Fundamental Rights and Liberties Within the Turkish Constitutional System

The fundamental rights and freedoms in the Turkish constitutional system have gradually found their way over time. With the democratization movements that started before the Republican era, fundamental rights and freedoms have been gradually taken under protection. In the early years of the Republic, these rights and freedoms remained in the background. The 1924 Constitution includes the definition and names of fundamental rights and freedoms. Unlike this situation, the 1961 Constitution did not only mention the names of the rights. With this constitution, fundamental rights and freedoms have been comprehensively handled and regulated. The fundamental rights and freedoms of the person and political rights have been developed. In addition, social and economic rights are included for the first time. These fundamental rights and freedoms have been limited by some laws. However, restrictions were imposed on the legislature and the protection of rights was aimed. The 1961 constitution also gave the state some duties for the proper implementation of social rights. For the first time, the Constitutional Court entered the Turkish constitutional system with this constitution. This new Constitutional Court could prevent the legislature from limiting the fundamental rights and freedoms unconstitutionally. Since the late 1960s, political violence and terrorist incidents spread in the country. The country entered a period of a regime based on the fact that the executive could not improve the deteriorated public order. In this period, some constitutional amendments were made. Some of these changes restricted fundamental rights and freedoms. These amendments turned back the rights that the 1961 Constitution tried to protect. All this showed that the 1982 Constitution was needed.

The approach of the 1982 Constitution to fundamental rights and freedoms has also been changed many times. The most important of these changes was made in 2001. Thus, the constitution's attitude towards fundamental rights and freedoms has been improved and criticism has been reduced. In the 1982 Constitution, fundamental rights and freedoms are included in the second part. There are also some articles related to these rights in the general provisions of the Constitution. With these basic substances, the immunity of the fundamental rights and freedoms of the person is protected. It is ensured that Turkish citizens can use their fundamental rights and freedoms in accordance with equality and social justice. In the new constitution, as in the 1961 Constitution, the adjectives "untouchable, non-transferable, indispensable" are used for these rights. However, these adjectives do not mean that fundamental rights and freedoms cannot be limited. It states that these rights cannot be abolished and there are no transfer or waiver rights. As a matter of fact, the 1982 Constitution included many general provisions regarding the restriction of these rights, especially in relation to the regime in which it came into force. Healing provisions were introduced for these limitations in changes made over time. In the first regulation of the Constitution, the general limitation applicable to every fundamental right and freedom was abolished with the amendment in 2001. With this amendment, the general restrictions, which are highly criticized, laws based on the reasons for special restrictions have been adopted. Thus, the 1982 Constitution became a guarantee for fundamental rights and freedoms. The European systematic with the European Convention on Human Rights and the European Court of Human Rights was adopted with the 2001 amendment. Accordingly, each right and freedom is regulated in a separate article. First of all, the definition of each right and freedom has been made, and then the use of these rights has been regulated and the conditions of the restrictions have been added.

The Constitution has set many conditions when fundamental rights and freedoms need to be limited. In a normal case, restrictions should be made by law. A limitation should be based on the reasons stated in the relevant article of the constitution. The restriction should be in accordance with the spirit and essence of the constitution and should not be against the social order. In addition, while restricting, the essence of fundamental rights and freedoms cannot be touched. Limitations cannot be against the requirements of the secular Republic. Finally, a limitation should also conform to the principle of proportionality. In an extraordinary situation, there are some conditions in the case of restrictions on these rights. First, there must be a war, mobilization, or state of emergency. Secondly, contracts arising from international law should not be violated. Also, these limitations cannot be against the principle of proportionality. And last but not least, there is a ban on touching the core area.

Unlike the 1961 Constitution, the 1982 Constitution referred to fundamental rights and freedoms not only as liberties but also as tasks. Fundamental human rights and freedoms are among the 12th and 74th articles of the constitution. These items consist of four parts. The first part covers the part between Articles 12 and 16. General provisions are mentioned in this section. The nature of the fundamental rights and freedoms, their limitations, their inability to abuse, the cessation of their use, and the situation of foreigners. The second section covers Articles 17 and 40. The rights and duties of the person are stated here. These rights are considered negative status rights. These rights are the rights and freedoms that the state cannot interfere with. Thanks to these substances, it is guaranteed. In the third section, there is the section between Articles 41 and 65. Social and economic rights and duties are specified in this section. These rights emerged as a result of the understanding of the social state and were taken under protection. Many of these rights are considered positive status rights. The fourth and last chapter explains political rights and duties. This section is located between Articles 66 and 74. These rights are also called citizenship rights and are only valid for citizens of Turkey. It is the right of individuals to participate in state administration and political activities. These rights can also be defined as active status rights.

Although fundamental rights and freedoms are guaranteed by the constitution, in some cases these rights may be violated. No matter who has committed this violation, there are mechanisms by which a person can apply to protect their rights. For example, fundamental rights and liberties have been gathered under a constitution in order not to violate these rights by the legislature. Thus, legislative protection cannot interfere with these rights. If it interferes, an application can be made to the Constitutional Court. With the amendment made in 2011, the Constitutional Court has become open to individual applications. Again, these rights have the guarantee of “Protection by Administrative Jurisdiction”. In other words, if fundamental rights and liberties are violated by the executive body, there is a way of judgment for the cancellation of this process and the elimination of damages. Violations of fundamental rights and freedoms by another private personality are frequently encountered. In this case, the rights are protected by judicial justice. These violations are often considered a crime in terms of criminal law, depending on the nature of the event. The person may be sued for compensation or criminal proceedings. Finally, there are many international mechanisms for the protection of fundamental rights and freedoms. “United Nations Human Rights Commission”; Many committees and committees, such as the "Human Rights Committee", "Racial Discrimination Committee", "And Torture Prevention Committee", work for these rights. However, the most important of these mechanisms are the European Convention on Human Rights and the European Court of Human Rights. We can apply to all these judicial bodies in cases where our fundamental rights and specificities are threatened or violated.