The Constitutional Court and Challenges to the Rule of Law

Although this has recently become a wholly political debate, lacking any genuine legal basis and aimed entirely at asserting control over the judiciary, let us nevertheless examine the matter from a legal perspective. Let us consider in detail whether, as claimed by those who seek to instrumentalize the law for their own interests, the Constitutional Court is in fact a higher court than the Court of Cassation and the Council of State.

Let us begin by examining what the Constitution itself says. As is well known, the current Constitution was drafted after the 1980 military coup. While some criticize it as a “coup constitution” and call for it to be completely replaced, others argue that it should be revised rather than entirely rewritten. Nevertheless, in its general framework, it remains a constitution prepared during the period of Kenan Evren and later brought into force through a public referendum. It is therefore commonly referred to as the 1982 Constitution. Although several amendments have been made to it over time, it continues to remain in force as the 1982 Constitution.

So, what was the situation in the Constitution at the outset? How was the Constitutional Court structured as a judicial body? Let us first examine this point.

In the original version of the Constitution, Articles 146–159 regulated the “High Courts.” Among these high courts, the Constitutional Court was placed first. It was assigned the task of reviewing the constitutionality of laws, decree-laws (KHKs), and the Rules of Procedure of the Parliament (Art. 145).

Within this framework, the following courts were recognized as high courts in their respective fields:

• The Court of Cassation (Yargıtay) in the field of criminal law (Art. 154),
• The Council of State (Danıştay) in the field of administrative law (Art. 155),
• The Military Court of Cassation (Askeri Yargıtay) in the field of military criminal jurisdiction (Art. 156),
• The Military High Administrative Court (Askeri Yüksek İdare Mahkemesi) in the field of military administrative jurisdiction (Art. 157).

In addition to these courts, the Court of Jurisdictional Disputes (Uyuşmazlık Mahkemesi) was also recognized as a high court (Art. 158).

As can be seen, even in its original form the Constitution assigned a distinct function to the Constitutional Court. It was established as a separate court in order to review the constitutionality of laws and decree-laws, and to act as the Supreme Criminal Tribunal (Yüce Divan) in certain cases.

When the matter is examined in light of this initial constitutional arrangement, it becomes clear that these high courts were not placed in a hierarchical relationship with one another in terms of their decisions; in other words, none was positioned as superior or subordinate to the others. However, it is also evident that the Constitutional Court was entrusted with a special role, namely the review of legislation enacted by the Grand National Assembly of Türkiye (TBMM) for conformity with the Constitution.

On the other hand, even under this initial framework, when it was alleged that a law was unconstitutional, neither the Court of Cassation (Yargıtay) nor any other court had the authority to resolve the issue themselves. Instead, they were required to treat the matter as a preliminary issue and refer the file directly to the Constitutional Court (Art. 152).

From this perspective, it can still be said that the Constitutional Court stood one step ahead of the other courts in this particular respect. Once the Constitutional Court rendered its decision on the matter, all courts, including the Court of Cassation, were obliged to comply with that decision.

Moreover, legal doctrine at the time also recognized this position. Taking into account the Constitutional Court’s function, scholars noted that the constitutional legislator had assigned the Constitutional Court a “special and privileged position within the judiciary.”

On the other hand, when it comes to the selection of the members of the Constitutional Court, we again see that the Court occupies a position somewhat ahead of the others. Members were selected from among the judges of the Court of Cassation, the Council of State, and other high courts, and those chosen by the President were then appointed to the Constitutional Court. This arrangement also indicated that the constitutional framers intended to place the Constitutional Court in a more prominent position compared to the other courts.

Moreover, I personally witnessed that many senior judges within the higher judiciary engaged in lobbying efforts in order to be elected to the Constitutional Court and undertook various initiatives to secure such appointments. In fact, this method of selection lay at the root of many of the complaints voiced within the higher judiciary. Many members tried unexpected or unconventional means in order to sideline their rivals. Since this issue constitutes the subject of a separate article in its own right, I will limit my remarks on the matter to these brief observations for now.

After the 2000s, as the number of human rights violation judgments by the European Court of Human Rights against Türkiye began to increase and the country was ordered to pay compensation, efforts were initiated to address this issue. At that time, there was also a legal system that functioned—albeit imperfectly—and the resolution of such problems had genuinely become part of the public agenda. Türkiye was now at the door of Europe, and serious initiatives toward membership had begun.

In this context, after reviewing the systems applied in other countries, the idea came to the forefront of assigning the Constitutional Court the role of a final authority to review cases before they were taken to the European Court of Human Rights. Subsequently, the well- known constitutional amendment of 2010 was adopted in order to implement this arrangement.

With the amendment introduced in 2010 by Law No. 5982, it was accepted that all cases alleging violations of the European Convention on Human Rights, regardless of which public authority was responsible, would be subject to review by the Constitutional Court.

Accordingly, anyone whose rights had been violated by authorities exercising public power would be able to apply to the Constitutional Court after exhausting all judicial remedies (Const. Art. 148/3).

Accordingly, although the decisions of the Court of Cassation, the Council of State, the Military Court of Cassation, and the Military High Administrative Court were considered final, once such decisions had been rendered, the Constitutional Court was granted the authority to review them if it was alleged that they violated the European Convention on Human Rights. Thus, even decisions that had already become final could now be brought before the Constitutional Court.

In short, the Constitutional Court was vested with the authority to determine whether a rights violation had occurred and, if such a violation was found, to rule accordingly and refer the case back to the relevant court. Likewise, the court whose decision was overturned in this manner remained obliged to comply with the Constitutional Court’s ruling. This is because no amendment was made to Article 153 of the Constitution, which provides that the decisions of the Constitutional Court are binding on the legislative, executive, and judicial organs.

Following the 2010 constitutional amendment, once the new system began to be implemented, the relevant courts started to comply with the Constitutional Court’s rulings in accordance with the changes introduced in the Constitution. In short, from 2010 onward, the decisions of the Constitutional Court became binding, and in general no significant problems arose. In this context, additional rapporteurs were appointed to the Constitutional Court.

Training programs were organized both domestically and abroad. Rapporteurs were even sent from the Constitutional Court to the European Court of Human Rights to receive training. A new building was also constructed for the Constitutional Court, thereby creating the institutional environment necessary for it to carry out these responsibilities. I personally witnessed some of these efforts firsthand.

As noted earlier, until 2010, there had been no direct relationship between the Constitutional Court and the other courts—except for the possibility of raising a constitutional objection as a preliminary issue. For this reason, there had naturally been no debate about a “superior court–inferior court” relationship. However, the amendment introduced in 2010 explicitly granted the Constitutional Court the authority to review the decisions of the Court of Cassation and other high courts. This development effectively placed the Constitutional Court in the position of a higher judicial authority in legal terms among the courts. From that point onward, the Constitutional Court was empowered to review the decisions of all courts regarding rights violations. Consequently, its rulings began to directly affect both the Council of State and the Court of Cassation. With this development, however, a degree of discontent began to emerge among some members of the higher judiciary. In essence, this discontent was largely driven by institutional ego: it was based on the reasoning that “we are also a high court—how can the Constitutional Court overturn our decisions?” Yet the Constitution itself did not support such a view.

This discontent, however, did not change the fact that the Constitutional Court had become a higher judicial authority. Even if the Criminal General Assembly of the Court of Cassation delivered a decision with the participation of 200 judges, a five-member panel of the Constitutional Court could still overturn and nullify that decision, as this authority derived directly from the Constitution. In response to these debates, I would often argue: “Even if the decision were written by a single judge rather than five, the outcome would not change. The decisions may be criticized, but in practice every judge is constitutionally obliged to comply with them.” Nevertheless, I encountered many senior judges who, because of their professional background and institutional mindset, found it difficult to accept this reality.

The provision relied upon by those holding such views was the rule stating that “in individual applications, no review may be conducted on matters that should be examined through ordinary legal remedies.” However, in practice, this distinction set out in the Constitution could not be clearly maintained. This was because the Constitutional Court was required to examine the case in light of the provisions of the European Convention on Human Rights and, if a violation of rights was found, to rule on it accordingly. Of course, such debates were of a secondary nature and did not affect the substance of the matter. Ultimately, the decisions of the Constitutional Court were final and binding on all public authorities.

As can be seen, the debates that took place up until the case of Can Atalay, who was elected as a member of parliament while in prison, were entirely rooted in legal considerations and ultimately remained discussions conducted within the framework of law.

In the case of Can Atalay, however, the situation evolved into an entirely different dimension. After Can Atalay was elected as a member of parliament while in prison and was subsequently not released, the Constitutional Court, in the application brought before it, ruled as follows:

"106. As in the Ömer Faruk Gergerlioğlu judgment, the Constitutional Court has concluded in the present application that the applicant’s right to be elected and to engage in political activity was violated, due to the absence of a constitutional or legal regulation that provides the fundamental safeguards protecting this right and ensures legal certainty and foreseeability. The question of whether a person may be tried after being elected as a member of parliament and the question of whether that person may be detained are of the same nature. Therefore, all findings and assessments made with respect to the right to be elected and to engage in political activity are also valid in terms of the right to liberty and security of the person.

107. Accordingly, since the applicant was elected as a member of parliament in the general elections held on 14 May 2023, it is clear that he began to benefit from parliamentary immunity—in the absence of any constitutional or legal regulation that provides the fundamental safeguards protecting the right to be elected and to engage in political activity and ensures legal certainty and foreseeability. In this situation, it must be accepted that the continuation of the applicant’s detention despite his request for release is incompatible with Article 83 of the Constitution."

Based on this reasoning, the Constitutional Court found that a violation of rights had occurred. The file was then sent to the Istanbul 13th High Criminal Court, which was the competent and authorized court to deal with the matter.

Pursuant to Article 148 of the Constitution and Article 50 of the Law on the Constitutional Court, the 13th High Criminal Court was required to immediately order the applicant’s release and thus implement the ruling. However, an event rarely seen in judicial history occurred. Instead of convening a three-judge panel and issuing a decision as a court president would normally do, the presiding judge forwarded the case file directly to the 3rd Criminal Chamber of the Court of Cassation with an official cover letter—without even issuing a judicial decision.

The file being sent in this manner was itself a sign of what was to come. In a normal legal order, it would not have been possible for a judge to forward such a case on his own initiative and assume such a significant risk. It was clear that discussions had taken place somewhere, ideas had been exchanged, judges had been consulted, and a course of action regarding the file had been determined. The presiding judge had apparently been assigned this role, although the public was unaware of these developments.

The 3rd Criminal Chamber of the Court of Cassation, to which the file had been sent, then delivered a completely unexpected decision. It chose not to comply with the ruling of the Constitutional Court and even decided to file a criminal complaint against the relevant members of the Court. However, such a course of action had neither a constitutional nor a legal basis.

…

The decision sent shockwaves through the legal community, prompting reactions such as “I cannot believe it.”

The strongest reaction came from the Union of Turkish Bar Associations, which stated in a press release: “This decision is an open defiance of the constitutional order.”

However, shortly afterward, statements made by the leaders of the ruling parties also revealed where the decision had in fact been shaped and consolidated.

By not stopping there and going even further, the 3rd Criminal Chamber of the Court of Cassation filed a criminal complaint against the members of the Constitutional Court, which in itself constituted a clear offense. This action effectively escalated the matter to the level of a violation of the Constitution. Meanwhile, the offense of unlawful deprivation of liberty was already present, since the individual in prison was now being held there arbitrarily.

An unprecedented situation—one that would not normally be encountered in a functioning legal order—had emerged. The members of the 3rd Criminal Chamber of the Court of Cassation had committed a clear offense. As a consequence of this act, when the appropriate time and circumstances arise, the judges concerned could face not only dismissal from the judiciary but also imprisonment. This was evident, as no provision of law granted them the authority to disregard a decision of the Constitutional Court.

However, there could have been only one possible exception: such a course of action might have been justified if there had been circumstances indicating that the members of the Constitutional Court had rendered their decision in exchange for a bribe, or that they had been forced to do so under threats or pressure from certain individuals, thereby acting against their own free will. Of course, such allegations could only have been made if they were substantiated with solid evidence. Yet, no such accusation existed against the members of the Constitutional Court. By putting forward seemingly legal arguments based solely on the text of the Constitution, the members of the 3rd Criminal Chamber removed the issue from its legal framework and turned it into a political matter.

In short, from a legal standpoint, there was no aspect of this decision that could be defended. At this point, apart from a few pro-government jurists, no one attempted to defend it. For everyone knew that trying to justify such a decision would inevitably call into question the defender’s legal credibility, and even their professional competence.

After this decision, following one or two brief criticisms, the issue gradually faded from the public agenda.

The current situation is now completely stable. The Constitutional Court continues its work as if nothing had happened, while the members of the 3rd Criminal Chamber likewise continue to issue rulings, either overturning or upholding decisions.

Naturally, with these developments, the reputation of the Turkish judiciary—already in a state of legal collapse—has sunk even further, both domestically and internationally, falling not merely to the ground but deep below it.

In the coming days, the possibility of a constitutional amendment has also emerged. An artificial perception has been created, as if there were a genuine legal problem and as though the issue could only be resolved through a constitutional amendment. Of course, if such an amendment is carried out, it will also touch upon the so-called unamendable principles of the Constitution. Consequently, the regime change that has already taken place in practice would also be formalized in law.

So, can these changes actually be made? In my view, as long as this opposition remains as it is, there is nothing that cannot be done. They will raise their voices for a day or two, and then simply return to their seats.

Colonel Dr. Cemil Çelik, Military Judge

References

(1) Art. 152/1 of the Constitution:

“If a court hearing a case finds that a provision of a law or a Presidential decree to be applied in the case is unconstitutional, or if it concludes that a claim of unconstitutionality raised by one of the parties is serious, it shall stay the proceedings until the Constitutional Court renders its decision on the matter.”

(2) Art. 153 of the Constitution:

“The decisions of the Constitutional Court are final."

…
Decisions of the Constitutional Court shall be published immediately in the Official Gazette and shall be binding on the legislative, executive and judicial organs, on administrative authorities, and on natural and legal persons.”

(3) Ergun Özbudun, Turkish Constitutional Law, 2005, p. 372.

(4) Art. 148/3 of the Constitution:

(Additional paragraph: 7/5/2010 – Law No. 5982, Art. 18)

“Everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms guaranteed by the Constitution and falling within the scope of the European Convention on Human Rights has been violated by public authority. In order to make an application, ordinary legal remedies must have been exhausted.”

(5) Decision database of the Constitutional Court of Turkey: https://kararlarbilgibankasi.anayasa.gov.tr/BB/2023/53898