Lawyers say no state organ, or the very court whose responsibility it is to implement the Constitutional Court’s decision, for that matter, may question the judgments of the top court

The lawyers representing imprisoned journalists Mehmet Altan and Şahin Alpay have issued a public statement over the weekend regarding the continued detention of their clients following the January 11 judgment by the Constitutional Court, which ruled that the journalists’ rights have been violated.

The Constitutional Court, in its review of the individual applications by Alpay and Altan, both of whom have now been in prison for more than a year, had held that both journalists’ “rights to personal liberty and security” enshrined in Article 19 of the Constitution, and their “rights to freedom of expression and freedom of press,” protected under Articles 26 and 27, have been violated. However, the Istanbul 13th and 26th High Criminal Courts, where Alpay and Altan are standing trial respectively, refused to implement the Constitutional Court’s judgment on grounds that the reasoned judgments had not been communicated, and the next day, the 13th High Criminal Court announced that it would not implement the ruling, alleging that the Constitutional Court had “usurped authority.”

Several government representatives have in the meantime criticized the Constitutional Court in public comments with regard to the developments.

Lawyers Ergin Cinmen, Figen Albuga Çalıkuşu, Ferat Çağıl and Melike Polat issued their statement on January 13, in which they made references to relevant Articles from the Turkish Constitution, pointing out that the Constitutional Court’s judgments were binding for everyone.

Also touching upon comments made by politicians in the aftermath of the top court’s decisions, the lawyers called on everyone to abide by the rule of law.

The lawyers also added that by insisting on not implementing the top court’s judgments, the courts of instance were violating the defendants’ “rights to personal liberty and security” and were unlawfully restricting their freedom as per Article 109 of the Turkish Penal Code.

The full statement can be read below:

PUBLIC STATEMENT

We, as the lawyers representing Şahin Alpay and Mehmet Altan, feel we are obliged to clarify some legal question marks that have arisen following the January 11, 2018, judgments rendered by the Constitutional Court of the Republic of Turkey. It is essential in this historical milestone that everyone living in this country, which is a constitutional state as indicated in its very Constitution, is aware of these facts.

CONSTITUTIONAL COURT JUDGMENTS ARE BINDING FOR EVERYONE AND EVERY INSTITUTION. NO ONE MAY GIVE INSTRUCTIONS TO COURTS AND JUDGES, OR MAY EXERT INFLUENCE UPON COURTS AND JUDGES. 

1. As per Article 138 of the Turkish Constitution, “Judges shall be independent in the discharge of their duties; they shall give judgment in accordance with the Constitution, law, and their personal conviction conforming with the law.”
2. Again, as per Article 138, “No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions.”
3. Article 138 also asserts that “No questions shall be asked, debates held, or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial.”
4. Again, according to Article 138, “Legislative and executive organs and the administration shall comply with court decisions; these organs and the administration shall neither alter them in any respect, nor delay their execution.”

In light of the above provisions, the statements and comments being made concerning the Court’s decisions are clearly in violation of this Article of the Constitution.

THE CONSTITUTIONAL COURT HAS NOT COMMITTED A USURPATION OF AUTHORITY; IT HAS NOT EXCEEDED THE LIMITS OF ITS AUTHORITY.

As per Article 148 of the Constitution, the Constitutional Court decides on individual applications. In light of the terms prescribed in the said Article, any individual may apply to the Constitutional Court on grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights, which are guaranteed by the Constitution, has been violated by public authority.

Individual application is a legal remedy of secondary nature in the event the alleged violation of rights are not remedied in courts of first instance. In this respect;

1. Whether judicial authorities have exceeded their judicial discretion in assessing “the existence of strong suspicion of having committed an offense,” “circumstances necessitating detention,” and “the proportionality of the detention measure” are subject to review by the Constitutional Court.
2. Although the interpretation of provisions regarding detention measure and their application in cases falls within the judicial discretion of courts of instance, in the event of interpretations that are clearly in violation of laws and the Constitution and clear arbitrariness in the assessment of evidence, court rulings that have led to violations of rights and liberties are subject to review as part of the individual application.
3. The Constitutional Court conducts this review by taking into consideration the circumstances regarding the present case, with particular emphasis on the process of detention and the grounds for the detention order.
4. This review does not constitute usurpation of authority or discretionary review.
5. All judgments by the Constitutional Court do involve such a review. For example, in the 59th paragraph of the Constitutional Court judgment 2013/7800, regarding the individual applications of 230 people, known by the public as the Balyoz (Sledgehammer) judgment, the review made by the Court is explained as follows:

“In terms of the individual applications, the quality of the justifications of the courts of instance may only be reviewed in cases where it creates an apparent arbitrariness or error of discretion or a justification including reasonable and convincing explanations is not shown, an ‘appropriate causal relation’ is not established between the alleged action and the judgment. Whether the decisions of the court of instance are explained with the justification with a measure and quality that will be sufficient to meet the requirement of justice or not falls under the scope of the review to be carried out by the Constitutional Court in individual applications lodged with the claim of the violation of the right to a fair trial.”

THE COURTS RESISTING CONSTITUTIONAL COURT JUDGMENT ARE NOT NIGHT COURTS

The judgments rendered by the Constitutional Court were notified to the Istanbul 26th High Criminal Court, where Mehmet Altan is on trial, and the 13th High Criminal Court, where Şahin Alpay is on trial, with a view to eliminating the violations determined by the High Court at around 17:00 hours via the National Judiciary Informatics System (UYAP). The courts that refused to implement the Constitutional Court’s judgment and violated the Constitution were not night courts as they have been claimed to be in statements by government representatives, but trial courts.

THE CONSTITUTIONAL COURT DOES NOT LACK KNOWLEDGE AS TO THE SPECIFICS OF THE CASES nor HAS IT ONLY REVIEWED THE CASES UP TO THE ISSUING OF THE INDICTMENT.

As stated in the reasoned judgment by the Constitutional Court, it has reviewed the entirety of both cases and the latest developments in the proceedings via UYAP through the application forms and their annexes.

JUDGMENTS RENDERED WITH REGARD TO INDIVIDUAL APPLICATIONS DO NOT HAVE TO BE PUBLISHED IN THE OFFICIAL GAZETTE, AS IS THE CASE FOR ANNULMENT DECISIONS.

The Constitutional Court has made both of the reasoned judgments available for the public on its official website the same day as it rendered the judgements, and has even announced on the social media network Twitter at 23:22 hours that the judgments have been made public.

COURTS OF FIRST INSTANCE MAY NOT QUESTION JUDGMENTS RENDERED BY THE CONSTITUTIONAL COURT.

As per Article 153 of the Constitution and Article 66/1 of the Law on the Establishment and Rules of Procedures of the Constitutional Court, Code No: 6216, “The decisions of the Constitutional Court are final. The decisions of the court are binding for the legislative, executive and judicial organs of the state, administrative offices, real and legal persons.”

Accordingly, no state organ, office or person, or the court of first instance whose responsibility it is to implement the judgment, may question the reasoned judgment; it is its responsibility to immediately execute the decision with a view to eliminate the consequences of the violation. Any other action otherwise is not possible as long as this law is in effect.

The provisions of the Constitution are clearly being violated; the courts of first instance are insisting on the continuation of detention, violating the “right to personal liberty and security,” enshrined in Article 19, and consistently committing the offense of “unlawfully restricting the freedom of a person” as per Article 109 of the Turkish Penal Code (TCK).

THE CONSTITUTIONAL COURT CANNOT BE DEEMED REPUTABLE WHEN IT REJECTS AN APPLICATION REGARDING THE ANNULMENT OF STATUTORY DECREES ISSUED UNDER STATE OF EMERGENCY AND BECOME A SCAPEGOAT WHEN IT RENDERS A RULING AIMED AT PROTECTING FUNDAMENTAL RIGHTS AND LIBERTIES.

WE CALL ON ALL MEMBERS OF THE JUDICIARY WHO HAVE A CONSCIENCE AND EVERYONE WHO BELIEVES IN THE PRINCIPLE OF RULE OF LAW AND WHO WANTS TO LIVE IN HER/HIS COUNTRY UNDER THE ASSURANCE OF LAW, TO STAND UP FOR LAW AND THE TRUTH.

13.01.2018

REPRESENTATIVES FOR MEHMET ALTAN AND ŞAHİN ALPAY

Att. ERGİN CİNMEN

Att. FİGEN ALBUGA ÇALIKUŞU

Att. FERAT ÇAĞIL

Att. MELİKE POLAT