While the Turkish military offensive in the Syrian-Kurdish enclave of Afrin is grabbing all the headlines, a constitutional crisis has erupted that could spell the end to the rule of law and the separation of powers in Turkey, legal experts and human-rights groups warn.
The crisis began when Turkey’s Constitutional Court ruled on January 11 that two journalists being tried on terrorism charges relating to the 2016 coup attempt must be released pending a verdict. Since then, five different lower courts have failed to comply, incensing legal experts. “No lower court in Turkey has the right to defy rulings by the Constitutional Court,” said lawyer Veysel Ok. “According to the Constitution, the decisions of the Constitutional Court are final and binding. This means that the judicial chain of command has been broken. It means that the Constitutional Court is no longer a working branch of the judiciary, and no longer a legal remedy. This is a massive shock, an earthquake.”
The journalists Sahin Alpay, 73, arrested in July 2016, and Mehmet Altan, 65, arrested two months later, are being tried on charges of “trying to overthrow the government” and “links with a terrorist organization.” They stand accused of ties with the movement of US-based Sunni cleric Fethullah Gülen, whom the Turkish government blames for the failed coup. Both men face aggravated life sentences if convicted. Press-freedom monitoring groups have been rallying for their release and that of their colleagues imprisoned during the post-coup crackdown, which extended Turkey’s record as one of the world’s biggest jailors of journalists.
The Constitutional Court ruled on individual applications made on behalf of Alpay and Altan, finding that their pretrial detentions violated their rights, citing a lack of tangible evidence that would justify the measure. Legal experts expected that this ruling would not only affect Alpay and Altan, but also set the precedent for the release of many more journalists in Turkey. According to the Turkish media platform P24, more than 150 journalists and media workers are currently behind bars, many of them on terrorism charges.
Veysel Ok, who filed the application to the Constitutional Court on behalf of Sahin Alpay, said that the verdict should have been a turning point for court cases against journalists. “This was the first such ruling after the coup attempt,” Ok said. “The judges did not only say that the pretrial detentions were unjustified, but also that there was not enough evidence for a crime to have been committed. This means that not only these two cases, but many more based on the same accusations should end in acquittal, according to the Constitutional Court.”
Three weeks later, both journalists are still in jail. The Turkish government has objected to the ruling, arguing ironically that the Constitutional Court had “exceeded” its authority. “The Constitutional Court has crossed over the lines drawn by the Constitution and the law, [it] acted as a first-instance court by making an assessment of the case and the evidence,” tweeted deputy prime minister and former justice minister Bekir Bozdag. Prime Minister Binali Yildirim, too, rebuffed the verdict as “uninformed.”
It is not the first time that the Turkish government has faced off with the highest court in the country. In 2016, the Constitutional Court ordered the release of journalists Can Dündar and Erdem Gül from three months of pretrial detention, citing rights violations. Both men had been charged with revealing state secrets for reporting on arms deliveries from Turkey to Syrian rebels. Turkish President Recep Tayyip Erdogan then argued that the court had overstepped its bounds and had acted “like a court of appeals.”
“The Constitutional Court may have decided on the matter and I can only remain silent on this decision. But I can’t accept it. And I neither obey the decision, nor do I respect it,” Erdogan said.
Human-rights groups and the European Union have repeatedly raised concerns about the erosion of judicial independence in Turkey, arguing that legal reforms and sweeping purges in recent years have made the courts loyal to Erdogans’s agenda and a handmaiden of political repression. The arrests of hundreds of judges and prosecutors following the 2016 coup attempt have only accelerated the deterioration of the rule of law.
This latest dismissal of the Constitutional Court by five different lower judges, Ok said, is the final nail in the coffin of justice. “This is not only a constitutional crisis, but a massive crisis of state,” he said. “This means that the third branch of the three branches of state power, the judiciary, has collapsed.”
Meanwhile, lawyers representing Mehmet Altan have filed a complaint to the Council of Judges and Prosecutors (HYK) on some of the judges sitting on the lower courts, arguing that they violated the Turkish Constitution. Veysel Ok underlined the gravity of this situation: “By refusing to implement the ruling of the Constitutional Court, these judges are committing an offense that doesn’t only concern the defendants, Altan and Alpay, but every person in Turkey.”
This refusal to abide by the ruling concerning the journalists Alpay and Altan also sets an important precedent for Turkish cases brought before the European Court of Human Rights, Ok explained, adding that this could mean tens of thousands of new applications from Turkey this year. According to the ECHR’s rules, citizens from Turkey who want to submit their case in Strasbourg have to exhaust all domestic legal remedies first, including the Constitutional Court. However, with institutions now either politicized, sidelined, or simply ignored by the Turkish government, there are no guarantees that justice will be served. “If Turkey defies rulings by the European Court of Human Rights, the repercussions might be severe,” Veysel Ok said. “It could mean a final rupture with Europe and Western judicial standards. For human-rights defenders in Turkey, that would be a catastrophe.”