The document attesting to the fact that the fee has been
paid.
c) A copy of the national identification card, a valid identity
document if the applicant is a foreign national.
ç) In legal persons, the document authorizing representation
of the legal person.
d) The notification document if the final decision or the action
has been notified.
e) The originals or approved copies of the documents which
are brought forward.
f) The documents pertaining to the incurred damage and
related documents if there is a claim for compensation.
g) The documents proving the excuse if the application could
not be made in its due period.
(4) In the event that the applicant cannot have access to the
documents listed under paragraph three which s/he brings
forward as the grounds for the allegation of violation, s/he shall
explain the reasons thereof. The Court collects ex officio such
information and documents in the event that it deems this to be
necessary.
(5) It shall be compulsory for the applicants to notify the
Court if there has been a change in their addresses or conditions
pertaining to the application.
Principles regarding the preparation of the form and its
annexes
ARTICLE 60- (1) The application form shall be prepared as
per article 59 of the Internal Regulation and the documents or
their approved copies stipulated under the same article shall be
annexed to the application form.
(2) The application form shall be prepared legibly and in a
manner so as to contain the concise information pertaining to the
merits of the application. In the event that the application form
exceeds ten pages except for the annexes, the applicant shall be
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required to separately add a summary of the incidents to the
application form.
(3) The applicant shall enumerate the documents s/he submits
in the annexes of the application form according to their dates
and shall relate each of the documents to a list of contents under
descriptive headings.
Representation of the applicant
ARTICLE 61- (1) The individual application can be made by
the applicant in person, his/her legal representative or attorney.
In applications made via an attorney or legal representative, the
document of authority pertaining to the representation must be
submitted.
(2) If the applicant has an attorney or a legal representative,
the correspondence conducted or the notifications made to them
shall be considered to have been made to him/her.
Individual application fee and legal aid
ARTICLE 62- (1) The individual application fee stipulated
in the first sentence of heading entitled A) ‘’Court Fees’’ of the
tariff numbered (I) related to the Code on Fees dated 2/7/1964
and numbered 492 shall be paid to the cashier’s offices of the
Ministry of Finance .
(2) The requests for legal aid shall be concluded by the Section
or the Commissions which will rule on the admissibility of the
applications as per the general provisions.
Places where the application can be made
ARTICLE 63- (1) Individual applications can be made in
person to the Court in compliance with the application form
found in the annex of the Internal Regulation and published
on the website of the Court as per the conditions stipulated in
the Code and the Internal Regulation, they can also be made via
other courts or representations abroad.
(2) When the duly prepared application form is submitted to
the places stipulated above along with the fee collection voucher,
a document of receipt shall be issued to the applicant or to his/
her representative and this date shall be accepted as the date on
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which the application is made.
(3) The application form and its annexes submitted to courts
or representations abroad shall be sent to the Court on physical
and electronic media after having carried out the required
registration actions. In circumstances where the case and other
trial actions are undertaken on electronic media, data shall be
saved and stored via UYAP.
(4) The General Assembly can take decisions pertaining to
the matter of making applications on electronic media by using
secure electronic signature.
Application period and excuse
ARTICLE 64- (1) The individual application must be made
within thirty days starting from the exhaustion of legal remedies
and the finalization of the decision pertaining to this, from the
date when the violation is known if no remedies are set forth.
(2) In the event that the applicant cannot make his/her
application within its due period as a result of a valid excuse
such as force majeure or severe disease, s/he can apply with the
evidence documenting his/her excuse within fifteen days of the
date when his/her excuse no longer applies. A draft decision as
to whether the excuse should be accepted or not shall be prepared
by the office of the Commissions rapporteur. The Commission
shall accept or reject the excuse by first examining whether or not
the excuse of the applicant has been considered valid.
(3) A single draft pertaining to the excuse and admissibility
can be prepared and these two matters can be concluded jointly
in the event that this suits the nature of the application.
Individual Application Bureau
ARTICLE 65- (1) The Individual Application Bureau shall
consist of a rapporteur and a sufficient number of deputy
rapporteurs and personnel under the supervision of the
Commissions rapporteur in chief.
(2) The duties of the Individual Application Bureau shall be
as follows:
a) To register, assign numbers to and file the individual
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applications which reach the Court.
b) To determine the deficiencies in applications which need
to be completed from an administrative point of view and to
carry out the necessary correspondence in order for these to be
remedied.
c) To carry out the registration, follow up, transfer to relevant
units of the correspondence pertaining to individual applications
and other actions.
Preliminary examination of the form and its annexes and
deficiencies
ARTICLE 66- (1) The Individual Application Bureau shall
examine the incoming applications in order to determine
whether or not they contain formal deficiencies. In the event
that a deficiency is determined in the application form or its
annexes, a period not exceeding fifteen days shall be provided to
the applicant, to his/her attorney or legal representative, if any,
in order for these to be remedied.
(2) In the paper pertaining to the completion of the deficiencies,
it shall be notified to the applicant that a decision to reject his/her
application will be made in the event that s/he does not remedy
the deficiencies within the provided period without a valid
excuse.
(3) In circumstances where the application has not been made
in its due period, it is not in compliance with the formal conditions
under articles 59 and 60 and the determined deficiencies have
not been completed within the provided final periods, it shall
be decided by the Commissions Rapporteur in Chief to reject
the application and this shall be notified to the applicant. An
objection against this decision can be filed to the Commission
within seven days of the date of notification. The decisions
made by the Commissions in this matter shall be final.
Distribution of individual applications to Sections and
Commissions
ARTICLE 67- (1) The allocation of the applications which have
been registered and enumerated by the Individual Application
Bureau shall be done automatically between the Sections and the
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Commissions.
(2) The files which need to be examined after having been
combined as per their nature shall be combined under the file of
the application which was registered the first.
Order of examination of applications
ARTICLE 68- (1) The individual applications shall be
examined and concluded in the order in which they have
been submitted. However, the Court can impose a separate
examination order within the framework of the criteria it
determines by taking into account the topical importance and
emergency of the applications.
Correspondence
ARTICLE 69- (1) The applicants shall be obliged to carry out
their correspondence with the Court by following the procedure
for individual applications determined in the Internal Regulation.
(2) The periods which are provided in relation to the
consummation of the individual application files by the
Secretariat General, the Commissions or the Sections according
to the circumstances and which are of a minimum duration of
fifteen days shall be final; the information and documents which
are not submitted as per the due procedure within these periods
shall not be taken into consideration in the examination of the
application and not be included in the file.
(3) The information, documents and all kinds of other requests
in relation to the applications must be made in writing. The
requests which are made without abiding by this procedure shall
not be taken into consideration with the exception of those made
during hearings, hearing of witnesses or viewings.
Request for information, documents and notification
ARTICLE 70- (1) During the fulfillment of the duties
assigned to itself, the Court shall correspond directly with the
legislative, executive and judicial organs, public administrations,
public officials, banks and other real and legal persons, request
information and documents, examine all kinds of documents,
entries and actions it deems necessary, can summon public
officials of all degrees and classes in order to obtain information,
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can ask for representatives from the administration and other
legal persons.
(2) The information and documents which reach the Court
within the framework of the paragraph above shall be notified to
the applicant, the Ministry of Justice and other concerned parties,
if any, in order for them to be able to submit their opinions within
the fifteen-day period.
(3) If the Court comes to hold the opinion that the applicant
or the public authority refrains from submitting the requested
information or document or conceals evidence or fails to actively
participate in the trial for whatever reason despite having been
summoned, it shall derive the relevant conclusions from this
situation and make its decision.
Notification to the Ministry of Justice
ARTICLE 71- (1) In the event that a decision of admissibility
is made pertaining to the individual application, a copy of the
application shall be sent to the Ministry of Justice for information
purposes.
In circumstances where it deems necessary, the
Ministry of Justice shall notify its opinion to the Court in writing.
(2) The Ministry of Justice shall provide its opinion pertaining
to the application within a period of thirty days. In case of a
request, this period can be extended by an additional thirty
days by the Court. In the event that an answer is not provided
within the indicated periods starting from the notification of the
application to the Ministry of Justice, the Court shall make its
decision according to the information and documents within the
file.
(3) The answer of the Ministry of Justice shall be notified to
the applicant. The applicant shall be required to submit his/her
counter statements, if any, to the Court within fifteen days.
Voting and decision in Sections and Commissions
ARTICLE 72- (1) The Sections shall make their decisions with
a simple majority.
(2) The decisions of admissibility or inadmissibility of an
application shall be made unanimously by the Commissions. In
cases where unanimity cannot be obtained, the application shall
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be transferred to the Section in order for a decision to be made.
(3) In matters deemed to be appropriate by the President of
Section, the Commissions can also make decisions without them
having to hold a meeting by means of having the draft decisions
that are prepared by the rapporteurs signed by the members
starting with the least senior member. In the event that one of
the Commission members requests the matter to be discussed in
a meeting, the mentioned procedure shall not be applied.
(4) It shall be possible to resort to electronic voting in the event
that it is deemed to be appropriate by the Section or Commissions
and the nature of the affair allows. In circumstances where an
open vote is carried out, the voting shall start from the junior
member.
Cautionary judgment
ARTICLE 73- (1) Upon learning that there is a serious danger
towards the life or material or moral integrity of the applicant,
the necessary measures can be ruled upon ex officio by the
Sections during the examination on merits or upon the request
of the applicant.
(2) In relation to the applications which have been examined;
upon learning that there is a serious danger towards the life or
material or moral integrity of the applicant unless a decision of
cautionary judgment is made ex officio or upon the request of
the applicant prior to the decision regarding the merits of the file,
the admissibility examination of the application shall be carried
out immediately by the Commissions, the application shall be
sent to the relevant Section in order for the matter of cautionary
judgment to be concluded as well.
(3) In the event that the Section makes a decision of cautionary
judgment, it shall notify this to the relevant individuals and
institutions for the necessary action to be taken.
(4) The decision in relation to the merits of the application
regarding which a cautionary judgment decision is made must
be made within six months at the latest. Unless a new decision
is made for the continuation of the cautionary judgment, in
circumstances where it is decided that the right of the applicant
was not violated or it is decided to dismiss the application, the
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decision of cautionary judgment shall be automatically lifted.
Hearing
ARTICLE 74- (1) The Sections shall examine the applications
based on the file. However, it can be decided to conduct a
hearing in the event that this is deemed to be necessary ex officio
or upon the request of the applicant or the Ministry of Justice.
(2) In the event that it is decided to conduct a hearing, the
location, date and time of the hearing shall be notified to the
concerned.
(3) Hearing minutes shall be drafted during the hearing.
Copies of the minutes shall be provided to the applicant, the
Ministry of Justice and the other concerned, if any, in the event
that they so request.
Pilot decision procedure
ARTICLE 75- (1) In the event that the Sections determine
that an application stems from a structural problem and that
this problem has led to other applications or that they envisage
that this situation will lead to new applications, they can
implement the pilot decision procedure. In this procedure,
a pilot decision shall be made by the Section in relation to the
matter. Applications of similar nature shall be resolved by
administrative offices within the framework of these principles;
in the event that they are not resolved, they shall be reviewed
and concluded collectively by the Court.
(2) The Section can initiate the pilot decision procedure
ex officio or upon the request of the Ministry of Justice or the
applicant.
(3) The application which has been selected for the pilot
decision practice shall be considered as part of the prioritized
affairs on the agenda.
(4) In its pilot decision, the Section shall demonstrate the
structural problem it has identified and the measures which
need to be taken for its solution.
(5) With the pilot decision, the Section can postpone the
examination of similar applications which are related to the
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structural problem that is the subject of this decision. The
concerned shall be informed regarding the decision of
postponement. In the event that it deems this to be necessary,
the Section can put on the agenda and conclude the applications
it has postponed.
Preparation of draft decisions
ARTICLE 76- (1) Draft decisions which are in compliance with
the drafting procedure indicated within the Internal Regulation
and also contain the summary opinion of the rapporteur shall
be prepared by individual application rapporteurs or deputy
rapporteurs in order to be submitted to the Commissions or the
Sections.
(2) The draft decisions which have been prepared in this
manner shall be submitted to the relevant Commission or Section
with the signature of the rapporteur in chief of the relevant unit.
The draft decisions which have been prepared in order to be
submitted to the Section shall also be sent to Ar-İç.
Format of decisions of Commissions
ARTICLE 77- (1) The decisions made by the Commissions
shall contain the following matters:
a) As the header information of the page;
1) The emblem of the Court,
2) The expression ‘’the Constitutional Court’’,
3) The relevant Commission of the Section which has made
the decision,
b) In the text of the decision;
1) The application number,
2) The date of the decision,
3) The names of the President of the Commission, members
and the rapporteur,
4) The names of the parties and their representatives, if any,
5) The description of the procedure followed before the Court,
6) The cases which are the subject of the case,
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7) The summary of the claims and defenses of the parties,
8) The justification of the decision,
9) The text of judgment,
10) The trial expenses.
(2) Page and paragraph numbers shall be added to decisions.
Format of decisions of Sections
ARTICLE 78- (1) The decisions made by the Sections shall
contain the following matters:
a) On the first page of the decision;
1) The emblem of the Court,
2) The expression ‘’the Constitutional Court’’,
3) The Section which has made the decision,
4) The application number,
5) The date of the decision.
b) On the other pages, on the condition that the paragraphs
are enumerated;
1) The names of the President of the Section, members and the
rapporteur,
2) The names of the parties and their representatives, if any,
3) The description of the procedure followed before the Court,
4) The facts which are the subject of the case,
5) The summary of the claims and defenses of the parties,
6) The justification of the decision,
7) The text of the judgment,
8) The decision regarding the trial expenses.
(2) The members which take part in the committee shall have
the right to add jointly or separately their dissenting vote texts or
different or additional justifications to the decision.
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Decision of violation and removal of violation
ARTICLE 79- (1) If the Section determines that the violation
has stemmed from a court decision;
a) It shall send the file to the relevant court in order for a retrial
to be conducted to resolve the violation and its consequences.
The relevant court shall carry out a retrial in such a way as to
resolve the violation and its consequences as explained by the
Section in its decision of violation and urgently make a decision
based on the file if possible.
b) In the event that it is decided at the end of the examination
carried out by the Sections that a right of the applicant has been
violated, a suitable compensation in favor of the applicant can
be ruled upon if there is no legal benefit in carrying out a retrial.
c) In the event that the determination of the compensation
amount requires a more detailed examination, the Section
can offer the remedy of filing a case at general courts without
concluding the matter itself.
(2) In circumstances where this is deemed to be necessary,
what needs to be done regarding the matter of the way in
which the violation and its consequences can be resolved as per
paragraph one of article 50 of the Code shall be indicated in the
decision of the Section.
Decision of dismissal
ARTICLE 80- (1) A decision of dismissal can be made by
the Sections or the Commissions at all stages of the trial in the
following circumstances:
a) The explicit withdrawal of the applicant from the case.
b) That it is understood that the applicant has left his/her case
without pursuit .
c) That the violation and its consequences have been resolved.
ç) That no reason justifying the continuation of the examination
of the application is found due to another justification identified
by the Sections or the Commissions.
(2) The Sections or the Commissions can continue to examine
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an application which bears the quality indicated in the paragraph
above in circumstances required by the implementation and
interpretation of the Constitution or the determination of the
scope and limitations of fundamental rights or the respect for
human rights.
Signing, notification and publication of the decision
ARTICLE 81- (1) The decisions which have been made by
the Sections and Commissions shall be signed by the President
and all of the members who make up the committee in order of
seniority and appended with the seal of the Court.
(2) Dissenting vote texts or different or additional justifications
shall be submitted to the Presidency of the Section within fifteen
days starting from the date when the decision was made. The
dissenting vote texts or different or additional justifications
which are not submitted within this period shall not be taken
into consideration.
(3) The decisions which have been made by the Sections and
Commissions shall be final. The signed original copies of the
decision shall be preserved at the archives of the Court. A copy
of the decision shall be notified to each of the applicant, the
Ministry of Justice and the other concerned.
(4) All of the decisions of the Sections and those which bear
principal significance from an admissibility point of view from
amongst the decisions of the Commissions shall be published on
the website of the Court.
(5) The decisions which are determined by the President of
Section, which bear the quality of being pilot decisions made by
the Section or bear principal significance in terms of displaying
case law shall be published in the Official Gazette.
Clarification and correction of material mistakes
ARTICLE 82- (1) Regarding the decisions which have been
made by the Sections, the concerned can request the clarification
of the judgment or the correction of material mistakes as per the
provisions of the Code of Civil Procedure dated 12/1/2011 and
numbered 6100.
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Misuse of the right to application
ARTICLE 83- (1) In the event that it is determined that the
applicant has clearly misused the right to individual application
through his/her behavior which is abusive, misleading or of a
similar nature, the application shall be rejected and it shall be
decided to sentence the concerned to a disciplinary fine not
exceeding two thousand Turkish liras apart from the trial
expenses.
Application of general provisions
ARTICLE 84- (1) In the examination of individual applications,
in circumstances where there are no provisions in the Code and
the Internal Regulation regarding the execution of the decisions,
the provisions of relevant procedural codes which are suitable to
the nature of the individual application shall be applied.
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SECTION FOUR
Final Provisions
CHAPTER ONE
Miscellaneous Provisions
Books and registries to be kept and archive
ARTICLE 85- (1) The books and registries which need to be
kept according to the requirements of the units at the Court shall
be demonstrated in a regulation.
(2) The personal files of the President and members and the
assigned rapporteurs and other personnel shall be kept by the
Directorate of Personnel.
(3) The archive services shall be conducted as per the general
provisions.
Daily working duration
ARTICLE 86- (1) The daily working hours of the Court shall
be 8.30-12.00 / 13.00-17.30. These hours can be changed by the
Presidency in line with the requirements of the service. The
change shall be announced on the website of the Court.
Annual and excused leaves of members and rapporteurs
ARTICLE 87- (1) The annual and excused leaves of the
members shall be granted by the President. Sick leaves and
excused leaves shall be subject to the general provisions.
(2) The President, Deputy Presidents and members shall
have the right to forty days of annual leave. In utilizing the
leaves, attention shall be paid to ensuring that the affairs which
are handled in the capacity of the Supreme Court or which are
subject to periods are not disrupted and that the members are
allowed to rest. The members shall be allowed to utilize their
leaves on dates of their own choosing as much as this is possible.
(3) The leaves of the rapporteurs who are assigned and
appointed at the Court shall be allowed by the President to be
utilized by taking their requests into account and on the condition
that the work is not disrupted.
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Security measures to be taken at the Court premises
ARTICLE 88- (1) The requests of the Presidency pertaining
to the security of the Court shall be immediately fulfilled
by administrative authorities and security services.
Unless
requested by the Presidency, no authority or office can take
security measures at the Court premises.
Library and Publication Affairs
ARTICLE 89- (1) The printed and electronic books and
publications to be purchased for the Library of the Court, the
databases to be subscribed to and the publications to be made
by the Court shall be determined by the Library and Publication
Commission consisting of a member, a deputy Secretary General
and a rapporteur determined by the President.
(2) Other affairs of the library and other matters pertaining to
publications shall be fulfilled by the Directorate of Publication
and Public Relations in line with a regulation to be issued.
(3) The decisions deemed to be appropriate by the Library
and Publication Commission shall be published in the Journal of
the Constitutional Court Decisions.
Assignments abroad
ARTICLE 90- (1) It shall be decided by the Presidency to
send the President, Deputy Presidents, members, rapporteurs
and deputy rapporteurs to foreign countries in order to conduct
professional examinations, share knowledge and experience,
participate in congresses, conferences, seminars and other
scientific meetings by providing them with their salaries and
allowances, real travel expenses and per diem payments and on
the condition that the work is not disrupted.
(2) Rapporteurs and deputy rapporteurs can be assigned
abroad for up to two years by the Presidency in order to conduct
graduate level education, to work or to train at courts of foreign
countries, universities or international organizations within
the framework of scientific research or mutual cooperation.
In the event that this is deemed necessary by the Presidency,
these periods can be increased up to two folds. The provisions
regarding civil servants shall be applied regarding the matter of
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the financial rights, responsibilities, compulsory service, payment
of expenses and the transfer of the salaries and allowances of
those who are assigned abroad within this framework.
(3) The increase in level, advancement in grade, retirement,
salary, allowance and all other personal rights and liabilities
of those who have been sent to foreign countries as per the
provisions of paragraph two shall continue.
(4) The principles and procedures and the criteria applicable
in assignment abroad shall be determined in a regulation.
Garments
ARTICLE 91- (1) The garments to be worn by the President,
Deputy Presidents and members on foundation anniversaries, in
affairs with hearing, oath taking ceremonies and during hearing
in political party closure cases shall be black women’s suit, white
blouse and black shoes for female members; black suit, white
shirt, tie and black shoes for male members. The robe shall be
made out of black fabric and the collars shall be ornamented in
Maraş style (Annex-2).
(2) The robe to be worn by rapporteurs on foundation
anniversaries and while hearings during their duties at the
Supreme Court and in political party closure cases shall be made
out of black fabric, the sleeves and collars shall be made out of
violet satin and ornamented in Maraş style (Annex-3).
(3) The garments to be worn by deputy rapporteurs on
foundation anniversaries, in affairs with hearing, oath taking
ceremonies and during hearing in political party closure cases
shall be black women’s suit, white blouse and black shoes for
women; black suit, white shirt, tie and black shoes for men.
(4) Wearing robes in other ceremonies shall be subject to the
decision of the Court.
(5) The robes shall be tailored out of the allowance included
in the budget and provided to the President, members and
rapporteurs as inventory stock. It shall be renewed at suitable
intervals.
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Emblem and badge of the Court
ARTICLE 92- (1) The emblem which is adopted with a
decision of the Court and can only be changed in this manner
shall be used in the publications of the Court, in its printed
papers and in the identity cards and badges of its members and
retirees (Annex-4). The badge shall not have a frame.
(2) The badge which has been determined can be used by the
President, Deputy Presidents, members and retirees.
Certificate of honor
ARTICLE 93- (1) The ‘’Certificate of Honor’’ the text of
which is demonstrated in (Annex-5) shall be given to Presidents,
Deputy Presidents and members who retire.
(2) The retired presidents and members of the Court and the
individuals deemed to be appropriate shall be invited to the
ceremony during which the certificates of honor and the gifts
symbolizing the honor of past services will be given.
(3) The certificates of honor of Presidents and members who
pass away prior to retiring shall be given to their spouses, to their
children if these are absent, to other legal heirs if these are absent
as well.
Funeral ceremonies
ARTICLE 94- (1) The funeral ceremonies of the President
and members and retired presidents and members shall be
commenced at the Court in the event that this is so requested
by their families. The passing away shall be announced via
newspapers, TRT and news agencies.
CHAPTER TWO
Amendment, Entry into Force and Enforcement of the Internal
Regulation
Amendment of the Internal Regulation
ARTICLE 95- (1) The amendment of the Internal Regulation
can be requested by the President or at least three members. It
shall be compulsory to bring forward the requests regarding this
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matter in writing and to indicate the justifications.
(2) The request for amendment shall be taken onto the
agenda by the Presidency within fifteen days. If it is decided
by the General Assembly that there is need for an amendment,
a commission consisting of three individuals selected from
amongst the members shall be established in order to carry
out an examination regarding the matter and prepare a report
containing the draft amendment text.
(3) The report of the commission shall be taken onto the
agenda and concluded within thirty days.
Abolished legislation
ARTICLE 96- (1) The Internal Regulation of the Constitutional
Court published in the Official Gazette dated 3/12/1986 and
numbered 19300 has been abolished.
Entry into force
ARTICLE 97- (1) This Internal Regulation shall enter into
force on the date of its publication in the Official Gazette.
Enforcement
ARTICLE 98- (1) The President shall enforce the provisions
of this Internal Regulation.
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ANNEXES
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ANNEX-1
APPLICATION FORM
THE CONSTITUTIONAL COURT
OF
THE REPUBLIC OF TURKEY
INDIVIDUAL APPLICATION
FORM
Prepared as per article 59 of the Internal Regulation of the
Constitutional Court
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INDIVIDUAL APPLICATION FORM
I- PERSONAL INFORMATION
A- FOR REAL PERSONS
THE APPLICANT’S
1- THE REPUBLIC OF TURKEY ID NUMBER :
2- NAME:
3- SURNAME :
4- GENDER: MALE :
FEMALE :
5- NATIONALITY:
6- OCCUPATION:
7- PLACE AND DATE OF BIRTH : DD/MM/YY)
/
/
8- CORRESPONDENCE ADDRESS:
9- TELEPHONE NUMBER AND ELECTRONIC MAIL
ADDRESS
a- HOME :
b- WORK :
c- MOBILE :
ç- ELECTRONIC MAIL ADDRESS :
THE ATTORNEY’S
1- NAME :
2 - SURNAME :
3- CORRESPONDENCE ADDRESS :
4- TELEPHONE NUMBER AND ELECTRONIC MAIL ADDRESS
a- HOME :
b- WORK :
c- MOBILE :
ç- ELECTRONIC MAIL ADDRESS :
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B- FOR LEGAL PERSONS
THE APPLICANT’S
1- TITLE:
2- ADDRESS:
THE INDIVIDUAL AUTHORIZED FOR REPRESENTATION
1- THE REPUBLIC OF TURKEY ID NUMBER:
2- NAME:
3- SURNAME:
4- NATIONALITY:
5- OCCUPATION:
6- PLACE AND DATE OF BIRTH : (DD/MM/YY)
/
/
7- CORRESPONDENCE ADDRESS:
8- TELEPHONE NUMBER AND ELECTRONIC MAIL
ADDRESS
a- HOME
b- WORK
:
:
c- MOBILE :
ç- ELECTRONIC MAIL ADDRESS :
THE ATTORNEY’S
1- NAME :
2- SURNAME :
3- CORRESPONDENCE ADDRESS:
4- TELEPHONE NUMBER AND ELECTRONIC MAIL
ADDRESS
a- HOME :
b- WORK
:
c- MOBILE :
ç- ELECTRONIC MAIL ADDRESS :
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II- EXPLANATIONS
A- The chronologically ordered summary of the incidents
pertaining to the act, action or neglect of the public power:
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B- Which of the rights within the framework of individual
application is violated for what reason and concise explanations
pertaining to relevant justifications and evidences:
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C- The explanation pertaining to the claim of direct damage to a
current and individual fundamental right of the applicant:
.................................................................................................................
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III- INFORMATION PERTAINING TO THE EXHAUSTION
OF LEGAL REMEDIES
A- The stages pertaining to the exhaustion of legal remedies:
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
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B- The date on which legal remedies were exhausted or the date
on which the violation became known if no legal remedies were
set forth:
1- THE COURT/OFFICE/AUTHORITY WHICH HAS MADE
THE DECISION:
2- THE DATE AND NUMBER OF THE DECISION:
3- THE DATE OF NOTIFICATION OR THE DATE WHEN IT
BECAME KNOWN:
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C- If the application was not made in its due period due to an
excuse, the relevant explanations:
1- THE REASON OF THE EXCUSE :
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
2- THE STARTING AND ENDING DATE OF THE EXCUSE
a- STARTING DATE :
/
/
b- ENDING DATE
/
/
:
3- DOCUMENTS PERTAINING TO THE EXCUSE :
.................................................................................................................
.................................................................................................................
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IV- OTHER INFORMATION
A- If the applicant has another application pending at the Court,
its number:
.................................................................................................................
.................................................................................................................
B- The demand for keeping the identity secret in documents
which are open to the public and its justifications:
1-THE APPLICANT HAS A DEMAND:
2-THE APPLICANT DOES NOT HAVE A DEMAND:
THE JUSTIFICATION :
.................................................................................................................
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INTERNAL REGULATION OF THE CONSTITUTIONAL COURT
V- REQUESTED OUTCOMES
.................................................................................................................
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I hereby declare that the information I have provided in this
application form is correct; that I will notify the Court when a
change occurs in the information indicated in the form, in my
addresses or in circumstances pertaining to the application.
Applicant : Date :
/
Representative/Attorney :
/
Signature :
ANNEXES
1- Certificate of authorization or power of attorney
2- The document attesting to the fact that the application fee has
been paid
3- Copy of the national identification card, a valid identity
document if the applicant is a foreign national
4- Document authorizing representation of the legal person in
legal persons
5- Notification document pertaining to the final decision or action
6- Originals or approved copies of the documents which are
brought forward
7- Documents pertaining to the incurred damage and related
documents if there is a claim for compensation
8- Documents proving the excuse if the application could not be
made in its due period
If the applicant could not have access to the documents brought
forward as the basis for the violation claim, the reasons and
justifications thereof
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INTERNAL REGULATION OF THE CONSTITUTIONAL COURT
ANNEX-2
MEMBERS’ ROBE
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ANNEX-3
RAPORTEURS’ ROBE
RAPPORTEURS’ ROBE
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INTERNAL REGULATION OF THE CONSTITUTIONAL COURT
ANNEX-4
THE BADGE OF THE COURT
Red
Pantone 2593 C
Pantone 872 C
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INTERNAL REGULATION OF THE CONSTITUTIONAL COURT
ANNEX-5
THE TEXT OF THE CERTIFICATE OF HONOR
CERTIFICATE OF HONOR OF THE CONSTITUTIONAL
COURT
The Constitutional Court;
Presents, with feelings of gratitude and respect, this Certificate
of Honor representing the efforts and contributions, which will
always be appreciated, of Mr./Ms.…………………… who has
retired after having honorably completed his/her services in
justice with complete faith in the rule of law and the Constitution.
25 April ….
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INTERNAL REGULATION OF THE CONSTITUTIONAL COURT
LIST INDICATING THE DATE OF ENTRY INTO FORCE
OF THE LEGISLATION PROVISIONS THAT MAKES
ADDITIONS AND AMENDMENTS TO THE INTERNAL
REGULATION OF THE CONSTITUTIONAL COURT
Number of the
Amending Internal
Regulation
Amended or
Abolished Articles of
the Internal Regulation
of the Constitutional
Court
Date of Entry into
Force
Internal Regulation
of the Constitutional
Court published in the
Official Gazette dated
5/3/2014 and numbered
28932
10, 12, 25, 28, 33, 50, 64,
66, 70, 71
-
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