From Editor-in-Chief
Turkish voters are finally going to the polls today for a double election. Voters will vote for both the presidency and the parliament in this election. The unofficial results of the parliamentary election will be announced as of May 15, but the same may not be the case for the presidential election. As a matter of fact, under the current circumstances, it seems plausible that no candidate could win the majority to win the presidency in the voting on 14 May.
In this case, it means that after two weeks there will only be a runoff for the presidency. Considering that the heat of the election campaign has increased in recent days and that the polarization and the tension between the government and the opposition has led to violent incidents targeting the opposition parties, it is feared that a possible second round will be the scene of events that will seriously damage the internal peace of the country.
Whatever the case, these elections will be the beginning of a new and challenging period for both citizens and political cadres. Turkey has fallen far behind the liberal-democratic regime standards in all respects, its political system is almost locked up and has ceased to be effective, and our country has regressed to a position that is getting poorer. Its established institutions have been damaged to a large extent, its political and administrative administration has become almost completely personalized, the principles of separation of powers and the rule of law have been abandoned, and the judiciary has become too dependent on the executive. All of this is accompanied by an economic crisis that is deepening day by day and seems difficult to resolve.
This means that whether the May 14 election brings a change in power or not, it will be really difficult for Turkey’s political decision makers and the people in the new period. Regardless of political orientation, even if the new government implements the right policies, it is time to get the country out of this multidimensional crisis environment, to eliminate the widespread institutional decay, to prevent the deprivations of rights, to compensate the grievances, and finally to get things back on track in all respects in public administration and public life. The same is true for bringing the economy back into a welfare-generating structure and functioning, especially by reducing inflation and revaluation of the Turkish lira, in a way that will relieve the daily life of the low-income and fixed-income masses. Despite everything, one should not be completely hopeless about the future. At least, there seems a possibility of getting the country out of its current state of depression, and the re-establishing of universal liberal-democratic principles and institutional standards, albeit at a minimal level, and the reversing of the impoverishment process of the society. I hope that the May 14 elections will be the beginning of a new era in which hopes are renewed, as it was 73 years ago.
Stay tuned.
* Prof. Dr. Mustafa Erdoğan
General Binding of AYM Decisions
The Constitutional Court (AYM) made an important decision regarding the objective bindingness of the violation decisions in the individual application.[1] Accordingly, the violation decision of the Constitutional Court in an individual application is also binding for other similar cases and should be taken into account by public authorities and courts. In fact, one of the purposes of individual application is to raise the human rights standard of the country. For this, it is necessary to accept that the decisions of the Constitutional Court within the scope of individual application have a dual function. On the one hand, the Constitutional Court interprets the scope and limits of constitutional rights on the occasion of a concrete application. This is the objective function of individual application and mediates the realization of constitutional justice by determining the scope of fundamental rights and freedoms. On the other hand, the Court performs individual justice by determining the violation of the applicant’s right and deciding to remedy the violation and its consequences. This is called the subjective function of the individual application.
Indeed, the subjective function of the individual application cannot be ignored. It is vital that individuals whose constitutional rights have been violated can seek their rights before the country’s highest court. However, it is virtually impossible for a 17-member court to detect all violations of rights suffered by 85 million people living in the country and to redress their rights. For this reason, the objective function of the individual application should be brought to the fore and the general (erga omnes) bindingness of the individual application decisions should be implemented in order to provide the expected benefit from the individual application. In other words, after the Constitutional Court decides on a violation, public administrations should harmonize their practices and other courts’ decisions with the decision of the Constitutional Court. In fact, this is also a requirement of the principle of “subsidiarity” of the authority of the Constitutional Court and individual application. For this reason, it has already been stipulated that other legal remedies should be exhausted before applying to the Constitutional Court. Fundamental rights and freedoms should be protected primarily by public authorities and courts of instance.
In this respect, the decision of the General Assembly of the Constitutional Court, İbrahim Er and others, is of vital importance. In the application in question, the Constitutional Court examined the decisions regarding the refusal of the applicants’ requests for a retrial, which had been tried by various courts on the grounds that they were members of the Hizb-ut Tahrir organization and were punished for membership of a terrorist organization and whose sentences had been finalized. In its previous decision of Yılmaz Çelik in 2018, the court stated that there was not an adequate assessment of Hizb-ut Tahrir as a terrorist organization in the decisions of the instance courts and that it was not sufficiently clear on which ground the decisions of the instance courts, which looked like repetition of some template sentences, were based. Within the scope of the right to a fair trial, which is guaranteed in Article 36 of the Constitution, the right to a “reasoned decision” has been violated.
In the judgment of İbrahim Er and others, the Court stated that the evaluations made in the Yılmaz Çelik decision should have an impact on those in similar situations. In this context, reminding that after the Yılmaz Çelik decision, many courts accepted the requests for retrial and made a re-evaluation of individuals and gave acquittal verdicts, the Court emphasized that in the present case, the court of first instance rejected the applicants’ requests without giving any justification, ignoring the decisions of the Constitutional Court. Stating that after Yılmaz Çelik‘s decision, no evaluation was made about why Hizb-ut Tahrir was accepted as a terrorist organization in the Turkish judicial system and that the issue was not resolved by considering the criteria set forth by the Constitutional Court, the Court further added that the requests for retrial were rejected and the execution of the decisions continued. Stating that every decision that does not include an assessment of whether Hizb-ut Tahrir is a terrorist organization will result in a violation of the right to a reasoned decision, which is a requirement of the principle of fair trial, the allegations put forward by the applicants in the concrete case and may change the outcome of the proceedings are not taken into account and properly evaluated. The Court decided that the right to a reasoned decision within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution had been violated.
This decision is a pioneering one in terms of the protection of human rights. However, in order for this to provide the expected improvement, first of all, it should not remain as an exception, and similar decisions should be made in all similar cases. Meanwhile, the Constitutional Court must act more carefully and not act selectively in applying ECHR standards in its own decisions.
* Ali Rıza Çoban – Constitutional Lawyer
[1] İbrahim Er and others[GK], B. No: 2019/33281, 26/1/2023, the decision can be accessed via https://kararlarbilgibankasi.anayasa.gov.tr/BB/2019/33281
Attack on İmamoğlu and Kılıçdaroğlu
Istanbul Metropolitan Mayor Ekrem İmamoğlu was attacked with stones by a group during his rally in Erzurum. In the attack, many citizens in the rally area were injured by the stones that hit them. İmamoğlu stated that the Mayor of Erzurum Metropolitan Municipality and the Governor of Erzurum were responsible for not taking the necessary precautions regarding this attack. İmamoğlu calmed the crowd in a way that would not increase the tension and left the scene after a while after making sure the health of the citizens participating in the rally.
Various statements were made by the government on the subject. Erzurum Metropolitan Municipality Mayor Mehmet Sekmen defended himself by saying that the requested venue was not a meeting place. Interior Minister Süleyman Soylu stated that 16 people were detained in connection with the attack, and one of them was affiliated with FETÖ. Minister of Justice Bekir Bozdağ also announced that there were detentions in the attack in Erzurum. However, 15 people who were detained were soon released. Soylu called İmamoğlu a provocateur and accused him by stating that “the reason he held this rally here is to cause this fight. Ekrem İmamoğlu is one of the biggest frauds ever.” It is not impossible to understand that Soylu, who is responsible for ensuring the security of the country and the election environment, adopts such a hostile attitude towards this attack targeting the physical integrity of politicians.
A few days later, during the Sakarya rally, a stone attack against Kemal Kılıçdaroğlu’s convoy took place. A 15-year-old boy was detained in connection with this incident. Upon the incident, Kılıçdaroğlu called the security authorities and stated that he did not file a complaint against the aggressor and said that “the important thing is to reach those who instill this hatred in that child.”
Türkiye is holding one of the most important elections in its recent political history. It is extremely important for the country to overcome this tense process peacefully that the ministers, administrators, and law enforcement officers perform their duties, being aware of their responsibilities, in order to prevent the increasing attacks before and after the election.
* Ömer Faruk Şen – Ph.D. – Missouri University
The Difficult Test of LGBTI+s: 2023 Elections
We are fast approaching to the 2023 Turkish general elections. Before the elections, the People’s Alliance stands out with its polarizing, hostile and discriminatory rhetoric. The Nation Alliance, on the other hand, draws attention with its rhetoric based on reconstructing social peace, reconciliation and love with the heart signs made with hands during the campaign. However, in recent weeks, the homophobic rhetoric of the Yeniden Refah Partisi and the threats to the existence of LGBTI+ organizations seem to have been accepted by the society to a certain extent, and similar statements were also reflected in the discourses of the Nation Alliance candidates.
In the event that the People’s Alliance wins the elections, many worrying scenarios are foreseen for non-governmental organizations and individuals working in the field of LGBTI+ rights. The reason is clear. Some members of the People’s Alliance openly promise that LGBTI+ associations will be closed. In an environment where these hate speeches are spearheaded by the President, the Minister of Interior and the Minister of Justice, the polarizing discourses of “either us or LGBT people” cause anxiety among LGBTI+ rights defenders.[1]
Although the Nation Alliance stands out with its more peaceful and inclusive rhetoric that gives confidence to LGBTIs, unfortunately, there have been some statements to the contrary from this very segment recently. These statements, which can be interpreted as making fun of LGBTI identities and associating them with immorality, are disappointing because they are made by those who we think are more democratic and peaceful in politics.[2] Although this situation did not lead LGBTI individuals to give up supporting the Nation Alliance candidate in the Presidential elections, it greatly reduced their expectations from a possible Nation Alliance government.[3] Nevertheless, although homophobic statements are false and distrustful, in the light of their statements so far, it can be expected that LGBTI+ individuals will be freer and more comfortable in a possible Nation Alliance government compared to their current situation.
The ongoing discourse of the People’s Alliance reflects a superiority or inferiority between lifestyles where the winner will make the life of the other difficult. On the other hand, it would be appropriate to see the homophobic statements of the Nation Alliance, which emphasizes social peace, reconciliation, and unity in almost every issue, as a mistake made as a result of carelessness rather than a sign of public policy preference.
* İsrafil Özkan – Director, Freedom Research Association
[1] https://bianet.org/bianet/lgbti/278415-secim-yarisinda-nefret-yayiliyor-lgbti-dernekleri-uyardi-suc-isliyorsunuz
[2] https://kaosgl.org/haber/millet-ittifaki-bilesenleri-acilen-ayrimci-soylemden-geri-donmeli-lgbti-haklarini-konusmali
[3] https://kaosgl.org/haber/lgbti-lara-nefret-soylemi-toplum-sagligini-olumsuz-etkiliyor