By Zeynep Erkan for SES Türkiye in Istanbul — 27/09/12 – Between 50,000 to 100,000 individual applications are expected to be filed with the Constitutional Court to address human rights complaints. In an effort to address mounting human rights cases filed against Turkey at the European Court of Human Rights, the Constitutional Court began accepting individual applications on Monday (September 24th).
The regulation allowing individual applications to the court was approved in 2010 to bring the Constitutional Court’s authority in line with many European states. In 2004, as part of the EU accession process, an amendment to Article 90 of the constitution gave precedence to the European court over domestic law in the field of fundamental rights. “In the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail,” reads one section of Article 90. However, the failure of lower courts to implement the law and follow the European court’s jurisprudence has resulted in nearly 19,000 cases being filed against Turkey at the court, second only to Russia. As of 2010, European human rights court issued 2,245 judgments against Turkey, many of which concerned “the right to a fair trial within a reasonable time.” As the new regulation goes into effect, 50,000-100,000 individual applications are expected to be submitted to the Constitutional Court, a load that Hasim Kilic, the head of the Constitutional Court, said would be unmanageable. Speaking to reporters in Ankara on September 21st, Kilic www.mesop.de said the success or failure of the reform would depend on the ability of lower courts and lawyers to carry out procedure in accordance with the European court. Otherwise, weighed down by applications, the Constitutional Court would only be able to review 1 to 2 percent of cases.
“Article 90 of the constitution was a revolution,” Kilic said.
He said “there was even reluctance and resistance” as lower courts were not successful in implementing its provisions. “The Turkish legal system is a whole. If both sides of justice work then we will be successful. If there is one obstruction, then it will affect the whole process,” he said. Kilic said if extended detentions and trials aren’t solved, there is very little chance for the success of the individual applications process.
The European court supports resolving human rights cases in domestic law to strengthen domestic reform. After the approval of the constitutional amendment, the Constitutional Court’s rapporteurs and members received training about the new practice of individual applications.
The current reform will go through a two-year period of surveillance to evaluate the effectiveness of the Constitutional Court, during which time direct applications to the European court will be effectively closed. As the new practice enters into force, legal experts are cautiously optimistic that domestic law can provide a solution to human rights violations, while recognising limits in the capacity of the legal system and the need for judges and prosecutors to change their approach.”I believe that the Constitutional Court can analyse the social and judicial structure in Turkey better than the ECtHR as long as it takes human rights and freedoms as its references,” Tahir Elçi, a Diyarbakir-based human rights lawyer, told SES Türkiye.
However, he criticised the ideological stance of the Constitutional Court on the basis of its previous decisions.
“Rather than the basic human rights and freedoms, the court has adopted a specific ideological and political approach on the basis of nationalist values. Thus, I worry about its objectivity in its examination of human right violations,” he said. “If we try to solve the issue of human right violations in Turkey, there will be no need to bring the cases before [the European court],” he said. “If the Constitutional Court becomes an ineffective application mechanism, [it] may directly accept the cases [again],” he added. On the other hand, Justice Orhan Gazi Ertekin, co-chairman of the Democratic Judiciary Association, told SES Türkiye that democratisation of the judiciary has not taken place in line with the expectations of the 2010 referendum. Ertekin said the referendum had two basic goals: the democratisation of the Higher Board of Judges and Prosecutors and the transformation of the Constitutional Court to evaluate constitutional complaints from individuals. “The first aim of the referendum has not taken place,” he said, adding that the High Court of Appeals and the Council of State have been transformed in accordance with the government’s political line. “It is also doubtful that the second aim of the referendum will be realised since the Constitutional Court hasn’t changed its institutional structure and mentality,” he said. “It is evident that the court will be stuck as a result of individual applications. Thus, the new practice may bring the second failure of the 2010 referendum after the transformation of HSYK.”
Lawyer Aslı Kazan expressed concern the state could try to protect itself from European court decisions as a result of the new reform.
“The [court] usually issues human rights verdicts against Turkey. The practice of individual applications to the Constitutional Court will decrease the cases that will be brought before [it],” she said. According to the new practice, individual applications to the Constitutional Court must be filed within 30 days after the notification of final proceedings in lower courts.
“This is a very short period of time to be prepared for the application. This period was six months for the individual applications to the [human rights court]. Now, if you can’t apply to the Constitutional Court in time, then you lose the right to apply,” she said. According to the Law on Establishment and Rules of Procedures of the Constitutional Court, individual applications are subject to a payment of 150 TL. The Court may also impose a fine of up to 2000 TL on the applicants who abused the right of individual application, in addition to the court costs. Lastly, in case the violation has been caused by a lower court decision, the Constitutional Court will send the file for retrial in order to restore the fundamental rights of the applicant. This could significantly prolong the already lengthy legal process, Kazan said. “The competent court may take a decision 10 years after the application. Now we must also wait for the retrial process,” she said. “I believe that the new practice will prevent the applications to the [European court] by the Turkish citizens.”