Constitutional Court may lose function of individual appeal

Remarks made by European Council Secretary General Thorbjorn Jagland, who says the European Court of Human Rights (ECHR) may process applications on the jailed journalists and politicians in Turkey before awaiting a verdict from the Constitutional Court, should be treated as a very serious warning.

Jagland is ringing warning bells, because this mechanism worked effectively for six years after the Constitutional Court was accepted as an individual application address before the ECHR in the famous 2010 constitutional referendum and it started accepting applications in 2012. In the past six years, the Constitutional Court has been seen as a success story in Strasbourg with its case law developed in line with ECHR decisions in the case of individual applications, receiving great respect.

However, Jagland’s statement on March 1 after meeting with Justice Minister Bekir Bozdağ in Strasbourg raises question marks lingering on this success story.

The secretary general says in reference to the situation of detained journalists and parliamentarians that “the situation for these people is critical because many have been in pre-trial detention for several months.” 

His warning continues as follows: “If their cases are not being dealt with soon by the Turkish Constitutional Court, the European Court will probably consider whether this is an effective domestic remedy, and just start dealing with their complaints.”

In other words, if the Constitutional Court does not make decisions regarding these people, the ECHR will consider itself directly authorized. This would make the Constitutional Court non-functional in individual applications and lead to establishing the idea that the Constitutional Court does not act as an effective appeal body for complaints on detention. 

Thus, Işıl Karakaş, a Turkish judge in the Constitutional Court, says “the emergence of such a development creates a negative situation in terms of the prestige of the Constitutional Court. This is because this means a return from gains in 2012, when the court started accepting individual applications. Nobody wants such a thing. We also do not want such a thing in Strasbourg.” 

ECHR vice chair Karakaş elaborates on what lies beneath the issue.

“The Constitution Court needs to investigate whether the detention has a legal base or not. And it needs to do this review quickly, as soon as possible. This is where the problem lies.

 “If the Constitution Court does not take a decision on these applications in the near future, the ECHR will tell the Turkish government that it will initiate the necessary processes. The message given by Jagland should be read in this way.”

Here is another point that Jagland underscores: “Let me clarify to avoid any misunderstanding. We do not mean the ones who took the gun on July 15th and got involved in the coup, we evaluate their situation differently. What we are sensitive about is the freedom of expression within the framework of the ECHR case-law and the long practice of detention in the context of press freedom. These are, for example, the arrest of Cumhuriyet newspaper employees, the situation of journalist Kadri Gürsel or the situation of singer Atilla Taş.” 

Karakaş emphasized during our conversation on March 1 that the periods of arrest should be kept short in the case of freedom of expression and the press in line of the ECHR case-law. 

What is the reasonable time for arrest?

“As the ECHR, we have violation decision for four months in freedom of expression-linked arrests,” Prof. Karakaş said. 

All these statements indicate that delaying the conclusion of the applications over the arrests of especially politicians and journalists, would lead to serious problems with the ECHR and the Council of Europe. 

In this sense, we can say that the Constitutional Court faces a critical test closely related to its own prestige.