The function of the prohibition of abuse of right in the regime of fundamental rights and freedoms

This study investigates what the prohibition of abuse of right, which is included in our Constitution and has equivalents in many international human rights documents, means for the regime of fundamental rights and freedoms. With this research, it is aimed to reveal how the prohibition of abuse of rights and freedoms functions in this regime. How this prohibition should be interpreted with a rights-oriented approach is the focus of the study. The inclusion of the prohibition of abuse of right in the Universal Declaration of Human Rights expresses the universal at least implicit consensus on the acceptance of the understanding of combative democracy and the rejection of the understanding of absolute freedom. For this reason, it is seen that the concept of "totalitarianism" is used, not the concept of fascism, in the preparatory studies of the European Convention on Human Rights. In fact, it is possible to reach the conclusion that Article 17 of the European Convention on Human Rights is put as a precaution against the danger of communism rather than fascism. The European Court of Human Rights made a distinction between rights that are within the scope of Article 17 and those that are not. Freedom of expression is the most frequently encountered freedom in the context of Article 17 in the case-law of the European Court of Human Rights. The ways in which the right is abused vary widely in the case-law of the European Court of Human Rights. It is unclear how the European Court of Human Rights will apply Article 17. The prohibition of abuse of right has its origins in private law. Although it is possible to trace the prohibition back to Roman law, an individualist and absolute right understanding led to the birth of the prohibition. The prohibition of abuse of rights in Turkish constitutions began with the 1971 Constitutional Amendment. However, the understanding in including this prohibition differs from the philosophy that leads to the prohibition in international human rights documents. According to the Constitutional Court, the implementation of the general prohibition in Article 14 by the judiciary without a law embodying the prohibition violates the principle of legality. The legislator neglected his duty by not regulating the crimes within the scope of Article 14.