From Editor – in- Chef

Contrary to expectations, unfortunately, last May’s general elections did not mark the beginning of a new era that could improve Turkey’s political health. Since then, there have been virtually no positive signs suggesting that things will improve in the short or even medium term or that the country will return to the path of freedom, justice, and prosperity. Even if the AKP-MHP government genuinely wants to pull the country out of the impasse it has been stuck in for so long; it does not seem to be able to do so. They have done nothing more than deepen the crisis or support new crises. Meanwhile, the appointment of new individuals to head the economic and financial administration has yet to improve this area.

President Erdoğan’s and the Minister of Justice’s attitude towards the crisis caused by the Supreme Court of Appeals suggests that the government may be playing a role in exacerbating this crisis to legitimize its planned constitutional amendments in the eyes of the public. The MHP leader, who has been targeting the Constitutional Court for some time now, has also seized this opportunity to support the AKP’s intentions.

​​It appears that the Erdoğan-Bahçeli duo, should they somehow succeed in realizing the constitutional amendment they have in mind, will likely significantly curtail the powers of the Constitutional Court, particularly those related to “individual applications.” Furthermore, they may even contemplate transferring this authority to the Court of Cassation. Concurrently, with President Zühtü Arslan’s term expiration and a few members who typically align with him, the balance within the Constitutional Court will shift entirely in favor of the government. This would effectively result in the Constitutional Court becoming dysfunctional in practice.

The political power continues to exhibit recklessness in the realm of media concerning freedom, justice, and rights and laws. As you may recall, the AKP-MHP coalition recently enacted a law aimed at curbing what they deemed as “disinformation,” ostensibly to protect the public. Regrettably, the opposition’s attempt to challenge this law in court was unsuccessful, as the Constitutional Court rejected the annulment lawsuit. This unfortunate decision will likely encourage the government’s strategy of intimidating opposition media further through bodies like RTÜK and the judiciary.

The arrest and subsequent release of journalists Barış Pehlivan and Tolga Şardan due to their news and commentaries that didn’t align with the government’s preferences, along with RTÜK imposing substantial fines on some opposition channels, serve as initial indicators of this concerning trend.

Amidst all these developments, there isn’t much room for optimism on the opposition front. Although the recent change in leadership within the Republican People’s Party (CHP), with Özgür Özel elected as chairman during the last congress, appeared to inject fresh enthusiasm into the party, it remains uncertain whether Özel and his team can elevate the party beyond its current standing. President Özel’s efforts to carve out a prominent role on the political stage and convey the impression that the CHP is now led by a dynamic team capable of taking the initiative do not appear to have met with much success.

Meanwhile, the rumors circulating that Özgür Özel is the “trustee” of Ekrem İmamoğlu or that he is under his tutelage may confuse the CHP’s likely voters. On the other hand, there is at least some uncertainty as to whether the new administration will continue the strategy initiated by former chairman Kılıçdaroğlu to “make amends” with the victims of the party’s past mistakes and thereby expand the party’s base. The anachronism in the new chairman’s use of a language that emphasizes the “Six Arrows” in the CHP’s heritage may be a sign that Özgür Özel will not follow Kılıçdaroğlu’s strategy in the new era of the party.

On the other hand, the situation in the Good Party, the second-largest party in the opposition, is less than promising, and the party has been experiencing a recent exodus of prominent members. Well-known public figures, including former Central Bank Governor Yılmaz, have been leaving the party individually. It’s becoming increasingly uncertain how long Meral Akşener can maintain party cohesion. This raises questions about why Akşener hesitates to form an alliance with the CHP in the upcoming local elections, especially when she needs a political victory.

However, suppose the opposition fails to overcome its current disarray and establish an electoral alliance, at least in major cities like Istanbul and Ankara. In that case, there’s a risk that these cities could once again come under government control. Such an outcome could jeopardize the future prospects of both the CHP and the Good Party.

Meanwhile, as mentioned earlier, the Erdoğan-Bahçeli alliance has not abandoned its objective of enacting constitutional amendments to maintain the political status quo. In fact, the recent constitutional crisis sparked by the Supreme Court of Appeals appears to have been orchestrated for precisely this purpose. A statement made by President Erdoğan last Saturday also provides valuable insights into the background of their constitutional amendment strategy. Erdoğan stated, “It would be advantageous (…) to change the 50+1 requirement in the presidential election. If the procedure for electing the candidate with a majority is adopted, the presidential election will be swift, hassle-free, and less likely to lead astray. (…) When we say ‘The candidate with the most votes is elected,’ the election will conclude promptly.” It’s worth noting that when Erdoğan mentions “the candidate who receives the absolute majority,” he is referring to the relative majority, i.e., the candidate who garners more votes than any other candidate to secure victory.

Accordingly, the content of the AKP-MHP coalition’s proposed constitutional amendment package is more or less explicit:

1. The introduction of a proportional majority requirement in the election of the President of the Republic.

2. Restricting the power of individual application to the Constitutional Court to the point of rendering it ineffective or possibly transferring this power from the Constitutional Court to the Court of Cassation.

3. The realization of a previously unrealized project: the constitutionalization of the wearing of headscarves for women and the promotion of a conservative understanding of the family.

In the meantime, it’s worth noting that as the next presidential election, whether “early” or on time, approaches, there is a high likelihood of efforts being made to shape public opinion with a seemingly “scientific” thesis that “the constitutional status of the president has changed; hence, this election will mark the first election for Erdoğan.” Alternatively, they may attempt to introduce a temporary provision into the Constitution to achieve the same outcome.

See you in the next Freedom Observer.

* Mustafa Erdoğan

Crisis of the Rule of Law

As Turkey celebrates the 100th anniversary of the Republic, it finds itself entangled in the most significant judicial crisis in its history. The 3rd Criminal Chamber of the Court of Cassation has boldly declared its refusal to comply with the decision of the Constitutional Court despite the Constitution’s mandatory provisions. Going even further, it has filed a rather peculiar criminal complaint against the members of the Constitutional Court. Furthermore, the chamber has accused the Turkish Grand National Assembly of neglecting its duties and, in a striking move, read out a criminal verdict against MP Can Atalay during a general assembly session, advocating for his removal from parliamentary office.

This crisis is the latest in a series of unlawful acts that have been ongoing since the inception of the Gezi Trial. Beginning with the arrest of businessman Osman Kavala in 2017, each subsequent legal scandal has been so significant that it overshadowed the previous one. While the Council of Europe was on the verge of imposing sanctions on Turkey for its failure to implement the ECtHR ruling regarding Kavala’s arrest, a local court acquitted all defendants in a case where the ECtHR had concluded that there was insufficient evidence for the arrest and that it was politically motivated. Nevertheless, the judges responsible for this verdict were suspended, and investigations were initiated against them.

Subsequently, this decision was overturned by the Court of Appeals, and on April 25, 2022, the local court sentenced Kavala to aggravated life imprisonment, while seven other defendants, including lawyer Can Atalay, were each sentenced to 18 years in prison. These sentences were initially upheld by the Court of Appeals. Finally, the 3rd Criminal Chamber of the Court of Cassation affirmed the sentences of Kavala and Atalay, along with those of three other defendants, while overturning the sentences of three others. During the case’s proceedings before the Court of Cassation, we extensively covered Can Atalay’s election as a Member of Parliament in the previous issue of the Bulletin. In summary, the Constitutional Court, in line with its past jurisprudence, ruled on the violation of Can Atalay’s rights in the individual application filed following the rejection of his request for a stay of proceedings and a decision on his release due to his parliamentary immunity upon being elected as an MP. To rectify this violation and its repercussions, the Constitutional Court forwarded a copy of its decision to the local court, specifically the Istanbul 13th Assize Court.

In response, instead of ordering a retrial, releasing Can Atalay, and issuing a stay of proceedings, the 13th High Criminal Court forwarded the case to the Court of Cassation. They justified this decision by asserting that the Constitutional Court’s violation ruling was connected to the decision of the 3rd Criminal Chamber of the Court of Cassation, which had denied Atalay’s release. The 3rd Criminal Chamber of the Court of Cassation, in turn, refused to acknowledge the Constitutional Court’s violation ruling and opted not to comply with it. Furthermore, the chamber lodged a criminal complaint with the Chief Public Prosecutor’s Office of the Court of Cassation against the members of the Constitutional Court who had ruled a violation, alleging that they had exceeded their constitutional authority. Finally, the Constitutional Court forwarded its decision to the Grand National Assembly of Turkey (TGNA), stipulating that the TGNA should strip Atalay of his parliamentary seat.

There is no doubt that this decision is blatantly unconstitutional in many respects. Thus, it does not stem from a legal dispute arising from different interpretations of the law by various courts. On the contrary, it represents a clear violation of Articles 148, 153, and 158 of the Constitution. Article 148 of the Constitution empowers the Constitutional Court to review individual applications against finalized judicial decisions. Article 153 explicitly states that the decisions of the Constitutional Court are binding on judicial organs. Article 158 further dictates that in cases of jurisdictional disputes between other courts and the Constitutional Court, the Constitutional Court’s decision shall take precedence. Therefore, the Supreme Court’s contention that the Constitutional Court exceeded its constitutional powers lacks a constitutional basis, and it is evident that the Supreme Court is blatantly disregarding the Constitution.

It is increasingly evident that this crisis is not merely a judicial issue but a strategically orchestrated political crisis. While various speculations abound regarding the ultimate objectives of political actors, one thing is clear: this crisis will serve as an opportunity for a constitutional amendment. The government’s primary motivation for seeking such an amendment is to enable the current President’s re-election and, if possible, to eliminate the absolute majority requirement for the election. In exchange for conceding to this demand, it’s plausible that the government may be willing to entertain proposals to curtail the powers of the Constitutional Court.

The junior partner of the ruling party reiterated on the floor of Parliament that their primary demand was the complete abolition or restructuring of the Constitutional Court. Simultaneously, the Minister of Justice also stated that Constitutional or legal amendments could be considered to curtail the powers of the Constitutional Court. It is not challenging to anticipate that such changes would likely result in Turkey’s withdrawal from or expulsion from the Council of Europe, leaving individual rights devoid of protection.

When considered alongside allegations of rivalry between political factions or communities supposedly at the center of these developments, as well as rumors of corruption and misconduct within the judiciary, this evident judicial crisis underscores a profound crisis in the rule of law. It demonstrates that judicial independence has eroded entirely, and the judiciary now appears to be following political will rather than adhering to the law and the Constitution.

* Ali Rıza Çoban – Constitutional Lawyer

Özgür Özel Becomes CHP’s New Chairman

In the 38th Ordinary Assembly of the Republican People’s Party (CHP), Özgür Özel emerged victorious in the presidential race against Kemal Kılıçdaroğlu and was elected as the new chairman. During the congress, none of the candidates secured an absolute majority with the initial 684 votes in the first round. Consequently, in the second round, Özel increased his vote count from 682 in the first round to 812, securing his victory.

An intriguing incident unfolded between these two rounds. Following the first round, Kılıçdaroğlu contemplated withdrawing from the race and ascending the platform to raise Özel’s hand. However, at that moment, a video posted on social media captured İmambakır Ülküş loudly telling Kılıçdaroğlu, “We won’t permit you to withdraw. Let’s continue the fight, and if we lose, let’s do so with dignity.” This statement elicited a strong reaction from many observers of the assembly. Subsequently, Kılıçdaroğlu announced that he would not withdraw, prompted not by the CHP leaders in his inner circle but by a village head from Malatya, who told him, “I don’t want you to withdraw, and I won’t allow it. If you do, I won’t grant you the rights of my children.”

Many perceived Kılıçdaroğlu’s failure to engage in self-critique after the elections, take responsibility for the defeat, and fulfill his political duties as a result of pressure from party elites who supported him. Regardless of the accuracy of these interpretations, Kılıçdaroğlu’s conduct since May has once again underscored the deep attachment that political party leaders have to their positions.

Özgür Özel’s election as CHP chairman represents a noteworthy development for democracy. Despite suffering significant defeats in previous elections, including the recent May elections, Kılıçdaroğlu was reluctant to relinquish his Presidency. The fact that Özel, who aligns with the “change-makers” faction within the CHP, led by Istanbul Metropolitan Municipality mayor Ekrem İmamoğlu, secured the chairmanship through a competitive election is a significant milestone, not only for internal party democracy but also for Turkish democracy as a whole.

While the transformation within the CHP is a necessary step for the opposition to regroup, it is not sufficient on its own. Özel’s election could be just the beginning of the changes required for the opposition to rejuvenate and cultivate a more expansive political vision. In this regard, the impending local elections in March 2024 are both urgent and fraught with uncertainties. It remains unclear how the new CHP leadership will collaborate with other parties and what kind of alliance model and candidate selection strategy it will advocate for in the local elections. Furthermore, the ability of this new era to appeal to voters, especially those who have become disengaged from politics, and how the opposition will connect with a broader audience will be pivotal factors in determining the success of the local elections. In conclusion, the election of Özgür Özel as the CHP’s chairman presents an opportunity for rejuvenating the CHP and reinvigorating the opposition in Turkish politics. Yet, the impact and sustainability of this transformation will hinge on the roadmap the party charts and the policies it formulates in the months and years ahead. Therefore, the decisions and actions that Özel and his new team undertake will be pivotal for both the party’s future and Turkey’s democratization endeavors.

Ömer Faruk Şen – Ph.D. – Missouri University

Urban Transformation Law Amendments Threaten Property Rights

On November 7, 2023, Omnibus Law No. 7471 introduced noteworthy amendments to Law No. 6306, also known as the Urban Transformation Law, as well as to various other laws and decrees with the force of law. These amendments raise concerns that urban transformation may transform into a mechanism for generating rent and enable arbitrary interference with private property rights.

This law, first and foremost, modified the definition of a “reserve construction area” in Law No. 6306 by removing the phrase “as a new settlement area,” allowing for the designation of existing settlements as reserve construction areas. Consequently, prime real estate locations within cities have been labeled as reserve construction areas, creating a pathway for the expropriation of privately owned residences and businesses, even in the absence of earthquake risk. A reserve construction area pertains to regions earmarked for use in applications under the law, precisely urban transformation initiatives. These areas can be designated for residential and commercial purposes and opened up for construction.

However, the law does not specify which areas will be designated as reserve construction areas or outline the criteria for such designations. Areas can be designated as reserve construction areas by the Urban Transformation Presidency based on requests from TOKİ, municipalities, special provincial administrations, or through ex officio determinations.

It is evident that this regulation, which grants the administration the authority to designate any location as a reserve construction area for urban transformation without established criteria, poses a threat to private property rights. The absence of specific criteria in the law also undermines the effectiveness of judicial review in lawsuits filed against the declaration of reserve construction areas. This wide-ranging discretionary power granted to the administration has also limited the scope of judicial oversight. Concerns are further justified by the observation that urban transformation efforts have predominantly been implemented in high-rent areas rather than in regions with the highest earthquake risk or the most structurally vulnerable buildings.

Additionally, the law specifies that undesignated areas located within the urban transformation implementation zone, or areas designated for use by the Urban Transformation Presidency, can be transferred to the Presidency after being registered under the treasury’s name. Alternatively, they may be transferred to TOKİ and the Administration without charge upon the Presidency’s request. This opens the door for publicly owned areas, mainly military properties in high-rent areas, to be converted into revenue sources under the pretext of urban transformation. Unfortunately, the law lacks both objective criteria and institutional safeguards to ensure that each of these transactions is conducted in alignment with the public interest and in a manner that guarantees societal benefit. As in numerous other domains, the administration has been endowed with extensive discretionary authority.

To enable both real and legal entities to request the conversion of areas under their ownership into reserve construction areas, the law stipulates that they must consent to the transfer of ownership of thirty percent of the square meters of the land area intended for constructing the immovable in question. Alternatively, they may offer an equivalent amount to the Presidency to be allocated as revenue for special accounts dedicated to transformation projects. It is apparent that the requirement to allocate thirty percent of the land area for construction to the administration represents a substantial portion, which may deter the designation of privately owned areas as reserve construction areas. A more reasonable ratio might serve as an incentive for individuals to participate.

Additionally, the law specifies that in cases where the identification of risky buildings is obstructed, the determination can be made ex officio. This involves the opening of closed doors/areas by an adequate number of law enforcement officers, authorized by written permission from the local administration chief. It is evident that such interventions represent infringements on property rights and the sanctity of residences. Nevertheless, it is challenging to assert that the regulations in the law fulfill the requirement that rules granting the authority to infringe upon fundamental rights must be foreseeable and incorporate safeguards to prevent arbitrary actions. Consequently, the law poses significant threats to property rights.

* Ali Rıza Çoban – Constitutional Lawyer

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