VEYSEL OK
Attorney at Law / Co-Director and Chief Legal Officer - MLSA
The tension between the Constitutional Court (AYM) and the high judicial bodies in Turkey has been known for years. It is common knowledge that the Court of Cassation (Yargıtay) is uncomfortable with the Constitutional Court's rulings on rights violations. However, for the first time, this discomfort has been publicized. The 3rd Criminal Chamber of the Court of Cassation declared that it would not comply with the Constitutional Court's decision. It then filed a criminal complaint against the members of the Constitutional Court. With the President standing behind the Court of Cassation, the ruling party declared its support for the Court of Cassation against the Constitutional Court.
How did we get here?
We have reached the constitutional crisis that we are experiencing as a result of a series of unlawful practices. Can Atalay, a detainee in the Gezi trial, was elected Hatay deputy from Turkish Labor Party on the evening of May 14. Atalay's lawyers asked the Court of Cassation to release Atalay as soon as he received his parliamentary mandate. After some discussion, the 3rd Criminal Chamber of the Court of Cassation rejected the release request. It ruled that Atalay's crime was not within the scope of immunity and therefore he would not be released. Atalay applied to the Constitutional Court on the grounds that his detention violated his right to vote and be elected.
While the application was pending at the Constitutional Court, on September 28, the Court of Cassation delivered its verdict on the Gezi trial. It upheld the conviction against Atalay. Atalay has been transferred from detainee status to convict status. Atalay's lawyers stated that the decision was issued earlier than expected in order to leave the Constitutional Court application moot. One month after the Court of Cassation's ruling, the Constitutional Court issued its decision on October 25. It ruled that Can Atalay's right to personal liberty and security and his right to vote and be elected were violated. The ruling emphasized that Atalay should be released immediately.
The legal justification for the decision is briefly as follows: parliamentary immunity does not apply to offenses covered by Article 14 of the Constitution, provided that the investigation has been initiated before the election. However, there is no law or constitutional provision on which crimes are covered by this article.
Article 14 of the Constitution states: "None of the rights and freedoms enshrined in the Constitution may be exercised in the form of activities aimed at destroying the indivisible integrity of the State with its territory and nation and abolishing the democratic and secular Republic based on human rights."
In its established case law, the Court of Cassation states that terrorism offenses fall within the scope of Article 14. However, the Constitutional Court, emphasizing the principle of legal certainty, maintains its jurisprudence that the judiciary cannot decide which crimes fall within this scope and that these crimes must be determined by law. On this ground, the Constitutional Court ruled that Can Atalay's right to vote and be elected was violated. It sent the file to Istanbul 13th High Criminal Court, the court of first instance, for Atalay's immediate release.
The Istanbul 13th High Criminal Court (Assize) dragged its feet for days to refuse to release the detainees following the Constitutional Court's ruling. While a release decision was expected, the unexpected happened. On November 1, the file was sent to the 3rd Criminal Chamber of the Court of Cassation with the signature of the President of the Court. On the evening of November 8, the 3rd Criminal Chamber of the Court of Cassation refused to comply with the Constitutional Court's decision. Not content with that, it filed a criminal complaint against the members of the Constitutional Court. He started a constitutional crisis among the high judiciary.
In this crisis between the courts, Erdoğan declared his support for the Court of Cassation and the ranks became clear. Bar associations, opposition parties and civil society took to the streets in support of the Constitutional Court.
No need for a constitutional amendment!
In Turkey, we have been discussing the "new constitution" since 2011. In every election period, the government came with a proposal for a "new constitution". Compromise commissions were established. Draft texts were prepared. Despite all these efforts, the dream of a new constitution did not materialize even when the AKP was at its strongest in parliament. Given the number of parliamentary deputies of the parties, it seems difficult for the debate to lead to a real constitutional amendment. The "new constitution" debate has been going on for twelve years. However, Erdoğan does not need a constitutional amendment to achieve his goals.
Article 148 of the Constitution regulates the individual application procedure. The fifth paragraph of the Article reads as follows: "The procedures and principles regarding the individual application shall be regulated by law." The key is in this statement. The Law on the Establishment and Trial Procedures of the Constitutional Court was adopted in 2011. The law regulates the principles and procedures regarding individual application. With amendments to this law, the government can easily achieve its goal and paralyze the Constitutional Court.
The first paragraph of Article 50 of The Law on the Establishment and Trial Procedures of the Constitutional Court states "... in the event of a judgment of violation, the Constitutional Court shall decide on the actions to be taken to eliminate the violation and its consequences." This is where the real discomfort stems from. In paragraph 117 of the Can Atalay judgment, the Constitutional Court ordered "i. Commencement of retrial proceedings, ii. Suspending the execution of the judgment of conviction and ensuring his release from the penal institution, iii. Terminating the convicted status of the applicant, iv. Ordering a stay in the retrial" according to this article. The Court of Cassation, on the other hand, claims that by granting such a power to the Constitutional Court, the Constitutional Court has been turned into a super court.
The amendment may be expected to limit the decisions of the Constitutional Court. It is likely that the decisions that can be made will be narrowed down to retrial, declaration of violation of rights and compensation. This will make it impossible for the Constitutional Court to order the "release" of Atalay. The Constitutional Court's power to remediate rights violations will not go beyond making findings and sending the file to the Court of Cassation. This means that the individual application will be ineffective in practice.
The Nationalist Movement Party (MHP) has been vocal against the Constitutional Court for a long time. It says it should either be abolished or its structure should be changed. Therefore, such a legal amendment can easily pass the Parliament. "(Court of Cassation)...is always ready to provide the necessary support in constitutional and legal amendments," the Court of Cassation said in its statement. Erdoğan also mentioned in his speech that a solution should be sought in the constitution and laws. These statements indicate that the government will also take steps to solve the problem through basic legal regulations.
President Fidan, seven against eight members in the general assembly
In recent days, there has been talk of the resignation of the members of the Constitutional Court who were the subject of the criminal complaint. Even if there are no resignations, President Zühtü Arslan, who voted in favor of the violation decision, will retire on April 17 next year. The term of Emin Kuz, who also voted in favor of the violation, will expire on May 12. Both are direct appointments by Erdoğan.
With the retirement of President Arslan, the members of the court will re-elect a new president. Former Istanbul Chief Public Prosecutor İrfan Fidan, who Erdoğan promoted to the Constitutional Court at the speed of light, is the most likely candidate to win. With the members to be appointed to replace Arslan and Kuz, the number of "opposition" members of the court will drop to eight. The opposing bloc will gain two more members, bringing the total to seven.
In a scenario in which İrfan Fidan becomes the President of the Constitutional Court and its membership is divided down the middle, the debates on the Court will come to an end. The Constitutional Court will quietly disappear from the agenda and Turkey's legal tradition.
Individual application is going nowhere but more violation decisions on the way
The individual application was introduced in 2011 to reduce and prevent applications to the European Court of Human Rights. The European Court of Human Rights recognized the individual application as an effective remedy, saying "don't come to me without going to the Constitutional Court". It has been at the center of legal debates ever since. However, no matter how heated the debates become, a scenario in which the individual application disappears is not realistic. No such intention has yet become public.
Individual application will undoubtedly continue to exist. The Constitutional Court will continue to rule on violations in non-political cases in the new period. However, the individual application will become by-passable in some cases.
Already in some applications, the European Court of Human Rights has agreed to hear cases pending before the Constitutional Court. In other words, it said that even if the Constitutional Court has not yet ruled, I will look at the file. We will undoubtedly see more of this in the coming period. The workload of the European Court of Human Rights will increase even more. The number of violation of rights decisions from the ECHR will continue to increase. Relations with the Council of Europe, already strained by Kavala, will become even more strained.
New constitution debates
Currently, the People's Alliance (Cumhur) has 324 MPs compared to 211 MPs for the National Alliance (Millet) and 65 MPs for the Labor and Freedom Alliance. In order for the constitutional amendment to be passed directly, 400 MPs are needed, and 360 MPs are needed for it to go to referendum. In this table, the People's Alliance needs 36 MPs. If DEVA (15 MPs), Gelecek and Saadet (20 MPs) support it collectively or if the IYI Party (43 MPs) supports it, it is possible to reach 360 MPs. To reach 400 MPs, the support of all parties except CHP and the TİP and HEDEP is required. It is difficult to predict how parties other than the CHP, HEDEP and TİP will respond to a possible attempt to amend the Constitution. However, everyone should remind the political parties in Parliament of the following: A government that does not abide by the constitution cannot amend the constitution! If there is support for constitutional change, it is clear that this change will not be for the necessity of a democratic state of law.
