Kemal Başlar & Hikmet Tülen, "The Constitutional Court: 1962-2003 (An Introduction to the Composition and Functions of the Constitutional Court of the Republic of Turkey)", www.anayasa.gen.tr/baslar2.htm (31.5.2004).

After the multi-party system was ushered in Turkey in 1945, the first democratic

election was held in 1950, which culminated in the victory of the then the opposition

Democratic Party. The developments occurred during the ruling of Democratic Party and

the tension between the ruling and the opposition parties resulted in the necessity to

review the acts of the Parliament. The need for the presence of constitutional justice was

first put forward by intellectuals and academics and later supported by the opposition

parties.

The founders of the 1961

Constitution agreed on the necessity

of a constitutional court to review the

constitutionality of laws. Despite the

debates over the structure,

compo s i t i o n , fu nc t ion and

organization of the Court, methods of

selecting its judges and over the

review of constitutionality, there was

widespread conviction on the need

for constitutional justice. Some,

examining the Turkish political

system, tend to interpret the

establishment of the Constitutional

Court as the most radical characteristic of the 1961 Constitution. The Turkish

Constitutional Court began to carry out its activities upon the promulgation of Law no 44,

dated 22 April 1962.

After the Coup d’Etat of the Turkish Armed Forces in 1980, a new constitution was

adopted and approved by the Turkish people by way of a referendum in 1982. The system

of constitutional review established by the 1961 Constitution was preserved in the 1982

constitution with a few changes. Hence, the Constitution vested in significant powers to

the judiciary with regard to the exercise of sovereignty. The power to resolve the claim of

unconstitutionality by ordinary courts was annulled, and the new Constitution proclaimed

that the Constitutional Court be the sole body in respect of constitutional review.

In the Constitution, the Constitutional Court is placed as the first judicial power

among “The Fundamental Organs of the Republic”. The Constitution lays down in detail

the composition, duties, working method of the Constitutional Court and other issues

concerning the constitutional review. Any amendment with regard to the structure and

duties of the Constitutional Court requires an amendment in the Constitution.

Today the supremacy of human rights has been of crucial importance in Turkey

since the adoption of the 1961 Constitution. It is pointed out in the “Preamble” of the

rights” is one of the fundamental characteristics of the Republic of Turkey. This article

stipulates the fundamental characteristics of the Republic of Turkey as “democratic,

secular and social state governed by the rule of law…”. In this context, the establishment

of the Constitutional Court on 25 April 1962, is a historic milestone, which has brought

judicial guarantee mechanism for fundamental rights and freedoms and other

fundamental characteristics of the Republic. The Constitutional Court is looked upon as a

guarantor of the fundamentals of the Republic thanks to its important decisions based on

universal rules of law and human rights.

Article 146 of the Constitution sets out the number, appointment procedures and

qualifications of the members of the Constitutional Court. According to this;

i. The Constitutional Court shall be composed of eleven regular and four

substitute members.

ii. The President of the Republic shall appoint two regular and

two substitute members from the High Court of Appeals, two

regular and one substitute member from the Council of State,

and one member each from the Military High Court of

Appeals, the High Military Administrative Court and the Audit

Court, three candidates being nominated for each vacant

office by the Plenary Assemblies of each court from among

their respective presidents and members, by an absolute

majority of the total number of members; the President of

the Republic shall also appoint one member from a list of

three candidates nominated by the Higher Education Council

from among members of the teaching staff of institutions of

higher education who are not members of the Council, and

three members and one substitute member from among senior administrative

officers and lawyers.

iii. To qualify for appointments as regular or substitute members of the

Constitutional Court, members of the teaching staff of institutions of higher

education, senior administrative officers and lawyers shall be over forty and to

have completed their higher education, or to have served at least fifteen years

as a member of the teaching staff of institutions of higher education or to have

actually worked at least fifteen years in public service or to have practiced as a

lawyer for at least fifteen years.

Article 3 of the Law on the Establishment and Judgment Procedures of the

Constitutional Court (Law no 2949, for short) spells out additional qualifications for the

candidates to be nominated by the Higher Education Council and for the members to be

appointed directly by the President of the Republic. According to this, candidates to be

selected amongst the members of the higher education institutions shall be a lecturer in

the field of “law, economics or political sciences” and candidates to be selected amongst

the senior administrative staff shall practice as a “chairman or member of the Higher

Education Council, or rector or dean of a higher education institution, or undersecretary,

deputy undersecretary, general, admiral, ambassador, regional governor or governor”.

The persons to be selected as a Justice of the Constitutional Court shall comply

with the qualifications stated above and shall neither be convicted of a criminal act, nor

be subject to prosecution due to such crimes or shall not be in any condition preventing

them to work as a judge. Three regular members and one substitute member to be

elected directly by the President of the Republic shall be elected by the President of the

Republic without nomination from among senior administrative officers stated above and

lawyers who have practiced at least for fifteen years.

Majority of the members of the Constitutional Court, that is seven out of eleven

regular members and three out of four substitute members, are appointed among the

presidents and members of the high courts. However, contrary to the 1961 Constitution,

the 1982 Constitution lays down that it is the President of the Republic who chooses one

of each three candidates of nominated by the high courts. In other words, in the 1961

Constitution, the high courts used to choose the said members on their own.

The main function of the Constitutional Court is no doubt to review the

constitutionality of laws and the other norms stated in the Constitution. However, in

addition to its main function, the Constitution orders some other duties to the

Constitutional Court irrelevant to the review of norms. Functions and duties of the

Constitutional Court are as follows:

i. to decide on the annulment actions brought before the court with the

allegation of unconstitutionality of laws, decrees having the force of law and

Rules of Procedure of Turkish Grand National Assembly (TGNA) or provisions

thereof.

ii. to decide on the contention of unconstitutionality of laws and decrees having

the force of law asserted by the general courts.

iii. The President of the Republic, members of the Council of Ministers, presidents

and members of the Constitutional Court, of the High Court of Appeals, of the

Council of State, of the Military High Court of Appeals, of the High Military

Administrative Court of Appeals, their Chief Public Prosecutors, Deputy Public

Prosecutors of the Republic, and the presidents and members of the Supreme

Council of Judges and Public Prosecutors, and of the Audit Court shall be tried

for offences relating to their functions by the Constitutional Court in its capacity

as the Supreme Court.

iv. to decide on the applications related to the dissolution of political parties.

v. to audit the political parties under financial terms.

vi. to decide on the applications by a member of the parliament for annulment of

the decisions of the Parliament to waive the parliamentary immunity of a

member or disqualify from membership or to waive the immunity of a minister

who is not a member of the Parliament on the grounds that it is unconstitutional

or contrary to the provisions of the Rules of Procedure of TGNA.

vii. to appoint one of its members to the office of president of the Court of

Jurisdictional Disputes.

The function of settling the disputes among the State organs has not been vested

in the Constitutional Court, when compared with the Constitutional Courts in other

countries. However, in some countries where the settlement of disputes arising between

the legislative and executive organs is left to the Constitutional Court, the Turkish

Constitutional Court is not entitled with such power and duty. The Turkish Constitution

does not grant any power to the Constitutional Court to express opinion or to conduct a

preventive review with regard to the constitutionality of laws in the process of their

preparation.

Finally, the Turkish Constitution does not include the procedure of “constitutional

complaint”, just as in some European states, to be lodged under certain circumstances by

individuals whose fundamental rights hav been violated by means of legislative acts.

The main function of the Constitutional Court is to review the constitutionality of

As obvious, the review made by the Constitutional Court comprises both the

examination of laws and the other norms subject to review in terms of due procedure,

and the review of the constitutionality of these norms in respect of their rules. In this

context, while laws, decrees having the force of law and Rules of Procedure of the TGNA

are subject to constitutional review in respect of both form and substance, the laws

related to constitutional amendments are subject to review only in respect of form; the

Constitutional Court is not allowed to review these laws in respect of substance. Where

the laws amending the Constitution are contrary as to form, three-fifth of votes is

compulsory for the annulment of that law by the Constitutional Court.

The verification of laws as to form is restricted to consideration of whether the

requisite majority is obtained in the last ballot; the verification of constitutional

amendments is restricted to consideration of whether the requisite majorities are

obtained for the proposal and in the ballot, and whether the prohibition on debates under

urgent procedure is complied with.

the norms that are subject to constitutional review are as follows.

The main function of the Constitutional Court is to review the constitutionality of

laws. The “law” mentioned herein is used not in respect of substance, but in form. In

other words, laws, which do not create legal norms like budget laws and laws related to

the execution of final death penalties, are in the scope of the review of the Constitutional

Court. The review power of the Constitutional Court comprises all laws save the Reform

Laws (of the Republic) regulated in Article 174 of the Constitution.

As a rule, all decrees having the force of law are subject to the review of the

Constitutional Court in respect of constitutionality, however, the decrees having the force

of law issued during a state of emergency, martial law or in time of war in accordance

with Article 148 of the Constitution are exempted from constitutional review. That the

decrees having the force of law issued during a state of emergency and martial law could

not be reviewed in respect of constitutionality is regarded as objectionable in the

doctrine in terms of the principle of rule of law.

No action shall be brought before the Constitutional Court alleging

unconstitutionality as to the form or substance of decrees having the force of law issued

during a state of emergency, martial law or in times of war. However, the Constitutional

Court checks whether the decree having the force of law is issued during a state of

emergency in terms of the framework regulated in the Constitution. Following this

examination, the Court decides whether that decree having the force of law will be

subject to constitutional review.

Furthermore, decrees having the force of law issued in a state of emergency are

submitted to the approval of Turkish Grand National Assembly on the date of its

publication in the Official Gazette. As decrees having the force of law become a code of

law following the approval of TGNA, they could be reviewed by the Constitutional Court.

Despite that the Rule of Procedure of Turkish Grand National Assembly is not a

law, but a parliamentary decision in respect of its legal frame, it is subject to

constitutional review by the Constitutional Court owing to the its peculiar political

importance in terms of the participation of the party in power and the opposition parties

in the works of TGNA under equal terms.

The scope of judicial review by the Constitutional Court on the constitutional

amendments is restricted to review of constitutionality only in respect of form.

Constitutional Court examines whether a constitutional amendment is adopted in

accordance with the requisite majorities obtained for the proposal and in the ballot, and

whether the prohibition on debates under urgent procedure is complied with. In this

context, the proposal should be submitted by at least one third of the members of TGNA

(which amounts to 184 out of 550), and accepted by a three-fifth majority of votes (which

amounts to 330). Verification of the constitutional amendment in respect of form requires

the compliance with the prohibition on debates under urgent procedure.

Despite that the Constitution does not accept as a rule the transactions held by

Turkish Grand National Assembly in the form of decision, two types of decision are

exceptionally subject to the review of the Constitutional Court. The first one is the Rules

of Procedure of Turkish Grand National Assembly and the other is the decision with regard

to the annulment of the parliamentary immunity or disqualification from membership.

International agreements are not subject to the review of the Constitutional Court.

Article 90 of the Constitution regulates this rule: “International agreements duly put into

effect have the force of law. No appeal to the Constitutional Court can be made with

regard to these agreements, on the ground that they are unconstitutional.” The norms

and transactions, which are not subject to the review of the Constitutional Court, are

stated above.

Enforcement of such a review on a legal norm subject to constitutional review

depends on whether such a norm is effective or not. As mentioned in a decision of the

Constitutional Court, “when a law or a decree having the force of law is annulled and

becomes no more effective, it could not constitute the subject of an annulment case;

therefore no decision can be taken on a case which doesn’t include a subject, because the

norm should be effective in respect of an annulment case. If the rule, subject of a case, is

no more effective, then the constitutional review will not have a subject, either.”

Where a transaction is to be determined whether it is subject to constitutional

review, the Constitutional Court is not bound to the qualification of the transaction made

by the authority concerned. The Constitutional Court itself considers the qualification of

the transaction. Otherwise, a transaction being subject to constitutional review would be

excluded from such a review by considering it is as if a transaction not being subject to

review.

Under the Constitution, access to the Constitutional Court can be made in two

ways:

The action for annulment is abstracted from any particular case; for that reason in

Turkish law this method is called as “abstract control of norms”. The constitutional

validity of laws, decrees having the force of law and Rules of Procedure of Turkish Grand

National Assembly or the provisions thereof may be challenged directly before the

Constitutional Court through an annulment action by persons and organs empowered by

the Constitution.

The President of the Republic, parliamentary groups of the party in power and of

the main opposition party and a minimum of one-fifth of the total number of members of

the Turkish Grand National Assembly have the right to apply for annulment action to the

Constitutional Court. If more than one political party is in power, the party having the

greatest number of members exercises the right of the parties in power to apply for

annulment action.

The right to apply for annulment directly to the Constitutional Court lapses sixty

days after publication in the Official Gazette of the contested law, the decree having the

force of law, or the Rules of Procedure of TGNA.

Being different from the abstract control of norms, contention of

unconstitutionality, can be initiated, without a time limit, by general, administrative and

military courts and any party involved in a case being under scrutiny before a court.

the decree having the force of law to be applied is unconstitutional, or if it is convinced

of the seriousness of a claim of unconstitutionality submitted by one of the parties, it

postpones the consideration of the case until the Constitutional Court decides on the

issue. The Constitutional Court shall decide on the matter within five months of receiving

the contention. If no decision is reached within this period, the trial court concludes the

case under existing legal provisions. No allegation of unconstitutionality shall be made

with regard to the same legal provision until ten years elapse after publication in the

Official Gazette of the decision of the Constitutional Court dismissing the application on

its merits.

According to Article 69/3 of the Constitution, the dissolution of political parties

shall be decided finally by the Constitutional Court after filing of a suit by the Office of

the Chief Public Prosecutor of the Republic. This regulation provides a security for the

political parties.

Application for the dissolution of a political party is made to the Constitutional

Court with the assertion of Chief Public Prosecutor of the Republic. The Constitutional

Court examines the case on the basis of verbal hearing minutes including the defense

made by the defendant party and assertions made by the Chief Public Prosecutor of the

Republic; and on the basis of the report prepared in respect of merits by the appointed

rapporteur judge.

The prohibitions that could lead to the dissolution of political parties are restricted

with the constitutional amendments made in 1995 and 2001. The prohibitions concerned

are as follows:

Article 68 of the Constitution.

the Constitution.

institutions and from real persons and legal entities not belonging to Turkish

nationality.

Besides these, it is regulated in the Law on Political Parties that the a political

party may be dissolved if it fails to comply with the decision of warning taken by the

Constitutional Court upon the assertion of the office of Chief Public Prosecutor of the

Republic. Terms and methods of the dissolution of political parties are regulated in the

Law on Political Parties. Without prejudice to the provisions of the Criminal Procedural

Law, dissolution of political parties is decided on the basis of file.

Instead of dissolving them permanently, the Constitutional Court may rule the

concerned party to be deprived of State aid wholly or in part with respect to intensity of

the actions brought before the court.

Members of a political party including its founders who are found by the

Constitutional Court to be the persons causing the party be dissolved permanently with

their statements and actions shall not be a founder, member, director or controller of any

other party for five years as of the publication of the Court’s decision in the Official

Gazette. Possessions of a party dissolved upon the decision of the Constitutional Court

are transferred to the Treasury.

Rules regarding the political parties, the indispensable elements of democratic

political life, are regulated under a special law owing to their importance. The

Constitutional Court is specifically authorized to carry out the financial control of political

parties.

That the political parties use their income and expenditures for their aims in

accordance with the laws and record these under generally accepted accountancy is

necessary in respect of the protection and continuance of a democratic society.

The Constitutional Court may require assistance from the Court of Audits with

regard to the financial control of parties. At the end of the control concerned, the

Constitutional Court may decide that income and expenditure of that political party is in

compliance with the legislation or decide on the transfer of the income obtained unduly

to the Treasury and when necessary, apply for prosecution of the responsible persons.

Publication of such decisions given by the Constitutional Court in the Official Gazette

allows the public opinion to be informed of financial structures of political parties. There

isn’t any other mechanism to publicize the financial structures of political parties.

According to Article 149 of the Constitution, the Constitutional Court convenes

with its president and ten regular members. According to Article 41 of the Law no 2949

“the Constitutional Court convenes with its president and ten regular members. The

President replaces the office of the regular members who have excuses for not

participating in the conventions with substitute members according to seniority.”

The Constitutional Court takes decisions by absolute majority. Decisions of

annulment of the constitutional amendments and dissolution of political parties shall be

taken by three-fifths majority. Decisions with regard to the applications for annulment on

the ground of defect in form are taken with priority. The Constitutional Court examines

cases on the basis of files, except where it acts as the Supreme Court. However, when it

deems necessary, it may call on those concerned and those having knowledge relevant to

the case, to present oral explanations. In lawsuits on whether to permanently dissolve a

political party, it hears the defense of the chairman of the party whose dissolution is in

process or of a proxy appointed by the chairman, after the Chief Public Prosecutor of the

Republic. In this case, the cases related to the dissolution of political parties, which are

considered according to Criminal Procedural Law arises as a peculiar sort of case where

the parties and those concerned with the case are heard and examinations are made on

the basis of files and then a decision is given.

The Constitutional Court examines cases on the basis of files, except where it acts

as the Supreme Court and hearings of the Court are secret. Decisions are taken by

absolute majority. Voting begins from the least senior member. Seniority is acquired

according to the date of appointment to membership of the Constitutional Court. The

older members are deemed to be senior among the members appointed at the same date,

and seniority among the members at the same age is determined by drawing lots.

Legislative, executive and judicial organs, and administrative offices of the state,

all real persons and legal entities are liable to submit the information and documents

required by the Constitutional Court within the duly period. The petitions which are not in

the scope of the functions and duties of the Constitutional Court are refused. Petitioner is

notified of the decision of refusal.

An annulment case is deemed to be brought before the Court when the petition,

including the application for annulment on the ground of unconstitutionality of laws,

decrees having the force of law and Rules of Procedure of TGNA, is transferred to the

clerical office by the General Secretariat of the Constitutional Court, and the Secretary

General submits a document to the applicants in respect that the case concerned is

brought before the Court.

Petitions and its annexes related to the annulment case are examined within five

days as of the record date by the rapporteur judges appointed by the President.

Rapporteur judges submit their report to the office of President completing their

examinations considering;

a) whether the petitions are in the scope of the duties of the Constitutional

Court;

b) whether the case is brought by empowered persons or groups within the duly

period;

c) where the case is brought by at least one fifth of the full members of TGNA,

whether the petition includes the name and family names of the members,

their election regions and signatures, whether each signed document is

controlled per names and approved by Chairman of TGNA or by the person

appointed by the Chairman with signature and seal; and whether the petition

concerned is submitted to the General Secretariat;

d) where the case is brought by the groups of political parties, whether the

petition is attached approved copies of the decisions taken by the general

board, and approved copies of documents clarifying that the persons who

signed the petition are chairman or member of that group;

e) where the case is brought with the contention of unconstitutionality, whether

the applicants comply with the obligation to explain which provisions they

content are contrary to which article or articles of the Constitution and the

grounds of unconstitutionality.

The Constitutional Court completes its works on the preliminary analysis report

and takes decision within at most five days (totally ten days at most as of the date of

record). Where the Constitutional Court finds under the methods stated in paragraphs a

and b above that the case is not in the scope of its duties and powers or the case is not

brought by competent persons or in duly period, it rejects the case before considering it

on merits.

Where the Court finds defects in the petition in respect of paragraphs c, d and e, it

takes a decision towards the completion of those defects. In case the defects are not

completed, the case concerned is deemed not to be brought before the Court. When the

Court finds at the end of the preliminary analysis that subject of case is in the scope of its

duties and powers, it takes a decision towards the examination on merits.

Contention of unconstitutionality is the review carried out by the Constitutional

Court when a court which is trying a case, finds that the law or the decree having the

force of law to be applied is unconstitutional and it is convinced of the seriousness of a

claim of unconstitutionality submitted by one of the parties, or if the law or provision

thereof is found unconstitutional ex officio.

applied in a given case is unconstitutional or if it is convinced of the seriousness of a claim

of unconstitutionality submitted by one of the parties, it applies to the Presidency of the

Constitutional Court with case file and authenticated copies of the documents deemed

necessary by that court.

General Secretariat of the Constitutional Court registers the case and informs the

court a quo of the current situation. The appointed rapporteur-judge submits a

preliminary report to the Presidency within five days as of the date of registration in

respect of whether formalities are fulfilled. This report indicates whether the court a quo

is dealing with a “real” case, the challenged provision or the decree having the force of

law is applicable, the grounds of unconstitutionality is serious; and whether that court is

entitled to apply to the Constitutional Court.

The Constitutional Court performs a preliminary screening within five days (totally

ten days at most as of the date of registration) as from the submission of the report

prepared by the rapporteur-judge. Where the Constitutional Court, in its analysis, finds

defects in the file, it decides to return the application to the court a quo. If it finds that

the court is not authorized to apply, it decides on the strike-out of the case.

The courts are not demanded to complete the defects found in the documents.

They are therefore obliged to renew their applications for the constitutional review by

completing the formalities indicated by the Constitutional Court.

If the Constitutional Court does not find, at the end of its preliminary review, any

defect in the case documents and decides that the court a quo is authorized, it decides to

examine the case on merits. Rapporteur-judge begins to prepare his/her report on the

merits of the case.

Case files are allocated to rapporteur-judges according to the order in the main

registration form. This order may be changed by the President when deemed necessary in

respect of the number of the cases being dealt by the rapporteur-judges and according to

the peculiarities of the case.

Rapporteur-judges submit the results of their preliminary report accompanied with

a section stating their own views. These reports are prepared within a month as of the

decision towards examination on merits; or, in urgent circumstances, within the period

determined by the President. The rapporteur-judges who could not prepare their report

within the determined period inform the Presidency, in written, of the reasons and

possible extension for the completion of the report. When necessary, time for preparation

of the report may be extended by the Presidency.

Rapporteur-judges attend the hearing with regard to the case they deal and make

the necessary explanations if required.

The Presidency is authorized to appoint the date of hearings and the agenda.

Copies of the reports prepared and submitted to the Presidency by rapporteur-judges and

copies of the agenda are distributed to each member at least ten days before the date of

hearing. The Court may shorten this period by showing reasons. Where there are urgent

cases or cases with drawbacks, without depending on the period concerned, the President

may distribute the agenda, which shows the date of hearing. However, the Court may

decide on the change of the date of hearing on the grounds that it does not agree with

the Presidency and its opinions. Judges of the Court may request the files from

Secretary General and examine, when they deem necessary.

Members of the Constitutional Court attend and sit at the hearings in accordance

with their seniority. The hearing is presided over by the President of the Court who

arranges the sequence of assertion of views. The members who would like to talk about

procedure are given priority. The hearing commences when the report is completely read.

If one of the members asserts that s/he couldn’t fully examine the case, then hearing of

that case is left to another day.

The members express and assert their views without any restriction. However, the

President may prevent the assertion of views out of the content of the hearing. The Court

settles the dispute arising from the content of the views or speeches. One member may

take permission for three times to explain and extend his/her views. If a Judge wants to

take the floor more than three times, then the President votes this demand. If the Court

accepts, then that member takes permission to talk.

No suggestion could be made with regard to the sufficiency of the hearings and

this issue could not be regulated under a decision. If no more permission is taken, the

President announces that hearing is over and passes to voting. Voting starts from the least

senior member, no member can use abstention vote. The members who use counter votes

in respect of duties and procedure are obliged to participate in the hearing and voting on

merits.

The Constitutional Court takes resolutions by absolute majority. Resolutions of

annulment of constitutional amendments and dissolution in the cases of the political

parties are taken by three-fifths majority. Resolution taken at the end of the meetings

and hearings are immediately written as a brief resolution and signed by the President

and members who attend the meeting before the meeting is over. A brief resolution is

written as a minutes and constitutes the judgment of the decision to be written.

Dissenting votes are stated in the minutes.

Resolutions of the Constitutional Court are written with their reasonings.

President, Deputy President or a member to be appointed by the President is responsible

for writing the decision. However, draft resolution is prepared by rapporteur-judges and

then given to the commissioned member within one month.

Detailed draft resolution is examined by the members. In case of a dispute, the

President determines the final form of the decision. Decisions are signed by the president

and members who have taken part in the examination and judgment processes.

Dissenting members explain the grounds for their opinions by a decision prepared by other

dissenting judges or separately. Resolutions which do not include dissenting opinions are

published as such.

According to the constitution, there are two sorts of quorum for the decisions

taken by the Constitutional Court.

The Constitutional Court takes decisions by absolute majority except for the

decisions on annulment of Constitutional amendments and dissolution of political parties.

Absolute majority is the first whole number exceeding the half of the meeting number of

the Court, which convenes with one president and ten members. In circumstances

requiring absolute majority, the Constitutional Court takes decisions by the votes of 6

members used in the same direction.

It is required for the decisions of annulment of Constitutional amendments and

dissolution of political parties. Three-fifth qualified majority is the three-fifth of the

meeting quorum of the Constitutional Court, namely six. As the first whole number

following this number is seven, at least seven members should vote in the same direction

for the Constitutional Court to take a decision on the annulment of Constitutional

amendments and dissolution of political parties.

According to Article 53/1 of the Law no 2949, “Decisions of the Constitutional

Court are written with their grounds. Decisions are signed by signed by the President and

members who attend the meeting. Dissenting members explain their grounds for

opposition in the decision. Decisions are announced in this form.”

The courts with many judges are required to discuss the case from different

viewpoints and the viewpoint submitted by the majority should constitute the decision.

Majority is “the dominant number of the votes summed for a person or a thought.”

Counter vote is the one less in number. The minority voters in the decisions of the

Constitutional Court express their views by “Dissenting Decision”.

Inclusion of counter views in the decision ensures the observance of debates in the

decision-taking process. Court’s decision is complemented by the dissenting votes

reflecting the minority views.

Fundamental norm in the review of constitutionality is the Constitution itself.

However, it is not so simple. In some countries, constitutions determine criterion norms

rather than the constitution itself; and in some other countries judicial decisions rather

than the provisions of the constitution constitute such norms. Therefore, whether

restricted with the Constitution itself or comprise the other principles and rules added by

the Constitution or judicial decisions, the whole of the criterion norms used in the review

of constitutionality constitutes the norm groups named as “block of

constitutionality” (bloc de constitutionnalité).

According to the Constitution in Turkey, except for the text of the Constitution

(including the preamble according to article 176 of the Constitution), examination of the

block of constitutionality may be conducted from three viewpoints: International laws,

general principles of the law, principles and reforms of Atatürk.

Contrary to most contemporary constitutions, the Turkish Constitution does not

include a general rule related to the relation of domestic and international law. The sole

provision with regard to this relation is the last paragraph of Article 90 stipulating that

international agreements duly put into effect carry “the force of law”. Therefore, the

position of international agreements in the hierarchy of rules of law is controversial in

doctrine; and dominant viewpoint according to positive Turkish law is that these

agreements do not prevail over the laws especially the Constitution, but are of equal

standing. As a result, where a provision of an international agreement, in which Turkey is

a party, is in conflict with the laws of the Land; this conflict shall be settled in the

International law cannot be regarded as a general and independent criterion norm

in the review of constitutionality in respect of positive Turkish law in force. However, the

Constitution makes reference to international law in four articles (Articles 15, 16, 42 and

92). In these articles the supremacy of international law are affirmed only in cases

enshrined in the said articles.

The inclusion of international law in the norms of constitutionality is controversial

in doctrine, particularly the agreements on human rights to which Turkey is a party.

Article 2 of the Constitution proclaims that Turkey is a human rights respecting country.

Thus, human rights conventions are used as a supportive norm. Accordingly, there is an

increasing tendency in the decisions of the Constitutional Court towards international

human rights norms.

The Turkish Constitutional Court has applied the general principles of law as a

subsidiary norm in its decisions ever since its establishment. Moreover, the Court has

sometimes articulated views denoting precedence of those principles over the provisions

of the Constitution. However, the Court, in its decisions, has not utilized general

principles of law as independent criteria. Instead, it interprets general principles of law as

inalienable elements of the concept of “the rule of law”.

“The Principles and reforms of Atatürk” are mentioned in the preamble and Article

42, 58, 81 and 134 of the Constitution; and the Constitutional Court has practiced these

principles and reforms as a criterion norm, and has sometimes used expressions towards

the precedence of these principles over the provisions of the Constitution.

According to Article 153/1 of the Constitution, “The decisions of the Constitutional

Court are final. Decisions of annulment cannot be made public without a written

statement of reasons.” Finality of decisions conveys that no legal allegation (appeal,

correction of decision) can be lodged against the decisions. Finality of decisions also holds

the meaning of “final provision”. “Namely, the dispute settled by that decision cannot be

dealt as another case subject by the same parties on the same grounds.”

“Decisions of the Constitutional Court shall be published immediately in the

Official Gazette, and shall be binding on the legislative, executive, and judicial organs, on

the administrative authorities, and on persons and corporate bodies.” (Article 153/6). The

norm annulled by the decision of the Constitutional Court shall not be in effect.

Therefore, such a norm can not be applied any more.

According to Article 11 of the Constitution, the provisions of the Constitution are

fundamental legal rules binding upon legislative, executive and judicial organs, and

administrative authorities and other institutions and individuals. The laws can not be

unconstitutional. In Turkey, only the Constitutional Court is allowed to interpret the

Constitution officially which binds every person, and therefore the decisions of the

Constitutional Court are binding upon legislative, executive and judicial organs, and

administrative authorities and other institutions and individuals. Neither the legislative

organ nor the executive organ has the power to amend or delay the decisions of the

Constitutional Court.

Constitution does not empower the Constitutional Court to take decisions “limited with

the case and only binding on the parties”.

According to the Constitution, “In the course of annulling the whole, or a

provision, of laws or decrees having the force of law, the Constitutional Court shall not

act as a law-maker and pass judgment leading to new implementation.” (Article 153/2).

Function of the Constitutional Court is to eliminate a situation contrary to law by the

annulment of a norm that is unconstitutional. Decision of annulment does not mean that

the Constitutional Court acts as a law-maker. For instance, where certain provisions of a

law are annulled by the Constitutional Court on the ground of unconstitutionality and

therefore incurred a new situation not in compliance with power of the legislative organ,

it would be wrong to interpret that the Constitutional Court acts as a law-maker. If the

Constitutional Court finds certain provisions of a law unconstitutional, it is the power and

duty of the Constitutional Court to annul only those provisions. The situation incurred is

not within the functions of the Constitutional Court, but the legislative organ.

According to Constitution (Article 153/3), “Laws, decrees having the force of law,

or the Rules of Procedure of the Turkish Grand National Assembly or provisions thereof,

shall cease to have effect from the date of publication in the Official Gazette of the

annulment decision. Where necessary, the Constitutional Court may also decide on the

date on which the annulment decision shall come into effect. That date shall not be more

than one year from the date of publication of the decision in the Official Gazette.” “In

the event of the postponement of the date on which an annulment decision is to come

into effect, the Turkish Grand National Assembly shall debate and decide with priority on

the draft bill or law proposal, designed to fill the legal void arising from the annulment

decision” (Article 153/4).

Undoubtedly, the Constitutional Court is not obliged under any term or condition

to postpone the date on which the annulment decision shall come into effect. It is at the

discretion of the Court whether to postpone the annulment decision and if it does, to fix a

date for such a postponement not exceeding one year. Annulment decisions taken by the

Constitutional Court shall not be announced without grounds.

The Constitution stipulates that annulment decisions are not applied retroactively.

However, it may be reasonable to think that annulment of an unconstitutional provision is

deemed to have never been made. Hence, the annulment decision may be applied

retroactively so as to completely eliminate that law.

Such a rule means that the annulled law shall be valid until the annulment decision

of the Constitutional Court comes into effect, namely until that law ceases to have effect

by the resolution of the Constitutional Court. Such a regulative system is totally different

from the American system in that the judge does not annul a norm, which he reviews in

terms of constitutionality but only announces that an unconstitutional law is void.

The Constitution does not regulate the effect of the annulled decisions on the

decisions of definite condemnation taken on the grounds of that annulled law. As a result

of the principle of non-retroactivity of the annulment decisions, execution of

condemnations which became final prior to the annulment decision would be unjust and

contrary to the provisions of criminal law. The same should apply for the necessity of the

application of a law, which requires a lighter punishment as a result of the annulment

decision.

The Constitution does not contain any provision granting the Court to suspend the

operation of a statue or law. However, in a decision numbered 1993/40-42, the Court

displayed a judicial activism and empowered itself to decide for the laws or other norm

subject to review to suspend its effects until final decision is reached. As to the grounds

for such a decision, the Court viewed that such a power was a stage within the decisiontaking

process and “a means existing in the essence of the effectiveness of judicial

review”; and where such a power was not given individuals and the public order would be

lack of Constitutional protection; and as the Constitution and law neither stipulated any

provision on such a power nor included a prohibitive provision, therefore this legal void

would be fulfilled by the case-laws of the Court. Following this decision, the

Constitutional Court reviews the applications of cease of laws to have effect and where

deems necessary, it decides on the norms alleged to be unconstitutional to cease to have

effect.

Having changed from year to year, workload of the Constitutional Court has

significantly increased for the last two years. Average of the cases brought before the

court between 1981 and 2001 has been 62. The number of applications in 1999 was (62),

97 in 2000 and (508) in 2001. The number of applications made in 2002 was 180. Such an

increase is mainly due to the applications by criminal courts for the annulment of some

rules existing in the Law on the Release on condition, Postponement of cases and

punishments incurred as a result of crimes committed until April 23 1999; and the

constitutional amendments made in October 2001 by the Parliamentary contributed to the

workload of the Court.

In order to lessen this workload, there have been some considerations as to the

enlargement of the organizational structure of the Court, however, no significant

development has been achieved with regard to this subject.

In the preparation of case files, several people help Judges. These personnel can

be classified as follows

Rapporteur-judges are appointed to the Constitutional Court to assist in judicial

works. Rapporteur judges are appointed upon their will, approval of the President of the

Constitutional Court and by the authority of their institution among the judges and

prosecutors described in Law no 2802 on Judges and Prosecutors, inspectors or head

inspector or specialized inspectors from the Court of Audits having successfully worked in

this field at least for five years. Associate professors, deputy associate professors and

lecturers who completed their doctorate education in the field of law, economics and

political sciences may be appointed as well under same terms and conditions.

Provisions of their own profession are applied to the personal status of rapporteur

judges; and the period in which they work as a rapporteur judge is included in their own

professional period. Promotion of rapporteur judges depends on the written approval of

the President of the Constitutional Court. Transactions with regard to their permission

rights and health are conducted by the Presidency of the Constitutional Court and their

own institution is informed for the qualification records. In addition to their regular

works, the rapporteur judges fulfill the duties ordered by the President and conduct

scientific researches.

A rapporteur judge appointed by the President presides the office of Secretary

General in addition to his/her main duties. The following directorates within the court,

function in connection with the Secretary General. In this context, the President upon the

suggestion of the Secretary General appoints the personnel for general administration,

technical and health services; and the personnel in assistant services are appointed by the

Secretary General.

The directorates functioning in connection with the General Secretariat of the

Constitutional Court are as follows: Decisions Department, Secretary’s Office, Personnel

and Training Department, Secretariat Department, Financial Works Department,

Personnel Department, Informatics Department, Publications Department, Library. In

these departments, there are slightly over one hundred public servants working full time.

Kemal Başlar & Hikmet Tülen, "The Constitutional Court: 1962-2003 (An Introduction to the Composition and Functions of the Constitutional Court of the Republic of Turkey)", www.anayasa.gen.tr/baslar1.htm (31.5.2004).