The Constitutional Court faces difficulties in finding a resolution when fundamental rights violations stem from the law. Law No. 6216 does not provide clear guidance on this matter. Originally, there was a provision in the draft law, Article 49, paragraph six, which stated that if a violation arose from the law, the relevant section would refer the issue to the General Assembly of the Constitutional Court. However, this provision was later removed during the commission's work due to concerns about granting the Constitutional Court the authority to initiate lawsuits on its own. Although the provision was removed, no alternative solution was introduced to address this problem.In practice, the Constitutional Court has resorted to sending a copy of its decision to the Parliament in cases where violations are attributed to the law. However, neither the Rules of Procedure of the Turkish Grand National Assembly nor Law No. 6216 specify how to proceed in such instances.The Constitutional Court has issued notifications to the Turkish Grand National Assembly in three pilot judgments and several other judgments, acknowledging that the violations were a result of the existing laws. However, in only one case, the law was amended following the notification. In other instances, the TGNA did not take any action, leading to the escalation of violations due to the Constitutional Court's flawed pilot decision practice.For instance, in the pilot decision regarding Hamit Yakut, the Constitutional Court determined that the offense of "committing a crime on behalf of a terrorist organization without being a member of a terrorist organization," as regulated in the sixth paragraph of Article 220 of the Turkish Criminal Code, lacked foreseeability in practice. The Court found that individuals exercising their constitutional rights to freedom of assembly and expression were being punished based on this article. Consequently, the Court notified the Parliament to amend the relevant provision. In the same decision, the Court suspended the examination of similar applications for a period of one year. However, since no measures were taken by the Court regarding individuals sentenced under the provision in question, they continued to be deprived of their liberty during the specified period. The Turkish Parliament failed to take any action within the designated timeframe. Two years later, the Court consolidated the pending applications and concluded that the rights of each applicant, including Deniz Yavuncu and others, had been violated.However, the Constitutional Court has yet to find a definitive solution to remedy the violation. Despite ruling for the retrial of the applicants, the existence of the unchanged provision in the law makes it unlikely that local courts will interpret it differently and issue an acquittal verdict. If such a possibility existed, there would be no need for a pilot judgment in the first place.The Constitutional Court suggests two approaches to the local courts. The first is to directly apply the international convention instead of the conflicting law, under the framework of Article 90 of the Constitution. However, the Constitutional Court did not need to issue a pilot judgment for this option, as the European Court of Human Rights (ECtHR) had already ruled in the Işıkırık v. Turkey case that the same provision was unforeseeable and conflicted with the Convention. The Constitutional Court could have promptly resolved the victims' situation by issuing a direct violation decision.The second suggestion is for the courts handling the retrial to appeal to the Constitutional Court based on Article 152 of the Constitution. However, this suggestion delays the applicants' access to their rights and, most importantly, results in years of unnecessary imprisonment.A possible solution to this problem could be if the Constitutional Court's section responsible for individual applications considers itself as the court hearing the case and objects to the unconstitutional law by bringing it before the General Assembly. It is evident that the Constitutional Court, based on historical interpretation, is hesitant to utilize a power not recognized by the legislature. However, during the legislative process, Constitutional Court officials stated that this route was available and did not object to the removal of the problematic provision from the draft law. If this approach is not favored, an amendment to Law No. 6216 and the Rules of Procedure of the Grand National Assembly of Turkey should be made to compel the amendment of the provision that violates constitutional rights.

The Freedom Observer

In practice, the Constitutional Court has resorted to sending a copy of its decision to the Parliament in cases where violations are attributed to the law. However, neither the Rules of Procedure of the Turkish Grand National Assembly nor Law No. 6216 specify how to proceed in such instances.

Hamit Yakut ile ilgili hikayeler