Analyzing the turkish constitutional court's proportionality assessments in individual applications under fact-based and categorical methods

This study is a critical examination of the methodology of the Turkish Constitutional Court's ("TCC" or "the Court") proportionality assessments. The main argument of the study is that a significant number of the Constitutional Court's judgments in individual applications have very low objective effect due to the Court's overemphasis on the specific circumstances of given cases. The Study argues that this overemphasis is the result of the way the proportionality assessments are carried out by the Court. Article 13 of the Constitution clearly stipulates that the Court is obliged to ensure that an interference with a fundamental right is proportional. That being so, there is no constitutional obligation to examine proportionality in every case with an overemphasis on the specific facts. The study breaks down the theoretical and practical problems of the excessively fact-based evaluations in the jurisprudence of the Court. The proposed solutions to these problems are divided into two. The TCC Court, at least for some disputes, should introduce rules in its jurisprudence, by considering some of the factors mentioned in the study. To outline the framework for introducing such rules, the study includes a thorough analysis of the US free speech law and introduces the "categorical (rule-based) method" with the help of this legal system. It also examines the applicability of the categorical method in Turkey in terms of the unique features and potential institutional obstacles in Turkish law. In the context of areas where the categorical method is not appropriate, the study offers some suggestions to overcome the problems under the current excessively fact-based decision-making.