Court of Cassation submits opinion on 'Can Atalay': He cannot benefit from immunity

The Court of Cassation's Office of the Chief Public Prosecutor has submitted an opinion to the 3rd Criminal Chamber following the decision by the Istanbul 13th High Criminal Court to send the case file to the Court of Cassation's 3rd Criminal Chamber without issuing a release order, despite the Constitutional Court's (AYM) ruling that there had been a 'violation of rights' regarding Workers' Party of Turkey (TİP) MP Can Atalay.

"HE CANNOT BENEFIT FROM IMMUNITY"

The 6-page opinion stated that the decision on release is at the discretion of the Court of Cassation's 3rd Criminal Chamber. In the opinion, which requested that Atalay's detention continue, it was argued that Atalay cannot benefit from legislative immunity on the grounds that 'the investigation and prosecution began before he was elected as a member of parliament'.

The opinion included the following summary:

"Given that the investigation and prosecution regarding the crime committed by Can Atalay in 2013 began long before he was elected as a member of parliament, and that the articles of the Turkish Penal Code (TCK) applied as the basis for his conviction fall under Article 312 of the TCK, a member of parliament who committed a crime under this article before the election shall not benefit from the legislative immunity provided for in Article 83/2 of the Constitution of the Republic of Turkey.

The fact that crimes falling under the scope of Article 14 of the Constitution are not listed exhaustively is a conscious choice by the legislator. The crime and actions that are the subject of the convict's sentence are among those committed against state security, and it is not possible to consider that they do not fall within the scope of the article.

With the confirmation decision issued by the Court of Cassation's 3rd Criminal Chamber on September 28, 2023, regarding Can Atalay, the verdict has become final and enforceable. The defendant is in the status of a convict following the confirmation decision, and the High Chamber has also sent its decision to the Grand National Assembly of Turkey (TBMM). At this stage, as the High Chamber has already made an assessment regarding release during the appellate review, the discretion to reject or accept the request for release lies with the High Chamber."