Aziz Kamil CanEnglish Articles


By Aziz Kamil Can

As seen in most of the totalitarian regimes, Turkey has also been abondened to a one-man rule. Transformation to the current situation from a country which was the strongest candidate to the European Union (EU) a decade ago was not only due to the efforts of the politicians. On the way from the EU acquis alignment to dictatorship, legal system and law enforcement cadres were the main tool.

Neither the Costitutional Court, presumably the guardian of the constitutional principles, nor the European Court of Human Rights (ECtHR) have done their resposibilities. These two institutions which could have maintained the rule of law in Turkey, have unfortunately been the lifeline of the system which is about to fall from the cliff. All judicial institutions bowed down before the executive which has been shifted from authoritarianism to totalitarianism particularly in the last two years.

The ECtHR, as the Constitutional Court, in many of its rulings in the last years, has not refrained from having a political stance and acted in line with “personal and institutional expectations.” There are thousands of applications that can be given as examples in this regard.

The inferior stance of the members of the Constitutional Court before the executive has been observed in many cases. As such, the ECtHR has turned its back to one of the most dramatic human rights violations of the last century and indicated as a means to address the violations, not the ECtHR nor any court, but a commission composed of officials appointed by the political power.

Both institutions have betrayed their past and reputation with their biased and discriminative decisions. Following examples are just drops in the ocean. Hundreds of thousands of similar examples can be given.

The Constituional Court, which is supposed to guarantee basic rights like the right to defend and has violation rulings in this context, has dismissed two of its members by a unanimous vote even without taking their defense and applying the “social environment”, a criterion which was used the last time during the reign of Hitler.

Within just a couple of hours after the outbreak of the July 15 coup attempt, detention and arrest warrants were issued for 2750 judges and prosecutors with accusations of being involved in the coup attempt. When tens of thousands of people were arrested with similar accusations, prisons and centers of detention became overcrowded in a short time. The government pardoned the prisoners to have a space for the new criminals! but it was not adequate. In such overcrowded prisons, serious human rights violations were committed. A judge, who was the victim of such violations, made individual petition to the Constiutional Court from his prison cell.

The applicant claimed that, due to the extraordinarily overcrowded prison cell, he had to sleep on the ground in front of the restrooms, there was not adequate furniture and space for a minimum living standard and it took for a long time.

The Constitutional Court rejected the application on the grounds that prison conditions did not impose a heavy physical and psychological burden on the applicant and minimum threshold was not passed, despite the fact that the presiding judge who was the only member who disagree with the Court’s decision, stated that “although the overcrowdedness of prison cells may be acceptable for a reasonable period of time due to an unforeseeable event, it is contradictory to human dignity to force the applicant to sleep in turn in front of the restrooms for more than a year, the state has positive responsibility to take necessary measures in a reasonable time, thus, article 17/3 of the Constitution was infringed/breached/violated in the current case.”

The Contitutional Court defended staunchly the principle of positive responsibility of the State in another decision it took in the same year but which would not bother the executive that much. In the Bilal Ozkaradeniz case (2014/4686, 1/2/20181), the Court held the municipality responsible for the waste water in the stream close to the applicant’s house. The Court decided that the right to live in a clean environment was one of the rights guaranteed in the Constitution in the context of the physical and psychological integrity right, the State has the responsibility to make laws to guarantee the right to live in a clean environment in line with the respect to the lives of the individuals in accordance with the Constitution. The Court decided violation ruling by making the following statement which completely contadicts its decision in the first case:

“The assessment of minimum weight threshold is done not by lookig at whether concrete damage occurred or not but by identifying if it caused an investigatable matter in the area of the question. In this context, high correlation must exist between the environmental effects of the wastewater treatment plant and the respect to the private and family of the individual. Resolving the issue in future can not be seen adequate in compensating the immaterial damages of the applicants whose constitutional rights are violated. Bearing in mind that in the current case, environmental disturbances were caused by public authorities, the decisions of the first instance courts are not relevant and sufficient in the sense that thy did not explain thoroughly why there is no need to compensate immaterial damages inflicted as a result of the intervention to the constitutional rights of the applicants. Above all, (it is understood that) public authorities did not act in accordance with their positive responsibilities.”

In the first verdict of the Constitutional Court it was crystal clear that the state’s positive obligation was ignored, while in the second verdict the court ruled a violation based on its discussion on what should be understood from the “minimum threshold” and its stress on the principle of invariable positive obligations of the state that should be exercised regardless of the nature of the case. However, the United Nations Standard Minimum Rules for the Treatment of Prisoners and European Prison Rules, on which the ECtHR bases its decisions, already state that imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment, even when physical impossibilities are claimed to exist.

The case we would like to present, on the other hand, is regarding to the application of a former judge who was arrested and placed in solitary confinement after the July 15 coup attempt. In the application of Bora v. Turkey, the applicant claimed that, in violation of the Constitution, the Code of Criminal Procedure and especially the Law on Criminal Execution and its bylaw, he was put into a solitary cell in a high-security prison after his arrest which was also in breach of “security of tenure of judges”. He therefore concluded that this situation was `arbitrary`. ECtHR, on its part, referring to the defense of the government, acquiesced that the ECHR was not violated in this case by arguing that the minimum severity level had not been reached. The Court, with this decision, clearly overlooked all relevant national legislations.

The national legislations, specifically the Law no. 5275 on Criminal Execution and its bylaw, determine who would be transferred to those institutions and be placed in solitary confinement. Those who are not sentenced to aggravated life imprisonment, those without a concrete danger requiring them to be transferred to a high security prison (until now there has been no such decision by Execution Judgeships for those placed in solitary confinement), those who have not received disciplinary punishments by the Execution Judgeship for their negative behaviors that were prescribed by the law cannot be subjected to this type of execution regime and such an act contravenes all of the mentioned national legislations. Furthermore, there is the constitutional security against any type of distinction before the law defined in the article 10; the security defined in the article 17of protecting one’s corporeal and spiritual existence, except under cases prescribed by law and finally the security defined in the article 38 that no one shall be punished for any act which does not constitute a criminal offence under the law in force at the time it is committed. Likewise, the article 15 of the ECHR prohibits such illegal sanctions.

The ECtHR, in contrast to its own avowals and to the Turkish legislations, contradicted itself through ignoring this bare unlawfulness which had in no way been justified or based on a judge’s decision.

The remarks of activist Mr. Veli Saçılık stressing that the ECtHR was no more a human rights court, rather, a trade institution concluding contracts with the Turkish government together with the statements of MP Ömer Faruk Gergerlioğlu on the attitude of the court in which he asserts that there had been 25.000 applications to the court but the court returned them due to the refugee bargaining all confirm the unlawfulness in the decisions of the court.

Despite being established as major safeguards of human rights and freedoms, these two institutions sustained serious losses of prestige with their abovementioned decisions. Unfortunately, on the one hand the members of the Turkish Constitutional Court, in an attempt to avoid facing the fate of their colleagues who have been arrested and placed in solitary confinement in blatant disregard of all legal guarantees and securities; and on the other hand the ECtHR, being exposed to the dilemma of positioning itself against Turkish government which is funding the court, strained by the refugee issues deeply affecting the EU and anxious about the extra workload considerations, have jointly suspended the universal legal criteria.

I hope that both the Constitutional Court and the ECtHR would change their attitudes towards the unjust sufferings and produce decisions based on the principles of universal law that would leave an indelible imprint and resonate through the ages rather than acting according to the conditions, interests and fears of the day.

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