Editor’s Note: Today we publish the 2016 Report on Turkish constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
–Serkan Köybaşı, Assistant Professor of Constitutional Law at Bahçeşehir University, Istanbul
At the beginning of this century, Turkey was a candidate for becoming a member of the European Union. In the name of harmonization, in 2001 and 2004, many laws and some important parts of the 1982 Constitution, which was written and enacted after the military intervention, were amended, changed or annulled.[i] The AKP (Adalet ve Kalkınma Partisi – Justice and Development Party), a brand-new party which has emerged from the ashes of the Islamic-rooted RP (Refah Partisi – Welfare Party), took power between these two important amendments. They had, in the beginning, an agenda which pretended to combine on the one hand a modern, liberal Islam which is respectful of human rights and democracy. On the other hand, they followed an economic policy towards modernization and opening to the global economy. Under the charismatic leadership of Recep Tayyip Erdoğan, the party followed a “Muslim democratic” agenda similar to its Christian counterparts in Europe until 2008. But since then, this agenda’s “democratic” part has been gradually forgotten or ignored, and the AKP became a more centralized and authoritarian government. The Gezi uprising in May-June of 2013 against the authoritarian politics of the government; the judicial operations against some ministers and their sons for corruption allegations; which are described as a coup of the Fethullah Gülen Terror Organization (once an ally) by the AKP Government, in December of the same year; the temporary loss of power in the general elections of June 2015 and, as a result, the collapse of peace talks with the Kurds in 2015 strengthened governmental oppression in Turkey. 2016, especially after the failed coup attempt[ii] in July, was a year shaped by the extended power of the executive organs and the political split. Of course, the Constitutional Court of Turkey has also been affected by this extension and split.
The influence of the president on the Constitutional Court has always been a problem in Turkey. The Constitution of 1982, which created a more powerful presidency than in a normal parliamentarian system, accepted this organ as a trustable, independent, impartial and “supra-political” referee and gave the president the power to appoint, after some filtrations, all the constitutional judges. But the reality has not been in conformity with the theory and presidents’ choices have always been criticized for being politically motivated instead of being made according to judicial competences and merits. This critique is naturally valid also for the presidency of Erdoğan.
II. The Constitution and the Court
The 1961 Constitution established the Constitutional Court of Turkey, which started to function in 1962. Although that Constitution was a product of an anti-democratic military intervention, the Court was modeled on the European constitutional justice practice as a response to the anti-democratic executive practices of unstoppable misuse of governmental powers in the 1950-1960 period. Like most European Constitutional Courts, it exercises a posteriori control over the conformity of laws to the Constitution and, since 2012, on constitutional complaints brought by individuals who argue that state authorities violated one or several of their rights written in the Constitution and the European Convention on Human Rights.[iii]
The power to review the constitutionality of laws was endowed solely to the Constitutional Court by the 1961 Constitution. In the beginning, there were no limitations to this review, including constitutional amendments. Therefore the Court accepted that it had the right to review the substantial and formal constitutionality of constitutional amendments. But after the military note to the government on 12 March 1971, the right to substantial review by the Court was banned. During the 1970s, the Court bypassed this ban with the aim of protecting unamendable articles by saying that “an amendment which amends an unamendable article cannot be proposed, and this is a formal impossibility. I analyze the substance to understand if there is such an impossibility but, if yes, I annul the amendment due to the formal unconstitutionality.” The response of the constituent power of the Constitution of 1982 to this jurisprudence was to describe in detail what a “formal review of constitutional amendments” is. The Court bowed to this limitation until 2008, the year when it annulled the use of headscarves by female students in universities. That decision made the government fly into a fury, and the composition, powers and structure of the Court were changed considerably by a constitutional referendum in 2010. The number of judges increased from 11 to 17, and the President had the chance to appoint several judges close to him to the Court. Since then, the controversy between the Court and the executive branches of the country has decreased at the expense of the independence of the Court.
In the 1982 Constitution, the Constitutional Court, being one of the highest constitutional organs, was on a par with the Grand National Assembly and the executive and placed as the first judicial organ among “the High Courts”. Articles 146-153 of the Constitution are dedicated to the composition, duties, working methods of the Constitutional Court and other issues concerning constitutional review. A Law on Establishment and Rules of Procedures of the Constitutional Court (No. 6216, 30 March 2011), spelling out the provisions of the Constitution, stipulates its organization, independence, proceedings, disciplinary infractions and disciplinary proceedings.
III. Constitutional Controversies
2016 was a stressful year for the Turkish Constitutional Court. Especially after the failed military putsch on July 15th, the burden on the shoulders of the Court to be the protector of rights and freedoms and the rule of law has created a weight on it. We should say that during and after the turmoil of the failed military intervention, the Court did not pass the test of being a trustworthy institution of a real democracy. One of the reasons for this failure is, of course, the removal of two members of the Court by its decision.v In the aftermath of the failed coup, the Court announced that members Alparslan Altan and Erdal Ercan were removed from office on the grounds of their connection with the terrorist organization FETÖ/PDY (“Fethullah Gülen” Terror Organization/Parallel State Structure), which was – allegedly – behind the coup.vi One could justify removing them if linked to the anti-democratic movement, but this decision had no grounds other than a police investigation on these two members. In the lack of a criminal court’s final decision, that removal itself meant the principle of presumption of innocence was violated by the highest court of Turkey, which has the duty, besides analyzing the constitutionality of laws, to protect the main principles of human rights and democracy.
Although it was a challenging year, the Court gave some important decisions too. You can find the Turkish Constitutional Court’s action for annulment decisions below in the first part. And in the second part, you can read an important decision the Court made on a constitutional complaint in which a system was created that has diminished the number of Turkish cases in front of the European Court of Human Rights since September 2012. The quality of the decisions of the Court on constitutional complaints was developing until this year, but it is not so anymore, especially after the failed coup attempt. Unfortunately, neither the European Court of Human Rights nor other European institutions backed human rights as powerfully as they should have against the Turkish Government due to the fragile balance between these two sides under the circumstances of the failed coup and the emerging problem of illegal immigrants escaping from Syria’s civil war.
IV. Major Cases
A. Applications for Annulments
1. Judgment on application related to law on full-day employment
The provisions of the law which amends Law no. 2547 and Law no. 2955 and which prohibits civil servants and members of the Turkish Armed Forces from establishing their own office, workplace and clinic to practice their profession or work self-employed or from working at a workplace that is owned by real persons, private law legal entities or professional organizations with public office status, or foundation higher education institutionsvii were brought to the Constitutional Court by the main opposition party, CHP (Cumhuriyet Halk Partisi – Republican People’s Party), on the grounds of the right to life and state’s obligation to ensure that everyone leads a healthy life physically and mentally as secured under Constitution. The law was criticized especially by Faculty of Medicine members with their own private surgery practices. In Turkey, it is common for Faculty of Medicine members to have private practices and attract some of their patients who do not want to be treated in university campuses with others and who can pay for their access to private surgery. But of course, it creates some extra burdens on them, and it is sometimes heard that some of the members ignore their faculty duties due to their workloads.
The Constitutional Court declined to annul the provisions above by saying that teaching staff must primarily carry out the duties of educating and carrying out applied studies at undergraduate, graduate and postgraduate levels based on secondary education, conducting scientific research, issuing publications and training and acting as consultants to students. The Court emphasized that the legislative organ has the right and power to regulate and introduce certain limitations on the working conditions of teaching staff by taking their titles and status into consideration, intending to provide better education and health services at universities.
Meanwhile, the provisions of the same law which prescribe that doctors, dentists or the instructors at medical schools practicing their profession or working self-employed under the scope of working restrictions shall terminate such employment within three months after the publishing of the law in the Official Gazette, and those who fail to do so will be deemed to have resigned and will be discharged from the university, were annulled by the Constitutional Court on the grounds of the principle of legal security and certainty. The Court stated that full-time employed teaching staff, due to their convictions and expectations of their self-occupation after such judicial decisions, have planned to work freely outside universities and they have planned their economic and social lives relying on these circumstances. The decision also stated that it contradicts equity and justice to force teaching staff to terminate the activities and engagements they had planned relying on the expectations and convictions of the continuation of legal status. Therefore, the Court concluded that it was not constitutional to impose on them such heavy sanctions as being deemed resigned and discharged from the university, and annulled only that part of the amending law.
2. Judgment on application related to the expropriation of intellectual and artistic works by issuing a Council of Ministers’ decree
The first paragraph of Article 47 of Law on Intellectual and Artistic Works is related to the expropriation of those works, which are considered important for the culture of the country. Before the amendment, there were two conditions to expropriate intellectual and artistic works: exhaustion of the examples of the work and lack of will of the right holders to republish it. After it, the new conditions for the expropriation were the death of the author and the payment of an appropriate fee to the right holders before the expiry of the term of protection and a Council of Ministers’ decree. In other words, the amendment allowed the government to issue a decree expropriating the rights of intellectual and artistic works that can be still used or sold by the heirs of their creators.
The main opposition party alleged that there is no public interest in the expropriation of works, which are available in the market and cannot be claimed unavailable, through the payment of an appropriate fee to be determined by a single party and that such a practice would infringe on the essence of the right to property. The petition also alleged that a monopolized supply of intellectual and artistic works, which can be accessed by the public without any obstacle, through methods and to the extent prescribed by the state contradicts freedom of expression and dissemination of thought and the freedom to access thought and information.
The Court accepted that the expropriation of authors’ rights to intellectual and artistic works aimed to ensure the continued public supply of the works, which are deemed important for the culture of the country. But in the decision, it was also stated that the expropriation of rights on works which can be accessed by the public through heir transactions, thereby depriving the owner of his/her property, does not constitute a necessary means to achieve that aim. The Court also mentioned that the criterion “being important for the culture of the country” is vague and can be misused.
Regarding freedom of expression, the Court noted that the discretion to determine the form, means and extent of publication of an intellectual and artistic work shall belong to the author’s heirs after his/her death and that this is an inseparable aspect of the right to disseminate thoughts and opinions, which are an essential element of freedom of expression.
Consequently, the Constitutional Court decided that the amendment was contradictory to the right to property, which is regulated by Article 35 of the Constitution, and constituted a disproportionate interference to the freedom of expression and freedom of science and arts. The Court annulled the amendment.
3. Judgment on application related to the decree laws issued under the state of emergency
Five days after the failed putsch, on 20 July 2016, President Erdoğan and the Council of Ministers declared a nationwide state of emergency. Article 148 of the Constitution explicitly states that decree laws issued during a state of emergency shall not be brought before the Constitutional Court alleging their unconstitutionality.viii It seems that this regulation gives the executive organ an uncontrollable and limitless power during the state of emergency.
The Constitutional Court of Turkey, in 1991,ix decided that the state of emergency is regulated by the Constitution, which means that this is a judicial measure and, consequently, it cannot be out of the scope of judicial scrutiny. Therefore, the Court bypassed the explicit ban of Article 148 and declared, in several cases, that it has the right to determine whether the regulations made under the title of “decree laws issued under the state of emergency” are indeed in the nature of emergency decree law as specified in the Constitution and exempted from constitutionality review. Thus, the Court examined the constitutionality of those regulations that are not considered to be of such nature. That jurisprudence determined three conditions to bypass the ban and start to do that examination: 1) The decree law goes beyond to set a temporary measure as the nature of the state of emergency obliges. 2) It surpasses the territory of the state of emergency. 3) It is not proportional to the reasons and aims of the declared state of emergency. In this case, the Court accepted that this would mean a misuse of the power to issue decree laws during a state of emergency and reviewed their constitutionality on the basis that they were in substance ordinary decree laws. Consequently, it had accepted the requests brought by the main opposition party before it and annulled some state of emergency decree laws.
Some of the decree laws issued after the declaration of a state of emergency in 2016 contained measures related to the structure of some institutions and organizations, changes in ordinary laws that would continue to have effects after the termination of the state of emergency, the sacking name-by-name of thousands of public workers and academics, and the closure of some leftist radio and television stations and newspapers. Therefore, CHP, the main opposition party, argued that these kinds of provisions of decree laws cannot be regarded as decree laws issued in respect of matters necessitated by the state of emergency and should be subject to judicial review. It was accordingly maintained in the petition that the mentioned provisions were in breach of the preamble and some articles of the Constitution.
The Court, in its actual judgment, accepted with no doubt that it had the discretion to qualify the legal characterization of a rule brought before it as it did in the 1990s but continued by saying that the qualification made must not result in going beyond the framework drawn by the Constitution. The Constitutional Court judges who thought that the previous approach rendered the prohibition of constitutional review of emergency decree laws as to form and substance set out in Article 148 of the Constitution completely meaningless overruled their jurisprudence. For this purpose, they made a very positivist interpretation of the Constitution: “Having regard to the wording of Article 148 of the Constitution, the purpose of constitution-maker and the relevant legislation documents, it is clear that decree laws issued under a state of emergency cannot, under any name, be subject to constitutionality review”. So, the Court declined to proceed on the examination of the substance of the impugned provisions included in the decree laws issued under the state of emergency declared after the failed coup attempt of the 15th of July and dismissed the request for the annulment of them for lack of jurisdiction.[iv]
B. Constitutional Complaints
1. Judgment on the right to liberty and security of person, and freedom of expression and the press in Erdem Gül and Can Dündar application
Some trucks belonging to the secret security service of Turkey (MIT – Millî İstihbarat Teşkilatı) which were carrying weapons had been stopped by gendarmerie in Adana (South of Turkey, close to the Syrian border) on 19 January 2014. A nationalist newspaper named Aydınlık, which is followed by a relatively small extremist group, in its issue on 21 January 2014, published an article and a photograph related to the occurrence. The incidents related to the stopping and searching of these trucks and their contents and the destination of their freight were a matter of debate by the public for a long period.
Sixteen months later, just ten days before the general elections on 7 June 2015, Can Dündar, the director-general of a well-known and prestigious newspaper close to CHP named Cumhuriyet (The Republic), published photographs and information related to the weapons and ammunitions found in the trucks. The same day, on 29 May 2015, the Chief Public Prosecutor’s Office made a press statement and announced that a prosecution had been initiated on the charges of “providing documents regarding the security of the state, political and military espionage, unlawfully making confidential information public and making propaganda of a terrorist organization”. Then, on 1 June 2016, President Erdoğan, during a televised program in TRT (state radio-television), said “I ordered my lawyer. The person who made this news a special report, I think, he will pay a hard price for it”. On 12 June 2016, the Ankara representative of Cumhuriyet prepared and published another news article on the same incident.
In the general election, no party won a majority in Parliament and negotiations to form a coalition collapsed. A new general election was organized on the 1st of November and that time AKP, which was in power since 2002, obtained more than half of the seats in Turkish Parliament. After the formation of the government and approximately six months after the press statement of the Chief Public Prosecutor, the applicants were detained on charges of “deliberate support for organizational objectives of an armed terrorist organization FETÖ/PDY”.
Can Dündar and Erdem Gül claimed that there was no justification for their detention, which was based only on the news that they published, and that no evidence except for the news articles was adduced against them. Therefore, they alleged that they were unlawfully deprived of their liberty, and their rights to liberty and security and freedom of expression and the press were violated.
The Court, based on the fact that similar news was published with photos approximately sixteen months earlier in another newspaper, stated that the grounds of the detention measure did not specify whether the publication of the similar news later by the applicants continued to pose a threat to national security. In this context, the Court said, the facts of the case and the grounds of the decision on detention did not sufficiently explain why it was “necessary” to implement the detention measure on the applicants.
Apropos of the freedom of expression and press, the Court mentioned the Nedim Şener v. Turkey Case of the ECHR and stated considering that, the only fact adduced as the basis for crimes the applicants were charged with was the publishing of the relevant news articles. The Court concluded that such a severe measure as detention, which did not meet the criteria of lawfulness, could not be considered proportionate and necessary in a democratic society.
Consequently, the Court ruled that the applicants’ rights had been violated and rendered the release of the journalists. Presently, Can Dündar lives in exile in Germany and manages the news website ozguruz.org (We are free).
In 2016, the imbalance between the legislative, executive and judicial powers of Turkey became more obvious and clear. The executive’s domination, by the aid of the charismatic leadership of President Recep Tayyip Erdoğan, gained some more positions against the two other powers. The Constitutional Court of Turkey, which is the highest judicial organ that should be the supervisor of this balance, was also affected by this repositioning. It is clear that the Court, especially after the declaration of the state of emergency, was not be courageous enough to either annul the laws approved by the legislative organ dominated by the AKP Government or to correct the violations of human rights of the citizens by the executive organ. Particularly through the rejection of the control of the constitutionality of the decree laws issued during the state of emergency, the Court created an unstoppable executive organ. The Court left the fundamental human rights and supremacy of the constitution unprotected and, ipso facto, rejected its raison d’être. The only hope that one who believes in democracy and the rule of law can have in Turkey, for now, is the end of the state of emergency and some normalization shortly.
[i] To have an idea about how important these changes were, please look at this article by Prof. Levent Gönenç: http://dergiler.ankara.edu.tr/dergiler/64/1536/16861.pdf.
[ii] Main opposition party CHP (Cumhuriyet Halk Partisi – Republican People’s Party) and some other groups think that it’s a coup “controlled” by the government to create an authoritarian regime after the failure.
[iii] This is an “and”, not “or”.
[iv] http://www.anayasa.gov.tr/icsayfalar/duyurular/detay/50.html (In Turkish)
[v] It is still not proved by a court decision that there is such a terrorist organization and that that organization acted in July 15th by using their members in the Turkish military. But since years, it was publicly well known that the government was supported by religious cleric Fethullah Gülen’s movement by human resources and financially. The number of more than 100.000 public workers who have been fired from the public sector in the aftermath of the coup shows this link clearly.
[vi] In Turkey, foundations are able to found higher education institutions like universities but they are not allowed to aim to have benefited from it. So, there is no “private university” in Turkey, but instead only “foundation universities”.
[vii] “…decree laws issued during a state of emergency, martial law or in time of war cannot be brought before the Constitutional Court alleging their unconstitutionality as to form or substance…”
[viii] Decisions No: E.1990/25, K.1991/1; No: E.1991/6, K.1991/20; No: E.1992/30, K.1992/36 and No: E. 2003/28, K.2003/42.
[ix] For a critical view of this decision please loot at the article (two parts) of Dr. Ali Acar published in ICONnect Blog: 1) http://www.iconnectblog.com/2017/03/the-hamartia-of-the-constitutional-court-of-turkey-part-i/ and 2) http://www.iconnectblog.com/2017/04/the-hamartia-of-the-constitutional-court-of-turkey-part-ii