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THE FEAR OF INEFFICIENCY OF THE TURKISH CONSTITUTIONAL COURT

 

The quote “Justice is the foundation of a ruling authority” is also rephrased as, “The basis of a state and order is justice”. You cannot show even one state or administrative order in history that deviated from justice, committed atrocity to its people, but managed to remain in power. Today, too, we cannot show even one state that is acting unlawfully toward its people and is not troubled with internal turmoil and civil war.

In this regard, looking at the 100-year past of our country will give enough idea about this phenomenon. Whenever values such as the human rights, social equality, democracy, equal opportunities and freedom of expression are more or less respected and held high, tangible progresses have been attained in every field; whilst whenever the opposite has prevailed, the country has suffered nightmare-like conditions.

AKP, the Justice and Development Party led by Erdogan, who came to the government with a promise to establish “justice” in the country, had actually –though partially– taken some concrete steps toward this goal. In time, however, due to being captivated by some greedy ambitions, they have changed the equilibrium of justice scale to their advantage and came up to this point today.

At present, the most vicious collapse at mechanism of justice in Turkey has certainly happened in the judiciary. The whole of the judiciary has been politicised and made into an office that is given the duty to pursue the case files of a political party.

Meanwhile the Turkish Constitutional Court (AYM), which is supposed to function as the provider of balances and checks against the executive and/or legislative power, has also joined in this gang and, unfortunately, has lapsed from its national, and international, credit.

However, is not the judiciary the only sanctuary where people seek refuge in times of oppression and tyranny? A powerful governmental mechanism that is de-railed, or giving off the signals that it is going to run off the right path, can only be restrained and contained by a tenacious judiciary.

But the Turkish Constitutional Court did not do this. On the contrary, it said “Yes,” to all the demands of the ruling power, and issued decrees, not according to its own jurisprudence and principles, but in pursuant to some individuals and governmental orders. For this reason, the jurisdictions of the AYM are not complied anymore.

Let us make the matter more tangible. Since the coup attempt in 2016, many journalists and political personalities have filed applications at the AYM. In law, it is firmly believed that not one case is the same as another, because the material and emotional elements of a crime can differ from one case to another. Related to these applications, however, there is a very rare occasion in law has happened: Nearly all of the elements and nature of the crime that the applicants are accused with, are exactly the same for all of the applicants.

Quite normally, the life styles and opinions of the applicants are different from each other. They had even harshly criticised each other. From Altan brothers to Nazlı Ilıcak, from Şahin Alpay to Ahmet Şık, from Akın Atalay to Hidayet Karaca, and from Selahaddin Demirtaş to Enis Berberoğlu, all of them had diverse life styles and understandings.

Whereas, the crime they were all accused with is exactly the same: To write a few articles in their columns, or to make a few speeches, which did not please the ruling power. No one was hurt because of these acts of theirs, either. Nevertheless, these people, despite the fact that there is not any evidence at all, have been associated with incidents that a relation of causality can never be correlated to them.

What was the AYM doing during that time? It was rejecting all of the applications filed at this high court. Because the duty of the AYM was, anymore, not to protect the public in accordance with the international agreements, but to protect the state in the person of the government, against the public (!)

Nevertheless, –although I am doubtful about its sincerity– the AYM has recently issued an unlikely positive verdict. On 11 January 2018, it decided that the right of freedom and personal security, and freedom of press and expression of journalists Mehmet Altan and Şahin Alpay have been violated, hence it exhibited that it sometimes stands on the right side of the laws. However, because it has unfortunately lost its credit anymore, and also as a result of the statements of the government officials saying that they do not recognise this decision of the AYM, something has happened first time in our law history and local courts –although they are legally obliged to obey to the orders of the AYM– did not comply with this decision.

The two applicants had no choice left other than applying to the ECHR and the justice, again, is expected to come from Europe. Finally in this February, the ECHR determined that there is a human rights violation –of course with the dissenting opinion of Turkish judge Ergin Ergül. When Işıl Karakaş recused from the file at the ECHR, in her place, Ergin Ergül has been appointed as ad-hoc judge. Ergül, however, did not straightaway write the reason for his negative vote and the announcement of the verdict is delayed to March 20.

Meanwhile, some other extraordinary developments started to unfold. Thorbjorn Jagland, the General Secretary of the European Council, visited Turkey in February and gave crucial advices pointing to the importance of the law. Mr. Jagland has, most recently, pointed out some critical warnings at his speech he held on March 13 at the Committee of Foreign Affairs of the European Parliament. Upon Mr. Jagland’s statement saying, “If the Constitutional Court’s decisions are not respected, applications made to that court will come directly to the ECHR. If it comes to the point that the Constitutional Court is no longer an effective body domestically, the ECHR will decide on these cases,” an unexpected move came from the AYM: It brought Mr. Şahin’s second application to forward.

However, as it is . On 13 March 2018, First Section of the AYM carried the case to the General Assembly. The General Assembly has written an 18-page decision in just 2 days and on 15 March 2018, it justified the above-mentioned application and requested the applicant’s release. The local court which did not comply with, and heavily criticised, the previous verdict of the Constitutional Court, heaven knows how, gathered in only an hour and released the applicant, who is older than 70 years and suffering from many illnesses, on condition of house arrest.

In spite of the clear order of the AYM, the house arrest decision of the court for the elderly and unwell applicant, who clearly needs hospital care, was inexplicable. Indeed, the ECHR had examined a similar case in its Buzadji/Moldovia verdict and stated that it sees house arrest as not any different than detention.

On the other hand, Mehmet Altan’s application is not brought forward since the adjudication has already been set. The Turkish Code of Criminal Procedures (CMK), however, accepts that the accused person is under suspicion until the final judgement is issued, and the prosecution phase is described as the period of time between the admittance of the indictment and the conclusion of the final judgement. In this respect, Mehmet Altan’s situation should not be different than that of Şahin Alpay.

 

Case files of both of these applicants are at the prosecution phase and they are both still under suspicion of a crime and the court has not reached a final judgement, yet. Despite this fact, the AYM, instead of considering this regulation in favour of the applicants and ruling the case accordingly, made a very narrow interpretation and did not take the second detention of the applicant after the first ruling into account.

 

As Mehmet Altan’s file has not been considered at all, while Şahin Alpay has been released from prison, but is now kept under house arrest, now everybody wonder what kind of explanation the ECHR will announce on 20 March about this case.

 

On the other hand, we can explain the silence of the ruling power to the second Ş. Alpay decision by deducing that this decision is issued under the influence and request of the government. Quite clearly, this decision is not issued because of their respect to the law. By issuing such exemplary decrees, the ruling power thought to prevent the AYM from falling into the position of being “ineffective”, and by this way, they will also be able to keep the applications of the citizens they persecute, for another 5-10 years before the local courts and the AYM.

 

What is more, it is very unlikely that the ECHR will deem the AYM “ineffective”, because, possibly, thousands of cases will end up in front of it. We must not forget Turkey’s generous contributions to the budget of the European Council, either. Consequently, although for now, we cannot foresee a significant positive change will happen in the approach to fundamental values and justice, under the cooperation of the AYM, ECHR, the European Council, and the Turkish Government, for the unlawfulness of these investigations and trials being discussed in the international arena is a sign of a bright future.

 

These decisions of the AYM and the ECHR will affect the situation of all the victims of the latest treatments and prosecutions, because we know that these investigations are conducted without any evidence at all, and based only on emotions, beliefs and thoughts.

 

As a result, all of the victims must unrelentingly apply to both national and international judicial authorities. This will help the justice to arrive much sooner.

Turkish

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