The constitutional amendment after the 2010 referendum entitled the Constitutional Court of Turkey to accept individual applications before appealing to the European Court of Human Rights (ECHR). As a result, the Constitutional Court began receiving individual applications as of 2012. This was a very important step. After evaluating many applications, the court found the complaints of some controversial detainees improper and ruled that their detention would continue and that some detainees such as Can Dündar and Erdem Gül would be released. This process is continuing and the Constitutional Court is currently accepting individual applications in a busy schedule. This right, which is appreciated in the West as well, relieves the burden on the ECHR.
A couple of days ago, however, European Council Secretary-General Thorbjorn Jagland pointed to imprisoned journalists and deputies in Turkey, saying, "If their cases are not dealt with soon by the Turkish Constitutional Court, the ECHR will probably consider whether this is an effective domestic remedy, and just start dealing with their complaints."
Jagland's statement sparked questions of whether this was a message directed at the Constitutional Court and, if so, what it meant. The Constitutional Court is being accused of not examining the files, in other words, of not fulfilling its duty. Jagland's remarks as well as remarks by international judge of the ECHR Işıl Karakaş in support of Jagland indicate that the ECHR has interestingly started to ignore certain things.
Turkey went through a traumatic event on July 15 and it is still in its aftermath. This trauma, which has affected every institution, was followed by a state of emergency. The terror escalated. The number of those who have become subject to the judiciary has risen by hundreds of times. Unfortunately, the Constitutional Court currently has more than 100,000 application files to examine. In other words, it has been paralyzed. It is capable of examining a maximum of 20,000 files a year. As such, it is seeking ways of dealing with so many files and classifying them. Although the ECHR is accusing the Constitutional Court of not dealing with the files that arrived some five to six months ago, it ruled its release decision on Turkish journalist Nedim Şener three years after the application and two years after his release.
Certainly, the Constitutional Court can and should attach priority to some files that concern the public after classifying them and making progress in its examination. On the other hand, as I stated, it is hard to believe that Jagland's statement is a "warning" alone. In fact, the ECHR deals with 7,000 to 8,000 files, on average, a year and sometimes has difficulty even keeping records of them. And it knows what a heavy workload the Constitutional Court has nowadays.
A team led by Constitutional Court President Zühtü Arslan visited the ECHR, the Court of Justice of the European Union (CJEU) and the EC from Jan. 24-27 and explained the judicial developments in Turkey, the files they were dealing with and the post-July 15 process. The visit was an intimate one, as the heads of all institutions, with Jagland taking the lead, developed empathy toward Turkey in this challenging process and understood the burden of their responsibility. All this was stated nearly one month ago. Why is the ECHR now suddenly making remarks that are almost aimed at sidelining the Constitutional Court because of applications that were made four to five months ago, while it ruled its release decision on Nedim Şener three years after the application and two years after his release?
I think this is a political spurt that is not independent of the anti-President Recep Tayyip Erdoğan attitude that has been on the rise again in Europe before the upcoming April 16 constitutional referendum. While things have not yet slotted into place, the attitude that is almost aimed at nullifying the Constitutional Court while dealing with a historic workload can only be interpreted as an attempt to pressure Turkey.
A European institution's step to discredit an extremely crucial judicial body in Turkey and to bring heavy losses to the country means Europe's desire to maintain a tense political atmosphere. The Constitutional Court must soon settle the great number of files and at least start dealing with the most controversial files. On the other hand, the ECHR should not capitalize on Turkey's situation and should not adopt a political attitude under the name of "justice."