Lawyer Levent Mazılıgüney (Translated by Freejudges)
The Republic of Turkey as a respected member of the international community authorized a large number of international courts or mechanisms, in particular, the European Court of Human Rights (ECtHR) about human rights and other disputes.
Being a part of the international community has made significant gains for our country in the fields of democracy, human rights, and law, and the international community has also benefited from our country’s experience. As mentioned below, according to Article 90 of the Constitution, international agreements have the force of law and they are superior to the law in the field of fundamental rights and freedoms.
Article 90, paragraph 5 provides that “International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements concerning fundamental rights and freedoms and the laws on the same matter, the provisions of international agreements shall prevail.”
It is utterly meaningless to condemn the supremacy of international treaties and condemn people who seek their rights which arise from the agreements at the relevant international authorities.
The struggle for rights is not a complaint about our country to another country or a group of countries. The main objective is to contribute to our country by benefiting from the experience of the countries that we are or are trying to be a part of. Our aim is to fight against the violations of the rights that we face so that our children do not encounter them. In order to apply to international mechanisms, it is necessary to exhaust domestic remedies or to show that domestic remedies are ineffective. If it takes an average of 10 years to get results from international mechanisms to eliminate the violation of rights this struggle must be done for the common good of our people and future generations. The main responsibility of our country’s institutions and especially that of our judicial system should be to protect the experience obtained and not to let it go back.
It is a known reality that in our country politics has more or less influence on the judiciary in every period. The members of the judiciary have been granted much higher legal protections and rights than the ordinary citizen so that the judiciary could be free from the influence of politics and maintain its independence and impartiality. But the judiciary has not seen as much pressure before as in the last few years. Unfortunately July 15 treacherous coup attempt which we have always condemned, and the reality that while military aircrafts were in the air, 2740 members of the judiciary were dismissed and members of the judiciary were detained in the following morning then the number of judges and prosecutors dismissed from profession exceeded four thousand has a significant effect on this pressure. Can we expect justice from members of the judiciary who act in fear of being dismissed from the profession at any time? I recommend you to read Mehmet Alkan’s articles on judicial reform, especially his article titled “Did the judges make the coup?” (https://www.toplumsal.com.tr/mehmet-alkan-yazdi-yargi-reformu-4-darbeyi-hakimler-mi-yapti/) and I pass onto another subject.
We live in a country where 3722 judges and prosecutors relocated after the day of the announcement of the judicial reform package which aims to bring geographical assurance for members of the judiciary.
The Constitutional Court (CC) is the last hope for judges and prosecutors who are concerned about dismissal at any time, other professional groups and ordinary citizens as a domestic remedy against a violation of right. There is no chance to apply the ECtHR without applying Constitutional Court. If the Constitutional Court does not eliminate the violation of rights or if it is considered to be an ineffective way then individuals may apply to the ECtHR. Interestingly, the first of those who applied to the CC in our country were the former members of the CC. Alparslan Altan, who was taken into custody on 16 July 2016 with the allegation of flagrante delicto and arrested by the criminal court of peace on 20 July, lodged an individual application with the CC on 07 September 2016. The CC ruled that there is no violation of rights and rejected the applications on the grounds that they were “manifestly ill-founded” on the application of Alparslan Altan and Erdal Tercan the other former member who experienced the same process. However, ECtHR in its judgment of 16 April 2019, about Alparslan Altan (App. No: 12778/17) held that the detention was unlawful and Article 5, paragraph 1 of the European Convention on Human Rights was infringed, and the Court awarded the applicant a sum of EUR 10,000 non-pecuniary damage. I evaluated the details of the subject in my article entitled “Initial Assessments on ECtHR’s Alparslan Altan/Turkey Judgment” (https://www.meridyenhaber.com/aihmin-alparslan-altanturkiye-karari-uzerine-ilk-degerlendirmeler-makale,44704.html) I translated the ECtHR’s / Alparslan Altan judgment into Turkish and this translation (https://hudoc.echr.coe.int/fre?i=001-194102#{%22itemid%22:[%22001-194102%22]}) was published on the ECtHR webpage. I strongly recommend to my readers to read these texts and I want to switch to another topic. However, I would like to state that I do not agree with the Constitutional Court and that I fully agree with the ECtHR’s judgment. I do not consider that the judgment of the ECtHR is sufficient. The most important point that I consider insufficient is that the ECtHR still considers the CC as an effective domestic remedy.
Unfortunately, the CC has disappointed me and many of my colleagues. The biggest disappointment was the dismissal of Alparslan Altan and Erdal Tercan on August 4, 2016, by a resolution of the General Assembly, by showing no legal reaction to the custody and detention of them which were taken without following the legal rights and the special procedures granted to them. When the CC dismissed its own members with a procedure not included in any legislation, it has paved the way for the dismissing tens of thousands of public officials from their profession with strange criteria such as institutional opinion and social environment research. The members who participated in the General Assembly of the CC have the responsibility of not only their colleagues they have dismissed from the profession but also the tens of thousands to be dismissed later on.
I consider that the CC is not an effective domestic remedy and it caused an increase of victimization of those who cannot express themselves in the Country. Because, before and after these developments, the CC showed by its numerous judgments some of which was and would be on the agenda of the international public opinion especially the ECtHR that it is not an effective domestic remedy.
I see the CC as an obstacle which causes a delay in lodging of ECtHR applications. Unfortunately, I saw one thing among the judgments that reinforce my opinion in the databank which can be accessed from the CC website. When I entered the web page to review the Alparslan Altan judgment on June 27, 2019, I saw some parenthetical statements saying that “that will be used for applications in the context of Parallel State Structure (PDY)”. The statements in question contain the phrase “manifestly ill-founded”. The result phrases were the same in almost every file except for the show applications that I mentioned. To summarize, there was no infringement decision or I could not see them except show individual decisions.
Because of the parenthetical expression and the results of the Court’s decisions I came to this conclusion that what the Court demonstrated was bias. However, instead of sharing this opinion immediately, I discussed the subject with many masters who are still working and who are dismissed in my opinion, not because of the FETÖ / PDY, but the judgments they gave, the candidates they supported in the elections of HSK and etc. The consensus was that the statements on the CC’s web pages would be understood as bias and were problematic in terms of the principle of “objective impartiality” (obligation to appear impartial) which the courts had to protect in all circumstances. The commentary of my master, who made the most moderate comment, was that this situation would give rise to the suspicion that the CC could finalize the applications with the influence of the previous judgment in applications similar to those of Alparslan Altan and this would be a violation of the principle of impartiality. The majority of my professional masters described the parenthetical expression as “scandal”.
When I looked at the site again, I saw similar notes classified according to occupational groups and intervention allegations and I could not see any infringement decisions except for show applications. When I looked at the Html code of the page, I saw that there were 37 different classifications. I came to this conclusion by taking into account that the same parenthetical note included in the 37 different intervention allegations and there were no infringement decisions except for show applications that the CC demonstrated bias.
As a lawyer, I have also some templates regarding defenses. There are a few paragraphs in my templates that I have prepared with reference to some judgments of the Court of Cassation for example, for the situation “where the assertion regarding ByLock usage is based solely on the operator record and the operator record contains technical errors”. But no lawyer prepare a petition only consisting of templates. A similar situation is often seen in high courts.
There are templates with different names that are circulated orally or in written among investigating judges and reporter judges. However, as I mentioned, these formulas are for specific events. Although they aim to ensure the unification of case law, it is not possible to talk about unification of case law specific to the organization. There could be the unification of case law for the abstract and general events and claims related to common situations. Within the CC, there may be persons in charge of “research-caselaw” (shortly called RECA) who classify the reference judgments and communicate them to the reporters verbally or on their internal networks.
Formulas referring to past judgments may be prepared for the various possibilities of the alleged membership of the Armed Terrorist Organization. However, I have never seen any which was prepared specifically for instance, for Kurdistan Workers’ Party (PKK) membership. Where there is no distinction for any other organization; the distinction for only PDY is not different from different classification of any human race. Law should be applied equally to all people regardless of what they are charged with. Because the use of templates is controversial enough and it has caused dozens of negative examples experienced by every lawyer, the use of classification and templates for a particular organization and occupational groups is a demonstration of bias in my opinion. The way it looks on the web page can be called as “scheduled judgment”, as I mentioned in my social media sharing.
Democracy is not just a ballot box. The control of Public opinion is extremely important in democracies. The public opinion can ask questions and convey criticism at any time and any grounds by paying close attention to style and procedure. The CC which should be the ultimate protective authority of these rights and freedom of expression can be criticized too. It can also be harshly criticized to draw the attention of public opinion.
I used this right on my social media account and expressed my thoughts and evaluations without hesitation and I criticized harshly. My evaluations were a synthesis of many interviews I had about 24 hours after my first encounter with the statements and they were supported by screenshots. My main objective was to raise the topic, to initiate a strong and qualified discussion and to draw the attention of public opinion about the stereotype judgments in the frame of the principle of objective impartiality.
My assessments about the bias of the CC have a broad repercussion. After my social media sharings, it was seen that the objective impartiality of TCC is highly controversial. People from almost all walks of life, legal scholars, politicians, artists, etc. think that the CC cannot decide impartially and independently. And they also evaluate the statements on the website of the CC as bias.
The CC closed the site access instead of making an explanation. After sharing the archive site, the site was reopened. I wish it wasn’t like this. This caused more questions. The following morning, the CC made an explanation on its social media account. The explanation is read exactly as:
“Some people shared their opinion on social media that the CC demonstrated bias, therefore the applications will be rejected based on the statement “that will be used for applications in the context of Parallel State Structure (PDY)”. This statement was added to the information form to classify for facilitating the examination of the individual applications of the persons who have been processed for alleged PDY connection and to facilitate the access to the judgments given on this issue.
The claim that the CC demonstrated bias is completely unrealistic. As a matter of fact, the same statement is given in the information form related to infringement decisions listed which belongs to the applicants who have been tried for the alleged PDY connection. It is possible to access these judgments and information forms from the databank of the Constitutional Court by using the information provided in the list.”
Following these statements, unfortunately, the applications that I described as show decisions were given as an example. In addition, the expression “to classify for facilitating the examination” was unfortunately problematic. To admit classification for an organization is not different from to admit classification for a human race. Another problematic issue is that there are 37 different classifications referring to the PYD and judgments are searched according to this classification in the database.
However, when we choose the statement “that will be used for applications in the context of Parallel State Structure (PDY)” in the context of the arrest of military personnel we face with 2 (two) judgments that say there is no infringement. But when we chose the same phrase in the context of the process of lawyers we can not reach any decision. There are other options about which there are no decisions. That why it is necessary to classification for judgments that have not been decided is another question mark and this situation reinforces the perception that the judgments of the CC about waiting trials are ready.
The good thing was that I had achieved my primary goal and that, besides the discussion of an important issue, the CC made a statement in a democratic manner and in legal parlance befitting its institutional maturity. The CC served as a model with the explanatory style in relation to a discussion on the agenda of the public opinion. After all, our aim is not to wear away our institutions.
Our aim is to contribute to the establishment of the rule of law with all universal principles, that is urgent, essential and continuous need such as bread and water. From this point of view, we can discuss some judgments of the CC, whether a template is used or not, and the disadvantages of the possibility of being used.
Having emphasized the need to re-consider the judgment of the CC regarding its members, I would like to state that I have examined dozens of the CC’s judgments at the weekend. In dozens of judgments, unfortunately, there were many repetitive sections that could be described as a stereotype. There was no infringement in the judgments that could not be described as a show decision. If necessary, these judgments may be discussed in more detail in the future, but there are some examples that need to be considered.
There are numerous judgments of the CC regarding the individual applications of judges and prosecutors who do not have the right to apply to the State of Emergency Commission. Although they do not have the right to apply to the State of Emergency Commission The CC directed them to the Commission and therefore rejected their applications illegally.
A prisoner gets no notification about the judgment regarding the continuation of his arrest for 2 months. In one case the decision of the court regarding objection to arrest was notified 6 months later. In the other case, the judgment regarding the continuation of arrest is notified 8 months later. The CC ruled that there was no violation in each application. The use of fundamental rights and freedoms of the applicants is not protected by the CC and it is timid in decision making.
There are also obvious material mistakes due to using the template. For example, as in Ahmet Kart (Second Division, Second Commission,29/12/2017, app no: 2017/12197), Zakir Tütüncü (Second Division, Second Commission, 09/03/2018, app no: 2017/21109), Ali Bulutyaran (First Division, Third Commission, 09/03/2018, app no: 2017/21109) judgments, Although these people detained before 15 July 2016, their applications evaluated as if they detained after 15 July and due to coup d’etat attempt. Actually, these kinds of judgments create suspicions about the accuracy of the individual examination process and good faith.
In a judgment about the journalist Hasan Taşar (First Division, Third Commission, 24 July 2018, app. no: 2017/37822) although the court of first instance didn’t give its verdict in the date of hearing, moreover the court dated the next hearing on 30-31 July 2018 upon request of defendants for preparing their defence, the CC decided as if the court of first instance sentenced him on 18 May 2018 and the reasons in this verdict were lawful.
As is in Zekeriya Yılmaz Judgment(Second Division, Third Commission, 27/07/2018, App. No:2017/2091) who is a member the Court of Cassation, although there wasn’t an allegation about the usage of bylock program, judgment talked about bylock as if he had used bylock. This decision contradicts the contents of the case file and supports the idea that there are copy-and-paste decisions.
Where there are false allegations in a judgment which is about a Judge of the Court of Cassation and this judgment is signed by members of the CC, then it is quite normal that ordinary citizens could worry.
As the defense lawyers, it is our duty to stress insistently, before the international courts, in particular, the ECtHR that the CC is not an effective domestic remedy anymore. Indeed, the UN Human Rights Committee in its İsmet Özçelik-Turgay Karaman/Turkey judgment (28.05.2019, com. no; 2980-2017) stated that the CC is not an effective domestic remedy.
It is certain that the members of the CC are experienced lawyers. They gave judgments in accordance with laws and their inmate convictions. When the members of the CC encounter and make eye contact with the wives or children of the 2 members they dismissed from the profession by the decision of the General Assembly while looking at the shop windows in a shopping mall they will return to their conscience. Of course, when they put their heads to the pillow they face with their conscience, possibly they face with their conscience every moment.
Who knows, maybe not the members themselves but one of their wives might have been encountered and chatted with the dismissed justices’ spouses or kids. Perhaps they are sad because the wife of the one of the dismissed judge had a severe illness and they could not visit her during the treatment process and perhaps they are planning a visit to ask for their blessing.
Members of the CC will come together and discuss what should be done to protect the rights of each ordinary citizen and to act in accordance with the principle of objective impartiality, instead of ruling show judgments. After all, aren’t these our common purpose? Our common purpose is to ensure the rule of law with its all universal principles. The CC should be hope for everyone, not an obstacle for people seeking their rights.
