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How To File An Individual Application With Constitutional Court – Constitutional & Administrative Law


Introduction

According to article 45 of the Code on Establishment and
Procedure Rules of the Constitutional Court (No. 6216) (the Code),
anyone can apply to the Constitutional Court on the grounds that
their fundamental rights and freedoms – protected under the Turkish
Constitution, the European Convention on Human Rights and any
additional protocols to which Turkey is a party – have been
violated by public force. Any and all administrative and judicial
remedies regarding the act, action or negligence that caused the
alleged violation must be exhausted before an individual
application can be made.

An individual application can only be filed by those whose
current and personal rights have been directly impacted by the act,
action or negligence causing the alleged violation. Private legal
persons can only file individual applications on the grounds that
the rights belonging to the legal person have been violated.

According to the Constitutional Court, 428,554
individual applications were filed between 23 September 2012 and 30
June 2022, and 320,253 (ie, 74.7%) of these have been concluded. Of
the applications that have been concluded:

  • 276,188 applications were found to be inadmissible;

  • no violations were found in 902 applications;

  • at least one right was deemed to have been violated in 28,838
    applications;

  • 12,843 applications resulted in administrative rejection;
    and

  • 1,482 applications were concluded in other ways (eg,
    discontinuance, closure of the case or rejection).

The right to a trial within a reasonable time was the most
common cause of a violation decision, followed by the right of
property and the right to a fair trial.

Individual application procedure

The procedure to file an individual application is regulated
under article 47 of the Code. The application petition must
specify:

  • the identification and address of the applicant and its
    representative, if any;

  • the rights and freedoms alleged to have been violated due to an
    act, action or negligence and the relevant constitutional
    provisions;

  • the grounds of the violation clams;

  • the stages of exhausting all remedies;

  • the date of exhausting the remedies, or the date of learning of
    the violation if no remedies are applicable; and

  • the damage, if any.

Originals or copies of the action or decision alleged to have
caused the violation and the evidence relied on must be affixed to
the application petition. If the applicant is represented by a
lawyer, the power of attorney must also be presented.

According to article 59 of the Internal Regulation of the
Constitutional Court, individual applications must be filed in an
official language using the sample application form annexed to the
Internal Regulation. The application form must include, among other
things:

  • a chronological summary of the events regarding the act, action
    or negligence alleged to have caused the violation by public
    force;

  • concise explanations regarding which of the current and
    personal rights in the scope of the individual application have
    been violated and for what reasons, along with any explanation and
    evidence;

  • the fundamental rights alleged to have be violated and any
    explanations; and

  • an injunction request regarding material and moral integrity,
    if any, as well as any justifications.

Application term

According to article 47 of the Code, in principle, individual
applications must be filed within 30 days of exhausting the legal
remedies, or within 30 days of learning of the violation if no
legal remedies are available.

As per the Constitutional Court’s precedents, “the date
of exhausting the legal remedies” must be construed as
“the date of learning [of] the reasoning of the final
judgment”. Such “learning” can take place
differently based on the specifics of each case.1
Service of the decision is a way of learning of the reasoning of
the final judgment, but this is not the only way – other methods
are also possible. In this regard, where the applicant becomes
aware of the final judgment’s reasoning before the service, the
30-day period should start from this date, not the date of
service.

According to the Manual on Individual Application
(Constitutional Complaint) Procedure, published under the scope of
the Joint Project on Supporting the Individual Application to the
Constitutional Court in Turkey, the Constitutional Court’s
precedents sets forth that, among others, the following instances
would be construed as the “date of learning [of] the final
judgment’s reasoning”:

  • the date of service of the final judgment;

  • the date on which the applicant obtained a copy of the final
    judgment from the file;

  • the date that the applicant declares that they became aware of
    the final judgment;

  • the date on which it became possible to learn of the reasoning
    of the court’s decision;

  • the date on which the applicant appears to have been aware of
    the decision based on the content of the file;

  • the pronouncement of the judgment during the hearing before the
    Court of Cassation;

  • the date of service of the invitation writ;

  • the date of service of the payment order; or

  • the date of obtaining a photocopy from the file.

Fees

According to article 47 of the Code, individual applications are
subject to a fee. A receipt proving that the fee has been paid must
be affixed to the application form. According to the Judicial Fee
Tariff of 2022, the fee set for applications before the
Constitutional Court is 664.10 lira.

Admissibility criteria, examination of individual applications
and examination on the merits

According to article 48 of the Code, the Court may give an
inadmissibility decision regarding individual applications that
are:

  • insignificant in terms of interpreting or applying the Turkish
    Constitution or determining the scope and limits of fundamental
    rights where the applicant did not incur significant damage;
    and

  • clearly devoid of grounds.

Under article 48, individual applications that are deemed
admissible are examined in terms of their merits. During the
examination on the merits, the Court may decide to impose any
compulsory injunctions that are required to protect the
applicant’s fundamental rights ex officio or upon the
applicant’s request.

According to article 50 of the Code, as a result of the
examination on the merits, the Court may decide whether the
applicant’s right has been violated. If the Court finds a
violation, it rules on the actions necessary to be taken to remove
the violation and its consequences. If the violation detected by
the Court arises from a court decision, the case shall be returned
to the relevant court for a retrial to remove the violation and its
consequences. Where there is no legal benefit in conducting a
retrial, the Court may rule on compensation in favour of the
applicant or lead the applicant to initiate a lawsuit before the
general courts.

Footnote

1. Bülent Aktas and others, Constitutional Court,
2014/19389, 07 December 2016, section 11.

First published by ILO – Litigation
Newsletter
, in 13.09.2022

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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