The suicide of the Constitutional Court

Last week, the Constitutional Court of Turkey declared an important decision on two basic points that have not received enough attention in the media. These points are closely related to the basic rights and freedoms that have been prescribed by the European Convention on Human Rights (ECHR) and that the European Court of Human Rights (ECtHR) have cited many times in its decisions concerning Turkey.
The first point is the “reasonable suspicion” principle of Article 116 of the Code on Criminal Procedure (CMK) regarding the right to search people. As is known, it previously required “strong suspicion,” but this was amended in 2014. After the amendment, the police force began using this article to search whoever it desired. Your body and your belongings can be searched by the police when going to a restaurant for a dinner, entering a stadium or going to the theater and the only words that need to be pronounced are “we have reasonable suspicion.” In reality, lawyers know that this provision was amended in order to take the decision to enable a search away from the courts, which was not possible before. After the amendment, the police searched many people, offices and houses who were suspected of “organizing a meeting to support Kobani,” “suspicion of attending Gezi protests” or “suspicion of being affiliated with the so-called parallel state structure.” I tell you how the police interpret the reasonable suspicion concept: If there is a phone call of someone who says this specific person belongs to the “parallel structure,” the Kurdistan Workers’ Party (PKK) or any other illegal organization, then making a search automatically requires only reasonable suspicion without concrete evidence. A number of lawyers brought the situation to the Constitutional Court and last week and the court issued its decision, saying that a level of reasonable suspicion in searches is not unconstitutional.

The second remark in the court’s decision regards the authority of lawyers to examine the file of the accused and making a copy of it. Article 153 of the CMK regarding the defendant’s authority to examine the file was narrowed with the same amendment at the end of 2014. Nearly every lawyer said at the time that the amendment ran contrary to the ECHR and the Constitution. We now see that the members of Turkey’s most supreme court are not among them. In many of its rulings regarding Turkey, the ECtHR ordered that lawyers’ right to access the file must not be restricted. You may wish to read the cases Erkan İnan/Turkey, Nedim Şener/Turkey, Ahmet Şık/Turkey, Nikolova/Bulgaria, Lamy/Belgium, Shöps/Germany or Mooren/Germany and the ECtHR states in all of them that the right to defense must not be restricted. The Constitutional Court of Turkey, contrary to the ECtHR decisions, thinks that the restriction brought by the amendment of the CMK in 2014 “does not constitute a disproportional restriction of the right to a fair trial.” The court thinks that the judge can ban lawyers’ access to the case file.

In my opinion, the Constitutional Court of Turkey is shooting itself in the foot. It not only undermines the attempt to raise the standards of democracy and human rights in the country but it also carries its institutional identity out of the scope of legal seriousness. The court was established in order to eliminate the unconstitutional provisions made by Parliament, which is under the control of the government. At the same time, this decision clearly shows us the ultimate pressure on the court. If the ECtHR’s previous decisions are true, it could be predicted that its decisions on the two points will follow the same pattern. Thus, we can ask another question: Will the ECtHR continue to take Turkish Constitutional Court seriously or will it consider the Constitutional Court as a domestic institution to complete proceedings before the national courts by means of admissibility? I believe that the Turkish Constitutional Court committed suicide last week.


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