Turkey’s top court should be empowered, not weakened       

Turkey’s top court should be empowered, not weakened       

A recent proposal by Nationalist Movement Party (MHP) leader Devlet Bahçeli to restructure the Constitutional Court in line with the executive presidential system so as to curb its independence has sparked a new debate in the country.

Opposition parties have slammed Bahçeli and President and Justice and Development Party (AKP) Chairman Recep Tayyip Erdoğan, who supported his main ally’s proposal following a quarrel between Interior Minister Süleyman Soylu and Constitutional Court President Zühtü Arslan.

Soylu had lashed out Arslan for annulling a law that prohibits mass demonstrations on interstate roads and implied that the top court’s president had links with FETÖ in the past.

As a matter of fact, the top court was already under fire for reversing some local courts’ rulings on the symbolically important cases of prominent dissidents.

Justice Minister Abdulhamit Gül broke his long silence over these arguments at a press conference on Oct. 8, unsurprisingly supporting Erdoğan and Bahçeli’s stance on the matter. He also stressed that parliament should be the one to make amendments to the Constitutional Court. (Incidentally, a constitutional amendment is needed to restructure the Constitutional Court, and the AKP and MHP have no parliamentary majority at present to push it through.)

Still, Gül used the opportunity to lay out criticisms about judicial practices in general. “Justice should take the people’s needs and expectations into account. The justice which gets its authority from the people cannot turn its back on the expectations of the people. It has no luxury to say ‘sorry’ because the person that you say ‘sorry’ to remained in prison for months or years,” Gül told reporters.

It was interesting to hear this from the minister, as Turkish justice has long been criticized for long pre-trial detentions and a lack of due process. If Gül is sincerely unhappy with all these unfair judicial practices, he should lend all his support to the Constitutional Court, whose job is to address these problems through the individual application mechanism.

Unfortunately, the problems of Turkey’s justice system are colossal. The EU Commission’s 2020 Country Report on Turkey, for instance, notes backsliding in respect for democratic standards, the rule of law and fundamental freedoms, to name just a few of the problems.

On the top court’s role, it recalled the Constitutional Court made several judgments in individual applications regarding freedom of expression and ruled in favor of journalists who were detained pending trial in the absence of sufficient evidence.

It added: “The non-compliance with Constitutional Court judgments by lower courts, including in relation to freedom of expression, is of concern. As of June 2020, only 602 out of 822 individuals known as ‘Peace Academics’ were acquitted at trial, in spite of a Constitutional Court decision of July 2019. Despite their acquittal, the number of academics who were reinstated and received compensation was negligible.”

The country report also detailed how a local court acquitted philanthropist Osman Kavala and other defendants, ordering his release only to rearrest him, despite the lack of any credible grounds, a few hours later in relation to another investigation connected to the 2016 coup attempt.

The cases against former Peoples’ Democratic Party (HDP) Co-Chair Selahattin Demirtaş and many others were also cited in the report as examples of questions “regarding the adherence of Turkey’s judiciary to international and European standards.”

The controversy about the rulings by the Turkish court also reflects the cases against Turkey at the European Court of Human Rights, as stated by the report. It notes that the ECHR found violations of the European Convention of Human Rights in 97 (of 113) cases relating mainly to freedom of expression (35), the right to liberty and security (16), protection of property (14), the right to a fair trial (13), inhuman or degrading treatment (12) and respect for private and family life and right to life (5). During the reporting period, 6,717 new applications were registered by the ECHR. In January, the total number of Turkish applications pending before the court was 7,107. There are currently 677 cases against Turkey in the enhanced monitoring procedure.

These are just a few examples stemming from the absence of judicial impartiality and independence. In today’s judicial sphere, the Constitutional Court stands as the last stop for Turkey’s people to use their right to legal remedies.
Contrary to what Bahçeli thinks, the Justice Ministry and the government would do better to seek ways to empower it.

Serkan Demirtaş,