Salih Sönmez a member of the Court of Cassation was arrested on July 21, 2016, and is still in solitary confinement. His application regarding violation of his rights during detention and arrest was rejected by the Constitutional Court on the grounds that, “the remedies regarding compensation were not exhausted”.
In its judgment dated 8 January 2018, the court held unanimously that the applicant had not been brought before the judge or the court for 21 months after his arrest, however, the case of the arrestee was examined in a non-trial manner, and that a violation decision by the Constitutional Court would not result in the release of the applicant, if there was a violation of the right of the applicant in that respect, it would have been sufficient to award him a certain amount of compensation by the local court according to the article 141 of Criminal Procedure Code. Therefore the remedy in Article 141 of CPC was an effective way of law to make up for the situation of the applicant; he could not apply to the Constitutional Court without exhausting the usual remedy.
The decision once again sparked the debate that the Constitutional Court is not an effective remedy to be exhausted within the Turkish judicial system.
Dr. Kerem Altıparmak, a human rights activists reacted to the decision on his social media account stating that “The Constitutional Court in its decision about Salih Sönmez found inadmissible the application of a member of the Court of Cassation who had not been brought before the judge or the court for 21 months after his arrest saying that why didn’t you bring a lawsuit for compensation. Really, why couldn’t the member of Court of Cassation think such a wonderful solution?
In his other share about the same case, Altıparmak said that “in this case (Constitutional Court) went one step further. If you read, you will see. What will happen if you stand before the judge? The detention will continue. This is incredible, really incredible.”
Professor Yaman Akdeniz, on the other hand, criticized that although the Article 141 of CPC is not an effective domestic remedy, both the Constitutional Court and ECHR accept it as a solution to the violations of rights related to arrest saying that on his social media account:
“According to the Constitutional Court, the solution of everything related to arrest is the bringing a lawsuit for compensation in accordance with the article 141 of CPC. Although it is crystal clear that the article 141 is not an effective way, the Constitutional Court says there’s no need for making an application due to a violation of rights, claim compensation. Oh yeah! ECHR is still eating the bait; that is another issue.”
Hundreds of the members of the Court of Cassation and the Council of state, two members of the Constitutional Court, thousands of judges and prosecutors were detained and arrested under the pretext of the July 15 coup attempt. All the members of high courts and the majority of judges and prosecutors are still held in solitary confinement.
Sources:
1.http://www.anayasa.gov.tr/icsayfalar/basin/kararlarailiskinbasinduyurulari/bireyselbasvuru/detay/dokuman/pdf/231.pdf
2. https://twitter.com/KeremALTIPARMAK/status/1082610861431230465
3. https://twitter.com/KeremALTIPARMAK/status/1082613761435938817
4. https://twitter.com/cyberrights/status/1082664208829952002
