Is a legal crisis on the horizon in Turkey?

As if our current issues were not enough, I am concerned that we may soon be facing a legal crisis in Turkey.

 If the country is dragged into a clash with the European Court of Human Rights (ECHR), both diplomatic relations and economic ones will be harmed.  

The issue is related to jailed journalists. The Constitutional Court has stepped aside in these cases, declaring itself unauthorized to rule due to the ongoing state of emergency. A case has now been taken to the ECHR, but Justice Minister Bekir Bozdağ has said the ECHR is unauthorized to rule unless “all domestic paths have been exhausted.” 

Despite Bozdağ’s statement, the ECHR has accepted the cases of jailed journalists Şahin Alpay and Ahmet Altan over the past two months, before waiting for Turkey’s Constitutional Court to rule. 

Alpay and Altan are still in jail and the Constitutional Court has not reached a decision. This means that the ECHR has accepted a case before domestic remedies are exhausted. As Bozdağ said, it is true that the ECHR is not authorized to step in before all domestic remedies are exhausted. But what if a government is hampering or severely delaying domestic remedies? 

It is to prevent these possibilities that you can take your case to ECHR if domestic remedies are “effectively blocked from functioning.” This is not my personal view.

The ECHR’s Feb. 20, 1991, judgment in the case Vernillo vs. France stated that direct applications to the ECHR are possible when domestic remedies are not effective, suitable and accessible and are not likely to bear any result. 

There have been many other ECHR judgments against France, the Netherlands, the United Kingdom and many more against Russia and Turkey when the ECHR decided to review a case before all domestic remedies were finished. 

In this case, the ECHR will look into whether or not justice in Turkey is functioning effectively and properly in applications concerning press freedom. 

We have accepted individual applications to the Constitutional Court in the event the judicial procedures do not function effectively and properly, but the authority of the ECHR is continuing.

Any Turkish, German or Azerbaijani citizen can go to ECHR for their constitutional court decisions or lack of decisions. If their decisions or lack of decisions are against ECHR practice, if rights and freedoms are not well-protected, then the last resort is again the ECHR. 

In the case of Alpay and Altan and others, the ECHR will look into this: If there are no other concrete acts other than reports and columns that might constitute a crime, then why have these journalists been under arrest for months?

Why can’t the Constitutional Court set a precedent for months? 

The ECHR is also looking at the legal environment and current political circumstances that might affect the paths of justice. 

Aside from the classic wars each nation has fought, Europe wanted to ensure “rule of law” and “fundamental rights and freedoms” with such rules and checks because it has suffered a great deal twice from world wars, from fascist and communist regimes.   

We also signed the relevant treaty, meaning we have accepted the ECHR’s jurisdiction. 

In this case, if the ECHR rules that Turkish justice and the Constitutional Court do not offer effective domestic remedies in terms of rights and freedoms, then the heavy consequences are known to jurists and economists.  

God forbid, I would say, and beware. 

Justice is Turkey’s lifeblood.