What place does the European Convention on Human Rights hold in Turkish law? The answer lies not in the Convention itself but in Art. 90 of the Constitution.
The Place of Agreements in Law - Art. 90/5
The final paragraph of Art. 90 of the Constitution: international agreements duly put into force have the force of law. No application may be made to the Constitutional Court alleging their unconstitutionality.
(Added sentence: 7/5/2004-5170/7) In disputes that may arise because international agreements on fundamental rights and freedoms duly put into force and statutes contain different provisions on the same subject, the provisions of the international agreement prevail.
What Does That Sentence Bring?
| Element | Content |
|---|---|
| Which agreements? | Those concerning fundamental rights and freedoms |
| Condition | Having been duly put into force |
| When does it come into play? | If the agreement and the statute contain different provisions on the same subject |
| Result | The provisions of the international agreement prevail |
| Date of addition | 7/5/2004 - Art. 7 of Law No. 5170 |
The Convention's Trace in the Constitution: Art. 148
The Constitution also contains a provision referring to the European Convention on Human Rights by name. The paragraph added to Art. 148 in 2010:
(Added paragraph: 7/5/2010-5982/18) Everyone may apply to the Constitutional Court alleging that any one of their fundamental rights and freedoms guaranteed in the Constitution and falling within the scope of the European Convention on Human Rights has been violated by a public authority. In order to make an application, the ordinary legal remedies must have been exhausted.
We cover the procedure of individual application in the individual application guide.
The Structure of the Two Texts on Freedom of Expression
Art. 26 of the Constitution and the freedom of expression article of the Convention set up a similar structure: first the right, then the grounds of limitation. The counterparts in the Constitution:
| Structural element | Its counterpart in the Constitution |
|---|---|
| The scope of the right | Art. 26/1 - expression and dissemination; the liberty to receive and impart news or ideas |
| Grounds of limitation | Art. 26/2 - eleven grounds |
| The condition of legality | Art. 13 - only by law |
| Necessity in a democratic society | Art. 13 - the requirements of the democratic order of society |
| Proportionality | Art. 13 - the principle of proportionality |
| The permission system in broadcasting | Art. 26/1, last sentence; Art. 133/1 |
A Note on Sources
The Practical Result
- If a statutory provision and an agreement on fundamental rights and freedoms contain different provisions on the same subject, the agreement prevails (Art. 90/5).
- That precedence operates against statutes, not against the Constitution.
- No application may be made to the Constitutional Court alleging that agreements are unconstitutional (Art. 90/5, first sentence).
- A violation of a right within the scope of the Convention is one of the criteria of scope of the individual application (Art. 148).
Summary
International agreements duly put into force have the force of law and no application may be made to the Constitutional Court alleging their unconstitutionality. Under the sentence added in 2004, where agreements on fundamental rights and freedoms and statutes contain different provisions on the same subject, the provisions of the agreement prevail. Art. 148 of the Constitution, in turn, limits the individual application to rights guaranteed in the Constitution and falling within the scope of the Convention.