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|
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 to the TCC
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.
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.
Another problem with the TCC’s modus operandi concerning individual application cases is its arbitrary and discriminative praxis on setting agenda of the Court and its interpretation of the laws and facts. The TCC’s does not have a guideline on setting agenda of the Court. The President of the Court has an absolute authority on this matter, and unfortunately, this power has been so far used in an arbitrary and discriminative way. Infamous cases of Mehmet Altan and Ahmet Altan are a perfect example of this arbitrary and discriminative praxis. Journalists and academics Altan Brothers were taken into custody on 9 September 2016 within the scope operation against so-called ‘FETO-Media Structure‘. They were subsequently detained by Istanbul Criminal Peace Judgeship. Both were prosecuted, detained and indicted due to their articles and speeches which were criticizing the AKP Government and published or broadcasted in the media outlets dissolved under the Emergency Decrees. Altan Brothers lodged separate individual applications with the TCC on 8 November 2016. However, the TCC took the Mehmet Altan’s case to its agenda on 11 January 2018, while taking Ahmet Altan’s one on 3 May 2019.
What is worse, the TCC’s judgments in cases of Mehmet Altan and Ahmet Altan are poles apart. In Mehmet Altan’s application, the TCC rendered a judgment saying his detention violated the right to liberty and security and the freedom of expression envisaged by the Constitution and the ECHR. However, the TCC found Ahmet Altan’s application inadmissible though complaints, the facts and relevant laws were same.
Although the ECtHR has so far overlooked all deficiencies with the TCC’s modus operandi in individual applications and its incoherent interpretation of laws and facts, it seems for the first time it started to discuss the TCC’s effectiveness. In a case filed by Wikipedia against Turkey (25479/19), the ECtHR sent a communication to the parties asking “Could the individual application that was lodged with the Constitutional Court be considered as an effective remedy within the meaning of Article 35 of the Convention, having regard to the fact that access to the Wikipedia internet site has been blocked in Turkey since 2017 and that according to the applicant, its individual application has been pending before the Constitutional Court for more than two years?”
Immediately after the coup attempt of 2016, the TCC, first dismissed its two members  based on so-called social environment information, stayed silent about their detention. These dismissals encouraged the Government and triggered the dismissals made with Decree Laws.  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.  Although emergency regimes pose a severe risk to fundamental rights and freedoms, instead of diligently reviewing the Government’s actions, the TCC provided the Government with a blank check to do whatever it wanted by reversing its 25-year-old precedent on the Constitutional review of emergency measures.
Since 2014, and increasingly after the attempted coup of 2016, the TCC has aligned with the AKP Government. Although the TCC does occasionally deliver decisions upholding rights and freedoms, one can say these are ‘strategic’ decisions intended mainly to prevent the ECtHR from reversing its previous decision recognizing the TCC as an effective remedy.
‘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.
‘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.