Constitutional Court's 'violation' ruling not enough for the court: Can Atalay not released

The detention of Workers' Party of Turkey (TİP) Hatay MP Can Atalay, who is currently imprisoned, continues.

A scuffle broke out when TİP deputies arrived in the corridor to speak with the clerk of the 13th High Criminal Court, and MP Sera Kadıgil called on all lawyers to come to the courthouse to provide support.

NO RELEASE ORDER ISSUED

The Istanbul 13th High Criminal Court did not issue a release order in the Can Atalay case. The court sent the file to the 3rd Criminal Chamber of the Court of Cassation.

The court's decision is as follows:

“The decision rendered by the Constitutional Court on 25/10/2023 regarding the individual application numbered 2023/53898, filed by the applicant Şerafettin Can Atalay on 20/07/2023, was sent to our Court as an annex to the letter of the Constitutional Court General Secretariat dated 25/10/2023 and numbered 2023/53898. The said decision was published in the Official Gazette dated 27/10/2023 and numbered 32352.

Following the appeal against the 18-year prison sentence imposed on the applicant under Articles 312 and 39 of the Turkish Penal Code in our Court's decision dated 25/04/2022 and numbered 2021/178 E., 2022/178 K., the appeal was rejected on its merits by the decision of the Istanbul Regional Court of Justice 3rd Criminal Chamber dated 28/12/2022 and numbered 2022/1270 E., 2022/1463 K.

Upon the appeal of the said decision, the file was sent to the 3rd Criminal Chamber of the Court of Cassation. While the file was under appellate review, the applicant was elected as a Hatay deputy in the general parliamentary elections held on May 14, 2023. The applicant requested from the 3rd Criminal Chamber of the Court of Cassation that a stay of proceedings be issued and that he be released due to his election as a deputy, in accordance with Article 83 of the Constitution. This request of the applicant was rejected by the Chamber's decision dated 13/7/2023 and numbered 2023/12611 E., 2023/112 D. İş, with the merits of the case to be examined later. The objection filed by the applicant against the said decision was definitively rejected by the 4th Criminal Chamber of the Court of Cassation on 17/7/2023. The applicant filed an individual application to the Constitutional Court on 20/07/2023. While the said individual application was under review, the conviction against the applicant was upheld by the decision of the 3rd Criminal Chamber of the Court of Cassation dated 28/09/2023 and numbered 2023/12611 E., 2023/6359 K.

In its application dated 25/10/2023 and numbered 2023/53898, the Constitutional Court decided that a copy of the decision be sent to our Court for the implementation of procedures such as initiating a retrial of the applicant to eliminate rights violations, suspending the execution of the conviction, ensuring his release from the penal institution, and issuing a stay of proceedings in the retrial.

Article 50, paragraphs one and two of the Law on the Establishment and Trial Procedures of the Constitutional Court, dated 30/03/2011 and numbered 6216, states:

“(1) At the end of the substantive examination, it is decided whether the applicant's right has been violated or not. If a violation is found, it is ruled what must be done to eliminate the violation and its consequences. However, no review of expediency can be conducted, and no decision in the nature of an administrative act or action can be rendered.

(2) If the identified violation stems from a court decision, the file is sent to the relevant court to conduct a retrial to eliminate the violation and its consequences. In cases where there is no legal benefit in conducting a retrial, compensation may be awarded in favor of the applicant, or the path of filing a lawsuit in general courts may be indicated. The court responsible for conducting the retrial shall render a decision, if possible, based on the file, in a manner that eliminates the violation and its consequences as explained in the Constitutional Court's violation decision.”

Considering the said regulations, it is understood that the violation decision subject to the individual application rendered by the Constitutional Court does not relate to our Court's decision, but to the decision of the relevant Criminal Chamber of the Court of Cassation rejecting the request for release; that the applicant was elected as a deputy while the file was before the relevant Chamber; that the violation subject to the individual application stemmed from that Chamber's decision; and furthermore, that the file was examined on its merits and concluded by the relevant Criminal Chamber after the individual application was filed. Therefore, as it is understood that a new evaluation by the 3rd Criminal Chamber of the Court of Cassation is mandatory in the face of the new legal situation that has arisen, the file has been sent to your Public Prosecutor's Office.”

News Source: 12punto