Turkey: Free expression cases trigger constitutional crisis

In January 2018, lower courts in Turkey have defied a ruling of the Constitutional Court in the cases of two detained journalists, and one journalist who was recently released. The Constitutional Court found the detention of the journalists to be a violation of their rights and called upon the lower courts to remedy this, effectively ordering for their release. The lower courts have refused to do so, despite being bound by the Constitution to follow decisions of the Constitutional Court.

The decision is deeply concerning, raising concerns about the rule of law in Turkey. In a context where there are at least 153 journalists and media workers imprisoned, and a number of cases pending before the European Court of Human Rights, this reinforces concerns that the Turkish legal system is unable to guarantee the protection of rights domestically.

The cases of Şahin Alpay, Mehmet Altan and Turhan Günay

On 11 January, Turkey's Constitutional Court reviewed individual applications from detained journalists Şahin Alpay and Mehmet Altan, requesting their release on the grounds that their pre-trial detention is arbitrary and violates their rights to freedom of expression. Both men have been in jail for over a year in separate cases, on numerous charges, including "attempting to overthrow the Constitutional Order through violence and force", in relation to the coup attempt in July 2016. The Constitutional Court also reviewed the case of Turhan Günay, who was recently released but remains on trial for "aiding a terrorist organisation".

ARTICLE 19 has monitored the trials of all three men, along with P24, whose lawyers represent Altan and Alpay pro bono. All three cases have raised serious concerns in terms of the right to a fair trial. The Bar Human Rights Committee has also raised concerns regarding the trial of Mehmet Altan, and his brother Ahmet Altan.

ARTICLE 19 has assessed the indictments of Şahin Alpay and Mehmet Altan and found the cases against them to be groundless. The provisions, under which the two men are charged do not comply with international and European standards on freedom of expression, amounting to unlawful restrictions on the exercise of the right to freedom of expression. Moreover, having reviewed the indictments, we believe the charges brought against the defendants are unfounded and amount to a politically motivated campaign of harassment against journalists, contrary to Article 18 in conjunction with Article 10 of the European Convention on Human Rights.

Decision of the Constitutional Court

The Constitutional Court found that, based on the available evidence, Mehmet Altan's, Şahin Alpay's and Turhan Günay's "rights to personal liberty and security", protected by Article 19 of the Constitution, and their "rights to freedom of expression and freedom of press," (Articles 26 and 27), had been violated. They called upon the lower courts to remedy this in their decisions, effectively compelling the courts to release Altan and Alpay.

On the same day as the ruling, the Istanbul 13th and 26th High Criminal Courts, where Alpay and Altan are standing trial respectively, refused to implement the Constitutional Court's judgment on grounds that the reasoned judgments had not been communicated.

Following appeals submitted by the defendants' lawyers, and the publication by the Constitutional Court of the reasoned judgments, the lower courts in both cases have since ruled that they will not implement the ruling, alleging that the Constitutional Court had "usurped its authority" and "overstepped its legal boundaries" by examining the evidence in the case, which they argued is the role of the lower courts.

However, the Constitutional Court had to examine the available evidence in order to determine if there had been a violation. The lower courts, which are required to review the pre-verdict detention of all prisoners monthly, had justified the continued detention of both Alpay and Altan on the grounds that there was strong evidence against them. The Constitutional Court's ruling that there is not sufficient evidence for continued detention implied that both journalists should be acquitted since the ruling has been issued at a late stage in the trials where there is no more evidence to be presented.

In some jurisdictions lower courts are not required by law to implement the decisions of higher courts. However, this is not the case in Turkey: Article 153 of Turkey's constitution states that lower courts must implement Constitutional Court rulings. The non-implementation of this ruling therefore amounts to a constitutional crisis.

The lower courts have also rejected lawyers' arguments that the rulings should be considered as "example rulings" to be applied to the other journalists detained in the same three trials.

Implications for journalists' cases at the European Court of Human Rights

Domestic remedies for journalists held in pre-trial detention in Turkey have been exhausted. Şahin Alpay, Mehmet Altan and Turhan Günay, along with several other journalists, have pending applications before the European Court of Human Rights. Their applications argued that the Constitutional Court is not an effective remedy given that it had not ruled on any cases since the coup attempt. The non-implementation of its first ruling in cases of journalists for a year and a half, strengthens the argument that domestic remedies for rights violations are not effective in Turkey.