Introduction to Law Dersi 3. Ünite Sorularla Öğrenelim

What are the characteristics of human rights?

The characteristics of human rights are as follows:
• universal: human rights are applied equally and with no discrimination.
• inalienable: no one can have his/her human rights’ taken away without any justification.
• indivisible and interdependent: all human rights have equal importance. Neither of them are overriding another by being more important than the other.

What are some historical examples of documents regarding human rights?

In that sense early examples of documents limiting absolute power in a constitutional status are
• Magna Carta, 1215
• Petition of Rights, 1628
• TheAmericanDeclarationofIndependence, 1776
• The French Declaration of Human and Citizen Rights, 1789.

How is the principle to respect human rights established?

The principle to respect human rights is established by the Charter of the United Nations. The General Assembly of the United Nations adopted the Universal Declaration of Human Rights on December 10th, 1948. It sets common standards of achievements for all individuals and nations.

Under the Universal Declaration of Human Rights, among others, right to life, liberty,
security, right to movement and residence, right to a nationality, right to marry and found a family, right to own property, freedom of thought, conscience and religion, freedom of opinion and expression, freedom of peaceful assembly and association, right to work, right to an effective remedy by the national competent tribunals for acts violating the fundamental rights, are granted.

How are human rights protected under the United Nations?

The Universal Declaration of Human Rights carries provisions setting principles to which
members of United Nations commit themselves. However, such provisions are not legally binding. To give provisions of the Universal Declaration of Human Rights legal force, they shall be articulated in conventions.

What are the conventions adopted by the United Nations to safeguard human rights in different areas of life?

-The International Covenant on Civil and Political Rights (1966)

-The International Covenant on Economic, Social, and Cultural Rights (1966)

-Convention on the Prevention and Punishment of the Crime of Genocide (1948)

-Convention relating to the Status of Refugees (1951)

-International Convention on the Elimination of all Forms of Racial Discrimination (1965)

-Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968)

-Convention on the Elimination of all forms of Discrimination against Women (1979) 

-Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)

-Convention on the Rights of the Child (1989)

-International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (1990)

-International Convention for the Protection ofall Persons from Enforced Disappearance (2006)

-Convention on the Rights of Persons with
Disabilities (2006)

What is the European Convention on Human Rights?

The European Convention on Human Rights is an international treaty that member States of the Council of Europe undertakes to secure fundamental civil and political rights to everyone within their jurisdiction. In particular, the rights and freedoms secured by the European Convention on Human Rights are, among others, the right to life, the right to a fair hearing, the right to respect for private and family life, freedom of expression, freedom of thought, conscience and religion, the protection of property. The rights enshrined in and protected by the European Convention on Human Rights have been extended by Protocols.

What is the function of the European Court of Human Rights?

The member states of the Council of Europe the European Court of Human Rights was established. While monitoring the European Court of Human Rights interprets the provisions of the European Convention on Human Rights by its case law which in turn results in keeping the European Convention on Human Rights a living instrument.

The scope of the jurisdiction of the European Court of Human Rights covers violations of the European Convention on Human Rights brought as individual applications or inter-state applications. 

How are human rights stated in the Turkish Constitution(1982)?

Under Turkish Constitution (1982) human rights are articulated as “fundamental rights and freedoms”. It is stated in the preamble of the Constitution that every Turkish citizen has the right to the fundamental rights and freedoms laid down in the Constitution in accordance with “equality” and “social justice”, to lead an honorable life and to improve his/her material and spiritual well-being under the aegis of national culture, civilization, and the rule of law. Provisions governing human rights under Turkish Constitution give first a definition, than stipulate rules on restriction and prohibition of abuse of them.

How can fundamental rights and freedoms be restricted according the the Turkish Constitution?

Article 13- (As amended on October 3, 2001; Act No. 4709) 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 contrary to 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.

When can fundamental rights and freedoms be suspended according to the Turkish Constitution?

Article 15- In times of war, mobilization, martial law, or a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures derogating the guarantees embodied in the Constitution may be taken to the extent required by the exigencies of the situation, as long as obligations under international law are not violated. (As amended on May 7, 2004; Act No. 5170) Even under the circumstances indicated in the first paragraph, the individual’s right to life, the integrity of his/her corporeal and spiritual existence shall be inviolable except where death occurs through acts in conformity with law of war; no one shall be compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them; offences and penalties shall not be made retroactive; nor shall anyone be held guilty until so proven by a court ruling.

What does the article of the Turkish Constitution on international agreements(article 90/5) state?

“International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. (Sentence added on May 7, 2004; Act No. 5170) In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”

What is individual application?

The individual application has been introduced into the Turkish Legal System by the constitutional amendment made on 12.09.2010 with the Law No 5982. By this amendment the individual application was enshrined in the article 148 of the Constitution as follows:
“1. The Constitutional Court shall … decide on individual applications.

3. Everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights, which are guaranteed by the Constitution, has been
violated by public authorities. In order to make an application, ordinary legal remedies must be exhausted.
4. In the individual application, judicial review shall not be made on matters required to be taken into account during the process of legal remedies.
5. Procedures and principles concerning the individual application shall be regulated by law.”

What is the scope of the individual application?

Law No 6216 expands the sphere of protected fundamental rights and freedoms as the wording of it takes the scope of the individual application further than the Constitution by referring to the fundamental rights and freedoms covered in Protocols of the European Convention on Human Rights. Such coverage also includes the case law of the European Court of Human Rights. It has to be noted that individual application is not about Constitution or constitutional review; it regards only the violation of fundamental rights and freedoms protected by the Constitution, and the European Convention on Human Rights and its Protocols.

How is the abuse of fundamental rights and freedoms prohibited by the Turkish Constitution?

Article 14- (As amended on October 3, 2001; Act No. 4709) None of the rights and freedoms embodied in the Constitution shall be exercised in the form of activities aiming to violate the indivisible integrity of the State with its territory and nation, and to endanger the existence of the democratic and secular order of the Republic based on human rights. No provision of this Constitution shall be interpreted in a manner that enables the State or individuals to destroy the fundamental rights and freedoms recognized by the Constitution or to stage an activity with the aim of restricting them more extensively than stated in the Constitution. The sanctions to be applied against those who perpetrate activities contrary to these provisions shall be determined by law.

What does Article 12 of the Turkish Constitution say on fundamental rights and freedoms?

Article 12- Everyone possesses inherent fundamental rights and freedoms, which are inviolable and inalienable. The fundamental rights and freedoms also comprise the duties and responsibilities of the individual to the society, his/her family, and other individuals.

Who can apply to the Constitutional Court?

“Everyone can apply to the Constitutional Court based on the claim that any one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights and the additional protocols thereto, to which Turkey is a party, which are guaranteed by the Constitution has been violated by public force.”

What action is taken if  exhaustion of legal remedies has no effect?

In cases where exhaustion of legal remedies has no effect the Constitutional Court accepts the case for individual application. As in its case law, the Constitutional Court stated that:

“… if exhaustion of legal remedies has no effect in order to overcome violation, or if a serious and irrevocable harm arises while waiting for exhaustion of legal remedies, principle of respect to constitutional rights might necessitate examination of such a case even without exhausting legal remedies.”

What cannot be brought before the Constitutional Court under the individual application?

• legislative acts and legislative decrees,
• regulatory administrative acts,
• decisions of the Constitutional Court,
• acts of the President of the Republic in his/ her own competence (Article 125/2 of the
Constitution)
• decisions of the Supreme Military Council on promotion and retiring due to lack of tenure, (Article 125/2 of the Constitution)
• decisions of the High Council of Judges and Prosecutors other than dismissal from the profession (Article 159/10 of the Constitution)

What should the petition for individual application consist of?

• identification and address of the applicant and (if any) representative (if there is a representative proxy must be submitted),
• the right(s) and freedom(s) alleged to be violated,
• provisions of the Constitution relied upon
• reasoning,
• the stages regarding the exhaustion of legal remedies,
• the date on which remedies for application have been exhausted or if remedy of application has not been envisaged the date on which the violation has been acknowledged and the damage incurred,
• evidence relied upon and the originals (or samples) of the transaction or the decisions that are claimed to have led to the violation,
• document of payment of the fee for application

When can an individual application be made?

• within thirty days starting from the exhaustion of legal remedies
• from the date when the violation is known if no remedies are envisaged