The Turkish Constitutional Court and Turkey’s Democratic Breakdown: Judicial Politics Under Pressure

1 Introduction

During its 60 years of existence, the Turkish Constitutional Court has always occupied a significant role in Turkish politics and public debate with its interventionist or subservient stances. Its establishment by the 1961 Constitution has represented a paradigm shift in the republican constitutional tradition which was built upon the supremacy of the parliament. The early republican tradition praised the parliament not only as a legislature, but an epicenter of policy formation under a single party regime until 1946. The secular modernization was consolidated through statutory legislation that the transformative role of the parliament was endorsed by its supremacy as the sole representative of national sovereignty.

The Turkish Constitutional Court as a new policy preference of constitutional politics in 1961 can be primarily explained by endogenous factors arising from domestic political tensions in the post-war era. In 1950, the transition to the multi-party regime under a heavily majoritarian electoral system resulted in the landslide victory of the opposition, the Democrat Party (DP), criticizing the post-war economic hurdles and the secularist practices. Nonetheless, parliamentary supremacy as a constitutional principle served to the power concentration of the DP in a one house parliament free from effective checks and balances. Beginning from 1957 elections, the DP tried to keep itself in the government through intimidation politics against dissents in contrast with its former liberal discourse. This was a matter of the prevalence of intolerant practices between political factions. Turkey had had parliamentary experience for decades, but the political actors were not committed to the principle of competitiveness. They did not perceive the hostile partisanship and bitter rivalries enhanced by political majoritarianism as a threat to their own rights. The illiberal turn of the DP harassing political opponents and suppressing civil rights relied heavily on the unconstitutional laws that undermined the trust in a democratically elected parliament. The military intervention in 1960 endorsed by the opposition parties and the educated civilian elite put an end to the DP government by a promise of a new constitution. Against this backdrop, the constituent assembly of the 1961 Constitution proposed the establishment of a constitutional court ensuring horizontal accountability and fundamental rights against arbitrary governments.

Besides the endogenous factors portrayed above, there was also an exogenous factor for the Turkish Constitutional Court, namely the rise of judicial review in Europe under the post-war constitutionalism. The civic representatives of the constituent assembly of the 1961 Constitution-including leading progressive legal scholars-considered the emerging constitutional courts in Germany and Italy as preeminent models. The Constitutional Court was built upon the Kelsenian model of centralized and specialized review in the 1961 Constitution. The 1982 Constitution that represents the current model did not change this The Court has jurisdiction of a posteriori abstract and concrete norm review and decides on the individual applications regarding the human rights violations. It is also prescribed as the specialized judicial authority for dissolution and auditing of political parties, as well as being tasked with impeachment trials of high-ranking state bureaucracy.

Although the 1961 and 1982 Constitutions were enacted in the aftermath of military inventions, they have contradictory approaches to constitutionalism and different constitutional expectations for the Constitutional Court. The 1961 Constitution empowered the Court with a strong judicial review, especially in terms of standing of the parties, the extended time margins for applications, and the effects of judgments. In an explanatory report of the 1961 Constitution provided by the Constitutional Committee, the Court was defined as a constitutional organ safeguarding limited government with a specific emphasis on the rights-based function of judicial review.^[1] Accordingly, the Court was perceived as an institution of the effective minoritarianism having a partnership role in Turkish democracy against unconstitutional majoritarianism.^[2] In contrast with this, the 1982 Constitution contains a weaker model of review compared to the 1961 Constitution. The 1982 Constitution supported the constitutional imagination of the right-wing political parties with its constrained design for the Court. The right-wing political parties undertook the DP’s tradition of majoritarianism as the non-state elite, but they have had the constant claim for a supremacy of parliamentary governments over the Constitutional Court. This tension between the longstanding right-wing governments and judicial interferences of the Court in their policy preferences has marked the political debate for a long period of time. Furthermore, the discussion in entrenched democracies as regards the ‘governing with judges’ and ‘court-centered constitutionalism’ was applied in the case of Turkish Constitutional Court at times.^[3]

Although the 1982 Constitution was in line with the demands of the right-wing forces for a weak judicial review, the Court’s active stances and minoritarianism were again remarkable. The Court has been widely seen, until recently, as an institution for republican elitism that served militant secularism, and hegemonic preservation of Kemalism against the will of a dominantly Muslim society represented by the non-state elite parties.^[4] Moreover, the constitutional judges were regarded as judicial loyalists of republican establishment and state interests defined by the bureaucratic elite. The juristocracy discussions were popular in Turkey in early 2000s. Yet, hegemonic preservation thesis needs well-functioning and independent courts, and this was not feasible for the Constitutional Court in the post-1982 era because of its one-sided subordination to the bureaucratic elite coalition led by military.^[5] However, it is clear that the Court has to operate mostly in a political climate of constitutional fragility where the formal institutions of constitutional democracy are established, but the disrespect to the Constitution is expressly manifested by political actors in many occasions.

In contrast with the views that the Court has been state-centric to promote state interests (‘the reason of state’) defined by the bureaucratic elite, the attitudinal analysis of Yıldırım, Kutlar and Gülener shows that there was not such a strong pro-statist attitude among judges.^[6] Using ‘liberalist-statist’ binary and dynamic item response methodology (IRS) regarding the decisions of 67 judges, they come to the conclusion that the majority of constitutional judges were neither liberalist nor statist in the examined period (1962–1982). Notably, a quantitative analysis between years of 1984–2007 demonstrates that the Constitutional Court has maintained the horizontal accountability preventing executive transgressions.^[7] Accordingly, the Court’s acceptance of the claims pertaining to the violation of state principles (for instance secular-unitary principles) is less likely than horizontal accountability claims as regards the other unconstitutional preferences of the government. Moreover, the constitutional claims of the state-elite parties were no more likely accepted than the non-state elite parties by the Court. However, another empirical study finds that the possibility of the Constitutional Court to repeal the laws triples when most of the judges represent preferences of the republican-secular state-elite, but the government is not from the state-elite party such.^[8]

Between the years of 2007–2010, the Court created the belief in part of a religiously conservative government, the ruling AK Party, that judicial review has a strategy of aggressive constitutional control over governmental policies on major policy preferences. The constitutional case law hardening the presidential election of the AK Party’s candidate (2007) and imposing the ban on the use of headscarf in higher education institutions against the constitutional amendment to solve the issue (2008) heated the debate.^[9] The dissolution case against the AK Party in 2008 escalated the political tension that the Court rejected the ban of AK Party, but concluded the deprivation of the state aid as a sanction.^[10]

As a political backlash, the Court was reshuffled by the 2010 constitutional amendments. These introduced radical changes in the judicial governance of Turkey and heightened the concerns regarding the judicial independence.^[11] The AK Party government leveraged the unpopularity of the Constitutional Court to push for constitutional reforms. The reforms were presented as the democratization of judiciary while in fact placing the courts under control of the government incrementally. Accordingly, the amendments retained the incumbent judges of the Constitutional Court but increased the number of the judges on the bench through new appointments controlled by the AK Party. These constitutional rules on the structure of the Court are still valid. The state president plays the key role in determining composition of the Constitutional Court that 12 judges are appointed by him/her directly or upon nominations. Four judges are appointed directly by the president and eight judges upon the nominations of two apex courts (the Court of Appeals and the Conseil d’Etat) and the Higher Education Council. The parliament is granted the authority to elect three constitutional judges among the nominations of the Court of Auditors and the Turkish Bar Association. The simple majority serves as the quorum in the final round of voting at the parliament if the qualified or absolute majority is not provided in the first two rounds.

Starting with the 2010 amendments, the Court’s composition has significantly changed. The AK Party has become the determining actor for the new appointments to the Court. The empirical study provided by Varol, Dalla Pellegrina, and Garoupa assesses the impact of 2010 constitutional amendments on the judicial behavior of the Court. Their multivariate regression analysis shows a remarkable conservative shift in the ideological preferences of the Court as observed in the flexible interpretation of secularism that endorses Sunni Islam in public education and respects the headscarf in public services.^[12] Yet, this shift does not result in statistically significant outcomes.

At present, all judges of the Court have been appointed either by the majority of the AK Party or state presidents who are politically affiliated to the AK Party. As of 2023, 7 out of 15 judges were appointed by the president Erdoğan (directly or upon institutional nominations). The AK Party affiliations or former bureaucratic career of these judges under AK Party governments are striking as compared to the former appointments to the Court. The appointment of loyalists may guarantee the allegiance to the AK Party policies at the Court through cooperative judges. This manifests a principal-agent relationship in an explicit and politicized manner for the first time in the history of the Court.

The fragility of the Court is aggravated due to the demise of constitutionalism in Turkey depicted by the augmentation of executive power in the 2017 constitutional amendments. The constitutional reform of 2017 is meant to be a paradigmatic change towards presidentialism that restructures the state institutions and erodes political practices committed to the limited government. The presidential shift goes hand in hand with autocratization. Although Turkey was classified as an electoral democracy that furthered her democratic consolidation under the Europeanization process between 2001 and 2013, she has been marked as by democratic breakdown at present,^[13] meeting the characteristics of the third wave of autocratization as studied by Lührmann and Lindberg.^[14] Accordingly, the regressions as regards free media, civic space, the rule of law and horizontal constraints on the executive power are remarkable in Turkey’s democratic breakdown as observed in the third wave of autocratization. In this respect, Turkey represents an incremental constitutional decline worsening on the liberalization scale since 2013, ie, the year of the country wide protests against the AK Party government known as the Gezi Park protests.^[15] Shortly after the adoption of presidential system, Turkey’s score dramatically decreased to 0.349 particularly regarding clean elections (0.521) and freedom of expression (0.239).^[16] Turkey was in a group of countries of electoral autocracy that its Liberal Democracy Index plummeted by 35 percent by the end of Recep Tayyip Erdoğan’s first year in office.^[17]

Under Turkey’s democratic breakdown, the Turkish Constitutional Court offers a case-study to identify the dynamics of judicial politics in electoral autocracies. Although the Court has been subject to criticism regarding its low commitment to the political pluralism and rights-based approach previously, the current situation presents itself differently. It is marked by a massive erosion in democratic qualities including an abuse of judiciary against the dissents in an unprecedented manner. Yet, the Court is still formally independent and empowered through constitutional norms such as the fixed tenure, retirement age, and jurisdiction in crucial matters. Since the institutional guarantees of the Constitutional Court are untouched, it has still the potential to become a major political player. Therefore, its study may also contribute to the comparative scholarship on the role of constitutional review under new pressures of the third wave autocratization that contraction and expansion dynamics of judiciaries can be better understood.^[18] The present study aims to feature the judicial politics of the Court under Turkey’s current democratic regression by conceptualizing a resistance-deference paradox on the ground politically significant cases.

2 Paradoxes of the Constitutional Court: Resistance and Deference as a Pattern

At present, the Constitutional Court does not represent the characteristics of a typical subservient court. The Court’s stances challenge the presumption that constitutional review under conditions of democratic breakdown is always faithful to the autocratic regime. However, it is not a protagonist institution as well that constitutional claims of the regime opponents are fulfilled. The Court’s judicial behavior deserves attention to understand the role of judiciary under electoral autocracies.

Although the current judges were appointed by the ruling AK Party elite (AK Party affiliated presidents and parliamentary majorities), the criticism of the government towards the Court can surprisingly take sometimes the form of direct threats to its jurisdiction or immediate assault on the judges.^[19] In contrast with the criticism and anger of governmental circles, the opponents of the regime are concerned about the weak or sham resistance of the Court against autocratic policies.^[20] The criticism from both sides can be explained by a variety of factors. The Constitutional Court has a meaningful jurisdiction regarding norm reviews and individual applications with structural arrangements for its independency (such as fixed tenure and dissenting opinions). It is not a formally constrained institution but empowered to confront politically sensitive issues. The Court provides an arena of contestation in a political climate where the autocratic hegemony excludes the democratic deliberation and conflict resolution. Triggering judicialization versus autocratization, the human rights defenders, or parliamentary opposition challenge the government by using the legal remedies of constitutional review in a variety of critical issues of democratic concern. This makes the Constitutional Court sometimes the main source of inherent tensions. The Court is expected to curb the oppressive polices and the abuses of the lower criminal judiciary which endorses autocratization at times.

Yet, the Court cannot be regarded as a protagonist and progressive judiciary. There is no doubt that it has mostly complied with AK Party’s policy preferences even at the expense of changing well-established approaches.^[21] In this respect, the Court has already reversed its own active and strong stances based on the purposive interpretation. These include the crucial cases regarding the expansion of executive power and the pitfalls of emergency regime.^[22] Differing from its previous doctrines of strict scrutiny and illicit practices, the Court’s reshuffling after the 2010 constitutional amendments has resulted in the submissive judicial interpretations. This is adopted, initially, for the decrees having the force of law by favoring the executive power (2011), and then by appealing to judicial self-restraint for the emergency decrees (2016).^[23] These interpretative shifts of the Court are instances of an absolute deference that empower the executive in the institutional balance at the expense of the democratic oversight and rule of law guarantees.

On the other hand, abstract review seems to play still a crucial role for providing horizontal accountability through nullification of the government preferences imposing autocratic policies. Thus, the Court has been quickly demonized by the ruling elite because of such annulments of suppressive legislation. For instance, the Minister of the Interior attacked the Court for nullifying two piece of suppressive legislation, namely the ban on demonstrations on expressways and the imposition of security investigations for public servants.^[24] Later, his furious criticism was supported by the nationalist ally of the government calling for amendments in order to ensure a more obedient constitutional court.^[25] Despite the threats, the Court was not hesitant to annul sensitive legislation issued under the emergency regime after the coup attempt in 2016. It revoked the provisions on the closures of media outlets and the seizure of their properties on the ground of posing a threat to national security.^[26] Nevertheless, the Court’s ruling was belated (2020). Many seized assets and broadcasting licenses had already been sold. Similarly, the Court repealed some crucial emergency provisions that impeded the re-evaluation of arrest decisions and expanded the authority of the National Security Council.^[27]

Notably, the individual application procedure as a supportive mechanism for human rights protection threatens stable autocratization by creating uncertainty for the regime. The individual application procedure was adopted in the 2010 constitutional amendments and presented as a part of Europeanization project alongside with the institutional changes for the judiciary. Nonetheless, the 2010 amendments included also an institutional reform changing the self-governance of Turkish judiciary and composition of the Court. This fueled the polarization since they allowed the AK Party government to control the new appointments to the Constitutional Court. It is not easy to clearly identify the real intentions of the AK Party elite regarding individual application that was part of 2010 constitutional amendments. The adoption of individual application procedure was regarded by the critics as a political tactic of the hypocritical government to receive support from the EU. It was defined as a veiling strategy to implement its hidden agenda to capture the judiciary. Moreover, once the Court was captured than it could not be as challenging – for the government – to have such a mechanism, compared to having such a mechanism with a fully independent court.

At present one thing is clear under increasing autocratic pressure of AK Party government. The individual application has realized an unexpected potential to serve like a structural arrangement of judicial empowerment. It increases the independence of the Constitutional Court by elevating the rights-based accessibility. This seems to be an unintended consequence of the 2010 amendments showing that the autocratic control of constitutional judiciary is not always guaranteed once the rights-based legal remedies and institutional capacities are provided.

Yet, the abolition of the individual application seems too costly because of the importance of the individual application procedure as a legal remedy in the eyes of public. Under current political context, the role of the Court as a popular agent comes to the focus through individual application case law. This is inevitable due to the low commitment of public authorities to human rights serving the autocratic transition. Thus, the individual application as a new form of legal remedy leads to a shift of power from the government to the Constitutional Court as a form of judicial expansion.^[28] Furthermore, it means a shift of power from the lower courts to the Constitutional Court. Latter are open to the autocratic control, since the judicial recruitments, appointments, and reshufflings are controlled easily by the Council of Judges and Prosecutors which is headed by the Minister of Justice.

The individual application procedure has significantly increased the strategic litigation of the individual actors that are committed to protect the constitutional rights. Not only the political opponents or human rights defenders, but also the ordinary people have learned to frame their claims in the language of human rights through individual applications. Increasingly, they have applied to the Court to advance their rights-based claims. This expands the awareness and knowledge about the constitutional rights that the expectations as regards the Court raise. The Court is under a heavy case load due to the legal mobilization of litigants but seems responsive to the demands despite criticisms.

Remarkably, the recent statistics show that 98,4 % of the admissible applications which were reviewed on their merits are resolved in favor of claimants to redress the violation of constitutional rights between 2012 and 2023.^[29] Overall rate of the violation decisions (considering all applications) is 17.5 % (70.058 violation decisions among 400.877 applications).^[30] The cumulative amount of the violation decisions between 2012 and 2023 can be compared respectively in Figure 1 as regards a group of selected rights.^[31]

Figure 1:

Distribution of the violation decisions with respect to the selected constitutional rights between 2012 and 2023.

Despite the popularity of the individual application, the Court’s response to autocracy is unstable and inconsistent. There is a resistance-deference paradox in case law. This is observed in politically significant cases that relate to the core interests of the regime such as the state security, presidential authority, or the dissents. These cases have a significant public impact because of their political magnitude. In such politically sensitive cases where the paradox applies, the core interests of the regime are at stake in a comparable context, but the claimants are treated differently. This paradox generates the criticism of the regime opponents because such an unreliable judicial stance does not meet the expectations of the quality of justice.

Finally, the judicial strategies deployed by the Constitutional Court are of significance to test the impact and anchor role of the European supervision system for declining democracies of Europe. At present, the Constitutional Court’s constitutional rights review in the individual application procedure provides a buffer zone between Turkey’s domestic judicial system and the European Court of Human Rights (ECtHR). The ECtHR still recognizes the Constitutional Court as a reliable institution under the European system, asking for the individual application as a final domestic remedy before the Court to be exhausted.^[32] Nonetheless, the impact of the ECtHR case law is limited due to the deference-resistance paradox to be observed in the Constitutional Court’s case law. It does not provide a strong incentive for full compliance with the human rights standards of the ECtHR.

In the light of the above-mentioned explanations, the following questions are deemed the most relevant for the purposes of the present analysis. These may provide a framework for an exploratory and explanatory research regarding the judicial politics of the Constitutional Court:

1. In which areas may the deference-resistance paradox be observed against the challenges of autocratic policies?

2. When and under which circumstances does the Court defer and resist to autocracy in cases of seminal significance? What are the internal and external dynamics of judicial resistance of the Court? What is the role of the ECtHR in the external dynamic?

3. What are the functions of the resistance-deference as judicial politics?

In this respect, the politically significant cases with different outcomes (deferring or resisting) can be prioritized and juxtaposed to draw upon the constitutional case law that relates to the major areas of Turkey’s democratic breakdown. The relevant case law is composed of the claims that have been either widely discussed in the public debate due their political magnitude, received criticism from major political forces, or brought before the ECtHR. The first cluster of these cases concerns the rights-related case law regarding journalists and human rights defenders. The second cluster includes the case law regarding the executive power as a matter of new institutional balance under the presidential system as adopted in 2017. The relevant case law demonstrates the possibilities for horizontal accountability of a strong executive under autocratic pressure.

3 The Resistance-Deference Paradox (1): The Rights-Related Case-Law

The rights-related case law in which the resistance-deference paradox may be observed relates to independent journalism and the suppression of civil society. They represent the leading issues that define Turkey’s democratic breakdown as observed by the Liberal Democracy Index and Electoral Democracy Index.^[33]

Turkey has been marked as a country which has the highest number of imprisoned journalists of the Council of Europe (CoE) member states.^[34] As of October 2023, there are 41 journalists in detention according to the data of the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists.^[35] The Annual Report of the Platform in 2020 underlined the government’s conflation of critical journalism with terrorism in most of the cases regarding the journalists.^[36] In its Resolution 2317 (2020), the Parliamentary Assembly (CoE) draws attention to the abuse of the criminal code and anti-terrorism laws against journalists that ‘are held in arbitrary pre-trial arrest and detention for months, sometimes for years, before their cases come to court’. As stated in the joint report of six human rights NGOs for the Universal Periodic Review 2019 (UPR), the stigmatization and marginalization of human rights defenders has become prevalent in Turkey.^[37] They take the form of smear campaigns, defamatory labelling in the media, hostile political speeches by high-profile political figures, threats and intimidation, and the use of violence by the police during peaceful demonstrations. The EU Commission Turkey Report 2020 noted that between April 2019 and December 2019 at least 1138 peaceful meetings and demonstrations were intervened, during which at least 2851 persons were detained.^[38] In the 2020–2021 period, the number of peaceful demonstration decreased because of COVID-19 measures, but again a large number of protesters (at least 2123) were detained in the 320 peaceful assemblies on the grounds of inciting hatred, insulting religious values and resisting the police.^[39] Feminist activists were prosecuted because of the massive protests regarding Turkey’s withdrawal from the Istanbul Convention on prevention of domestic violence and violence against women by a midnight presidential decree.^[40] The stigmatization of the LGBTQ-I community by the Minister of the Interior has become a matter of concern in the meantime EU Commission 2022. Report claims that the number of detainees exceeded the number of people detained in 2021 at all previous Istanbul Prides combined.^[41]

The Commissioner of Human Rights of the CoE defines the ‘concerted and continuous pressure’ as the most worrying practice exerted on human rights defenders in form of judicial proceedings.^[42] Considering journalism and civic society as core areas of looming autocratization, the relevant case law of the Constitutional Court may play the crucial role to test the resilience of the constitutional review against autocratic pressure.

3.1 Journalism Case-Law as a Touchstone

3.1.1 Resistant Stances: Şahin Alpay and Mehmet Altan Cases

The case law concerning the criminal trials of journalists is the first cluster that the resistance-deference paradox of the Constitutional Court can be delineated. Remarkably, the resistant stance of the Court has come to the forefront in the case law on two journalists, Mehmet Altan and Şahin Alpay. They were both known as journalists having close ties with the ‘Gülenists’ (known also as Hizmet or Gülen Movement), their media outlets, and public activities. The Gülenists, led by the reclusive cleric Fetullah Gülen, were a politically active, but closed community with many economic enterprises, charity networks, and charter schools in different countries. It was the leading ally of the AK Party government until it became a quasi-state actor in 2013.^[43] Gülenists provided the bureaucratic and intellectual support to the AK Party government within the state administration (particularly the police and judiciary) against the Kemalist establishment. This support included clandestine and criminal tactics to discredit not only the Kemalist elite, but also opponents including progressive journalists and secular activists. Yet, the alliance was dissolved because of the disagreements over power sharing that resulted in mutual retaliations such as the graft prosecutions of the Gülenist judiciary against the AK Party elite, and, in turn, the purge of the Gülenists in the police and judiciary by the AK Party government. The Gülenist movement was, at first, classified as a ‘parallel state structure’ in 2015, and then, a terrorist organization (Fetullahist Terrorist Organization, FETÖ) after the coup attempt in July 2016 on the ground that the cleric Fetullah Gülen and his community within the state organized the bloody plot to overthrow the government.^[44] Two journalists, Mehmet Altan and Şahin Alpay were labeled as the media agents of the Gülenists in public discussions that they were tried in the criminal courts with long pre-trial detentions and heavy charges on the ground of their involvement in the coup attempt.

The Constitutional Court ruled in January 2018 in favor of these two journalists by declaring that their deprivation of liberty was not in line with the constitutional standards of lawful detention and freedom of press.^[45] In both cases, the detentions of journalist were on remand without providing any concrete evidence, based solely on their publications or verbal statements. Under these circumstances, the detentions were seen by the Court as severe measures undermining constitutional rights because of ‘the lack of a strong indication of guilt’. In this respect, the Court praised the overarching value of the freedom of press in a democratic society by referring to the chilling effect doctrine of the ECtHR in the context of the principle of proportionality. It underlined that the possible chilling effect of the interferences with the freedoms of expression and press both on journalists and on the media should be considered. Accordingly, the important role of the press should receive the utmost consideration in a democratic society.

These rulings of the Court in the Mehmet Altan and Şahin Alpay applications seem in line with its own institutional approach towards expanding the freedom of expression pursued after the adoption of the individual application procedure in 2012.^[46] Although these two rulings on the journalists were majority rulings (11 ‘yes’ votes to 6 ‘no’ votes), they represent a strong judicial resistance under a repressive political context in highly sensitive cases. Inevitably, the Court risked a direct confrontation with the AK Party government on the ground of these decisions. Besides the backlash from governmental circles including threats of curbing constitutional review, these pro-journalism rulings led to a clash between the lower courts and the Constitutional Court.^[47] This was an unprecedented crisis in the history of constitutional review of Turkey. The backlash was a counterattack of the lower courts to undermine the authority of the Constitutional Court. Since two journalists were not released by the disobedient lower courts accusing the Constitutional Court with a usurpation of their jurisdiction, the Constitutional Court had to issue a second decision for demanding the release on the ground of the right to liberty and the right to fair trial.^[48]

Significantly, the ECtHR joined the judicial conversation during the crisis. Only five days after the second decision of the Constitutional Court, it adopted a supportive decision for the application of Şahin Alpay.^[49] The ECtHR’s decision recalls the effectiveness of the Constitutional Court decisions as a domestic remedy that could be endangered in case the lower courts insist on their disrespectful stances. Additionally, it underlines the slow response of the Constitutional Court in Şahin Alpay’s case (16 months and three days) by reserving its own jurisdiction if speediness requirement is not met. A similar decision has been also adopted by the ECtHR for Mehmet Altan’s release.^[50] Although Şahin Alpay was released and ordered to home confinement shortly after the second decision of the Constitutional Court, Mehmet Altan was not released despite the ECtHR’s ruling. Since the lower court did not obey the decisions of the Constitutional Court and the ECtHR, his release was to be ordered by the Court of Cassation, even if six months after the decision of the Constitutional Court.^[51]

Mehmet Altan and Şahin Alpay cases show the slow, but resistant behavior of the Constitutional Court that dares to pay the cost of retaliations and discrediting attempts of the ruling elite. Yet, the Court captured also the public attention by receiving large media coverage. Additionally, these cases reveal several strategic interactions between the Constitutional Court, the government, the ECtHR, and the Court of Cassation. Both the Constitutional Court and the ECtHR deployed a strategy of judicial deferral in a coordinated manner by delaying the political effect but protecting the legal continuity of the principles in their case law.^[52] First, the Constitutional Court tried not to trigger a retaliatory attack of the domestic institutional actors by delaying its response in such cases. Second, the ECtHR’s patient, but interventionist stance represents another strategic move in the European supervision system regarding the challenges of domestic regressions. Neither the Constitutional Court and the Court of Cassation nor the ECtHR acted on the ground of their legal or ideological preferences immediately but considered other issues. All these courts were constrained by political factors and other institutions under autocratic pressure that they only act strategically to pursue their goals. This can be regarded as a strategic resistance model in which both the Constitutional Court and the ECtHR were involved. The anticipating reprisals or uncertainties excluded the legal/technical model and/or the attitudinal/ideological model^[53] of judicial behavior under Turkey’s current autocratization.

3.1.2 Deferring Stances: Cumhuriyet Journalists

As regards the varieties of resistance-deference, the case law on the applications of journalists in the Cumhuriyet trial represents the use of a tactical approach by the Constitutional Court for reviewing the violations pertaining to the same trial. The Cumhuriyet trial is an extremely important journalism-at-risk case as it raises global concerns regarding the decline of freedom of the press. Praised as the école supérieure of Turkish journalism, Cumhuriyet is the oldest newspaper of Turkey’s republican era with its secular, progressive, and critical publications essential to democratic politics.^[54] The involvement of the Constitutional Court in the Cumhuriyet trials are related to the unlawful detentions of the journalists and the violation of freedom of press. Nonetheless, the Constitutional Court did not further its resistant stance for the Cumhuriyet trial applications as observed in Şahin Alpay and Mehmet Altan cases. At present, the Cumhuriyet case is still pending before the Grand Chamber of the Court of Appeals for the final verdict after the completion of the process before the lower court and the Court of Cassation.

In fact, President Erdoğan’s severe criticism against Cumhuriyet became remarkable with the publication of photos on the alleged delivery of arms to Islamist rebels in Syria by Turkish trucks owned by National Intelligence Unit. He filed a case against the responsible journalists of Cumhuriyet.^[55] The case resulted in a criminal conviction against Can Dündar (the editor-in-chief) and Erdem Gül (the Ankara representative) of divulging state secrets. Can Dündar was sentenced to more than five years in prison and left the country before the appeal process of his sentence was completed (2016).^[56] Significantly, his sentence was announced after his survival from an armed attack by a sniper outside a courthouse in Istanbul.

The Constitutional Court delivered a pro-journalism decision upon the applications of Can Dündar and Erdem Gül regarding this initial case of two Cumhuriyet journalists in 2015.^[57] In line with the case law of the ECtHR, the Court accentuated the chilling effect doctrine in this politically sensitive case that has a paradigmatic effect in the case law on journalism. It weighed the freedom of press against the allegations of terrorism, espionage and revealing the state secrets essential to national security. Consequently, it concluded that the detentions based solely on the newspaper publications in Cumhuriyet including an information available to readers in other media sources are unlawful. The ongoing Cumhuriyet trial is closely linked with this initial case of Can Dündar and Erdem Gül, because the publications regarding the Turkish trucks were used as evidence of the support for terrorism to convict another group of journalists of Cumhuriyet.

The Cumhuriyet trial demonstrated the advanced practices of autocratization that include the suppression of the independent media and the misuse of judiciary. Strikingly, the trial was not conducted under a typically autocratic legal framework or by an underdeveloped judiciary. Current Turkish legislation on the freedom of expression, free press, and journalism has deficiencies, but it has undergone many changes during the Europeanisation process, including the adoption of a completely new Press Law (2004) and Criminal Code (2004). The efficiency of justice as a matter of fostering the rule of law and human rights has been enhanced by technological investments and national reform schemes implemented by the EU grants. EU funds and the Council of Europe have supported the training of judges and prosecutors in the field of human rights extensively and generously.^[58] Compared to a judicial setting of entrenched autocracies that try journalists, the Turkish case of Cumhuriyet was conducted through a legal system and by a judiciary that was supposed to be well equipped and endorsed by the European schemes.

Against this backdrop, the judicial politics of the Constitutional Court and the ECtHR regarding the applications of the Cumhuriyet journalists have similar stances. They did not provide an effective protection for independent journalism. Both courts have applied judicial delay or selective responsiveness as a strategy for the Cumhuriyet applications. In fact, this runs counter to the ECtHR’s well established legal preference about the pre-eminent role of the press in a state governed by the rule of law which has been replicated by Turkey’s Constitutional Court, particularly in individual applications since 2012.

The journalists applied to the Constitutional Court on 26 December 2016 and to the ECtHR on 2 March 2017 on the ground of their unlawful detentions. On 11 January 2018, the Constitutional Court responded to only one journalist, namely Turhan Günay. Fortunately, it held that Günay’s right to liberty and security was violated.^[59] However, the applications of other journalists could not receive any judicial response from the Constitutional Court. Significantly, the objections of the detained journalists who raise the Constitutional Court’s arguments in Turhan Günay application were rejected by the lower court.^[60]

During these events, the ECtHR followed the developments rather patiently. In fact, the ECtHR communicated the application of 10 journalists in Murat Sabuncu and the others v Turkey as a priority case.^[61] Accordingly, it invited the Turkish government to submit its observations, but the government could not deliver its defense. Even though the government’s failure for submission seems like a tactical approach prolonging the detention for all journalism cases, the ECtHR provided two extensions of time limits for the submissions till the end of 2017. The ECtHR did not prefer to conclude this application as a priority matter of concern, despite the long pre-trial detentions and the ineffectiveness of the Constitutional Court as a domestic remedy. It only denied the third extension request of the government.

As soon as the criminal judiciary approved the convictions of Cumhuriyet journalists, they again appealed to the Constitutional Court in late April 2018. They requested the non-execution of their imprisonment imposed by the negative verdict of the Court of Cassation. Strikingly, their petition was not addressed, but the Constitutional Court decided in early May 2018 on the previous pre-trial detentions of a group of Cumhuriyet journalists. In fact, this application was the one submitted on 26 December 2016. After two years and five months, the Constitutional Court concluded that the eight Cumhuriyet journalists who appealed to the Court did not suffer any violation of their rights.^[62]

The Court’s majority ruling (9–6) in this case of Cumhuriyet journalists is a U-turn in its own pro-journalism jurisprudence, praising freedom of the press and applying the chilling effect doctrine in its previous judgement in Erdem Gül and Can Dündar case law in 2015.^[63] Interestingly, the Court adopted an exception on the very same day by referring to the chilling effect doctrine for one of the Cumhuriyet journalists, Kadri Gürsel, the editorial consultant and columnist of Cumhuriyet.^[64] Gürsel was the chairperson of the Vienna-based Independent Press Institute’s (IPI) Turkish National Committee.

All in all, the Court did not follow a full deference strategy for the Cumhuriyet journalists but offered a highly selective resistance by providing some exceptions for Turhan Günay and Kadri Gürsel. However, the Court’s submissiveness is the defining feature of the Cumhuriyet case law regarding many of the progressive journalists that represent a dissenting media outlet with their critical stance and watchdog journalism.

3.1.3 Journalism Cases: Belated Response and Inconsistency as Judicial Politics

As a rare example of collective docket management, the Constitutional Court discussed and announced its long awaited verdicts in all prominent journalism cases on the very same days. All these cases involve serious criminal charges such as the support for terrorism or overhauling the government.^[65] In these decisions, the deliberate delay of the Court to respond to the applications (more than two years) is quite remarkable as the chilling effect was expanded by the Court’s own judicial foot-dragging.

The deference-resistance paradox can be clearly observed in these decisions that the journalists are treated differently by the Constitutional Court. As stated above, the same factual background and the same pattern of accusations for a group of Cumhuriyet journalists led to different conclusions by the Court. Kadri Gürsel’s application is accepted, but the others are rejected by a verdict of no violation.^[66] Additionally, Ahmet Altan’s application that have similarities to his brother Mehmet Altan’s application regarding unlawful detention and journalism was not decided by the Constitutional Court for more than two years. Finally, it was dismissed in 2019 after his conviction before the criminal court.^[67] The same holds true for Nazlı Ilıcak’s application that has, again, similarities when it comes to the factual background with the Mehmet Altan and Şahin Alpay cases. Nazlı Ilıcak, a senior right-wing columnist, was one of the leading media supporters of the AK Party government till the alliance between AK Party and the Gülenists collapsed. Ilıcak’s application as to the unlawful detention and freedom of press in 2016 was concluded by the Constitutional Court after the final verdict of the relevant court as to her conviction in 2019.^[68] Figure 2 shows that the responsiveness of the Court may reach to 2000 days in politically significant journalism cases between 2017 and 2023.^[69] The average of responsiveness is around 1000 days. It is fair to say: The Court has underperformed as regards the speed of justice delivery in cases where urgent action is needed because of the detentions of journalists.

Figure 2:

Responsiveness of the Turkish Constitutional Court to the politically significant journalism cases (2017–2023).

Here, some conclusions can be drawn. First, the politically significant journalism rulings of the Court represent the patterns of deference or inconsistent resistance after the Mehmet Altan and Şahin Alpay case law. This might be a strategic response that can be explained by the increased pressure and discrediting attempts because of the Court’s resistant stance for Şahin Alpay and Mehmet Altan. Second, the journalism case law, including politically significant cases and insignificant cases, still features a pro-journalistic approach of the Court. Figure 3 shows the Court’s stances towards journalism according to four categories considering the data between 2012 and 2020, and between 2017 and 2023.^[70] The statistical data marks 17 April 2017 as the date of the national referendum on the adoption of presidential system that heated the public debate on the augmented executive (‘one-person-rule’) or autocratization. Overall, the rights-based approach of the Court is still prevalent in the quantitative terms. This gave the Court the opportunity to apply its legal preference of pro-journalism in possible strategic settings.

Figure 3:

Decision trends of the Turkish Constitutional Court in journalism cases (2012–2017 and 2017–2023).

4 The Deference-Resistance Paradox (2): Horizontal Accountability

The constitutional case law on presidential decrees also represents the deference-resistance paradox. It plays a crucial role to test the horizontal accountability since it defines the limits of executive power under a presidential system adopted by the constitutional amendments of 2017.

Criticized to create an omnipotent executive with unchecks and imbalances, the 2017 amendments introduced the presidential decrees as new legal instruments. They replaced the decrees that served as the executive instruments of the Turkish parliamentarianism. Although these were a matter of judicial, political, and scholarly discussion for years, they were strictly constrained by the statutory authorization or parliamentary oversight. In contrast to them, the current presidential decrees may be issued without any statutory authorization or any predefined parliamentary oversight. This means presidential decrees are autonomous instruments of the executive without wanting any formal dependency on the parliament.

Yet, the 2017 amendments prescribe some restrictive rules for the use of presidential decrees. First, statutory legislation takes precedence over the presidential decrees. Second, there shall be no decrees in areas in which the exclusive power of legislature is exercised. Third, presidential decrees shall not be released on matters regarding civic and political rights. Despite these restrictions, presidential decrees can be issued in matters pertaining to the executive power. Significantly, the matters that fall within the exclusive power of legislation, and the matters of executive power are to be answered by the constitutional interpretation and political practice because of the unclarities in the Constitution. Therefore, the Constitutional Court’s weak and strong stances for judicial review are of relevance for a limitation or expansion of presidential power.

In its emerging case law, the Court seems to expand executive power in matters of foreign policy and administrative reorganizations by upholding the presidential decrees. Yet, presidential decrees are disallowed in cases where there is clear and applicable statutory legislation.^[108] For instance, the Constitutional Court upheld the presidential decree that prescribes the principles and procedures for adoption of international agreements in domestic law. Consequently, the executive may lay down the principles and procedures for all kinds of international agreements by a presidential decree. Similarly, the Court sustained presidential decrees in issues concerning the organizational or operational matters of ministries, agencies, secretaries, or advisory boards.^[109] This pattern of avoidance from expanding legislative power and challenging the presidential power is obvious in the case law (Figure 4).^[110]

Figure 4:

Presidential Decrees Annulled and Approved by the Constitutional Court (per provision). (E 2021/25, K 2023/104 (31 May 2023); E 2020/89, K 2023/85 (4 May 2023); E 2022/71, K 2023/65 (5 April 2023); E 2019/39, K 2023/67 (5 April 2023); E 2023/38, K 2023/39 (9 March 2023); E 2022/37, K 2023/44 (9 March 2023); E 2022/35, K 2023/35 (22 February 2023); E 2021/86, K 2023/34 (22 February 2023); E 2020/34, K 2023/25 (16 February 2023); E 2023/21, K 2023/22 (16 February 2023); E 2018/149, K 2022/163 (29 December 2022); E 2020/54, K 2022/165 (29 December 2022); E 2021/6, K 2022/166 (29 December 2022); E 2019/12, K 2022/164 (29 December 2022); E 2019/87, K 2022/158 (13 December 2022); E 2022/98, K 2022/157 (13 December 2022); E 2020/28, K 2022/156 (13 December 2022); E 2020/29, K 2022/155 (13 December 2022); E 2019/38, K 2022/148 (30 November 2022); E 2020/4, K 2022/147 (30 November 2022); E 2020/7, K 2022/146 (30 November 2022); E 2018/123, K 2022/138 (9 November 2022);E 2021/99, K 2022/119 (13 October 2022); E 2021/95, K 2022/118 (13 October 2022); E 2020/5, K 2022/115 (13 October 2022); E2021/90, K2022/10 (28 September 2022); E 2020/94 K 2022/61 (1 June 2022); E 2021/85 K 2022/60 (1 June 2022); E 2019/96 K 2022/17 (24 February 2022); E 2021/91, K 2021/106, (30 December 2021); E 2018/121, K 2021/84, (11 November 2021); E 2021/50, K 2021/89, (16 December 2021); E 2021/88, K 2021/105 (30 December 2021); E 2018/133, K 2021/70, (13 October 2021); E 2020/58 K 2021/19 (18 March 2021); E 2018/127 K 2021/18 (18 March 2021); E 2020/71 K 2021/33 29 April 2021; E 2018/134 K 2021/13 (3 March 2021); E 2020/8 K 2021/25 (31 March 2021); E 2019/77 K 2021/2 14 January 2021; E 2019/71 K 2020/82 (30 December 2020); E 2018/119 K 2020/25 (11 June 2020); E 2018/124 K 2020/56 (15 October 2020); E 2019/105 K 2020/30 (12 June 2020); E 2018/126 K 2020/32 (25 June 2020); E 2018/155 K 2020/27 (11 June 2020); E 2018/125 K 2020/4 (22 January 2020); E 2019/31 K 2020/5 (23 January 2020); E 2019/78 K 2020/6 (23 January 2020)).

It is worth noting that the Court’s resistance to the augmentation of executive power becomes evident for the presidential decree regulating the payments in procurement procedures.^[111] In the relevant case law, the Court nullified the presidential decree regarding the advanced payment on government procurement since the subject matter was clearly laid down by the statutory legislation. Since the public procurement is one of the high-risk areas open to corruption (because of the volume of transactions and complexity of the processes), judicial interventions of the Court limiting the presidential power seems essential.^[112] Turkish public procurement legislation was subject to considerable number of amendments (including exemptions for public-private partnerships and major investments) which heated the public debate on the risks of procurement corruption. In its case law, the Constitutional Court prioritizes the legislative power in respect of procurement issues for setting the rules regarding the use of public resources. This stance of the Court invites the parliamentary oversight for crucial issues of public interest like procurements. Moreover, the Court overruled another presidential decree pertaining to the presidential expenditures that amended the statutory legislation by extending its scope of application.^[113] This ruling had (and continues to have) a negative impact on the expenses and finance of administrative units under the presidential office.

In the context of presidential decrees, the resistance-deference paradox is in its early stages. On the one hand, the Court seeks an institutional balance between the executive and legislative under a presidential system of vagueness in some crucial issues such as procurement and expenses. On the other, it helps to legitimize and consolidate the controversial presidential system of Turkey through constitutional interpretation. Until now, the horizontal accountability regarding the presidential decrees represents a pattern of weaker judicial review in quantitative terms. This is again an indicator that the Constitutional Court handles the presidential power as a core interest of the regime delicately.

5 Conclusions

The resistance-deference paradox creates uncertainty for autocratic legalism by both moderating and destabilizing it. As a moderator, it mostly supports the executive power in the case law on presidential decrees except for some selected issues. It serves autocratic populism that requires a certain level of governmental accountability for its legitimacy and prolongation. However, a destabilizing impact can be also observed in some of the journalism cases that have been challenged by the lower judiciary. If the Constitutional Court sides with fundamental rights, this eases the tensions with the Constitution and the case-law of the ECtHR as observed in the Academics for Peace case. Through resistant judicialization in such leading cases of political repression, the Constitutional Court remains to a certain extent as a forum of contestation. Consequently, its case law has sometimes deterred and delaying political effect on autocratization, although the Court does not advance a full democratization at present. The internal and external dynamics of the Court’s progressive judicial behavior need to be further explored and monitored. The internal dynamics of the resistant behavior may be associated with the lack of full internalization of autocracy by the Court. The historical institutionalism of the Court and the popularity of the individual application have the potential to support judicial empowerment strategies.

The judicial review seems to be used by the Constitutional Court as a pressure valve to meet the minimum expectations of European supervision for being an effective remedy as observed in Şahin Alpay and Mehmet Altan cases. However, the ECtHR case law does not provide an external legitimization in all significant cases of political repression. The Court supported the oppressive practices and the misuse of criminal investigations against a prominent figure of civic society in the Kavala cases. As an emblematic case of dissuasive effect on civic society decided by the ECtHR, Kavala shows the limited impact of European supervision for presumed enemies of the regime. The high level of demonization and stigmatization of Kavala by the ruling elite has made his case a core interest for the autocratization. Therefore, the regime’s pressure on the judiciary regarding Kavala seems more direct. Accordingly, the Court’s majority fully ignored both the European supervision and its own progressive institutional preferences in the other Gezi Park rulings. By means of its Kavala case law, the Court has helped to delegitimize and marginalize the civic society by supporting the authoritarian rule.

Notably, the Court’s judicial behavior represents more than the resistant and deferring approaches under autocratic pressure. The belated judicial responsiveness when assigning the cases on the trial docket or postponing the assigned cases are some of the tactics observed in politically significant cases. These are blended with a cherry-picking strategy of the Court when selective resistance is applied. The slow and tactical approach of the Constitutional Court and the ECtHR in the face of flagrant violations of freedom of expression points to judicial postponing by using case management and prioritization strategies. After a period of delay, the Constitutional Court became clearly submissive to the offending practices against Cumhuriyet journalists except for a few journalists. This tactic sacrificed independent journalism to the arbitrariness of autocratic populism. Moreover, the ECtHR’s silence also undermined the very essence of the chilling effect doctrine in these journalism cases.

The Mehmet Altan and Şahin Alpay cases have been resolved by the Court in a journalism friendly manner, but the belated response and selectiveness were again serious issues. For instance, Ahmet Altan’s case was not reviewed by the Court on the same day that his brother Mehmet Altan’s case was decided, although they were subject to the same allegations in the same criminal trial. The fact that Ahmet Altan with his daily Taraf became a more active figure in terms of his engagement with the Gülenists played a significant role for the Court.

The Constitutional Court applies a full deference approach in cases regarding the core enemies, issues, and owners of the regime. They represent core governmental interest(s) to be treated cautiously. In this respect, the deference serves compliance with regime policies. The judicial protection of the core interests sidelines the dissent and avoids direct confrontations with autocracy. On the other hand, the resistant stance of the Court creates a legitimizing narrative for the regime in the eyes of the public and European supervision. It masks the autocratization by domesticating the repression. Nonetheless, such a legitimization through a resistant stance is also a double-edged sword for autocratic governments since it opens the space of contestation for the litigants. This risks autocratic stability by creating uncertainties and challenges for the regime.

All in all, the equilibrium of the resistance-deference paradox that arises against the backdrop of the Court’s case law leads to compliance-legitimization advantages and the contestation-destabilization disadvantages for the populist autocracy. Both the threats and endurance of the government against the Court can be explained by the tension embedded in this complexity associated with the role of constitutional judiciary in electoral autocracies. First, this reveals, of course, the fragility of the Constitutional Court associated with the uncertainties as to the severity of an autocratic backlash. To this end, the deference-resistance paradox as a coping strategy may not always provide a shield for the Court. The slow responsiveness of the ECtHR hardens the situation at times. Second, the constitutional adjudication should consider that governments in electoral autocracies are not fully entrenched. They operate also under uncertainties that the cost of retaliations against courts may change according to the political alliances and power structures. When constitutional courts are mindful about the uncertainties surrounding autocratic governments and gain confidence in the public opinion by safeguarding constitutional rights, they may contribute democratization prospects. As a direct and immediate contribution, they may apply defection strategies easily once the autocratic government starts to lose power. Indirectly, they may use the opportunities of interpretation at critical times that the autocratic governments are obliged to obey their rulings and endorses democratization paradoxically. At present, the Turkish Constitutional Court neither applies a defection strategy nor develops an interpretative approach nudging the autocratic elite for democratic transition. Nonetheless, its resistance-deference paradox maintains constitutional adjudication with changing levels of judicial independence and liberalist interventions under autocratic populism. This paradox could also accelerate the democratization if power structures change. Therefore, the pace of resistant stances of Turkish Constitutional Court should be carefully followed to identify both the weaknesses of autocracy, the possible weakening of autocratization through judiciary, and prospects of democratization.