Constitutional professor İbrahim Kaboğlu: court should have ordered Altan and Alpay’s release

Prof. İbrahim Kaboğlu, one of Turkey’s leading names in the field of constitutional law, has assessed the release ruling that the Constitutional Court (CC) issued regarding Mehmet Altan and Şahin Alpay and subsequent developments.

Kaboğlu stressing that, “Altan and Alpay are facing such an onerous sanction as being deprived of their freedom,” commented, “The court should have ordered release in the hours following the issuing of such a ruling by the Constitutional Court, without casually proclaiming ‘No, we’ll wait for the reasoned ruling’ and treating it like an uphill matter.”

Kaboğlu, recalling that, in the course of the Ergenekon and Sledgehammer trials, releases took place immediately following CC “rights violation” rulings without awaiting the reasoned ruling, wondered, “Are they being affected by the situation in which Turkey finds itself? There was no state of emergency at the time of the Ergenekon trial and now there is a state of emergency.”

The assessment made on T24 by Prof. İbrahim Kaboğlu was as follows:

“The Constitutional Court ruling is binding so the first-instance court should have passed a release order. As such, the bench members’ dissenting opinions are correct. The first-instance court said, ‘We want to see the reasoned ruling,’ and, of course, court decisions are generally reasoned.

It is without doubt the court’s right to see the reasoned decision. But, here, the CC has passed a ruling to this effect and it has been announced in one way or another. Given that it has been announced and the involved parties are facing such an onerous sanction as being deprived of their freedom, the court should have ordered release in the hours following the issuing of such a ruling by the Constitutional Court, without casually proclaiming ‘No, we’ll wait for the reasoned ruling’ and treating it like an uphill matter.

The reasoned ruling is a comprehensible thing. But, as was said in the dissenting opinions, their immediate release is what is sought at the heart of the CC’s ruling.

(Concerning releasing taking place without awaiting the CC’s reasoned ruling in the Ergenekon and Sledgehammer trials) Are they being affected by the situation in which Turkey finds itself? There was no state of emergency at the time of the Ergenekon trial and now there is a state of emergency.”

What happened?

The Plenary Session of the Constitutional Court ruled that there had been a violation of detained columnists Mehmet Altan and Şahin Alpay’s right to liberty and security of person and freedom of expression and the press. However, Istanbul Serious Crime Court No 13 ordered the continued detention of Alpay, as did Serious Crime Court No 26 of Altan.

Serious Crime Court No 13 cited as grounds in its dismissal ruling that the CC ruling had not been promulgated in the Official Gazette and the reasoned decision had not yet reached the court. As to Serious Crime Court No 26, it argued in its decision, “The order for Mehmet Altan’s release is not discernible from the truncated ruling and the CC’s reasoned ruling has not yet reached the court.”

Members who cast dissenting votes on both courts, which ordered the continuation of detention by majority vote, drafted dissenting opinions to the effect that, “The CC’s truncated ruling is also binding on the court” and “The ‘rights violation’ on which the CC has ruled can only be ended through release.”