The independence, impartiality and effectiveness of the Turkish judiciary have been in a dramatic decline especially since the staged coup attempt in July 2016 and the following state of emergency regime and thereafter. There seems to be no internal dynamic by which the Turkish judiciary can rescue itself from the impasse in which it has slipped. The non-independence and non-impartiality of the Turkish judiciary in this process have been extensively covered elsewhere.[1] Much longed intervention from the European Court of Human Rights (ECtHR) to monitor the human rights violations in Turkey has not come about even after more than two years since the coup attempt due to the ECtHR insistence of viewing the Turkish judicial system as an effective remedy. The current Turkish judicial and legal system may however well be considered as an ineffective remedy from a number of dimensions (lower courts, law enforcement, appeal system etc.). This paper mainly seeks to prove why the Turkish Constitutional Court ought not to be considered an effective remedy under the jurisprudence of the ECtHR.

 

The Constitutional Court has not viewed itself as authorised to review the emergency decree laws published during the state of emergency.

The Constitutional Court decided in October 2016 that it has no competence to examine unconstitutionality of the emergency decree laws in clear contradiction with its earlier precedence by relying on the wording of Article 148 of the Constitution.[2] Article 148 of the Constitution stipulates that:

“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. Constitutional Amendments shall be examined and verified only with regard to their form. However, decrees having the force of law issued during a state of emergency, martial law or in time of war shall not be brought before the Constitutional Court alleging their unconstitutionality as to form or substance”.

In its previous jurisprudence, the Turkish Constitutional Court had actually given a liberal interpretation to this article. Thus, the Court had declared itself competent to review the constitutionality of the emergency decree laws, but only to the extent that they went beyond the scope of the state of emergency ratione temporis and ratione loci.[3] In September 2016, the main opposition party CHP challenged Emergency Decree Law No. 667 before the Constitutional Court inter alia because this Emergency Decree Law introduced permanent (as opposed to temporary) measures. However, the Constitutional Court rejected the appeal and denied a review of the decree law in abstracto in October 2016.

What this would mean that the constitutional order is reduced to a single provision (Article 148) which gave way to the emergency regime and its incontestability and it is left to the arbitrariness of the executive controlled by the non-accountable President.[4]

The ruling party that is dominated parliament passed laws which made the emergency decree laws permanent laws before the lifting of the state of emergency.[5] This process of transforming the emergency decree laws into permanent Turkish legislation was thus completed in March 2018 before the ending of the state of emergency in July 2018. There is no evidence as yet though that the Constitutional Court will exercise any unconstitutionality check over these transforming laws in abstracto, which were once emergency decree laws.

 

The Constitutional Court has not delivered any judgment in favour of the applicants which could evidence its effectiveness (except Altan and Alpay case).

The Constitutional Court has been ineffective in addressing the gross violations of individual rights and freedoms which have taken place in Turkey since the coup attempt in July 2016. After the failed coup and the declaration of the state of emergency, many public officials who had been dismissed by emergency decree laws made applications for annulment of those dismissals to administrative and judicial bodies, the Constitutional Court, and the ECtHR.[6] In over 300 cases, the administrative courts rejected these applications, arguing lack of jurisdiction due to the nature of the emergency decree law, as did the Constitutional Court, and the Council of State.[7]

To date, the only evidence that the Constitutional Court can operate as an effective remedy is the cases involving journalists Mehmet Altan and Sahin Alpay. The Constitutional Court held on 11 January 2018 that the freedom of expression and liberty of the two journalists Mehmet Altan and Şahin Alpay had been violated. Upon this decision, Deputy Prime Minister and Government Spokesperson Bekir Bozdağ stated on his twitter account that the Constitutional Court had overstepped its boundary drawn up by the Constitution and legislation. Under pressure from the government, Alpay and Altan decisions were not implemented by Istanbul courts with almost the same reasoning used by the Government Spokesperson.[8] Despite the dictum that the Constitutional Court’s decisions are final and binding on the legislative, executive and judicial organs, the courts of first instance have not implemented the decision.

Upon another application by Journalist Şahin Alpay, the Constitutional Court delivered another decision on 16 March 2018 where it found Alpay’s rights were violated under the ECHR.[9] By contrast, the Istanbul court followed the ruling this time and issued Alpay’s conditional release. Surprisingly, nothing was heard from the executive on this occasion.

This development has been regarded by some as the government’s tactical move to avoid a possible ECtHR ruling on related pending cases to the effect that the Constitution Court is not an effective remedy.[10] Turkish human rights lawyer Kerem Altıparmak tweeted that the Turkish government’s move was intended to send a message to the ECtHR that the Constitutional Court is a viable domestic remedy.[11]

The ECtHR did soon after find breaches of Altan’s and Alpay’s rights specifically because of the failure of the lower courts to follow the Constitutional Court’s decision.[12] The European Court observed, in particular, that the reasons given by the Istanbul 13th Assize Court in rejecting the application for their release, following a ‘final’ and ‘binding’ judgment delivered by the supreme constitutional judicial authority, could not be regarded as satisfying the requirements of Article 5(1) of the ECHR.

Apart from these two cases which were decided on the same occasion, the Constitutional Court has been either inactive or delivered negative decisions in tens of thousands of individual applications involving post-coup attempt cases. Even in the individual application made by one of its former members, Alpaslan Altan, the Plenary Session of the Constitution Court found on 11 January 2018 (App. No. 2016/15586) his application as inadmissible.[13] The Constitutional Court refused Altan’s individual application on the ground that the alleged unlawfulness of his detention was manifestly ill-founded.

 

The Constitutional Court dismissed two of its members for alleged Gulenist links

In the aftermath of the attempted coup, on 4 August 2016, the Constitutional Court decided to dismiss two of its own members for their alleged Gulenist links.[14] This judgment was based on the power conferred on the Plenary of the Constitutional Court by Article 3(1) of Emergency Decree Law No. 667 to dismiss the Constitutional Court judges “who are considered to be a member of, or have relation, connection or contact with terrorist organizations or structure/entities”. The Constitutional Court stated in particular (see para 84 et seq) as follows:

“Establishing a link between members of the Constitutional Court and the terrorist organization […] was not necessarily sought for the application of the measure; it was considered sufficient to establish their link with ‘structures’, ‘organizations’ or ‘groups’ […]. The link in question does not necessarily have to be in the form of ‘membership of’ or ‘affiliation with’ a structure, organization or group; it is sufficient for it to be in the form of ‘connection’ or ‘contact’ in order for the measure of dismissal from profession to be applied. Lastly, establishing the evidentiary link between the members and the structures, organizations or groups […] is not sought in the Article [of Decree Law no. 667]. ‘Assessment’ of such link by the Plenary Session of the Constitutional Court is deemed sufficient. The assessment in question means a ‘conviction’ formed by the absolute majority of the Plenary Session. Undoubtedly, this conviction is solely an assessment on whether the person concerned is suitable to remain in the profession irrespective of whether there is criminal liability. Article 3 of the Decree Law prescribes no requirement to rely on a certain kind of evidence in order to reach this conviction. On the basis of which elements this conviction will be formed is a matter left to the discretion of the absolute majority of the Plenary Session. …”

As pointed out by Venice Commission[15], for the Turkish Constitutional Court, a decision to dismiss a judge on the basis of the extraordinary measures ordered by the emergency decree law does not require any particular evidence to be described and analysed in the judgment (para 136). In fact, the above-cited judgment does not refer to any evidence against the two judges concerned. To decide on the dismissal, it is sufficient for the majority of the Constitutional Court to be subjectively persuaded that a link between a member of the Constitutional Court and the Gulenist group exists.

On the existence of such a link, the Constitutional Court further relied on the information from social circles and the joint opinion of the members of the Constitutional Court which has evolved in due course (para 98). It must be noted that the Constitutional Court’s dismissal is not based on any misconduct or incompetence or any concrete evidence in relation to any criminal activity on the part of the dismissed members.

Venice Commission further notes an obvious paradox relating to the dismissal of its own members in connection with the constitutional and judicial review of the emergency measures. By dismissing two of its members on 4 August 2016, the Constitutional Court in essence confirmed the validity of Decree Law No. 667 which served as a legal basis for that very decision. Besides, other supreme courts and the Judicial Council (HSYK) dismissed thousands of judges using the extraordinary powers given by the same Emergency Decree Law No. 667. Venice Commission thus concludes that challenging the legitimacy of the process of mass dismissals of judges and prosecutors before those courts will have little chance of success, as the general legitimacy of the scheme of dismissals de facto cannot be put into question (para 186).

Further, the powers of the Constitutional Court are limited to those attributed competences granted by the Constitution (Article 148). The Constitutional Court is not a general court of law and thus not authorised to deal with the criminal prosecutions. As it is not a general court of law, it cannot decide whether or not a group is a terror organisation. Besides, the Constitutional Court delivered a judgment when deciding the dismissals without conducting any adjudicative criminal proceeding and without conforming with any sine qua non judicial guarantees such as adversarial proceedings, equality of arms etc. Without the recognition of the organisation as terror organisation by a res judicata decision of the criminal courts, the Plenary Session of the Constitutional Court (all the members of the Court) used the expression of “Fethullahist Terror Organisation/Parallel State Structure” (FETO/PDY) several dozen times without the use of the adjective “alleged”, as if the existence of such a “terror organisation was a given fact.

The first final and binding decision of criminal courts in relation to the existence of such a “terror organisation” is arguably the decision of the Assembly of Criminal Chambers of the Court of Cassation dated 26 September 2017[16]. Until the date of this decision, the Constitutional Court could not characterise a group or an organisation as a terror organisation as if it existed. Nor could it base its decision to dismiss two of its members on the basis of the link, contact or affiliation to such a group. One could argue that all the members of the Constitutional Court have displayed their bias and thus impartiality in relation to the applications involving the alleged Gulenists by joining the Constitutional Court’s dismissal decision on the ground of its stated legal reasoning.

 

The members continue to be exposed to threat of dismissal and criminal prosecution

Following the declaration of the state of emergency in the aftermath of the coup attempt in July 2016, Article 3 (1) of the Emergency Decree Law No. 667[17] provided the power of dismissal of judges including the Constitutional Court judges “who are considered to be a member of, or have relation, connection or contact with terrorist organizations or structure/entities”. Upon the end of the state of emergency, Turkey ratified an anti-terrorism law on 25 July 2018 which basically ensured that certain state of emergency powers continue.[18] This law covers a range of powers that previously only existed under the state of emergency. Article 26.A of the law in particular allows authorities to dismiss judges and all other public officials for the next three years if they are:

“found to have been members of or acted in union with or been in contact with terrorist organizations or structures, entities or groups that the National Security Council has decided are engaged in activities against national security.”

This discretionary power allows the judicial authorities to dismiss judges including the members of the Constitutional Court on the assumed connection or contact with terrorist organisations and structures or entities or groups which are considered as national threat. This very loose and arbitrary grounds of dismissal constitute a threat to the security of tenure for judges including the member of the Constitutional Court.

It has been already witnessed that the plenary session of the Constitutional Court had dismissed two of its members on similar arbitrary grounds. Thus, there is no guarantee that any individual member of the Constitutional Court is immune and guaranteed from such an abrupt end of tenure.

Further, under Articles 159/9 of the Constitution and Article 88/1 of the Law No. 2802, judges and prosecutors may only be arrested if there are circumstances which give rise to strong suspicion that they have committed a crime and they have been caught in flagrante delicto. Article 88/1 of the Law on Judges and Prosecutors No. 2802 states as follows: “Except for offences caught red handed (in flagrante delicto) which are subject to the jurisdiction of assize criminal courts, judges and prosecutors may not be arrested, neither their bodies nor their houses may be searched, nor they may be interrogated, for claims of having committed a crime.” Despite these guarantees, thousands of judges and prosecutors have been detained and arrested in the post-coup attempt prosecutions, despite the absence of flagrante delicto on the part of the members of the judiciary.[19]

Similarly, the two members of the Constitutional Court have been detained and arrested under the same alleged membership of a terror organisation despite the absence of procedural grounds for such investigatory measures. It may also be the case that any judge including members of the Constitutional Court are under the threat of a possible criminal prosecution on accusation of the membership of a terror organisation. There is no guarantee in principle under the current politicised operation of the judiciary that the members of the Constitutional Court are immune from such a prosecution. Therefore, the investigatory measures such as arrest and detention which are used in violation of Article 88/1 of the Law No. 2802 as well as the constitutional principles protecting the independence of the judiciary constitute sword of Damocles hanging above the members of the Constitutional Court.

 

Institutional independence of the Constitutional Court cannot be guaranteed

The 2017 Turkish constitutional referendum[20] made significant changes especially in relation to the procedure for the recruitment of the members of the Constitutional Court. The amended Article 146 now provides that the members of the Constitutional Court will be designated as follows: Five (5) members will be selected by the President from among the candidates designated by the Court of Cassation and Council of State. Three (3) members of the Constitutional Court will be selected by the Parliament which would be normally dominated by the political party chaired by the President. Three (3) members will be selected by the President again from among the candidates designated by the Board of Higher Education (YOK) comprising of members who are selected and appointed by the President. The remaining four (4) members will be directly appointed by the President from among certain listed professions by the Constitution.

Under the powers now held by President Erdogan since 2017, he has the ability to appoint 12 of the 15 Constitutional Court judges and so one could argue that the future independence of the Constitutional Court cannot be guaranteed. Not only in Turkey but also in any country even in those which have an established and well-functioning practice of the rule of law, it would be highly implausible to expect the Constitutional Court to effectively and impartially revise the constitutionality of the laws adapted by the Parliament dominated by the President’s party. The Constitutional Court with this composition cannot also be perceived to be impartial and independent when prosecuting the President in its capacity as the Supreme Court.

 

Conclusion

On October 2018, the European Court of Justice (ECJ) ordered Poland to “immediately suspend” the application of its national law which lowers the retirement age of Supreme Court judges.[21] The issue of debate here relates to the lowering of retirement age from to 65 followed by recruitment of further supreme court judges with a view by the Polish government to taking control of the judiciary. The Vice-President of the ECJ recalled that the judicial independence forms part of the essence of the fundamental right to a ‘fair trial’, which is of central importance as a guarantee for the protection of (EU) rights and a safeguard of the rule of law. She further observed that the infringement of a fundamental right such as the right to an independent court or tribunal is thus capable, because of the very nature of the infringed right, of giving rise in itself to serious and irreparable damage.

Whereas the interim decision delivered by the ECJ may have been given in the context of the European Union (EU) legal order, the significance and implications of the decision cannot be only limited to the EU jurisdictional sphere. There is, of course, some established division of labour between the jurisdiction of the ECJ and the ECtHR in human rights cases. However, it is also true that all the EU member states are also parties to the European Convention of Human Rights (ECHR) and their jurisdictions are part of the European human rights order. Therefore, one cannot escape from the general authority and implications of such a significant ruling which involves the issue of rule of law, the right to fair trial and independence of the judiciary.

The dramatic worsening of the independence, impartiality and effectiveness of the Turkish judiciary since the attempted coup in July 2016 speaks for volumes. Various bodies of the Council of Europe including Venice Commission, European Human Rights Commissioner and PACE have strongly criticised the destruction of the rule of law, fair trial and independence of the Turkish judiciary.[22] The reports of the organs of the Council of Europe are full of textbook examples of how such basic legal norms and institutions have been dismantled in Turkey. Seeking to entreat the Turkish Constitutional Court still as an effective remedy in view of many ‘chilling effects” over the Turkish judiciary and the Constitutional Court is an illusion from which the ECtHR must wake up in order to lead the way in some test cases.

[1] http://www.platformpj.org/wp-content/uploads/non-independence-1.pdf

[2] See http://www.hurriyetdailynews.com/turkish-constitutional-court-rejects-chps-appeal-to-annul-decree-laws-104889; for the Constitutional Court decisions, see 2016/166 E., 2016/159 K; 2016/167 E., 2016/160 K., 12.10.2016 T. RG: 04.11.2016 – 29878; for the Press Release of the Constitutional Court, see http://www.anayasa.gov.tr/icsayfalar/basin/kararlarailiskinbasinduyurulari/genelkurul/detay/21.html

[3] See Constitutional Court 10 January 1991, Registry No. 1990/25, Decision 1991/1; Constitutional Court 3 July 1991, Registry n° 1191/6, Decision No. 1991/20, see A.R Coban, “Comparing Constitutional Adjudication. A Summer School on Comparative Interpretation of European Constitutional Jurisprudence. 4th Edition – 2009. States of emergency and fundamental rights. Turkey. Fundamental Rights during States of emergency in Turkey”, p. 9.

[4] See http://www.platformpj.org/constitution-newly-emerged-authoritarian-regime-decree-laws-state-emergency/

[5] Five Emergence Decree Laws had been made permanent laws in the course of the state of emergency before and yet further 25 Emergency Decree Laws were also promulgated in March 2018 with a view to make them permanent law before the ending of the state of emergency. http://www.resmigazete.gov.tr/main.aspx?home=http://www.resmigazete.gov.tr/eskiler/2018/03/20180308m1.htm&main=http://www.resmigazete.gov.tr/eskiler/2018/03/20180308m1.htm

[6] K. Altiparmak, Is the State of Emergency Inquiry Commission, Established by Emergency Decree 685, an Effective Remedy? Human Rights Joint Platform (IHOP) (February 2017) p. 1 < http://www.ihop.org.tr/en/wp-content/uploads/2017/03/IS-THE-STATE-OF-EMERGENCY-INQUIRY-COMMISSION.pdf, >.

[7] https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=11829b68-66ce-42da-8943-1170da0db2a9, para. 40.

[8] http://www.hurriyetdailynews.com/osce-calls-on-turkey-to-release-two-arrested-journalists-over-high-court-ruling-125910

[9] https://m.bianet.org/english/law/195222-constitutional-court-rules-second-time-alpay-s-rights-violated

[10] https://www.g4media.ro/top-european-courts-life-kiss-to-turkeys-ill-judiciary.html

[11] https://www.turkishminute.com/2018/03/17/lawyer-altiparmak-alpay-decision-tactical-move-to-avoid-ecthr-rulings/

[12] See judgements in Altan v Turkey (application no. 13237/17) and Alpay v Turkey (application no. 16538/17).

[13] http://www.anayasa.gov.tr/icsayfalar/basin/kararlarailiskinbasinduyurulari/bireyselbasvuru/detay/152.html

[14] Case No. 2016/6 (Miscellaneous), Decision No. 2016/12, Date 4/8/2016;

http://www.kararlaryeni.anayasa.gov.tr/Karar/Content/717f7c20-b696-4379-84f6-dfb568f8844a?excludeGerekce=False&wordsOnly=False; see Olcay, T. (2017) “Firing Bench-mates: The Human Rights and Rule of Law Implications of the Turkish Constitutional Court’s Dismissal of Its Two Members”, European Constitutional Law Review, 13(3): 568-581.

 

[15] Venice Commission Turkey Opinion on the Provisions of the Emergency Decree Law No. 674 of 1 September 2016, Adopted by the Commission at its 112th Plenary Session (Venice, 6-7 October 2017) https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2017)021-e

[16] Case No. 2017/16.MD-956; Decision No. 2017/370; Date. 26.09.2017; for the text of the decision, see https://www.memurlar.net/haber/712749/yargitay-ceza-genel-kurulu-nun-bylock-ve-feto-uyeligine-dair-kararinin-tam-metni.html

[17] http://www.resmigazete.gov.tr/eskiler/2016/07/20160723-8.htm

[18] Law No. 7145 of 25 July 2018 regarding amendments to some laws and decrees www.tbmm.gov.tr/kanunlar/k7145.html

[19] See http://www.platformpj.org/arrests-judges-prosecutors-turkey-violation-principle-flagrante-delicto/

[20] http://www.platformpj.org/wp-content/uploads/An-All-Powerful-President1.pdf

[21] https://www.bbc.co.uk/news/world-europe-45917830, 19 October 2018; also see Court of Justice of the European Union, PRESS RELEASE No 159/18 Luxembourg, 19 October 2018 Order of the Vice-President of the Court in Case C-619/18 R Commission v Poland; https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-10/cp180159en.pdf

[22] http://www.platformpj.org/wp-content/uploads/COUNCIL-OF-EUROPE%E2%80%99S-PERSPECTIVES-ON-THE-RULE-OF-LAW-AND-HUMAN-RIGHTS-IN-TURKEY-IN-THE-AFTERMATH-OF-15-JULY-2016-COUP-ATTEMPT.pdf

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