Turkey’s Constitutional Court defies ECtHR in ruling over imprisoned former judge: report

The main building of Turkey's Constitutional Court.

Turkey’s Constitutional Court released its decision on an individual application lodged by an imprisoned former judge in which it defied a previous European Court of Human Rights (ECtHR) ruling on a similar case that found the pre-trial detention of a judge to be in breach of the European Convention on Human Rights, the Turkish Minute news website reported.

The Constitutional Court delivered its judgment on the case of Yıldırım Turan, a former judge who after a failed coup in July 2016 was held on charges of membership in a terrorist group in a trial still being overseen by a high criminal court. Turan in his application claimed that his pre-trial detention was in violation of his right to personal freedom and security.

Referring to an ECtHR ruling delivered on the pre-trial detention of another member of the judiciary (Hakan Baş v. Turkey), the Constitutional Court said that while the ECtHR rulings remain binding for Turkey, the interpretation of Turkish laws on the imprisonment of members of the judiciary pertains to the Turkish courts, which are “much better positioned than the ECtHR for explaining and interpreting the provisions of the Turkish law.”

The Constitutional Court described the ECtHR’s divergence from Turkish courts in interpreting national law as “unacceptable.”

The ECtHR had found in Hakan Baş, a case concerning the pre-trial detention of a former Turkish judge on suspicion of membership in a terrorist organization without observance of the procedural safeguards afforded to judges in domestic law, that the national courts’ extension of the scope of the concept of in flagrante delicto (to be caught red-handed) and their application of domestic law are not only problematic in terms of legal certainty, but also appear to be manifestly unreasonable.

Turkish legal experts reacted to the verdict on social media.

Prominent Turkish lawyer Akın Atalay said the Constitutional Court “has declared its loyalty to the current machinery of lawlessness,” adding that the court has practically abrogated Article 90 of the Turkish Constitution, which stipulates that in the event of a conflict between national laws and international agreements, the latter should take precedence.

“It is the first time that the Constitutional Court has declared its defiance against the ECtHR jurisprudence,” human rights expert Kerem Altıparmak tweeted. “If the Constitutional Court reasoning is accepted, it will not be possible for the ECtHR to review any national law on the basis of the principle of legality.”

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