Individual application to the Constitutional Court: how it works

People whose file has come back from the Court of Cassation often see the individual application (bireysel başvuru) as one last chance. The Constitutional Court has been saying the opposite in its rulings for years: an individual application is not a further tier of review. As a rule the Court does not debate whether the evidence was properly assessed or whether the law was correctly interpreted; it looks at whether a fundamental right has been violated.

What can be challenged

The application is made on the ground that a fundamental right has been violated by an act, action or omission of public authority. Not every right falls within that scope. The right must be guaranteed by the Constitution and, at the same time, fall within the European Convention on Human Rights and the additional protocols to which Türkiye is a party.

The rights most often relied on in criminal cases are the right to liberty and security, the right to a fair trial, the prohibition of torture and ill-treatment, the right to respect for private life, freedom of expression and the right to property.

Some acts are outside the scope from the start. Legislative acts and regulatory administrative acts cannot be challenged directly, and neither can rulings of the Constitutional Court itself or acts that the Constitution places beyond judicial review.

Ordinary remedies must be exhausted

This is where applications most often fail. Every administrative and judicial remedy provided against the alleged violation must have been used properly and exhausted. In criminal files this usually means that the appeal stage, and cassation where available, have been completed.

Formal exhaustion is not enough. The complaint of a violation is expected to have been raised before the trial courts as well. A grievance never voiced during the proceedings, and brought up for the first time before the Constitutional Court, may lead to the application being rejected.

The time limit: thirty days

The application must be made within thirty days of the date on which ordinary remedies were exhausted, or, where no remedy is provided, of the date on which the violation became known. This is a strict limitation period.

Where the period was missed because of force majeure or serious illness, an application can be made within a short period from the date the obstacle fell away, together with documents proving it. Whether the excuse is accepted is for the Court to decide.

The admissibility examination

A large share of applications are rejected without reaching the merits. The grounds seen most often are:

• Out of time — the thirty-day period was missed.
• Remedies not exhausted — the file is still before the trial court or on appeal.
• Incompatibility ratione materiae — the right relied on falls outside the scope.
• Manifestly ill-founded — the claim has not been made out, or is in substance directed at the trial court's assessment of the evidence. The Court calls this a "fourth-instance complaint".
• No constitutional or personal significance — the applicant has not suffered significant disadvantage.

A court fee is payable. Legal aid can be requested.

How the application is made

The application is made by completing the individual application form published by the Constitutional Court. The form can be submitted to the Court directly, or sent through the courts or through Turkish missions abroad. It must set out clearly which right is said to have been violated, how the violation occurred, and the evidence for it; the underlying decisions and the service documents are expected to be attached.

Making an application does not of itself suspend the enforcement of the decision. Where there is a serious risk to life or to physical or mental integrity, an interim measure can be requested.

If a violation is found, the Court indicates how the violation and its consequences are to be removed. In criminal files that usually takes the form of sending the file to the relevant court for a retrial; compensation may also be awarded where the conditions are met.

This article is for general information only and does not constitute legal advice on any specific matter. Time limits and procedural rules may change.