What happened at the Court of Cassation before the Can Atalay rulings?

Foreign Minister Hakan Fidan spoke yesterday during the budget negotiations at the TBMM Planning and Budget Committee, while responding to criticisms regarding the non-implementation of ECHR violation rulings concerning Osman Kavala and Selahattin Demirtaş, as follows:

“These cases were politicized in European capitals long before they even reached the court, moving away from being legal and technical cases and becoming a party to domestic politics in Turkey. In other words, if you politicize this and step outside the law, the answer you get from here will be of the same nature. Why are you surprised by this?.. The answer to a case that someone has politicized will also be political. There is no error in this... If you come to me technically through the court I belong to, if you come legally; there is a space for dialogue there, and we can go somewhere from there. But you come to me before that with your own newspaper headlines, the meetings you organize, groups of deputies, and the panels you hold; you take a political stance, and in return, you find a political stance.”

It seems that the politicization or being politicized of certain cases is at issue. Presumably, this situation is also reflected in the decisions made. I wonder how?

WAS THE NOTIFICATION ORDINARY?

As is known, we have a Can Atalay file that has turned into a duel between the Constitutional Court (AYM) and the Court of Cassation, where Erdoğan, who is both the head of the executive and the head of the State, has attempted to act as an “arbitrator,” and which has been used as a lever for the government's new constitution goal.

Quite a bit of insider information has accumulated since the notification (tebliğname) regarding the Gezi Park trial, which also includes Can Atalay, was prepared at the Court of Cassation; let us share them.

As is known, Can Atalay was elected as a Hatay deputy in the May 14 elections; however, because he was imprisoned, he could not take his oath and begin his duties. Upon this, his lawyers immediately applied to the 3rd Criminal Chamber of the Court of Cassation, requesting Atalay's release and the suspension of his trial. It was rumored in those days that the 3rd Criminal Chamber was waiting for the Office of the Chief Public Prosecutor of the Court of Cassation to prepare and send the notification regarding the Gezi trial to discuss the release, and that this would take time.

When the expected notification was prepared and sent to the 3rd Criminal Chamber, the calendar showed July 7. It was a Friday.

The allegation is that; until the afternoon hours, the notification had not yet been prepared, and the relevant prosecutor had not yet decided what to request or what to write. Because the authorities found the reasoned decision of the court of first instance insufficient, for example, because it did not mention the phone taps prepared by “FETÖ” members, and wanted a long notification to be written. While this was the situation, it began to be talked about in judicial circles that the notification was sent to the 3rd Criminal Chamber starting from 15:00 in the afternoon. However, it had not even been uploaded to the UYAP system yet. It was seen that the notification, which was uploaded at 18:00, was exactly 77 pages long. It was in those days that veterans of the Court of Cassation stated that notifications were generally kept short and that it was not “ordinary” for it to be this long, while whispering that the notification in question was penned by other prosecutors who had been assigned to previous critical cases behind the scenes.

Just 6 days after this notification, in which the approval of the sentences given to all defendants except Mücella Yapıcı was requested, the 3rd Criminal Chamber of the Court of Cassation rejected Can Atalay's release application on the grounds that “the conditions were not met.”

REJECTION OF OBJECTIONS

Atalay's lawyers this time applied to the 4th Criminal Chamber regarding the decision in question. The 4th Criminal Chamber also rejected the objection 5 days later, with almost the same justifications as the 3rd Criminal Chamber and by a majority vote. The only member who cast a dissenting vote and advocated for Atalay's release was Özgür Cevahir.

We noted that the 4th Criminal Chamber's justification for rejection overlapped with the 3rd Criminal Chamber's justification; now let us share some insider information regarding this.

The allegation is that, before the decision, the 4th Criminal Chamber had guests from the 3rd Criminal Chamber!..

You know the subsequent process; Atalay's lawyers took the file to the Constitutional Court. The first meeting was to be held on October 12; however, the meeting was postponed after a member reported that they were not prepared for the file. Ultimately, at the Constitutional Court General Assembly meeting on October 25, 9 members issued a rights violation ruling and expressed an opinion in favor of Atalay's release.

However, the Istanbul 13th High Criminal Court, which handed down the verdicts in the Gezi trial, argued that the Constitutional Court's rights violation ruling did not concern them and sent the file to the 3rd Criminal Chamber of the Court of Cassation.

The 3rd Criminal Chamber of the Court of Cassation, on the other hand, decided unanimously on November 8 not to comply with the Constitutional Court's violation ruling regarding Can Atalay, and in a first in the history of the Turkish judiciary, decided to file a criminal complaint with the Office of the Chief Public Prosecutor of the Court of Cassation against the 9 members of the Constitutional Court. The Presidency of the Court of Cassation also stood behind these decisions.

The event was, in a word, allowing the Constitution to be trampled by the judiciary, which is why it turned into a “state crisis.”

Noting that it is claimed that the notification of the Office of the Chief Public Prosecutor of the Court of Cassation, which was presented before this second decision of the 3rd Criminal Chamber, was also prepared by the prosecutors behind the scenes of the first notification, and that the members who made the decision were specially selected, let us report the latest development.

Can Atalay's lawyers filed an objection once again to the 4th Criminal Chamber against this decision of the 3rd Criminal Chamber. Yesterday, the Chamber ruled that there was no need to make a decision regarding the objection in question, on the grounds that the decision made by the 3rd Criminal Chamber was “not a decision open to objection.” The insider information regarding this decision is as follows:

- Before the decision, there were guests from the 3rd Criminal Chamber to the 4th Criminal Chamber again.

- In addition to Özgür Cevahir, Bayram Aydoğdu also remained in opposition to the decision taken by majority vote.

WILL THEY ASK WHILE RETURNING FROM ALGERIA?

Returning to Foreign Minister Hakan Fidan's complaint about the politicization of cases;

Erdoğan, while returning from Riyadh 10 days ago, gave the following response to a question asking, “Will you meet with the heads of judicial institutions?”:

“If necessary, I will meet with both of them. We have already met with the President of the Court of Cassation. We will also meet with the President of the Constitutional Court if necessary.”

It has caught everyone's attention; since then, Erdoğan has not touched upon this issue at all. The journalists accompanying him to Germany also brought up the 50+1 issue, but did not even ask a question regarding this.

Erdoğan is in Algeria today. I wonder if the journalists accompanying him will ask on the way back, “Did you meet with the President of the Court of Cassation before or after that decision that led to the crisis, and what did you say? When do you plan to meet with the President of the Constitutional Court and what do you plan to tell him?”?!