Expression Interrupted

Journalists and academics bear the brunt of the massive crackdown on freedom of expression in Turkey. Scores of them are currently subject to criminal investigations or behind bars. This website is dedicated to tracking the legal process against them.

ANALYSIS | The impasse of the Constitutional Court: The cases of Demirtaş, Kavala and Altan

ANALYSIS | The impasse of the Constitutional Court: The cases of Demirtaş, Kavala and Altan

Contradictory judgments by the Constitutional Court in individual applications regarding violations of freedom of expression and the right to engage in political activities raise doubts concerning the top court’s status an effective domestic remedy

 

ALİCAN ULUDAĞ

 

The Constitutional Court, which is tasked with protecting the fundamental rights and freedoms of citizens against the state power and controlling whether the government acts in accordance with the Constitution, has been on the agenda recently due to the judgments it has (and has not) rendered, its newly appointed members and statements made by politicians concerning the court's decisions.

 

Although the Constitutional Court has been trying to maintain its position as a judiciary power balancing the power of Erdoğan's AKP government, the contradictions in certain judgments the court rendered in some high-profile cases -- namely, the applications of jailed civil society leader Osman Kavala, novelist and journalist Ahmet Altan and Kurdish politician Selahattin Demirtaş -- cast doubt as to whether Turkey's top court will continue to be seen as an effective domestic remedy by the European Court of Human Rights.

 

Its previous member structure was effective in the court’s relatively independent decisions compared to those rendered by other judicial bodies. However, it can be said that the balance in the structure of the Constitutional Court in which the members, who can give decisions opposing the government were in the majority, turned in favor of the government after the election of former Istanbul Chief Public Prosecutor İrfan Fidan as a member in January. Seven of the 15 members of the Constitutional Court have now been elected by President Recep Tayyip Erdoğan. Whether the high court will enter the orbit of the government from now on will be seen in its upcoming judgments in cases where the government is a party. It wouldn't be surprising to see critical judgments in favor of the government rendered through majority votes of 8 to 7 in the near future.

 

The biggest risk that lays ahead for the Constitutional Court is not being accepted as an effective domestic remedy by the European Court of Human Rights (ECtHR) anymore. The ECtHR has the authority to accept or not accept the Constitutional Court as an effective domestic remedy. Therefore, the court's upcoming judgments will determine its future.

 

Its recent judgments in applications claiming violations of freedom of expression and the right to engage in political activities have demonstrated that dark clouds are circling above the Constitutional Court. Establishing that there had been violations of rights in 14,273 individual applications so far, the Constitutional Court ruled that there had been violations of rights in 605 applications regarding the freedom of expression, and only in 8 applications regarding the right to elect, be elected, and engage in political activities.

 

Especially considering that dozens of journalists, politicians, and mayors have been imprisoned since the 2016 declaration of a state of emergency, it would not be wrong to comment that the current violation decisions remain quite low in number.

 

ECtHR may render more judgments against Turkey 

 

The Constitutional Court rejected the individual applications of Osman Kavala, Selahattin Demirtaş and Ahmet Altan, raising questions in terms of its "effectiveness." This draws the attention of some Constitutional Court members as well. It should also be noted that the ECtHR found a violation of Article 18 of the Convention in the cases of Kavala and Demirtaş.

 

If the Constitutional Court loses its current status, those who claim that their rights have been violated will be able to directly seek remedy at the ECtHR. In other words, the Constitutional Court will no longer be a domestic remedy that must be exhausted before applying to the European Court. And this will cause a serious increase in the number of ECtHR rulings against Turkey. Whether the Constitutional Court will take this risk remains to be seen.

 

Moreover, in these three cases we have mentioned, the Constitutional Court also fell into conflict within itself.

 

First the ECtHR’s Second Section, then its Grand Chamber decided that the detention of HDP former co-chair Selahattin Demirtaş was political and requested his immediate release. However, neither of these decisions were implemented, Demirtaş continues to be kept inside with the “moves” of the local court. The Constitutional Court, which rejected Demirtaş's previous individual application, have taken a passive attitude about effectively implementing this decision of the ECtHR, which accepts the Constitutional Court as an effective domestic legal remedy, and to ensure the release of Demirtaş. The ECtHR, of course, took note of this situation.

 

Kavala was not released despite being acquitted

 

Another exam for the Constitutional Court is the Osman Kavala case. The first individual application of businessperson and civil society leader Osman Kavala, who is still detained within the scope of the Gezi trial, was rejected by the Constitutional Court on 22 May 2019. Following this decision of the Constitutional Court, the ECtHR decided on 10 December 2019 that Kavala's detention was unlawful and at the same time political, and demanded his release. In other words, the violation of rights not seen by the Constitutional Court has been found by the ECHR. Therefore, the Constitutional Court failed the Kavala exam.

 

However, the shadow of politics did not disappear from this case. The local court did not release Kavala. Even though the court has decided on his acquittal, Istanbul Chief Public Prosecutor's Office detained Kavala on remand from the prison door with a last-minute order rendered within the investigation regarding the July 15 coup attempt and ensured that he was re-detained on the same day of his release. At this point, it is useful to remind that Chief Prosecutor Fidan, who prepared the indictment against Kavala, is now a member of the Constitutional Court.

 

The justification of the Constitutional Court's first judgment regarding Kavala is contradictory. Because, the same court ruled on the application of Yiğit Aksakoğlu, who was detained on remand and acquitted in the Gezi trial together with Kavala, on 3 December 2020, and decided that his pre-trial detention was unlawful. A non-pecuniary compensation of TL 30,000 was paid to Aksakoğlu.

 

In its judgment about Aksakoğlu, the Constitutional Court established that “there is no evidence that the applicant used force or violence, instigated or directed such acts of violence, or supported such criminal behavior. Although the investigating authorities had access to information showing the applicant's attempts to promote some non-violent activities immediately after the alleviation of the Gezi protests, they failed to show the facts demonstrating that these were done as part of an attempt to overthrow the Government.”

 

The same high court held Kavala responsible for the acts of violence in the Gezi protests, without providing evidence that Kavala encouraged the acts of violence. The following evaluation belongs to the Constitutional Court:

 

“Considering his social status and national and international connections, the applicant is in a position to foresee that the events had evolved into violence and that the consequences of those violent acts. Considering together the facts that, while the violence had been continuing, the applicant had a conversation with H.H.G, who had talked about the slowdown of the Gezi events, the need to meet with a wider audience in order to recover, expand, and deepen the movement, and that there are ideas such as spreading the Gezi events to Anatolia, where the applicant had also spoken words confirming these issues and had tried to help with arranging a venue for the meetings to be held about these issues, that, in another conversation, the applicant had stated that he would help to provide materials such as gas masks, goggles, etc., and that, in another meeting, he had mentioned how the Gezi events would change the political situation, that, during the Gezi events, the applicant had organized or participated in some meetings about the Gezi events, and had tried to create national and international public opinion by exchanging views with some people, who support the protests, it cannot be said that it is arbitrary and unfounded that these issues, which were mentioned by the investigating authorities that the applicant was responsible for the violent incidents and the political result desired to be achieved in the Gezi events (The investigating authorities claimed that the events were ultimately aimed at bringing down the Government), are a strong indication that the crime necessary for his detention was committed."

 

The Constitutional Court, which regards Aksakoğlu's "popularizing non-violent activities" as normal, saw Kavala's "endorsement" of the expansion of the Gezi movement as a "strong indication of guilt." Moreover, the Constitutional Court considered Kavala's attempts to provide gas masks and goggles to protestors as a "crime."

 

Conversations with unclear content held as evidence

 

In its Aksakoğlu judgment, the Constitutional Court established that “When it comes to the NGOs referred to in the indictment and the relationship between them and the applicant, it is understood that the NGOs in question are legal entities that freely carry out their activities either now or in the period in question. It should not be overlooked that the persons with whom the applicant was in contact, spoke on the phone and who were charged with various accusations, benefited from the presumption of innocence. In the conversations in question, there was no indication that the applicant was trying to turn the Gezi events into a widespread and violent uprising against the Government with these people."

 

Kavala, on the other hand, was charged both in the Gezi trial and in the July 15 trial, where he is currently under detention, for his phone calls with US academic Henri Barkey. The content of Kavala's conversations, accused of talking on the phone with Barkey three times, and of that their phones signaled from the base station in the same environment, was not revealed.

 

Deciding on the application of Kavala about his detention within the scope of the July 15 case, on 29 December 2020, the Constitutional Court considered the interviews with uncertain content as "strong indication of guilt" and decided for the second time that there had been no violation of rights against Kavala.

 

However, in the Aksakoğlu judgment, the Constitutional Court accepted the unclear nature of the applicant's phone calls as a favorable situation.

 

Two different interpretations of detention years later

 

Other contradictions in the Constitutional Court's Kavala and Aksakoğlu judgments were reflected in the justifications as follows:

 

The judgment about Aksakoğlu: “The events that the prosecutor's office has indicted by claiming that the applicant has committed a crime are unconnected with each other, some of them have nothing to do with Gezi events, and they are separate and legal activities, or activities related to the exercise of a right that is clearly derived from the Constitution (attempting to publish a book, establishing an association, opening a website, seeking funds for association activities, participating in association activities, organizing meetings). In any case, it is seen that these activities are non-violent activities."

 

The judgment about Kavala: “It has been established that the applicant attended the Gezi events and the meetings related to Gezi events in Turkey and abroad, that he was in contact with other persons, who participated in the protests, and organized meetings with people from many professional groups, such as artists and politicians, that he was having conversations with his domestic and foreign connections to create public opinion regarding the Gezi protests, that he was involved in activities, such as documentary and film shooting, preparing an exhibition about the Gezi events or indirectly supported them, that he financed the persons, who participated in the Gezi events, and had a bank account opened for the materials to be used in the protests, that he provided materials such as gas masks, goggles, which the demonstrators used when entering into conflict with the police, and a table and sound system to use in the Gezi Park.”

 

The Constitutional Court, which regarded the pre-trial detention of Kavala on 1 November 2017, four years after the Gezi protests, criticized Aksakoğlu's pre-trial detention after such a long time.

 

It was stated in the Aksakoğlu judgment that “The applicant was detained on remand more than 5 years after the Gezi events and the criminal investigation launched in 2013. During this time, no facts of the applicant's attempt to escape could be identified. The reason why it was necessary for the applicant to be detained on remand more than 5 years after these acts cannot be understood from the specifics of the present case or the grounds of his pre-trial detention order.”

 

Contradictory judgments in Mehmet Altan and Ahmet Altan’s files

 

The Constitutional Court has twice rejected the applications regarding journalist and novelist Ahmet Altan, who was detained after the coup attempt of 15 July and is still in prison within the scope of the “Altans trial.” The Constitutional Court did not see any violation of rights in the application made regarding Altan's first detention. The court also rejected the second application filed for Altan, who was retried on the charge of “aiding an organization” after his conviction was reversed by the Court of Cassation and was re-arrested eight days after his release based on the prosecutor's objection.

 

On the other hand, regarding his brother, academic and author Mehmet Altan, who was on trial within the scope of the same file with Ahmet Altan, the Constitutional Court issued two violation decisions. In the first judgment dated 11 January 2018, the Constitutional Court ruled that Mehmet Altan's rights to freedom of expression and press and his right to liberty and security had been violated. However, Mehmet Altan was released by the decision of the regional court of appeals in June 2018, months after this judgment and the ECtHR's March 2018 judgment.

 

Mehmet Altan, just like his brother Ahmet Altan, was charged with "membership in a terrorist organization" and "coup" over his articles and speeches.

 

In its 2018 Mehmet Altan judgment, the Constitutional Court pointed out that only these speeches would not be sufficient for a detention, and made the following assessment:

 

“Regard being had to the above-mentioned findings with respect to the lawfulness of the detention and the fact that the main basis for the accusations against the applicant was his articles and speeches, a severe measure such as detention, which was already founded to have lacked the lawfulness above, cannot be regarded as a necessary and proportionate interference in a democratic society in terms of the freedoms of expression and the press.

Moreover, it cannot be comprehended, from the circumstances of the present case and reasoning of the detention order, for what “pressing social need” the applicant’s freedoms of expression and press were interfered, considering that the applicant expressed some ideas that were embraced by certain segment of the public.

In the present case, it is explicit that the applicant’s being detained on remand without providing any concrete fact, other than the articles published and the statement made on Can Erzincan TV, may also have a deterrent effect on the freedoms of expression and the press.

236. For these reasons, it has been concluded that resorting to detention measure in respect of the applicant mainly on the basis of his articles and speeches and without establishing strong indications of guilt was contrary to the safeguards set out in Articles 26 and 28 of the Constitution with respect to the freedoms of expression and the press.”

 

On 3 May 2019, the Constitutional Court rejected the application against Ahmet Altan's detention under the same file. Contrary to its assessment in its Mehmet Altan judgment, the Constitutional Court considered Ahmet Altan's articles and televised comments as criminal evidence:

 

“In evaluating together the applicant's speeches on a TV the day before the coup attempt, the confidential witness statements explaining his recent articles and his position in Taraf Newspaper and the relationship between them, it cannot be said that it is unfounded and arbitrary that these facts stated by the investigation authorities are accepted as a strong indication that a crime related to FETÖ/PDY has been committed. It should be evaluated whether the detention measure applied against the applicant, which has fulfilled the precondition of having a strong suspicion of crime, has a legitimate aim. This assessment should take into account all the characteristics of the present case, including the general conditions at the time when the detention order was made. It has been seen that the decision to detain the applicant is based on the severity of the penalty stipulated in the law regarding the alleged crime, the facts that the alleged crime is among the catalog crimes, the applicant’s suspicion of escape and that the judicial control measure will remain inadequate."

 

The Constitutional Court also considered the mentioning of Altan's name in some Bylock messages as a "strong indicator of crime."

 

However, in its Mehmet Altan judgment, the court stated, "On the other hand, it has been seen that some evaluations were made about the applicant in 'Bylock' correspondence between some third parties. However, taking the circumstances of the present case and the content of the statements used about the applicant into account, it is not possible to evaluate these as a strong symptom indicating the suspicion of a crime alone,” and signed a contrary justification.

Will the Constitutional Court be able to solve this equation?

In conclusion, Ahmet Altan has been in prison since 10 September 2016; Selahattin Demirtaş since 4 November 2016; and Osman Kavala since 1 November 2017. It is clear that the constitutionally guaranteed freedom of expression and press and the right to engage in political activity have been brought primarily to protect the opponents, not the government that uses state power. However, Altan, Demirtaş and Kavala continue to remain in prison amid the stalemate of the trials, in which the shadow of the political power has fallen. As long as these names are inside, opinions will not get through the cold prison walls. The judiciary must be the guardian of the freedom of expression and press. The only safe haven where opponents can take shelter is again the judiciary.

 

The Constitutional Court is currently face to face with an equation with three unknowns, which stands as a major test. The Court will either maintain its status as an effective domestic remedy accepted by the ECtHR or take its place in history as an ineffective remedy. As a result of this equation, it will be clear whether the Constitutional Court will be the representative of a democratic state of law or a means of tutelage of the government.

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