For Turks, Constitutional Court No Longer an Address For Legal Remedy

When European Court of Human Rights (ECtHR) rejected applications by Turkish citizens dismissed in post-coup government purge, it cited the need for full exhaustion of domestic legal channels, including applying to Turkey’s top court, Constitutional Court, as essential steps before going to the ECtHR.

The Strasbourg-based court had genuine concerns, with good reason, of being smothered by a backlog of tens of thousands of new cases if it accepted reams of files from Turks.

Turned down by Europe’s signature court for investigating individual human rights violations, Turkey’s desperate public workers and jailed journalists turned their eyes on Constitutional Court in Ankara to seek legal remedies for arbitrary arrests, purge without any due process and blatant violations during politically-tinged trials in the aftermath of a botched coup in 2016.

A legal showdown last week threw Turkey’s top court back to the center of the national conversation. Last week, Constitutional Court issued an order for the release of two prominent imprisoned journalists, Mehmet Altan and Sahin Alpay. It decided that their rights to a fair trial have been violated during legal proceedings.

It also concluded that their rights to “freedom of expression and press,” and “individual liberty and security” were ignored during the trial.

Hours after the ruling, Deputy Prime Minister Bekir Bozdag who also served as justice minister in the past, and other senior government figures began to mount a tremendous pressure on Constitutional Court in a concerted campaign to sway the decision.

Mr. Bozdag even went on to claim that “Constitutional Court crossed its legal boundaries and violated the constitutional law.”

To the astonishment of legal experts and political observers, the local court in Istanbul defied the order and refused to comply with the ruling, which, in normal times, was ultimate and binding for all other lower courts in Turkey.

“This is the final nail in the coffin of Turkey’s Constitutional Court and rule of law,” said Aykan Erdemir, a former lawmaker for the secular main opposition Republican People’s Party (CHP) and a fellow at Washington-based Foundation for Defense of Democracies.

His comment cut across the public landscape and political spectrum in Turkey as people reached the same conviction that the clash between courts marked the death knell of Constitutional Court.

“I call out on the judges who have made this decision. You will not be able to look at the face of your children tomorrow,” CHP Chairman Kemal Kilicdaroglu said at a party meeting on Tuesday. “In such a system where the constitution is suspended, nobody’s life and property are secured.”

The legal standoff rankled constitutional experts as well, leaving legal scholars shuddered over the ramifications of last week’s drama.

The 26th High Criminal Court in Istanbul where Mr. Altan stands trial rejected top court’s ruling on the grounds that it had not received the reasoned opinion of the court in a written document, a technical procedure that might take some time. Its rationale for refusing to comply with Constitutional Court’s order, however, was unprecedented and not seen in legal memory.

Without wasting time, lawyers of Journalist Altan, Ergin Cinmen and Figen Albuga Calikusu, then applied to a superior court in Istanbul, the 27th High Criminal Court, seeking a re-evaluation of the case and an immediate execution of the top court’s verdict.

That court, too, rejected the application on Monday.

The two decisions, only three days apart, reveal an unpleasant fact about what the country faces.

“This is a genuine constitutional crisis. If the Constitutional Court’s rulings may be disregarded by the lower courts, then the Constitutional Court is no longer playing its role as the final judicial interpreter of the constitution,” Nate Schenkkan, Project Director at Washington-based Freedom House, told The Globe Post Turkey.

He noted that the impact on the post-coup trials is very serious. “Although no one has had any illusions about the quality of judicial independence in Turkey, we have not seen before this flagrant a rejection of the constitutional order,” he said with candor.

All appearances, he argued, indicate that the government is able to dictate judicial outcomes now.

Professor Ibrahim Kaboglu, one of the country’s leading experts on constitutional law, was very candid in appreciation of what the local court’s defiance has indeed meant. Mr. Kaboglu, who himself was also dismissed by the government from his university post as part of the post-coup purge, rejected the rationale of Istanbul court to wait for Constitutional Court’s written opinion as misplaced and unconvincing.

Though the local court has a right to see the written reasoned opinion, he explicated, legal precedents and history suggest compliance with Constitutional Court’s order hours after its release. It was binding and ultimate, he elucidated in further clarification of the meaninglessness of dragging foot by lower courts.

But the way how the high-profile feud between two courts played out has generated an ensuing controversy over the political machinations and interference that chipped away any remaining vestige of judicial independence and the rule of law. Without blatant political intervention, the local court could never dare to challenge the top court.

Last year, a local court in Izmir blocked the access to a web page featuring a 2014-dated verdict on Constitutional Court’s website. That indeed contained all the forebears of today’s crisis that the top court endures.

European Court Emerges As Only Alternative

The breakdown of legal order and meltdown of Turkey’s top court as the final arbiter of the constitutional law, liberties and clashing legal views among courts provides a blueprint for purge victims. The road to legal remedy, after this week’s scandal, appeared to be shut down indefinitely within the country.

“It is an admission by the Turkish judiciary that Turkish citizens do not have effective legal mechanisms in their own country to defend their fundamental rights and freedoms,” Mr. Erdemir said in remarks to The Globe Post Turkey, pointing to the legal pitfalls and challenges that await Turkey’s citizens.

This scandalous development, he argued, should also be a wake-up call for the ECtHR, which should no longer require Turkish applicants to exhaust local remedies before taking their cases to Strasbourg.

According to the former lawmaker, “international law recognizes that citizens can access international enforcement mechanisms if local remedies are unavailable, ineffective, or unreasonably delayed, a trifecta Turkey hits under Erdogan’s autocratic rule.”

The press office of the ECtHR was unavailable for a comment.

More than 150,000 public workers, including generals, diplomats, judges, prosecutors, teachers and police officers, have been sacked without due process since the failed coup. A riveting report recently released by Washington-based Freedom House downgraded Turkey’s status from ‘Partly Free’ to ‘Not Free,’ revealing the setbacks that gripped the country’s political realm and judicial landscape.

All recent signs point to a vexing problem within Turkey’s judicial system. The CHP leader has called on members of the Boards of Judges and Prosecutors (HSK), the top body responsible for regulating judicial affairs, including appointing and removing judges and prosecutors, to resign if they fail to act after the recent dispute.

“What will you do to those judges who did not comply with the Constitutional Court? Why don’t you convene [for a meeting]?, why don’t you make any decision [about it]?” Mr. Kilicdaroglu railed in indignation.

“Then, leave those seats,” he said in an expression of fulmination.

The latest controversy has added a new element of confusion and uncertainty to the top court. It already faces a hard slog ahead as more than 100,000 applications wait for judicial review by its 17 members.

“The European Court of Human Rights (ECtHR) and the Council of Europe must also urgently reckon with these developments,” Mr. Schenkkan said, echoing a similar line of view along with Mr. Erdemir.

The ECtHR has said that Turkish citizens may not apply to it yet without exhausting their power of individual appeal to the Constitutional Court, he noted.

“If the lower courts will not recognize or implement Constitutional Court rulings on individual cases, then the argument for not allowing Turkish citizens to apply directly to the ECtHR is no longer valid,” he expounded, underlining the irrelevance of insistence on pursuing ‘domestic legal remedy.’

“This will produce a flood of applications to the ECtHR.”