There is no judicial crisis, there is a politicized judiciary

What happened? Let’s recall…

Attorney Şerafettin Can Atalay was elected as a member of parliament in the general elections held on May 14, 2023. However, he was not released because his 18-year prison sentence in the Gezi Park Case was upheld by the Court of Cassation. Atalay’s lawyers applied to the Court of Cassation for the first time following the election process, requesting their client’s release and a retrial in accordance with Article 83 of the Constitution, which grants legislative immunity to members of parliament. The Court of Cassation rejected this request. Following the Court of Cassation's decision, Atalay filed an individual application to the Constitutional Court (AYM) through his lawyers.

The Constitutional Court reviewed the request for Atalay’s release and the suspension of his trial. This time, unlike other applications, the Constitutional Court referred the application to the General Assembly. The Constitutional Court General Assembly decided by a majority vote that Can Atalay’s rights regarding his right to be elected and his right to personal liberty and security had been violated. In accordance with Article 153 of the Constitution, it sent its final and binding decision to the Istanbul 13th High Criminal Court, the court of first instance, for implementation. It was expected that the Istanbul 13th High Criminal Court would implement the Constitutional Court’s final decision and release Atalay, but the local court sent the file to the 3rd Criminal Chamber of the Court of Cassation, stating that the authority to make a decision on the file rested with the Court of Cassation.

From this moment on, lawlessness began. Because this referral decision was in itself a decision flawed by non-existence. In other words, firstly, the Istanbul 13th High Criminal Court violated the Constitution. On November 8, 2023, the 3rd Criminal Chamber of the Court of Cassation rejected the Constitutional Court’s violation ruling by violating the Constitution again, stating that its previous decision upholding Can Atalay’s conviction was correct. This went down in history as the second violation of the Constitution by a judicial body.

The 3rd Criminal Chamber of the Court of Cassation, which stated that the Constitutional Court “violated the Constitution and exceeded its authority,” filed a criminal complaint against the members of the Constitutional Court who issued the violation ruling regarding Atalay. As we stated at the beginning, while it was mandatory for the Istanbul 13th High Criminal Court to issue “release” and “stay of proceedings” decisions upon the Constitutional Court’s ruling, the failure to do so and the referral of the file to the Court of Cassation was flawed by non-existence. All decisions made by the Court of Cassation after this date were also void. In other words, even if such a criminal complaint appeared as news in the media, this decision was null and void in the legal world.

Nevertheless, the lawyers of Member of Parliament Attorney Şerafettin Can Atalay appealed this decision of the 3rd Criminal Chamber of the Court of Cassation, which was flawed by non-existence, before the 4th Criminal Chamber of the Court of Cassation. Although the members of the 4th Criminal Chamber of the Court of Cassation mostly issued a decision stating that “There is no room for a decision,” the dissenting opinions written by 2 dissenting members clearly expressed “what should have been done legally”:

“The conviction decision rendered by the Istanbul 13th High Criminal Court was appealed after being upheld by the appellate court; the defendant filed an individual application to the Constitutional Court during the appeal stage, and at this stage, the conviction was upheld by the 3rd Criminal Chamber of the Court of Cassation. After the conviction was upheld, the Constitutional Court concluded the individual application, accepting that the applicant’s rights to be elected and engage in politics, and his rights to liberty and security had been violated, and sent the file to the Istanbul 13th High Criminal Court for the violation to be eliminated, for a retrial to be held, for the execution to be suspended, for the release to be ensured, and for a stay of proceedings decision to be issued in the retrial. The Istanbul 13th High Criminal Court, instead of deciding to retry the case in order to eliminate the violation in line with the Constitutional Court’s decision, sent the file to the 3rd Criminal Chamber of the Court of Cassation, and the decision subject to the objection was rendered by the High Chamber tasked with conducting supervisory review. The 3rd Criminal Chamber of the Court of Cassation should have sent the file to the Istanbul 13th High Criminal Court, which is the court of first instance, for a retrial in line with the Constitutional Court’s decision. For the reasons we have stated above, the objection should be accepted and the decision of the 3rd Criminal Chamber of the Court of Cassation subject to the objection should be overturned. We dissent from the majority’s decision that there is no room for a decision.”

I am a former Court of Cassation Prosecutor who wrote opinions (tebliğname) for the 4th Criminal Chamber of the Court of Cassation between 2005 and 2011. For this reason, I know for a fact that the dissenting opinion I mentioned above is the “word of the law.” Furthermore, just as I know that the decision taken by the majority of the members of the 4th Criminal Chamber is not in accordance with the law, I must also state that I am deeply saddened that the 4th Criminal Chamber, which was presided over for many years by masters such as the esteemed former President of the Court of Cassation Sami Selçuk, has signed such an unlawful decision.

‘NEW CONSTITUTION’ SIGNALS

On top of all this, regarding the so-called crisis between the Court of Cassation and the Constitutional Court, Minister of Justice Yılmaz Tunç stated, “It is clear that there is a need for new regulations. We cannot solve the problem permanently without amending the Constitution.”

Minister of Justice Yılmaz Tunç characterized the process between the two courts as a 'difference of opinion' and defended the idea that there is no hierarchical relationship between high courts with the following expressions;

“The Constitution has many contradictory articles. There are articles that are applied or not applied outside the will of the legislator. Yes, the decisions of the Constitutional Court are binding on everyone. There is also an article stating that the Court of Cassation is the final authority for reviewing decisions rendered by judicial courts. There is no hierarchical relationship between high courts.

The solution to the problem lies in eliminating the contradictions by creating a new constitution. The problem cannot be solved permanently without a constitutional amendment. I sincerely believe that our parties with groups in the Grand National Assembly of Turkey (TBMM) and our deputies will now be sensitive to this problem. We do not need a sit-in protest in the TBMM, we need a work protest.

It is impossible for us to accept inappropriate expressions directed at our President. The Republic of Turkey is a state of law. Problems can be solved within the law. However, if someone wants to pull it into a different dimension, there is a different intent. This issue will be solved within the law.”

On the other hand, President Erdoğan also mentioned the constitutional amendment regarding the judicial crisis, saying, “We are in the position of a referee, not a party to the debate.”

An Important Reminder Regarding the September 12, 2010 Referendum,

The statements of the Minister of Justice reminded me directly of the statements of former Minister of Justice Sadullah Ergin before the 2010 Referendum. At that time, there was the Supreme Board of Judges and Prosecutors (HSYK). The Minister of Justice was also the President of the HSYK at the same time. The country was in turmoil with the Ergenekon and Balyoz investigations, and the highest-ranking active-duty soldiers of the Turkish Army were being arrested with the support of the well-known media of that time, sometimes for spying, sometimes for allegedly planning to bomb the Fatih Mosque, etc.

Since the HSYK at that time—even though the Minister of Justice and the Undersecretary were within the HSYK—was not as politicized as it is now, it wanted to solve this problem with a judge-prosecutor decree. It thought that by assigning one more judge and prosecutor to the judges and prosecutors whom we know as FETÖ members today but who were seen as “heroes” and “prosecutors whose statues should be erected” by the government at that time, at least judicial objectivity would be ensured. Because the other 5 members of the 7-person HSYK were highly experienced judges who had never been involved in politics before and had worked for many years in the Court of Cassation and the Council of State. They wanted the HSYK to convene.

The Minister of Justice and the Undersecretary did not come to this meeting. The failure of the Minister of Justice and the Undersecretary to attend the meeting was an obstacle to the functioning of the HSYK as a constitutional institution. In other words, the Minister of Justice and the Undersecretary themselves had violated the Constitution. The next day, all the newspapers were in an uproar. A brand new ‘judicial crisis’ was created. Former Minister of Justice Sadullah Ergin said at that time that there was a “crisis in the judiciary,” that HSYK members were engaging in politics, that they were a “tutelage organ,” and that they needed to get rid of this “so-called tutelage” by making a constitutional amendment. A constitutional amendment package was prepared immediately. The date of the referendum was even chosen carefully, the rhetoric that we would get rid of the coup constitution had become dominant in all our media, and the government had all the wind behind it.

At that time, my friends and I explained that the real goal was to change the structure of the Constitutional Court and the HSYK, and that the goal was not to civilize the coup constitution but to politicize the judiciary. But how much could the voices of us judges and prosecutors be heard? Even though this was an association activity, we were accused of engaging in politics by government members, especially the Minister of Justice. Let me not prolong it. In that referendum, we changed the Constitution with a referendum where even the head of the current Fethullahist Terrorist Organization, Fethullah Gülen, said, “even those in the graves should get up and vote.”

After the constitutional amendment, neither freedoms increased in our country nor did the judiciary become independent. Of course, first of all, judges and prosecutors like me who fought for judicial independence were exiled. The constitutional amendment led to the HSYK, that is, the Board regarding the appointment, relocation, and all personal rights of judges and prosecutors, falling completely into the hands of so-called FETÖ judges and prosecutors, in short, the politicization of the judiciary. The 2017 Constitutional referendum was the final point in the politicization of the judiciary. Since it is a more recent date, I suggest you look at the rhetoric of those close to the government at that time that “the judiciary will be even more independent, justice will be served quickly.” Unfortunately, history that is not learned from always repeats itself.

Today, the so-called “judicial crisis” is, in short, this. The government’s goal is neither to solve the “so-called crisis” that has arisen between the Constitutional Court and the Court of Cassation, nor does it want judicial independence. Its only goal is to incorporate its ideological approaches, which it thinks the time has come for, into the Constitution and to crown its reckoning with the Republic by changing the Constitution. This is exactly what is happening. The rest is a waste of time.

What is real is this;

According to the 2023 Global Organized Crime Index report, Turkey is the country with the highest organized crime index in Europe. In other words, we are first in Europe in a negative sense.

State-linked criminal actors and human smuggling and trafficking have been recorded as the areas where Turkey is at its worst.

The reason why these crimes are recorded as being committed with a high crime score is that various groups maintaining their existence in the country have developed close relationships with the government and other politicians. In this way, it is reported that they provide protection against law enforcement and the judiciary.

In the indices of judicial independence and the rule of law, we have fallen among the most underdeveloped countries in the world. Justice in our country has become something to be searched for with a candle.

As a result, every constitutional amendment made has fed the authoritarian regime. In fact, what needs to be done is to immediately return to the pre-2010 period with a reverse constitutional amendment. It is of great importance for the public to claim its judiciary, to demand an independent judiciary and the rule of law before it is too late, and not to be deceived by the government’s “so-called crises.”