What Is An Individual Application To The Constitutional Court?
An individual application to the Constitutional Court is a judicial remedy available in cases where any of the fundamental rights and freedoms defined in the Constitution and also included in the European Convention on Human Rights (ECHR) and its additional protocols have been violated.
For an individual application to be made to the Constitutional Court (AYM), the right or freedom alleged to have been violated must be protected both under the Constitution of the Republic of Turkey and under the European Convention on Human Rights and its additional protocols. For example, the prohibition of ill-treatment and torture is protected both in the Constitution and in the ECHR, and individual applications may be made in cases of violation of this right. However, although the right to social security is protected in the Constitution, it is not a right protected under the ECHR, and therefore individual applications cannot be made to the Constitutional Court in cases of violation of this right.
Detention is the measure most frequently subject to individual applications due to violations of the right to liberty and security of person. Individual application is a judicial remedy that can be used for any grievance resulting from a violation of a right protected under numerous areas of law, such as criminal law, administrative law, civil law, etc.
Legislation on Individual Applications to the Constitutional Court
The right to file an individual application to the Constitutional Court was introduced into the legal system by Law No. 5982 dated 12/09/2010, which amended Articles 148 and 149 of the 1982 Constitution.
The right to individual application is regulated in Articles 45 to 51 of Law No. 6216 on the Procedures of the Constitutional Court. Article 76 of the same law states that the regulation on the right to individual application will enter into force on September 23, 2012.
The provisions regarding the procedure for individual applications to the Constitutional Court are regulated in detail in Articles 59 to 84 of the Internal Regulations of the Constitutional Court.
Who Can Apply to the Constitutional Court (AYM)?
Anyone whose rights guaranteed by the Constitution, the European Convention on Human Rights, and the additional protocols to which Turkey is a party have been violated may file an individual application with the Constitutional Court (AYM).
Private legal entities (associations, foundations, companies, etc.) may only file applications alleging that the rights of the legal entity have been violated.
Public legal entities cannot file individual applications to the Constitutional Court (AYM).
The Path to Filing an Individual Application to the Constitutional Court and the Condition of Exhausting Ordinary Judicial Remedies
Individuals whose rights have been violated may file an individual application to the Constitutional Court after exhausting all administrative and judicial remedies. Individual applications cannot be made against legislative acts, regulatory administrative acts, Constitutional Court decisions, and acts excluded from judicial review by the Constitution.
The condition of exhaustion of judicial remedies means the exhaustion of ordinary legal remedies. Ordinary legal remedies are deemed to have been exhausted from the date of notification or service of final local court decisions. If there are multiple judicial remedies available for the same case, the Constitutional Court requires that the most effective ordinary legal remedy be exhausted.
What is the deadline for filing an individual application with the Constitutional Court?
The deadline for filing an individual application with the Constitutional Court is 30 days from the date of exhaustion of the last ordinary legal remedy. After all ordinary judicial remedies have been exhausted, the individual application form and accompanying documents must be submitted to the Constitutional Court within 30 days. To avoid missing the application deadline, it is sufficient to submit the application form to the court clerk or foreign missions within 30 days for submission to the Constitutional Court. The application period to the Constitutional Court is calculated based on the date the application form and attachments are submitted.
The 30-day individual application period begins on the date the applicant learns that all judicial avenues have been exhausted or the decision is served to the applicant. In cases of force majeure or serious illness, the applicant must file the application within 15 days from the date the excuse ceases to exist. In criminal cases, the individual application period is often missed because the Court of Cassation’s approval decisions are not notified to the parties concerned. In one of its decisions (Yavuz ÖZGENÇ Decision dated 29/9/2016 and application number 2014/5006), the Constitutional Court stated that For individuals who have not been notified of the Supreme Court’s decision, they must learn of it within three months from the date the Supreme Court’s decision is received by the court clerk’s office, and the 30-day period for filing an individual application with the Constitutional Court begins at the end of three months.
How to File an Individual Application with the Constitutional Court?
To file an individual application with the Constitutional Court (AYM), the Constitutional Court Individual Application Form must be completed in accordance with the procedure. This form should be completed as follows:
First, personal information should be written correctly and clearly in the relevant fields.
Then, the incident that is the subject of the individual application and the entire judicial process must be summarized in chronological order.
Documents and decisions to be attached to the application form must be numbered.
A photocopy of the applicant’s identity card must be attached to the application. Applications without a copy of the identity card are rejected solely for this reason (the authenticity of the photocopied documents and decisions must be verified).
The application form must specify which rights enshrined in the Constitution and the European Convention on Human Rights have been violated due to the incident and judicial process that are the subject of the individual application.
The Constitutional Court (AYM) determines which article of the Constitution or which article of the Convention has been violated in relation to the incident in question, if the incident and the resulting harm are well explained, regardless of the constitutional article or convention article cited by the applicant.
In the conclusion section of the individual application form, a retrial should be requested to determine the alleged violations and remedy the damage caused by the violation, or compensation should be requested for the material and moral damage suffered, and the amount of compensation should be specified. In individual applications to the Constitutional Court, unlike applications to the European Court of Human Rights, the amount of compensation must be specified in the application form at the outset. Otherwise, even if the Court finds a violation, it will not award compensation.
The individual application form and accompanying documents may be submitted in person to the Constitutional Court, sent through the duty courts at any courthouse, or submitted through foreign representations. The same methods should be used for correspondence after the application form and accompanying documents have been sent. Applications sent by any other means or by post will not be accepted.
Prisoners may apply through the prison administration after filling out the forms they request from the prison administration. In one of its decisions (Ramazan VURAL Application No. 2013/1148 dated 7/7/2015), the Constitutional Court accepted requests for legal aid in individual applications made in prisons, assuming that the applicant’s financial situation was insufficient due to their imprisonment.
How much does it cost to file an individual application with the Constitutional Court?
Individual applications to the Constitutional Court are subject to a fee. The amount of the fee changes every year in accordance with the Fees Act. For 2016, the individual application fee is 239.50 TL. A document confirming the payment of the application fee and, if the application is made through a lawyer, a copy of the power of attorney (with the power of attorney fee and bar association stamp affixed) must be submitted.