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.

Penal court resists top court ruling, claims “usurpation of authority”

Penal court resists top court ruling, claims “usurpation of authority”

The Istanbul 13th High Criminal Court refuses to free journalist Şahin Alpay, claiming that the Constitutional Court overstepped its jurisdiction


The Istanbul 13th High Criminal Court, where journalist Şahin Alpay is on trial on “membership in a terrorist organization” and “coup” charges, has considered the Turkish Constitutional Court’s January 11 judgment that Alpay’s rights had been violated a “usurpation of authority,” and ruled for the continuation of Alpay’s detention.

The Constitutional Court, ruling on the individual applications by the imprisoned journalists Alpay and Mehmet Altan, and Cumhuriyet daily’s Turhan Günay, who had been released pending trial following a lengthy period of pre-trial detention, had said in its judgment rendered on January 11 that their detentions violated the journalists’ rights to “personal freedom and security” and “freedom of expression and freedom of press.”

However, as Alpay and Altan were expected to be released from prison, the  13th and 26th High Criminal Courts of Istanbul, the latter of which is the court where Altan is on trial, rejected the journalists’ lawyers’ requests for their release on grounds that the reasoned judgment of the top court had not yet been formally communicated, ruling for the continuation of their detention.

On January 12, in a new decision it rendered following its review of the top court’s reasoned judgment, the 13th High Criminal Court this time argued that the Constitutional Court in its reasoned judgment had put itself in place of the first instance court.

Resistance to AYM judgment a first in history of Turkish law

 The ruling by the 13th High Criminal Court marks the first ever occurrence of resistance by a local court to a judgment rendered by the Constitutional Court, whose decisions are “binding on the legislative, executive and judiciary organs” as per Article 153 of the Turkish Constitution. The ruling also casts doubt on the right to individual application before the Constitutional Court, a legal remedy introduced to Turkish law on September 12, 2010.

An excerpt from the court’s ruling, rendered with the dissenting opinion of one of the panel’s three judges, reads as follows: “The Constitutional Court has put itself in the position of our court, ruling, in a nutshell, that ‘evidences in the case are not sufficient to justify detention.’ Furthermore, if the reasoning of the Constitutional Court is read carefully, it is stated […] that the case file contains no other concrete facts except for the articles published by the defendant. Had this observation were to be taken into consideration, our court should not only rule for the release of the defendant, but also for hi̇s acquittal at the end of the trial. […] The Constitutional Court does not have such right and authority.”

Noting that it was within its authority to assess on whether the specifics of the case require the continuation of detention, the 13th High Criminal Court added:  “The Constitutional Court to render judgment by way of considering the substance of a case before our court constitutes a ‘usurpation of authority’.”

The court continued: “The binding rulings rendered by the Constitutional

Court concern those rendered in conformity with the Constitution and the law on its own establishment, all other judgments rendered by way of exceeding its limits recognized by law and intervening in areas that are clearly forbidden cannot be described as ‘final and binding.’”

The court said that it could provide much more detailed explanations in its continuation of detention orders, but that this would amount to “revealing an opinion [compromising an impartial judgment].”

Reasoning on this explanation, the court ruled for the continuation of Alpay’s detention on grounds that there was no need to issue a new ruling concerning the detention of Alpay.

Full text of the Istanbul 13th High Criminal Court (in Turkish) can be read here.

Deputy Prime Minister and Government Spokesperson Bekir Bozdağ, reacting via his Twitter account to the ruling early January 12, said that the Constitutional Court “had exceeded the limits drawn by the law and the constitution.”

“The Constitutional Court has acted as a first instance court by making an assessment of the case and the evidences. […] The Constitutional Court cannot act as a Super Court of Appeals,” said Bozdağ. “The Constitutional Court should not pay regard to the perceptions but the constitution and the law,” he added.

Prime Minister Binali Yıldırım, commenting on the Constitutional Court judgment later, also claimed the authority to render such a decision belonged to the court of first instance. Yıldırım said:  “We may or may not like the AYM’s judgment. But the assessment of [the judgment] is something different. However, the court of first instance is his full knowledge of the file. Neither the AYM nor we know the specifics of the case file. The one who will render the right decision is the court of first instance.

The 73-year-old Alpay has been in prison since July 2016.

An English translation of the Constitutional Court ruling against Alpay's detention can be read here.