LAW 111 -

Basic
Legal
Terms and
Principles
Week 5: Legal Terms and Principles of
Human Rights Law
*Legal Terms and Principles of Constitutional
Law, which is the subject of the fourth week, will
be taught as an asynchronous course on
Tuesday (05.11.2024). The topic of the fifth week
has been prioritized because the information on
Human Rights is more detailed and is not
explained in a special section in many sources.

Dr. Simay Doğmuş Uz

[Link]@[Link]
THE AIMS OF THIS COURSE

1 2 3 4 5
Explain the Learn international Categorize human Discuss human Be aware of
principles of human and national rights right standarts universal, regional
rights human rights and national
standarts human rights
protection
mechanisms
THE CONCEPT
OF HUMAN • Human rights are the inherent(mündemiç) rights
of all human beings because they are human.

RIGHTS • These rights do not differentiate between

individuals.
• Human rights are universal rights that are equal,
inalienable, indivisible, interdependent, and
inherent to human beings.
• The general characteristics of human rights can
be expressed as: Universality (evrensellik)-
Individuality (bireysellik)-Immunity
(dokunulmazlık)-Absoluteness (mutlaklık)-
Inalienability and indispensability
(devredilmezlik ve vazgeçilmezlik)-The
primacy of human rights (insan haklarının
üstünlüğü).
• The struggle against rulers' unlimited absolute
power => The existence of human rights => Need
to limit absolute power in a constitutional status
=> the Magna Carta (1215), the Bill of Rights
(1628), the American Declaration of
Independence (1776), and the French Declaration
of the Rights of Man and the Citizen (1789).
• The emergence of the modern state + Dominance
of liberalism in the economic and political areas
=> The systematic emergence of human rights
• The first systematization of rights claims under
"human rights" coincides with the bourgeois
revolutions (burjuva devrimleri) of the 18th
century. This date also marks the beginning of the
adventure of human rights becoming the subject
• Human rights are superior to and take priority
over all other rights and rules of law.
• Human rights refer to all rights and freedoms
considered necessary for human beings,
whether or not they are recognized by positive
law (an ideal list of rights)!!
• Fundamental rights and freedoms (public
freedoms) refers to human rights recognized in
positive law. => not consistently fulfill this
ideal => may be limit, restrict, or even render
meaningless a particular human right.
• As a result, human rights cannot be reduced
only to written legal rules. Human Rights =
What is (Written law) + What Should Be
(Unwritten rights).
• New rights are constantly emerging, and
written documents may not set them out
immediately.
CLASSIFICATION OF HUMAN RIGHTS

may be may be
classified classified
according to according to
Jellinek's their
trilogy generation.

First- Second- Third-

generation generation generation
rights rights rights
 Third-generation
rights: These rights
Second-generation concern the right to
First-generation rights:
rights: These rights development, the right
These rights concern
concern social and to peace, the right to
civil and political
cultural rights, such as the environment, and
rights, such as
the right to form a the right to ownership
freedom of expression
trade union and the of mankind's common
and right to vote. They
right to education. heritage. They cannot
overlap with negative
They overlap with be realized through the
status rights and active
positive status rights. efforts of the State
status rights. They
They aim to ensure alone. They also
resulted from the
concrete equality and require the active
bourgeoisie's struggle
require positive action efforts of human
for rights and freedom.
by the State. communities. They
overlap with new-
generation rights.

Later, fourth-generation rights came on the agenda. These rights were put on the agenda in
response to the negative effects of scientific and technological developments. Today, for example,
the rights of the fetus and the prohibition of human genetic copying are mentioned in this concept.
• There is no hierarchical
understanding of human rights => no
priority is given to one generation of
rights or one human right over
another.
• Human rights ensure complete
freedom and protection for
individuals only if the rights of all
generations are fully guaranteed.
(indivisibility)
• In Turkish Constitution:
- Jellinek's classification was adopted
- First- and second-generation rights
are included
- Third and fourth-generation rights
are not categorically included.
 • The end of World War II + establishing the United Nations => the international
debate on human rights.

• The pioneering initiative: the establishment of the International Labor Organization

=> the first-time international protection and promotion of rights was proposed!!
INTERNATIONAL Subsequently;
HUMAN RIGHTS
• Universal protection was envisaged through various international organizations =>
STANDARDS the United Nations has set various standards for the universal protection of human
(INTERNATIONAL rights
PROTECTION • Regional protection was envisaged through regional organizations The Organization
HUMAN RIGHTS) for Security and Co-operation in Europe, the European Union, and the Council of
Europe have also set standards for the regional protection of human rights within
Europe.

• In order to comply with such universal or regional human rights standards:

- States must either become member states by accepting the constituting document of
the relevant international organization that establishes the standards

or

- States must become parties to the relevant convention and, where applicable, accept
its supervisory authority.
 The United Nations System as
a Universal System of
Protection
• Before the establishment of the United Nations;

- Human rights were not a subject of international law.

- Problems related to human rights were recognized as a matter of

national law.

- The only subject of international law was the state.

• With this system, the individual began to be seen as a subject of

international law with rights!!

• The United Nations human rights protection system can be analyzed

under two headings:

- The protection system established directly under the United Nations

Charter

- The protection system based on the human rights treaties adopted at

different times within the United Nations.
1. The Protection System Established
under the United Nations Charter
• Three bodies operate the human rights protection system:
a) The Office of the United Nations High Commissioner for Human
Rights: is mandated to promote and protect human rights. The High
Commissioner is also responsible for the human rights secretariat of
the United Nations and coordination among the relevant institutions.
b) The International Criminal Court: is authorized to hear cases
regarding crimes of genocide (soykırım), war crimes, crimes against
humanity, and crimes of aggression (saldırı suçları) with an
international dimension.
c) The Human Rights Council: replaced the Human Rights Commission.
The Council investigates continuing gross human rights violations to
generate international concern and public opinion. The results of these
investigations are not binding on states but are advisory in nature.
United Nations member states also report every four years on what
they have done to improve their countries' human rights situation and
fulfill their human rights obligations under the Universal Periodic
Review (UPR) system. The Human Rights Council evaluates the
reports.
2. Protection System a. Universal Declaration of Human
Rights (İnsan Hakları Evrensel
Based on Various Beyannamesi) : was the pioneer of
conventions protecting human rights.
Human Rights • It consists of an introduction and thirty
Treaties articles. The Declaration emphasizes the
need for "the protection of human rights
through the rule of law" so that people
do not have to resist persecution
(zulüm) and oppression (baskı).

• The Declaration regulates first—and

second-generation rights together. The
last two articles also regulate how these
rights can be restricted.
• The main features of the Universal Declaration of Human Rights:

- First- and second-generation rights are regulated together in the

Declaration.
- The Declaration formulates several rights from an international
perspective that are not usually included in national declarations and
constitutions (e.g., the right of everyone to move and reside freely within
the territory of any state, the right to seek asylum (iltica) in other
countries, and the right to become a refugee (mülteci)).
- The Declaration is the first international document to set out a list of
human rights.
- The Declaration is not a treaty or convention. The Declaration is a
resolution of the General Assembly of the United Nations. Therefore, it
is not legally binding. It does not impose any obligations on States that
recognize it.
- Subsequent instruments in the field of international human rights law
have always been based on this Declaration. This Declaration has
inspired the drafting of some constitutions, and some constitutions even
directly reference the Declaration. The two most important of these kinds
of conventions are the Twin Conventions of 1966:
a) The International Covenant on Civil and Political Rights: It contains
various standards for first and third-generation rights.
b) The International Covenant on Economic, Social, and Cultural Rights: It
contains various standards for second-generation rights.
b. Other Conventions

• International Convention on the Elimination of All Forms of Racial Discrimination (Uluslararası Irk Ayrımcılığının Tüm Biçimlerinin
Kaldırılması Sözleşmesi): Committee on the Elimination of Racial Discrimination

• Convention on the Elimination of All Forms of Discrimination against Women (Kadınlar Arasında Tüm Ayrımcılık Biçimlerinin
Kaldırılması Sözleşmesi): Committee on the Elimination of Discrimination against Women

• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(İşkenceye ve Başka Zalimce, İnsanlık dışı ya
da Onur Kırıcı Ceza ya da Davranışlara Karşı Sözleşme): Committee against Torture

• Convention on the Rights of the Child (Çocuk Hakları Sözleşmesi): Committee on the Rights of the Child

• International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Uluslararası Tüm
Göçmen İşçilerin ve Aile Üyelerinin Korunması Sözleşmesi): Committee on Migrant Workers

• International Convention for the Protection of All Persons from Enforced Disappearance (Bütün Kişilerin Zorla Kayıp Edilmesinden
Korunması Uluslararası Sözleşmesi): Committee on Enforced Disappearances

• Convention on the Rights of Persons with Disabilities (Engelli Kişilerin Hakları Sözleşmesi): Committee on the Rights of Persons with
Disabilities
 The Council of Europe as a
Regional Protection System
•All European countries that are committed to the principles of the
rule of law and respect for fundamental human rights and freedoms can
become members.
•The main body of the Council of Europe on human rights is the
Office of the Commissioner for Human Rights. It has no sanctioning
power. Its duties are:
- Human rights education and human rights awareness in member states,
- To ensure that member states comply with the decisions of the
European Court of Human Rights, the Council, and the Committee of
Ministers.
•The Council of Europe has many human rights conventions. The
main ones are listed below:
- European Convention on Human Rights (Avrupa İnsan Hakları
Sözleşmesi)
- European Social Charter (Avrupa Sosyal Şartı)
- European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (İşkencenin ve Gayrıinsani ya da
Küçültücü Ceza Veya Muamelenin Önlenmesine Dair Avrupa
Sözleşmesi)
- Framework Convention for the Protection of National Minorities
(Ulusal Azınlıkların Korunmasına İlişkin Çerçeve Sözleşme).
 The European Convention on Human Rights
• The European Convention on Human Rights is an international treaty in which member states
pledge(taahhüt etmek) to guarantee fundamental civil and political rights for everyone within
their jurisdiction!!

- bringing human rights up to international standards!!

- making the individual a rights-holder in international law!!

- making State as a defendant in front of an international court and imposing sanctions on

them!!

• The Convention includes a category of personal and political rights => As a rule, social and
economic rights are not included in the Convention. (These rights are regulated in the
European Social Charter.) => the Convention regulates only a limited number of rights.

• The elements of regulated rights are not regulated in detail. (DISADVANTAGE !!!!) X More
rights and freedoms have been included in the Protocols to the Convention !! + The European
Court of Human Rights extends the scope of existing rights through its jurisprudence !! +
Court may also protect certain rights related to regulated rights or can be considered as an
element of them !!

• The remedies provided by the Convention may only be brought after exhaustion of domestic
remedies =>The guarantee provided by the Convention is secondary !!

• The human rights standards recognized by the Convention are not based on reciprocity
(karşılıklılık-mütekabiliyet).
 •The European Court of Human Rights was established to monitor respect for human rights in
the member states. While monitoring, the Court interprets the European Convention on Human
Rights provisions. => The European Convention on Human Rights is a living instrument.
•Today, the European Court of Human Rights is the supervisory body of the European
Convention on Human Rights.
•The scope of the European Court of Human Rights jurisdiction covers violations of the
European Convention on Human Rights brought as individual or inter-state applications. => Two
types of applications could be brought in front of the European Court of Human Rights against
member state(s).
a) inter-state applications brought by state(s) (article 33 of the
European Convention on Human Rights): They were accepted
because each member state is individually responsible for
protecting the rights and freedoms guaranteed by the Convention,
and thus, a European public order is sought. Each member State
is obliged to monitor compliance with the Convention by other
States Parties. On this basis, it is possible for States, individually
or jointly with other States, to bring a complaint against another
State, whether or not they are interested in doing so.

b) individual applications brought by an individual, group of

individuals, non-governmental organizations, and companies
(article 34 of the European Convention on Human Rights):
They must meet the requirements in the Convention to be
examined by the European Court of Human Rights. In the first
stage, the application is reviewed to see whether it is admissible
(kabul edilebilir). If it is declared inadmissible, no further
examination will be made on the application. For the Court to
proceed to the merits, the application shall be made,

- by a personally and directly affected victim of one or more rights

under the European Convention on Human Rights violation,
- after exhaustion of domestic remedies,
- within six months following the last judicial decision on the case
(Article 35).
• The Court makes a judgment on the
admissible individual or State applications.
Judgments of the Court have binding force
on the member states that undertake to
execute them. The Committee of Ministers of
the Council of Europe monitors the
execution of judgments. After making the
judgment, the European Court of Human
Rights delivers the judgment to the
Committee of Ministers of the Council of
Europe. The Committee authorizes the State
to execute the judgment (Article 46).
NATIONAL HUMAN RIGHTS STANDARDS
(NATIONAL PROTECTION HUMAN RIGHTS)

A. Basic Principles on Fundamental Rights and Freedoms in

the 1982 Constitution
• The introduction part of the Turkish Constitution states that
every Turkish citizen has the right to have the fundamental
rights and freedoms laid down in the Constitution by
"equality" and "social justice" to lead an honorable life and to
improve their material and spiritual well-being under the
national culture, civilization, and the rule of law. Provisions
governing human rights under the Turkish Constitution first
give a definition, then set the rules on restriction and
prohibition of abuse of them.
• (Her Türk vatandaşının bu Anayasadaki temel hak ve
hürriyetlerden eşitlik ve sosyal adalet gereklerince
yararlanarak milli kültür, medeniyet ve hukuk düzeni içinde
onurlu bir hayat sürdürme ve maddi ve manevi varlığını bu
yönde geliştirme hak ve yetkisine doğuştan sahip olduğu … )
• Article 12 states, "Everyone owns inherent fundamental rights
and freedoms, which are inviolable and inalienable. The
fundamental rights and freedoms also comprise the duties and
responsibilities of the individual to the society, their family, and
other individuals. ”

• (Herkes, kişiliğine bağlı, dokunulmaz, devredilmez, vazgeçilmez

temel hak ve hürriyetlere sahiptir. Temel hak ve hürriyetler,
kişinin topluma, ailesine ve diğer kişilere karşı ödev ve
sorumluluklarını da ihtiva eder.)

• Article 13 states that "Fundamental rights and freedoms may be

restricted only by law and in conformity with the reasons
mentioned in the relevant articles of the Constitution without
infringing upon their essence (özlerini ihlal eden). These
restrictions shall not be contrary to the letter and spirit of the
Constitution and the requirements of the democratic order of the
society and the secular republic and the principle of
proportionality (ölçülülük ilkesi)."

• (Temel hak ve hürriyetler, özlerine dokunulmaksızın yalnızca

Anayasanın ilgili maddelerinde belirtilen sebeplere bağlı olarak
ve ancak kanunla sınırlanabilir. Bu sınırlamalar, Anayasanın
sözüne ve ruhuna, demokratik toplum düzeninin ve lâik
Cumhuriyetin gereklerine ve ölçülülük ilkesine aykırı olamaz.)
• The Turkish Constitution also sets minimum standards for protecting human rights under a state of
emergency.
• Article 15 states that "In times of war, mobilization, a state of emergency, the exercise of fundamental
rights and freedoms may be partially or entirely suspended, or measures derogating the guarantees
embodied in the Constitution may be taken to the extent required by the exigencies of the situation, as
long as obligations under international law are not violated. Even under the circumstances indicated in the
first paragraph, the individual's right to life and the integrity of his/her human and spiritual existence shall
be inviolable except where death occurs through acts in conformity with the law of war; no one shall be
compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them;
offenses and penalties shall not be made retroactive; nor shall anyone be held guilty until so proven by a
court ruling.”
• (Savaş, seferberlik (…) veya olağanüstü hallerde, milletlerarası hukuktan doğan
yükümlülükler ihlal edilmemek kaydıyla, durumun gerektirdiği ölçüde temel hak ve
hürriyetlerin kullanılması kısmen veya tamamen durdurulabilir veya bunlar için
Anayasada öngörülen güvencelere aykırı tedbirler alınabilir. Birinci fıkrada belirlenen
durumlarda da, savaş hukukuna uygun fiiller sonucu meydana gelen ölümler (…)
dışında, kişinin yaşama hakkına, maddi ve manevi varlığının bütünlüğüne
dokunulamaz; kimse din, vicdan, düşünce ve kanaatlerini açıklamaya zorlanamaz ve
bunlardan dolayı suçlanamaz; suç ve cezalar geçmişe yürütülemez; suçluluğu
mahkeme kararı ile saptanıncaya kadar kimse suçlu sayılamaz.)
• To comply with international standards, amendments to the
Constitution and some legal reforms took place under the Turkish
legal system.

• The most important one is Article 90/5 of the Constitution.

• It states, "International agreements duly put into effect have the force
of law. No appeal to the Constitutional Court shall be made about
these agreements because they are unconstitutional. In the case of a
conflict between international agreements, duly put into effect,
concerning fundamental rights and freedoms and the laws due to
differences in provisions on the same matter, the provisions of
international agreements shall prevail.".

• (Usulüne göre yürürlüğe konulmuş Milletlerarası andlaşmalar kanun

hükmündedir. Bunlar hakkında Anayasaya aykırılık iddiası ile
Anayasa Mahkemesine başvurulamaz. Usulüne göre yürürlüğe
konulmuş temel hak ve özgürlüklere ilişkin milletlerarası
andlaşmalarla kanunların aynı konuda farklı hükümler içermesi
nedeniyle çıkabilecek uyuşmazlıklarda milletlerarası andlaşma
hükümleri esas alınır.)

• In this respect, international human rights agreements precede national

laws. In other words, the former will prevail if a conflict exists
between an international agreement and national law. Therefore,
article 90/5 of the Constitution prioritizes international human rights
agreements over statutory norms. However, the Constitution will
prevail if there is a conflict between international human rights
agreements and Constitutional provisions.
• Fundamental rights and
freedoms are regulated under the
Constitution's headings of
- Rights and Duties of the
Individual
- Social and Economic Rights and
Duties
- Political Rights and Duties.
• These rights and duties are
classified according to Jellinek's
trilogy classification => It
corresponds to first- and second-
generation rights.
B. Individual Application to the Constitutional Court
• The individual application has been introduced into the Turkish Legal System
by the constitutional amendment made on 12.09.2010 with Law No 5982. By
this amendment, the individual application was regulated in Article 148 of the
Constitution as follows:

"The Constitutional Court shall … decide on individual applications. … Everyone

may apply to the Constitutional Court if they believe that public authorities have
violated one of the fundamental rights and freedoms guaranteed by the Constitution
within the scope of the European Convention on Human Rights. Ordinary legal
remedies must be exhausted in order to make an application. In the individual
application, judicial review shall not be made on matters required to be considered
during the process of legal remedies. Procedures and principles concerning the
individual application shall be regulated by law.”

(Anayasa Mahkemesi, … bireysel başvuruları karara bağlar. … Herkes, Anayasada

güvence altına alınmış temel hak ve özgürlüklerinden, Avrupa İnsan Hakları
Sözleşmesi kapsamındaki herhangi birinin kamu gücü tarafından, ihlal edildiği
iddiasıyla Anayasa Mahkemesine başvurabilir. Başvuruda bulunabilmek için olağan
kanun yollarının tüketilmiş olması şarttır. Bireysel başvuruda, kanun yolunda
gözetilmesi gereken hususlarda inceleme yapılamaz. Bireysel başvuruya ilişkin usul
ve esaslar kanunla düzenlenir.)

• In light of this regulation, the rules and procedures regarding the individual
application are set out in the Law on the Establishment and Judicial
Procedures of the Constitutional Court.
 • There is no clear definition of individual application
in the Constitution or the Law on Establishment and
Judicial Procedures of the Constitutional Court.
• In doctrine, individual application is defined as; "an
extraordinary legal remedy to be used in front of the
constitutional court after exhaustion of ordinary legal
remedies, and granted for the individuals, whose
fundamental rights and freedoms guaranteed both by the
Constitution and the European Convention on Human
Rights, were alleged to be violated by public acts, actions or
negligence."
• Article 45/1 of the Law on Establishment and Judicial
Procedures of the Constitutional Court states, "Everyone
can apply to the Constitutional Court based on the claim
that any one of the fundamental rights and freedoms within
the scope of the European Convention on Human Rights
and the additional protocols to it, to which Turkey is a party,
which are guaranteed by the Constitution has been violated
by public force." (Herkes, Anayasada güvence altına
alınmış temel hak ve özgürlüklerinden, Avrupa İnsan
Hakları Sözleşmesi ve buna ek Türkiyenin taraf olduğu
protokoller kapsamındaki herhangi birinin kamu gücü
tarafından, ihlal edildiği iddiasıyla Anayasa Mahkemesine
 •The Law on Establishment and Judicial
Procedures of the Constitutional Court expands the
scope of exhaustion of remedies laid down in the
Constitution => The Constitution requires
exhaustion of legal remedies but article 45/2 of the
Law on Establishment and Judicial Procedures of
the Constitutional Court requires exhaustion of all
the administrative and judicial remedies regarding
acts, actions, or negligence causing a violation.
(İhlale neden olduğu ileri sürülen işlem, eylem ya
da ihmal için kanunda öngörülmüş idari ve
yargısal başvuru yollarının tamamının bireysel
başvuru yapılmadan önce tüketilmiş olması
gerekir.)

• The Constitutional Court underlined that

recourse to a legal remedy does not satisfy the
requirement of exhaustion of legal remedies in a
case. => After applying for a legal remedy, an
individual has to wait for the outcome to exhaust
legal remedies !! Withdrawing from the
application of a legal remedy also does not amount
to exhaustion of a legal remedy !! => An
application for a legal remedy does not suffice for
exhaustion => such an application has to be
 •According to the Constitution, "violations committed by public power" are subject to individual
application. Article 45/3 of the Law on the Establishment and Judicial Procedures of the Constitutional Court
restricts the scope of public power.

•According to Article 45/3 "Legislative acts and regulatory, administrative acts cannot be directly subject to
the individual application, nor can the decisions of the Constitutional Court and the acts excluded from judicial
review by the Constitution." (Yasama işlemleri ile düzenleyici idari işlemler aleyhine doğrudan bireysel başvuru
yapılamayacağı gibi Anayasa Mahkemesi kararları ile Anayasanın yargı denetimi dışında bıraktığı işlemler de
bireysel başvurunun konusu olamaz.)

- legislative acts and legislative decrees,

- regulatory, administrative acts,
- decisions of the Constitutional Court,
- acts of the President of the Republic in his/ her competence (Article 125/2 of the Constitution),
- decisions of the Supreme Military Council on promotion and retirement due to lack of tenure (Article 125/2 of
the Constitution),
- decisions of the High Council of Judges and Prosecutors other than dismissal from the profession (Article
159/10 of the Constitution).
 • For the Constitutional Court to examine the application on merits, the Court first makes a pre-examination and considers standing, subject
matter, exhaustion of legal remedies, and duration. Despite the criteria mentioned above having been fulfilled, the Constitutional Court is
still not obliged to examine the case.

• Article 48/2 provides that the Constitutional Court may decide on inadmissibility in cases of:

- applications that both have minor importance regarding the application and interpretation of the Constitution or the scope and limits of
fundamental rights and where the applicant does not incur any loss,

- applications that lack any ground.

(Mahkeme, Anayasanın uygulanması ve yorumlanması veya temel hakların kapsamının ve sınırlarının belirlenmesi açısından önem taşımayan ve
başvurucunun önemli bir zarara uğramadığı başvurular ile açıkça dayanaktan yoksun başvuruların kabul edilemezliğine karar verebilir.)

• According to Article 50/1, the Constitutional Court decides whether the applicant's fundamental rights and freedoms are violated. If the
Constitutional Court finds a violation of the fundamental rights and freedoms of the applicant, it shall decide on any means necessary to
remove all consequences of the violation. In addition, a review of practicality is not allowed, and the Constitutional Court is not permitted
to make decisions that could be characterized as having the quality of an administrative act and action.

(Esas inceleme sonunda, başvurucunun hakkının ihlal edildiğine ya da edilmediğine karar verilir. İhlal kararı verilmesi hâlinde ihlalin ve
sonuçlarının ortadan kaldırılması için yapılması gerekenlere hükmedilir. Ancak yerindelik denetimi yapılamaz, idari eylem ve işlem niteliğinde
karar verilemez.)
 •The characteristics of the individual application to the
Constitutional Court can be listed as follows:

- It was introduced to protect the fundamental rights and

freedoms established by the Constitution and the law
(limited to the constitutional rights established by the
European Convention on Human Rights and its Additional
Protocols).
- It is an exceptional remedy.
- It may be invoked after all other remedies under domestic
law have been exhausted.
- Secondary (principle of subsidiarity).
- It is an exceptional remedy but not an extraordinary remedy.
- Must be exhausted before applying to the European Court of
Human Rights

•The decisions of the Constitutional Court on individual

applications are also binding and must be complied with
immediately.
Other National Protection Mechanisms
• The most important of these mechanisms is the application to the
Human Rights and Equality Institution of Turkey.
The first article of the founding law of the institution states that the Human
Rights and Equality Institution of Turkey was established "to protect and
promote human rights based on human dignity, to guarantee the right of
individuals to equal treatment, to prevent discrimination in the enjoyment
of legally recognized rights and freedoms and to act by these principles, to
struggle torture and ill-treatment effectively and to fulfill the duty of the
national prevention mechanism in this regard.".
(… insan onurunu temel alarak insan haklarının korunması ve
geliştirilmesi, kişilerin eşit muamele görme hakkının güvence altına
alınması, hukuken tanınmış hak ve hürriyetlerden yararlanmada
ayrımcılığın önlenmesi ile bu ilkeler doğrultusunda faaliyet göstermek,
işkence ve kötü muameleyle etkin mücadele etmek ve bu konuda ulusal
önleme mekanizması görevini yerine getirmek üzere Türkiye İnsan Hakları
ve Eşitlik Kurumunun kurulması …)
• Applications to the commissions of the Grand National Assembly of
Turkey are also considered within this framework. Such requests are
supported by commissions consisting of Parliament members, and
therefore, they are political.
• The Constitution provides that citizens (and foreigners, subject to
reciprocity) may apply to these commissions through petitions.
Article 74 of the Constitution states that "citizens and foreigners residing in
Turkey based on reciprocity have the right to submit their petitions and
complaints concerning themselves or the public in writing to the competent
authorities and the Grand National Assembly of Turkey.".
(Vatandaşlar ve karşılıklılık esası gözetilmek kaydıyla Türkiye’de ikamet
eden yabancılar kendileriyle veya kamu ile ilgili dilek ve şikayetleri
hakkında, yetkili makamlara ve Türkiye Büyük Millet Meclisine yazı ile
başvurma hakkına sahiptir.)
• Finally, a third remedy may be to apply to the Office of the Ombudsman.
Article 73/4-5 of the Constitution states, "Everyone has the right to obtain information
and apply to the Ombudsman. The Ombudsman Office, established under the
Presidency of the Grand National Assembly of Turkey, examines complaints about the
functioning of the administration".
(Herkes, … kamu denetçisine başvurma hakkına sahiptir. Türkiye Büyük Millet
Meclisi Başkanlığına bağlı olarak kurulan Kamu Denetçiliği Kurumu idarenin
işleyişiyle ilgili şikâyetleri inceler. )
The first article of the founding law of the Ombudsman states that the Ombudsman
Office was established "to examine, investigate and make recommendations on all
kinds of actions and transactions, attitudes and behaviors of the administration in
terms of compliance with law and equity, within the understanding of justice based on
human rights, by establishing an independent and effective complaint mechanism in
the functioning of public services.".
(…kamu hizmetlerinin işleyişinde bağımsız ve etkin bir şikâyet mekanizması
oluşturmak suretiyle, idarenin her türlü eylem ve işlemleri ile tutum ve davranışlarını;
insan haklarına dayalı adalet anlayışı içinde, hukuka ve hakkaniyete uygunluk
yönlerinden incelemek, araştırmak ve önerilerde bulunmak üzere Kamu Denetçiliği
Kurumunu oluşturmak …)
ABOUT THE MIDTERM EXAM:
 The midterm exam will consist of multiple-choice and short-answer essay questions.
 The duration of the exam will be 1 hour.
 The exam will cover our first 5 weeks of topics. Accordingly, the midterm topics will be as follows
- Basic Legal Concepts
- Legal Methods
- Rights, Duties and Penalties and Introduction to the Fields of Law
- Legal terms and principles of constitutional law
- Legal terms and principles of human rights law
 Legal Terms and Principles of Constitutional Law will be taught as an asynchronous lecture on
Tuesdays (05.11.2024). The last lecture before the midterm on 08.11.2024 will not be included in
the midterm responsibility.
 Sample questions for Legal Terms and Principles of Constitutional Law and Human Rights Law
will be shared next week.