BATIKAN ERKOÇ
The year 2023 has proven to be extremely challenging for Turkey as it commemorates its 100th anniversary. This period has been defined by a devastating earthquake, setbacks for democratic movements, economic instability, and a constitutional crisis that threatens to undermine Turkey's longstanding legal traditions. The repercussions of these challenges are significant, extending beyond Turkey's borders and potentially affecting Europe as a whole.
What happened?
The year began with a massive earthquake that impacted 10 provinces, tragically resulting in the loss of over fifty thousand lives with more than one hundred thousand injured. The damage from this disaster is estimated to exceed 150 billion USD. The government's response to the earthquake, particularly its decision to restrict access to social media, was widely criticized. This move eliminated a crucial communication tool for survivors trapped under the rubble, who had been using social media to share their locations.
In the wake of the earthquake and amidst deteriorating economic conditions, Turkey's opposition parties rallied behind a single candidate in a desperate bid for change. However, this united effort ultimately ended in disappointment on the night of May 28, 2023, dashing hopes for a democratic reestablishment.
The focus during the summer shifted to the economy. Mehmet Şimşek was tasked with steering the economy back on course. The government eventually shifted back to more traditional economic policies, a move away from the President's previous approach of high inflation and low interest rates. While the government focused on economic recovery, the opposition was left to regroup and reassess its strategy.
Gezi trials and constitutional crisis
The recent parliamentary term in Turkey has been marked by significant challenges for human rights defenders. Prominently, the Court of Cassation upheld the sentences in the Gezi trials. As a result, Osman Kavala, a key figure in the trials, received an aggravated life sentence and is now limited to only two visits per month from his wife and lawyers.
Can Atalay, a newly elected Member of Parliament from the Turkey Labor Party, also had his sentence upheld in the Gezi case. This decision raised legal questions, as typically, legal proceedings against elected officials are suspended. Atalay's continued detention prompted him to appeal to the Constitutional Court, citing violations of his rights to liberty and election.
These events have sparked a deep crisis within Turkey's judicial system. The Constitutional Court initially ordered the immediate release of Can Atalay, directing the Court of First Instance to implement this decision. However, in a surprising turn, the Court of First Instance referred the case back to the Court of Cassation. The latter then issued a controversial judgment, refusing to comply with the Constitutional Court's decision. The Court of Cassation accused the Constitutional Court of overstepping its authority and even filed a criminal complaint against its members. This situation has intensified the debate around the independence and role of the judiciary in Turkey, highlighting a growing tension between different branches of the judicial system.
These events in Turkey have sparked intense debate about the role and authority of the Constitutional Court within the country's legal system. This debate was heightened by direct attacks from some members of the governing coalition on the President of the Court, Zühtü Arslan. These attacks, including derogatory remarks and questions about President Arslan’s allegiances by the National Movement Party’s chairman, have led to calls for a constitutional amendment to limit the Court's jurisdiction.
In a notable development, the Constitutional Court issued its second order on the appeal of Can Atalay's lawyers. The Court took the opportunity to thoroughly explain why disregarding or failing to implement its decisions undermines the rule of law and the legitimacy of the state. The Court once again ordered the release of Mr. Atalay, referring the case back to the Court of First Instance.
Contrary to expectations following the Constitutional Court's second ruling, the Court of First Instance deferred the case to the Court of Cassation, seemingly ignoring the Constitutional Court's directive that the Court of First Instance, not the Court of Cassation, should be the final arbiter. The response of the Court of Cassation is now awaited.
These developments warrant a broader reflection on the state of judicial independence in Turkey. The failure of lower courts to comply with the highest court's rulings poses a significant challenge to the foundation and operation of the state's legal system. This situation could set a dangerous precedent even though the practice of non-compliance with the Constitutional Court’s decisions was undergoing for some time, this might potentially be encouraging authoritarian practices and further distancing Turkey from Western democratic standards.
In the wake of these events, Europe's response to Turkey, particularly after May 28, appears to be one of growing weariness. The ongoing issues in Turkey no longer elicit the same level of engagement or concern from the European Union and the Council of Europe. These bodies are now exploring cooperation in areas beyond the field of human rights. However, it's crucial to caution against the potential crisis that could ensue if the authority of the Constitutional Court is further undermined. Such a scenario could lead to the erosion of Turkey's administrative and judicial structures, setting a troubling precedent for the future of human rights and international relations.
The Constitutional Court is the last stronghold against full autocracy and it is about to fall down
In Turkey, the Constitutional Court holds the highest authority as mandated by the Constitution. All lower courts are bound to adhere to its decisions. Following a 2010 constitutional amendment proposed by the AKP, the Constitutional Court was charged with addressing individual claims of human rights violations. This reform aimed to reduce the burden on the European Court of Human Rights in Strasbourg by handling cases domestically first. The Strasbourg Court acknowledges this process, requiring that each case be presented to the Turkish Constitutional Court before it can be taken up in Strasbourg.
Currently, the efficacy of the Turkish Constitutional Court as a domestic remedy is under scrutiny. The judiciary's failure to comply with the Constitutional Court's rulings threatens to undermine its recognized role. This non-compliance risks overwhelming the Strasbourg Court with cases from Turkey, potentially overburdening the system. This situation presents a critical challenge in Turkey's relationship with the Council of Europe.
Another significant challenge for the Constitutional Court lies in upcoming changes in its composition. Three key judges known for their liberal rulings are set to retire: Muammer Topal on January 29, followed by the court's president Zühtü Arslan on April 17, and Emin Kuz on May 12. Appointed by former President Abdullah Gül, their retirement paves the way for new appointments by the current president, which could lead to a government-leaning majority in the court. These changes will be pivotal in shaping the future direction and decisions of Turkey's highest court.
The upcoming retirement of the President of Turkey's Constitutional Court signifies a crucial transition. The selection of the new president, likely to be hand-picked by the President, will be a significant event. The President of the Court holds considerable influence, particularly in deciding which cases the court will hear. A notable example is the pending HDP dissolution case, which has been awaiting docketing for over a year. The closure of HDP could lead to a ban on many Kurdish opposition politicians from holding office. The new court president's decisions, including whether to expedite the HDP case, will be closely watched.
Kavala Case: a test for the European human rights framework
The European Convention of Human Rights, renowned as a leading global human rights mechanism, faces a significant test with the Kavala v. Turkey case. Osman Kavala, a recipient of the Vaclav Havel Human Rights Prize, saw his verdict finalized by the Court of Cassation, leading to only a tepid response from the Committee of Ministers in the form of a resolution expressing concern.
The Kavala judgment remains with the Committee of Ministers, and the initiation of an infringement process is uncertain. Despite efforts by Turkish civil society, the likelihood of this process commencing remains low. The only precedent for such a process is Mamadov v. Azerbaijan, where it proved effective in securing Mammadov's release. The Kavala case presents a similar challenge: should the infringement process be initiated and fail, it could erode trust in the system and the obligation of member states to adhere to the Strasbourg court's rulings. This situation poses a challenge not just for Turkey, but for the European human rights system as a whole, highlighting the need for robust mechanisms to uphold human rights standards across the continent.
Conclusion
The ongoing judicial crisis in Turkey poses three major risks that could significantly impact Europe. Firstly, if Turkey's Constitutional Court fails to manage its caseload effectively, this could lead to a surge in applications to the Strasbourg Court. Such an influx could overwhelm the court, testing its capacity to handle cases efficiently. Secondly, the situation surrounding the Kavala case has already begun to erode trust in the judicial system. The case's mishandling and the perceived failure of the system to deliver justice have raised concerns about the reliability and effectiveness of legal mechanisms in place. Lastly, there is a growing concern that Turkey might follow Russia's precedent and withdraw from the convention system entirely. Such a move would be a significant setback for the system, potentially representing the most substantial challenge it has faced since its inception.
In light of these concerns, it's crucial to move beyond the current state of fatigue and focus on the developments in Turkey. Upholding democratic values requires attention and action in situations where these values are under threat. The situation in Turkey is a test of commitment to these principles, and it demands a concerted and focused response from all who champion democratic ideals.
