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state with its territory and nation, national security, public order or public morals
and for the prevention of oence by order of the competent authority designated
by law (which becomes null and void if not notied to a competent judge within
twenty-four hours and upheld within forty-eight hours). e same considerations we
made regarding generic denitions of values such «public morals» and «public order»
and the same criticisms we pointed out about the constant primacy of the «national
integrity» over the rights of the individual can apply here too.
In any case, the ban of reporting of events is forbidden, except when applied by
decision of a judge in order to ensure proper functioning of the judiciary, within the
limits specied by law.
4. Means of protection of individual rights and freedoms. Judicial review and
individual application to the Constitutional Court
According to Article 40 of the Turkish Constitution, as amended in 2001 42 ,
everyone whose constitutional rights and freedoms have been violated has the right
to request prompt access to the competent authorities. e State is obliged to indicate
in its transactions the legal remedies and authorities the persons concerned
should apply and to compensate damages incurred by any person through unlawful
treatment by holders of public oce (the State, in turn, has the right of recourse to
the ocial responsible).
e general remedy against all actions and acts of public administration is the
recourse to judicial review, granted by Paragraph 1 of Article 125 of the Constitution.
Paragraph 7 of the same Article adds to such remedy the obligation for the
administration to compensate for damages resulting from its actions and acts. If such
damages should be dicult or impossible to compensate for, and at the same time
the administrative act is clearly unlawful, then a stay of execution may be decided
upon (Para. 5). e issuing of stay of execution orders can be restricted by law in
cases of state of emergency, martial law, mobilisation and state of war, and for reasons
of national security, public order and public health. While such restriction to
stay of execution orders in war and emergency situations can be understandable, it
could result in a substantial weakening of judicial review in the other cases, namely
national security, public order and public health. Indeed, these are the typical sectors
of administrative activity where harms to fundamental rights and freedoms are likely
to occur.
42 Law n. 4709 of 3 October 2001.
On Criminal Law and Criminal Justice
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