54th Anniversary of the Constitutional Court of the Republic of Turkey

“The Execution of Judgments of the European Court of Human Rights and the role of Constitutional Courts”

25-26 April 2016, Ankara

Mr President of the Constitutional Court,
Ladies and Gentlemen,

It is a great honour for me to attend this important Symposium and represent the Council of Europe in this panel concerning the execution of judgments of Constitutional Courts and of the European Court of Human Rights.

Judgments of the European Court of Human Rights are binding on Member States. They do not, however, produce immediate results in the domestic legal order. They do not annul domestic court decisions, regulations or laws. They create an international law obligation to execute in good faith - i.e. fully and rapidly - the judgment whereby the European Court has found that there was a violation of human rights. According to Article 46 of the European Convention on Human Rights (ECHR), all States that are Parties to the Convention are under the obligation to abide by the judgments of the European Court of Human Rights.

The execution of a judgment of the European Court is not limited to the payment of the just satisfaction awarded by the Court. The member state in question should take other measures (individual and general measures) to ensure that the European Court’s judgments are fully executed. Individual measures are the measures that should be taken to erase the consequences of a violation (e.g. reopening of proceedings or release of an accused because his/her rights had been violated). General measures are those measures that should be taken to prevent future similar violations (e.g. change of legislation, of case-law of courts or of administrative practice etc.).

The Committee of Ministers, the executive body of the Council of Europe, is responsible for the supervision of the execution of judgments. The Committee of Ministers’ role is limited to the supervision of execution of judgments (i.e. it is the Committee which determines whether a judgment is executed or not – this is a collective exercise). The obligation to execute a judgment lies with the member States, which are free to choose the means through which they will achieve the full execution of a judgment. If a member State fails to execute a judgment, the Committee of Ministers will exercise political and diplomatic pressure on the member State concerned. Failure to execute a judgment by a State Party creates indeed a liability towards all other High Contracting Parties to the Convention.

One can therefore grasp the crucial role that the highest courts, and in particular the Constitutional Courts, of Council of Europe Member States play in this process. The development of the Convention compatible judicial practices and the creation of a human rights compatible jurisprudential corpus, based on a sound interpretation of the Constitutional rights and freedoms inspired by and in accordance with the case-law of the European Court is not only essential for the protection of individual rights but also an indispensable element of the Rule of Law in its international, European and domestic dimensions.

The guiding figure of the Constitutional Court in terms of its authority on the lower courts is a consequence of the principle of hierarchy of courts. In a State which is abiding by the Rule of law, there is no room for "resisting" the interpretation and the judgments of the Constitutional Court. The Constitutional Court's judgments bind not only the ordinary courts but all the branches of the government, including, of course, the executive branch. Any intervention with the authority of the Constitutional Court would have serious consequences for the authority of the Constitutional Court and for the Rule of Law, and would also affect the distribution of power and equilibrium of the State structure, ultimately harming Democracy.

Viewed from this perspective, the introduction of the right to individual petition before the Constitutional Court is an important step in ensuring effective human rights protection at domestic level. But, in addition, it is an extraordinary tool to ensure convergence of and coherence of the European legal space. 

The experience has shown that (and the speakers from Germany and Spain might confirm this) there are two major consequences when a system of right to individual petition functions effectively:

1.  domestic courts at all levels are expected to follow the case-law created by the Constitutional Court, and
2.  the number of applications coming to Strasbourg is expected to decrease.

The introduction of the right to individual petition before the Constitutional Court is a fundamental reform for Turkey. 

Turkey was, for more than a decade, one of the member States of the Council of Europe with the highest number of applications to the European Court and the highest number of violations found against it. The main aim behind the introduction of this remedy was to enhance the protection of human rights and to lower the number of applications coming to Strasbourg.

The findings of the European Court in the case of Uzun was the first signal from Strasbourg that this aim was achieved because the European Court found that applicants should first apply to the Constitutional Court before coming to Strasbourg. The effectiveness of the individual petition as a domestic remedy to be exhausted before the case is brought to an international forum was thus clearly established.

The Constitutional Court’s emerging case-law in particular relating to the right to freedom of expression (such as bans imposed on Twitter and YouTube, release of detained journalists) show that the Constitutional Court' case-law follows the same principles and standards as the European Court.

It is expected that the Constitutional Court continues following this trend so that it maintains its capacity to absorb large number of applications at domestic level. And it is also expected that lower courts (in particular, first instance courts which have an important role to play in this respect) shall follow the judgments of the Constitutional Court, apply the same standards and principles and - most importantly - execute the judgments of the Constitutional Court without hesitation.

For several years, the Council of Europe has been supporting the Constitutional Court in its work and will continue to do so, particularly in making and keeping the individual application as an effective remedy in the sense of Article 13 of the Convention. We see that the Turkish society has accepted the Court as a protector of its rights and freedoms. The Court has delivered very important judgments, especially in cases concerning excessive length of pre-trial detention, right to freedom of expression and excessive length of proceedings, which echoed the case-law of the Strasbourg Court.

It is important now to make sure that future judgments will sustain the effectiveness of this remedy in Turkey and we wish every success to the Constitutional Court and its judges in fulfilling this highly challenging task.