Principle of proportionality in theorie and practice

The foundations of the principle of proportionality are very old. However, the thought of just balance which lies at the essence of the principle of proportionality has also affected the state administration and has appeared before us in various forms in law.The principle of proportionality is currently a principle finding itself a place mainly in the area of basic rights and freedoms. It serves for the limitation of public power and for the protection of rights and freedoms and prevents the arbitrary limitation of freedoms.Although the principle of proportionality is defined in different terms in doctrine, these definitions are same with regard to essence and the difference stems from the perspective towards the elements of the principle of proportionality. Practicability, necessity, and moderateness are the sub-principles of the principle of proportionality and between them there is a relationship specific to them.With the amendment brought to the Constitution in 2001, the principle of proportionality has been clearly arranged in the Constitution dated 1982 and an end has been put to the discussions on whether there is a constitutional ground for the principle of proportionality or not.While the European Court of Human Rights which have judicial bodies effectively uses the principle of proportionality with its sub-principles, the Constitutional Court and especially the State Council fail to use the principle of proportionality with its sub-principles in an effective manner and fail to carry out supervision. For this reason, the principle of proportionality fails to perform the function expected from it fully. However, with the Constitutional amendment made in 2001 and with the clear arrangement of the principle of proportionality in the Constitution, the importance of the principle of proportionality has increased in the recent years and it is becoming one of the supervisory measures of the Constitutional Court and the State Council, increasing day by day.