A chance for the Turkish justice to correct a big mistake

On Jan. 11, 2018, Turkey’s Constitutional Court ruled that the rights of arrested journalists, Şahin Alpay and Mehmet Altan, had been violated and that the pair should be released. In prison for more than a year, both of the well-known journalists are accused of “links to terrorist groups” and “attempting to overthrow the government.” 

However, a lower court immediately overturned the high court’s decision and ruled for the continuation of the imprisonment of the two journalists, in full violation of the Turkish constitution. At that time, instead of criticizing the lower court’s decision that created a mess within the Turkish judicial system, top government officials slammed the Constitutional Court for exceeding its limits.

Deputy Prime Minister and government spokesperson Bekir Bozdağ, who has a legal background, openly criticized the Constitutional Court on Jan. 12 through his Twitter account.

“[With the ruling], the Constitutional Court has gone beyond the limits set by the constitution and the laws, acting as a first degree court by evaluating the case and the evidence… When ruling on individual applications, the Constitutional Court cannot act as a first degree court or an appeals court and rule accordingly,” he said.

This was quite shocking for the officials of the European Union and the Council of Europe. From the EU perspective, it was yet further evidence of the deteriorated rule of law in Turkey as well as the restricted freedom of expression. From the perspective of the Council of Europe, the denial of the implementation of a high court decision over an individual application was putting the status of the Constitutional Court as an effective domestic remedy mechanism.

It was right after this that Council of Europe President Thorbjorn Jagland paid a visit to Ankara in mid-February where he held extensive talks with President Recep Tayyip Erdoğan and other officials. He had openly said this was making a very serious issue for the Turkish justice and that the European Court of Human Rights (ECHR) could begin to receive more individual applications over human rights violations.

It is perhaps after Jagland’s talks that Erdoğan urged the judges to respect the Constitutional Court’s decisions even if they did not agree with them. “From time to time we have criticized the decisions of our courts, our high judicial institutions and our Constitutional Court. We will continue to do that. But we have never ignored these decisions. We have never hesitated to fulfill their requirements,” Erdoğan had said.

These statements appear to contradict earlier statements in 2017 in which the president called on the lower courts not to implement the decisions of the high court after the release of another journalist Can Dündar from prison as a result of the Constitutional Court ruling.

In any case, after nearly two months, the Constitutional Court has once again ruled that Şahin Alpay’s rights have been violated, upon the second appeal of the lawyer of the imprisoned journalist. (It was two weeks ago that Mehmet Altan, his younger brother Ahmet Altan and Nazlı Ilıcak were given aggravated life sentences. Exactly the same sentences were given to former Turkish air forces pilots who bombed the Turkish Parliament and other state buildings on the night of July 15 in an attempt to topple the government.)

This second ruling of the Constitutional Court is a chance for the Turkish justice system to correct a big mistake committed two months ago. It would also reinstate the respected status of the high court while injecting a piece of hope into the the future rulings of journalists and others whose rights have been violated under state of emergency rule.