The government's Constitutional Court plan: Could lead to consequences affecting relations with the Council of Europe

The legal regulation allowing for individual applications to the Constitutional Court (AYM) has moved to the center of debate following the Can Atalay ruling, after the Court of Cassation filed a criminal complaint against the AYM members who signed the decision. Seeking to restrict the powers of the AYM, the government is preparing to take steps to regulate the individual application system that caused the crisis.

Legal experts evaluating the discussions for DW with Alican Uludağ warn that if individual application powers are narrowed, the ECHR may no longer accept the AYM as an effective domestic legal remedy. This means that the number of files going to the ECHR could increase again.

The relevant part of Alican Uludağ's report is as follows:

Human rights law expert Attorney Kerem Altıparmak, who reminded that the individual application system was introduced at the time to prevent cases from going to the ECHR, warned about the consequences of the proposed changes in his assessment to DW Turkish.

Pointing out that the ECHR has jurisprudence stating that "a favorable decision for a person claiming a human rights violation is not enough on its own to remove their victim status. The decision must be implemented in a way that restores the previous state," Altıparmak explained this situation by saying that "awarding 5 million TL in compensation to someone who has received a life sentence, along with a finding of a rights violation, would not be sufficient."

According to Altıparmak, who pointed out that the individual application system has been in practice in Turkey for about 11 years, if its effects are restricted, the AYM will cease to be an effective domestic legal remedy for the ECHR, considering this jurisprudence.  

Thinking that the government might have a long-term intention regarding the Council of Europe in the ongoing crisis, Altıparmak stated that a dual crisis is approaching and said:

"They still have not released Osman Kavala. It has been 16 months since the violation decision was issued. The Committee of Ministers of the Council of Europe has been stalling, waiting to see if a decision would come from the AYM or the Court of Cassation. Now, if nothing comes out of it, the Council of Europe will do something. On the other hand, there is the ECHR's Yalçınkaya decision. There are 8,500 files waiting there as well. If the Yalçınkaya decision is not implemented, the number of files will exceed 20,000. Therefore, a major crisis is coming. Perhaps the government is calculating the strategy of blocking the ECHR by preempting the AYM."

Noting that there are already 25,000 files against Turkey at the ECHR, Altıparmak said, "If the AYM's barrier does not work, the ECHR cannot cope with 50,000-60,000 files coming from Turkey. These files will go directly to the ECHR. This situation will lead to serious consequences that will affect Turkey's relations with the Council of Europe."

THE AYM'S DECISION IS BINDING

Ankara University Faculty of Law lecturer Prof. Dr. Devrim Güngör, who is of the opinion that restricting the AYM's power of retrial and limiting rights violation decisions only to compensation would make the individual application completely dysfunctional, also pointed out that the ECHR does not only award compensation but also issues retrial decisions where appropriate. 

Explaining that decisions have emerged in practice that justify the criticisms of the AYM as a "super court of appeal," Güngör also criticized the Court of Cassation on this issue. Güngör said, "Ultimately, since the Court of Cassation also upheld many files without examining them meticulously as required, the AYM tried to fill this gap through the individual application path."

Finding the statement that "there cannot be a subordinate-superior relationship between courts" incorrect, Prof. Dr. Güngör noted that, on the contrary, there is a hierarchy between courts and that it is impossible for the Court of Cassation to resist the violation decisions given by the AYM in individual applications. Güngör stated, "Decisions made as a result of individual applications also bind the judiciary. It is impossible to resist this. Court decisions are implemented not because they are correct, but because they are binding. Failure to comply with this means nothing other than acting against the constitution."