Turkish Constitutional Court based its ruling on ECHR practices

The Constitutional Court’s justification on the release of jailed journalists Can Dündar and Erdem Gül was published on March 9. Without going into technical legal details, I want to share some of my evaluations. 

First of all, what caught my attention was the fact that the justification’s reference to a “violation of rights” referred to exactly 39 European Court of Human Rights (ECHR) and Turkish Constitutional Court practices. This means that the Constitutional Court reviewed this case with the same legal criteria that it used to review other cases. It did not act in favor or against Dündar and Gül. 

There is a reason why the classic statue of justice is blindfolded. 

Three respected members of the Constitutional Court wrote their “dissenting vote” justifications because they found the arrests of Dündar and Gül justifiable. I read these dissentions carefully but I could not find even one example from ECHR or Constitutional Court practices. 

However, they did include quotes starting with “in times of war,” which is very interesting.
 
Such abstract and general expressions do not constitute proof or precedent in a concrete court case. What’s more, thank God, we do not have a legally declared state of war in our country. For this reason there cannot be such a reference to a “state of war.” 

One of the top criticisms of the Constitutional Court’s ruling was that it was given before all domestic legal remedies were exhausted. This was even uttered by a number of our leading politicians. 

But even the three dissenting members did not voice such an objection. In fact, it is openly stated in the Constitutional Court decisions that if there is a violation of rights then individual applications can be processed at the Constitutional Court without exhausting domestic legal remedies (Paragraph 58).

In addition, the road to individual application to the Constitutional Court was opened by the local court’s rejection of the objection to the arrests. “The domestic judicial remedies have been exhausted concerning the arrests,” the Constitutional Court stated. Moreover, the Justice Ministry also expressed its opinion in another case that if there is a violation of rights, the Constitutional Court could be resorted to without exhausting domestic judicial paths (Paragraph 59). Now, the same Justice Ministry accuses the Constitutional Court of exceeding its authority. 

Unfortunately, the Justice Ministry has been acting politically like this for some time.

Not one of the dissenting members stated that the Constitutional Court exceeded its authority in its ruling. In fact, the court accepted Dündar and Gül’s application unanimously in the first place. 

Other criticisms

The Constitutional Court has also been criticized for “exceeding its authority,” rendering the heavy penal court dysfunctional. However, in the ruling it openly stated that the arrests were reviewed in terms of press freedom violations (Paragraph 22).

Perhaps the most important aspect of the Constitutional Court decision was how it thoroughly reviewed the relationship between “arrest” and “violation of rights,” based upon ECHR practices and its own practices. This is a very technical matter legally and I won’t go into detail here. Those who want to can look at the court decision themselves (Paragraph 62-69).

Many government politicians stated quite frequently that the arrests of Dündar and Gül were not made because of “journalistic activities.” However, in the Constitutional Court decision it was stated repeatedly that there was no evidence in the file other than news clippings. In other words, this was an issue of journalistic activity.

Saying that if you were in Dündar and Gül’s position you wouldn’t have published that story is another matter entirely. This is a question of editorial policy. But in the end publishing that story falls within the freedom of press. 

We should all understand that without the rule of law there cannot be a strong Turkey. 

If I were a legal professor, I would include the Constitutional Court’s ruling in my classes, to show my students how our top court is keen to demonstrate the boundaries of freedom of expression.