The criterion for exhaustion of ordinary legal remedies in individual application to the Constitutional Court

The exhaustion of ordinary legal remedies is one of the conditions for making an individual application to the Constitutional Court. The criterion requires applicants to exhaust the ordinary remedies in Turkish law before filing an individual application. For a legal remedy to be considered exhausted, it must first be applied for. Applicants are then obliged to take their claim/case to the highest authority in the legal system. Individuals must apply for ordinary remedies in accordance with the procedural and time limits set out in the legislation. Likewise, they should pursue their claims/cases in the ordinary legal remedies in accordance with the procedural and time rules in thelegislation and with due diligence. However, applicants are obliged to first raise the alleged violations in the individual application in the ordinary legal remedies. It is notpossible for individuals to raise for the first time before the Constitutional Court, violations that they have not raised in the ordinary remedies. As a rule, ordinary legal remedies must have been exhausted at the time when an individual application is lodged. In this regard, if a remedy that did not exist at the time when an individual application is lodged and is subsequently created, the applicants are not expected to apply for this new remedy. However, there are some exceptions tothis. For example, if a new remedy is introduced to resolve a structural and systematicproblem, applicants may be expected to exhaust this new remedy. Just as exhaustion of ordinary legal remedies is required for an individual application to the Constitutional Court, exhaustion of domestic remedies is also required for an individual application to the European Court of Human Rights. Although the terms ordinary remedies and domestic remedies are different, they have the same meaning. This is because both the Constitutional Court and the European Court of Human Rightslook for the existence of the same qualifications in the remedies that must be exhaustedbefore filing an individual application. Accordingly, the remedies to be exhausted must be accessible, effective and adequate. Firstly, the quality of accessibility requires the existence of an administrative or judicial remedy in which it can be claimed that the rights within the scope of individual application have been violated. In order to ensureaccessibility, the applicant must also not be prevented from applying for a remedy. An effective remedy must satisfy the demands of the applicant directly. Efficiency is not ensured if another authority can challenge the decision of a remedy. Similarly, effectiveness will not be ensured if the decision of one remedy cannot be implementedby another authority. Adequacy refers to the ability of a remedy to examine and resolvethe entire dispute before it in terms of material facts and legal conceptualization. An adequate remedy should be able to award satisfactory compensation, if necessary. Ordinary remedies must meet the qualities of accessibility, effectiveness and adequacy, both in theory and in practice. As a rule, it is not necessary for individuals to resort to remedies that do not meet these qualifications. The conditions under which an administrative or judicial remedy does not meet the requirements of accessibility, effectiveness or adequacy are neither set out in the European Convention on Human Rights nor in the Constitution. However, there are examples of this in the case law of the Constitutional Court and the European Court of Human Rights. In the individual application decisions of the Constitutional Court, two cases are identified where the quality of accessibility was negatively affected. The first of theseis the absence of any remedy to claim that a fundamental right within the scope of individual application has been violated. The second is the de facto prevention of a person from resorting to a remedy. To date, in the decisions of the Constitutional Court, a few examples have been highlighted where Turkish law does not provide forany remedy by which a fundamental right can be claimed to have been violated. For example, according to the Court, there is no remedy that can expedite an ongoing proceeding or provide compensation for the time taken. The second example is the alleged violation of the presumption of innocence. A public official who, by virtue of his or her position, has the potential to exert influence, may make incriminating statements about persons accused of crimes. In this case, there is no remedy under Turkish law that can examine allegations of violations of the presumption of innocence, determine the violation, and provide the necessary remedy if necessary, The third example regards the communication surveillance and subsequent prosecution process. The Court holds that there is no remedy available to examine the claims that the protection measure in question violates the right to freedom of communication. As a rule, it is possible for applicants to file an individual application for these three alleged violations without resorting to any administrative or judicial remedy. The Constitutional Court has also provided an exception from the requirement of exhaustion of ordinary remedies in relation to fundamental rights and freedoms where the doctrine of chilling effect occurs. Some interferences with freedom of expression and freedom of assembly may cause people in similar situations to refrain from exercising these rights due to the fear of sanctions. In such cases, in order to remove the chilling effect, the Constitutional Court allows individuals to submit individual applications directly under certain conditions. The Constitutional Court also emphasizes that no remedy against some of the interim decisions of the courts was provided before the individual application. Interim decisions are decisions made by the judge without finalizing the case. In most cases, legal remedies of appeal and cassation can be applied against the interim decisions of the courts together with the main judgment. However, in some cases, the nature of the interference requires an individual application to be filed without waiting for the final judgment. According to the decisions of the Constitutional Court, these situations are as follows: an interim decision poses an important legal problem for the ongoing stages of the proceedings, but cannot be corrected at these stages, creates a continuing legal situation against the relevant person, or cannot be removed at all or can be partially removed. In such cases, the Constitutional Court does not conclude that the criterion of exhaustion of ordinary legal remedies has not been met. Effective and adequate remedies to be applied before the individual application must be authorized to remedy the breach and offer a real prospect of success in doing so. Otherwise, there is no need to exhaust any administrative or judicial remedy, althoughit is foreseen in the legislation. Whether an administrative or judicial remedy is effective or adequate can be understood by applicants. This is because the grounds forexemption found in the jurisprudence of the Constitutional Court and the European Court of Human Rights provide legal foreseeability for the applicants. The first example is where there is an established jurisprudence that an ordinary remedy does not offer a chance of success. The second example is the existence of administrative practice. In the case of administrative practice, the violation alleged by the applicant is committed with the knowledge or with the explicit or implicit acquiescence of the highest public authorities of that State. There is therefore no practical prospect of a positive outcome of any domestic remedy. The third example is where the exercise of the right depends on the assertion of the right at a certain time. If the exercise of the right becomes impossible with the passage of a certain period, only remedies that can decide on the claim before that date meet the qualification of effectiveness. Therefore, it is possible to file an individual application without waiting for the conclusion of the remedies that cannot render a decision before that date. Another example where the quality of effectiveness and sufficiency is in question is when the unsatisfactory nature of a remedy is recognized by a third party as a result of an application made by them. For example, if more than one person is affected by an alleged violation, some may have exhausted ordinary remedies and others may not have done so. However, for example, a person affected by the same violation may not be able to obtain a positive result even if he or she duly applies to the ordinary legal remedies and takes his or her complaint to the highest judicial authority. In such cases, the European Court of Human Rights sometimes exempts persons who have not exhausted the ordinary remedies from the criterion. Another example is ongoing infringement. A continuing breach exists where there are persistent omissions or acts. An example is detention. In such cases, applicants may lodge an individual application without waiting for the final judgment in the criminal proceedings that led to the detention. Another example is non-compliance with judicial decisions. When administrative authorities do not comply with the decision obtained by a third party through a judicial remedy, the effectiveness of the judicial authority that rendered the decision in question is also negatively affected. In such cases, there is a possibility that the applicants may file an individual application without recourse to the judicial authorities whose decisions have not been complied with. In some cases, there may be more than one accessible, effective and adequate remedythat can examine the applicant's allegations of violation and provide adequate redress.The principle is that it is sufficient if only one of them has been duly exhausted. As a rule, the choice of the remedy is determined by the choice of the applicant. The aim isto ensure that applications to the European Court of Human Rights and the Constitutional Court can be made with reasonable speed. In some cases however, taking into account the nature of the right violated and the circumstances of the concrete case, the Constitutional Court and the European Court of Human Rights may find that one of these potentially effective remedies is more effective than the other.What is then expected of the applicants is not the exhaustion of any remedy, but theexhaustion of the remedy indicated by the courts in their jurisprudence.