—Basak Cali, Koç University Law School
It is well-known political science knowledge that domestic high courts strive for simultaneous sources of legitimacy. On the one hand, courts seek political legitimacy from governing political elites. On the other they seek legal legitimacy from lower rank domestic courts, other high courts, lawyers and domestic the judicial community in general. The globalization of law has brought in newer audiences from which high courts seek further legal legitimacy. Domestic high courts are viewed as belonging to a ‘global community of courts’ and, in return, seek approval and recognition from other countries’ high courts as well as from supranational and international courts. This multiplication of audiences is nowhere more pronounced than in the case of domestic human rights adjudication in Europe. The European Court of Human Rights casts a long shadow over domestic high courts with its robust case-law on rights interpretation. It is not always easy to please multiple audiences, who, at times, have conflicting legal and political priorities and stakes in rights adjudication. Domestic high courts are on a tight rope seeking to balance the competing expectations of their multiple audiences. The more divergent the audience expectations the higher the tight rope is drawn.
The Turkish Constitutional Court (TCC) walks on a particularly high tight rope. With the introduction of the right to individual petition on September 23rd 2012, the TCC is mandated to adjudicate constitutional rights claims that are within the scope the European Convention of Human Rights. Turkey’s poor record in Strasbourg is no secret. According to Council of Europe data, 98 percent of admissible cases before Turkey end up with a judgment of violation. Displaying an awareness of this, the legislation that created the right to individual petition states in its preamble that the purpose of this legislation is ‘to decrease the number of cases going to Strasbourg.’ There are over 1,700 Strasbourg cases that await implementation. A significant number of these show that the Turkish judiciary, including its other high courts, have been unable to act as an early prevention mechanism in offering a remedy to rights violations brought before them by the lower courts.
Will the TCC be the beacon of effective human rights protections in Turkey through offering effective remedies to individuals and signalling Strasbourg-proof rights interpretation to other high courts, lower courts, the executive and Parliament? The expectations are high. The European Court of Human Rights has already indicated that it will not accept any individual applications before they exhaust the new remedy before the TCC.
The Balbay case: Foregrounding domestic legitimacy
The high-profile case of Mustafa Balbay is the first before the TCC concerning an imprisoned journalist (and, subsequently, Member of Parliament) who was arrested as part of the alleged Ergenekon plot to topple the government. Balbay had been under pretrial detention for four years and 277 days. The case before the TCC involved the applicant claiming that his rights to freedom of expression, right to fair trial and freedom from arbitrary detention had been violated due to his arrest, prosecution and detention under counter-terrorism legislation. The applicant, who was elected as a member of parliament in 2011, also argued that his rights to stand for election had been violated due to his inability to serve as a member of parliament due to his pre-trial detention. The respondent, the Ministry of Justice, argued that evidence regarding Balbay (primarily his journalistic data) showed that he had been a member of Ergenekon – an clandestine, ultra-nationalist organisation – and that between 2000 and 2005 he was involved in a plot to topple the democratic government of Turkey. There is much vagueness about this organisation. Some political and legal commentators have been unsure about the existence of this organisation, while others dispute its reach and activities.
In response to the claims of the applicant and the responses from the state authorities, the Constitutional Court did two things. First, it declared the applicant’s complaints with regard to the violation of his right to freedom of expression and the right to fair trial inadmissible with a single sentence indicating that the matter is subject to appeal before the Court of Cassation. Second, it spent a good deal of time discussing the rights of the applicant as an elected MP between 2011-2013 and decided that the lower courts did not strike the right balance between the need to detain suspects and this suspect’s rights to represent his voters in Parliament, thus creating sui generis protection for parliamentarians from pretrial detention. On the day that the judgment was communicated to the lower court in Istanbul, the lower court decided to release Balbay as an individual measure to comply with the TCC judgment.
Freedom of expression, protection of journalists and journalistic resources: A missed obiter dicta opportunity
The release of Balbay was praised both by the CHP, the main opposition party of which Balbay is a member, and by members of the ruling AKP. Balbay was sworn in as a member of parliament the day after he was released. This despite the fact that, should the Court of Cassation uphold the lower court’s decision, Balbay will return to prison to serve his thirty six years and six months prison sentence (or at least three fourths of it according to the current sentencing law).
The decision further enabled the TCC to maintain an amicable relationship with the Criminal Court who delivered the sentence and the Court of Cassation where the case is currently under appeal. It did so by avoiding any discussion with regard to the freedom of expression and the right to fair trial claims of the applicant, which lie at the heart of the the case against Balbay, the journalist.
The TCC, therefore, struck a balance by pleasing both its political audience and its fellow courts in Turkey.
What is missing in this overall story? Since 2010, Turkey holds the largest number of imprisoned journalists in the world. The case of the journalist locked up for four years and 277 days in pre-trial detention presented a seminal opportunity for the TCC to clarify rights standards, stand up for journalistic freedom and signal its expectations from fellow domestic courts regarding criminal cases concerning journalists. Furthermore, the TCC did not need to prejudge the outcome of the ongoing appeal when so doing. However, as the guardian of European Convention Rights alongside the Constitution, it arguably also had a duty to show that it values freedom of expression as a central pillar of Turkish democratic society, and to demand that fellow high courts do the same.
On the contrary, the TCC played a safe and conservative domestic game in the Balbay case. It pleased its political audiences with the outcome of the case. It pleased other courts with the judicial restraint and interpretive silence it imposed on itself. The international judicial audience on the other hand should see this case as being ‘much ado about not much’ in terms of obiter dicta. It will need to wait longer for a TCC case that will do credit to the international judicial legitimacy of the TCC and make it into the footnotes of our global knowledge of law.
Suggested Citation: Basak Cali, On The Tight Rope: The Turkish Constitutional Court and the Balbay Case, Int’l J. Const. L. Blog, Jan. 18, 2014, available at: http://www.iconnectblog.com/2014/01/on-the-tight-rope-the-turkish-constitutional-court-and-the-balbay-case/