Factsheet: Turkish Constitutional Court

The 1961 Constitution created the Turkish Constitutional Court (TCC)  and endowed it with the power to review the constitutionality of laws. The system of constitutional review established by the 1961 Constitution was preserved in the 1982 Constitution with minor changes. By the Constitutional amendment of 2010 and 2017, the Court’s structure and authorities were expanded.

Composition of the Court 

The Turkish Constitutional Court consists of 15 Judges:

  • Three of these Judges are elected with a secret voting by the Grand National Assembly of Turkey,
  • 12 judges are selected by the the President of the Republic. The President selects, (i) three Judges from the Court of Cassation, (ii) two Judges from the Council of State, (iii) three Judges amongst Professors in the fields of law, economics and political sciences, (iv) four Judges from among high-level bureaucrats , attorneys, senior judges and prosecutors, and rapporteurs of the Constitutional Court with experience of at least five years.
  • Judges of the Court are elected for a term of twelve years.

As is seen above, twelve of fifteen judges are selected by the President, and three judges are elected by the Parliament which would likely be under control of the political party of the President. In Turkey’s new presidential system, President of the Republic is no longer impartial, but the chair of a political party. It consequently means a political party could dominate the country’s highest court. So indeed, twelve of the incumbent judges are selected either former president Gul or incumbent one Erdogan both are founders of ruling party AKP.

Name Position Selected by Name Position Selected by
Zühtü Arslan President Abdullah Gül Muammer Topal Member Abdullah Gül
Hasan Tahsin Gökcan Deputy President Abdullah Gül Mehmet Emin Kuz Member Abdullah Gül
Engin Yıldırım Deputy President Abdullah Gül Kadir Özkaya Member Recep Tayyip Erdoğan
Serdar Özgüldür Member Ahmet Necdet Sezer Rıdvan Güleç Member Parliament
Recep Kömürcü Member Abdullah Gül Recai Akyel Member Recep Tayyip Erdoğan
Burhan Üstün Member Abdullah Gül Yusuf Şevki Hakyemez Member Recep Tayyip Erdoğan
Hicabi Dursun Member Parliament Yıldız Seferinoğlu Member Recep Tayyip Erdoğan
Celal Mümtaz Akıncı Member Parliament Selahaddin Menteş Member Recep Tayyip Erdoğan

Constitutionality Review

The Plenary of the Court shall examine the constitutionality, in respect of both form and substance, of laws, Presidential decrees and the Rules of Procedure of the Grand National Assembly of Turkey. Constitutional amendments shall be examined and verified only with regard to their form.

There are two procedures for constitutionality review. One of them is Action for Annulment and the other is Contention of Unconstitutionality. While the Action for Annulment is also known as abstract control of norms the Contention of Unconstitutionality is named as concrete control of norms.

The President of the Republic, the two parliamentary groups having the greatest number of members in the Turkish Grand National Assembly and a minimum of one-fifth of the total number of members of the Turkish Grand National Assembly have the right to apply for annulment action to the TCC with the claim of unconstitutionality in the form or in the substance of articles or provisions of laws,

Within this framework, conditions for contention of unconstitutionality are as below:

        – The case must be pending case,

        – The case must be examined by a “court”,

        – The contested law or  Presidential decree must be applicable to the case,

        – The disposition intended to apply must be considered as unconstitutional or the claim of unconstitutionality must be serious.

Upon review, the TCC may either dismiss the case or annul the contested legal provision upon finding contrary to the Constitution.

Individual Application

Turkey became a party to the European Convention on Human Rights in 1954, recognized the right to individual application to the European Court of Human Rights in 1987 and the compulsory jurisdiction of this Court in 1990.

With constitutional amendment in 2010, the right to individual application was introduced, and  the TCC was endowed with the authority to review the individual application cases filed by legal and real persons seeking remedies for violations of fundamental rights and freedoms which envisaged both by the Constitution and the European Convention on Human Rights.

With the actual implementation of the individual application beginning from 23 September 2012, the constitutional jurisdiction review has been implemented against the infringements of rights caused by persons or institutions exerting public authority. Accordingly, as of 23 September 2012, every person may apply to the TCC alleging that the public power has violated any one of his/her fundamental rights and freedoms secured under the Constitution which falls into the scope of the European Convention on Human Rights.

The ECtHR, with its judgment in Uzun vs Turkey (App. No:10755/13), recognized the TCC as providing effective remedy for violations of fundamental rights and freedoms. Accordingly, the ECtHR ruled having lodged a complaint first with the TCC as  admissibility condition for any application that would be filed against Turkey to the ECtHR thereafter.

Statistics on Individual Application Cases

According to statistics published by the TCC on 30th July 2019, the TCC delivered 186.701 decisions between 23rd September 2012 and 30th July 2019. Of those, 7835 are decisions establishing at least one right violation, which corresponds 4% of all decisions. Rest of the decisions, in other saying 96% of decisions, consist of:

  • non-violation decisions,
  • decisions of rejection,
  • decisions of inadmissibility.

 

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These stats are quite alarming both with regard to sheer volume of the cases considered and low percentage of the decisions establish a right violation. These are self-evident that a Court consists of 15 members cannot duly render 186.701 decisions within seven years, and a Court which dismisses 96% of the applications cannot be regarded as providing an effective remedy for rights violations.

Since 2014, and increasingly after the attempted coup of 2016, the TCC has aligned with the AKP Government. Although, the TCC rarely delivers decisions upholding rights and freedoms, these decisions are perceived and criticized as strategical decisions to prevent the ECtHR from reversing its decision recognizing the TCC as an effective remedy.

Immediately after the coup attempt of 2016, the TCC, first dismissed its two members [1] based on so-called social environment information, stayed silence about their detention. [2]Then, the TCC reversed its 25-years-old precedent, which was empowering the TCC to review constitutionality of emergency decrees, and dismissed the actions for annulment that were lodged by the main opposition party against the emergency Decree laws. [3]

[1]‘Press Release Regarding The Reasoned Decision On The Dismissal Of Two Members Of The Constitutional Court, Alparslan Altan And Erdal Tercan From Profession’ (Turkish Constitutional Court, 9 August 2016) <http://constitutionalcourt.gov.tr/inlinepages/press/PressReleases/detail/31.html> accessed 19 February 2019.

[2] ECHR established that detention of member of TCC is unlawful. http://hudoc.echr.coe.int/eng?i=001-192804 

[3]‘Press Release Concerning the Decisions on the Decree Laws Issued Under the State of Emergency’ (Turkish Constitutional Court, 4 November, 2016) <http://constitutionalcourt.gov.tr/inlinepages/press/PressReleases/detail/33.html> accessed 19 February 2019.

Turkish Constitutional Court, Decision Nos: 2016/159 and 2016/160 dated 12 October 2016; Decision Nos. 2016/164 and 2016/165 dated 2 November 2016.



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