Does the Turkish Constitutional Court Provide Effective Remedies for Human Rights Violations?

Ali Yildiz

Arrested Lawyers Initiative

The Turkish Constitutional Court (TCC) and Its Composition

The 1961 Turkish Constitution created the TCC and endowed it with the power to review the constitutionality of laws and decrees with the force of law. This system of constitutional review was preserved in the 1982 Constitution, with minor changes.

The ruling party, the Justice and Development Party (AKP), changed the TCC’s structure twice, in 2010 and 2017. Currently, the TCC consists of 15 judges. Three of these judges are elected by the Parliament (TGNA). A further 12 judges are selected by the President of the Republic.

While only three judges are elected by the Parliament, rather than the President, Parliament is likely to be under the control of the same political party as that to which the President belongs. Consequently, a single political party could dominate the country’s highest court. So indeed, twelve of the incumbent judges were selected either by former president Gul or by the incumbent president, Erdogan, both are founders of the ruling party AKP. That is to say, the AKP has transformed the TCC into an institution which pays regard to the program of the AKP Government when rendering its judgments, and serves to keep alive the illusion that Turkey is still a country governed by the rule of law.

Constitutionality Review

The TCC examines the constitutionality of laws, Presidential decrees and the Rules of Procedure of Parliament (in respect of both form and substance). Upon review, it may either dismiss the case or annul the contested regulation, should it find a breach of the Constitution.

There are two procedures for constitutionality review: (i) an ‘Action for Annulment’; and (ii) a ‘Contention of Unconstitutionality’. While the Action for Annulment is filed by (i) the President of the Republic, (ii) the two largest parliamentary groups or (iii) a minimum of 120 members of the Parliament, a ‘Contention of Unconstitutionality’ is filed by lower courts regarding the laws which they shall apply to a certain case.

Individual Application to the TCC

Turkey became a party to the European Convention on Human Rights (ECHR) in 1954. It recognized the compulsory jurisdiction of the European Court of Human Rights (ECtHR) in 1990.

With a constitutional amendment in 2010, which became operational on 23 September 2012, a ‘right to individual application’ was introduced domestically. The TCC was therefore endowed with the authority to conduct constitutional review in cases filed by legal and natural persons seeking a remedy for the violation of fundamental rights and freedoms, envisaged both by the Constitution and the ECHR.

The ECtHR, in its judgment in Uzun vs Turkey (10755/13), held that the TCC provides effective remedies for violations of fundamental rights and freedoms. Accordingly, the ECtHR ruled, anyone who complains about a human rights violation may file a case with the ECtHR only after exhausting domestic remedies within Turkey, by lodging an individual application with the TCC.

Alarming Statistics on Individual Application Cases

According to statistics dated 30 July 2019, the TCC has handed down 186,701 decisions since 2012. Of those, 7,835 (4%) are decisions establishing at least one rights violation. The rest of the decisions (96%), consist of decisions in which findings were made of non-violation of rights, or in which the matter was dismissed as inadmissible or rejected on administrative grounds.

These statistics are quite alarming if one takes into account the sheer volume of the cases considered compared with the low percentage of decisions in which a rights violation was established. It is self-evident that a 15-member Court could not have properly applied its mind to 186,701 cases heard over the space of just seven years. In addition, a Court which dismisses 96% of the applications brought before it cannot be regarded as providing an effective remedy for rights violations. These figures will seem even more alarming if one compares them with figures relating to the case load of the German Constitutional Court where, since 1951, 210,509 decisions have been rendered.

Problematic Practices of the TCC

Other problems with the TCC’s modus operandi relating to individual applications is its arbitrary and discriminatory practices regarding the setting of the agenda of the Court, and its interpretation of the law and of facts. The TCC does not have guidelines for setting its agenda. The Chief Judge has absolute authority over the setting of the agenda and, unfortunately, this power has so far been used in an arbitrary and discriminatory way. The infamous cases of Mehmet Altan, an academic economist, and Ahmet Altan, a novelist and journalist, are perfect examples of this arbitrary and discriminatory praxis. The Altan Brothers, as they are known publicly, were taken into custody on 9 September 2016 as part of an operation against the so-called ‘FETO-Media Structure’. They were subsequently remanded to pre-trial detention by the Istanbul Criminal Peace Judgeship. Both were prosecuted and indicted for publishing columns with, and giving speeches to, media outlets that had been dissolved by the Government under Emergency Decrees. The Altan Brothers lodged separate individual applications with the TCC in November 2016. Despite these matters being lodged on the same day, and dealing with similar issues, Mehmet Altan’s case was heard on 11 January 2018, while Ahmet Altan’s was handled on 3 May 2019.

The outcomes of the two brothers’ cases are also poles apart. In its judgment in Mehmet Altan’s application, the TCC ruled that the pre-trial detention violated the professor’s rights to liberty, security and free expression. However, the TCC found Ahmet Altan’s application inadmissible, even though the material facts and relevant laws were the same.

Similar arbitrariness is evident in the TCC’s treatment of complaints lodged by two Kurdish politicians, Sirri Sureyya Onder and Selahattin Demirtas. These politicians were convicted and imprisoned within the same trial, for political remarks made during rallies.

The TCC, on 3 October 2019, adjudged that the Kurdish politician Onder’s imprisonment was unlawful and ordered his immediate release. Whereas, we are still awaiting the outcome of the complaint of Selahattin Demirtas, co-chair of the pro-Kurdish party, whose appeal was lodged with the TCC two days before that of Mr Onder.

Blank Check to the Government to Abuse Its Emergency Powers

Immediately after the coup attempt of 2016, two judges of the TCC (Alparslan Altan and Erdal Tercan) were detained in breach of the procedural safeguard laid down in the Law on the Constitutional Court (6216). The TCC remained silent in the face of their detention which was condemned by the ECtHR as arbitrary and unlawful. Moreover, the TCC dismissed these two judges without the due process required by Law 6216. These dismissals encouraged the Government and triggered the dismissal of 125,678 public servants by ad-hominem Decree Laws. 

The TCC also dismissed the Main Opposition Party’s (CHP) actions for annulment, lodged against the emergency Decree Laws on the grounds of a lack of jurisdiction. 

Although emergency regimes pose a severe risk to fundamental rights and freedoms, the TCC refused to carry out its institutional duty by diligently reviewing the Government’s actions, including the controversial decrees. By doing so, it provided the Government with a blank check to do whatever it wanted. This is a dramatic turnaround from its previous ruling 25 years ago, when Turkey’s top court constitutionally reviewed emergency measures and ruled that decrees could not contradict or negate the fundamental rights defined in the Constitution of Turkey.

In conclusion, it can be said that the Turkish Government’s strategic objective of taking control of the Constitutional Court has been accomplished. Since 2014, and increasingly after the attempted coup of 2016, the TCC has aligned its decisions with the Executive. Although the TCC does occasionally deliver decisions upholding rights and freedoms, one can say these are ‘strategic’ or ‘cosmetic’ decisions. They are intended mainly to prevent the ECtHR from reversing its previous decision recognizing the TCC as a court providing effective remedies, and to keep alive the illusion that Turkey is a still a country governed by the rule of law.

The Council of Europe and the ECtHR should stop overlooking the deficiencies in the TCC’s practices in relation to individual application matters as well as its incoherent interpretation of laws and facts. In this respect, the ECtHR’s communication with Turkey in the case of Wikipedia vs Turkey (25479/19) is promising. The ECtHR asked both parties to the litigation the following question:

“Could the individual application that was lodged with the Constitutional Court be considered as an effective remedy ... having regard to the fact that access to the Wikipedia internet site has been blocked in Turkey since 2017 and … individual application has been pending before the Constitutional Court for more than two years?” 

While this is promising, it is too early to feel relieved.

Ali Yildiz is a Turkish lawyer and the director of the Arrested Lawyers Initiative.

Suggested citation: Ali Yildiz, “Does the Turkish Constitutional Court Provide Effective Remedies for Human Rights Violations?” IACL-AIDC Blog (19 November 2019), https://blog-iacl-aidc.org/2019-posts/2019/11/19/does-the-turkish-constitutional-court-provide-effective-remedies-for-human-rights-violations