Why is Individual Application Made to the Constitutional Court?

Individual application is a way of applying to the Constitutional Court in cases where fundamental rights and freedoms guaranteed by the Constitution of the Republic of Turkey or rights covered by the European Convention on Human Rights are violated. The institution of individual application enables the examination of violations in judicial, administrative and military judgments, as well as in the actions and operations of public authority, in order to ensure the adjudication of human rights and freedoms. The right to individual application is based on allegations of violations, and a violation is defined as an unlawful intervention in the area protected by fundamental rights and freedoms. These interventions may be in the form of limiting, prohibiting, or hindering fundamental rights and freedoms without relying on the reasons for compliance specified in the legislation, or obstructing, slowing down, or complicating them due to administrative actions and operations. Individual application is a last resort in Turkish law and can only be used when other legal remedies have been exhausted or are not available. In this way, the person has resorted to an extraordinary legal path. Individual application is a path that must be taken within certain periods.

What is the Purpose of Individual Application to the Constitutional Court?

The purpose of individual application is to contribute to the protection of rights and to the resolution of problems in the application of the Constitution. It also contributes to the reduction of applications to international institutions such as the European Court of Human Rights. This issue is also given importance in constitutional amendments in our country.

Which Rights can be Subject to Individual Application to the Constitutional Court?

In an individual application, only the rights specified in the Constitution and the Convention can be subject to the application. The rights specified in additional protocols cannot be subject to individual application.

It is not clearly stated which rights of individuals may have been violated for those who want to make an individual application. Therefore, a specific list and explanation of these rights need to be made in order to understand which rights can be subject to individual application. In this way, the boundaries of the individual application institution can be made clearer, and when human rights violations can be resolved through individual application can be more clearly understood.

The rights protected by the Constitutional Court include the following:

• The Right to Life

• The Prohibition of Torture

• The Prohibition of Slavery and Forced Labor

• The Right to Personal Liberty and Security

• The Right to a Fair Trial

• The Principle of Legality in Crime and Punishment

• The Right to Privacy, Housing, and Communication

• The Freedom of Thought, Conscience, and Religion

• The Freedom of Expression and Dissemination of Thought

• The Right to Association and Assembly

• The Right to Property

• The Right to Education and Training, and the Duty to Educate

• The Right to Free Elections

• The Right to Effective Remedy

• The Principle of Equality and Prohibition of Discrimination.

The right to life is the most fundamental of human rights, as emphasised in both universal and regional human rights documents. It is stated that a person’s right to life should not be infringed upon except for the execution of the death penalty. The provision allowing the death penalty in Article 2 of the ECHR was subsequently repealed. Protocol No. 6 permits the death penalty only in times of war or imminent danger of war, while Protocol No. 13 has completely abolished the death penalty without exception. However, the second paragraph of Article 2 of the Convention specifies situations in which the violation of the right to life shall not be regarded as such. Accordingly, deaths resulting from the unlawful use of force to protect against unlawful violence, to effect a lawful arrest, or to prevent escape or to suppress a riot lawfully are not considered to be violations of the right to life.

Based on the decisions of the European Court of Human Rights (ECtHR), it is acknowledged that the right to life, which is not explicitly mentioned in Article 2 of the Convention, imposes three types of state obligations. These are: not to intentionally kill public officials, to provide legal protection to the right to life, and to conduct effective investigations into those causing death. The obligation to protect life by the state aims to protect the right to life from the use of force beyond what is strictly necessary, even in the case of law enforcement officials exercising their powers under the law. In cases of alleged violations of the right to life, the Constitutional Court shall take into account these principles established by the ECtHR.

Article 15/2 of the Constitution states that a person’s right to life cannot be violated except for actions that are not in accordance with the laws of war. Article 17/1 of the Constitution states that “everyone has the right to life and the right to protect and develop their material and spiritual existence”. This sentence expresses the right to life together with other rights. The right to “protect and develop their material and spiritual existence” can be evaluated together with or within the scope of the “prohibition of torture” regulated in Article 3, the “respect for private and family life” regulated in Article 8, and the “freedom of thought, conscience and religion” regulated in Article 9 of the Convention.

Turkey, as a developing country, still struggles with many problems, one of which is the protection of its citizens’ right to life. This issue is important not only for Turkey but also for the whole world.

For example, in the case of many people losing their lives and being trapped under the rubble after a severe earthquake due to insufficient emergency response teams and lack of adequate equipment, the violation of the right to life can be considered due to the government’s inadequate preparation for post-earthquake intervention. Similarly, in the event of a flood disaster, the failure of authorities to take necessary safety measures in granting permission for construction in the riverbed may be evaluated as a violation of the right to life, resulting in many people’s homes being submerged or drowning. Additionally, the failure to take adequate safety measures during work accidents leading to workers losing their lives can also be considered a violation of the right to life. It is the responsibility of the state to take necessary measures to prevent such accidents by implementing necessary safety measures, educating and supervising workers.

Furthermore, the difficulties experienced by those forced to live on the streets due to their housing needs not being met during urban renewal projects can also be evaluated as a violation of the right to life. The state must take necessary measures to protect the rights and meet the needs of individuals during urban renewal projects.

In conclusion, the state’s obligation to protect the right to life can arise in various situations, and individual applications can be made if the state fails to fulfill this obligation. Some steps that the state must take to protect the right to life include conducting effective investigations, being cautious, and taking preventive measures.

PROHIBITION OF TORTURE

Torture is a violation of human rights that has existed throughout history and is still practiced in many countries today. Torture is the intentional infliction of severe physical or mental pain and suffering on a person. Torture is usually used to obtain information or confessions, punish or intimidate. This inhumane practice is clearly prohibited in international legal texts such as the International Human Rights Convention and the United Nations Convention against Torture. Unfortunately, torture is still a widespread problem around the world and a human rights violation that needs to be fought against.

The act of torture is a painful act deliberately carried out by a public official or someone who holds an official position. The key point of the torture act recognized as an international crime is that it is carried out by a public official or with their knowledge. If the person committing torture is not a public official, the person responsible according to the law is tried. States that are parties to conventions against torture are obliged to prevent and prevent torture. Zero tolerance for torture is adopted in the Constitution and other treaties. The protection of human dignity is one of the most important legal values, and the protection of human dignity aims to prevent torture from destroying the characteristic of being human.

SLAVERY AND FORCED LABOUR BAN

 Article 18 of the Constitution prohibits forced labour and the use of forced labour or “angarya”, which is defined as work done without payment. However, compulsory work or employment during imprisonment or detention, services required of citizens in extraordinary circumstances, and mandatory physical and intellectual work as a duty of citizenship are not considered forced labour. This regulation is in line with Article 4 of the European Convention on Human Rights, which has the same content. The term “angarya” refers to work that is imposed on an individual or group without payment, while the concept of forced labour is more inclusive. The Constitutional Court defines “angarya” as work done against a person’s will and without their obligation. Therefore, the concept of “angarya” is completely different from that of paid forced labour. Forced labour and “angarya” have a common point in terms of work obligation, but forced labour can be reciprocal while “angarya” is uncompensated. Traditional practices, as well as modern human rights documents and International Labour Organization (ILO) conventions, prohibit forced labour.

RIGHT TO PERSONAL FREEDOM AND SECURITY

Article 19 of the Constitution regulates the right to personal freedom and security. Personal freedom can be defined as the ability to move physically, move one’s body wherever one wants, and change location. The legislator emphasizes the importance of this right by regulating in detail the circumstances under which interference with personal freedom is permitted. This article also includes measures taken to protect personal freedom and security. The right to personal freedom and security is regulated in detail by Article 5 of the European Convention on Human Rights. This regulation aims to prevent arbitrary arrests and detentions. Interference with a person’s physical and mental integrity, even if it occurs while their freedom is restricted, is not considered within the scope of Article 5 and is treated as a concept within the prohibition of torture. The right to personal freedom and security is generally applied against restrictions imposed by state authorities. Interventions made by public authorities must be lawful and not arbitrary. Measures such as detention should be based on a court decision, and decisions restricting a person’s freedom through a conviction should be justified. Individuals depriving each other of their freedom cannot be evaluated under Article 5 of the European Convention on Human Rights or Article 19 of the Constitution. When personal freedom is restricted due to actions of judicial, administrative, or military institutions, individuals can resort to the individual application process for the protection of their rights. Restrictive measures on personal freedom must be based on a court decision and be compatible with the spirit and purpose of the law. Measures that limit freedom must be clear, unambiguous, and justified. Actions such as arrest, detention, judicial control, education, rehabilitation, or detention for the purpose of treatment are measures that limit personal freedom and must be based primarily on a court decision.

For example, if a person is arbitrarily arrested by the police and placed in prison, their freedom will have been violated. In this case, it is necessary to examine whether the arrest was lawful. If the arrest was not lawful, the person’s freedom will have been unjustly restricted.

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Similarly, in the case of a person being detained, the detention must be justified and lawful. If the detention is not justified and lawful, the person’s freedom will have been unjustly restricted.

In addition, the conditions of detainees and prisoners in prisons also relate to their right to freedom and security. If the conditions of prisons do not comply with human rights standards, the freedom and security rights of detainees and prisoners will have been violated.

These examples show how important the right to freedom and security is and how important it is to ensure compliance with the law and humane conditions in order to protect this right.

EVALUATION OF FREEDOM AND SECURITY VIOLATIONS WITHIN DEPORTATION CENTRES

The conditions in which foreigners are held in deportation centres are crucial for their right to freedom and security. These conditions must be in compliance with human rights, and individuals’ freedoms must not be arbitrarily restricted.

For example, the Eisenhüttenstadt deportation centre in Germany is arranged in accordance with human rights. Suitable conditions are provided for foreigners, and their freedoms are not arbitrarily restricted. They can eat meals according to their own culture, read books and do sports.

Similarly, deportation centres in Sweden also provide suitable accommodation conditions, health services, and education opportunities for foreigners. In addition, foreigners can participate in activities that are suitable for their own culture and receive psychological support.

Unfortunately, there are examples of deportation centres worldwide where conditions are not in compliance with human rights. In particular, in developing countries, foreigners’ freedoms are arbitrarily restricted, and human rights violations occur.

EVALUATION OF DEPORTATION CENTRES IN TURKEY AND HUMAN RIGHTS VIOLATIONS

Turkey hosts many refugees and asylum seekers, and the country has faced numerous challenges in managing migration flows. While the country has made progress in addressing the needs of refugees, there have been reports of human rights violations in deportation centres.

In 2020, Human Rights Watch reported that asylum seekers and refugees were detained for extended periods in detention centres in Turkey, where conditions were inadequate. There were also reports of physical and psychological abuse by security personnel in these centres.

Furthermore, in 2021, the United Nations High Commissioner for Refugees expressed concerns about the closure of several migration and asylum centres in Turkey, leaving refugees and asylum seekers without adequate shelter and protection.

In conclusion, it is crucial for deportation centres to be arranged in accordance with human rights and individuals’ freedoms should not be arbitrarily restricted. In the case of Turkey, the country must ensure that asylum seekers and refugees are provided with suitable conditions and protection in deportation centres, in compliance with international human rights standards.

Geri gönderme centers are established for the purpose of determining the legal status of foreigners in Turkey and sending those deemed appropriate back to their countries. However, in recent years, it has become evident that these centers in Turkey are facing human rights violations. Problems such as overcrowding and inadequacy of living conditions, insufficient health services, and low cleanliness standards negatively affect the quality of life of foreigners. In these centers, the right to legal counsel is hindered, translation services are not provided, and meetings are restricted to office hours. In addition, some foreigners are arbitrarily detained for long periods of time despite filing lawsuits. Due to reasons such as inadequate access to healthcare and unhygienic living conditions, some foreigners face serious health problems. In some cases, they suffer from illness and injury without receiving medical assistance. Furthermore, the crowded environment in these centers leads to physical and emotional breakdowns and mobbing for some foreigners. The problems encountered in the geri gönderme centers in Turkey are quite serious and result in human rights violations. It is necessary to increase the capacity of these centers, improve the conditions, ensure that foreigners are held for legal periods, and respect the right to legal counsel. In addition, health services and hygiene standards should be improved. Solving these problems is also necessary for Turkey to comply with international human rights standards. In addition to the problems encountered in the geri gönderme centers in Turkey, foreigners’ rights are not respected, and arbitrary practices are also conducted. Particularly, forcibly deporting foreigners whose legal proceedings are ongoing is a serious human rights violation. It is clearly stated in Turkey that foreigners with ongoing legal proceedings should not be deported. However, in some cases, foreigners are forcibly deported even though their legal proceedings are ongoing, and their rights are violated. This situation is contrary to Turkey’s international commitments in the field of human rights and is considered a serious human rights violation.

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RIGHT TO A FAIR TRIAL

The right to a fair trial means that everyone has the right to a fair and public hearing before an independent and impartial tribunal, in accordance with established laws and procedures. This right is enshrined in Article 6 of the European Convention on Human Rights (ECHR) and applies to civil and criminal proceedings. In order to ensure a fair trial, several key rights must be guaranteed, including the right to access to justice, the right to equality before the law and the courts, the right to a competent, independent and impartial tribunal, the right to a timely trial, the right to a public hearing, the right to a reasoned judgment, the right to a fair trial, and the right to be present at trial.

The right to a fair trial is also protected by the constitution in many countries. For example, in the United Kingdom, the right to a fair trial is guaranteed by the Human Rights Act 1998, which incorporates the ECHR into UK law. The right to a fair trial is also protected by many other international and regional human rights instruments.

The right to a fair trial is a fundamental principle of democratic societies. The concept of a reasonable time in relation to a fair trial refers to the idea that there must be a limit to the amount of time that can reasonably be taken to resolve a legal dispute. In determining what constitutes a reasonable time, factors such as the complexity of the case, the conduct of the parties, the attitude of the authorities, and the nature of the rights at stake must be taken into account.

The right to a fair trial is particularly important in criminal proceedings, where the consequences for the accused can be severe. In assessing whether there has been a violation of the right to a fair trial, factors such as the age of the accused, the seriousness of the offence, whether the offence was committed as part of an organised criminal group, and the number of defendants involved may be considered.

In summary, the right to a fair trial is a fundamental human right that is protected by national and international law. It is a key element of democratic societies and must be safeguarded in all legal proceedings, both civil and criminal.

Application No: 2017/39893 | Case (Violation) | First Section | Application Date: 12/12/2017 | Decision Date: 08/02/2023 APPLICATION SUBJECT: The application concerns the alleged violation of the right to access to a court within the scope of the right to a fair trial, due to the imposition of a monetary penalty of 10% of the auction price with an entry to the Treasury’s revenue account as a result of the lawsuit filed for the annulment of the auction conducted by the enforcement office.


Right Alleged Violation Decision Remedy Right to a fair trial (Civil) Right to access to a court (Civil) Violation Other Right to property Protection of property No violation Right to protection of material and moral interests Effective remedy related to the right to protection of material and moral interests No violation

PRINCIPLE OF LEGALITY IN CRIME AND PUNISHMENT

 Article 15/2 of the Constitution regulates the presumption of innocence. It is envisaged that the person accused of a crime shall be considered innocent until proven guilty by a court decision through a fair trial. Article 17 of the Constitution stipulates that no one’s right to life shall be violated, except for natural disasters and deaths resulting from acts in accordance with the law of war. The principle that crimes and punishments cannot be applied retroactively is a rule connected to the principle of legality in crime and punishment. For a crime to be considered as such and punishable, it must be explicitly stated in the law, along with the punishment for that crime, and this law must be in force before the commission of the act in question. The principle of applying a law that is favourable to the accused retroactively is an exception to the prohibition of the retroactive application of criminal laws. The second sentence of the first paragraph of Article 38 of the Constitution states that “no one shall be given a heavier penalty for an offence than the one that was applicable at the time the offence was committed.” This article of the Constitution does not explicitly regulate that a law that comes into force later and is favourable to the accused should be applied. However, it does not prohibit this either. Thus, Article 7 of the European Convention on Human Rights (ECHR) highlights the principle of legality in crime and punishment to prevent arbitrary trials and unjust convictions and punishments. Unwritten law and case law also fall within the scope of the principle of legality. However, this law must be predictable and accessible.

Privacy of Personal Life

The common point in the definitions of the concept of “privacy” is “personal matters that are not intended to be disclosed by others.” Article 20 of the Constitution provides that no one shall be violated in respect of their private and family life, and that everyone has the right to demand respect for their private and family life. Private life is the area where the individual can develop their personality and live freely, communicate with other people and the world. Family life is the area unique to individuals who share their lives with their loved ones, and where the state cannot interfere. Article 21 of the Constitution emphasizes that no one’s residence shall be violated, and that a court order is necessary to enter a private place like a residence in case of certain restriction situations. A residence is a limited physical space where an individual lives their private and family life. Article 22 of the Constitution regulates the freedom of communication and emphasizes its confidentiality. According to the decisions of the European Court of Human Rights regarding this right, which is regulated by Article 8 of the ECHR, personal and social identity, name, bodily integrity and mental integrity, personal information, business relationships, relationship with the outside world, and information regarding the private life of individuals are considered within the scope of the “private life” concept. There are regulations at the legal level in Turkish law regarding the confidentiality and protection of private life, and restriction situations are also specified in case of interference with the exercise of these rights.

The European Court of Human Rights has made important decisions to protect the right to privacy. Some of these decisions are;

• Contracting states are obliged to protect the right to privacy, and restrictions on this right can only be made under certain valid reasons, such as legal basis, national security, public order, crime prevention, and protection of the rights and freedoms of others.

• A balance must be struck between the right to freedom of expression and the right to privacy. This balance is achieved through the principle of proportionality in the use of freedoms. For example, the disclosure of information regarding an individual’s private life may not be acceptable for the right to freedom of expression.

• The protection of personal data is also related to the right to privacy. During the processing and use of personal data, individuals’ consent must be obtained, data security must be ensured, and they must only be used for certain purposes.

Article 8 of the ECHR regulates the right to the protection of private and family life, and clearly specifies the situations where restrictions on the exercise of these rights may be imposed. In democratic societies, respecting and protecting the privacy of individuals is a fundamental principle, and restrictions on the exercise of these rights can only be made under certain conditions and in compliance with the law.

The Turkish legal system includes regulations regarding the protection and confidentiality of private life in both private law and public law. In private law, there are regulations in the Turkish Civil Code and the Turkish Code of Obligations. In public law, there are regulations in the Turkish Penal Code and the Code of Criminal Procedure regarding the protection of private life.

Article 26 of the Constitution specifies the situations where the freedom of thought and expression may be restricted. Within this scope, the European Court of Human Rights evaluates personal and social identity, name, bodily integrity and mental integrity, personal information, business relationships, relationship with the outside world, and information regarding the private life of individuals under the concept of private life.

Freedom of Thought, Expression, Religion and Conscience

Article 25 of the Constitution guarantees freedom of thought and expression by stating that individuals cannot be compelled to express their thoughts. This freedom should be obtained without any limits for individuals to develop their thoughts and not to be condemned. Thought is a characteristic that distinguishes humans from other living beings. Descartes’ expression “I think, therefore I am” expresses the relationship between humans and thought.

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Articles 25 and 15/2 of the Constitution regulate freedom of thought and expression. The concept of conscience, on the other hand, is defined as the power that allows individuals to make direct and spontaneous judgments on their own moral values. Article 24 of the Constitution states that everyone has the right to freedom of conscience, religion and belief, and no one can be compelled to express their religious beliefs or to worship.

Article 14 of the Constitution sets limits on the disclosure of religion. It is emphasized that the freedom of religion cannot be used to divide the state or the nation or to eliminate the democratic, secular republic.

Article 9 of the ECHR states that everyone has the right to freedom of thought, conscience, and religion. Individuals also have the freedom to change their religion or belief and to manifest their religion or belief in worship, observance, practice, and teaching. The right to express one’s religion or belief in speech may also fall under other rights protected by the Convention. The relevant article of the Constitution also encompasses many fundamental freedoms, including freedom of expression, respect for private and family life, and freedom of assembly and association. However, the second paragraph of the relevant article of the Constitution notes that the freedom to express one’s religion or belief may be subject to limitations under certain conditions, including public safety, public order, public health or morals, or the protection of the rights and freedoms of others.

Freedom of Thought and Expression

The freedom of expression begins with an individual’s freedom to access, research, learn, and have knowledge, opinions, and news. The individual should not fear exclusion, ridicule, or threats due to their beliefs. The accuracy or content of the information is not important when exercising the freedom of expression. All kinds of ideas, regardless of where and how they are expressed, fall within the scope of this freedom. The aim is to exempt individuals from the obligation to disclose their beliefs. The next step is the freedom to express and disseminate ideas not only through speech and writing but also through symbols and art in the external world. The constitutional legislator generally defined this freedom under the heading of “freedom of expression and dissemination of thought” in Article 26 of the Constitution. The freedom of science and art regulated in the Constitution, regulations on the press and broadcasting, and regulations on radio and television broadcasting constitute different dimensions of the freedom of expression and dissemination of ideas.

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The first paragraph of Article 10 of the Convention states that “everyone has the right to freedom of expression.” This freedom is a vital condition for a democratic society, and the term “everyone” includes legal persons, human groups, and any kind of non-state organization. The ECHR interprets the freedom of expression quite broadly, and means of expression such as written press, radio, television, cinema are evaluated under this article. Political, commercial, and artistic aspects of expression are also included in this area.

For example, the ECHR considers restrictions on means of dissemination of thought as an indirect interference with the freedom of expression. As an example, a journalist or writer can express their thoughts through newspaper or magazine articles and publish them. However, if these articles violate the rights of others or incite hatred and hostility towards a particular group, the freedom of expression can be restricted. For instance, using discriminatory language towards an ethnic or religious group would exceed the limits of freedom of expression and may result in legal liability. As another example, an artist can express their thoughts through paintings, sculptures, or other artworks. However, if these works violate the rights of others or threaten public safety, the freedom of expression can be restricted. For instance, creating a work of art that damages social tolerance or promotes violence exceeds the limits of freedom of expression and may result in legal liability. As seen in these examples, the freedom of expression should be balanced with other rights and freedoms and its limits should be determined according to certain conditions.

Right to Association and Assembly

The Constitution contains provisions that define and protect various forms of freedom of association. Article 33 regulates the establishment of associations and foundations, while the right to form and join trade unions is set out in Articles 68 and 69. Article 33(1) stipulates that everyone has the right to establish an association, join or leave one, without requiring permission. However, the sixth paragraph allows for restrictions on these rights for members of the Armed Forces, law enforcement officials, and civil servants as required by their duties. Article 34 of the Constitution also guarantees everyone the right to hold meetings and processions. There is no difference between the Constitution and the Convention in this regard. Article 11(1) of the ECHR guarantees everyone the right to freedom of assembly and association, including the right to form and join trade unions. The second paragraph of this article sets out situations where this freedom can be limited for legitimate purposes, such as national security, public safety, public order, the prevention of crime, the protection of health or morals, or the protection of the rights and freedoms of others.

The European Court of Human Rights requires that interferences with the freedom of association and assembly be “prescribed by law”. This means that the interference or measure must have a legal basis in domestic law, the relevant legal rule must be accessible, and the consequences of non-compliance with the rule must be foreseeable. In a democratic society, interferences with the freedom of association and assembly must be appropriate for the enumerated restriction reasons. The ECtHR applies the principle of proportionality and examines whether there is a reasonable relationship between the interference caused by the restriction reason. The ECtHR recognizes that organizations that individuals use as a means of protecting and promoting their common interests are essential elements of a democratic and developed civil society. Furthermore, the freedom of association and assembly should be interpreted in conjunction with the Convention’s freedoms of thought, conscience, religion, and expression. The limitation reasons set forth in the Convention for the freedom of association and assembly are similar to those set forth in the Constitution. It appears that the Constitution provides more detailed and comprehensive limitation reasons for this freedom than the Convention. When an individual applies to the Constitutional Court through the individual application procedure, it is expected that the constitutional provisions will be interpreted in a manner consistent with the protection level of the rights and freedoms guaranteed by the Convention.

Right to Propert

The right to property is the most extensive power of control between a person and their belongings that is protected and regulated by the legal system. The person who holds the right to property has the right to use, benefit from, transfer, or destroy their belongings, and they can assert this right against anyone. The right to property is considered the “mother of all rights” from which all other rights derive, and it holds an important place among fundamental rights and freedoms.

Article 35 of the Constitution states that both individuals and legal entities have the right to property and inheritance, which can be limited by law for the public interest. Article 13 of the Constitution determines the reasons for limitations to fundamental rights and freedoms, including the right to property.

Article 1 of Protocol 1 to the European Convention on Human Rights (ECHR) requires states to protect the right to property of both natural and legal persons against interference, and lays out the principles to be followed in case of such interference. These principles include that the limitation must be for a legitimate aim in the public interest, that the interference must be in accordance with national or international law, and that there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, this Article grants the state the right to control the use of property for the public interest.

The second paragraph of this Article specifies the powers that states may use in the public interest, including “the taking of property, the imposition of taxes, and the confiscation of assets.” This provision also explains that there are certain concepts that hold a special status among the elements of the right to property.

The right to property includes all tangible and intangible assets, including movable and immovable property, claims, and any kind of monetary value. To explain the concept of intangible monetary value, it must manifest as a legitimate expectation based on a concrete legal document such as a law or a judicial decision, not just a personal hope for future events.

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For example, a company’s customer base or installment sales that are frequently used in daily life create a legitimate expectation that constitutes an element of the right to property. Savings are also included in the right to property and must be acquired in accordance with national legislation.

Other examples of assets that fall under the right to property include energy and natural resources, intellectual and industrial property rights, plants, compensation, and debt claims. While taxes and fines are also included in the right to property, it must be remembered that the protection is only for acquired assets and does not cover future expectations.

Article 1 of Protocol 1 to the ECHR, paragraph 1, states that the right to property of both natural and legal persons must be respected by everyone. States are obligated to ensure the inviolability of the right to property and to follow certain principles when interfering with it. These principles include that the limitation must be for a legitimate aim in the public interest, that the interference must be in accordance with national or international law, and that there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

Right to Education and Duty to Learn

The right to education is considered a personal, social, and cultural right that ensures respect for every individual’s personality, abilities, and dignity. This right has been recognized as a universal and fundamental human right by states and has been regulated in their constitutions and laws according to their own conditions.

In Turkey, Article 42 of the Constitution states that no one shall be deprived of the right to education, and this right is guaranteed to everyone regardless of religion, language, race, or gender. The principles that primary education is compulsory, education and teaching shall be conducted in accordance with Atatürk’s principles and reforms, and contemporary science and educational principles, and no language other than Turkish shall be taught, are also included in the Constitution.

Article 2 of the First Protocol to the Convention has assigned the duty to the state to ensure that the education and teaching of children is in conformity with the religious and philosophical convictions of their parents. The state is prohibited from providing education that is contrary to religious or philosophical beliefs.

Regarding individual applications, the right to education is evaluated together with Articles 42, 24/4, and 174 of the Constitution, and decided by the Constitutional Court. This right is protected without any conflict between constitutional regulations and the Convention.

Right to Free Elections

Article 3 of the First Protocol assigns the duty of conducting free elections to states. Free elections mean that voters are not forced to vote for a particular party or candidate. Elections should be held at reasonable intervals, in conditions where everyone can freely express their opinions and through secret ballot. This article includes the principle of equal treatment in voting and being elected in addition to the freedom of expression. The intervals and thresholds for elections can be determined in the domestic law of states. However, limitations should not violate the essence of the right, be made for legitimate purposes, and be proportionate to the purpose. In Turkey, the right to vote is given to citizens aged 18 and over. Some groups cannot vote, such as soldiers, those convicted of negligent crimes, and convicts in prisons. The principles to be applied in elections are regulated in the Constitution. Allegations of violations arising from the implementation of electoral legislation can be evaluated within the scope of individual applications. The right to vote and be elected should be protected by evaluating the institutions of freedom of expression and organization together. The Constitutional Court can protect rights and freedoms by interpreting the Constitution, which is the superior norm.

THE RIGHT TO EFFECTIVE REMEDY

The right to effective remedy means that individuals should have an effective and adequate way to challenge human rights violations in their domestic legal system. This remedy should not be theoretical or illusory, but should be available in practice and have the power to produce results. The Constitution and the ECHR provide individuals with individual complaint mechanisms to effectively challenge human rights violations. It is important for these remedies to be adequate and effective to ensure a fair process for the protection of individuals’ rights.

PRINCIPLE OF EQUALITY AND NON-DISCRIMINATION

Article 10 of the Constitution’s General Principles regulates the principle of equality. The Constitutional Court has also interpreted this principle in many of its decisions. The principle of equality aims to ensure that individuals in the same situation are subject to the same treatment under the law. It prevents discrimination and the creation of privileged individuals and groups. Article 14 of the ECHR states that there shall be no discrimination in the enjoyment of the rights and freedoms recognized in this Convention. However, Article 10 of the Constitution is more comprehensive and prohibits unequal treatment in all rights. Article 40 of the Constitution further expands the scope of the principle of equality. Since Turkey has not yet ratified the Seventh and Twelfth Protocols, the rule against discrimination in Article 14 of the Convention will form the general framework.

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For example, if a job advertisement states that only people of a certain gender, race, or religion can apply, this is a violation of the principle of equality in the Constitution and constitutes discrimination. Additionally, if a public service is only offered to a specific region or group, this is also a violation of the principle of equality and hinders other citizens’ right to access the same service. In such cases, affected individuals can go to court relying on the principle of equality in Article 10 of the Constitution.

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If you want to ask a question to a lawyer through online consultation service, many law firms and lawyer platforms offer this service. You can join one of these platforms and direct your question to your lawyer. You can receive the answers to your questions online and even schedule a follow-up appointment if necessary. It’s important to choose a reputable platform and lawyer to ensure that you receive accurate and reliable legal advice. With online consultation services, you can easily and conveniently get legal assistance without leaving your home or office.

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آیا خارجی که مرتکب تن فروشی می شود می تواند شهروند ترکیه باشد؟

فردی که مرتکب جرم فحشا می شود به دلیل برهم خوردن نظم عمومی و امنیت عمومی نمی تواند تابعیت ترکیه را کسب کند. دولت ترکیه به خارجی هایی که مرتکب تن فروشی شده اند یا نام آنها در صورتجلسه فحشا...

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