The Individual Application Mechanism is on the Verge of Collapse, and so is Turkish Constitutionalism

Turkey is plunged into yet another profound judicial crisis as the Turkish Constitutional Court (TCC) and the Turkish Court of Cassation (Yargıtay) lock horns over the fate of an imprisoned opposition politician. While two earlier posts published on Verfassungsblog have already meticulously dissected this unfolding judicial drama (here and here), we aim to invigorate the debate with a fresh vantage point. In this piece, we will narrow the focus to one key actor: the TCC. More particularly, we will delve into the implications this evolving judicial crisis holds for the future of the TCC’s individual application mechanism. This is crucial because, in response to the crisis, President Erdoğan called for constitutional change and/or a new constitution, if needed, to resolve it. A potential midway solution, as the Turkish media reported, would be to limit the scope of the TCC’s application mechanism. In particular, it has been reported that President Erdoğan plans to curtail the TCC’s power in individual applications, restricting it to merely awarding compensation. This would effectively remove the TCC’s authority to order the reopening of proceedings, utilized by the court to put an end to the violation and erase its consequences, including the release of the applicant and retrial. Such legislative/constitutional change would inevitably render the effectiveness of the TCC’s individual application mechanism obsolete.

The TCC vs. Yargıtay: Rattling foundations of Turkish constitutionalism

To briefly recapitulate: On 25 October 2023, in an individual application lodged by an imprisoned opposition politician, Şerafettin Can Atalay, the TCC ruled by a majority of 9 votes to 5 that his rights to be elected and to personal liberty were violated. Atalay is a lawyer and was elected to Parliament for the opposition in the May 2023 elections. He has been imprisoned since April 2022, convicted of attempting to overthrow the government in the Gezi Park trial. In its decision, the TCC explicitly ordered the Istanbul 13th Heavy Penal Court to release him. In a peculiar yet precedented move, the Istanbul court did not comply with the TCC’s decision and instead referred the matter to Yargıtay. In an unprecedented decision, Yargıtay unanimously ruled not to implement the TCC’s decision, arguing that the TCC had exceeded its jurisdiction and decided to lodge criminal complaints against nine TCC justices who voted in Atalay’s favour – a move that will leave an indelible mark on Turkish constitutional history.

At first glance, this is truly noteworthy, but there are parts that are familiar to Turkey observers. This was not the first time that TCC judgments had been ignored. On 11 January 2018, the TCC found that the pre-trial detentions of two journalists, Mehmet Altan and Sahin Alpay, violated their right to liberty and freedom of expression. The Turkish Government condemned the decision, accusing the TCC of going ‘beyond the boundaries drawn out by the Constitution’ and ‘overstepping its jurisdiction’. Partly due to government pressure, two Turkish assize courts (including our resister in the Atalay case, the Istanbul 13th Heavy Penal Court) refused to implement these decisions, citing arguments almost identical to those the government offered. A similar foot-dragging by another first-instance court (this time, the Istanbul 14th Heavy Penal Court) led to yet another judicial crisis in October 2020 after the Berberoğlu case.

What distinguishes this particular case from the now routinized judicial crises in Turkey, beyond the consistently politicized justifications offered, is the involvement of Yargıtay. In its decision, Yargıtay goes to great lengths to assert that the TCC “exercises unconstitutional authority”, that it “assumed an unprecedented role as a “super-appeal authority” and that it should function “solely as a filtering body within its jurisdiction, serving as a domestic remedy that must be exhausted before individual applications to the ECHR, without intervening in matters falling under the purview of other high courts”. None of these assertions warrants an exhaustive discussion individually. Yet collectively, they reveal a lot about the current decay of Turkish constitutionalism and the compromised constitutional authority of the TCC within the Turkish legal landscape. Regrettably, the perception of the individual application mechanism by Turkish high courts is particularly concerning. This mechanism, despite its shortcomings, stands as one of the few remaining bastions of Turkish constitutionalism. The recent confrontation, however, threatens to erode even this fragile safeguard, casting a shadow over its effectiveness as a domestic remedy.

The TCC’s individual application mechanism

Introduced by the 2010 constitutional referendum, Turkey implemented the individual complaint procedure to the TCC in September 2012 for rights that are protected at the intersection of the ECHR and the Turkish Constitution. The individual complaint mechanism initially performed well in the country. The TCC issued several landmark freedom-serving decisions, including a precedent-setting judgment in Mustafa Balbay of December 2013 on the pre-trial detention of a parliamentarian and two highly praised judgments that deemed the government ban on access to Twitter and YouTube a violation of free speech. These judgments, among many others in highly critical cases, increased the Court’s popularity and garnered much praise from domestic and international circles. Reasonably enough, in the famous Hasan Uzun decision of April 2013, the European Court of Human Rights (ECtHR) took the position that an individual application before the TCC may qualify as an effective domestic remedy and declared applications inadmissible for failure to seek redress before the TCC.

In reaching this conclusion in Uzun, the ECtHR clearly outlined the components that the individual application mechanism should possess in view of similar mechanisms in Germany, Spain and the Czech Republic. Finding that these mechanisms constitute effective remedies, the Court highlighted that the constitutional courts in the countries are vested with powers to (1) “remedy violations committed by a public authority” (2) “prohibit the authority concerned from continuing the violation of that right”, and (3) “order to restore the status quo ante as far as possible” (paras. 42-28). In contrast, in Apostol, the Court found that the individual constitutional remedy could not be regarded as effective, as the Georgian Constitutional Court lacked the jurisdiction to annul individual decisions taken by public authorities or judicial bodies that directly affect individuals’ rights (paras. 36-46).

Another important factor for the Court’s decision in Uzun was the TCC’s undisputed authority in the Turkish constitutional system and the binding nature of its decisions under Article 153 of the Turkish Constitution. Ironically, the Court also noted that the question of compliance with TCC decisions, in practice, “should not a priori arise”. In particular, it found it sufficient to observe that, in the past,  “even the decision to dissolve a political party that was in power as part of a coalition government had been implemented”, referring to the Refah Partisi and Others v. Turkey decision (para. 66). Indeed, the sheer difference between Turkey of 2013 and Turkey of 2023 is unbelievable.  Yet this was a long time in the making.

The TCC since the post-2016 coup period

In the aftermath of the 15 July coup attempt, the TCC found itself on a dramatic “constitutional roller coaster”. In what can be described as a survival mode in the initial months of the post-coup emergency rule, the TCC dismissed two of its members, Alparslan Altan and Erdal Tercan, without any adjudicative criminal proceedings or adherence to essential judicial guarantees and deferred to the AKP’s aggressive campaign to purge the Gülenist influence from state institutions. On 12 October 2016, the TCC refrained from reviewing the constitutionality of emergency decrees, despite clear precedents, giving the government carte blanche to move the country toward authoritarianism under emergency rule and underscoring the TCC’s regime-supporting role. As for the individual applications, this mechanism emerged as a platform where the TCC frequently balanced political pressure and individual justice, resulting in increasingly inconsistent decisions in the post-coup period. Flooded by hundreds of thousands of individual applications relating to Turkish post-coup measures, the TCC initially had been markedly slow to react to wide-ranging human rights violation claims. And finally, on 11 January 2018, the TCC signalled a potential shift in this cycle by issuing the landmark decisions in the Mehmet Altan and Sahin Alpay cases. However, this development was swiftly followed by an extra-legal constitutional crisis.

Any hope that these cases indicated a change of direction was quickly extinguished by the TCC’s selective approach, which led to more controversy, further undermining the individual application mechanism. For example, in May 2019, the TCC heard a group of cases with similar underlying causes to those of the Altan and Alpay cases. In Ali Bulac, Murat Aksoy and Kadir Gursel, the TCC ruled that the applicants’ detentions, based merely on journalistic writings and expressions, were unlawful. However, resorting to its usual exit strategy of factual distinguishing, it failed to protect the same principles in other cases, e.g., Ahmet Altan, Nazli Ilicak, and Murat Sabuncu, by either finding no violation or rejecting them.

Such a fragmented approach is also visible in many other recent cases, including Osman Kavala and Yuksel Yalçınkaya. Juxtaposing the ECtHR findings in Kavala and Yalçınkaya with what the TCC found in their applications reveals a stark contrast: In Kavala, the TCC found no violation, whereas the ECtHR found many violations, including an Article 18 ECHR violation (ulterior purpose behind his pre-trial detention). In Yalçınkaya, the TCC found the application manifestly unfounded, whereas the ECtHR found an Article 7 violation (no punishment without law).

The fraught relationship between the ECtHR and the TCC hit a dramatic crescendo when the latter issued the Yıldırım Turan case in July 2020. By unanimously finding that domestic courts are better placed to interpret the provisions of domestic law than international human rights monitoring bodies, the TCC, for the first time, openly defied the ECtHR’s authority. Later, in November 2021, the ECtHR found the detention of Yıldırım Turan and 426 others – all of whom were sitting judges or prosecutors before the 2016 attempted coup – was unlawful and lacked reasonable suspicion.

In a minority of cases, such as Wikipedia and Academics for Peace, the TCC was able to demonstrate resilience against political pressures and delivered justice. Yet, they also showed internal dissension and ideological divisions among the TCC judges: Those members strictly loyal to President Erdogan notably articulated lengthy dissenting views to challenge the gist of the majority’s significant findings.  Predictably, the majority of members faced severe and unwarranted backlash from the Turkish Government.

Even before the ongoing judicial crisis surrounding the Atalay controversy, the Keser Altıntaş case of 10 October 2023 laid bare the profound systemic paralysis gripping the individual application mechanism. In that case, the TCC ruled that it would no longer rule on complaints (around 80,000 pending applications) regarding the right to a fair trial within a reasonable time. As the TCC has previously adopted more than 55,000 violations that raised similar fair trial issues where it identified a structural problem and referred the matter to the Turkish Parliament for a lasting political solution, it decided not to be bothered with the pending applications. Put in simpler terms, the TCC became –probably– the first apex court that disregarded its constitutional duty to provide a remedy for the right to be tried within a reasonable time, because it believes that there are ‘too many cases’ and ‘not enough time to decide on them’. Sadly, today’s TCC is trapped in a self-destructive tailspin.

Conclusion

The recent judicial crisis between TCC and Yargıtay is unprecedented in many ways, and serves as a clear manifestation of the profound erosion of constitutionalism in Turkey. Amidst multifaceted implications, one clear takeaway is that the TCC’s undisputed authority within Turkey’s constitutional framework is seriously at stake. As things stand, the TCC’s individual application mechanism is on the verge of collapse. Any legislative or constitutional changes on the individual application mechanism would further undermine the TCC’s capacity to serve as a check on political power (or what’s left of it!). The final nail in the coffin will probably be when President Erdoğan will appoint three new members to the TCC to replace those whose tenure will end between January and April 2024. By doing so, he will have directly appointed 10 of the 15 TCC members and supervised three appointments made by the Turkish parliament. The stakes are high, and the outcome of this crisis could significantly shape the trajectory of constitutional governance in Turkey.