Constitutional Court's verdict on Can Dündar

The Gülenist faction in the police and judiciary began arresting some ministers from the Justice and Development Party (AK Party) on charges of corruption on Dec. 17, 2013. They extended the line of investigation to include President Recep Tayyip Erdoğan, who was serving as prime minister at the time and his family on Dec. 25, 2013. Just two weeks before this, Cumhuriyet Editor-in-Chief Can Dündar wrote in his column: "This is temperamental American wind, it chops and changes. One day it blows from Pennsylvania and turns off bulbs in Ankara."

Let us leave aside the bad metaphors. Dündar overtly implied that a U.S.-backed Gülenist coup was on the horizon. Dündar pointed to a chess game being played between Erdoğan and Fethullah Gülen after Dec. 25, writing: "The course of the chess game of power is increasingly becoming clear. Pawns were overturned, kings are taking their turns." When Erdoğan repelled the Gülenist coup attempt, the gendarmerie stopped National Intelligence Organization (MİT) trucks on Jan. 1, 2014 and Jan. 14, 2014. The gendarmerie pulled a gun on MİT officials and handcuffed them as part of an interruption attempt on Jan. 19. The Gülenist deep state endeavors to inflict a blow to the state were continuing.

As can be understood from the quotes above, Dündar was someone who was involved in this story. However, his active involvement in the plot happened when Cumhuriyet, which was under his management, claimed the MİT trucks were carrying weapons to "jihadis" in Syria just a week before the June 7 parliamentary elections. Although there was no mention of DAESH in the MİT trucks indictment, suspect testimonies and news reports that Dündar published asserted that the MİT trucks were carrying weapons to DAESH. Following that day, he maintained the same assertion in all three tweets he posted. However, in the statements that he gave to the prosecutor, he said: "Where the trucks go is unknown." When he was asked why the trucks were going to DAESH, he said: "I heard it as such."

Dündar's acts in his record are evidence showing that he is a very bad journalist and uses journalism to reveal state secrets. Here, one interesting point is that U.S. Vice President Joe Biden referred to Dündar, who was still standing trial, as a "hero" during a January visit to Turkey this year. What is more interesting, however, is that the Constitutional Court gave a ruling on a case that had not yet been brought to the court. If the Constitutional Court had rendered a verdict saying that Dündar would be jailed pending trial, its verdict would not have been found so scandalous. However, the Constitutional Court went beyond constitutional boundaries and handed down a ruling like a regular court.When I asked Mehmet Uçum, a lawyer who serves as a chief adviser to Erdoğan, to assess the verdict, he said: "The Constitutional Court can only conduct a formal inspection in the running cases. It cannot delve into the merits of a case and conduct a sustentative legal inspection. It can merely carry out an inspection of constitutional principles and rules regarding the ongoing criminal matters in individual appeals within the context of the Penal Procedure Law. This means determining whether rights are infringed upon in methodic transactions that are carried out in the investigation and prosecution process. For instance, it determines whether an arrest warrant is compatible with the purpose of caution. If the Constitutional Court goes beyond this in appeals regarding ongoing cases and attempts to conduct an inspection concerning Criminal Law, it violates the principle of natural judges and usurps local courts' authorities by falling into their spheres of responsibility. Furthermore, such an inspection can never be a legal assessment, but a subjective approach, as it is based on the context of an incomplete court file that is still awaiting trial. It is not possible to accept this. The Constitutional Court's final verdict is overtly against the right to individual appeal as it goes beyond formal legal inspection and it is a substantive legal inspection that gets to the core of the matter."

With this ruling, the Constitutional Court proved that it is not a legal and supra-political institution, but a structure that is ready to make political decisions when necessary even by violating the Constitution, which it is named after. Furthermore, it showed that it is a structure that is far from supervision and accountability.