Concrete review of norm in Turkish constitution jurisdiction: its subject, conditions and functioning

The primary purpose of constitutional jurisdiction, which exists to ensure a public order that is in accordance with the constitution, is to carry out the judicial review of the constitutionality of laws in order to protect the fundamental rights and freedoms of individuals. Judicial review of constitutionality is carried out in various ways. One of them is concrete norm control, which is also referred to as exception or plea of unconstitutionality. Concrete norm control was applied for the first time during the 19th Century in United States, and, with a few exceptions during the period of the 1924 Constitution, it was implemented in Turkey with the 1961 Constitution. 1982 Constitution also included provisions regarding concrete norm control, and its subject consists of laws, ordinary period presidential decrees and decree-laws, which came into force before the amendments of the constitution in 2017 and still in force. Concrete norm review can be applied upon the allegation of unconstitutionality by the parties or the court about the norms to be applied in a case under consideration. The court which considers the unconstitutionality claim by any one of the parties serious or claims unconstitutionality ex officio will direct the claim of unconstitutionality to the Constitutional Court and adjourn the case. If no decision is reached regarding this claim of unconstitutionality in five months, the court will recommence the case in accordance with the existing legislation. However, if a decision is reached regarding the unconstitutionality before the court reaches a final decision about the case, the court is obliged to follow the decision of the Constitutional Court. Unless ten years have passed since the publication of the a limine decision of rejection in the Official Gazette, it is not possible to apply again to the concrete norm control on the same legal provision. The decisions that the Constitutional Court can take as a result of the concrete norm review are essentially limited to cancelation and rejection. However, the Constitutional Court has established new types of decisions, such as the suspension of enforcement decision through case law.