Superior courts defy Constitutional Court, too

Objections by journalists Mehmet Altan and Şahin Alpay to orders for their detention to continue despite the Constitutional Court’s rights violation ruling have been dismissed by the superior courts. Serious Crime Court No 27, which heard Altan’s application, ruled in favour of continuation of detention on the grounds that the ruling had not been promulgated in the Official Gazette.

17 Ocak 2018 Çarşamba, 10:55
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CANAN COŞKUN
 
Objections by journalists Mehmet Altan and Şahin Alpay to orders for their detention to continue despite the Constitutional Court (CC)’s rights violation ruling have been dismissed by the superior courts. Following the decision, stated to have been passed for reasons such as the ruling not having been promulgated in the Official Gazette and the reasons not having been forwarded, Altan’s lawyers made a further application for release accompanied by the reasoned decision. However, this application has not yet been considered.
 
Journalists Altan and Alpay, in whose favour the CC issued a rights violation ruling, were not released due to the trial courts ordering the continuation of their detention. Following their lawyers’ objections, the courts referred the cases to the next superior court. One of the courts examining the objections, Istanbul Serious Crime Court No 27, ruled yesterday by majority vote to dismiss Altan’s application for release. The court, stating that the violation ruling must be promulgated in the Official Gazette, declared the detention order to be compliant with procedure and the law.
 
One member made a dissenting opinion
 
Member judge Halit İçdemir, for his part, dissented to the decision. In his dissenting opinion, İçdemir, noting that according to Article 153 of the Constitution it was possible for violation rulings to be announced without the reasons having been drafted, stated that the matter could be comprehended in the decision that had been forwarded to Istanbul Serious Crime Court No 26. İçdemir, indicating that criteria of adequate scope had not been established in individual applications to the CC, noted that while there was a need to act with a focus on universal and national rights, the approach had been adopted of monitoring for compliance with statutory legislation and endeavouring to settle the dispute on the merits. İçdemir, indicating that as a consequence of this the vast majority of the violation rulings that had been promulgated in the Official Gazette dated from 2014, said, “When reference is made to the CC’s membership profile, it is unacceptable in particular for it to embark on settling disputes on the merits in penal proceedings.” İçdemir, arguing that the CC’s interpretation by way of “rejection of the nature of the evidence” in applications was an ever-present error, continued, “Applications regarding detention are of a sensitive nature. The source of this sensitivity, in turn, is the existence of the pending trial. There is a need to refrain from wording that will influence the court’s final judgment.”
 
İçdemir, recalling the provision, “No organ, authority, office or individual may give orders or  instructions to courts or judges relating to the exercise of judicial power, or make recommendations or suggestions” in the section of the Constitution with the heading “independence of the courts,” stated that this also applied to the CC. İçdemir also stated that, should a ruling to the contrary emerge from the court following the CC ruling, the CC will have made comments reflecting bias in relation to the examination it will make following the ruling. İçdemir, noting that, despite this, the CC’s rulings were binding and the truncated ruling was also of a binding nature, stated that no legal purpose was served by awaiting the reasoned decision and Altan’s release should have been ordered.
 
Dismissal decision for Alpay, too
 
On the other hand, the application filed in objection to Istanbul Serious Crime Court No 13’s order for journalist Şahin Alpay’s detention to continue was also dismissed yesterday by the next superior court, Istanbul Serious Crime Court No 14. It was argued in the decision passed unanimously that, “A rights violation ruling passed by the Constitutional Court in respect of an individual application does not automatically lead to the result of release.” The bench, stating that, “A number of organisation members and administrators said to present no flight risk absconded from the country through legal and illegal means,” cited by way of example of this journalist Can Dündar and ex-police officer Hüseyin Korkmaz, who testified in the Zarrab trial in the USA. With it argued that these people were engaging in activity against the state abroad, it was claimed that for these reasons the order for detention to continue complied with procedure and the law.