Second "rights violation" ruling regarding Can Atalay

What had happened?

Attorney Şerafettin Can Atalay was arrested on April 25, 2022, and sent to Marmara Prison after receiving an 18-year prison sentence in the Gezi Park Case. In the May 14, 2023 General Elections, he was elected as a Member of Parliament for Hatay from the Workers' Party of Turkey (TİP). After being elected as an MP, he received his certificate of election through his lawyers, but he could not take the parliamentary oath due to his imprisonment. Following this, his lawyers filed an application for his release to the Court of Cassation, which was rejected. Subsequently, Can Atalay, whose request was denied, "violation of the right to personal liberty and security" applied to the Constitutional Court (AYM) on these grounds.

Atalay's application based on "legislative immunity" was heard by the Constitutional Court on October 5, 2022. The five-member panel decided to refer the application to the Constitutional Court General Assembly. The decision stated, "as it is deemed necessary for the application to be decided by the General Assembly due to its nature, it has been decided to refer it to the General Assembly in accordance with Article 28 of the Constitutional Court's Internal Regulations." it was stated.

The Constitutional Court (AYM) reviewed the case and reached a verdict on Atalay’s application on October 25, 2022. Regarding the “right to vote and be elected” and the “right to personal security and liberty” the ruling concerning the violation of rights was sent to the Istanbul 13th High Criminal Court, where the trial was held. The reasoned decision was later published in the Official Gazette. The ruling stated that Can Atalay’s rights had been violated and ordered a retrial. It was also specified that Can Atalay should be paid 50,000 TL in compensation.

The 13th High Criminal Court unlawfully sent the file to the 3rd Criminal Chamber of the Court of Cassation.

First, the Office of the Supreme Court Prosecutor sent its notification regarding the Constitutional Court’s violation ruling on Can Atalay to the 3rd Criminal Chamber of the Court of Cassation. In the decision, “The Member of Parliament shall not benefit from the legislative immunity provided for in Article 83/2 of the Constitution of the Republic of Turkey.” it was stated. This served as a signal flare. Because the referral of the file to the Court of Cassation was already unlawful. The Prosecutor’s Office’s "null and void" writing a notification was a summary of the situation. However, with this notification, the Chief Public Prosecutor's Office should have stated that there was no decision for the 3rd Criminal Chamber of the Court of Cassation to make. 

A so-called judicial crisis occurred in Turkey over the Constitutional Court's (AYM) ruling on Can Atalay.

President Recep Tayyip Erdoğan took the side of the Court of Cassation. Following Erdoğan's statements, the Presidency of the Court of Cassation issued a statement regarding the matter. In the statement, it was claimed that the Constitutional Court "has taken decisions that drag the legal system into chaos" it was stated.

Following this, the 3rd Criminal Chamber of the Court of Cassation filed a criminal complaint against the Constitutional Court members who ruled for a rights violation regarding Can Atalay. The Chamber stated that the Constitutional Court's "rights violation" ruled that the decision was not complied with. The Chamber sent a copy of the decision to the Grand National Assembly of Turkey (TBMM) for the revocation of Atalay's parliamentary membership. Parliament Speaker Numan Kurtulmuş did not read the Court of Cassation's decision in Parliament.

Atalay's lawyers appealed the decision of the 3rd Criminal Chamber of the Court of Cassation, which did not comply with the Constitutional Court (AYM) ruling. The 4th Criminal Chamber of the Court of Cassation, on the grounds that the decision was not subject to appeal, ruled that 'there was no need to issue a decision'. 

SECOND 'RIGHTS VIOLATION'

Atalay's lawyers applied to the Constitutional Court for a second time. The General Assembly of the Constitutional Court discussed the decision on December 21. Evaluating Can Atalay's application, the Constitutional Court ruled for a second time that there was a 'rights violation'. issued the ruling. The decision was once again sent to the 13th High Criminal Court. The Constitutional Court's reasoned decision was published in the Official Gazette on the night of Wednesday, December 27.  

The Constitutional Court ruled that Atalay's "right to individual application," guaranteed under Article 148 of the Constitution, had been violated:

"It was decided unanimously that the claim regarding the violation of the right to vote and engage in political activity, the right to personal liberty and security, and the right to individual application is admissible, and that the right to individual application guaranteed under Article 148 of the Constitution has been violated."

The Constitutional Court ruled that 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, were violated. Furthermore, the ruling included criticisms regarding the failure to comply with the Constitutional Court's decision:

“In the concrete case, the Constitutional Court requested that the Istanbul 13th High Criminal Court initiate a retrial for the applicant, suspend the execution of the conviction, ensure the applicant's release from the penal institution, and decide to stay the proceedings in accordance with the fourth paragraph of Article 83 of the Constitution so that the applicant may exercise his right to be elected and engage in political activities, in order to terminate the violation of the applicant's right to be elected and engage in political activities and to eliminate its consequences. Despite this, the court avoided fulfilling the requirements of the violation ruling by using a power not granted to it under procedural law and sent the file to the 3rd Criminal Chamber of the Court of Cassation. The Chamber then issued a ruling stating ‘non-compliance with the Constitutional Court decision,’ which does not exist in Turkish law.”

The 13th High Criminal Court, however, again failed to implement the Constitutional Court (AYM) decision and sent the file to the 3rd Criminal Chamber of the Court of Cassation. In the 13th High Criminal Court's ruling, it was stated that the matter“concerned the decision to reject the release request issued by the relevant criminal chamber of the Court of Cassation” as follows:

“The violation ruling subject to the individual application made to the Constitutional Court does not pertain to our court's decision, but rather to the decision to reject the release request issued by the relevant criminal chamber of the Court of Cassation; the applicant was elected as a member of parliament while the file was before the relevant chamber, and the violation subject to the individual application stemmed from that chamber's decision; furthermore, after the individual application was filed, the file was examined on its merits and concluded by the relevant criminal chamber; therefore, in the face of the new legal situation that arose, a new assessment was made by the 3rd Criminal Chamber of the Court of Cassation and a decision regarding the individual application was rendered; an application was made against this decision by using the individual application path to the Constitutional Court again; as a result of the evaluation made by the Constitutional Court, the decision subject to the relevant application was sent back to our court; considering that the new evaluations subject to the aforementioned application concern the decision rendered by the 3rd Criminal Chamber of the Court of Cassation, it is understood that a new assessment by the 3rd Criminal Chamber of the Court of Cassation is mandatory in light of the new legal situation that has arisen regarding the decision, and thus the following ruling has been established to send the file to the Office of the Chief Public Prosecutor of the Court of Cassation to be forwarded to the 3rd Criminal Chamber of the Court of Cassation.”

At this point, it must be stated that it is the 13th High Criminal Court that issued the ruling. For this reason, the Constitutional Court sends the violation ruling to the 13th High Criminal Court. The 13th High Criminal Court can only execute the order of the Constitutional Court's decision. It cannot send the file anywhere else. For this reason, since what needed to be done—that is, the word of the law—was not carried out, there is no difference between the 13th High Criminal Court sending the Can Atalay file to the Court of Cassation and sending it to the Ankara Provincial Health Directorate. In other words, the action is completely null and void.  

We see with regret that the Istanbul 13th High Criminal Court has failed to implement the Constitutional Court's decision for the second time and has not released Atalay. People with whom I sat in the same classrooms and received the same education have murdered the law before our eyes, despite all our cries for justice. It is a terrifying evil.

It should not be forgotten that upholding our Constitution is not only the obligation of the Constitutional Court but also the responsibility of all public institutions, and indeed all legal and natural persons, that is, all citizens. Upholding the Constitution means 'liberty' in the 1908 Revolution, 'anti-imperialism and self-determination' in the 1921 Constitution, 'anti-imperialism and self-determination', 'national sovereignty and development' in the 1924 Constitution, and in the 1961 Constitution 'secularism and a social Republic'. means upholding its legacy.  In other words, our Constitution, and consequently our legal system, has a spirit, a philosophy, and a morality. Without upholding and protecting all these values, a better system cannot be built. Furthermore, it will not be possible to protect our Constitution merely by filing lawsuits and repeatedly obtaining rulings that are not enforced. This is only possible through civic consciousness and the strengthening of democracy.