The Odyssey of the Turkish Constitutional Court into the world of individual application.

• Author: Yildirim, Engin
• Position: COMMENTARY - Essay

ABSTRACT Since the introduction of the individual application as a constitutional remedy, the Turkish Constitutional Court, which traditionally dealt with constitutional review of laws, constitutional amendments and political party dissolution cases, has embarked on the road towards transforming itself into a more effective rights adjudication body. It should be, however, kept in mind that this remedy is not, in and of itself, a magic panacea that will address Turkey's ingrained human rights problems.

In the context of a discussion on whether Turkish Studies is a theory-consuming or a theory producing field of study, Murat Somer has succinctly articulated antagonistic features of the Turkish polity, existing side by side often in a way that breeds unabated political and societal strife: "Turkey is middle eastern and western, a strong and a weak state, democratic with a long history of democratization and authoritarian with a long history of oppressing dissent, all at the same time." (1) It is against this background that the Turkish Constitutional Court (TCC) has been undertaking constitutional review since 1962. As one of the oldest constitutional courts in the non-western world, its jurisprudence has reflected the ups and downs of the country's turbulent political history. Long seen as an uncompromising defender of the status quo, the TCC has recently begun to adopt a more rights-based adjudication. This shift has largely been due to the introduction of the individual application system, which has compelled the Court to reflect the case law of the European Court of Human Rights (ECtHR). Unlike abstract and concrete norm reviews where the Court deals with issues of more abstract nature, the individual application procedure calls for the Court to pinpoint alleged violations of constitutional rights by public power and provide the victim with effective remedies.

This paper aims to explore the function of the individual application procedure in protecting and expanding fundamental rights and challenges posed by the operation of the system. To this end, we first offer a brief sketch of the TCC's role and place in the Turkish polity and its judicial attitude prior to the individual application procedure. We, then, move on to discuss the procedure and its effect on the Court's judicial behavior

The Turkish Constitutional Court before the Individual Application

When the Democrat Party rule came to an abrupt end following the 1960 military coup, one of the first subjects that the coup's academic and political supporters brought to the fore was the making of a new constitution which would restrain legislative majorities through check and balance mechanisms. With this goal in mind, the 1961 constitution established a constitutional court as an independent supreme judicial body to review the constitutionality of laws. The structure and competencies of the new court were a combination of those of Italian and German constitutional courts. It had a membership of 15 judges drawn mostly from the ranks of the judiciary. The mandate of the TCC covered abstract and concrete reviews, dissolution and financial audit of political parties as well as acting as a supreme criminal court for the trial of certain high ranking public officials. Although it was initially hesitant about using its competencies, the Court soon became a powerful judicial and political actor to be reckoned with. During the 1961 constitution period (1961-1982), the TCC rendered many controversial decisions ranging from the banning of socialist and Islamist political parties to extending the 1973 general amnesty to cover those convicted of communist activities who had been excluded from its scope by the Parliament. Not surprisingly, it frequently came under attack by the majority of main political actors either for going beyond its powers (liberal-conservative criticism) or not going far enough to implement the 1961 constitution's "progressive" provisions particularly in relation to planned economy and social rights (social democrat-socialist criticism). In spite of these denunciations, the Court was adamant in its strict defense of official state ideology and rigid interpretation of the constitution.

Since it was mostly the right-wing political parties which governed the country in the 1961 period, it was mainly left-wing opposition parties and associations that resorted to the Court for abstract review of promulgated laws. Many rulings of the Court were heavily criticized by these ruling actors who accused it of acting like an opposition party. More often than not, they and their supporters denounced the justices of the Court as "politicians in robes" and creating "a juristocratic government." (2) It is true that the TCC was generally seen as an activist court especially in abstract review cases. (3) Compared to concrete review cases, abstract review lawsuits involve highly political aspects since they necessarily entail a direct challenge to the government. As a sign of its activism, the TCC annulled 65 percent of all abstract review cases between 1962 and 1982. (4)

The establishment of the TCC was often explained by reference to the hegemonic preservation thesis, which argues that constitutional courts come into existence to safeguard the interests of dominant political elites. (5) As a counter-majoritarian supreme judicial body, the TCC's behavior fitted well to the hegemonic preservation argument because it did not generally hesitate to protect hegemonic interests in the face of challenges against their power. In fact, it was designed not to restrict the powers of the state but to protect the state against unruly majorities deemed dangerous to the republican order.

The Court's activist behavior continued under the 1982 constitution, which preserved the structure and powers of the Court with minor changes. In this period, the TCC was particularly active in banning political parties with ethnic and religious leanings. In addition, in the 1980s and early 90s, it took a very active stance against economic policies of center-right governments to privatize state-owned industries and assets. The TCC was also famous (or...