What meaning AYM decision about Şahin Alpay?

‘Justice is the basis of property’ is interpreted as ‘Justice is the essence of the state or order’. Throughout history, you cannot point to a single state or administrative regime that has survived  despite the fact that it has deviated from justice and persecuted its people. Moreover, you cannot point to a single state today that is acting unlawfully against its people and that is not in a state of turmoil or war.


If we look at our country’s hundred year history, it will give us some insight into this. When values such as human rights, social equality, democracy, equal opportunity, freedom of expression were on the rise in the country, visible progress was observed, and when the opposite was the case, the country lived through a time of nightmares.


Considering that justice is important to the state system, Erdogan’s AK Party, which aspired to be in government and promised ‘justice’, took some partial concrete steps in its first years towards achieving this. But over time, Erdogan gave into his ambition and weighted the scales in his favour, and so it is we come to the present day.


The judiciary became a bureau of a political party


The most brutal collapse of the justice system undoubtedly took place in the judiciary. The whole judiciary was politicised and turned into a bureau in charge of the cases of a political party.


Unfortunately, the Constitutional Court, which has taken on the function of balance and control over the power of the legislative and the executive, participated in this caravan and lost its national and international reputation.


But isn’t the judiciary the only sanctuary of the people in times of oppression, oppression or dictatorship? Only a strong judicial regime can stop a strong administrative mechanism that is corrupt or that shows signs of being corrupt.


But the Constitutional Court did not do this. On the contrary, it said ‘yes’ to the government’s every request. It made decisions according to individuals and instructions, and not according to its own principles and case laws. For this reason, the case law of the AYM is no longer relevant.


Let us further exemplify the situation. Many journalists and political figures have applied to the AYM. There is a belief in the law that no case is alike, as the material and spiritual elements of the crime can vary from case to case. Although, there was a point in these applications where exceptional circumstances could emerge, nearly all elements of the crimes were the same for every applicant.


The applicants’ world views and lifestyles were all different. They even ruthlessly criticised each other in their day-to-day lives. From the Altan brothers to Nazlı Ilıcak, from Şahin Alpay to Ahmet Şık, from Akın Atalay to Hidayet Karaca and from Selahattin Demirtaş to Enis Berberoğlu, they all had different world views.


However, the crimes they were charged with were the same: a few articles or speeches that would not make the ruling party happy. No harm that anyone could see had been caused by their actions. But these people, in the absence of any evidence, were linked to incidents that under normal circumstances they could not be linked to.


The AYM (Constitutional Court) signed a different decision on the 11th of January, 2018. Why so?


What was the AYM doing, then? It denied all the applications. As a result, the task of the AYM was not to protect the people in accordance with the constitution and international contracts but to protect the state from the people with the help of the ruling party.


However, although I doubt its sincerity, the AYM signed a very different decision a while back. On the 11th of January, 2018, it ruled that the right to freedom and security of Mehmet Altan and Şahin Alpay and their right to express themselves in print had been violated, and showed that sometimes it could act lawfully. But now that the court has lost respect, the local courts for the first time in our legal history did not observe this decision, even though there is a legal obligation to comply. This was partly as a result of the declaration by the ruling party not to recognize decisions made by the AYM.


The two applicants had no other choice than to go to the ECtHR and once again justice was expected from Europe. Finally, in February, the ECHR found a violation of the law. Of course, with the opposition annotation of the Turkish judge. When Işıl Karakaş was withdrawn from the case in the ECtHR, Ergin Ergul was appointed as an ad-hoc judge. But Ergul did not immediately write the reason for the opposition, and the announcement of the decision was postponed until the 20th of March.


Meanwhile, other extraordinary developments began to take place. The European Council (EC) Secretary General Thorbjørn Jagland visited Turkey in February and advised considering the importance of the law. Finally, Jagland issued critical warnings in the speech he made to the Foreign Affairs Commission of the European Parliament on the 13th of March. After Jagland’s remark that, “if the AYM decisions are not respected, all of the applications made to that court will come directly to the ECtHR. If the ECtHR decides that the AYM is no longer an effective domestic remedy, then it will rule on these cases,” an unexpected move was made by the AYM and Sahin Alpay’s second application came to the fore.


But again, as reflected in the press, this move was made after reaching a consensus with ‘the top executive’. Some preparations were made in advance. On the 1st of February 2018, the Ministry of Justice was asked what it was going to say to these applications. In order to avoid wasting time, the Ministry of Justice said it would not comment. The AYM put Part 1 on the agenda of the General Assembly on the 13th of March 2018. The General Assembly issued an 18-page decision within two days and on the 15th of March 2018, it ruled that the aforementioned application was right and lawful and requested that the applicant be released. The local court, which did not exercise the previous decision and severely criticised it, for some unknown reason, released the applicant who is now seventy years old and in very ill health, provided that the applicant was kept under house arrest.


What justification will the ECtHR declare on the 20th of March?


But it was not clear why the court, despite a clear ruling by the AYM, had the prisoner put under house arrest, considering that he is elderly and sick and needs to be treated in a hospital.  As a matter of fact, the ECtHR has investigated a similar problem in the Buzadji/Moldavian decision and said that it did not consider house arrest to be any different from detention.


Meanwhile, Mehmet Altan’s application was not taken forward because the judgment on his case had been ruled. The CMK (art. 2), however, accepts that the suspect is under suspicion of committing a crime until a verdict has been reached and the prosecution phase includes the period from the acceptance of the indictment to the finalisation of the judgment. For this reason, Mehmet Altan’s situation is no different from that of Şahin Alpay’s. Both men are under suspicion of having committed a crime in the prosecution phase. While the AYM should have ruled in favour of the applicants, as there was clearly no justification for their arrest in the first place, they have chosen not to take the first arrest into consideration.


The fact that Mehmet Altan’s case has not been addressed makes us very curious to see what the ECtHR will reveal on the 20th of March as a justification against Şahin Alpay being released and put under house arrest.


That the ruling party has remained silent over the second Alpay decision can be explained by the fact that this demand was made on their request, and by no means because of their respect for the law. By doing this, the ruling party, which thinks that the AYM being shown to be ‘ineffective’ can be avoided, will be able to continue the persecution of these people for five to ten years in the local courts and the AYM.





It is a good sign that the unlawfulness is being discussed internationally


It is also difficult to say whether or not the ECtHR will consider the AYM to be ‘ineffective’ because of the thousands of cases that are then likely to come to them. One should also not forget Turkey’s generous donations to the Council of Europe’s budget.


Although there is currently no significant change in the core values and understanding of justice in the AYM, the ECtHR, the EC and the ruling coalition, it is a sign of a brighter future that the unlawfulness of the investigations and prosecutions is being discussed internationally.


These decisions made by the AYM and the ECtHR will affect the situation of all the victims in recent years. As investigations are being carried out without evidence and are based only on feelings, beliefs and ideas, the applications of all these victims to national and international legal mechanisms will result in justice being exercised earlier.

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