New development in the judicial crisis: Legislative review of the Court of Cassation's criminal complaint against the Constitutional Court

The process regarding the criminal complaint filed by the 3rd Criminal Chamber of the Court of Cassation against 9 members of the Constitutional Court, who issued a violation ruling concerning TİP Hatay Deputy Can Atalay, a prisoner in the Gezi Park trial, is ongoing.

According to information received, the 3rd Criminal Chamber of the Court of Cassation, which decided not to comply with the Constitutional Court's violation ruling and to file a criminal complaint against the members who issued this ruling, has sent the criminal complaint petition to the Office of the Chief Public Prosecutor of the Court of Cassation.

PROSECUTOR TO CONDUCT LEGISLATIVE REVIEW

A prosecutor has been assigned to the matter at the Chief Public Prosecutor's Office. The prosecutor will conduct a legislative review and present it to Chief Public Prosecutor Bekir Şahin. Following Chief Public Prosecutor Şahin's review, it is expected that the petition will be submitted to the Constitutional Court as required by legislation.

HOW WILL THE PROCEDURE IN ARTICLE 16 WORK?

The Office of the Chief Public Prosecutor of the Court of Cassation will implement the procedure in Article 16 of the Law on the Establishment and Trial Procedures of the Constitutional Court, which regulates the "investigation and inquiry regarding the President and members".

Article 16 of the law stipulates that the initiation of an investigation into crimes committed by the President and members in the course of their duties is subject to a decision by the General Assembly of the Constitutional Court.

Accordingly, the issue of whether there are grounds to initiate an investigation into the members against whom a criminal complaint has been filed must be discussed by the General Assembly of the Constitutional Court. However, the member or members against whom the action is taken cannot participate in the discussion.

The General Assembly of the Constitutional Court consists of 15 members, including the president and two vice presidents.

The violation ruling regarding Can Atalay was adopted by a majority vote of 9 members of the Constitutional Court. 5 members voted against the majority opinion, and one member did not attend the General Assembly on the day of the decision, citing an excuse.

The General Assembly must convene with at least 10 members under the chairmanship of the President or a vice president. The General Assembly makes decisions by a simple majority.

WHAT HAD HAPPENED?

Can Atalay, who was sentenced to 18 years in prison as part of the Gezi Park trial, was elected as a deputy from the Workers' Party of Turkey in the general elections on May 14.

Atalay's application requesting that "the trial against him be stayed and he be released due to his election as a deputy" was rejected by the 3rd Criminal Chamber of the Court of Cassation. An individual application was made to the Constitutional Court, claiming that his right to "be elected and engage in political activity" was violated because the request for a stay of proceedings due to his parliamentary immunity was rejected and the trial continued, and that his right to "personal liberty and security" was violated because his request for release was rejected.

While the process was ongoing, the 3rd Criminal Chamber of the Court of Cassation upheld the 18-year prison sentence given to Can Atalay. The Constitutional Court accepted the application and ruled by majority vote on October 25 that Can Atalay's rights to "be elected" and "personal liberty and security" had been violated. The short-form decision of the Constitutional Court was sent to the Istanbul 13th High Criminal Court, which heard the Gezi trial and issued the verdict.

The 3rd Criminal Chamber of the Court of Cassation made a historic ruling while evaluating the Constitutional Court (AYM) decision, which ruled that there was a "violation of rights" for Workers' Party of Turkey (TİP) Deputy Can Atalay and that he should be released. While the Court of Cassation rejected Atalay's release despite the Constitutional Court's ruling, it stated that the Constitutional Court members who issued the violation ruling had exceeded their authority. The Court of Cassation also decided to file a criminal complaint against the Constitutional Court members.