Şerafettin Can Atalay

On October 25, 2023, the Constitutional Court (AYM) ruled that the rights of Can Atalay, who was elected as a Member of Parliament for Hatay from the Workers' Party of Turkey (TİP), were violated in terms of his “right to be elected” and his “right to personal liberty and security.” This decision was published in the Official Gazette and sent to the Istanbul 13th High Criminal Court. 

Up to this point, everything was normal. However, the Istanbul 13th High Criminal Court did not release Can Atalay, who was expected to be released following the final decision of the Constitutional Court. Exactly 6 days later, it decided to send the file to the 3rd Criminal Chamber of the Court of Cassation instead. In reality, it was not possible to make such a decision. In a state governed by the rule of law, what was expected from a local court, which has no right to debate the decision of a higher court, was the implementation of the AYM's ruling.

So, what did the AYM decision say? Paragraph D of the AYM decision published in the Official Gazette clearly stated: “A copy of the decision shall be sent to the Istanbul 13th High Criminal Court for the elimination of the rights violation, the commencement of a retrial for the applicant Can Atalay, the suspension of the execution of the conviction, the ensuring of his release from the Penal Execution Institution, and the issuance of a stay of proceedings in the retrial to be conducted.” Despite this clear provision and the fact that the local court had no legal authority to take any other action, the local court sent the file to the 3rd Chamber of the Court of Cassation. 

At this point, it is necessary to explain the “word of the law.” Article 138, paragraph 4 of the Constitution, under the heading “Independence of the Courts,” states: “Legislative and executive organs and the administration are obliged to comply with court decisions; these organs and the administration cannot change the court decision in any way and cannot delay its implementation.”

Furthermore, perhaps assuming its words might not be understood, the Constitution also included the following provision in Article 153 under the heading “Decisions of the Constitutional Court”: “Decisions of the Constitutional Court are published immediately in the Official Gazette and bind the legislative, executive, and judicial organs, administrative authorities, and real and legal persons.” Therefore, the Istanbul 13th High Criminal Court, which there is no doubt is a judicial organ as specified in the Constitution, has registered that its own court is not bound by the law, despite the Constitutional Court decision that binds it and the clear provision of the Constitution. 

In democratic states governed by the rule of law, all institutions of a state are expected to comply with the mandatory provisions of the Constitution. A clear violation of the Constitution is unacceptable. Therefore, the Istanbul 13th High Criminal Court's decision to send the file to the Court of Cassation by making a ruling outside the framework of the AYM decision is an entirely extra-legal, de facto act. Every action the Court of Cassation takes following its review of the file from this stage onward is also flawed. This is because the initial act of referral by the Istanbul 13th High Criminal Court is void ab initio. This decision by the Istanbul 13th High Criminal Court is also a clear violation of the principle of separation of powers in our country. Resisting judicial decisions in a way that creates the impression they were made with political motives will cause chaos within the state and will henceforth be interpreted as meaning that, according to the final paragraph of Article 153 of the Constitution, Constitutional Court decisions do not bind the legislative, executive, and judicial organs. In other words, no state institution or person in Turkey will feel bound by court decisions. I leave it to my readers to appreciate the kind of problems the resulting chaos and environment of insecurity will lead Turkey into. 

This extra-legal decision by the Istanbul 13th High Criminal Court shows how heavy the shadow of politics is on the judiciary. It is public knowledge how the criminal case in which MP Can Atalay was primarily tried was followed by politicians in the past. The important thing here is not the individuals. The problem depends on the answer to the question: ‘Is Turkey a state governed by the rule of law or not?’

It is obvious that, especially since the transition to the Presidential Government System in Turkey, the political parties in power have viewed themselves as the state. In this government system, political parties that have become the state have come to manage not only the executive branch but also the legislative and judicial branches together. In other words, the powers that should have a strict separation between them appear to be almost merged. This situation causes the constitution to be silently and repeatedly violated in Turkey. 

The main consequence of this is that it causes our country to be seen as a country without legal security, not only domestically but also abroad. A situation where court decisions are not implemented, impressions that decisions are made in the shadow of politics increase, and furthermore, judicial tenure is completely eliminated, essentially means a lack of confidence in the Turkish economy. In countries governed by a free-market economy since 1980, the lack of an independent judiciary, the absence of the rule of law, and the perception that there is a shadow of politics over the judiciary prevent the money circulating in the global market from entering Turkey. In a growth model where the economy is largely based on imported goods and exports, the arrival of foreign investment is vital. However, no one, either domestically or abroad, invests in a country without legal security. This is what causes the economic crisis we are in today. 

As we stated above, the final word of the law is that Can Atalay must be released immediately. There is no other choice but to fulfill this provision. Judicial authorities should know well that what is important is not whether Can Atalay is released or not. Where the word of the law is not valid, no one has legal security. In its 100th year, the Republic of Turkey deserves to have its democracy and Constitution firmly in place. Everyone should know that the judiciary, whose main purpose is to realize justice, remaining in the shadow of politics causes great harm to our country and leads to the collapse of the state. This is not sustainable. Such unlawful practices must be ended immediately, and we must return to the image of a country where judicial decisions are implemented without hesitation.