Recent decisions of the Constitutional Court reflect ECHR

The decisions of the Constitutional Court (AYM) last week about Professor Mehmet Haberal and Mustafa Balbay can be seen as among the most important ones after it assumed the mission of the European Court of Human Rights (ECHR) regarding the individual application right. 

The significance of these decisions stems from their political outcomes, the huge echo they have created in the public and at the same time the fact that the court’s opinion is being formed. 

One of the most critical arrangements of the 2010 constitutional referendum was the obligation that Turkish citizens should use their right of individual application first in the AYM before they applied to the ECHR. As a result of this, citizens now directly apply to AYM.

More than 10,000 applications

The Constitutional Court started accepting applications as of Sept. 24, 2012. During these 14 months, there have been more than 10,000 applications. 

Diverting the individual application right to the address of the AYM and then putting the ECHR as the last means of remedy after this stage has also brought the debate of whether this step was a good or a bad one.

Pessimists, by extending the negative opinion about justice in the Turkish public to the AYM, argued that just verdicts should not be expected from this court, that this arrangement would result in the delay of the process of applying to Strasbourg, hence will cause a postponement for the citizens in seeking justice in the ECHR. 

Optimists, though, defined the individual application right to the AYM as a major “legal revolution” in Turkey, adding that one should have confidence in the court and that it has been an arrangement in favor of the citizens that complaints against violation of rights will be solved in Turkey without the need to go to the ECHR.

In the light of the public opinion

It will be in the light of the public opinion that will be formed about AYM practices that which side will win this debate. No doubt it will be a determining factor to what extent the court’s decisions will be in compliance with the ECHR case law. The AYM, in this respect, has to convince the ECHR in a sense. 

The Constitutional Court is at the beginning of the road in this new duty of theirs; they have now started issuing their verdicts after examining the applications. According to the statistics posted on the website of the AYM, in one year between Sept. 2012 and Sept. 2013 there has been 8,486 applications processed. The number of files that have been processed in the commissions and sent to departments, in other words, that have arrived at the range of decision making is 413. When viewed from this angle, the AYM case law is just being established. 

The verdicts that have been issued about Professor Haberal and Balbay have two dimensions, one as “the length of the detention period” and the other as “the right to be elected.” There are other decisions that the AYM ruled last July about “prolonged detentions.” Haberal-Balbay decisions are not the first; at least it can be said that AYM is establishing its own case law in this category. 

A first for the Constitutional Court 

More importantly, the AYM has ruled a violation because of the “right to be elected.” This is a first for the AYM. The court bases this violation on the 67th Article of the Constitution, “In conformity with the conditions set forth in the law, citizens have the right to vote, to be elected…” 

No doubt, it will be possible to see the court’s view point in more detail when their justified decisions are published; however, the opinion that emerged among experts is that the Haberal-Balbay decisions demonstrate a harmonious trend, in general, with the ECHR case law and European Convention on Human Rights. 

As a matter of fact, Rıza Türmen, who served as a judge for nine years at the ECHR and who is now an İzmir deputy of the main opposition Republican People’s Party (CHP), also agrees to that. 

The further clarification of the current trend of the Constitutional Court in the coming days will open the way for the debate on its undertaking of the responsibility of examining individual applications to result in a positive direction. 

Sedat Ergin is a columnist for daily Hürriyet in which this abridged piece was published on Dec. 10. It was translated into English by the Daily News staff.