A political war against the Constitution

As I have explained in detail in my previous articles, the second ruling of rights violation issued by the Constitutional Court (AYM) regarding TİP Hatay MP Can Atalay had been sent to the Court of Cassation. The 3rd Criminal Chamber of the Court of Cassation, in its decision, stated that "the AYM's ruling of rights violation has no legal value." We have assessed that the failure to implement these rulings, despite the AYM issuing a second rights violation decision regarding Can Atalay, constitutes a regime crisis. So, what is the situation when we evaluate it from the perspective of the Constitution?

First of all, the 3rd Criminal Chamber of the Court of Cassation's refusal to comply with the AYM's rights violation ruling is not a legal decision; in fact, it constitutes a political war against the Constitution. When we examine the Court of Cassation's decision, we see that not even in a single paragraph does it cite any article of our Constitution, our established jurisprudence, or the European Convention on Human Rights (ECHR), which has the force of constitutional law. However, we know that the grounds for a decision issued by a legal authority must necessarily contain legal justifications. The justifications presented in the Court of Cassation's decision are purely political. The Court of Cassation's decision, which characterizes the Taksim Gezi Park protests as a reflection of the Arab Spring despite there being no connection, and which draws a link to the Pakistani Supreme Court's vote of no confidence against a prime minister, is a political decision from start to finish. 

REMINISCENT OF JURISTOCRACY…

With the decision it rendered, the 3rd Criminal Chamber of the Court of Cassation could not control its anger and adopted an approach that solely blames the AYM. It accused the AYM of being juristocratic, rendering constitutional provisions inapplicable, and even making arbitrary decisions regarding the rights violation ruling it issued for Can Atalay. Juristocracy is defined as the rule of judges and is known as a concept contrary to democracy. It is an oligarchic form of government. In juristocracy, which is frequently seen in immature democracies, the interpretive ability of those at the head of the judiciary comes to the fore, and the country is attempted to be governed by laws shaped by the interpretations of judges.

“Our Chamber, with its miscellaneous decision dated 08.11.2023 regarding the convict Şerafettin Can Atalay, has drawn attention to the legal vacuum in auditing this arbitrariness and the issuance of arbitrary decisions that render constitutional provisions inapplicable through interpretation, in a manner reminiscent of juristocracy due to this lack of oversight. In this respect, the claim that the Constitutional Court's decisions, which render constitutional provisions dysfunctional, cannot be audited, and its being equipped with unlimited powers, also harbors some major dangers.”

THE FETHULLAH GÜLEN EXAMPLE

“The election as members of parliament, the taking of the oath to begin duty, and the entry into the TBMM (Grand National Assembly of Turkey) of Fethullah Gülen, Şerif Ali Tekalan, Recep Uzunallı, Adil Öksüz, Ekrem Dumanlı, Cemil Bayık, Murat Karayılan, Duran Kalkan, Sabri Ok, and Ali Ekber Doğan—who are accused of or prosecuted for absolute terror crimes listed above, who have not yet been captured and are sought with red notices, and who are linked to many bloody terrorist acts—as well as coup-plotting generals who physically participated in the coup attempt of 15.07.2016 and whose conviction sentences have not yet been finalized, and even if they continue to be MPs in subsequent elections, the fact that the sentences given cannot be executed even if their immunity is lifted, opens the way for this, and it is not possible to say that defending this situation as legally accurate is explainable. No legal system protects the abuse of a right in this way.”  

As can be seen in the example in question, it was stated that if the rights violation ruling regarding Can Atalay is complied with, it could also open the way to the TBMM for names linked to terrorist acts. In other words, the Court of Cassation says in its decision that the AYM's ruling is of a nature that could pave the way for terrorist organizations and is compatible with them. This statement is entirely rote and populist, and associating the AYM's decision with terrorist organizations is merely an accusation by a judicial institution. It has no relation to reality. 

THE CONCEPT OF “LOYALTY”

The 3rd Chamber of the Court of Cassation made the following explanation in the “Legal Evaluation and Conclusion” section of the decision it rendered;

“At the point reached, it is understood that the Constitutional Court has exceeded the duties and authority boundaries drawn by the Constitution and laws by issuing extra-legal decisions, thereby imposing an undefined and unlimited mission upon itself; that it has hidden behind the concept of 'loyalty'—which is not found in the Constitution or laws and does not exist in legal literature—regarding the compliance with the extra-legal decisions it has issued; that it has ignored the concept of final judgment, which is a generally accepted principle of law; that in this vein, it has entered into the merits of decisions finalized through appellate review by high courts and re-evaluated them; and that in some of its decisions, it has evaluated applications before it by acting like a peace criminal judgeship, a court of first instance, an appellate court, and even the Court of Cassation without exhausting ordinary legal remedies, and that these practices of the Constitutional Court threaten legal security and create chaos.”

As is clearly understood, according to the Chamber's assessment, the concept of “loyalty” is a concept that is not found in the Constitution or laws and does not exist in legal literature. However, as our professor Assoc. Prof. Dr. Tolga Şirin also explained, the main concept for dozens of people dismissed from their professions by statutory decrees (KHK) during the state of emergency (OHAL) period was the obligation of “loyalty to the Constitution.” Furthermore, on the other hand, the principle of “loyalty to the Constitution” appears in the preamble of our Constitution, in provisions that impose an obligation of interpretation with “absolute loyalty,” and in the parliamentary oath (Art. 81). As another example, it is necessary to cite the provision of Article 42/4 of the Constitution;

“II. Right and duty of education

Article 42 – The freedom of education does not relieve one of the duty of loyalty to the Constitution.”

As such, it can be seen that the principle of “loyalty to the Constitution” is a principle incorporated into the provisions of our Constitution. In this case, while the Chamber's decision has nothing to do with the law, and although it has accused the AYM's rights violation ruling as I have quoted above in the form of “issuing arbitrary decisions that render constitutional provisions inapplicable,” we see that the actual authority that is not even familiar with the principles of our Constitution, and therefore renders constitutional provisions inapplicable and even makes arbitrary decisions, is the 3rd Chamber of the Court of Cassation.

If we state this final and striking point, the situation will become clear. According to Article 50 of Law No. 6216, the addressee of the Constitutional Court's rights violation ruling is the 13th High Criminal Court. For this reason, the Court of Cassation's rhetoric of 'we have a disagreement' or 'there is a usurpation of authority,' or what it has written above, has no place in law. All actions of the Court of Cassation are null and void.

Essentially, since the addressee of the AYM's decision is the 13th High Criminal Court, the constitutional requirement had to be fulfilled by this court. There is no legal remedy for this stage, i.e., the sending of the file to the Court of Cassation by the 13th High Criminal Court. For this reason, for example, if such a file had been referred to me during my time as a Court of Cassation Prosecutor, I would have written a notification to the 3rd Criminal Chamber of the Court of Cassation stating that it should be “returned to its place as we have no authority.” If the 3rd Criminal Chamber of the Court of Cassation still issued such a decision, I would definitely appeal against this decision before the Court of Cassation General Assembly of Criminal Chambers in accordance with Article 308 of the CMK (Criminal Procedure Code). Because there is no such legal remedy, all actions taken after the file was sent by the AYM to the 13th High Criminal Court are NULL and VOID. This means the following: In fact, there is no crisis. There is a political action that has been artificially created, and this action has no legal explanation. Therefore, all discussions taking place are unlawful. Can Atalay, on the other hand, is still being held in prison unlawfully. This event is this clear and this obvious.