Former Constitutional Court President Haşim Kılıç on the 'judicial crisis': 'The presence of accumulated anger is clearly felt'

Reactions continue regarding the Court of Cassation's refusal to recognize the Constitutional Court's (AYM) violation ruling concerning Hatay MP Can Atalay, and its subsequent filing of a criminal complaint against the AYM members who issued the decision.

Regarding the matter, former AYM President Haşim Kılıç spoke to Elif Çakır from Karar newspaper.

Kılıç stated, "I describe the decision to file a criminal complaint against the members of the Constitutional Court as a 'mental blackout'." Kılıç, who remarked that "the presence of 'accumulated anger' is clearly felt beneath the decision of the Court of Cassation's Criminal Chamber," provided the following explanation:

'IF PARLIAMENT HAD ELIMINATED THE UNCERTAINTY, THE PROBLEM WOULD NOT HAVE ARISEN'

"By making a call to the Turkish Grand National Assembly (TBMM), it was requested that the reference made to Article 14 by Article 83 of the Constitution be clarified by law, and that it be specified which crimes of members of parliament would be excluded from the scope of immunity. This call remained inconclusive as no action was taken by the TBMM. If Parliament had eliminated this uncertainty, the problems experienced today would not have emerged."

'I HOPE THE CHIEF PUBLIC PROSECUTOR'S OFFICE DOES NOT CARRY THIS OUT'

The Constitutional Court also sent the violation ruling to the 13th Criminal Chamber, which issued the Can Atalay decision, requesting that the trial be renewed, the individual be released, and the violation be remedied in accordance with Article 50 of the Law on the Establishment and Trial Procedures of the Constitutional Court. However, the court that issued the sentence and caused the violation sent this AYM decision to the Court of Cassation Presidency without taking any action. The Court of Cassation Chief Public Prosecutor's Office also stated that the AYM had exceeded its authority in its decision, interfered with the Court of Cassation's area of duty, and conducted a review of expediency, leaving the discretion to the 3rd Criminal Chamber.

The Court of Cassation's 3rd Criminal Chamber, in turn, effectively reviewed the AYM decision "on appeal," decided that the violation should not be remedied, and went even further by filing a criminal complaint with the Court of Cassation Chief Public Prosecutor's Office against the members who issued the decision at the AYM. I hope the Chief Public Prosecutor's Office does not carry this out.

In its decision, the Court of Cassation's 3rd Criminal Chamber stated that there was no ambiguity in Articles 83 and 14 of the Constitution, that no crime definition was made, that gaps remaining after general rules are set would be filled by judicial precedents, that the principle of legality in crimes and punishments could not be disregarded, that the crimes exempt from immunity were determined by law and precedent, that the Constitutional Court had encroached upon their appellate duty, that it saw itself as a super-appellate authority, and that it had entered into the merits of the case, whereas such a review could not be conducted according to Article 148/4 of the Constitution, and thus decided not to comply with the AYM decision.

Interpreting the provisions of the Constitution and determining their scope is the MONOPOLY of the Constitutional Court. Undoubtedly, while making this interpretation, the AYM must do so without distorting the will of the constitution-maker. By interpreting the Constitution and saying that Article 14 is not ambiguous, the Court of Cassation's 3rd Criminal Chamber has essentially encroached upon the duty of the AYM itself. The definition of crimes or their exceptions is of such vital importance that it cannot be left to judicial precedents. The principle of "legality in crimes and punishments" absolutely prevents this matter, which Parliament should determine by law, from being left to the initiative of the judiciary. Especially, the limits of the immunity opportunity granted to members of parliament so that they can freely express the problems of hundreds of thousands of people cannot be left to the mercy and whim of judicial decisions.

"The AYM's decision was rendered ineffective by being reviewed on appeal by the Court of Cassation's criminal chamber. Articles 153/1 and the final paragraphs of the Constitution clearly express the finality and binding nature of AYM decisions. In other words, no paths such as objection, appeal, or correction of decision are foreseen against AYM decisions. The Criminal Chamber taking it upon itself to act and issuing a decision that is effectively an appellate duty means ignoring Article 153 of the Constitution."

"Even if one were to consider the decisions of the AYM and the Court of Cassation's criminal chamber within the scope of a dispute of duty and authority for a moment, since the final paragraph of Article 158 of the Constitution states that 'In disputes of duty between other courts and the Constitutional Court, the decision of the Constitutional Court shall be taken as the basis,' the finality of the AYM's decision within the scope of Articles 153 and 158 cannot be debated."

SECOND VIOLATION OF RIGHTS

"I describe the decision to file a criminal complaint against the members of the Constitutional Court as a 'mental blackout.' Criminal complaints targeting the majority of the court have no legal capacity for implementation. It is an absurdity. I hope the Court of Cassation Chief Public Prosecutor's Office does not put such a complaint into effect. The presence of 'accumulated anger' is clearly felt beneath the decision of the Court of Cassation's Criminal Chamber. Everywhere in the world, such disagreements and conflicts occur between Constitutional Courts and other courts in individual application cases. These institutions resolve their problems by talking and establishing a dialogue. It is not difficult to find a solution by discussing events calmly."

"I would like to make a call to the current government from here. The addition made to the final paragraph of Article 90 of the Constitution in 2004, which foresees the application of international treaties containing expansive interpretations in cases where international treaties and national laws contain different provisions regarding rights and freedoms; and again, the opening of the path for individual application with Article 148 of the Constitution, have always been applauded as changes made with revolutionary quality. It is time to protect the gains brought by these changes that we have brought to our legal world. Every individual or institution will one day need these universal changes and gains made. The rule of law, the state of law, and legal security have received a serious wound with this decision of the 3rd Criminal Chamber. The image of conflict between judicial institutions and the non-implementation of decisions will undoubtedly have its most destructive effect in the economic field. In an environment where legal security is lost, the chance of resolving economic negatives is quite weak. The implementation of judicial decisions has the result of calming the public conscience. We must benefit from the power of justice and the rule of law to solve problems. Ultimately, law is conscience, justice, and morality."