Individual application to the Constitutional Court refers to the right of individuals to directly apply to the Constitutional Court with the claim that their fundamental rights and freedoms have been violated by the public power. This process was introduced in Turkey with the amendment to Article 148 of the Constitution in 2012 and the subsequent Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court.
Stages of the Application Process
Exhaustion of Local Judicial Remedies: In order to file an individual application, a lawsuit must first be filed in the local courts on the alleged violation and all judicial remedies (local courts, regional courts of appeal, Court of Cassation or Council of State) must be exhausted.
Application Period: Following the exhaustion of local judicial remedies, there is a 30-day period for the application to be submitted to the Constitutional Court. This period starts to run from the notification of the final judgement.
Application Form and Content: The application must be made in accordance with the form determined by the Constitutional Court. The application should include information about the fundamental right or freedom subject to the alleged violation, the alleged act of violation and the process before the local courts.
Application Fee: In the individual application process, there is a fee to be paid at the time of application. The amount of this fee may be updated every year.
Reasons for Application
The main grounds for individual application to the Constitutional Court are as follows
Violation of the Right to a Fair Trial: Failure to complete the trial within a reasonable time, failure to be tried before an impartial and independent court.
Violation of the Right to Liberty and Security: Unjustified detention or arrest.
Violation of Freedom of Expression and Press: Restriction of freedom of expression, interference with freedom of the press.
Violation of the Right to Property: Expropriation or other violations of property rights.
Protection of Private and Family Life: Failure to protect personal data, interference with private and family life.
Protracted proceedings are one of the most common reasons for individual applications to the Constitutional Court (CC). Such an application is made on the grounds that the ‘right to a trial within a reasonable time’, which is part of the right to a fair trial, has been violated. Article 6 of the European Convention on Human Rights and the relevant provisions of the Turkish Constitution require that everyone’s case be decided within a reasonable time. Excessive prolongation of judicial proceedings may be considered a violation of this fundamental right and gives rise to the right of individuals to apply to the Constitutional Court.
Assessment of the Constitutional Court
The Constitutional Court will first examine the application in terms of admissibility. If the application is found admissible, the court will make an assessment on the merits regarding the existence of a violation. In this process, the court is expected to take into account the length of the proceedings, the circumstances specific to the case and the factors that caused the delay in the proceedings.
If the Constitutional Court finds that the right to a trial within a reasonable time has been violated, the victim may be offered various forms of compensation and/or steps to remedy the situation. This will usually take the form of pecuniary or non-pecuniary compensation and may sometimes include instructions to the domestic courts to expedite the proceedings.
Conclusion
Individual application to the Constitutional Court is an important legal remedy in cases where individuals’ fundamental rights and freedoms are violated. However, in order to apply for this remedy, local judicial remedies must be exhausted and the application must be duly lodged. Situations such as long duration of the proceedings are among the most common reasons for individual application.
In individual applications to the Constitutional Court, applications must be prepared in great detail, as they are meticulously assessed in terms of procedural requirements. Any deficiency or procedural error in this regard may lead to loss of rights. It is strongly recommended that an expert lawyer should be involved in the process when making an individual application.