Constitutional Court rules the stripping of Can Atalay’s parliamentary status is ‘null and void’

The Constitutional Court (AYM) has announced the reasoning for its "no grounds for a decision" ruling regarding the application filed for the determination that the stripping of the parliamentary status of Gezi Park trial prisoner Can Atalay is null and void, as well as for the cancellation and stay of execution of the action.

Atalay and several MPs had applied to the Constitutional Court with the request for "the determination that the stripping of Atalay’s parliamentary status by reading the letter from the Court of Cassation’s 3rd Criminal Chamber at the TBMM General Assembly is null and void, and for the cancellation and stay of execution of the action."

The High Court, which reviewed the application at the General Assembly meeting on February 22, ruled by a majority vote that there were no grounds for a decision. The reasoning for the decision was published in today’s issue of the Official Gazette.

The decision recalled that in the individual applications made by Atalay, it was ruled that his "right to be elected and to engage in political activity" and his "right to personal liberty and security" had been violated.

GÖKHAN GÜNAYDIN: CAN ATALAY TO PARLIAMENT!

Announcing that the objection filed by the CHP to the Constitutional Court regarding Can Atalay has been concluded, Günaydın stated that following this decision, Atalay should return to parliament as soon as possible.

Gökhan Günaydın made the following statement:

The Constitutional Court, with the decision it made upon the application of the CHP group and others, has ruled that the stripping of Hatay MP Can Atalay’s parliamentary status, which was carried out by reading the Court of Cassation 3rd Chamber Decision at the TBMM session dated 30/01/2024, is NULL AND VOID! CAN ATALAY TO PARLIAMENT!

CHP CHAIRMAN ÖZEL ALSO MADE A STATEMENT

Evaluating the Can Atalay decision rendered by the Constitutional Court via his social media account, CHP Chairman Özgür Özel made the following statement:

"The Constitutional Court, with its reasoned decision regarding Hatay MP Can Atalay, has determined that the stripping of his parliamentary status is null and void.

Can Atalay must be released, his swearing-in as an MP must be ensured promptly, and all his rights must be restored."

ERKAN BAŞ’S COMMENT ON HIS PARTY’S MP ATALAY

The fact that the TBMM’s decision regarding the stripping of our Hatay MP Can Atalay’s parliamentary status is null and void has been clearly determined by the Constitutional Court, and the reasoned decision has been published in the Official Gazette.

This great shame inflicted upon our country must be remedied immediately; Can Atalay must be released immediately and enabled to begin his duties after taking his parliamentary oath.

The coup plotters will be defeated, #CanAtalayWillComeToParliament! All Gezi prisoners will surely attain their freedom!

WHAT HAD HAPPENED?

Can Atalay was elected as a 28th Term Hatay MP in the parliamentary elections held on May 14. Atalay’s certificate of election was obtained from the Hatay Courthouse by his lawyers, and subsequently, an application was made to the Court of Cassation Chief Public Prosecutor’s Office for his release.

Atalay’s lawyer, Özgür Urfa, had reacted to the fact that the file was not sent by the Chief Public Prosecutor’s Office to the Court of Cassation’s 3rd Criminal Chamber, which would make the decision, and that no explanation was provided to them. Urfa, who is also a member of the TİP Party Assembly, argued that the imprisonment of an elected MP posed legal and constitutional problems.

Minister of Justice Yılmaz Tunç and the new term TBMM Speaker Numan Kurtulmuş had previously stated in their remarks that the TBMM Speaker’s Office would act according to the Court of Cassation’s decision. Minister Tunç had said that the matter was not under the initiative of the Ministry of Justice, that the relevant judicial process was ongoing, and that they would act according to the responses received as a result of the applications made to the TBMM Speaker’s Office. Tunç also made the following remarks at the reception held on October 1 for the opening of the 2nd Legislative Year of the 28th Term of the TBMM:

“Our Constitution contains the sentence in Article 83: ‘An MP cannot be questioned, interrogated, or tried,’ but the judiciary has made a decision, and we will all respect this decision. The decision can certainly be criticized, but expressions such as ‘We do not accept the decision’ do not belong in a democratic state of law. There is a debate about whether it is within the scope of immunity. Our Constitution contains the sentence in Article 83: ‘An MP cannot be questioned, interrogated, or tried,’ but those who do not read the sub-clauses think that immunity consists only of that clause.

When we read the following clauses, the phrase ‘provided that the investigation began before the election’ appears. The investigation for the Gezi Trial began before the election. This crime is within the scope of the constitutional order. Here, the Court of Cassation stated with these justifications that it was not within the scope of immunity and that it would continue the trial, and ultimately made a decision. It constitutes a final judgment. The consequences of a final judgment are also regulated in Article 84 of our Constitution; with the reading of the final judgment in the General Assembly, the parliamentary status is stripped according to Article 84.”

COURT OF CASSATION DECISION

The Court of Cassation’s 3rd Criminal Chamber had ruled in July on the request by Atalay’s lawyer for the suspension of the trial and his release. According to the decision, the request for Atalay’s release and the suspension of the trial against him was rejected on the grounds that the conditions were not met.

Later, in its decision dated September 28, the chamber upheld the aggravated life sentence given to Osman Kavala and the 18-year prison sentences for 4 defendants, including Can Atalay. The Court of Cassation’s decision included the following justifications:

"As it is understood that they acted together in connection with the other defendant, Osman Kavala, who was the main actor in the organization of the Gezi Park protests and who financed these actions, and since their actions in this manner constituted the crime of attempting to overthrow the government within the scope of Articles 312/1 and 37/1 of the Turkish Penal Code (TCK), the fact that they were sentenced for the crime of aiding in the attempt to overthrow the government as a result of an error in the appreciation and evaluation of evidence was not made a reason for reversal as there was no appeal against them."

CONSTITUTIONAL COURT DECISION

Following the Court of Cassation’s upholding decision, Atalay’s lawyers filed an individual application to the Constitutional Court on the grounds that his "right to be elected and to engage in political activity" and his "right to personal liberty and security" were violated due to the rejection of his release request; the Constitutional Court also ruled on October 25 that the rights of Hatay MP Can Atalay were violated in terms of his ‘right to be elected and to engage in political activity’ and ‘right to personal liberty and security.’ In the decision, where 5 members voted ‘against’ and 9 members voted in favor of ‘rights violation,’ the following reasoning was summarized:

"It is clear that the applicant began to benefit from legislative immunity due to being elected as an MP in the general elections held on May 14, 2023—as long as no constitutional or legal regulation is made that provides basic guarantees protecting the right to be elected and to engage in political activity, and that ensures certainty and predictability.

In this case, it must be accepted that the continued detention of the applicant despite his request for release is incompatible with Article 83 of the Constitution."

FILE BACK AT THE COURT OF CASSATION

This decision by the AYM was expected to pave the way for Can Atalay’s release. However, the Istanbul 13th High Criminal Court’s sending of the file to the Court of Cassation added a new dimension to the debates. In its justification, the Istanbul 13th High Criminal Court stated that “Can Atalay was sentenced to 18 years in prison with the decision dated April 25, 2022, that the appeal application made was rejected on its merits, and by recalling other trial processes, that the rights violation decision taken by the AYM on October 25 was not related to the local court’s decision.”

News Source: 12punto