Abstract
The article titled “Fundamental Rights and Freedoms in Turkey and the Turkish Constitutional Court” illustrates the influence of the European human rights standards in Turkey. First, the article examines the key features of the fundamental rights and freedoms regime under the 1982 Constitution. Second, it discusses the Turkish Constitutional Court’s approach on fundamental rights and freedoms within the framework of the decisions on some of the specific issues that have proven controversial in Turkey, i.e. “gender equality”, “freedoms of political parties”, “social rights” and “emergency-law decrees”. This article reveals that the European human rights documents and the rulings of the European Court of Human Rights are indispensable elements for Turkish legislation and the Constitutional Court, even though it seems that sometimes they do not fully embrace the principles. Accordingly, the Turkish case suggests the “Convergence of Fundamental Rights in Europe”.
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Notes
- 1.
However, we note that, as we will discuss the new version of Article 14 that prohibits abuse of fundamental rights and freedoms adopted in 2001 diminished this difference between two constitutions.
- 2.
Article 1. The Turkish State is a Republic.
Article 2. The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble.
Article 3. The Turkish state, with its territory and nation, is an indivisible entity. Its language is Turkish.
Its flag, the form of which is prescribed by the relevant law, is composed of a white crescent and star on a red background.
Its national anthem is the “Independence March”.
Its capital is Ankara.
- 3.
Article 13 as amended in 2001, “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be in conflict with the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular Republic and the principle of proportionality.”
- 4.
Decisions of the TCC: E.1997/27, K.1998/43, 30 June 1998, Official Gazette 15 January 2000-23934; E.1999/47, K.1999/46, 28 December 1999, Official Gazette 10 March 2000-23989.
- 5.
The Provisional Article 15 of the Constitution exempted laws adopted between 12 September 1980 and the date of the formation of the Bureau of the Turkish Grand National Assembly which was to convene following the first general elections from the constitutional review. Accordingly, Law on Political Parties was the scope of this prohibition. The constitutional provision was finally lifted in 2010.
- 6.
The Constitution also refers to this principle in Article 28.4 (freedom of press), Article 58 (protection of the youth), Article 81 and 103 (oath text that deputies and the president of the republic must take to assume office) and Article 130.4 (institutions of higher education).
- 7.
However, we should note that the Constitution required three fifth majority of the TCC judges for dissolution until 2010. The decision was not made by the majority. Accordingly, it is not clear that the Court has changed its precedent in this case.
- 8.
A good example concerning the TCC’s ongoing hesitation about observing European standards on political parties is its recent ruling about the retrial of party dissolution cases. The Criminal Procedure Act of 2004 (Art 311) provides a right to retrial for criminal cases which are later found to be in violation of the Convention by the ECtHR. Nevertheless, the TCC, disregarded to apply this provision for dissolved parties and refused the application of the United Communist Party of Turkey for retrial in 2008 due to the lacking of a new material fact (E.2003/6, K.2008/4, 8 January 2008 (Official Gazette, 22 March 2008-26824). We should note that the TCC concluded both the case of HAKPAR and the application of the TBKP for retrial within the same month. This indicates that the Court has not fully adhered to the European standards. The TGNA was prodded to enact a provision parallel to the Criminal Procedure Act in Law of the Organisation and Trial Procedures of the Constitutional Court of 2011 to eliminate the restrictive ruling of the Court.
- 9.
However, the Court’s ruling is controversial in AKP case but we will not discuss it since the case is based on the violation of principle of secularism.
- 10.
Decision of the ECtHR: Case of HADEP and Demir, Date of Judgement 14 December 2010 (Application no. 28003/03), at para 80. For a brief comparison between the DTP case of the TCC and the Batasuna case of the Spanish Supreme Court see Selin Esen, “How Influential Are the Standards of the European Court of Human Rights on the Turkish Constitutional System in Banning Political Parties?”, Ankara Law Review, v.9 n.2, 2012, pp.151–152.
- 11.
Under Article 2, the 1961 Constitution characterized the State as “social state” for the first time in Turkey. The Constitution included a broad list of social rights and drew up the requirements of the social state. According to the Article 10.2 of this Constitution, “The state shall remove all political, economic and social obstacles that restrict the fundamental rights and freedoms of the individual in such a way as to be irreconcilable with the principles embodied with the rule of law, individual well-being and social justice. The state prepares the conditions required for the development of the individual’s material and spiritual entity”. We should note that, the 1961 Constitution has a stronger emphasis on the duties of the State than Article 5 of the 1982 Constitution.
- 12.
See Article 46 (the 1961 Constitution): Employees and employers are entitled to establish trade unions and federations of trade unions without having to obtain prior permission, to enroll in them as members, and to resign from such membership freely.
For those engaged in public services other than physical labor similar rights shall be regulate by law.
The by-laws, the management, and the operation of trade unions and federations thereof shall not conflict with democratic principles.
Article 51 (the original text of the 1982 Constitution): Workers and employers have the right to form labour unions and employers’ associations and higher organisations, without prior permission, in order to safeguard and develop their economic and social right and the interests of their members in their labour relations. In order to form unions and their higher bodies, it shall suffice to submit the information and documents prescribed by law to the competent authority designated by law. If this information and documentation is not in conformity with law, the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or the higher body.
Everyone shall be free to become a member of or withdraw from membership in a union.
No one shall be compelled to become a member, remain a member, or withdraw from membership of a union.
Workers and employers cannot hold concurrent membership in more than one labour union or employers’ association.
Employment in a given workplace shall not be made conditional on being, or not being, a member of a labour union.
To become an executive in a labour union or in higher organisations of them it is a prerequisite condition that the workers should have held the status of a labourer for at least ten years.
The status, the administration, and the functioning of the labour unions and their higher bodies should not be inconsistent with the characteristics of the Republic as defined in the Constitution, or with democratic principles.
Article 51 (as amended in 2010): Employees and employers have the right to form labour unions, employers’ associations and higher organizations, without obtaining permission, and they also possess the right to become a member of a union and to freely withdraw from membership, in order to safeguard and develop their economic and social rights and the interests of their members in their labour relations. No one shall be forced to become a member of a union or to withdraw from membership.
The right to form a union shall be solely restricted by law for purposes of safeguarding national security and public order and preventing crime and protecting public health and public morals and the rights and freedoms of others.
The formalities, conditions and procedures to be applied in exercising the right to form union shall be prescribed by law.
The scope, exceptions and limits of the rights of civil servants who do not have a worker status are prescribed by law in line with the characteristics of their job.
The regulations, administration and functioning of labour unions and their higher bodies should not be inconsistent with the fundamental characteristics of the Republic and principles of democracy.
Article 52 (original text of the 1982 Constitution): Labour unions, in addition to being under the general restrictions set forth in Article 13, also shall not pursue a political cause, engage in political activity, receive support from political parties or give support to them, and shall not act jointly for these purposes with associations, public Professional organisations, and foundations. The fact of engaging in labour union activities in a workplace shall not justify failure to perform one’s work.
The administrative and financial supervision of labour unions by the State, and their revenues and expenditures, and the method of payment of membership dues to the labour union, shall be regulated by law.
Labour unions shall not use their revenues beyond the scope of their professional aims, and shall keep all their funds in State banks. Artical 52 was repealed in 1995.
- 13.
Article 49- Everyone has the right and duty to work.
The State shall take the necessary measures to raise the standard of living of workers, and to protect workers and the unemployed in order to improve the general conditions of labour, to promote labour, to create suitable economic conditions for prevention of unemployment and to secure labour peace.
- 14.
The 1982 Constitution stipulates two types of state of exception, i.e. state of emergency and martial law. According to the Constitution, states of exception are declared by the Council of Ministers, presided over by the President of the Republic, and are immediately submitted to Parliament for approval.
- 15.
According to Article 2 of the Constitution “The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble.”
- 16.
Article 121.2 “The financial, material and labour obligations which are to be imposed on citizens in the event of the declaration of state of emergency under Article 119 and, applicable according to the nature of each kind of state of emergency, the procedure as to how fundamental rights and freedoms shall be restricted or suspended in line with the principles of Article 15, how and by what means the measures necessitated by the situation shall be taken, what sort of powers shall be conferred on public servants, what kind of changes shall be made in the status of officials, and the procedure governing emergency rule, shall be regulated by the Law on State of Emergency.”
Article 122.5 “In the event of martial law, mobilization and state of war, the provisions to be applied and conduct of affairs, relations with the administration, the manner in which freedoms are to be restricted or suspended and the obligations to be imposed on citizens in a state of war or in the event of emergence of a situation necessitating war, shall be regulated by law.”
- 17.
Decision of the TCC: E. 2003/28, K.2003/42, 22 May 2003 (Official Gazette, 16 March 2004–25404).
- 18.
Article 125.6 “The law may restrict the issuing of an order on suspension of execution of an administrative act in cases of state of emergency, martial law, mobilization and state of war, or on grounds of national security, public order and public health.
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Öden, M., Esen, S. (2016). Fundamental Rights and Freedoms in Turkey and the Turkish Constitutional Court. In: Arnold, R. (eds) The Convergence of the Fundamental Rights Protection in Europe. Ius Gentium: Comparative Perspectives on Law and Justice, vol 52. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-7465-9_8
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