The Turkish Constitutional Court — once seen as a bulwark of freedoms and human rights — is now criticized for its inability to deliver justice to Turkish citizens.
The top court has issued crucial freedom-serving decisions in the past, such as the decision to lift the ban on Twitter and Facebook, and another that challenged the government's anti-democratic actions. Since 2016, however, it has been at the receiving end of criticisms over its hesitation to deliberate certain cases that might provoke the ire of the government.
The first troublesome sign was the Constitutional Court’s decision on journalist Can Dundar in February 2016. Can Dundar, the then-editor-in-chief of Cumhuriyet daily, published reports on the Turkish intelligence service's transfers of weapons and ammunition to Syria. These revelations angered President Recep Tayyip Erdogan, who deemed the information a state secret. He vowed that Dundar would "pay a heavy price." Dundar was subsequently arrested, and courts dismissed all his objections. He was released from prison following a court decision ordering as much.
Erdogan publicly criticized the Constitutional Court for its decision on Dundar. "It has been wrong that the Constitutional Court has put itself in the place of the court of the first instance,” he said. These remarks followed a slander campaign against the court and its head, Zuhtu Arslan, by pro-government media outlets. Media portrayed Arslan as having links to FETO, or the Fethullah Terrorist Organization.
Afterward, the Constitutional Court slowed down its proceedings, seemingly reluctant to deliver judgments in cases where the court and government might collide. In this spirit, a photo of Arslan bowing before Erdogan at a state reception attracted widespread criticism, becoming a symbol of the Constitutional Court's submission to power.
After being rebuked by Erdogan over the Dundar decision, the Constitutional Court has not delivered any significant judgments. Two exceptions were the cases of journalists Mehmet Altan and Sahin Alpay, concerning their arrest over alleged links to Gulenists. The highest court once again ordered the release of the two journalists. Yet the order was ignored. Until that day, no Turkish court had ever rejected the orders of the top court.
Immediately after the ruling, then-Deputy Prime Minister Bekir Bozdag said that the court had "crossed its legal boundaries and violated the constitutional law.” The European Court of Human Rights (ECHR) delivered a judgment in March 2018, urging Turkey to take the necessary steps to end the imprisonment of Altan and Alpay.
Some observers believe that the Constitutional Court had issued its initial judgment as a way to avoid involving the ECHR. According to this theory, the Constitutional Court knew that Altan and Alpay had already petitioned the ECHR, stating that the highest court would not remedy the situation. If the Constitutional Court had not issued a judgment, the ECHR would have issued a much harsher decision on the matter.
According to a 2019 Human Rights Watch report, Turkey is currently imprisoning 175 journalists. Yet, after its ruling on Altan and Alpay, the Constitutional Court has not ruled on any other cases involving journalists. It has also refused to address cases brought by Kurdish politicians in prison. One such case was brought by Selahattin Demirtas, former chair of the pro-Kurdish Peoples' Democratic Party (HDP). The court rejected his application, but the ECHR ruled that he should be released — a decision that has not been implemented.
Could the ECHR determine that the Constitutional Court is no longer effective, and that therefore it is not necessary to petition that court before going to the ECHR? The prospective workload may be why the ECHR is pretending that the top court is still alive and functioning. If it were to declare openly that the Constitutional Court is ineffective, it could be flooded with thousands of cases from Turkey.
However, one particular case has the potential to strike a deadly blow to the Constitutional Court's reputation: that of Alparslan Altan, a former judge and vice chair of the Constitutional Court. Altan was arrested in July 2016, having been accused of belonging to the Gulenist network.
What makes this case different is the identity of its applicant. As a judge on the Constitutional Court, Altan had legal immunity from arrest and prosecution. However, the magistrate judge made a complicated legal judgment to bypass that immunity. Under normal circumstances, a judge can only be arrested by an ordinary court’s order if they are caught "in flagrante delicto," meaning if he or she is caught red-handed committing a crime or immediately afterward. The magistrate judge said that membership in an armed terrorist organization — in this case, the Gulenist network — was a continuing offense and therefore was considered in flagrante delicto.
The Constitutional Court accepted this interpretation, declaring Altan's application "manifestly ill" founded. Even before Altan's application, the top court had already dismissed him, without giving him a chance to defend himself. The highest court said that Altan was no longer fit to practice his profession, and that "the common opinion emerging over time" suggested that Altan had links to the Gulenists.
The ECHR delivered a landmark decision on the case April 16, strongly disagreeing with the Constitutional Court on all points. In the ECHR's view, "flagrante delicto" is a concrete thing, and the Constitutional Court's interpretation "could clearly not be regarded as an appropriate response." The ECHR added that such an interpretation was "manifestly unreasonable,” and that there was no evidence to justify Altan's arrest.
The question remains: How can ordinary citizens of Turkey accept justice from a court that has denied fundamental rights to one of its former members? How can such a court adequately address human rights violations?