Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ? - 136

SCHNUTZ RUDOLF DÜRR

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to the judgment of the Constitutional Court of 4 August 2016 pointing
out that for the dismissal no evidence was based.
In its opinion on the draft Constitution 62 that entered into force
following the recent elections, the Venice Commission found that the
changes of the composition of the council for judges and prosecutors will
give the executive more leverage over appointments to the Constitutional
Court.
In June 2017, the Constitutional Court adopted a welcome pilot case63
in which it established four principles to guide it in future coup cases
(non-derogable rights cannot be restricted; international obligations of
Turkey must be respected; interference into rights must be required in the
situation; the interference must be proportionate).
In line with that pilot case, on 11 January 2018, the Constitutional
Court held that the provisional detention of the journalists Alpay and
Altan violated the Constitution. Deputy Prime Minister Bozdag stated that
"With this decision, the Constitutional Court has crossed over its legislative and constitutional limits"64. The next day, the first instance (assize)
court used this argument and refused the release of the journalists, triggering a major crisis. If its judgments were not executed, the Constitutional
Court would necessarily no longer be an "effective remedy" under the
Convention. Individuals would be able to apply directly to the ECtHR,
without having to appeal to the Constitutional Court first. Thousands of
cases pending at the Constitutional Court would then arrive at the ECtHR
(the Constitutional Court has some 9000 detention cases pending).
Upon appeal by the journalists against the non-implementation, the
Constitutional Court itself adopted new judgments, insisting that its
judgments are final and binding and ordering the release of the two journalists. Following these judgments, Şahin Alpay, one of the journalists was
released from prison into house arrest by the 13th Istanbul Assize Court.
The other journalist, Mehmet Altan, had by then already been convicted
by the 26th Istanbul Assize Court and thus remained in prison. He was
released, pending his criminal case, in June 2018, on a decision by the
Istanbul Court of Appeal65.
62. CDL-AD(2017)005, Turkey - Opinion on the amendments to the Constitution
adopted by the Grand National Assembly on 21 January 2017 and to be submitted to
a National Referendum on 16 April 2017, adopted by the Venice Commission at its
110th Plenary Session (Venice, 10-11 March 2017).
63. http://www.hurriyetdailynews.com/turkeys-top-court-examines-pilot-case-on-postcoup-complaint-.aspx?pageID=238&nID=114294&NewsCatID=509 (accessed 07/2018).
64. https://www.dw.com/en/turkish-leaders-criticize-top-court-ruling-to-releasejournalists/a-42126193 (accessed 07/2018).
65. https://ahvalnews.com/mehmet-altan/jailed-turkish-journalist-mehmet-altan-released
(accessed 07/2018).

http://www.hurriyetdailynews.com/turkeys-top-court-examines-pilot-case-on-post https://www.dw.com/en/turkish-leaders-criticize-top-court-ruling-to-release https://www.ahvalnews.com/mehmet-altan/jailed-turkish-journalist-mehmet-altan-released

Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ?

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