1. Introduction
The individual application
mechanism is one of the most effective constitutional safeguards for the
protection of fundamental rights and freedoms. The purpose of an individual
application to the Constitutional Court is to protect the fundamental rights of
individuals whose rights and freedoms, as defined under the Constitution and
the European Convention on Human Rights (ECHR), have been violated by public
authorities, and to ensure the prevention of similar violations.
Indeed, the individual
application to the Constitutional Court has been incorporated into our legal
system with the aim of remedying violations of rights committed by public
authorities and ensuring the effective protection of constitutional rights. The
functionality of this mechanism largely depends on the full and proper
implementation of violation decisions by administrative authorities and civil
courts. Accordingly, the binding nature of violation decisions rendered by the
Constitutional Court emerges as a fundamental element for the effectiveness of
the individual application system.
Pursuant to Article 153 of
the Constitution, although it is expressly stipulated that the decisions of the
Constitutional Court are binding on the legislative, executive, and judicial
organs as well as administrative authorities, it is observed in practice that
judicial bodies experience hesitation in implementing violation decisions
rendered as a result of individual applications and, in some cases, fail to
comply with them. This situation not only leads to the ineffectiveness of the
individual application mechanism but also undermines the principles of legal
certainty and foreseeability, which are among the fundamental elements of the
rule of law.
Particularly at the stage
of implementing violation decisions that require a retrial, there are instances
in which courts interpret the scope of the Constitutional Court’s decisions
narrowly, refrain from producing the consequences necessitated by the determination
of a violation, or make assessments that amount to resistance to their previous
judgments. This situation also gives rise to significant debates in terms of
the hierarchy of norms, the relationship between judicial bodies, and the
binding nature of Constitutional Court decisions.
This study will examine
the legal binding nature of violation decisions rendered by the Constitutional
Court, with particular emphasis on civil courts; it will address the problem of
non-implementation of such decisions in practice and assess the consequences of
this issue in terms of the rule of law, the protection of fundamental rights,
and the integrity of the judicial system.
2. The Mechanism of
Individual Application to the Constitutional Court
The right to individual
application to the Constitutional Court was recognized as a constitutional
right by the referendum held on September 12, 2010. With the introduction of
the individual application mechanism, constitutional review has been available,
as of September 23, 2012, against violations of rights caused by persons and
institutions exercising public authority.
Individual application is
set out under the third paragraph of Article 148 of the Constitution, and
everyone may apply to the Constitutional Court on the grounds that any of their
fundamental rights and freedoms guaranteed by the Constitution, and falling
within the scope of the European Convention on Human Rights, has been violated
by public authorities.
The individual application
mechanism is a remedy that can be invoked only after ordinary legal remedies
have been exhausted. Therefore, all administrative and judicial remedies
provided by law for the act, action, or omission alleged to have caused the violation
must be exhausted before submitting an individual application. (Law Nr. 6216,
Art. 45/2).
If the Constitutional
Court does not find any violation of rights, it shall issue a decision stating
that no violation has occurred. The decision rendered upon an individual
application is also notified to the parties and to the Ministry of Justice (Law
Nr. 6216, Art. 50). The Constitutional Court’s decision that no violation has
occurred is final, and there is no legal remedy available against it. [1]
One of the decisions that
may be rendered following the substantive examination is a violation decision.
In the event of a violation decision, the Court rules on the measures to be
taken to remedy the violation and its consequences. However, the Court cannot
conduct a review of expediency, nor can it issue decisions of an administrative
or executive nature (Law Nr. 6216, Art. 50/1). Following a violation decision,
the Constitutional Court may issue three types of rulings: retrial,
compensation, and filing a case before general courts.
If the identified
violation stems from a court decision, the file is sent to the relevant
court for a retrial to remedy the violation and its consequences. In cases
where a retrial would not provide a legal benefit, compensation may be
awarded in favor of the applicant, or the applicant may be directed to
file a case before general courts. The court obliged to conduct the retrial
shall, if possible, decide based on the file in a manner that eliminates the
violation and its consequences as specified under the Constitutional Court’s
violation decision. (Law Nr. 6216, Art. 50/2).
Article 75 of the Bylaw of
the Constitutional Court sets out the pilot decision procedure. Pursuant
to this article, the Chambers may apply the pilot decision procedure if they
determine that an application arises from a structural problem that also
affects other applications, or if they foresee that it may give rise to new
applications. Under this procedure, a pilot decision is issued by the relevant
Chamber. Applications of a similar nature are resolved by administrative
authorities in accordance with the principles set out in the pilot decision; if
they are not resolved, the Court collectively examines them and renders a
decision.
Within this framework, the
Constitutional Court may, depending on the nature of the violation, order a
retrial, award compensation in favor of the applicant, or determine other
measures necessary to remedy the violation. The effectiveness of individual application
decisions, however, depends on the implementation of the remedial measures
specified in the violation decision by the relevant judicial authorities.
3. The Binding Nature of
Constitutional Court Decisions in Individual Applications and the Referral of
the File to the Relevant Court for Retrial
Pursuant to the final
paragraph of Article 138 of the Constitution, entitled “Independence of the
courts”, the legislative and executive organs and the administration are
obliged to comply with court decisions, and these organs and the administration
may not, under any circumstances, alter court decisions. [2] Likewise, the
final paragraph of Article 153 of the Constitution provides that the decisions
of the Constitutional Court are binding on “the legislative, executive, and
judicial organs, administrative authorities, as well as natural and legal
persons”.
Since the decisions of the
Constitutional Court are final, the court to which the decision is referred for
retrial is bound by that decision. The court obliged to conduct the
retrial shall, if possible, decide based on the file in a manner that remedies
the violation and its consequences as specified in the Constitutional Court’s
violation decision. (Law Nr. 6216, Art. 50/2)
It should not be assumed
that the retrial conducted by the relevant court, aimed at remedying the
violation and its consequences specified in the Constitutional Court’s
decision, is detached from or independent of the original trial. The retrial is
linked to the initial proceedings and is built upon the original case,
essentially constituting a continuation of that case. Therefore, the findings
of the initial trial are generally preserved, and the retrial conducted by the
court will focus on addressing the reasons identified as violations. [3]
The court to which the
file is sent for retrial is bound by the Constitutional Court’s decision and
may not issue a decision resisting it. Otherwise, the court could
potentially assess the Constitutional Court’s decision and, if it believes the
supervisory authority has been exceeded, render a contrary decision. In fact,
this view could also be justified by reference to the independence of judges. However,
even if there are issues other than the violation of rights, the court must
issue a decision that remedies the rights violation in accordance with its own
assessment. It is obliged to render a new decision to eliminate the identified
violation. Otherwise, it remains possible to apply again to the Constitutional
Court against the new decision. [4]
Accordingly, it is a
constitutional obligation for the court tasked with conducting a retrial to
render a decision that remedies the violation identified by the Constitutional
Court. The effectiveness of the individual application mechanism depends not only
on the finding of a violation but also on addressing the consequences of that
violation. Failure to implement the Constitutional Court’s violation decision,
or conducting a merely formal retrial, undermines the purpose of the individual
application mechanism and renders constitutional safeguards ineffective.
Therefore, the court obliged to conduct the retrial must issue a decision that
eliminates the violation and its consequences in accordance with the principles
and reasoning set forth in the Constitutional Court’s decision.
However, in practice, it
is observed that courts obliged to conduct retrials sometimes interpret the
scope of the Constitutional Court’s decision narrowly, refrain from making
assessments sufficient to remedy the consequences of the violation, or issue decisions
that effectively resist the ruling by merely repeating their previous
judgments. This situation weakens the principle of binding effect established
in Article 153 of the Constitution in practice, reduces the effectiveness of
the individual application mechanism, and negatively impacts the rule of law
and legal certainty. Therefore, the issue of the implementation of
Constitutional Court violation decisions by civil courts emerges as an
important matter that requires separate examination in terms of the functioning
of the individual application system.
4. Implementation of Constitutional
Court Violation Decisions by Civil Courts
The effectiveness of the
individual application mechanism depends on the full and proper implementation
of the violation decisions rendered by the Constitutional Court by the relevant
judicial authorities. However, in practice, it is observed that civil courts,
in particular, adopt different approaches regarding the enforcement of these
violation decisions. These differences sometimes manifest as a narrow
interpretation of the scope of the violation decision, and at other times as
treating the retrial process merely as a formal procedure.
Firstly, it is observed
that civil courts, when interpreting a violation decision, often focus only on
the narrow point where the violation was identified and refrain from making a
comprehensive assessment that would remedy the consequences of the violation.
However, the Constitutional Court’s violation decisions are not limited to the
mere finding of a violation; they also require that the consequences of the
violation be remedied. Therefore, in the retrial process, the court must
conduct a new assessment aimed at eliminating the source of the violation,
rather than merely repeating its previous judgment.
Another issue is that the
retrial mechanism is sometimes confused by certain courts with the ordinary
procedure of reopening a case. However, a retrial ordered as a result of an
individual application differs from the classical institution of reopening a
trial under our procedural law. The retrial conducted pursuant to a
Constitutional Court violation decision is carried out directly to remedy the
violation, without the need for new evidence or a new legal situation.
Nevertheless, it is observed that some courts impose additional conditions for
retrial or act in a way that avoids altering their previous judgment.
Another situation observed
in practice is that courts, when implementing a violation decision, limit
themselves to issuing a merely formal ruling. In this context, it is stated
that a retrial has been conducted, yet the provisions are essentially a repetition
of the previous judgment without any change to the substance of the violation.
Such decisions undermine the effect of the binding decisions of the
Constitutional Court and produce outcomes contrary to the purpose of the
individual application mechanism.
Ultimately, the
non-implementation of violation decisions rendered by the Constitutional Court
is legally impermissible. As stipulated under Article 153 of the Constitution
and Article 66 of Law Nr. 6216, Court decisions are final. Court decisions
are binding on the State’s legislative, executive, and judicial organs,
administrative authorities, as well as natural and legal persons.
Therefore, if the decisions concerning individual applications are final and
binding on judicial bodies, no decision resisting them may be issued.
These practices weaken the
principle of binding effect established in Article 153 of the Constitution and
negatively impact legal certainty, which is one of the fundamental elements of
the rule of law. Moreover, they prolong the process of remedying the rights
violations for individuals who apply through the individual application
mechanism and reduce the effectiveness of the Constitutional Court’s
supervisory function.
In conclusion, the failure
to implement the Constitutional Court’s violation decisions not only renders
the individual application mechanism ineffective but also produces significant
constitutional consequences in terms of the rule of law, the protection of
fundamental rights, the right to a fair trial, the supremacy of law, the
hierarchy of norms, and the principle of separation of powers. Therefore, the
full and proper implementation of Constitutional Court decisions by all
judicial authorities is imperative for the preservation of the constitutional
order.
5. Conclusion
The individual application
mechanism constitutes an important safeguard in our legal system for the
protection of constitutional rights and freedoms. However, the effectiveness of
this mechanism depends on the full and proper implementation of the violation
decisions rendered by the Constitutional Court by the relevant judicial
authorities. Pursuant to Article 153 of the Constitution and the provisions of
Law Nr. 6216, it is clear that Constitutional Court decisions are binding on
the legislative, executive, and judicial organs, and their non-implementation
is legally impermissible.
Nevertheless, in practice,
it is observed that, particularly in the retrial process, civil courts often
interpret the scope of violation decisions narrowly, limit themselves to merely
formal retrials, or effectively repeat their previous judgments. This situation
produces outcomes contrary to the purpose of the individual application
mechanism and undermines the effectiveness of constitutional safeguards.
The failure to properly
implement the Constitutional Court’s violation decisions gives rise to
significant concerns in terms of the rule of law, legal certainty, the
hierarchy of norms, and the protection of fundamental rights. Indeed, although
a violation has been identified, its non-remedying undermines the effectiveness
of the individual application mechanism as a means of legal recourse and erodes
confidence in the judicial system.
Therefore, it is
imperative that courts tasked with conducting retrials issue decisions that
take into account the violation findings and reasoning set forth in the
Constitutional Court’s decisions and ensure the remedy of the violation and its
consequences. To ensure the effectiveness of the individual application
mechanism, trial courts must develop practices that respect the binding nature
of Constitutional Court decisions and are consistent with constitutional
interpretation. This approach will contribute to the protection of fundamental
rights and freedoms while also ensuring a healthy and effective relationship
between constitutional adjudication and courts of first instance.
Att. Ezgi Karpınar
References:
1. Hakan
Pekcanıtez, “Bireysel Başvuru Sonunda Verilen Kararların Medenî Yargıya Etkisi
(The Impact of Decisions Rendered Following Individual Applications on Civil
Judiciary)”, Anayasa Yargısı, p.35,
Anayasa Mahkemesi Yayınları, Ankara 2019, p.77-78.
2. Bülent Tanör and Necmi
Yüzbaşıoğlu, 1982 Anayasasına Göre Türk Anayasa Hukuku (Turkish
Constitutional Law According to the 1982 Constitution) (19th Ed.,
Beta 2019) 584.
3. Hakan Pekcanıtez, ibid.,
p. 82.
4. Hakan Pekcanıtez, ibid.,
p.85.
