The Constitutional Integration Effect of Funadamental Rights and Freedoms on the Third Person In Turkish Law

CONTENTS

I - THE CONSTITUTIONAL INTEGRATION OF LEGAL NORMS
A - DEFINITION
B - TYPES

II - THE EFFECT OF FUNDAMENTAL RIGHTS AND FREEDOMS ON THE THIRD PERSON (DRITTWIRKUNG)
A - DEFINITION
B - THE DIMENSIONS OF THE IMPACT OF FUNDAMENTAL RIGHTS AND FREEDOMS
C - THE APPEARANCE OF THE IMPACT OF FUNDAMENTAL RIGHTS AND FREEDOMS

CONCLUSION

BIBLIOGRAPHY

INTERNET RESOURCES

I - THE CONSTITUTIONAL INTEGRATION OF LEGAL NORMS

A - DEFINITION

The constiutional integration means the legal harmony among all legal rules according to the whole constitutional norms and no legal conflict against the constitutional aims in legal theory and practice. The quality of legal harmony does not imply the same establishment of legal norms. Thus, all legal rules order different legal topics and they don’t have same expression. On the other hand, all legal rules have the same philosophy ordered by the constitutional mentality.

In the light of the information mentioned above, there are two constitutional integration tools of legal norms. The first tool is the tool of statement. The tool of statement means the constitutional explanation of legal rules. It makes the constitution stronger in its legal meaning with the explanation of legal norms including constitutional rules in the axis of the internal and external constitutional norms. Therefore, escaping from the constitution is hindered by constitutional norms and the situation is supported by other legal norms created by constitution due to the realisation of constitutional openness providing the known duties of the authorities. Therefore, the constitutional execution needs concrete constitutional rules and other legal rules for providing the constitutional order in legal life.

The second tool is the tool of completion. This tool is named for the compenstation of legal deficiencies against constitutional rules. It is clear that it reflects constitutional aims within other legal norms. But the tool of completion is restricted by the scope of the related norms because the norms have the special scope and they order the legal life within their scopes permitted under the constitutional rules.

The external view of constitutional integration is a mission of cooperation among all legal norms. This cooperation consists of all legal norms. The unity of many factors also creates the constitutional solidarity by the constitutional norms and the constitutional integration of the legal rules. This view can be called the diffusion effect of the constitutional norms in Turkish constitutional law^[1]. It shows that the effective constitutional cooperation is necessary to make a constitutional enforcement, as well.

Additionally, a statement of the effective field of constitutional integration is very important. After the constitution, the legal norms which are in order statutes, regulations, by-laws and circulars come. The levels of legal norms constituting the legal order are from the highest legal place to the least legal order. This rank indicates the constitutional integration in the lights of the hierarchy of norms.

On the other hand, the timing of constitutional integration is also controversial. The constitutional integration procedures are constant. That is why; the restricted exceptions of this rule are determined within the constitution. The duration of the extraordinary event makes possible the period of deviation from the constitutional integration. In such cases, the features of this deviation made possible by norms in the field of the powers of authorities should be adapted by the constitution and shouldn’t contradict the fundamental constitutional values which are unchangeable constitutional provisions. It is the fact that constitutional deviation has a temporary effect and creates a temporary duration for the stable constitutional period, thus; deviation from the constitution creates an exception in the aspect of the constitutional restrictions.

According to German constitutional law, legal norms either create a legal concept or have a competitive character or a procedural nature within the constitutional restricts^[2]. That is why; it provides the unity of the State^[3], the guarantee of the constitutional order, and the rule of law. This results form the hierarchy of norms and the need of authority in the light of the constitutional integration of legal norms. The principle of totality is also the key concept in explaining this topic^[4]. It can be said that all legal norms are the elements of constitutional totality and they are completely integrated with the sum of the total constitutional law. This includes the binding character of law in the hierarchy of norms in German constitutional law, which arose in the 18th century^[5]. If there is not the binding character of law, that means there is integration into the partial constitution or the integration of partial legal norms into the constitution, so integration cannot be fully achieved. Disharmony of norms results from conflicts of legal norms or the ineffectiveness of internal constitutional norms and external constitutional norms on to the legal norms including constitutional norms.

B - TYPES

The constitutional integration of legal norms is examined in two types. The types of constitutional integration of legal rules are the constitutional integration of internal constitutional norms and the integration between constitutional rules and other legal rules.

1 - The Constitutional Integration of Internal Constitutional Norms

First of all, the constitutional integration of legal norms is possible with the constitutional integration of internal constitutional norms. It is meant that if there is no integration of the norms which are written within constitution, there cannot be any integration between the constitutional rules and other legal rules.

The substance of the constitutional integration of constitutional norms is the integration of each constitutional norm with the others. Constitutional integration is divided into three parts which are the constitutional integration of fundamental constitutional values; the constitutional integration of secondary constitutional provisions; and the constitutional integration among specific constitutional norms due to the strong connection among these norms^[6]. It helps the gradual combination of different legal norms with the concrete legal determination. These topics are going to be explained in detail under this main heading, the constitutional integration of internal constitutional norms. Additionally, the integration of fundamental constitutional values and the integration of secondary constitutional provisions are going to be examined together because these are the main condition of gradual constitutional integration of legal norms and the constitutional integration between special constitutional norms and the constitutional integration of the constitutional norms and other legal norms are possible after the executions of the constitutional integration of fundamental constitutional values and the constitutional integration of secondary constitutional provisions.

a - The Constitutional Integration Among Fundamental Constitutional Values

i - Definition

Constitutional integration among fundamental constitutional values is the primary topic of constitutional integration and it shows the harmony among the constitutional main principles which directly determine the constitutional system and indirectly legal structure of a state for the providing of the concept of the rule of law^[7].

The invariable fundamental constitutional values are the constitutional norms which are stated or implied as unchangeable norms within the constitution. These constitutional rules create the constitutional principles. In addition, they outline the fundamental legal features of the relevant state^[8]. If there is a deviation from these rules, that means the legal system of the state is violated and legal effectiveness is common in all parts of the state.

There are two different aspects of the fundamental constitutional values to take into consideration in the same constitution. The first one is that the unchangeable constitutional values are written clearly within the constitution. This openness is clear within a constitutional norm, so it provides a constitutional guarantee. It is clear that an assembly which has been selected by normal selection which is a derivative authority is not allowed to change these unchangeable norms.

The other aspect is whether invariable constitutional norms can be changed by the original founding authority. The original founding authority has the power to make a new constitution because it was elected to make a new constitution. The original founding authority should oversee the wishes and the profits of public for the function of state. The public can want to change invariable constitutional values, though. The people can be opposed to these norms. However, the original founding authority might not accede to these wishes. In other word, the people can agree with the constitutional values, but the original founding authority can be opposed to public wishes. According to the Republic of Turkey in 1961, Turkish constitutional law determined that the conflict between people and the original founding authority was to be resolved based on whether the unchangeable constitutional values are contrary to contemporary legal principles^[9]. Progressive changes to constitutional values result from the dynamic character of the constitution and support the actual law because constitutional values and fundamental rights have influence on concrete action^[10]. If public want modern changes with a new constitution, the original founding authority should reflect that. But if public want non-contemporary new constitution to be made by the orginal founding authority, the orginal founding authority should ignore these wishes due to the liability duty to legal principles. It is clear that the constitutional values don’t change against contemporary legal principles. Although the original founding authority and public want to change constitutional values and aim worse constitutional amendments against the contemporary law principles than the present constitutional values, the changed norms are not lawful because constitutional history, general legal principles and constitutional experience create restrictions on forming a new constitution and unwritten constitutional values. People and authorities should follow the elements mentioned above. The reasons for this obligation are: taking lessons from the past; responsibility for future generations; and commitment to human rights treaties.

Furthermore, restrictions on forming a new constitution according to contemporary constitutional legal principles are the general fundamental constitutional values. On the other hand, the written constitutional values are the internal fundamental constitutional values. Therefore; new internal constitutional values according to the principles of contemporary constitutional law can be created by the integration of general fundamental constitutional values and internal fundamental constitutional values. It can be said that there is a constitutional hierarchy to make a new constitution. Although the new constitution destroys the previous one, forming a new constitution should follow the previous fundamental constitutional values^[11] and the problems of the next constitutional integration should be checked.

There is an opposing argument regarding the aforementioned issue: the minority of constitutional specialisties claims that the original founding authority makes a new constitution independently^[12]. The old order is destroyed by the new constitution, so there is nothing to bind the original founding authority in Turkish constitutional law. There aren’t any problems about constitutional integration due to the new constitution which is made according to the wishes of the state and the public based on this opinion. Therefore, the conditions of the state are variable and the worse changes than the present constitutional rules can be possible and necessary^[13] because the constitutional order cannot be adopted by the society. The general legal principles have been discussed and it has not been claimed that the general legal principles (such as democracy) are absolutely true. However, this idea shows that the state has priority over individuals. According to this minority view, the Constitution of the Republic of Turkey of 1982 which has worse constitutional provisions according to the contemporary legal standarts than the previous Constitution, i.e. the Constitution of the Republic of Turkey in 1961 was successfully made.

To clarify this, the fundamental constitutional values of the Constitution of the Republic of Turkey of 1982 are needed to be explained. The first constitutional values are the unchangeable constitutional rules within the Constitution of the Republic of Turkey. There are three articles within the first three articles of the Constitution of the Republic of Turkey. According to the Article 1^[14],

“The Turkish State is a Republic.”

Furthermore, the Article 2^[15] provides that

“The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble.”.

Additionally, according to the Article 3^[16],

“ The Turkish state, with its territory and nation, is an indivisible entity. Its language is Turkish. Its flag, the form of which is prescribed by the relevant law, is composed of a white crescent and star on a red background. Its national anthem is the “Independence March”.Its capital is Ankara.”

These provisions have not been changed although it has been seen that they have been intended to change. These constitutional rules imply that the Constitution of the Republic of Turkey is a very strict (inflexible) constitution. According to the Article 4^[17],

“The provision of Article 1 of the Constitution establishing the form of the state as a Republic, the provisions in Article 2 on the characteristics of the Republic, and the provision of Article 3 shall not be amended, nor shall their amendment be proposed.”

The Article 1, the Article 2 and the Article 3 outline the general legal principles of Turkish constitutional law^[18], but the Article 4 which provides the protection of the first three articles of the Constitution of the Republic of Turkey does not protect itself^[19]. Therefore, it is seen that there is no legal protection; there is moral protection because the first three articles of the Constitution of the Republic of Turkey is the fundamental basis of the state^[20]. This problem has been discussed by scholars of Turkish constitutional law. The solution which has been proposed is that if there is a positive contribution of the unchangeable constitutional articles, there is no possibility to change these articles; if not, amendments are unavoidable^[21]. On the other hand, the Turkish Constitutional Court has also designated other constitutional articles as unchangeable articles, for example the article about equality, which is the Article 10 of the Constitution of the Republic of Turkey^[22].

The French Constitution is very close to the preference of Turkey. Republicanism, laicism and the unity of the state have priority within the Constitution of France of 1958. According to the Article 89-4.5 of the French Constitution of 1958, amendments to these constitutional rules are not possible^[23]. The Article 89-4.5^[24] provides that

“ no amendment procedure shall be commenced or continued where the integrity of national territory is placed in jeopardy”.

The Article 1 of the French Constitution of 1958^[25] also indicates that

“France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion.”

Furthermore, the Article 2 of the French Constitution of 1958^[26] implies that

“the language of the Republic shall be French and the principle of the Republic shall be: government of the people, by the people and for the people.”

Considering the unchangeable constitutional rules of the French Constitution, it is necessary to go back to preamble, the first and the second articles. At this time, the documents of human rights and freedoms in France have the priority within the French Constitution and the principles of these documents are not changeable constitutional values. The preamble of the French Constitution of 1958^[27] provides that

“ the French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004. By virtue of these principles and that of the self-determination of peoples, the Republic offers to the overseas territories which have expressed the will to adhere to them new institutions founded on the common ideal of liberty, equality and fraternity and conceived for the purpose of their democratic development”.

There is a conflict in the French doctrine, though. The Article 84/9, which is the prohibition of amendments concerning the unity of the land, has been changed. Some scholars have thought that the unity of the land can be changed^[28]. However, some other scholars have claimed that this is not possible because of the Article 89 which has an unchangeable character regarding the fact that the features of the republic and the unity of land are the qualities of the republic^[29].

A lot of countries accept human rights and freedoms as unchangeable constitutional values. Germany has determined that there are no higher norms than positive rights and freedoms^[30]. Switzerland has accepted that human rights and freedoms which are outside the constitution are also valid at all times, and all human rights and freedoms are higher norms than other constitutional norms^[31]. Switzerland has also evaluated the moral protection of the fundamental constitutional structure^[32]. The constitution has been developed and other human rights and freedoms which are out of the constitution have been made valid in Swiss constitutional law. For example, the right to information developed within freedom of thought in the time of the previous constitution^[33]. However, this phenomenon is not possible in Belgium or Poland^[34].

The German Basic Law also includes unchangeable constitutional norms and has a modern structure^[35]. According to the Article 1, human dignity and human rights and freedoms can not be amended, and according to the Article 20, the democratic, social and federal state constitutional values are not changeable. The Article 1^[36] explains that

“ human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law ”.

The Article 20^[37] also provides that

“ The Federal Republic of Germany is a democratic and social federal state. All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies. The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice. All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available ”.

Additionaly, the division of competences between the federation and the states in the Article 70 is a non-changeable norm. The Article 70^[38] provides

“ The Länder shall have the right to legislate insofar as this Basic Law does not confer legislative power on the Federation. The division of authority between the Federation and the Länder shall be governed by the provisions of this Basic Law concerning exclusive and concurrent legislative powers. ”

For the research of unchangeable constitutional norms, The Article 288 of the Constitution of Portugal^[39] is very valuable for its wide unchangeable rules. The form of state, the state principles, human rights and freedoms regime and the social economic principles are the unchangeable areas in Portugal detailly. According to the Article 288 of the Constitution of Portugal,

“ constitutional revision laws must respect the national independence and the unity of the state, the republican form of government; the separation between church and state; citizens’ rights, freedoms and guarantees, the rights of workers, workers’ committees and trade unions, the coexistence of the public, private and cooperative and social sectors of ownership of the means of production, the existence of economic plans, within the framework of a mixed economy, the appointment of the elected officeholders of the entities that exercise sovereignty, of the organs of the autonomous regions and of local government organs by universal, direct, secret and periodic suffrage, and the proportional representation system, plural expression and political organisation, including political parties, and the right of democratic opposition, the separation and interdependence of the entities that exercise sovereignty, the subjection of legal norms to review of their positive constitutionality and of their unconstitutionality by omission, the independence of the courts, the autonomy of local authorities, the political and administrative autonomy of the Azores and Madeira archipelagos .”

There are no unchangeable constitutional rules in Poland, Switzerland and Austria^[40], though. This reality in Swiss doctrine causes the fact that there should be no restrictions on constitutional development and public acts, but unchangeable constitutional norms are necessary^[41]. The Federal Court of Switzerland has decided that the cores of fundamental rights and freedoms are not destroyed^[42]. In Austria, constitutional amendments concerning fundamental rights and freedoms are very difficult for the political authorities^[43].

ii - The Possibilities of the Constitutional Integration among Fundamental Constitutional Values

The disharmony of fundamental constitutional values can be solved according to the effect of the constitutional enforcement. Firstly, this is possible with a new constitution which removes the constitutional disharmony among constitutional norms otherwise; some constitutional values limit the warrants of the primary constitutive power. For this reason, another solution should be found.

The stages of the solution process can be performed together or separately. Solutions which are practiced together are based on constitutional difficulties and the solution of necessity grounded in the decisions of the Turkish Constitutional Court^[44]. According to the solution of this dissertation, there are five types of solution and if three types of five solutions are possible, it is admitted that the harmony of constitutional values can be ensured.

(I) - The Solution of Priority

The solution of priorty is named the consideration of the constitutional preference of the constitution maker within the conflict among the constitutional rules. The priority of fundamental constitutional values reflects the importance of the previous emphasis within constitution. The concept which has been mentioned before other comparative concepts has priority over other concepts for the realisation of constitutional harmony^[45]. However, this solution is insufficient in the states where the legal rules are not used whereas constitutional harmony seeks for use of the legal rules.

[...]

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^[1] Cansel, “Türkiye Raporu” (The Report of Turkey), Avrupa Anayasa Mahkemesi Konferansı, Anayasal Normlar Hiyerarşisi ve Temel Hakların Korunmasındaki İşlevi, C.: 2, Anayasa Mahkemesi Yayınları, 1991, p. 16.

^[2] Maier, Staats und Verfassungsrecht, p. 63

^[3] Maier, p. 63.

^[4] Schmidt - Aßmann, Der Verfassungsbegriff in der deutschen Staatslehre der Aufklärung und des Historismus, Untersuchungen zu den Vorstufen eines hermeneutischen Verfassungsdenkens, p. 28. Heller, Staatslehre, p. 270.

^[5] Schmidt C. H., Vorrang der Verfassung und konstitutionelle Monarchie, eine dogmengeschichtliche Untersuchung zum Problem der Normenhierarchie in den deutschen Staatsordnungen im frühen und mittleren 19. Jahrhundert (1818 - 1866), p. 115

^[6] Gönül, “Türkiye Raporu” (The Report of Turkey), p. 8.

^[7] Kaboğlu, Anayasa Hukuku Dersleri (Genel Esaslar), p. 406 – 397.

^[8] Yüzbaşıoğlu, Anayasa Hukuku El Kitabı, p. 17; Tunaya, Siyasi Müesseseler ve Anayasa Hukuku, p. 84.

^[9] Soysal, Anayasanın Anlamı, p. 9; Batum, 99 Soruda Anayasa, p. 286; Oder, “Uluslararası İnsan Hakları Hukuku’nun Anayasal Yorumunda 1983 – 2007 Bilançosu: Örnekler ve Ana Yönelim”, Ali Ülkü Azrak 75. Yaş Armağanı, Çizgi Basım Yayın, 2008, p. 414.

^[10] Kanadoğlu, Türk ve Alman Anayasa Yargısında Anayasal Değerlerin Çatışması ve Uyumlaştırılması, p. 152.

^[11] Özbudun, Türk Anayasa Hukuku, p. 140 – 158.

^[12] Özbudun, p. 148.

^[13] Özbudun, p. 148.

^[14] http://www.byegm.gov.tr/Content.aspx?s=tcotrot (10.11.2011)

^[15] http://www.byegm.gov.tr/Content.aspx?s=tcotrot (10.11.2011)

^[16] http://www.byegm.gov.tr/Content.aspx?s=tcotrot (10.11.2011).

^[17] http://www.byegm.gov.tr/Content.aspx?s=tcotrot (10.11.2011).

^[18] Özbudun, p. 384.

^[19] Cansel, Türkiye Raporu” (The Report of Turkey), Avrupa Anayasa Mahkemesi Konferansı (VIII : 1990, Ankara) VII. Anayasa Mahkemeleri Konferansı : Ankara 7-10 Mayıs 1990 : Anayasal Normlar Hiyerarşisi ve Temel Hakların Korunmasındaki İşlevi : Cilt: 2, p. 16; Duran, Türkiye’de Anayasa Yargısının İşlevi ve Konumu, C.:1, Anayasa Yargısı, Anayasa Mahkemesi Yayınları, 1984, p. 66.

^[20] Cansel, p. 16; Dal, Türk Esas Teşkilat Hukuku, p. 152; Yayla, Anayasa Hukuku Ders Notları, p. 86; Gören, “Anayasa Koyan Erk ve Anayasa Değişikliklerinin Sınırları”, İstanbul Ticaret Üniversitesi Sosyal Bilimler Dergisi, S.: 16, İstanbul Ticaret Üniversitesi Yayınları, Güz 2009, p. 12.

^[21] Kaboğlu, p. 37 - 38.

^[22] The decision of the Constitutional Court (AYMK), E.: 2008/ 16, K.:2008/16, K.T.: 05.06.2008.

^[23] Genel Değerlendirme (General Evalution) , Avrupa Anayasa Mahkemesi Konferansı, Anayasal Normlar Hiyerarşisi ve Temel Hakların Korunmasındaki İşlevi, C.: 2, Anayasa Mahkemesi Yayınları, 1991, p. 47.

^[24] http://www.assemblee-nationale.fr/english/8ab.asp (03.03.2010).

^[25] http://www.assemblee-nationale.fr/english/8ab.asp (03.03.2010).

^[26] http://www.assemblee-nationale.fr/english/8ab.asp (03.03.2010).

^[27] http://www.assemblee-nationale.fr/english/8ab.asp (03.03.2010).

^[28] Genel Değerlendirme (General Evaluation), p. 47 – 48.

^[29] Genel Değerlendirme (General Evaluation), p. 48.

^[30] Genel Değerlendirme (General Evaluation), p. 43

^[31] Genel Değerlendirme (General Evaluation), p. 43.

^[32] Fleiner – Forster, Die neue schweizerische Bundesverfassung , Föderalismus, Grundrechte, Wirtschaftsrecht und Staatsstruktur , p. 15.

^[33] Genel Değerlendirme (General Evaluation), p. 44.

^[34] Genel Deperlendirme (General Evaluation), p. 44, 48.

^[35] Genel Değerlendirme (General Evaluation) , p. 47.

^[36] https://www.btg-bestellservice.de/pdf/80201000.pdf (10.11.2011).

^[37] https://www.btg-bestellservice.de/pdf/80201000.pdf (10.11.2011).

^[38] https://www.btg-bestellservice.de/pdf/80201000.pdf (10.11.2011).

^[39] http://www.tribunalconstitucional.pt/tc/conteudo/files/constituicaoingles.pdf (10.11.2011). Genel Değerlendirme (General Evaluation), p. 47.

^[40] Genel Değerlendirme (General Evaluation), p. 47.

^[41] Genel Değerlendirne (General Evaluation), p. 48.

^[42] Genel Değerlendirme (General Evaluation), p. 48.

^[43] Genel Değerlendirme (General Evaluation), p. 48.

^[44] Kaboğlu, Anayasa Yargısı, Avrupa Modeli ve Türkiye, p. 48.

^[45] Teziç, Anayasa Hukuku, p. 81.