Individual ApplicationTo the Turkısh Constıtutıonal Court
Basım Tarihi
2015-02
Sayfa Sayısı
395
Kapak Türü
Karton
Kağıt Türü
1. Hamur
Basım Yeri
Ankara
Stok Kodu
9789757427629
Baskı
1
Dr. Hüseyin EKİNCİ, Dr. Musa SAĞLAM
- TABLE OF CONTENTS
- I. GENERAL REMARKS -1
- 1. What is individual application? -. 1
- 2. What are the basic features of individual application?1
- 3. In which countries is the remedy of individual application
- applicable? -2
- 4. Why is an individual application procedure needed in Turkey? -2
- 5. What are the legal regulations concerning individual
- application?-4
- II. SCOPE OF THE CONSTITUTIONAL COURT’S
- JURISDICTION 5
- 6. Which fundamental rights can be subject of an individual
- application? . 5
- 7. What is the scope of right to remedies within the context of
- individual applications?6
- 8. When can alleged violation of equality principle be claimed within
- the context of individual application?7
- 9. When can violation of Article 40 -protection of fundamental rights
- and freedoms- of the Constitution be claimed within the context of
- individual application?. 8
- 10. What is the scope of the right to life according to the Constitutional
- Court?-8
- 11. How does the Constitutional Court define the scope of freedom
- from torture and ill treatment?-9
- 12. Which aspects of liberty and security of the person have been
- clarified by the Constitutional Court?-. 10
- 13. What is the approach of the Constitutional Court as regards the
- right to property?-13
- 14. Against which acts of public authorities can an individual
- application be filed? 14
- 15. Can an individual application be filed against general regulatory
- procedures? -16
- 16. Which acts other than general regulatory acts are excluded from
- individual application procedure? 17
- 17. Who is eligible to file an individual application? . 18
- 18. Are the citizens of foreign countries eligible for this right? -. 19
- 19. Are legal persons eligible for individual application? -. 19
- 20. Are public legal entities eligible for individual application? 20
- 21. What are the specific cases concerning the Court’s competence
- ratione personae? 21
- 22. What is the Court’s competence ratione loci? -22
- III. UNITS THAT EXAMINE INDIVIDUAL APPLICATIONS TO
- THE CONSTITUTIONAL COURT 22
- 23. What is the composition of judicial and administrative units of
- the Constitutional Court that deal with individual application? -22
- 24. What is the composition of the Sections? -23
- 25. What is the composition of Commissions? 24
- 26. Which organs of the Constitutional Court examine individual
- applications? 24
- 27. Does the Plenary Assembly have any function related to
- individual applications? -25
- 28. How do rapporteurs function in individual applications? 25
- 29. What is the composition of the Individual Application Office and
- what are its procedures? -26
- 30. What is the composition of the Commission Rapporteurs Office
- and what are its procedures? -27
- 31. What is the composition of the Section Rapporteurs Office and
- what are its procedures? -27
- 32. What is the composition of the Research and Case-law Unit and
- what are its procedures? -28
- IV. FORMAL REQUIREMENTS OF INDIVIDUAL APPLICATION. 28
- 33. What are the formal requirements of individual application?-28
- 34. How can you access and fill out the application form? -29
- 35. Is it obligatory to use the application form to file an application?. 29
- 36. How to fill in the application form? -. 30
- 37. What are the consequences of an incorrect legal qualification of
- subject incident of the alleged violation in application form?31
- 38. Is examination by the Court restricted to the issues specified in the
- application form and particularly those specified upon request?-32
- 39. Is it obligatory to hire a lawyer in lodging an application or in
- subsequent stages of application? Who can represent applicant in
- court? . 33
- 40. Which documents should be annexed to the application form?. 33
- 41. What should the applicant do if documents which should be
- annexed to the application form are not accessible? . 34
- 42. What should the applicant do in case of any subsequent changes
- in the conditions related to an application?-35
- 43. Is anonymity possible in application?-35
- 44. Is an application subject to a fee? What is the fee amount? -. 36
- 45. What are the requirements of legal aid? Should related fees and
- costs be paid in case of inadmissibility or non-violation decision?. 37
- 46. Which procedures are followed for the application in case of
- incomplete application form or its annexes? -38
- V. SUBSTANTIVE REQUIREMENTS FOR INDIVIDUAL
- APPLICATION39
- 47. What are the substantive requirements for individual
- application?39
- 48. What does direct impact on an actual and personal right mean?. 39
- 49. What does exhaustion of administrative and judicial remedies
- mean? 42
- 50. What are the features of remedies to be exhausted?-43
- 51. How does the Court rule when administrative and judicial
- remedies are not referred to at all? 45
- 52. What are the judicial authorities competent and authorized for
- the exhaustion of remedies? 47
- 53. If there is more than one remedy, should they all be exhausted?. 48
- 54. What does individual exhaustion of administrative and judicial
- remedies mean? -. 50
- 55. How does the Court rule in applications lodged during an
- ongoing trial? -51
- 56. Is the remedy of revision of decision an obligatory remedy to be
- exhausted? . 52
- 57. Can an individual application be filed against interim decisions
- of courts? -. 53
- 58. Does the Constitutional Court examine an individual application
- when the applicant refers to precautionary administrative and
- judicial remedies but waives them without waiting for their
- conclusion? 54
- 59. Are there any exceptions in the rule of exhaustion of remedies?
- If so, what are the exceptions? -. 55
- 60. When violation of a fundamental right is claimed in individual
- application, is it obligatory to file the same claim before other judicial
- authorities as well? -60
- 61. Can individual application be filed against a public act which
- becomes a final decision due to applicant’s failure in exhausting
- remedies? -62
- 62. Can individuals file an application against decisions for retrial?. 63
- 63. What does insignificance of application mean (constitutionally
- and with regard to damage suffered)? 64
- VI. TIME LIMITS FOR INDIVIDUAL APPLICATION66
- 64. What is the last day for the finalization of acts of public authorities
- that can be subject to individual application to the Constitutional
- Court? 66
- 65. When an applicant resorts to an ineffective or extraordinary legal
- remedy against a finalized act of public authority, does it have an
- impact on the finalization? . 70
- 66. Can an individual application be lodged against an act where
- finalized decision is notified after 23/9/2012?. 71
- 67. Is there any time restriction for individual application? When do
- these restrictions start? 72
- 68. What are the principles concerning definition of starting and
- ending dates for time limit for application? -73
- 69. Is it obligatory to deliver the notification to the applicant even
- when the applicant is represented by a lawyer in the initiation of
- application time? 76
- 70. What is the starting date for the 30-day time limit for applications
- 56. Is the remedy of revision of decision an obligatory remedy to be
- exhausted? . 52
- 57. Can an individual application be filed against interim decisions
- of courts? -. 53
- 58. Does the Constitutional Court examine an individual application
- when the applicant refers to precautionary administrative and
- judicial remedies but waives them without waiting for their
- conclusion? 54
- 59. Are there any exceptions in the rule of exhaustion of remedies?
- If so, what are the exceptions? -. 55
- 60. When violation of a fundamental right is claimed in individual
- application, is it obligatory to file the same claim before other judicial
- authorities as well? -60
- 61. Can individual application be filed against a public act which
- becomes a final decision due to applicant’s failure in exhausting
- remedies? -62
- 62. Can individuals file an application against decisions for retrial?. 63
- 63. What does insignificance of application mean (constitutionally
- and with regard to damage suffered)? 64
- VI. TIME LIMITS FOR INDIVIDUAL APPLICATION66
- 64. What is the last day for the finalization of acts of public authorities
- that can be subject to individual application to the Constitutional
- Court? 66
- 65. When an applicant resorts to an ineffective or extraordinary legal
- remedy against a finalized act of public authority, does it have an
- impact on the finalization? . 70
- 66. Can an individual application be lodged against an act where
- finalized decision is notified after 23/9/2012?. 71
- 67. Is there any time restriction for individual application? When do
- these restrictions start? 72
- 68. What are the principles concerning definition of starting and
- ending dates for time limit for application? -73
- 69. Is it obligatory to deliver the notification to the applicant even
- when the applicant is represented by a lawyer in the initiation of
- application time? 76
- 70. What is the starting date for the 30-day time limit for applications
- if the applicant did not resort to remedy of revision of decision in
- civil, administrative and military trials? -76
- 71. Do remedies of: objection against the Chief Public Prosecutor of
- Court of Cassation; retrial; or writ has an impact on 30-day time
- limit for application? -78
- 72. How does the Court decide if the remedies have not been
- exhausted yet when the application is filed and the remedies are
- exhausted when the application is pending in the Court? -81
- 73. Is it possible to compensate when the applicant fails to lodge an
- application due to impediments within time limits prescribed?82
- VII. LODGING INDIVIDUAL APPLICATIONS -84
- 74. How can an individual application be lodged? Is it obligatory to
- lodge an application personally to the Constitutional Court?84
- 75. How can detainees and convicts in prisons lodge their
- applications? 84
- 76. Which procedures are followed in court(s) or representation(s)
- abroad receiving application forms? 85
- 77. Is it possible to lodge individual application by mail? -85
- 78. What are the most common shortcomings in lodging applications?. 86
- 79. Is there any additional advance or cost payment other than
- application fee in applications deposited through other courts or
- representations abroad? -87
- 80. How will the applicants correspond with the Constitutional
- Court? 88
- 81. Is the applicant informed on subsequent stages of application?. 88
- 82. When should applicants expect their applications to be
- concluded? . 89
- VIII. EXAMINATION OF INDIVIDUAL APPLICATIONS 89
- 83. What is the scope of the examination by the Constitutional Court
- within the context of individual application? 89
- 84. Is individual application to the Constitutional Court a new
- remedy of objection or appeal? -90
- 85. What are the procedures related to registration and administrative
- review of individual applications? 93
- 86. What does administrative rejection of application mean? Can it
- be appealed? . 93
- 87. How are individual application files distributed to Sections and
- Commissions? . 94
- 88. In which order are individual applications examined? -95
- 89. Who has the burden of proof in the examination of individual
- applications? 95
- 90. Is the Constitutional Court entitled to collect information and
- documents ex officio and to hear related persons? 96
- 91. Is the Constitutional Court entitled to hear witnesses, assign
- experts, fact-finding or to hold hearings? 97
- 92. Will information and documents received by the Constitutional
- Court during the examination of individual applications be shared
- with the applicant? -97
- 93. Does lodging an individual application cease execution of a
- public act? -98
- 94. What are the requirements for the Constitutional Court to
- indicate interim measures in individual applications? 98
- 95. Can the Constitutional Court resort to friendly settlement similar
- to applications before the ECtHR? . 100
- 96. Is it possible to waive from individual application? What would
- be the consequences? 101
- IX. JUDGMENTS OF THE CONSTITUTIONAL COURT IN
- INDIVIDUAL APPLICATIONS 102
- 97. Which judgments can be rendered for individual applications?102
- 98. Can an application considered as admissible by Commissions be
- found inadmissible later? . 103
- 99. In which cases can admissibility and merits be examined
- together? -103
- 100. What is the difference between admissibility decision and
- decision on merits? 104
- 101. What are the most common reasons for inadmissibility? -. 104
- 102. Can a decision of strike-out be given for individual
- applications?-106
- 103. Which decisions can be given by the Constitutional Court on
- the merits of a case and what are the features of such decisions? . 107
- 104. What are the consequences of violation decisions given by
- Sections?-107
- 105. Can the Constitutional Court rule for compensation when a
- violation is established consequent to examination of application?. 108
- 106. Who is liable for trial costs in an individual application? How
- does the Court decide on attorney fees and trial costs?-. 108
- 107. To whom are the decisions notified?-109
- 108. Which judgments should be published?-110
- 109. Is it possible to appeal against Court decisions? Do the decisions
- have a binding effect? Can an identical issue be repeatedly submitted
- in individual application?-110
- 110. How can one access individual application judgments of the
- Constitutional Court?111
- 111. How are the judgments executed (implemented)?111
- 112. Is there any sanction in case of the misuse of right of individual
- application? Are the applicants of inadmissible applications subject
- to any other sanction?111
- X. THE RELATION BETWEEN THE EUROPEAN COURT OF
- HUMAN RIGHTS AND THE CONSTITUTIONAL COURT
- WITHIN THE CONTEXT OF INDIVIDUAL APPLICATION-. 112
- 113. Does individual application to the Constitutional Court impede
- application to the European Court of Human Rights?112
- 114. Is individual application to the Constitutional Court recognized
- as a domestic remedy that should be exhausted before lodging an
- individual application to the European Court of Human Rights?-113
- 115. What would be the consequences if the applicant lodges an
- application both to the Constitutional Court and the European
- Court of Human Rights on the same matter?114
- 116. Does individual application make proceedings longer, does it
- lead to delays in the finalization of judicial decisions?115
- 117. Does the Constitutional Court take the Constitution or the
- European Convention on Human Rights as a basis in examining
- individual applications? 116
- APPANDICES
- 1. The Constitution of the Republic of Turkey-. 121
- 2. Code on Establishment and Rules of Procedures of the
- Constitutional Court 247
- 3. Internal Regulation of the Constitutional Court -311
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