Power struggle between politics and courts: A coup d'état in Turkey?

Normally, the rule of law is at least briefly addressed at every meeting between members of the Turkish and the German government. However, when Turkish President Recep Tayyip Erdoğan came to Berlin two weeks ago, German Chancellor Olaf Scholz completely ignored the topic. Yet there has hardly been such a concrete occasion in recent years to talk about the collapse of the Turkish rule of law as now. 

At the beginning of November, the 3rd Chamber of the Court of Appeals, Yargitay, announced that it would not recognize a judgment issued by the Constitutional Court. And it had filed criminal charges against nine judges of the Constitutional Court who had signed the judgment. "The Constitutional Court has exceeded its powers," reads the letter from the lower court. The public prosecutor's office has been investigating nine of the 15 constitutional court judges for a few days now. The accusation: obstruction of justice. At the end of October, the Constitutional Court granted parliamentary immunity to a member of parliament who was in custody and demanded his immediate release. In the view of the appeal judges, the decision is unconstitutional. An unprecedented case. What is behind this? 

Are the investigations into constitutional court's judges reaching a dead end? 

"I don't know what's going to come out of this, it doesn't make sense," says Istanbul lawyer Cem Murat Sofuoğlu. He represents religious minorities such as the Ecumenical Patriarchate of Constantinople and the Catholicos of All Armenians in disputes with the government. He was chairman of the EU Law Commission of Istanbul Bar Association and has been campaigning for more democracy and legal certainty in the country for years through associations such as the Turkish Economic and Social Studies Foundation (TESEV). His work often involves enforcing claims derived from the constitution. He has already argued before the European Court of Human Rights and several times before the Constitutional Court. Sofuoğlu knows the regulations well and refers to the rules of the Constitutional Court in the current case. "According to these rules, the approval of the fifteen-member General Assembly of the Constitutional Court is required for the judges to initiate an investigation," explains Sofuoğlu with reference to Art. 16 Para. 1 of the rules of functioning and procedures of the Turkish Constitutional Court (Law No. 6216). 

A final decision requires a two-thirds majority. However, this requirement is a curiosity in the current case. "Ten judges would have to decide that nine of them have exceeded their powers," says the lawyer. "It lacks any logic because they can't judge themselves. The proceedings are at an impasse. "I am very curious to see what the public prosecutor's investigation report will say in the end." Sofuoğlu refers to Article 153 of the Turkish constitution, which states that decisions by the Constitutional Court are final (paragraph 1) and are binding on legislative, executive, and judicial bodies as well as administrative authorities and natural and legal persons (paragraph 6).  

The case has also drawn the attention of legal professionals. The Istanbul Bar Association protested the procedure and also filed a lawsuit against the President and the members of the 3rd Criminal Chamber of the Supreme Court of Appeal on November 1. The accusations include "deprivation of liberty" because the MP is still in prison and "abuse of office". Several thousand lawyers have signed a petition in support of the proceedings. However, the complaint is likely to be primarily symbolic: 

It was submitted to the First Presidential Committee of the Supreme Court of Appeal, i.e., the authority from which members are currently appealing against the Constitutional Court. The prospects of the lawsuit being successful are very questionable. One of the lawyers' statements was also directed against "political power": "Stop interfering in the judiciary," the lawyers wrote. 

How a member of parliament is dragged into the power struggle between politics and the judiciary 

The dispute between politics, the judiciary and legal professionals began with the case of Can Atalay, a member of the Workers' Party of Turkey (TİP). He was elected as a deputy in the parliamentary elections on May 14. Atalay is a lawyer himself and represented clients in politically controversial cases. One of these was the "Taksim Solidarity" movement, which campaigned against the attempt to build a shopping center in Istanbul's Gezi Park in 2013. The protest culminated in a nationwide uprising by millions of Turks against the government of Recep Tayyip Erdoğan. 

In April 2022, Atalay was sentenced to 18 years' imprisonment by the 13th Jury Court in Istanbul for "attempting to overthrow the government". A year and a half later, the Supreme Court of Appeal confirmed the decision. At the time of the election, however, the verdict against him was not yet final. According to Article 83 (1) of the constitution, he therefore has immunity and would in principle be protected from prosecution. 

Atalay used this as the basis for his application to the 3rd Criminal Chamber of the Court of Cassation, which is responsible for his appeal. It unanimously rejected his demand for release. A short time later, the 4th Criminal Chamber also rejected an appeal against this decision by a majority. Atalay's lawyers filed a complaint with the Constitutional Court in mid-July. They argued that his right to a fair trial and his right to stand for election, be elected and take part in political activities had been violated. The Constitutional Court was due to rule on October 13, but the deliberations were postponed by almost two weeks. The verdict was issued on October 25 and sent back to the Istanbul 13th Heavy Penal Court. This in turn asked the 3rd Criminal Chamber of the Court of Cassation for a new legal assessment and delayed the implementation of the ruling. "This procedure alone is unusual and questionable," says Sofuoğlu's lawyer. The 3rd Criminal Chamber should have sent the file back, as according to criminal procedure rules and the Constitutional Court ruling, the 13th Heavy Penal Court is authorized to conduct a retrial – and not the Court of Appeal. The Istanbul Bar Association also refers to this in its statement of claim. 

And there are even more inconsistencies: The letter from the 13th Heavy Penal Court was dated October 13. However, the Constitutional Court's verdict was not issued until after that date. Was an action against the Constitutional Court already being prepared as a precaution? The lawyer Sofuoğlu does not want to assess this point: "That sounds like a political question, I can only comment from a legal point of view." 

All of this shows that the politician has probably become collateral damage in a fundamental power struggle between Turkish justice and politics. The political wrangling over Atalay, who is still in custody, appears to be a pretext for stirring up unrest and questioning the legitimacy of the country's highest judges. The Constitutional Court has recently made several rulings that politicians have declared they do not like. Among lawyers, however, the court is regarded as a reliable authority, even if some decisions are criticized for being too vague. In this case, however, the ruling was unusually clear. 

Erdogan: "Mistakes by the Constitutional Court make the government sad" 

President Erdoğan, who had already appointed ten out of 15 constitutional judges himself during his previous terms in office, told journalists in the first week of November: "Unfortunately, the Constitutional Court has made many mistakes one after another." This procedure makes the government "very sad". He then took sides with the Court of Appeal, whose decision could neither be overturned nor superseded. Such statements are not unusual. Back in 2016, the president had evidently unconstitutionally announced that he did not accept the ruling of the Constitutional Court in the case of journalist Can Dündar. 

His coalition partner Devlet Bahçeli, leader of the right-wing nationalist MHP, expressed himself more clearly shortly afterwards. According to him, the president of the Constitutional Court was a "terrorist" and: "The court should either be closed, or it should be restructured." Shortly beforehand, the pro-government newspaper Yeni Şafak ran a headline with photos of the nine controversial constitutional court judges and accused them of having "opened the door to terrorists". Unlike Erdoğan, however, Bahçeli is speaking from a position of strength: according to media reports and confirmations from circles close to her, the 3rd Criminal Chamber of the Supreme Court of Appeal is made up of judges who are described as "nationalists". They are said to come from the circle of the MHP and the Ülkücüler movement, which is close to it and is known in Germany as the "Gray Wolves". In Germany, the movement is monitored by the Federal Office for the Protection of the Constitution. Should the constitutional court ever be abolished in Turkey, they would be the highest judges in the country. 

It is an open secret in Turkish society that the coalition between Erdoğan's AKP and Bahçeli's MHP is only a strategic one and that the president cannot blindly rely on his partner in case of doubt. The Constitutional Court is the only body that can take action against presidents and is therefore likely to have a certain relevance for Erdoğan's future. Without the court, however, this competence could fall to the next higher instance, i.e., the Court of Appeal. Judges who are not from Erdoğan's circle would then have to decide his fate. The fact that such speculation exists at all is a reminder that the president is not alone at the center of power in domestic politics.  

It is also known throughout the country that the Ministry of Justice is said to be dominated by a completely different group: a political sect. In the background of Turkish politics, such religious factions play a fundamental role. There is speculation that the current dispute over instances is part of a power struggle between this faction, the nationalists and a group said to be close to Erdoğan. 

Is the Constitutional Court about to be abolished? 

However, abolishing the Constitutional Court is not realistic, says Istanbul lawyer Sofuoğlu. "That would only be possible with a constitutional amendment and there is no majority for that in parliament." Meanwhile, the government has already announced several times that it wants to renew the constitution. With regard to the Constitutional Court, Erdoğan recently mentioned a change to the individual prosecution system. This is where there the most political disputes arise. Erdoğan cautiously told journalists in mid-November: "There are currently 130,000 individual lawsuits before the Constitutional Court. The goal of speeding up the work of this court has been missed." 

The rebelling appeal judges argue similarly. A press release from early November, for example, states: "The individual appeal has become a systemic problem that weakens the judicial system". The legislator could now react and restrict the possibility of individual appeals with a simple legal reform, for example to the powers to order a retrial, establish a violation of the law or demand compensation. Releases such as in the Atalay case would then be ruled out and the Constitutional Court would be disempowered to a certain extent. 

However, such a restrictive reform is currently likely to entail a lot of criticism from society, parliament, and the international community. It is therefore possible that the current dispute surrounding MP Atalay is also being used by the government to test the mood. Erdoğan suddenly took a step back in mid-November and said that the government would remain neutral in this dispute. 

In the end, the question remains: should the uprising against the Constitutional Court be rehearsed just once? Meanwhile, MP Atalay remains in custody. "At some point we will have to abide by the Constitutional Court's ruling," suspects Sofuoğlu's lawyer.  

He does not see a coup d'état or an attempt at one, as the opposition had declared. However, he does see an impact on legal practice. One client recently rejected his advice to go to the Constitutional Court: "He is afraid and, like many in society and the judiciary, has lost some of his trust in the rule of law." 

This text is a translated and slightly revised version of the article published in German on 29 November 2023.