Following the Constitutional Court ruling

By Özgür Mumcu

19 Ocak 2018 Cuma, 10:33
Abone Ol google-news

Following the rights violation ruling the Constitutional Court passed on Can Dündar and Erdem Gül, Mr Erdoğan said that he did not recognise the ruling. He did not stop at this, and asserted that the first-instance court did not have to comply with the Constitutional Court’s ruling. This was in a period in which the state of emergency regime had yet to be established and Mr Erdoğan’s wishes and suggestions found no take up. That is, in spite of everything, the judiciary had relative independence. However, nowadays, let alone the judiciary sticking up for its independence, even expecting it to comply with the minimum conditions of the rule of law is a flight of fancy. The decisions of judges and prosecutors who fear they may be dismissed at any time and know they may be detained display, not justice, but simply their determination to protect themselves.
The flouting by the first-instance courts of the ruling the Constitutional Court passed on Şahin Alpay and Mehmet Altan is a result of this climate of political pressure. Unfortunately, the judicial organs do not have much choice apart from complying with the instructions that politicians blatantly give them in full view of the public.
OK, let me repeat at the risk of being boring. Article 153 of the Constitution says that Constitutional Court decisions “shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies.” Article 138 of the Constitution, in turn, regulates the obligation for the legislative and executive organs and the administration to comply with court decisions and that they may not alter decisions or delay the execution of decisions.
In and after the referendum in which individual application to the Constitutional Court was introduced, no additional regulation was incorporated into these articles of the Constitution. There thus exist no different constitutional provisions between rulings the Constitutional Court issues on other matters and rulings it issues on individual applications as to their bindingness. That is, the rulings the Constitutional Court passes on individual applications are final and binding.
The decisions that the first-instance courts have issued under the pressure of the state of emergency political climate are contrary to the Constitution. Through these decisions, these courts have most probably also deprived the Constitutional Court of being an “effective means of recourse” with the European Court of Human Rights. Article 90 of the Constitution, for its part, states that in the case of a conflict between international agreements on human rights and statutes, international agreements will be applied.
One of the main justifications for enabling individual application to the Constitutional Court was decreasing applications to the European Court of Human Rights and remedying rights violations within national law. The flouting of Constitutional Court rulings by the first-instance courts has rendered this justification and, essentially, the individual application mechanism meaningless.
Problems that we cannot remedy under national law will go before the European Court of Human Rights; the court will most probably rule that Turkey has violated the European Convention on Human Rights and award damages to the applicants. It was not for nothing that Turkey was the 2016 compensation record holder.
Following the Dündar and Gül ruling, Mr Erdoğan announced that only damages would be paid under a probable European Court of Human Rights’ rights violation and damages ruling. This comes down to “however much it is, we will pay the money, but we will release nobody if a rights violation is declared.”
Such a situation will chart a path that may lead as far as Turkey’s expulsion from the Council of Europe. The legitimacy crisis that comes from being a state that does not comply with its own constitution is an added bonus
Is all this part of the ruling party’s conscious strategy to break away? Or, has the power poisoning caused by state of emergency conditions well and truly robbed the ruling party of its sense?