Turkish government looking to curb powers of Constitutional Court

Reuters

President Reccep Tayyip Erdoğan's government is seeking ways to curb the influence of Turkey's Constitutional Court, prompted by its rulings to free a jailed opposition parliamentarian, according to a senior official and two legislators in the governing alliance.

According to the senior government official and two legislators from the ruling party, Erdoğan and his allies are uneasy about the influence wielded by the court, particularly through its widespread use of "individual applications".

Erdoğan's office and justice ministry did not respond to Reuters' requests for comment.

The senior Turkish official, who like the other two sources requested anonymity to speak freely, said that the court has established "a unique sphere of power" through these rulings.

The court has processed more than 500,000 individual applications alleging violation of fundamental rights by authorities since September 2012 and delivered a ruling in more than 484,000 of the cases, official data shows.

In November, Erdoğan said he would play the "referee" in the judicial crisis and that legislation could solve the standoff between the Constitutional Court and the Appeals Court of Cassation.

"It's not difficult to make legal arrangements regarding individual applications," he said, without giving further details.

The government is considering options, the senior official said: these include establishing a "Turkish Human Rights Court" that would deal with individual applications separately.

The Constitutional Court and the system for individual applications will remain in some form, said the official. "But regulations are necessary," the person added.

The Constitutional Court and the Court of Cassation declined to comment for the Reuters story.

One of the two AKP MPs, who requested anonymity, said that the Constitutional Court should have a clearly defined jurisdiction in order not to overlap with the Court of Cassation and exceed its jurisdiction.

Turkey's highest court ruled in October that Can Atalay's ongoing imprisonment violated his right to hold office after he was elected to parliament from his jail cell in May's general election.

Atalay was sentenced in 2022 to 18 years in prison for trying to overthrow Erdoğan's government by organizing national protests in 2013. The 46-year-old lawyer denies the charges.

He appealed to the Constitutional Court using an "individual application" - a mechanism created by a 2010 constitutional amendment that allows citizens to petition the top court directly over rights issues.

The Constitutional Court's ruling to free him triggered a judicial crisis on Nov. 8 when Turkey's top appeals tribunal - the Court of Cassation - said it would not recognize the decision and filed a criminal complaint against the judges who made it.

The appeals tribunal accused the Constitutional Court of overstepping its jurisdiction by acting as a 'super-appeal body'.

Mehmet Uçum, Erdoğan's chief adviser and deputy chair of the Presidential Legal Policies Council, in November, defended the Court of Cassation's move on social media platform X and slammed the Constitutional Court for making "unconstitutional decisions".

Atalay's lawyers expected him to be released after the Constitutional Court ruled for a second time in December that he should be freed, they told Reuters. But on Dec. 27 an Istanbul penal court refused for a second time to free him and again transferred the case to the Court of Cassation, claiming that a reassessment by the appeals court was mandatory.

In January, Turkey's parliament - dominated by Erdoğan's supporters - stripped Atalay of his parliamentary status. Atalay, who remains in jail, declined to comment.

The European Commission, in its annual report on Turkey's stalled EU membership bid, in November criticized "serious backsliding" on democratic standards, human rights, and judicial independence. It criticized a lack of transparency and meritocracy in the appointment of judges and prosecutors.

Erdoğan's government, which has restacked the judiciary following a failed 2016 coup, says the system complies with international standards.

Bertil Oder, a professor of constitutional law at Koc University in Istanbul, said the Constitutional Court's popularity with the public has increased since it started ruling on individual applications. "The more it interprets rights, the stronger its bond with citizens becomes," she said.

Several of the court’s rulings have drawn Ankara's ire. Most recently, it has canceled 37 regulations within the first presidential decree issued under the presidential system in 2018. 

However, the court has ruled in favor of the government on several major issues. 

In 2016, it rejected an appeal by the main opposition Republican People's Party (CHP) for annulment of emergency laws enacted after the attempted coup.

The move entrenched Erdoğan's sweeping powers, says Kerem Altıparmak, a prominent Turkish human rights lawyer at the Ankara Bar Association.

"The court's importance lies in projecting the image to the international community that there is a functioning judiciary in Turkey," he said. "It does not solve any critical cases; rather, it is at the center of the problem."

Ayça Akpek Şenay, a lawyer and deputy chair of the CHP's disciplinary board, said "Despite its shortcomings, the court provides a different perspective,". "Erdoğan's government is unable to manipulate it to their advantage and this is unsettling for them."

The court comprises 15 judges, one of whom has completed their tenure in 2024. According to the new member election procedure of the court, President Erdoğan selects a member from the three candidates presented to him upon an internal election. 

Council of State (Danıştay) member Yılmaz Akçil’s selection to the high court was finalized on Jan. 31.