Turkey’s top court doing ruling party’s bidding

A long delay by the top court on pending petitions that have serious ramifications for the rule of law, fundamental rights and freedoms ahead of a critical election is seen as an implicit endorsement by the Constitutional Court of the ruling Justice and Development Party (AK Party).

The deferred decisions by the Constitutional Court have not only allowed the ruling AK Party to become bolder with its authoritarian style of governance but has also weakened the opposition’s resistance in mounting a challenge to the undemocratic moves of the government.

Legislation passed in April 2014 related to the National Intelligence Organization (MiT) that gave the agency sweeping powers to surveil and monitor unsuspecting citizens was among many that were challenged by the main opposition Republican Peoples’ Party (CHP) at the court. The CHP repeatedly said the government has been using the intelligence agency to illegally monitor opposition parties and plot against lawmakers with flagrant interference in their private lives.

“There is only one explanation for this: reaching the goal of intimidation and pressure,” Dengir Mir Mehmet Firat, a former deputy and one of the founders of the AK Party, told Today’s Zaman.

“The Constitutional Court as one of the important insurers of the democracy is fearful,” he added.

Firat resigned from the AK Party earlier this year and is now a parliamentary candidate for the pro-Kurdish Peoples’ Democratic Party (HDP) in the southern province of Mersin.

Grand Unity Party (BBP) Deputy Chairman Remzi cayir said before the presidential election held on Aug. 10 of last year that President Recep Tayyip Erdogan had acknowledged the newly founded penal courts of peace were established to fight against the Gulen movement, a civil society movement also known as the Hizmet movement and inspired by the teachings of Turkish Islamic scholar Fethullah Gulen.

The June 2014 legislation on setting up the controversial new penal courts of peace was also challenged by the CHP at the Constitutional Court. The court has still not rendered its judgment even though hundreds of people from all walks of life have been prosecuted by these penal courts of peace since then.

Opposition parties, jurists and bar associations say these courts are unconstitutional and claim they are instruments designed to enforce the government’s wishes by instigating arrests based on what they say are trumped up charges.

Former Constitutional Court President Haiim Kilic said in March that the penal courts of peace formed by the government are illegal.

Stating that judges today are in constant fear of being relocated and thus cannot be expected to render fair judgments, Kilic said: “This will have a price and someone has to pay the price so that we can pass down a free and independent judiciary to future generations. Otherwise it [the judiciary] will remain subordinate [to the executive], as it is now.”

Another piece of legislation that is pending before the court is a law on forcibly closing privately funded prep schools that have been providing supplementary education to pupils for decades. The CHP challenged the law, saying it was a blow to the right to a free enterprise.

The top court’s rapporteur has already finalized a report on the issue yet the court has not tackled the case.

According to a law passed last year by the government, prep schools must become regular schools and will be prohibited from operating as study centers. If they do not make the switch within the allocated period, fines ranging from TL 500,000 to TL 1 million will be imposed on them.

Tens of thousands of teachers and employees working in nearly 4,000 prep schools will be left jobless and the money spent on bringing these future fulltime schools up to code will have to come out of the prep school managers’ pockets.

The announcement to shut down the schools sparked a rift between the government and the Gulen movement as roughly a third of the schools are owned by those associated with the movement.

Many owners of the prep schools also applied to the Constitutional Court against the recently passed law by claiming their fundamental rights were violated.

Lawyer and Life Association President Mehmet Kasap said the court is damaging its own reputation by deferring on decisions that are enormously important for society as a whole.

“The court had earned a good reputation at the European Court of Human Rights when it obtained the right to review individual petitions on rights violations as part of the [2010] constitutional amendment that was approved in a public referendum,” he said.

Kasap warned that the Constitutional Court is jeopardizing its status as an effective domestic remedy that was recognized as such by the European court.

The hesitations by the top court in rendering judgments on landmark cases against the background of government pressure will force many applicants to appeal to the European court in order to seek justice, he underlined.

This will have a detrimental impact on trust in the Turkish judiciary, Kasap noted.

He remarked that the government has laid siege on the judiciary, especially the high judiciary, which is the last obstacle in the move towards authoritarian rule in the country.

In April, the Constitutional Court rejected individual appeals that were filed by 44 police officers who were arrested as part of a government-backed operation on July 22 of last year.

The 44 police officers, including former Istanbul Police Department Counterterrorism Unit Chiefs Yurt Atayun and Omer KOse, submitted an appeal to the Constitutional Court last August, objecting to their arrests and revealing the unlawful practices they were subjected to during the legal process.

In their appeal to the top court, the suspects’ lawyers cited tangible unlawful practices regarding their clients’ right to liberty and security and the right to a fair trial during the legal process. The lawyers also stressed that the officers’ fundamental rights and freedoms, as protected by the Constitution and the European Convention on Human Rights (ECHR), were violated.

The decision to reject the appeals came only a few hours later, and a government whistleblower who tweets under the pseudonym Fuat Avni alleged that President Erdogan had held a secret meeting with Constitutional Court President Zuhtu Arslan. The court has yet to announce its reason for the rejections.

Firat said the Constitution has been turned into a doormat by President Erdogan personally, adding that Turkey is going through a process in which prosecutors do not enforce orders handed down by judges and judges are arrested because of their rulings.

In another blow to judicial independence and the rule of law, two judges were arrested last week following their recent rulings for the release of journalist Hidayet Karaca and 63 police officers who have been under arrest for four-and-a-half months and nine months, respectively. However, after apparent government intervention, public prosecutors refused to apply the court order.

The 2nd Chamber of the government-dominated Supreme Board of Judges and Prosecutors (HSYK), the country’s top judicial administrative body, announced on Monday that the judges had been removed.

Istanbul 29th Court of First Instance Judge Metin Ozcelik and Istanbul 32nd Court of First Instance Judge Mustafa Baier were immediately removed by the HSYK. The HSYK’s announcement came very shortly after President Erdogan said the HSYK was actually late in convening to intervene in the issue.

The judges were later arrested by the BakirkOy 2nd High Criminal Court in a move that was the first of its kind in Turkey as judges and prosecutors can only be tried by the Supreme Court of Appeals.

The fact that investigators from the HSYK requested the arrest of the judges without even hearing their defense statements has also been termed as unlawful.

CHP parliamentary group deputy chairman Levent GOk said all the challenges filed by his party at the top court against Parliament-approved laws were aimed at preventing Turkey from sliding back to an authoritarian and totalitarian regime. “These are the laws that have suspended the rule of law, violated fundamental rights and freedoms and infringed upon universal values,” he told Today’s Zaman.

GOk said the Constitutional Court must urgently review these cases despite immense political pressure from the government.

“As a constitutional institution, the top court must fulfill its responsibilities. Judges are expected to resist blackmail and pressure. Justice delayed is justice denied,” he concluded.

Earlier this year the CHP also challenged a new law that granted the government sweeping powers to ban a website for 24 hours without a court order.