The so-called “individual application”; The right of individuals whose rights and freedoms have been violated by the public power to apply to the Constitutional Court was accepted with the amendment made by the 12 September 2010 Referendum, with three paragraphs added to Article 148 of the Constitution titled “Duties and Powers of the Constitutional Court”. With the right to individual application to the European Court of Human Rights, as well as the right of individual application to the Constitutional Court at the national level; it is aimed to minimize the amount of compensation that has to be paid by rectifying the violations on the national plan and to prevent the loss of prestige before the international judiciary.
148/IV of the Constitution. The procedures and principles regarding individual application are regulated in the Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court. According to this;
Every real and private legal entity claiming that a fundamental right or freedom has been violated by public power can benefit from the right to individual application.
It is essential that the violated right or freedom subject to individual application is guaranteed by the Constitution, but it is not sufficient; Because, in order to be able to talk about a violation that may be the subject of an individual application, the fundamental right or freedom guaranteed in the Constitution must also be within the scope of the European Convention on Human Rights (ECHR) or the Protocols annexed to this Convention to which Turkey is a party.
The violation must be committed by an enforcement action by a public force. 45/III of the Law No. 6216. According to the article; It is not possible for the violation arising from legislative acts or direct administrative regulations to be the subject of an individual application. The examination made by the Constitutional Court due to an individual application is not limited to the inspection of the constitutionality of the law or regulation, but to the inspection of the constitutionality of the concrete application based on them.
The protection to be provided by the Constitutional Court through individual application is a secondary remedy that can be activated in case this protection cannot be made in the courts of instance or if the violation occurs in the courts of instance. Therefore; 148/III of the Constitution. In the article, the condition of “exhaustion of ordinary legal remedies” is sought in order to make an individual application. Although the approach in the Constitution should be understood as ending the judicial phase before the courts of instance, 45/II of the Law on the Establishment and Trial Procedures of the Constitutional Court, which also regulates the principles and procedures regarding individual application. substance;
It has the provision that “all of the administrative and judicial remedies stipulated in the law for the action, act or omission alleged to have caused the violation must be exhausted before the individual application is made”. Accordingly, all other mandatory application conditions stipulated in the laws must also be exhausted.
In accordance with the Law No. 6216 on the Establishment and Proceedings of the Constitutional Court; The individual application must be made within 30 days from the date of exhaustion of remedies or, in cases where no remedy is foreseen, from the date of learning of the violation.
In order for the individual application to be examined on the merits, the right that is directly affected by the action, act or omission allegedly infringing must be an up-to-date and personal right, the application petition must be in accordance with the form stipulated in the law and the internal regulations, and the conditions for the payment of the application fee must be fulfilled.
Sections examining individual applications in accordance with the Law No. 6216 on the Establishment and Proceedings of the Constitutional Court; they conduct limited investigation to determine whether a fundamental right has been violated and how the violation can be remedied. They cannot conduct an appropriateness audit, and cannot make decisions in the nature of an administrative action or transaction.
The substantive decisions of the departments together with their justifications are communicated to the relevant parties and the Ministry of Justice; it is also published on the Court’s website.
During the examination of the merits, the departments may decide on the measures they deem necessary for the protection of the applicant’s fundamental rights ex officio or upon the request of the applicant.
Article 73 of the Statute of the Constitutional Court stipulates that there is a serious danger to the applicant’s life or material or moral integrity as a situation that requires the protection of fundamental rights with precautionary measures. The need for such a measure will drive the taxpayer into bankruptcy in terms of taxpayers; It may also be in question due to precautionary lien and foreclosure practices that will damage its commercial reputation and reliability. If a decision is made to take the measure, the decision on the merits must be rendered within six months at the latest; otherwise, the injunction will be lifted automatically.
If the detected violation is caused by a court decision, the file is sent to the relevant court for retrial in order to eliminate the violation and its consequences. The court to which the file was sent decides to eliminate the violation and its consequences by retrial.
In cases where there is no legal benefit in retrial, such as the passage of a reasonable time, compensation may be awarded in favor of the applicant or a lawsuit may be filed in the general courts. Compensation can be material, as well as non-pecuniary, as in exceeding a reasonable period of time.
In accordance with the decision taken by the member states of the Council of Europe, the European Convention on Human Rights (ECHR), which came into force in 1953, was approved by the Turkish Grand National Assembly with the Law No. 6366 in 1954, but the citizens have the right to make an individual application to the European Court of Human Rights (ECHR) 28.01. It was recognized in 1987.
Since the ECtHR is not an appellate authority above the national courts, it does not have the power to overturn or change the decisions of the national courts. However, it is in charge of supervising the conformity of the decisions of national courts or administrative authorities with the contract and detecting any contradictions.
In order to make an application to the ECtHR; The domestic remedies must be exhausted, the statute of limitations must be complied with, no application has been made to another international jurisdiction on the same issue, the application must not be within the scope of abuse of right and clearly lacking in legal basis.
The right of individual application to the Constitutional Court entered our legal system with the September 12, 2010 Referendum. According to the decision of the ECtHR in the Hasan Uzun v. Turkey case with a majority of votes; Since the right of individual application to the Constitutional Court began, applications made to the ECtHR without exercising this right have been found inadmissible on the grounds that “domestic remedies have not been exhausted”.
The ECtHR, which aims to protect and develop fundamental human rights and freedoms and is a specialized court in this regard, is an effective, exceptional and final judicial remedy for individual application right holders.
