The absence of the rule of law

The Constitutional Court (CC) passed ruling on 11 January 2018 on Şahin Alpay and Mehmet Altan’s individual applications.

It concluded that strong indications of a crime having been committed had not been adduced for either journalist and, thus, that the right of “freedom and security of person” regulated in Article 19 of the Constitution had been violated. The CC at the same time ruled that both journalists’ detention violated their freedom of expression and the press. The CC forwarded its ruling to the first-instance courts for “the results of the violation to be eliminated,” i.e. for the journalists to be released.
 
There was then only one course of action available to Serious Crime Courts No 13 and 26: release the journalists. This is such a clear and indisputable conclusion that it did not occur to anybody that this could be otherwise, even in a Turkey in which the rule of law had been suspended. However, the thing that occurred to nobody occurred to the judges (apart from those who submitted dissenting opinions) of Serious Crime Courts No 13 and 26 and the political rulership. The first-instance courts declined to comply with the ruling. As a consequence, Turkey’s rule of law crisis has deepened and taken on a new dimension. The problem has two aspects.
 
1. The bindingness of the CC’s individual application rulings
 
Article 153 of the Constitution states that CC rulings are final and are binding on the legislative, executive, and judicial organs. Article 153 is an article that was drafted prior to the acceptance of the right of individual application to the CC. When the Constitution was amended in 2010 and the right of individual application to the CC was accepted, individual applications were not excluded from the scope of Article 153. Hence, the CC’s individual application rulings are final and binding. There is no legal void. To dispute this would be to render the right of individual application ineffective.
 
If the CC rules that an individual right has been violated, the manner in which the ruling is to be implemented is laid down in the Law on the Establishment and Rules of Procedure of the CC No 6216 and the CC’s standing orders. According to Article 50 of Law number 6216, when the CC passes a violation ruling, it stipulates what must be done to eliminate the violation. While, according to Article 19 of the standing orders, the manner in which the violation and its results are to be eliminated is stipulated in the CC ruling.
 
This is precisely what the CC did in its Alpay and Altan ruling. It ruled that there had been a violation of the right of freedom and security of person and the freedoms of expression and the press and forwarded the rulings to the first-instance courts for these violations to be ended, i.e. for Alpay and Altan to be released. As CC rulings are final and binding, the first-instance courts are not authorised to defy these rulings. The Constitution and statute has not vested any such power in first-instance courts. The first-instance courts are blatantly breaching the Constitution in not complying with the CC rulings.
 
A ruling dated 12.01.2016 of Civil Chamber No 2 of the Court of Cassation bears out this opinion. According to the Court of Cassation ruling, “Violation rulings that the CC passes as the result of individual applications ... are valid and binding with respect to the administrative act or decision at issue in the application. ... Faced with the CC ruling, the courts of instance subsequently have no possibility to rule otherwise with respect to the particular event and person at issue in the application.”
 
2. The argument that the CC has usurped jurisdiction
 
Serious Crime Court No 13, which defied the CC ruling, included in its reasoning while dismissing the release application that the CC “may not put itself in the place of local courts and make an assessment of the evidence,” and “may not declare crime courts’ rulings to convict or acquit to be wrong,” the CC had usurped its jurisdiction in overstepping the boundaries imposed on it and, thus, the rulings it had passed were not final and binding. Deputy Prime-Minister Bekir Bozdağ also said, “The CC has no authority to pass acquittal rulings.”
 
It is first necessary to note that detention as a judicial control measure has nothing to do with the merits of a case. Just as a defendant on release pending trial may be convicted, a defendant in pretrial detention may be acquitted.
 
The purpose of the provisions on detention in the Constitution, statute and the European Convention on Human Rights (ECHR) is to ensure that nobody is deprived of their liberty in an arbitrary manner. To guarantee by virtue of this that the “freedom of person”, having of necessity great importance for a democratic society and the judicial organs serving in such a society, can only be removed in accordance with the law.
 
Article 19 of the Constitution provides that a judge may only pass a detention order if there exist “strong indications” as to a person’s guilt. The ECHR sets the criterion of “reasonable suspicion” for detention. Article 100 of the Code of Criminal Procedure speaks of “concrete evidence pointing to the existence of strong suspicion of guilt.” The criterion to which the European Court of Human Rights (ECtHR) and the CC make recourse in examining for the existence of “strong suspicion of guilt” is whether there are concrete pieces of evidence or facts that would convince a third person that a crime had been committed. In seeking the answer to this question, the CC must undoubtedly examine the evidence and facts on which the detaining court relied. It must determine if this evidence and these facts are such that they would convince a third person that a crime had been committed. The opinion that the CC may not assess the evidence might be correct when applications over the merits of the case are involved. However, conceding to such an opinion with regard to detention would lead to the result that the CC would be unable to rule contrary to first-instance courts. In point of fact, it is not the first-instance courts that determine the boundaries of the CC’s jurisdiction, but the Constitution.
 
In view of the CC’s ruling, no legal basis remains for the journalists’ continued detention. A de facto situation is in existence. If people are deprived of their liberty in an unlawful, arbitrary manner in a country, the rule of law cannot be said to exist in that country.
 
3. What will happen next?
 
From here on, the ECtHR will determine the journalists’ applications which it has prioritised. The decision will most probably be a similar decision to the CC’s decision. However, the continuation of the journalists’ detention will constitute a fresh rights violation.
 
What will the serious crime courts do if a similar ruling to the CC rulings emanates from the ECtHR? Will they say that they do not recognise the ECtHR’s ruling either? The difference between ECtHR rulings and CC rulings is that it is the state’s duty to implement ECtHR rulings. The state must take the necessary measures for the rulings to be implemented.
 
It is clear that the releasing of the journalists in line with a potential ECtHR ruling will not impact positively on the esteem of the serious crime courts and the Turkish judiciary in general.
 
In addition to this, the rendering ineffective of the remedy of individual application to the CC due to the non-compliance by first-instance courts with the rulings will raise question marks at the ECtHR as to whether the CC is an effective domestic remedy.
 
Discussion of this matter is not an abstract academic discussion. People are unlawfully in prison. Moreover, just how far removed Turkey is from the rule of law has been laid bare. Under such circumstances, state officials cannot say, “This is a dispute between judicial organs. We are not getting involved.” It is the state’s responsibility to ensure compliance with the rule of law.
 
RIZA TÜRMEN
Former ECtHR judge