THE CONSTITUTIONAL COURT OF THE REPUBLIC OF TURKEY IN EUROPEAN COMMISSION’S “TURKEY 2014 PROGRESS REPORT”

2. POLITICAL CRITERIA AND ENHANCED POLITICAL DIALOGUE

2.1. Democracy and the rule of law

The Constitutional Court ruled that the right to be elected had been violated in the case of six MPs-elect detained pending trial. They were released and took their oath in parliament. Shortcomings in anti-terror legislation and restrictive interpretation of Article 14 of the Constitution continued to pose a risk to MPs’ freedom of expression. (p. 7)

In October, the Sledgehammer trial ended, with the Court of Cassation approving the conviction of 237 defendants for attempting to overthrow the government in 2003. However, in June, the Constitutional Court ruled that the defendants’ rights to a fair trial had been violated and 99 defendants were subsequently released. The judgment of the Court opens the way for a re-trial. (p.12)

In April the Istanbul 13th Serious Crimes Court issued a reasoned decision in the Ergenekon case. However, the former chief of staff, sentenced to life imprisonment, had been released in March by decision of the Constitutional Court, on the grounds that he had been ‘unlawfully deprived of his freedom’. As a result of the court’s decision, 52 people convicted in the Ergenekon case were released. (p.12)

The Constitutional Court rulings highlighted the mishandling of the investigations and subsequent trials in the Ergenekon and Sledgehammer cases. The opportunity to establish the veracity of the initial serious allegations has been missed. (p.12)

The amendments to the Law on High Council of Judges and Prosecutors and the subsequent dismissal of staff and numerous reassignments of judges and prosecutors raised serious concerns over the independence and impartiality of the judiciary and the separation of powers.

The Constitutional Court continued to receive individual applications. The Court ruled on number important cases, such as YouTube and Twitter bans, as well as Hrant Dink’s murder case. These decisions showed the importance of the individual application procedure introduced with the 2010 constitutional amendments. The court also overturned the number of amendments to the Law on the High Council of Judges and Prosecutors. These decisions highlighted the resilience of the Turkish constitutional system. (p.13)

2.2. Human rights and the protection of minorities

Positive steps were taken with the adoption of the Action Plan on Violations of the Human Rights and a reduction in the length of pre-trial detention, following which many journalists were released from custody. However, legislation further limiting freedom of expression, including on the Internet, was adopted and the effective exercise of this freedom, and press freedom, was restricted in practice. The blanket bans on YouTube and Twitter raised serious concern, even if later annulled by the Constitutional Court. Intimidating statements by politicians and cases launched against critical journalists, combined with the ownership structure of the media sector, led to widespread self-censorship by media owners and journalists, as well as sacking of journalists. (p.15)

In January, the General Staff Military Prosecutor’s Office announced a decision not to prosecute in the case of the 2011 killing of 34 civilians by the military at Uludere/Roboski, on the grounds that the officers involved in the air operation were not at fault. The victims’ families have launched an individual application with the Constitutional Court. (p.17)

4.23. Chapter 23: Judiciary and fundamental rights

The Turkish Constitutional Court found a number of provisions unconstitutional and gave the legislature a deadline of three months to adopt revised legislation. Among these provisions were those laying staff off; however, the decision of the Court had no retroactive effect. As a result, many members of staff laid off were not re-hired and newly appointed staff remained in place. In June, parliament adopted legislation to implement the Constitutional Court’s decision. This legislation brought back into force the legal provisions introduced in 2010, restoring the role of the plenary. However, this includes the reintroduction of a plural voting system whereby every judge and prosecutor has the right to cast as many votes as the number of Council members to be elected. In this system, candidates who receive the majority of votes could take all seats, exclude those candidates supported by other voters and prevent a more pluralistic High Council that would better represent the Turkish judiciary as a whole. The participation and the role of the executive in the Council should be reduced. The judicial review should be extended to all Council’s decisions which potentially interfere with the independence or impartiality or individual rights of judges and prosecutors. (p. 43-44)

The Constitutional Court continued to receive individual applications. The court’s human resources increased. As of July 2014 the number of applications made to the court was 22 677. The court decided in 9 683 cases, while rejected or found inadmissible 149 cases; work continued on 12845 cases. In its judgment on the Twitter access ban, the court argued that the domestic remedy had proved to be ineffective — referring to the failure of the authorities to implement a court decision in good time. In May, the court ruled that the YouTube access ban, imposed in March without a court decision, violated the rights of users and freedom of expression. In July the court found that the investigation of the Hrant Dink’s murder had not been conducted in an effective manner and that the authorities failed to properly inform the family about conduct of the case. Other decisions safeguarded the right to liberty and security and the right to a fair trial and opened the way for re-trials in a number of high-profile cases. These decisions showed the importance of the 2010 introduction of the individual application procedure and highlighted the resilience of the Turkish constitutional system. (p. 44)

In December, in the Ergenekon case, the Constitutional Court ruled that the detention of two of the suspects had exceeded a reasonable amount of time and that their right to be elected as MPs had been violated. They were released from prison and entered parliament. Similar decisions followed in other cases; as a result, all MPs-elect were released from prison. (p. 45)

In May the Constitutional Court found for the first time that hate speech on the ground of sexual orientation constituted a criminal offence. (p. 51)

In March, the TIB banned access to Twitter and YouTube. The Turkish Constitutional Court found that both of these bans violated freedoms guaranteed by the country’s constitution. This led the TIB to restore access to both Twitter and YouTube. The Constitutional Court also found that the legal basis of the scope and boundaries of the authority vested on TIB to impose an access ban does not satisfy the requirement that the law should be comprehensible, clear and accurate, which is the minimum condition for the principle of legality. In October 2014, the Constitutional Court annulled provisions which had been introduced in September in the law on the internet and which, notably, had extended TIB’s powers regarding blocking of websites and retention of data. (p. 51-52)

No amendments were made to Turkish legislation that forbids a woman from exclusively using her maiden name after marriage, despite an ECtHR ruling to this effect. In January, the Constitutional Court also ruled that married women could exclusively use their maiden name. (p. 56)

In July, the Constitutional Court ruled in the case concerning Hrant Dink’s murder that the investigation had not been conducted in effective manner and that the authorities failed to properly inform the family about conduct of the case (see above — Judiciary). (p. 60)

The Constitutional Court continued to apply the individual application procedure. It took a number of key decisions strengthening the protection of fundamental rights in Turkey. (p. 62)

4.27. Chapter 27: Environment and climate change

In October 2013, Turkey amended again its horizontal legislation on the environment in a way that was not consistent with the requirements of the Environmental Impact Assessment (EIA) Directive, by introducing additional exemptions to the EIA. Several large infrastructure projects are excluded from national EIA procedures, such as micro hydropower plants and the third bridge on the Bosphorus. The Constitutional Court annulled two amendments introducing exemptions to investments from environmental legislation which were not in line with the acquis. (p. 68)

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