Turkish court again refuses to release journalist Altan despite top court’s ruling

İstanbul’s 26th High Criminal Court on Friday rejected a demand again for release filed by lawyers representing journalist Mehmet Altan despite a decision by Turkey’s Constitutional Court to free the jailed journalist that was published on the same day in the Official Gazette.

The Constitutional Court had ruled on Jan. 11 that journalists Altan and Şahin Alpay be released, saying their rights had been violated. But İstanbul’s 26th and 13th high criminal courts that evening refused to comply with the order to release the journalists, stating that the verdict had not yet been published in the Official Gazette.

Lawyers for the two journalists on Jan. 15 appealed the rulings to İstanbul’s 27th and 14th High Criminal Courts. Denying the requests, both courts upheld the decisions of the two lower courts.

Turkey’s top court had ruled on January 11, 2018 to release jailed Altan and Alpay, saying their continued imprisonment violated their rights to personal liberty and security protected under Article 19 of the Turkish Constitution and “freedom of expression and the press” protected under Articles 26 and 28.

The court had stated that “press freedom as a specific element of freedom of expression has vital importance in democracies. It includes not only the dissemination of ideas and information, but also society’s access to those ideas and information,” dovetailing the European Court of Human Rights’ (ECtHR) jurisprudence on the role of journalism and the importance of press freedom in a democratic society. The decision was taken by an 11-6 majority vote. It was widely expected that the ruling would set the precedent for the release of other journalists in the country.

However, İstanbul’s 26th and 13th High Criminal Courts have refused to comply with the order of the top court to release jailed journalists Altan  and Alpay by stating that “it is not legally possible to fulfill the release order of the Constitutional Court” by accusing the top court of “grabbing its mandate.”

İstanbul 13th Criminal Court has also stated that the Constitutional Court can not perform ‘evaluation of evidence’ and ‘examination of appropriateness’ which would replace local courts for whatever reason, saying that they have examined the verdict published by the top court on its internet site and the petition of defendants.

Low level courts’ decisions have been the first instances of resistance showed by local courts to a clear order of the Constitutional Court which was established by 1961 Constitution. Under the Turkish Constitution’s Article 153, all Constitutional Court rulings enter into force immediately and are binding for the legislative, executive and judicial organs, including the administration and officials.

The local courts’ decisions of resistance against the order of the Constitutional Court have also resulted in the abolishment of the “effectiveness of the individual applications to the Constitutional Court” which was legislated by a popular referendum on September 12, 2010.

The local court’s astonishing move has come following the Turkish government officials’ criticism targeting the release decision of the Constitutional Court claiming that the top court has been overstepping its authority.

Altan has applied through his lawyers to the Constitutional Court on January 17, 2018 to push for the execution of his release from jail, after the top court last week ruled that his imprisonment violated his constitutional rights.

Lawyers representing Altan has also filed a complaint to the Board of Judges and Prosecutors (HSK) against judges on the panels of the 26th and 27th High Criminal Courts of İstanbul for not implementing the Constitutional Court’s judgement. The petition stated that the decisions handed down by these judges violated the constitution.

Previously a Turkish court ordered the release of 21 journalists on March 31, 2017 from pre-trial detention only to reverse its decision within hours after pressure from the Justice and Development Party (AKP) government under the rule of autocratic President Recep Tayyip Erdoğan.

Altan, a professor of economics at İstanbul University and a columnist known for his liberal views and criticism of the government, and Alpay, a veteran journalist and columnist for the now-closed Zaman and Today’s Zaman dailies, were jailed in a crackdown on media after an abortive coup in Turkey on July 15, 2016.

The two are charged with membership in a terrorist organization, abetting a coup against the government and attempting to destroy the constitutional order. Prosecutors also accuse the suspects of links to the faith-based Gülen movement, blamed by the Turkish government of having masterminded the putsch.

Mehmet Altan was arrested along with his brother Ahmet Altan, a novelist and former editor-in-chief of the closed-down Taraf daily, on charges of sending “subliminal messages” to coup plotters in a TV program on July 14, a day before the coup attempt.

Turkey is the biggest jailer of journalists in the world. The most recent figures documented by the SCF has showed that 242 journalists and media workers are in jails as of January 4, 2018, most in pre-trial detention languishing in notorious Turkish prisons without even a conviction. Of those in Turkish prisons, 215 are arrested pending trial, only 27 journalists remain convicted and serving time in Turkish prisons. An outstanding detention warrants remain for 138 journalists who live in exile or remain at large in Turkey.

Detaining tens of thousands of people over alleged links to the Gülen movement, the government also closed down more than 180 media outlets after the controversial coup attempt.

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