On 11 January 2018, Turkish constitutionalism entered a new phase of decay. This phase was not triggered by criticism of its judgments by the government nor by the retreat of constitutional protections by the Turkish Constitutional Court (TCC) nor by constitutional court packing as seen in Hungary or Poland. Instead, first instance courts became the newest actors to challenge the authority of the country’s constitution and how it is interpreted by the TCC. The new rebels against Turkish constitutionalism are ordinary judges

Çalı, Başak

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Başak Çalı Mo 22 Jan 2018 Mo 22 Jan 2018Will Legalism be the End of Constitutionalism in Turkey?verfassungsblog.de/will-legalism-be-the-end-of-constitutionalism-in-turkey/On 11 January 2018, Turkish constitutionalism entered a new phase of decay. This phasewas not triggered by criticism of its judgments by the government nor by the retreat ofconstitutional protections by the Turkish Constitutional Court (TCC) nor by constitutionalcourt packing as seen in Hungary or Poland. Instead, first instance courts became thenewest actors to challenge the authority of the country’s constitution and how it isinterpreted by the TCC. The new rebels against Turkish constitutionalism are ordinaryjudges. What is more, in a twist that ought to baffle any student of constitutional law, thecore objection of the judges against Turkish constitutionalism is that fundamental rightsguarantees as interpreted by the TCC do not comply with ordinary domestic law.This new force of legalist resistance unleashed itself in the aftermath of two TCC decisionsdelivered on 11 January 2018. These applied to the cases of two journalists — MehmetAltan and Şahin Alpay — and their long-term pre-trial detention for offences related toterrorism and the failed coup attempt of 2016.  The claims of the applicants before the TCCdo not engage with novel points of constitutional interpretation and, as such, cover thesame ground as many similar cases before the European Court of Human Rights that havebeen brought by journalists from Turkey and other Council of Europe member states.The applicants argue that being in pre-trial detention for over a year was not constitutional,that they were not able to benefit from fair trial guarantees in the course of the legalproceedings against them and that their journalistic activities form the core of the chargesagainst them, thus rendering the totality of the legal proceedings a violation of their freedomof expression. They also allege that their treatment in detention amounted to inhumantreatment. In ECHR parlance, the journalists were arguing for violations of their Article 3, 5,6, and 10 rights. These are rights which are equally protected under the Turkishconstitution.In response to these claims, carefully citing Strasbourg jurisprudence as well asemphasising that its review is confined to assessing whether the reasoning of the lowercourts for continuing detention of the journalists was relevant and sufficient, the TCC foundviolations of Article 19 of the Constitution (corresponding to Article 5 of the ECHR) andArticles 26 and 28 of the Constitution (corresponding to Article 10 of the ECHR) by amajority vote of 11 to 6.  The TCC highlighted that the reasoning of the lower courts wasnot sufficient. Not only the reasons for detention were based solely on newspaper articleswritten by these individuals, but also these articles did not convincingly constitute evidencethat the individuals were implicated in the failed coup attempt.   In reaching this outcome,the TCC also considered the state of emergency rule in Turkey. It held that standards ofmore lenient review may apply for derogable constitutional rights in times of state ofemergency, but the onus of providing sufficient reasons on the part of first instance courtsis not affected by this. The TCC dismissed article 3 claims due to the non-exhaustion ofdomestic remedies and did not find any breaches of fair trial rights.1/3The TCC instructed that a copy of its judgment be transmitted to the first instance courts sothat that the consequences of the violations could be removed.  It also awarded non-pecuniary compensation to the applicants for their unconstitutional pretrial detention.The legalist rebels: first instance Heavy Penalty CourtsGiven the number of journalists detained in Turkey, the TCC judgement quickly trended onsocial media, and the lawyers of the applicants announced that they were on their way topick up their clients. Their expectation, however, was quickly quashed when the 13thHeavy Penalty Court declared that it was refusing to release one of the journalists, ŞahinAlpay. The 26th Heavy Penalty Court, before which the case against the second journalistMehmet Altan was under trial, quickly followed suit.The 13th Heavy Penalty Court cited four grounds for its refusal. First, as a formal point, thecourt held that even though it had seen the judgment on the TCC’s website, it would needto wait until its publication in the Resmi Gazete (Official Gazette). Second, the court wenton to carry out an abstract review of the powers conferred to the TCC for ruling onindividual cases and declared that it has not been given powers to review and assessevidence in an ongoing trial. Third, the court accused the TCC of acting as a first instancecourt in the case at hand. It held that its review of the reasons for detention was contrary tothe law that established the right to individual petition. Finally, and most importantly, thecourt, by quoting extensively from the judgment of the TCC about the lack of relevant andsufficient reasons for the detention of the journalists, defended itself, stating that firstinstance courts do not have to write all the reasons for continuing detention in an ongoingtrial, as this may constitute evidence of judicial bias as to the outcome of the case. The13th Heavy Penalty Court, thus, in effect, stated that it had the right to have its cake and toeat it. If the court does not need to provide all of its reasons for ongoing detentions, thereview of the reasons provided cannot be the basis for releasing the detainees.What of the bindingness of the TCC’s right to individualpetition judgments?The right to individual petition, which became part of the Turkish Constitutional landscapein 2012, allows for individuals to bring cases to the TCC for rights that are protected at theintersection of the European Convention on Human Rights and the Turkish Constitution. Itis no secret that this constitutional remedy was introduced to decrease the number ofcases going to Strasbourg and to remedy human rights cases at home.  This is also howthe TCC, until now and for the most part, has interpreted its mandate. The TCC has been aclose follower of Strasbourg jurisprudence for the past six years. It has done this, inparticular, with respect to Articles  2, 3, 5, 6 and 10 of the European Convention. That is notto say that the TCC is a shining beacon for human rights protection in all circumstances. Itdeclared, for example, that it has no powers to review the constitutionality of the state ofemergency originally declared in the summer of 2016 and, at the time of writing, this wasextended six times.  Flooded by hundreds of thousands of individual cases since thedeclaration of the state of emergency, the TCC has also been slow to react to concretefundamental rights violations claims directly stemming from it.2/3The case of the two journalists is one of the first cases in which the TCC has signalled thatit may be time to bring fundamental rights protections in Turkey back to its normal level. Inso doing, it has followed its own case law concerning the constitutional review of detentionsof first instance courts and the high constitutional value it attaches to the right to freedom ofexpression. The judgments of the Turkish Constitutional Court are binding on all organs ofState. The practice of restitution ad integrum in unconstitutional detentions was alsofollowed by first instance courts in earlier cases — cases prior to the declaration of thestate of emergency, that is. Overall, the direct effect to TCC judgments was respected byfirst instance courts in a diverse range of cases. The relationship between the TCC and theother higher courts of Turkey (the Supreme Administrative Court and the Court ofCassation) was also marked by the spirit of  judicial dialogue, where  the courts acceptedthe TCC as a central actor in fundamental rights protection, even though they at times dugtheir heels in before grudgingly changing their case law in response to TCC judgments.Where from here?In response to the first argument of the 16th Heavy Penalty Court (that judgments must bepublished in the Official Gazette to have legal effect), the TCC expedited the publication ofits judgment. This is despite the fact that first instance courts never emphasised this pointpreviously.   On 19 January 2018, the judgment appeared in the Official Gazette. As of 22January 2018, the first instance courts have not followed this judgment to its legalconclusion as demanded by the TCC: the release of the journalists and the continuation ofthe trials by using less restrictive measures to the liberty of person than detention.The crux of the matter, thus, is not whether the judgment is published or not. It is whetherthe heavy penalty courts are developing a first instance doctrine of immunity fromconstitutional review for their detention practices.The reasoning of the 16th Heavy Penalty Court is the first legalist defense of anti-constitutionalism furnished by a first instance court in Turkey. It relies on autonomousinterpretation of domestic ordinary law despite what the Constitution or the TCC says. Whoneeds political meddling with fundamental rights protections in the Constitution orconstitutional court packing when you have first instance court judges reviewing the legalityof constitutional court judgments? It is this new legalist rebellion against the Constitutionand the TCC that may herald the death of Turkish Constitutionalism.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Çalı, Başak: Will Legalism be the End of Constitutionalism inTurkey?, VerfBlog, 2018/1/22, http://verfassungsblog.de/will-legalism-be-the-end-of-constitutionalism-in-turkey/, DOI: https://dx.doi.org/10.17176/20180122-182844.3/3

Will Legalism be the End of Constitutionalism in Turkey?

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Will Legalism be the End of Constitutionalism in Turkey?

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