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The adoption of the presidential regime in Turkey after the March 2017 referendum, as well as the way the system was implemented starting January 2018, has virtually created serious trouble for the state. The prerogatives the president now enjoys systematically undermine the authority of every other fundamental institution, which virtually creates deadlocks across the decision-making chain and hinders the implementation of public policies. The evolution of recent months suggests the situation could take a swift turn for the worse, with serious consequences not only for Turkey, but also for international stakeholders.
The biggest concern is tied to the judiciary, which is the cornerstone underlying the well-functioning of every state. In Turkey, the justice system has been subordinated to the government, more specifically to president Erdoğan. Such a situation can very quickly erode the rule of law and further undermine state authority, and even trigger the very collapse of the state, law and order.
One case in point when it comes to the erosion of the rule of law and blurring the line separating state powers is that of lawyer / activist / politician Șerafettin Can Atalay, where, in their strive to please politicians, courts of law ended up ignoring the law, as well as a ruling of the Constitutional Court of Turkey.
The refusal of a court to enforce the law and to recognize the immunity of an opposition MP
A lawyer by trade and an advocate of human rights in many high-profile cases pending in Turkish courts of law, Can Atalay was arrested several times in connection to the protests of May-June 2013. From the very beginning, however, it was suspected Atalay was in fact harassed for his activism in the service of human rights before Turkish tribunals.
Atalay was part of a group of 16 people whom prosecutors accused, based on Article 312 in the Turkish Criminal Code, of having tried to overthrow the government by force and violence during the 2013 protests. The list of accused also included other lawyers, human rights activists, architects (the protest broke out in response to the authorities’ plans to demolish a park and other historical landmarks in Istanbul), representatives of civil society, journalists, actors, theatre directors, filmmakers, as well as urban zoning professionals. The most resounding name is that of philanthropist and businessman Osman Kavala.
The European Court of Human Rights (ECHR), operating under the aegis of the Council of Europe, ruled in 2019 that Osman Kavala’s rights had been infringed upon by courts of law in Turkey, and that the Turkish businessman had been detained illegally. ECHR judges concluded there was no evidence beyond a reasonable doubt proving Kaval was guilty of the charges he was presented with, and that courts had broken rules of judicial procedure. The official motivation required the application of the same principles to the other inmates, although the Turkish tribunal had decided to uphold the sentence against Kavala. 8 of the 16 inmates, including Atalay, were eventually released in February 2020.
Nevertheless, just one month later, in January 2021, a Turkish court of appeal nullified the release ruling. On April 25, 2022, Atalay was again sentenced to 18 months in prison, accused of having tried to stage or trigger a coup in 2013. Arrested shortly after the verdict was pronounced, Atalay appealed the ruling at a regional tribunal, which upheld the original sentence on December 28, 2022. Atalay lodged a second appeal, this time at the Criminal Court no. 3 with the High Court of Cassation (the supreme court of appeal in Turkey). In anticipation of this final verdict, Atalay was elected in the Turkish Parliament, as a deputy representing the Hatay province on behalf of the Turkish Workers’ Party in the May 14, 2023 election.
Now that he enjoyed parliamentary immunity, under Article 83 in the Constitution, Șerafettin Can Atalay asked his lawyers to file for the suspension of prosecution proceedings and demand his immediate release. The Criminal Court no. 13 in Istanbul, which administered the penitentiary where Atalay had been imprisoned, denied his request. The official reason was that Article 83 provides for certain exceptional situations, one of which (stipulated under paragraph 2) was referring to Article 14 in the Constitution, which states that Turkish citizens are deprived of their fundamental rights and liberties when they commit “actions that violate the undividable integrity of the Turkish State, its territory and nation”. The undividable integrity, therefore, prevails over the fundamental rights of Turkish citizens, according to the Constitution and the jurisprudence of this country.
An unprecedented judicial crisis
What followed was a peculiar string of events, at least from the prospect in which liberal democracies understand the rule of law and the hierarchy of courts of law. Atalay filed a new appeal, this time referring the matter to the Constitutional Court. On October 25, 2023, the Supreme Court made public its decision. Accordingly, Atalay was to be released from prison, because by condemning and detaining him, the Turkish state violated “his right to be elected and take part in political activities”, as well as “his personal freedom and security”. The ruling was communicated to the local court in Istanbul, where Atalay was imprisoned. In a strange and illegal decision, the said court refused to implement the ruling of the Supreme Court, choosing instead to refer the matter once again to the High Court of Cassation, the highest court of appeal. On November 8, the Court of Cassion issued its own ruling, whereby declaring the Constitutional Court ruling “illegal” and unenforceable. Atalay was to remain in prison.
Hence the outbreak of an unprecedented judicial crisis. While Article 153 in the Constitution stipulates that Constitutional Court rulings take precedence before anything else, which unequivocally and clearly establishes the hierarchy of Turkish courts of law, similarly to everywhere else, a local court, and then the Court of Cassation, refused to enact the decision. Moreover, the Court of Cassation lodged a criminal complaint against the members of the Constitutional Court, whom it accused of overstepping their legal boundaries, although they represent the highest judicial entity in the Turkish state. Political leaders and representatives of employers’ associations in the justice field were quick to respond. Özgür Özel, the new leader of the main opposition party, CHP, described the incident as “a new attempted coup”. In turn, the Bar Association spoke of “a judicial coup”.
The authorities’ reaction soon followed, which proves this was a highly politicized case. On November 10, 2023, president Erdoğan criticized the Constitutional Court, which he accused of “making one mistake after another”. Defying all judicial logic, two days later the head of state announced the supreme court of appeal (the Court of Cassation) “has more weight” than the Constitutional Court in the Turkish justice system. Mehmet Uçum, chief advisor to president Erdoğan, levied serious allegations against the Constitutional Court, saying it acts “driven by ideological factors” against the AKP regime, the ruling party in Turkey, and against the president. The leader of the main ally to the Erdoğan-AKP duo, the ultra-nationalist Devlet Bahçeli, went as far as requesting nothing less than the abolishment or the restructuring of the Constitutional Court.
Countless experts with vast experience in the Turkish legal system immediately sanctioned this bizarre rhetoric, highlighting the fact that the prevalence of the Constitutional Court is the keystone of state sovereignty. Any court of appeal, be it the highest one in the country (the Court of Cassation), cannot impose a decision on the Constitutional Court, because that would bring down the entire justice system. As a result, failure to observe a final ruling issued by the Constitutional Court is evidence of unprecedented corruption in the justice system, critical voices say, which also highlights the abolishment of the rule of law in that particular state.
Things are far from returning to a sense of normalcy, even by the time the present article was written. On December 21, 2023, the Constitutional Court issued a new ruling, upholding its previous sentence and calling for the release of Can Atalay. This decision too was dismissed by the Court of Cassation, which released a public statement, accusing the supreme court of breaching legal provisions and, through its decisions, of instating a “judicial dictatorship” in Turkey. This time too, specialists in the field warned that such developments are indicative of the fact that the observance of the law in Turkey has been sidetracked, and this precedent could lead to a regular disregard of the Constitution and the rulings of the Constitutional Court, even from Parliament or the almighty president. Constitutional law professor Süheyl Batum voiced vehement criticism, saying “where the rule of law fails, no constitution and statehood can exist”.
Widespread corruption, a symptom of shrinking rule of law. More and more Turks are looking to leave the country
It is clear that, in the current presidential regime where the president has control over all state powers (executive, legislative and judicial) as well as over the country’s budget resources, collapse is just a matter of time.
The worst signal so far is the rule of unruliness, of instability. Statistics made public by the opposition shows the country is no longer governed by laws adopted in Parliament, but through decrees issued by the President of the Republic, which in 2023 were 6 (six) times more numerous than bills adopted by Parliament. Courts of law are blocked at every step, because all rulings must be taken in such manner as not to give the political powers that be any reason to challenge them. Actions berating the rule of law create an ideal setting favoring crime and corruption. The latter has swollen to unprecedented levels in Turkey, basically spreading to all levels of state power.
The 2023 Global Cocaine Report, published by the UN Crime and Drugs Office, clearly confirms Turkey’s role as a country of transit for this drug has increased significantly, to a record of nearly 3 tons of cocaine transiting Turkey every year. The data has been confirmed also by the March 2023 report of the International Narcotics Control Board, operating under the aegis of the UN as well. The corruption perception index has gone up steadily in Transparency International reports starting 2012, which is when the government launched its full-scale campaign to seize judicial power in Turkey. The process ended with the introduction of the presidential regime.
Reliable accounts from inside the Turkish government, for instance the statement of the chief prosecutor of Istanbul, in turn attest to an unprecedented level of corruption in the Turkish judiciary, comparable to an infectious disease that urgently requires “chemotherapy”. Other accounts also reveal the presence of corruption in the Turkish Police, where evidence is piling up, confirming close ties between members of government elites, criminal groups, people in the justice system as well as law enforcement. No wonder Turkey has become a haven for drug trafficking, and continued to climb in the organized crime index compiled by the Global Initiative Against Organized Crime, now faring the same as countries such as Myanmar, Afghanistan, Iraq, Lebanon or Syria.
Under these circumstances, and amidst the dramatic drop in living standards and quality of life, it comes as no surprise that 4 in 10 Turkish citizens want to leave the country whereas the number of foreign nationals is also dwindling. Adding to the problems created by the war in Ukraine and the volatile security context in Iraq, Syria and Gaza, is also the degrading situation of the economy, of human rights and individual security in Turkey, particularly after 2016. Emigration is also expected to rise significantly in this country, with North America and Europe being favorite destinations.
Turkey drifts further away from its Western partners
The constant erosion of the rule of law and the political subordination of the justice system were expected to escalate disputes between the Turkish leadership and international organizations. Turkey is just a few bad decisions away from being excluded from the Council of Europe, after president Erdoğan and other leaders in Ankara, including the successive Ministers of Justice, made it crystal clear that Turkey refuses to implement the final ruling of the European Court of Human Rights, calling for the release of Osmana Kavala, Selahattin Demirtaș and others.
It's also worth noting that Turkey was one of the top four states conducting espionage activities in Germany, a NATO ally, as well as in other European countries, thus snubbing the firm commitments it made as part of international treatises.
Turkey’s peculiar interpretation of the Montreaux Convention, which regulates the Straits, has raised a few eyebrows at NATO level, particularly in the context of the war in Ukraine. Ankara blocked the access of NATO ships to the Black Sea, although they were not there to take part in the war effort, but to carry out military exercises over the course of three weeks, designed to consolidate the Eastern Flank and deter Moscow’s aggressive posture in the region. Turkey even refused to grant access to two British minesweepers, whose operations would have contributed to ensuring the safety of civilian navigation in the region.
Such decisions echo repeated statements coming from Ankara, indicating the regime frowns upon any type of involvement from US and NATO troops in the Black Sea, which Turkey’s current leaders understand as a closed space, which can only be opened with their specific consent.
Finally, we should not overlook the illegal occupation of vast territories in northern Iraq and Syria by Turkish military forces, despite the ever-vocal opposition and protests from Damascus and Bagdad. Nor should we easily turn a blind eye to Turkey’s illegal (according to the relevant international law) actions in the Eastern Mediterranean, both with regard to Cyprus, as well as by signing agreements with Libya, establishing exclusive economic zones, whereby the interests of all the other riparian states are affected. And although some steps have been taken in recent months to bring relations with Greece back on track, Athens is aware that Erdoğan’s promises come with zero guarantees. The president’s recent statements signaled his unwillingness to ever renounce his aggressive tone towards Greece, or for that matter his regional ambitions, conceptualized under the umbrella term “The Blue Homeland” (Mavi Deniz).
Risks generated by Ankara’s policies: waves of Turkish migrants heading towards the EU and growing instability in the Black Sea region
All that creates the impression the regime in Ankara doesn’t feel bound by any legal constraints, be it of national or international scope, and refuses to renounce its hostile attitude towards a “West” for whom regulations, charters and laws are sacred. Therefore, two threats arise at the end of this brief analysis: (1) the possibility of a growing number of migrants leaving Anatolia to relocate to stable areas in Europe, and (2) the fact that a major stakeholder in the Black Sea region has grown increasingly unstable and unreliable in relations with its traditional partners.
In the current context, Ankara’s disregard of international treatises also fuels the efforts of Russia or Iran, to mention just two examples, to undermine international rules-based order. Therefore, Turkey’s instability seems to now spread beyond its borders. And, according to the many signals coming from Europe or North America, the patience of Turkey’s traditional allies seems to be wearing thin.
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