Court does not recognise Constitutional Court’s promulgated reasons, either

The Constitutional Court yesterday, within eight days, promulgated in the Official Gazette its reasons for the rights violation ruling it passed on detained columnists Mehmet Altan and Şahin Alpay. The local courts were thus deprived of their excuse for dismissing the release applications, having resorted to the pretext that the ruling had not been promulgated in the Official Gazette. From this point on, the legal obligation arose for Istanbul Serious Crime Courts No 13 and 26 to comply with the Constitutional Court’s rights violation ruling that had attained official status and set a precedent. Moreover, the opinions of the dissenting members of the Constitutional Court also appeared along with the ruling. President Tayyip Erdoğan’s appointees Kadir Özkaya and Rıdvan Güleç along with Recai Akyel, who had been appointed by parliament, asserted in the dissenting opinion they submitted jointly that for detention in emergency periods, “the existence of certain indications pointing to the suspicion of guilt that could be described as strong” rather than “concrete facts” was sufficient to warrant initial detention.

The Constitutional Court passed a rights violation ruling on 11 January on Mehmet Altan, Şahin Alpay and Turhan Günay’s applications. The supreme court, ruling that Altan and Alpay’s freedom of press and expression and rights to liberty and security of person had been violated, forwarded a copy of the ruling on the same day to the local courts in Istanbul for the results of the violation to be eliminated.

Istanbul Serious Crime Court No 13 did not comply with the Constitutional Court’s violation ruling and dismissed Şahin Alpay’s release application. Istanbul Serious Crime Court No 13 argued that provision is made in Article 153 of the Constitution that annulment rulings issued by the Constitutional Court become effective and valid on being promulgated along with the reasons in the Official Gazette. The court, stating that the reasoned decision on Alpay had not been made known, noted that the Constitutional Court had not passed an order having the nature of a measure, either. The bench did not consider the forwarding of the truncated ruling to it and the reasons also being posted on the Constitutional Court’s website to be sufficient for release. Istanbul Serious Crime Court No 26, which dismissed Mehmet Altan’s release application, also dismissed the release application citing the reasoned ruling not having been promulgated in the Official Gazette.

Appeared in eight days

Yesterday, the Constitutional Court promulgated the rights violation ruling it had passed on Altan, Alpay and our newspaper’s Book Supplement Editor Turhan Günay in yesterday’s Official Gazette. The Constitutional Court, in promulgating its ruling within eight days, far more speedily than previous violation rulings, wished to put an end to the disputes. Unlike annulments of statute, there is no requirement for the Constitutional Court to promulgate individual application rulings in the Official Gazette for them to be implemented. Under the Constitutional Court Law, courts must comply with violation rulings on being notified of them.

However, with the Constitutional Court having promulgated the ruling in the Official Gazette, the local courts had no remaining excuse. From here on, Serious Crime Courts No 13 and 26 had a constitutional obligation to comply with the Constitutional Court’s binding ruling and release Altan and Alpay.

Criticism of the Constitutional Court over boundaries

Moreover, the opinions of the dissenting members also appeared along with the promulgation of the ruling in the Official Gazette. Six of the members who dissented to the ruling on Şahin Alpay and Mehmet Altan, whose freedoms of press and expression and rights to liberty and security of person had been violated, submitted a joint dissenting opinion text. The dissenting members, sharing the local court’s thoughts, criticised the Constitutional Court as follows: “While within the individual application system the Constitutional Court, taking account of the particularities of the case in hand, has the power of oversight especially over the process of detention and detention order reasons, discretion, particularly in initial detentions, as to whether there exist strong indications that a crime was committed, the precondition for detention in each particular case, and whether there exist grounds for detention and as to the proportionality of the detention measure rests initially with the judicial authorities that apply the measure. For, the judicial authorities that are in direct contact with the parties and evidence are better placed in this regard than the Constitutional Court.”

Suspicion is enough under state of emergency

The text, in which the message is given that in state of emergency periods detention can be ordered on suspicion rather than concrete evidence, continued:

“Especially in state of emergency periods, in assessing the legality of the detention measure applied as part of an investigation being conducted in connection with the events that have given rise to the proclamation of the state of emergency, in determining whether there exists a strong indication that the crime was committed, the particularities of each specific event in which the detention measure is applied and the nature of the events that have given rise to the proclamation of the state of emergency must not be overlooked, either. With regard to detention measures to which recourse is made following a development that affects the country as a whole such as a coup attempt, it may not always be possible for all the concrete facts (indications) that confirm suspicion of guilt to be determined by the investigating authorities along with their details at the time the measure is applied and for such concrete facts to be relied on in judicial authorities’ initial detention orders. Under such circumstances, the existence of certain indications pointing to the suspicion of guilt that can be described as strong may be sufficient to warrant initial detention in certain cases according to the nature of the event.”

His articles are the indication of crime

The view was included in the text in which it was argued that, according to the investigating authorities and the penal judgeships of the peace that issued the detention orders, applicant Alpay had ties to FETO/PDY and had even written articles in media outlets belonging to it that praised this formation, portrayed this formation’s activities as being legitimate and aimed at frustrating the investigation being conducted into the formation: “He kept up this demeanour until the coup attempt even though an investigation had been launched into “membership of an armed terrorist organisation” against the managers of one of the said newspapers. According to the penal judgeship of the peace, this situation was a strong indication that a crime had been committed with regard to the applicant who was a columnist and journalist. As such, in view of the determinations and assessments made above, it has not been deemed possible to say that the investigating authorities and penal judgeship of the peace which issued the detention order had been unable to adduce in concrete terms indications that the crime had been committed and that their assessments were baseless and arbitrary in their approach.”

There is supposedly compelling evidence

The three dissenting members asserted in their dissenting opinion, taking into consideration that Şahin Alpay had been detained fifteen days following the thwarting of the coup attempt as part of an investigation conducted into the FETO/PDY media formation, that in view of the investigation process there was absolutely no reason to conclude that detention was unwarranted by virtue of the proportionality principle. In the text, in which it is stated that Istanbul Penal Judgeship of the Peace No 4’s conclusion that the detention measure applied to the applicant was proportional and that release under conditions would fall short of adequacy in view of the magnitude of the penalty envisaged for the charged crimes and the nature and importance of the business cannot be said to be arbitrary and baseless, it was noted that on examination of the applicant’s claim that his detention was unlawful there existed compelling evidence to suspect that the applicant may have committed a crime. The members, asserting that there had been no rights violation, opposed the rights violation ruling on Mehmet Altan for the same reasons.