27 July 2019 16:17

Constitutional Court of Turkey decrees Peace Academics’ rights violated

The Constitutional Court has issued a rights violation decision in the application made by the Peace Academics. Informed by the decision, previously conducted trials will be re-held.

Photograph: Google Street View

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The Plenary Session of the Constitutional Court has ruled that freedom of expression was violated in the sentencing of the peace academics accused of “making armed terrorist organization propaganda” for having signed the peace declaration titled “We will not be party to this crime.”

The ruling was apparently passed with eight assenting and eight dissenting votes with the presiding judge’s vote counting twice due to the tie. As the Constitutional Court President Zühtü Arslan voted on the side of violation, a violation decision emerged from the supreme court following consultations held today.

It was stated that an order had been made for the sending of a copy of the Constitutional Court decision to the local courts for the purpose of holding retrials in which the violations would be eliminated and the payment of 9,000 lira compensation to each of the applicants.

DECISION WILL SET A PRECEDENT

The violation decision will set a precedent for the trials of the 784 academics currently being prosecuted for the peace declaration. Renewed recourse to retrial over finalized sentences, reversals in cases at the appeal stage and acquittals in pending trials will ensue.

ATTORNEY EYÜBOĞLU: THE TRIALS MUST END

Assessing the Constitutional Court’s violation decision for Evrensel, attorney Meriç Eyüboğlu said, “The Constitutional Court issuing a violation decision is important. We have not seen the reasoned decision and the drafting stage of the reasoned decision will be valuable for us. It is also a most valuable decision for the many people who are being prosecuted, have been sentenced and are in prison by virtue of the second paragraph of Article 7 of the Counterterrorism Law. At the same time, it is also a valuable decision with regard to the circumstances we encounter surrounding the violation of freedom of expression.”

“CONSTITUTIONAL COURT RULINGS ARE BINDING”

Eyüboğlu had the following take on what would ensue: “Following the reasoned decision, the trials pending before serious crime courts must end in view of the violation finding. The courts must order acquittals and end the trials. But in recent history we have seen Constitutional Court decisions not being implemented at courts in the Istanbul Judicial Complex at Çağlayan. Constitutional Court rulings are binding on everyone, all citizens and especially the judiciary. This is an indisputable rule. However, despite this, we have seen contrary practices. So, we cannot know how courts will position themselves as to the Constitutional Court ruling once the dust has settled. But in theory courts must order acquittal and end the trials on hearing dates as the hearing calendar progresses. Or acquittals should be ordered without awaiting the hearings. Nearly two hundred trials have concluded. Some of them have concluded in the handing down of jail sentences. In cases that are at the appeal stage, acquittals and remittals to the courts must be ordered. Concluded cases must be retried. Acquittals must also result from these retrials. This is how it stacks up in theory. But we will see what kind of problems there may be in practice.”

“THE DECISION ON ITS OWN DOES NOT SUFFICE”

Stating that the ruling as passed will not suffice on its own, Eyüboğlu said, “Because the peace academics were not only being prosecuted before the courts for having signed the declaration titled ‘We will not be party to this crime’ and demanding peace, having drawn attention to rights violations at the time of the curfews. They have at the same time encountered many rights violations, their expulsions under decrees with the force of law being the most egregious example of this. Nearly four hundred signatories were expelled just for having signed this text. They were not only expelled, but were left unemployed and bereft of a passport. They were sentenced to civil death for their own pronouncements. Following this violation decision, the State of Emergency Commission must expunge these expulsions. But existing practice shows that no heed is paid by the State of Emergency Commission to acquittals awarded in penal trials. So, we will see as things unfold what effect this decision will have on the expulsion-related proceedings. But if the State of Emergency Commission does all this it will still not suffice because a large number of rights have been violated. They need not just to return to their universities but also to have all their entitlements restored. As long as there is no restitution of all rights that were violated in this period, today’s decision on its own does not suffice.”

CONSTITUTIONAL COURT PROCEEDINGS

The first meeting was held on 29 May on the application to Division One of the Constitutional Court but this meeting was adjourned on the grounds that no opinion was forthcoming from the Ministry of Justice. The Ministry of Justice included rulings on the definition of freedom of expression and its scope in the nine-page opinion it submitted to the Constitutional Court on 25 June.

Reconvening on 3 July, Division One examined “whether the applicants’ freedom of expression had been violated due to their being sentenced.” Stating that the decision to be passed “would set a precedent for all the peace academics in a similar manner and thus the decision had to be passed with the participation of all members,” the members resolved for the case to be forwarded to the Plenary Session.

The names of the academics whose sentences have not been suspended are as follows:

Ayşe Erzan, Özdemir Aktan, Nesrin Sungur Çakmak, Füsun Üstel, Büşra Ersanlı, Lütfiye Bozdağ, Şebnem Korur Fincancı, Özgür Müftüoğlu, Yonca Demir, Gençay Gürsoy, M.A., Alper Akyüz, Ahmet Bekmen, Nihan Aksakallı, Hülya Kirmanoğlu, İsmet Akça, Haydar Durak, İlkay Özkuralpli, Öznur Yaşar Diner, Remzi Orkun Güner, Esra Kaliber, Eda Aslı Şeran, Aysuda Kölemen, İlkay Yılmaz, Zeynep Tül Süalp, L.N., S.A., Gevher Gökçe, Çare Olgun Çalışkan, Nevin Zeynep Yelçe, Ali Kerem Saysel, Koray Çalışkan, S.I. Süreyya Topaloğlu, Ayşe Gül Altınay, Noemi Levy Aksu.

“THE CONSTITUTIONAL COURT MUST END THE LAWLESSNESS”

With the trials into the academics who signed the declaration titled “We will not be party to this crime” in 2016 awaiting the Constitutional Court ruling, a petition was started under the rubric, “Call to the Constitutional Court: Let the cases close and freedom of expression win.” It was said in the announcement accompanying the petition, “The task of preventing rights and freedoms from being supressed through threat of penalization stands before the Constitutional Court.” With the number of petition signatories surpassing 6,000, the following was included in a statement:

“Absolutely no implementation and no judicial decision can be contrary to the Constitution, laws and legal norms in the realm of human rights. The supreme court must adjudicate the academics’ application at once and there must be an end to the lawlessness that tries to isolate the academics and their supporters in judicial corridors and leaves them exposed to uniform convictions under uniform indictments. We call on the Constitutional Court to move into action with steps taken that will secure an end to the judicial and administrative proceedings that end in violations of freedom of expression and academic freedom and grant protection to fundamental rights and freedoms.” (EVRENSEL DAILY)

(Translated by Tim DRAYTON)