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.

The Constitutional Court Fails to Resolve

The Constitutional Court (AYM) made an important decision regarding the objective bindingness of the violation decisions in the individual application.[1] Accordingly, the violation decision of the Constitutional Court in an individual application is also binding for other similar cases and should be taken into account by public authorities and courts. In fact, one of the purposes of individual application is to raise the human rights standard of the country. For this, it is necessary to accept that the decisions of the Constitutional Court within the scope of individual application have a dual function. On the one hand, the Constitutional Court interprets the scope and limits of constitutional rights on the occasion of a concrete application. This is the objective function of individual application and mediates the realization of constitutional justice by determining the scope of fundamental rights and freedoms. On the other hand, the Court performs individual justice by determining the violation of the applicant's right and deciding to remedy the violation and its consequences. This is called the subjective function of the individual application.Indeed, the subjective function of the individual application cannot be ignored. It is vital that individuals whose constitutional rights have been violated can seek their rights before the country's highest court. However, it is virtually impossible for a 17-member court to detect all violations of rights suffered by 85 million people living in the country and to redress their rights. For this reason, the objective function of the individual application should be brought to the fore and the general (erga omnes) bindingness of the individual application decisions should be implemented in order to provide the expected benefit from the individual application. In other words, after the Constitutional Court decides on a violation, public administrations should harmonize their practices and other courts' decisions with the decision of the Constitutional Court. In fact, this is also a requirement of the principle of "subsidiarity" of the authority of the Constitutional Court and individual application. For this reason, it has already been stipulated that other legal remedies should be exhausted before applying to the Constitutional Court. Fundamental rights and freedoms should be protected primarily by public authorities and courts of instance.In this respect, the decision of the General Assembly of the Constitutional Court, İbrahim Er and others, is of vital importance. In the application in question, the Constitutional Court examined the decisions regarding the refusal of the applicants' requests for a retrial, which had been tried by various courts on the grounds that they were members of the Hizb-ut Tahrir organization and were punished for membership of a terrorist organization and whose sentences had been finalized. In its previous decision of Yılmaz Çelik in 2018, the court stated that there was not an adequate assessment of Hizb-ut Tahrir as a terrorist organization in the decisions of the instance courts and that it was not sufficiently clear on which ground the decisions of the instance courts, which looked like repetition of some template sentences, were based. Within the scope of the right to a fair trial, which is guaranteed in Article 36 of the Constitution, the right to a "reasoned decision" has been violated.In the judgment of İbrahim Er and others, the Court stated that the evaluations made in the Yılmaz Çelik decision should have an impact on those in similar situations. In this context, reminding that after the Yılmaz Çelik decision, many courts accepted the requests for retrial and made a re-evaluation of individuals and gave acquittal verdicts, the Court emphasized that in the present case, the court of first instance rejected the applicants' requests without giving any justification, ignoring the decisions of the Constitutional Court. Stating that after Yılmaz Çelik's decision, no evaluation was made about why Hizb-ut Tahrir was accepted as a terrorist organization in the Turkish judicial system and that the issue was not resolved by considering the criteria set forth by the Constitutional Court, the Court further added that the requests for retrial were rejected and the execution of the decisions continued. Stating that every decision that does not include an assessment of whether Hizb-ut Tahrir is a terrorist organization will result in a violation of the right to a reasoned decision, which is a requirement of the principle of fair trial, the allegations put forward by the applicants in the concrete case and may change the outcome of the proceedings are not taken into account and properly evaluated. The Court decided that the right to a reasoned decision within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution had been violated.This decision is a pioneering one in terms of the protection of human rights. However, in order for this to provide the expected improvement, first of all, it should not remain as an exception, and similar decisions should be made in all similar cases. Meanwhile, the Constitutional Court must act more carefully and not act selectively in applying ECHR standards in its own decisions.&nbsp;<a fr-original-style="" href="#_ftn1" name="_ftnref1" style="color: rgb(9, 9, 9); text-decoration: none; background-color: transparent; outline: none; cursor: pointer; transition: color 0.3s ease 0s; touch-action: manipulation; user-select: auto; box-sizing: border-box;" target="_blank" title=""> </a><hr align="left" size="1" width="33%" fr-original-style="" style="height: 0px; overflow: visible; border-bottom: none; clear: both; user-select: none; break-after: page; box-sizing: border-box;"> <a href="#_ftn1" name="_ftnref1" title="" target="_blank" fr-original-style="" style="color: rgb(9, 9, 9); text-decoration: none; background-color: transparent; outline: none; cursor: pointer; transition: color 0.3s ease 0s; touch-action: manipulation; user-select: auto; box-sizing: border-box;"></a>[1] İbrahim Er and others[GK], B. No: 2019/33281, 26/1/2023, the decision can be accessed via https://kararlarbilgibankasi.anayasa.gov.tr/BB/2019/33281

In other words, after the Constitutional Court decides on a violation, public administrations should harmonize their practices and other courts' decisions with the decision of the Constitutional Court. 

retrial ile ilgili hikayeler