What was the Constitutional Court’s decision on journalists?
For the first time in our judicial history, a local court decided not to execute the decision of the Constitutional Court.
There could be conflict of jurisdiction and mandate between courts. In such cases it is either the Court of Cassation or the Constitutional Court, depending on the situation that decides on which is authorized.
But if the local court says to the Constitutional Court: “You are exceeding your authority,” there is no upper court to decide on this conflict, because in the modern judicial system the decision of the Constitutional Court is final and binding. No other body has been thought of, as one cannot think otherwise.
The decision of the Constitutional Court for the journalists Şahin Alpay and Mehmet Altan was obviously going to set precedent for other journalists. The local court did not comply with the decision of the Constitutional Court, saying that the court “put itself in our place and decided that the evidence in the file are not enough for arrest.”
It is the mandate of the Constitutional Court to monitor whether evidence is not enough to justify the arrest.
The European Court of Human Rights (ECHR), since the case Kudla vs. Poland in 1996, has been monitoring whether detentions comply with the European Convention on Human Rights.
Can we say that the ECHR is “foreign?” No. Because according to the constitutional amendment endorsed by both the ruling Justice and Development Party (AKP) and the main opposition Republican People’s Party (CHP) in 2004, international law is considered to be above national law. And secondly, if there is a decision in conflict with the ECHR decision, Turkish courts decide to renew the trial upon the ECHR’s decision of violation. The ECHR’s decisions are final and binding.
The Turkish Constitutional Court possesses all the authorities the ECHR has, since the 2010 constitutional referendum, and just like the ECHR, it monitors human rights. This is not my claim; this is the stipulation of the constitution.
The ECHR and the Constitutional Court monitors compliance to the European Convention on Human Rights and have the same authority. In addition, the Constitutional Court’s decision needs to comply with the rulings of the ECHR because it is an international court.
To be predictable
The ECHR will make a decision in February on the applications of the journalists. One of the main characteristics of a state with the rule of law is the judicial predictability of its decisions and behaviors. Looking to the rulings of the ECHR it is possible to foresee that the decision will be in the form of “violation of human rights.” As I have been looking at issues in light of the ECHR rulings I have been arguing many times that the journalists will be acquitted by the ECHR.
Not only journalists but this will also be valid for those who are in a similar situation as far as evidence is concerned. The stipulation of the law based on the universal decisions of the ECHR and national decisions of our Constitutional Court is this: If there is no concrete evidence in the file other than the writings, then there is no crime to be attributed in the file!
Some claim the Constitutional Court took a preemptive decision on the acquittal and that it has exceeded its authority. No. This means that in the files that lack evidence for a sentence and therefore one can foresee acquittal, arrests are a violation of human rights. That was the decision of the Constitutional Court.