IHD:Constitutional Court’s Judgment on Academics for Peace

On 26 July 2019, the Constitutional Court’s General Secretariat delivered an important judgment about Academics for Peace cases. The Court ruled for a violation of the right to freedom of expression by a majority vote within the scope of the application Zübeyde Füsun Üstel and others (app. no. 2018/17635). The applicants were among the signatories of the call “We Will Not Be a Party to This Crime!” drafted and made public by Academics for Peace in January 2016 and they were convicted by various first instance courts on charges of “making propaganda for a terrorist organization.” İHD welcomes the Constitutional Court’s violation judgment for the sake of human rights and democracy.

In its violation judgment, the Constitutional Court stated that the indictment prosecutor and first instance courts failed to offer evidence beyond assumption that these academics acted on “orders” from the PKK as they had argued in the indictment and their conviction rulings, while the courts delivered rulings without conducting any inquiry into the matter merely considering the prosecutor’s allegations to this end sufficient (para. 89-90). The Constitutional Court’s judgment also indicated that the peace declaration “called for an end to conflict and respect for fundamental rights and freedoms, to return to the peace process, to stop violence, to establish an environment for dialogue and de-conflict” (para. 92).

Another significant point referred to in the violation judgment offers a quite pertinent summary of the condition of the judiciary in Turkey: “It is indisputable that the evidence and assessments in question bear significance so as to have direct impact on the merits of the trials. When one takes into account the fact that the signatories of the declaration stood trial before numerous courts, it is incomprehensible that none of the courts chose to inquire and assess in this direction. […] Sentencing persons based on assumptions should immediately be put to an end [since] holding expressions of thought as terrorist propaganda merely by stating that a perception was attempted to be created is not a legal assessment” (para. 94, 100).”

Lastly the violation judgment underlines a very important point: “When expressions of thought on highly controversial matters with profound public significance are at stake, it should be remembered that freedom of expression is vital for a democratic society and constitutes the fundamental values of democracy. The foundation of democracy is based on its power to resolve issues through open debate (Ferhat Üstündağ, App. No: 2014/15428, 17/7/2018, § 43). Interference with the exercise of freedom of expression, other than promotion of terror and violence and hate speech, harms and jeopardizes democracy” (para. 113).

The one-page dissenting opinion signed by four members of the Constitutional Court, on the other hand, argued that the “existence and independence of the state, and the unity and indivisibility of the nation and the country” were the “highest legal norms that encumbered obligation of loyalty to the state,” thus, these high justices created a brand new norm. The fact that the members of the high court consciously deformed and replaced “loyalty to the Constitution,” in other words, loyalty to the principle of rule of law with “loyalty to the state” is utterly dangerous. The relevance of ECtHR’s judgment Langner v. Germany (App. No. 14464/11) that these members referred to could not be understood.

A group of academics and university administrations, which initiated a campaign against the Constitutional Court’s judgment on orders from the Higher Board of Education –as has been reported by the media- insinuating or directly stating that they would not recognize the judgment, attempt to trample on the right to freedom of expression guaranteed by Article 26 of the Constitution and Article 10 of the ECHR along with academic freedoms enshrined by Article 27 of the Constitution.

These academics and university administrations should know that they are indeed going against the “holy” Constitution they are supposed to be defending by knowingly disregarding the principle of rule of law through such statements. Constitutional Court’s judgments are final and “they shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies” (Article 153). İHD would also like to remind them of the last paragraph of Article 138 of the Constitution of the Republic of Turkey: “Legislative and executive organs and the administration shall comply with court decisions, these organs and the administration shall neither alter them in any respect, nor delay their execution.”

Statements by some journalists and politicians as regards the possibility that the Constitutional Court’s judgment may not be implemented are disgraceful. The Constitutional Court’s judgments can very well be criticized but they have to be absolutely implemented. İHD condemns these journalists and politicians.

According to the general principles of human rights law, restitution should, whenever possible, restore victims of human rights violations to their original situation before such violations occurred. If this cannot be delivered, the consequences of such violations should be redressed through the utilization of other means like compensation.

Academics for Peace have been subjected to unjust criminal trials and administrative sanctions, including dismissals from their posts, their passports have been cancelled and they have been prevented from working in the academic field since 2016. In accordance with the Constitutional Court’s judgment, firstly all these pending violations should be put to an end and more than 3-year-long victimization they have been facing should be redressed.

İHD, therefore, invites

  • All first instance courts to rule for acquittal for all Academics for Peace cases pending before them in compliance in the Constitutional Court’s judgment, to also rule for acquittal for the cases they had passed sentences previously after a retrial;
  • The Inquiry Commission on the State of Emergency Measures to reinstate dismissed academics to their former posts in compliance with the Constitutional Court’s judgment;
  • Universities to appoint the reinstated academics to their original posts with the same academic titles;
  • Authorities to take steps in order to redress the losses suffered by dismissed, prosecuted, investigated and sentenced academics;
  • The Ministry of Interior to stop violating the right to freedom of movement by lifting its restriction on dismissed academics’ passports;
  • All democratic public, particularly academics, to defend freedom of expression and academic freedoms;
  • The Higher Board of Education, which attempted to pressure universities and academics by having them publish a counter-declaration, to immediately drop this conduct and to apologize;
  • University administrations and academics, who tried to run a counter-campaign against the Constitutional Court’s judgment by disregarding fundamental rights and freedoms, to undertake their obligation to respect human rights.

İHD will always stand in solidarity with academics who defend the right to peace.