Information Note on the Court’s case-law No. 163

May 2013

Uzun v. Turkey ( dec. ) - 10755/13

Decision 30.4.2013 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Non-exhaustion of a new accessible and effective constitutional remedy: inadmissible

Facts – Decisions that have become final since 23 September 2012 may be appealed against using a new remedy before the Turkish Constitutional Court, which now has jurisdiction to examine individual applications concerning the fundamental freedoms and rights protected by the Constitution and by the European Convention on Human Rights and Protocols thereto, after ordinary remedies have been exhausted.

On 25 September 2012 the Court of Cassation upheld a decision, which the applicant challenged, to register in the name of a third party a plot of land previously used by him. The applicant did not use the aforementioned new remedy.

Law – Article 35 § 1: The Court first looked at the practical aspects of the remedy, such as its accessibility and the provisions for lodging an individual application, before examining the legislature’s intentions in creating the new procedure, as regards the scope of the Constitutional Court’s jurisdiction, the means granted to it, and the extent and effects of its decisions.

(a) Accessibility – The individual application to the Constitutional Court was not subject to any prior remedy or request other than the ordinary remedies. Potential applicants were entitled to lodge their appeal with any national court and therefore did not need to travel or to follow a complicated procedure. The time-limit of thirty days was, in principle, a reasonable one, and there was an extraordinary extension of fifteen days in situations where it was impossible to lodge the appeal within the normal deadline. Lastly, the court costs charged for lodging such an appeal did not detract from its accessibility. They did not appear excessive and the applicants were entitled to seek legal aid. The accessibility of this Constitutional Court procedure did not therefore appear problematic.

(b) Provisions for use of the remedy – The Court took note of the following factors: the new rules of the Constitutional Court had become effective well before the entry into force of the legislative provisions concerning individual applications; the Constitutional Court had jurisdiction to ask any authority for information or documents that it needed for its examination of the appeal and for the purposes of a hearing; a system was in place to rectify any discrepancies in the case-law; the Constitutional Court was entitled to indicate interim measures, of its own motion or at the request of the applicant, when it found this necessary for the protection of his or her rights; lastly, the scope of the Constitutional Court’s jurisdiction ratione materiae extended to the Convention and to the Protocols thereto ratified by Turkey. In view of the foregoing, the Court found that the procedure before the Constitutional Court afforded, in principle, an appropriate mechanism for the protection of human rights and fundamental freedoms.

(c) The legislature’s intentions – The legislative and regulatory provisions concerned appeared to grant the Constitutional Court the necessary means for the implementation of the individual remedy mechanism. The Turkish Parliament had demonstrated its intention to entrust the Constitutional Court with specific jurisdiction to establish a breach of Convention provisions and to give it the appropriate powers to secure redress for violations, by granting compensation and/or by indicating the means of redress, which could and should enable the Constitutional Court, if necessary, to prohibit the authority concerned from continuing to breach the right in question and to order it to restore, as far as possible, the status quo ante . The number of judges on the bench had been increased and sufficient resources had been made available for the functioning of the registry. The Constitutional Court’s decisions bound all the organs of the State and any individual or legal entity. The question of compliance, in practice, with the Constitutional Court’s decisions concerning an individual application should not, in principle, arise in Turkey. It was sufficient to note that, in the past, even a decision to dissolve a political party which was in power as part of a coalition government, had been enforced.

Accordingly, it was for the individual claiming to be a victim to test the limits of that protection. As that had not been the case, the present application had to be declared inadmissible. The Court reserved the right to examine the consistency of the Constitutional Court’s case-law with its own. It would be for the respondent Government to prove that the remedy was effective, both in theory and in practice.

Conclusion : inadmissible (non-exhaustion of domestic remedies).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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