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Constitutional Court statement on Can Atalay: Constitutional provisions were ignored

The Constitutional Court (AYM) has issued a statement regarding the failure to release Can Atalay despite its second ruling. The AYM stated, 'The process, which began with the first-instance court sending a file within its jurisdiction to the Court of Cassation, and which was shaped by a decision made by the Court of Cassation while ignoring the provisions of the Constitution, is clearly contrary to the letter of the Constitution.'

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The Constitutional Court (AYM) has issued a press release regarding the failure to release TİP Hatay MP Can Atalay.

In the statement, the AYM noted, "The 3rd Criminal Chamber of the Court of Cassation has issued a decision stating 'non-compliance with the Constitutional Court's ruling,' a type of decision that does not exist in Turkish law." The AYM further commented, "As a result, the process, which began with the first-instance court sending a file within its jurisdiction to the Court of Cassation, and which was shaped by a decision made by the Court of Cassation while ignoring the provisions of the Constitution, has created a clear contradiction to the letter of the Constitution and has ultimately led to the violation of the applicant's right to individual application, right to be elected and engage in political activity, and the right to personal liberty and security."

'VIOLATION' RULING

The full text of the statement titled "Violation of the Right to Individual Application Due to Non-Implementation of the Constitutional Court's Violation Ruling" is as follows:

"On 21/12/2023, the General Assembly of the Constitutional Court ruled in the application of Şerafettin Can Atalay (3) (App. No: 2023/99744) that the right to individual application guaranteed under Article 148 of the Constitution, the right to be elected and engage in political activity guaranteed under Article 67 of the Constitution, and the right to personal liberty and security guaranteed under Article 19 of the Constitution have been violated.

EVENTS

The applicant, who is one of the defendants in the criminal case known publicly as the Gezi Park Trial, requested a stay of proceedings and his release from the Court of Cassation, stating that he possessed legislative immunity due to his election as a member of parliament. This request by the applicant was rejected, with the merits of the case to be examined later. Upon the applicant's individual application, the Constitutional Court ruled that the applicant's right to be elected and engage in political activity and his right to personal liberty and security had been violated. The Istanbul 13th High Criminal Court (the first-instance court), to which the violation ruling was sent, did not cite any legal remedy regarding its decision and sent the file to the 3rd Criminal Chamber of the Court of Cassation, citing the upholding of the conviction against the applicant by the Court of Cassation as the reason. The Chief Public Prosecutor's Office of the Court of Cassation submitted an opinion to the 3rd Criminal Chamber of the Court of Cassation stating that the applicant could not benefit from legislative immunity; this opinion was not served to the applicant. The 3rd Criminal Chamber of the Court of Cassation issued a decision stating 'non-compliance with the Constitutional Court's ruling,' a type of decision that does not exist in Turkish law. The relevant chamber, which reviewed the applicant's objection to this decision, ruled that there was no need to issue a decision.

CLAIMS

The applicant claimed that his right to individual application and his right to be elected and engage in political activity were violated due to the failure to fulfill the requirements of the Constitutional Court's violation ruling, and that his right to personal liberty and security was violated due to the continued execution of the conviction.

COURT'S EVALUATION

In the concrete case, the requirements of the Constitutional Court's violation ruling were not fulfilled. The failure to implement Constitutional Court rulings is a situation that conflicts with the provision in the sixth paragraph of Article 153 of the Constitution, which states that Constitutional Court rulings shall bind the legislative, executive, and judicial organs, administrative authorities, and natural and legal persons. This provision regarding the binding nature of its rulings is an additional guarantee that also applies to constitutional rights and freedoms for which the Constitutional Court has ruled a violation within the scope of individual application. On the other hand, the retrial file was heard by a court that did not have the duty or jurisdiction, which is a clear violation of the mandatory provision of Article 142 of the Constitution and the principle of the natural judge contained in Article 37 of the Constitution.

Article 148 of the Constitution grants everyone who meets the conditions the right to make an individual application to the Constitutional Court. Undoubtedly, the effective implementation of Constitutional Court rulings is an integral part of the right to individual application. The failure to execute the rulings issued by the Constitutional Court as determined in the violation ruling also means a clear and severe violation of the right to individual application, which is a special type of the right to an effective remedy. The non-implementation of individual application rulings would render making an individual application to the Constitutional Court meaningless. Indeed, for these very reasons, the final paragraph of Article 153 of the Constitution does not grant any discretion to the legislative, executive, and judicial organs or administrative authorities regarding compliance with Constitutional Court rulings and the implementation of these rulings without modification, nor does it provide for any exception in this regard.

On the other hand, in the trial subject to the concrete application, since the Constitutional Court designated the first-instance court as the relevant court, the Court of Cassation does not have the authority or duty to conduct a retrial within the scope of Law No. 6216. The first-instance court to which the violation ruling was sent did not fulfill its duty regarding the retrial in the file that came before it in accordance with the Constitutional Court's ruling; it did not conduct a trial that also considered the applicant's constitutional rights.

The authority to definitively and bindingly rule on the compliance of the acts, proceedings, and omissions of public power with the Constitution belongs exclusively to the Constitutional Court. In this context, when the Constitutional Court rules through an individual application that a fundamental right or freedom has been violated, no authority has the power to examine or supervise whether this ruling is in accordance with the Constitution or the law.

"CLEAR CONTRADICTION TO THE LETTER OF THE CONSTITUTION..."

The Constitution and laws do not grant public authorities under the obligation to implement a Constitutional Court ruling, and in the concrete case the first-instance court, the authority to send the file to a different judicial authority, nor have they authorized any judicial authority to discuss the binding nature of Constitutional Court rulings. The binding nature of a Constitutional Court ruling covers not only what needs to be done to eliminate the violation and its consequences but also the determination of the authority that will eliminate the violation and its consequences. The refusal to implement a Constitutional Court ruling and the failure to eliminate the violation and its consequences by following the methods prescribed by law has been an interpretation and application that clearly contradicts the letter of Article 153 of the Constitution and is contrary to the will of the constitution-maker.

As a result, the process, which began with the first-instance court sending a file within its jurisdiction to the Court of Cassation, and which was shaped by a decision made by the Court of Cassation while ignoring the provisions of the Constitution, has created a clear contradiction to the letter of the Constitution and has ultimately led to the violation of the applicant's right to individual application, right to be elected and engage in political activity, and the right to personal liberty and security."