Individual Application to The Constitutional Court

While every right and freedom can be infringed due to various acts and actions, the right to individual application to the Constitutional Court cannot be exercised for every violation of rights and freedoms. For the right to individual application to the Constitutional Court to be exercised, the violated right or freedom must be recognized both in the Constitution and in the European Convention on Human Rights (ECHR) or its additional protocols to which Turkey is a party. The right to education, the right to life, freedom of religion and conscience, and the right to seek legal remedies are a few examples of these rights.

Individual applications, being a subsidiary legal remedy, cannot be directly made against legislative acts or regulatory administrative acts. Similarly, decisions of the Constitutional Court and acts excluded from judicial review by the Constitution cannot be subject to individual application.

Individuals whose current and personal rights are directly affected by an act, action, or omission may exercise the right to individual application. Public legal entities cannot make individual applications. Private law legal entities, however, can exercise the right to individual application only on the grounds that their corporate rights have been violated, i.e., in a limited manner.

There is no impediment to foreigners exercising the right to individual application; however, foreigners cannot make individual applications concerning rights granted exclusively to Turkish citizens by the Constitution.

For the right to individual application, which is a subsidiary legal remedy, to be exercised, the person whose freedom has been violated must exhaust all administrative and judicial remedies. To file a compensation lawsuit against administrative actions, it would be beneficial to read our article on full remedy actions (tam yargı davası). Legal remedies are divided into ordinary and extraordinary. A person wishing to exercise the right to individual application must have exhausted ordinary legal remedies. If there are multiple ordinary legal remedies available for the act or action in question, it is sufficient to utilize the most effective one among them. Indeed, the decisions of the Constitutional Court are also in this direction.

Procedure for Individual Application to the Constitutional Court

Individuals may make individual applications to the Constitutional Court directly or through courts or overseas representations, in accordance with the conditions specified in the legislation.

The individual application form must include the identity and address details of the applicant and their representative, if any; the fundamental right and freedom alleged to have been violated; the relevant constitutional provision; the grounds for the alleged violation; the remedies provided by law for the redress of the violation; and confirmation that these remedies have been exhausted. If no domestic remedy is provided for the redress of the violation, the date on which the violation was learned and any damage suffered due to the violation must be stated in the application form.

Additionally, the application form must be accompanied by proof of payment of the application fee, evidence proving the existence of the violation, and a copy of the act or decision alleged to have caused the violation.

If the right to individual application is to be exercised through a lawyer, a power of attorney must also be attached to the application form.

Time Limit for Individual Application to the Constitutional Court

The time limits stipulated for the right to individual application must be observed. The person wishing to exercise the right to individual application must file the application within 30 days from the date they learned of the event violating their fundamental rights and freedoms. If the applicant has a legitimate excuse for missing this deadline, they may exercise the right to individual application within 15 days from the date the excuse ceased to exist, along with a document proving the excuse. In this case, the court's initial review will concern the validity of the excuse.

If some documents are missing from the application form, the applicant is given a maximum of 15 days to remedy this deficiency. If the applicant fails to remedy the deficiency within the given period without a valid excuse, the application will be rejected.

Individual Application Fee to the Constitutional Court 2020

Individual applications to the Constitutional Court are subject to a fee. The individual application fee for 2020 is \the minimum fee determined by the Minimum Attorneyship Wage Tariff (AAÜT).

Review of Individual Applications by the Constitutional Court

For a decision of admissibility to be rendered regarding an individual application, the application must meet the procedural requirements. Applications that are not significant for the application and interpretation of the Constitution or for determining the scope and limits of fundamental rights may be rejected by the Court. Furthermore, if an individual application lacks grounds, i.e., evidence, this may also lead to its rejection. The review regarding the admissibility of the application is conducted by commissions. Unanimity is required for the rejection of an application. If the commission cannot achieve unanimity for the rejection of the application, the file is sent to the relevant divisions. Decisions regarding the rejection of individual applications are final.

If a decision of admissibility is rendered for an individual application, the merits review is conducted by the divisions. Work distribution among the divisions is made by the President to prevent an imbalance in workload.

If an individual application is accepted, a copy of the application is sent to the Ministry of Justice. The Ministry of Justice may submit written opinions to the Court regarding the application when deemed necessary.

The commissions, where individual applications are first sent, and subsequently the divisions, may conduct research and examination regarding whether there has been a fundamental rights violation. Within this scope, information, documents, and evidence deemed necessary may be requested from relevant individuals or institutions.

The Constitutional Court conducts its review regarding whether there has been a rights violation based on the file. However, a hearing may also be decided upon if deemed necessary.

The divisions conducting the merits review may decide on measures they deem necessary for the protection of fundamental rights, either upon request or ex officio. If a decision on the merits is not rendered within 6 months from the date the interim measure was issued, the interim measure automatically becomes null and void and is lifted.

If the review conducted by a division is based on an individual application against a court decision, the review is limited solely to determining whether there has been a fundamental rights violation and, if so, how this violation can be remedied. This means that the divisions cannot conduct a review regarding matters that should be observed in the course of legal remedies.

Decision of the Constitutional Court on Individual Application

As a result of the merits review conducted by the division, a decision is made as to whether a violation, as alleged by the applicant, has occurred. If one of the fundamental rights has been violated, the decision rendered concerns the elimination of the violation and its consequences. The division cannot conduct a review of appropriateness, nor can it render decisions in the nature of administrative acts or actions.

If the rights violation has arisen as a result of a court decision, the division's decision concerns ordering a retrial. In this case, the file is sent to the relevant court for the elimination of the established violation and its consequences. The relevant court conducts the retrial based on the file, as far as possible. If there is no legal benefit in conducting a retrial, the next step is to award compensation in favor of the applicant. The division may award compensation based on the specific case, or it may indicate that a lawsuit should be filed in general courts instead of awarding compensation.

Decisions rendered on the merits of the application are communicated with justification to the interested parties and the Ministry of Justice. Furthermore, these decisions are published on the court's website. Some decisions are published in the Official Gazette. Provisions regarding which decisions are to be announced in the Official Gazette are regulated in the Rules of Procedure.

Individuals are free to exercise or not exercise the right to individual application, and they also have the right to pursue or not pursue the application. If the right to individual application is waived during the review of the application, the case will be dismissed.

Abuse of the Right to Application

The right to individual application may be abused by individuals. To prevent this situation, certain sanctions have been stipulated. According to our legislation, in addition to litigation costs, a disciplinary fine is also imposed against applicants who clearly abuse the right to application.

If you wish to exercise your right to individual application but have many questions, you can find immediate answers to all your queries by using our 'Ask a Lawyer' service.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy