A Regime Crisis: The Can Atalay Ruling

Reactions are pouring in following the decision by the 3rd Criminal Chamber of the Court of Cassation, which declared that the Constitutional Court's second ruling on the violation of rights regarding Can Atalay has no legal value and decided not to comply with it.

The second violation ruling issued by the Constitutional Court regarding TİP Hatay MP Can Atalay had been sent to the Court of Cassation. In its decision, the 3rd Criminal Chamber of the Court of Cassation stated, "The Constitutional Court's ruling on the violation of rights has no legal value." 

12punto columnist Attorney Ruşen Gültekin evaluated the Court of Cassation's decision:

First and foremost, it must be stated that this is the first time in Turkey that the Constitutional Court (AYM) has issued two separate violation rulings regarding an individual, and both have gone unimplemented. This should not be characterized as a judicial crisis, but as a regime crisis. This is because, in the process of failing to implement the Constitutional Court's ruling—contrary to the mandatory provisions of the Constitution—it was not only judicial bodies such as the Istanbul 13th High Criminal Court, the Office of the Chief Public Prosecutor of the Court of Cassation, and the 3rd Criminal Chamber of the Court of Cassation that played a role. Beyond them, the government, the political parties supporting it, the Council of Judges and Prosecutors, and the legislative body also acted in a manner aimed at ensuring the Constitutional Court's ruling was not implemented. 

To elaborate: The Constitutional Court issued a "violation of rights" ruling for the second time regarding TİP MP Can Atalay. Following this, the Istanbul 13th High Criminal Court, to which the AYM ruling was sent, ordered the file to be returned to the Court of Cassation. 

On January 3, 2023, the 3rd Criminal Chamber of the Court of Cassation issued its scandalous decision regarding the file. In the aforementioned ruling, it was decided not to comply with the Constitutional Court's decision on the grounds that "the second violation ruling issued by the Constitutional Court has no legal value, and in this context, there is no ruling that can be implemented under Article 153/6 of the Constitution." According to the 6th paragraph of Article 153 of the Constitution, "The decisions of the Constitutional Court shall be published immediately in the Official Gazette and shall be binding on the legislative, executive, and judicial organs, administrative authorities, and natural and legal persons."

The 3rd Criminal Chamber of the Court of Cassation characterized the AYM's ruling as "juristocratic behavior." Juristocracy is defined as the rule of judges and is known as a concept contrary to democracy. It is an oligarchic form of government. In juristocracy, which is frequently seen in immature democracies, the interpretive ability of those at the head of the judicial institution comes to the fore, and attempts are made to govern the country through laws shaped by the interpretations of judges.

On the other hand, the Court of Cassation's 3rd Criminal Chamber ruled that no opportunity for application to the Constitutional Court was granted regarding Article 84/2 of the Constitution, and that the AYM lacks the authority to review this matter. Consequently, it decided to send the file back to the Speaker of the Grand National Assembly of Turkey (TBMM) for the assessment and execution of the requirements regarding Atalay, as necessitated by constitutional obligation. According to the 2nd paragraph of Article 84 of the Constitution, "The loss of membership of a deputy in the event of a final conviction or restriction shall take effect upon the notification of the final court decision on this matter to the General Assembly."

It is with regret that we observe that the five members of the 3rd Criminal Chamber of the Court of Cassation have once again insisted, and even stubbornly refused, to recognize the Constitutional Court's "second violation" ruling regarding Can Atalay today. They are not merely saying that "the principle of the supremacy of the Constitution is abolished"; they are going further and stating that "the Republic of Turkey is not even a state governed by the rule of law"...

In a state governed by the rule of law, the meaning of a Constitutional Court ruling on a rights violation is quite clear. Due to the public order based on the Constitution, all institutions in Turkey are obliged to comply with Constitutional Court rulings immediately. The 3rd Criminal Chamber of the Court of Cassation has ruled that "there is no room for compliance with the aforementioned ruling" of the Constitutional Court, on the grounds that "there is no applicable ruling." Therefore, not only have they failed to comply with the Constitutional Court's decisions, but they have also declared the Constitutional Court to be unauthorized and incompetent. On the other hand, with the decision it has rendered, the Court of Cassation has not only committed the crimes of depriving an individual of their liberty and misconduct in public office, but has also demolished all constitutional rights and the constitutional order. The fact that a Constitutional Court ruling is not recognized for a member of parliament today also signifies that none of us have the right to legal security. 

The summary of the 3rd Criminal Chamber of the Court of Cassation's ruling can be written as follows: The Republic of Turkey is not a state governed by the rule of law. Although Article 2 of the Constitution states that "The Republic of Turkey is a democratic, secular and social state governed by the rule of law, within the notions of public peace, national solidarity and justice, respectful of human rights, loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the preamble," the state's character as a rule-of-law state has been effectively eliminated by this ruling.

It should also be noted that while the high judiciary may be fighting within itself over a so-called "judicial crisis," in reality, this is not their fight. It is not a simple standoff between the AKP and the MHP either. It is a preliminary preparation aimed at certifying the new regime's effort to make itself "unchangeable" at a constitutional level. As we said at the beginning, this is a regime crisis. 

However, Turkey will overcome this crisis and become a state governed by the rule of law once again. We, as legal professionals, will do our best to return to the rule of law. I am not hopeless. 

Finally, although it has been disregarded, it is useful to refresh the most basic knowledge we acquired when we first stepped into law school; 

A void and flawed act or provision, no matter how many times it is repeated, remains "VOID" and contrary to the law. It only aggravates the injustice!

“Ab initio nullum semper nullum” 

(What is void from the beginning is always void)

“What has lapsed does not return” (Mecelle, Art. 51)

“Ex nihilo nihil fit”

(Nothing comes from nothing)