Abandonment of Judicial Review by Turkish Constitutional Court: Fall of Individual Complaint Procedure?

Serkan Yolcu

Bilkent University

Constitutional courts frequently publish crucial decisions around the world. They are not supposed to renounce the power of judicial review though. Even if it sounds paradoxical, this happened recently in Turkey. On October 10, 2023, the Turkish Constitutional Court (TCC/Court) rendered a remarkable judgment in which it ruled that it would not continue to hear certain claims concerning violations of the right to a trial within a reasonable time because the other branches of government were not following its previous jurisprudence. Technically speaking, the Court dismissed the application. Yet, the decision’s reasoning and the dissenting opinions tell a legal drama that might be instructive to comparativists.

TCC has been using the power to decide on individual complaints for more than ten years, which enables individuals to lodge an application to the Court claiming that public authorities have infringed their fundamental rights. Since the Court began to hear individual complaints in September 2012, the number of applications has rapidly increased. As of today, the case law of the Court on individual applications covers more than 12,000 judgments. Moreover, among all the applications received by the Court, around 47,000 out of 129,000 pending applications concern allegations of a violation of the right to a trial within a reasonable time. The decision rendered on October 10, therefore, can be considered inevitable.

In this short comment, I will explain the actual meaning of the judgment rendered on October 10 in two parts. The first part will explore the reasoning of the majority. The second part will turn to the dissenting opinions to reveal what the majority of the Court did not say. I then suggest that this decision can be insightful for comparative constitutional law.

Opinion of the Majority

The subject matter of the decision is whether the right to a fair trial within a reasonable time (protected by Article 36 of the Constitution) in civil law disputes was breached and the actual result of the judgment is to strike the application from the Court’s agenda. In short, the Court ruled that it is not going to deal with the same claims until a proper approach is adopted by relevant state organs. The Court reasoned that, although it had ruled that certain principles should be followed to prevent ‘structural problems’ that caused an ongoing violation of the right to a fair trial within a reasonable time in a pilot decision, nothing has changed. The Court, therefore, dismissed the application because there was no justified reason for continuing to review the application according to the Internal Regulations of the Court (Art 80).

The Court’s main reason for reaching this conclusion is that the reaction of the legislature to its aforementioned pilot judgment was neither sufficient nor efficient. Yet, it is the duty of all state organs to prevent similar rights violations. The Court recalls that it ruled that the right to a trial within a reasonable time was violated in more than 55,000 applications which cover not only civil disputes but also criminal and administrative cases. Thus, examination of applications regarding the allegation that a trial was not conducted within a reasonable time is no longer of any importance for the protection of fundamental rights. Furthermore, the Court complains that it merely functions as a compensation court when considering individual applications concerning the right to a trial in a reasonable time. These decisions, the Court adds, only determine the amount of compensation but no longer contribute to the protection of fundamental rights. Lastly, TCC emphasizes that, if it were to continue to examine the same claims concerning the violation of the right to a trial within a reasonable time, there will be a separate reasonable time problem in terms of the process spent before itself.

Opinions of the Minority

Despite the majority’s strong arguments, the ruling was not unanimous. Three judges wrote two dissenting opinions. One of them reasoned that because the Court produced a significant amount of case law on the right to a fair trial within a reasonable time, it is not possible to claim it has accomplished its duty. Essentially, the structural problems that led to the violation have led to the prolongation of trials, and the ‘delay of justice’ in Turkey has existed for years. It is clear that this structural problem will continue unless the measures required by the discourse of “justice delayed is justice denied” are taken. In this respect, the dissent reasons, the Court must continue to examine allegations that the right to a trial within a reasonable time has been violated until other regulations are made to solve the structural problems.

The other two dissenters disagreed in a joint opinion. They argued that both the constitution and relevant law define the duties and powers of the Court and these provisions establish a right for individuals and a duty for the Court. Considering that the right to apply and the duty to examine this application are clearly defined and that there is no reason to departure from the established case law, this case, like others, should be heard to decide whether the right to a fair trial within a reasonable time has been violated. Lastly, the fact that the legislature did not act in accordance with the previous findings of the Court does not justify dismissing the application. Given that this lack of legislative regulation is not the fault of the applicant, the dissent reasons, refusing the review of an application cannot be justified.

The two dissents are different in terms of legal persuasiveness. The first sounds vague at least. Solving the problem of ‘delayed justice’ is a respectable wish but it does not explain the reason for rejecting the majority’s abstention from carrying judicial review. The second, by contrast, seems more reasonable, particularly given that neither the inaction of the legislature nor the ineffectiveness of the existing case law is the fault of the applicant. Moreover, this opinion indirectly illuminates Article 36 (2) of the Constitution which stipulates that “No court can refrain from hearing a case within its jurisdiction.” Thus, the second dissent implies that the Court (at least the majority of it) seems to abstain from a duty the constitution assigns.

A Brief Evaluation

TCC has been referring to “structural problems” of rights violations in its individual complaint case law. It has communicated some of its judgments to the legislature to eliminate these structural problems. Starting in 2019, TCC has been making both direct and indirect calls to the legislature to take necessary actions to prevent similar future violations of rights. Most of these calls, however, have not yet resonated in the law-making agenda of the parliament.

The phrase structural problems emphasized by TCC resonates with a doctrine applied by the Constitutional Court of Colombia (CCC). Indeed, CCC has used the doctrine of ‘state of unconstitutional affairs’ in cases of widespread violations of fundamental rights. Through this doctrine, rather than only ordering an individualized remedy to a particular plaintiff, CCC issues “structural injunctions” to the bureaucracy to initiate change in public policy. These structural injunctions include complex orders of specific measures to be taken within a particular time limit or retaining jurisdiction to follow the implementation of its ruling. One of the most famous practices of this judicial strategy is available in the CCC’s social rights jurisprudence such as the landmark decision of T-025 concerning internal forced displacement. Although similar approaches are also observed in the jurisdictions of the Supreme Court of India and the Brazilian Supreme Court, structural injunctions in constitutional adjudication are still rare in comparative practice. In this respect, TCC’s approach is peculiar given that it neither preserved an individual remedy nor initiated a structural one. Instead, the Court, so to say, referred the issue to the government to find a solution.

Concluding Remarks

The decision rendered by TCC on 10 October 2023, in general, can be considered as the result of losing the sustainability of the individual complaint procedure. In particular, individual complaint procedure seems to have lost its capacity to effectively protect the right to a trial within a reasonable time. This explains why TCC has partly abandoned its judicial review authority of its own motion. This happened, however, not because of the Court’s incapacity or incompetence but as a result of a complex network of constitutional politics. Such that, just after this comment was completed a shocking high court ruling caused an unprecedented crisis concerning the Court. A chamber of the Court of Cassation (Yargıtay) ruled that it will not follow a ruling of TCC and accused TCC of committing a crime. As a result, the legitimacy of the individual complaint procedure became a matter of major dispute in the public square. The effect of this crisis is beyond the scope of this comment. Yet, it proves my argument that there is a complex network of constitutional politics behind the individual complaint’s unfortunate failure in Turkey. What comes next is a worrying mystery for now.

Serkan Yolcu is an Associate Professor of Constitutional Law at Faculty of Law, Bilkent University, Ankara, Turkey.

Suggested Citation: Serkan Yolcu, ‘Abandonment of Judicial Review by Turkish Constitutional Court: Fall of Individual Complaint Procedure?’ IACL-AIDC Blog (28 November 2023) Abandonment of Judicial Review by Turkish Constitutional Court: Fall of Individual Complaint Procedure? — IACL-IADC Blog (blog-iacl-aidc.org)