[Massimo Frigo is the Senior Legal Advisor of the International Commission of Jurists, Europe Programme.]
A legal dispute between first instance ordinary courts and the Constitutional Court in Turkey is leading the country into a major constitutional conflict and severely limiting the chance of people in Turkey to access effective remedies for human rights violations.
On 11 January, two criminal courts in Istanbul refused to apply the rulings of the Constitutional Court ordering a remedy for breaches of the right to liberty and freedom of expression of two journalists, Mehmet Altan and Şahin Alpay, detained on remand while under trial for terrorism offences and alleged links to the attempted coup of 15 July 2016.
As reported by Professor Başak Çalı, the lower courts based their decisions on their finding that the Constitutional Court had exceeded its scope of competence when assessing the reasons for the pre-trial detention of the journalists. They held that the Constitutional Court “has not been given powers to review and assess evidence in an ongoing trial”; that “review of the reasons for detention was contrary to the law that established the right to individual petition”; and that “first instance courts do not have to write all the reasons for continuing detention in an ongoing trial, as this may constitute evidence of judicial bias as to the outcome of the case.”(Başak Çalı, Will Legalism be the End of Constitutionalism in Turkey, Verfassungsblog). In addition, they refused to execute the rulings of the Court because they had not been published on the Official Gazette yet. This ground is now moot following publication on 19 January.
The soundness of the main ground of challenge, the lack of competence of the Constitutional Court, that closely tracks the prior statement by the Deputy Prime Minister, Bekir Bozdağ, must be seriously questioned.
As affirmed by article 148.1 of the Turkish Constitution:
The Constitutional Court shall examine the constitutionality, in respect of both form and substance, of laws, decrees having the force of law and the Rules of Procedure of the Grand National Assembly of Turkey, and decide on individual applications.
The Constitutional Court has the power to annul laws on grounds of unconstitutionality when so requested by the President of the Republic, parliamentary groups of the ruling party or of the main opposition party, or one-fifth of the members of the Grand National Assembly of Turkey, within 60 days from the publication of the law (articles 150-151 of the Turkish Constitution). Additionally, any Turkish courts may request the Constitutional Court to declare the unconstitutionality of a legal provision at stake in the case before it (article 152, Turkish Constitution).
Finally, in 2010, the Constitution was amended by popular vote to introduce a system of individual applications before the Constitutional Court for human rights violations. This reform enjoyed the political support of then Prime Minister, Recep Tayyip Erdoğan. According the article 148.3 of the Turkish Constitution:
Everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities. In order to make an application, ordinary legal remedies must be exhausted.
By its plain language, this provisions means that if any individual in Turkey considers that his or her rights have been violated, she or he may bring this case to the Constitutional Court if no other effective remedy is available in the country.
If the Constitutional Court, in an individual application case, finds that a violation of human rights comes from a court’s decision, it must remand its decision to the lower court that must rule again in accordance with the ruling of the Constitutional Court (see, article 50 of the Law on the Constitutional Court).
This system was introduced to meet Turkey’s obligations under the European Convention on Human Rights and to resolve human rights disputes domestically before bringing cases to the European Court of Human Rights in Strasbourg. The European Court has faced severe stresses arising from a case overload particularly from Turkey.
The individual application remedy started to function in 2012. The European Court of Human Rights has considered that, at least as formally designed, it fulfills the procedural requirements of an effective remedy for human rights violations for the last years and has been dismissing a considerable amount of cases on the basis that this remedy offered by the Constitutional Court must be resorted to first (see, among others, Uzun v. Turkey).
Some of these dismissed cases were brought by former judges and public servants contesting alleged violations of the Convention arising under the current state of emergency instated following the attempted coup d’Etat of 15 July 2016 (see, among others, Mercan v. Turkey). They arose from the thousands of dismissals and detentions that followed the coup attempt.
Secondly, and exactly because this is a remedy of individual application or amparo on the constitutionality of a concrete situation and not only an abstract point of law, the Constitutional Court needs to review the assessment of evidence by lower courts in the same way as the European Court of Human Rights does. For example, in the cases of the detained journalists that have been at the heart of the current constitutional dispute, the Court had to assess whether their right to liberty was violated.
Pre-trial detention, under article 5 of the ECHR and article 19 of the Turkish Constitution, may be ordered only if there is strong suspicion of the persons having committed the offence, among other criteria. For example, in Stepuleac v. Moldova, the European Court went into this level of detail to assess the existence of “reasonable suspicion”:
… the only ground cited by the prosecuting authority when arresting the applicant and when requesting the court to order his pre-trial detention was that the victim (G.N.) had directly identified him as the perpetrator of a crime … . However, it also notes that the complaint lodged by G.N. did not directly indicate the applicant’s name, nor did it imply that all the employees of the applicant’s company were involved … . Indeed, only T.G. and the applicant were arrested and not all the employees. …. It is to be noted that the applicant was never accused of condoning illegal activities on the premises of his company, which might have explained his arrest as Tantal’s director, but of personal participation in blackmail. …
Moreover, the Court notes that the domestic court, when examining the request for a detention order … , established that at least one of the aspects of G.N.’s complaint was abusive. In particular, his complaint of unlawful detention contradicted the official detention order issued by the deputy prosecutor of Chişinău. This should have cast doubt on G.N.’s credibility. The conflict he had with the company’s administration … gives further reasons to doubt his motives…..
How indeed could a court determine whether the right to liberty has been respected without reviewing the assessment of whether there was “strong suspicion” according to the evidence reviewed at first instance?
Thirdly, judgments of the Constitutional Court are final and “binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies” (article 153, Turkish Constitution).
In countries that have constitutional courts, their judgments are always binding on all State powers and cannot be challenged, apart from bringing the case to a competent international authority, for example in respect of human rights violations.
It is far out of bounds for a lower court to tell a Constitutional Court what its scope of competency is. If lower courts are able to challenge the binding nature of the Constitutional Court’s decision – as happened in the Istanbul courts in January – a dangerous level of uncertainty runs throughout the legal system without any clear lines of legal authority. It means that no person may rely on a final judicial decision establishing what the law is in any domain regulated by law. The Turkish legal system in all its tenets, from criminal, civil, administrative and commercial law, becomes unpredictable, and open to arbitrariness in its functioning.
The Constitutional Court and its individual application system had represented a major advancement in terms of human rights protection in the Turkish legal system. Trusting its effectiveness, the European Court of Human Rights has since dismissed countless applications for violations of the European Convention on Human Rights for not resorting to this remedy first.
If lower judges in Turkey begin to disregard or distance themselves from the rulings of their Constitutional Court, the European is not likely to continue to regard the remedy as presumptively effective and there will be nowhere else for victims in Turkey to go to bring cases of allegations of human rights violations. Nowhere but Strasbourg …