The General Assembly of the Turkish Constitutional Court (AYM) has gathered on 11 January 2018 and, finally, issued their verdict on individual applications of Mehmet Hasan Altan (with Application No. 2016/23672) and Şahin Alpay (with Application No. 2016/16092).

I say “finally”, because “justice delayed is justice denied”. Although we are pleased about the decisions for these applicants, we know that the AYM has been remaining indifferent for the applications of hundreds of journalists and took these two applications into its agenda only many months after they had applied.

Journalist Şahin Alpay, who is famous with his liberal thoughts and presently suffers from old age and ill health, filed his personal application to the AYM on 8 September 2016, while Mehmet Altan, who is known with his strong democrat personality, applied to the AYM on 8 December 2016.

But what did the AYM do? For a very long time, it did not examine the applications of these two individuals, whom the AYM very clearly knew that have been detained completely unlawfully and are simply held as captives, swept their files under the carpet for months, even for years –like many other applications– and preferred to just remain silent about all these unlawful treatments.

However, everybody knows that the AYM normally gives priority to some applications in parallel to the European Court of Human Rights. Former President of the AYM Haşim Kılıç has also stated this many times in his speeches. Jurists of the AYM have many times explained that they give priority to the applications related to the detainments and bills in quia timet (petitions billed by persons who fear some injury to their rights or properties), as well as the issues related to deportation, right to live, and torture.

Why, then, those applications were put on hold for many months? At just this point, some very disturbing thoughts come to the mind of ordinary people: Is the AYM actually not an independent judicial body? Or maybe independent, but not impartial? Indeed, the practices displayed by the AYM have convinced the public that the AYM is neither independent, nor impartial. Can it be possible to say that the members of the AYM are acting independently from the executive power, or free from the ruling power’s ideologies?

If the country has indulged in unlawfulness today, this is, as much as the politicians, also because of the AYM. Because it remained unresponsive to the cries of the people who have been held captive for their thoughts and beliefs, the AYM will be convicted before history. Tomorrow’s generations, who will write the history of today, will certainly not reminisce the AYM with gratitude and will declare it as a judicial corpse.

Can its very late verdict, stating that the personal freedoms and security, rights of expression and press freedom of the above-mentioned journalists have been violated, redeem the AYM? When I consider the applications of hundreds of journalists, and of thousands of other individuals who have been the victims of similar violations, I can say that to pick up only a few from these applications many months later and issue a verdict complying to the Constitution shall definitely not redeem this high court.

With which of their actions did Şahin Alpay and Mehmet Altan, participate in the coup? Or what did they do to be called as members of an armed terrorist organization –the accusation used to justify their months of detainment?

The AYM has determined the “grave” acts caused these applicants to be tried and kept under custody as follows:

“It is understood that the factual publications and speeches, shown as reasons for Applicant Mehmet Altan’s detention, are his article titled ‘Balyoz’un Anlamı (The Meaning of The Sledgehammer)’ published on his column on Star newspaper in 2010, and his speech broadcast on Can Erzincan TV one day before the coup attempt and his writing titled ‘Türbülans (Turbulence)’ published on his own website on 20 July 2016.

It is understood that the publications shown as reasons for Applicant Şahin Alpay’s detention are his articles titled ‘Din Savaşıymış (So They Say It is a War of Religion)’, ‘Erdoğan ile Batı Arasında (Between Erdogan and the West)’, ‘Evet Suçta Cezada Şahsidir (Yes, Both Criminal Responsibility and Penalty are Personal)’, ‘Bu Millet Bidon Kafalı Değildir (This Nation is not Bubbleheaded)’, ‘Çıkar Yol Erdoğan’sız Hükûmet (The Only Way Out is A Government Without Erdogan)’ and ‘Cumhurbaşkanı Seyirci Kalamaz (The President May Not Sit Back And Watch)’.”

Firstly, the AYM defined that the rights of freedom and security of these journalists have been violated, since the prosecution has not been able to present adequate evidence suggesting that these journalists had acted in line with the aims of the terrorist organisation, and said that there is not any strong evidence indicating that they had committed a crime in this respect.

Secondly, the AYM decreed that the freedoms of press and expression have been violated because of the unlawful detention of the two journalists.

This is what stated in the press release of the AYM: “Meanwhile, it cannot be understood from the nature of the case and the reasons of the detention, due to which ‘forcing social need’ it is required to intervene in the freedom of press and expression and to detain the Applicant, incriminated for his publicised his thoughts in articles and speeches, that are similar to the opinions of a part of the society at the time, and why this was necessary in a democratic social order.”

Well now, is the situation of other journalists and thousands of ordinary citizens and public officials who are accused with the same indictment different than the situation described in this statement? No. All of these people are also kept in custody for their thoughts and beliefs. Whereas, the freedom of expression and dissemination of thought and the freedom of religion are protected by the Constitution, are they not?

For example, on the same day, the AYM has rejected the application (with Application No: 2016/15586) of Alparslan Altan, its own former member, who is accused with the same indictment, just like thousands of other similar applications.

The Applicant has been detained on 16 July 2016 and kept in solitary confinement for months. On the other hand, on 4 August 2016, the General Assembly of the Turkish Constitutional Court (AYM) divested the Applicant of his judicial titles and profession. The Applicant filed his petition to the AYM on 7 September 2016.

By rejecting A. Altan’s application, with a reason claiming that Mr. Altan’s assertion saying that “his detention is unlawful” has no clear ground, the AYM has added another one to the thousands of unlawful verdicts it had issued before.

What was the reason for the AYM to reject this application? The AYM gave a few reasons in the press release where the AYM presented an abstract of its decree. When these reasons are examined, it can be seen that Mr. Alparslan Altan’s situation is no different than that of Mr. Şahin Alpay and Mr. Mehmet Altan. What is more, Mr. Alparslan Altan should have benefitted from the special judiciary protection, because of the immunity of jurists.

When these two separate decisions of the AYM are examined, we can clearly see the absurdity and arbitrariness of this refusal.

For example, the AYM admits that the Applicant had not used the messaging application called ByLock (legality of this accusation is already debatable anyway). But yet, it says this: “The defendant has been detained because of the content of the communication conducted among some other people by using ByLock.”

In other words, the AYM has seen other people’s mentioning of Alparslan Altan’s name in their ByLock messages as adequate and lawful reason for him to be detained.

The same AYM, however, says these in the decree it issued on the same day about Mehmet Altan: “Lastly, when the conditions of the factual event and the content of the statements used about the Applicant are taken into account, it is seen that it is not possible for the ByLock messages, sent/delivered by people other than the Applicant, which are shown by the Public Prosecutor as evidence of crime in his indictment, to be evaluated on their own as strong evidence, directly related to the crime.”

What an arbitrariness this is! While other people’s mentioning of Mehmet Altan’s name in their ByLock messages may not “be evaluated as a strong evidence directly related to the crime, but mentioning Alpaslan Altan’s name can be seen as enough reason for him to be detained!

Again, the AYM, who says, “In the witness statement, there is not any information about any physical act of the Applicant,” while forming the ground for the violation of Mr. Mehmet Altan’s rights, has been able to presume the witness statement for the other Mr. Altan (Alparslan), which does not indicate any of his physical act related to the crime at all, either, other than the very vague claim saying, “he might be from that group called jamaat”,  as a reason to reject his application.

While, in the above-mentioned paragraph of the verdict given for one of the applicant Altans, starting with “Meanwhile…”, it is decreed that a person may not be detained because of their social life style or opinions; for the other Altan, the non-objective claim of the prosecutor saying, “From the social connections of the applicant, we reached the conclusion that he is a member of the organisation,” is shown as the reason for the lawfulness of his detention.

The European Court of Human Rights, too, examines the cases of judged jurists within the scope of freedom of expression (see Former Adana prosecutor Sacit Kayasu verdict, et al.). In this respect, the situation of judges and prosecutors is the same as journalists. Namely, if jurist Alparslan Altan is accused for one of his issued verdicts, this is something to do with his freedom of expression and he is not in a different situation than M. Altan and Ş. Alpay in respect to violation of his rights. Besides, jurist A. Altan has been tried, put into solitary confinement, and his application to the AYM has been refused, not for one of his actually issued verdicts, but for his social relations. And, just not to cause any reaction and to convince the ECHR that a constitutional court still exists in Turkey, the AYM, now and then, issues verdicts in favour of some famous personalities like Can Dündar, Mehmet Altan, and Şahin Alpay, about violations of human rights. In other words, it kills few birds with one stone.

This way, however, the AYM is losing respect and credibility in the eye of the public, and has fallen into a situation that it is not valued by other courts anymore.

Are the Courts’ Refusals to the Requests of Release Lawful?

Indeed, despite the fact that the AYM decreed that the rights of Mr. Alpay and M. Altan have been violated by detaining them, and that their lawyers filed requests of their release together with the AYM’s decree attached, the Istanbul 13th and 26th High Criminal Courts have rejected these requests of release.

The courts have shown as reason for their refusal that they had not received the final decision of the AYM and stated that there is not any injunction requiring their release.

Once the justice system is ruined, then everyone starts to impose their own law order. Naturally, this fastens the demise of a state.

The laws, however, are very clear. Even during the time of the AYM’s decrees about the Sledgehammer Case, as soon as the AYM issued its decision, all of the defendants –whether or not they applied to the AYM­– had straightaway been released, which was the right thing to do. But this time, it has not happened like this.

The High Criminal Courts (HCCs) claimed that, according to Article 153 of the Constitution, the decision of the AYM should have been published in the Official Gazette so that they can release the defendants. However, this article of the Constitution is about the investigation and invalidation of the laws made by the parliament, and nothing to do with individual applications. The HCCs have fallen into an error here.

Secondly, HCCs said that they did not receive the case file yet, based on the part in Article 50/2 of the Law of Constitutional Court with No. 6216, saying, “…the file is sent to the related court.” This excuse is like those Muslims who refuse to pray, basing their claim on the first part of the divine verse ordering, “Do not come to prayer…” without quoting at all the next part saying, “… while you are drunk,” since this part does not suit to their interest.

The first sentence of Article 50/2 is as follows: “If the determined violation is caused by a court decree, in order to clear out the violation or its consequences, the file is sent to the related court for a re-trial.”

This regulation is for cases, which are concluded and an existence of a right violation is determined, then a re-trial is decided to be hold in order to repair the damages caused by the violation. Here the files of the applicants are still at the HCCs. The AYM, however, only defines the existence of a violation related to a judicial conduct (detention in this case) and orders for this violation to be removed.

Thirdly, the HCCs are saying that in accordance with Article 50/3, the officials should be notified by the AYM decision.

The AYM published the written form of its reasoned judgement on the same day, on its website, and the lawyers of the defendants obtained the verdict and presented it to the courts. Although the Law No. 6216 does not clearly explain the form of notification of judicial decisions, the Code of Criminal Procedures regulates that notification can be made with many means of communication, including fax, messaging or telephone call.

Article 49/(7) of the Law No. 6216, by stating that, “In examination of individual applications for the cases there are no provisions in this law or in house regulations, provisions of related  procedure laws, suiting to the characteristics of the application, are applied,” clearly orders that, if there is not any applicable provision in the mentioned law, provisions of other procedural laws may be applied. In this respect, it should be then accepted that the decision of the AYM has been notified.

Even if we consider for an instance that this way of notification is not accepted, then the thing should have done by the courts was to contact with the AYM and request them to send/fax the original copy of the decision and in accordance to this, issue a verdict of release; not to refuse it altogether.

The HCCs have not got a discretion right for the releases conducted in pursuant to the laws. Well then, how should we evaluate the conducts of these two HCCs?  In some of its verdicts given for people who have been arbitrarily arrested for four hours or less, the ECHR states that, “they have been deprived of their freedom and their rights have been violated.”

In this respect, the HCC jurists who do not release the defendants despite the clear provisions of the laws, have committed the crimes of “depriving persons of their freedom” and “misusing their power of jurisdiction”. Meanwhile, it will be too late for these jurists to issue a release warrant to clear themselves from these crimes. Now, this has originated for the defendants the right to file a petition to complain.

If the courts do not comply with the decision of the AYM despite the very clear legal regulations, we can explain this only with the pressure of the political power. Indeed, Vice Prime Minister and Government Spokesperson Bekir Bozdağ’s press statement saying, “The Constitutional Court has overstepped the mark drawn by the Constitution and the laws,” about the Constitutional Court’s decree defining that the rights of Şahin Alpay and Mehmet Altan have been violated (http://www.bbc.com/turkce/haberler-turkiye-42659391), and the following jurisdiction of the 13th HCC that re-examined the file upon appeal and changed its reason this time as “The AYM has exceeded its authority”, prove that these jurisdictions are not the result of the free, independent discretion of the courts.

As conclusion, we need to warn that, if the insistence of the courts not to comply with the decisions of the AYM and the pressures of the government in this direction will continue, the AYM –which has already lost credibility in the public eye– will inevitably be deemed ineffective by also the ECHR.



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