THE RIGHT TO INDIVIDUAL APLLICATION TO THE SUPREME COURTadmin
One of the most important innovations brought by the Law Amending Some Articles of the Republic of Turkey’s Constitution No. 5982 of 7/5/2010 is the right of individuals to apply to the Supreme Court. The Individual Application is regulated in article 148 of our Constitution. Accordingly; “Everyone can apply to the Supreme Court for alleged violation of any of the fundamental rights and freedoms guaranteed in the Constitution by the public power of anyone under the European Convention on Human Rights. In order to apply, ordinary legal remedies must be exhausted. In individual application, no examination can be made on matters to be observed by law. The procedures and principles regarding the individual application are regulated by law. ”
The purpose of the individual application is to prevent violations of the fundamental rights and freedoms guaranteed in the Constitution; to eliminate a violation that occurred and its consequences.
Individual application to the Supreme Court is an exceptional remedy. For this reason, individuals should have brought allegations of infringement before first instance courts and courts of appeal.
More concrete and detailed regulations on individual application are included in the 45-51 articles of the Law on the Establishment and Trial Procedures of the Supreme Court No. 6216 of 30.3.2011. In addition, detailed regulations on the functioning of the individual application were made in the statute of the Supreme Court published in the Official Gazette No. 28351 dated 12/7/2012.
In order to apply individually, any of the fundamental rights and freedoms guaranteed in the Constitution must be violated by the public power of anyone under the European Convention on Human Rights, a current and personal right must be directly affected by this violation. In order to eliminate the violation and its consequences, all administrative and judicial remedies stipulated in the law must be exhausted by the applicant.
Individual applications must be made using the Individual Application Form or with a petition containing all the information required in the application form and in the same format.
Documents listed in Article 59 of the Supreme Court Rules of Procedure or certified copies must be attached to the application form. Also, the documents submitted to the application form should be numbered according to the date order, and each document should be linked to the compass in the form of descriptive titles. Individual applications are subject to fees. For this reason, the individual application fee specified in the tariff under the Law of Fees must be deposited in the relevant places. It is possible for the applicant to request legal aid if he/she does not have the power to pay the application fee.
The Supreme Court will be able to examine individual applications against final actions and decisions that have been finalized after 23 September 2012. Therefore, it is not possible for the decisions finalized before 23 September 2012 to be examined by the Supreme Court.
If mandatory administrative and judicial remedies are prescribed by law, individual application should be made within 30 days from the date on which all of these routes are exhausted. If the remedy is not foreseen, individual application must be made within 30 days from the date the violation was learned. Applications exceeding this period are rejected.
When the individual application is made, the Supreme Court does not examine the material facts that form the basis of the judicial decision or whether the rule to be applied has been determined correctly or the discretion of the judge or judges who made the decision. The review is limited only to the accuracy of the applicant’s constitutional violation of fundamental rights. If the Supreme Court finds that a constitutional fundamental right has been violated by public action, it will first decide whether a retrial is required to remedy this violation. If the retrial is a legal requirement, the Supreme Court sends the file to the relevant court in order to eliminate the violation and its consequences. The court concerned re-trials to eliminate the violation and its consequences. In the event that there is no legal benefit in retrialing, an appropriate compensation may be awarded in favor of the applicant.