Onurhan Solmaz, Application No: 2012/1049, 26 March 2013

A) Facts

The applicant, holding the view that a column published in a local journal in Izmir included insult, demeaning expressions and provocation against travesties and transsexuals, filed a complained against the columnist. At the end of the investigation, it was decided that these expressions fall within the boundaries of freedom of speech and therefore no further prosecution was to be conducted. The applicant’s appeal to this decision was dismissed. Before the Constitutional Court, the applicant claimed that his right to an effective remedy was restricted on account of his sexual preferences and the fact that an effective investigation not being conducted led to the violation of the applicant’s right to equality, right to a fair trial and right to an effective remedy.

B) Judgment and Reasoning of the Court

The Constitutional Court, in the first place, examined the applicant’s complaint in relation to the scope of the right to fair trial. Emphasizing that the individual applications can only be made with relation to fundamental rights enshrined both under the European Convention on Human Rights and the fundamental rights and freedoms section of the Turkish Constitution, the Court states that the scope of the right to fair trial is not determined in Article 36 of the Constitution and therefore Article 6 of the European Convention on Human Rights will be taken as a basis. As regards to the right to fair trial of a person, there should be a dispute related to civil rights or a criminal charge. Individuals demanding the punishment of third parties cannot possibly be seen within this scope. The applicant filed a complaint against a third party whom he believed to be committed crime, yet there was no claim of any violation against any rights of the applicant as a result of the third party’s article. For this reason, the Constitutional Court concluded that it lacks jurisdiction over the dispute since the abovementioned complaint was solely restricted to the investigation against a third party and therefore did not fall into the common protection zone of the right to fair trial.

With regard to the claims relating to the right to equality and the right to an effective remedy, the Constitutional Court stated that these claims can only be examined in relation to a violation of another fundamental right stated under the Constitution. In view of the fact that the present complaint does not fall under the scope of the right to a fair trial, the Court decided that it also lacks jurisdiction with regard to the other claims set forth in relation to that right.

C) Significance of the Judgement

In this judgement, the Constitutional Court frequently refers to the theoretical explanations regarding the common protection zone in the determination of jurisdiction ratione materiae of the Court. The Court indicates that the individuals who filed a criminal complaint against third persons cannot claim to be a victim in relation to their right to a fair trial. Moreover, it notes that the prohibition on discrimination and the right to an effective remedy are accessory rights, which cannot be evaluated in the abstract.