TBB President Erinç Sağkan's statement on 'Can Atalay': 'Decisions made with political calculations...'

The reaction from legal professionals continues against the failure to release TİP Hatay MP Can Atalay, despite the Constitutional Court (AYM) issuing a second 'violation of rights' ruling in his favor, due to decisions by the local court and the Court of Cassation. 

Following the event, which has turned into a judicial crisis, Union of Turkish Bar Associations President Erinç Sağkan and lawyers gathered today in front of the Istanbul Courthouse in Çağlayan. 

"WE HAD SAID THAT JUSTICE SHOULD NOT TIE A KNOT IT CANNOT UNTIE"

Union of Turkish Bar Associations President Erinç Sağkan said the following in his statement:

"We had expressed our discomfort with the situation of the independent and impartial judiciary, which is the guarantor of the right to a fair trial, and stated that we gathered to defend the independence of the judiciary, our citizens' right to a fair trial, the separation of powers, and the rule of law; however, we also expressed the sadness and anxiety we feel deep inside for having to gather in front of a high judicial authority to defend the fundamental concepts of the Constitution. We had said that justice should not tie a knot it cannot untie. We had said that the phrase ‘Justice is the foundation of the state’ cannot be just a piece of decor in a courtroom. Throughout this process, as the Union of Turkish Bar Associations and the bar associations representing the defense, which is one of the constituent elements of the judiciary, we have defended the rule of law, the supremacy of law, and the importance of judicial independence. We have not only used our democratic rights stemming from the Constitution in front of the Court of Cassation, but we have also demonstrated how the judiciary can protect its reputation by emerging from this process with rational, law-abiding solution proposals.

"THE COURT OF CASSATION IS DISREGARDING THE CONSTITUTION"

We held separate meetings with all stakeholders involved in the matter. We made official applications to both the Council of Judges and Prosecutors and the Court of Cassation for disciplinary processes to be initiated. We shared with the public through our statements that this process is not a situation that can be simplified with assessments like 'differences in legal interpretation,' and that disregarding the Constitution means that there is no legal security left for any of our citizens living in these lands without exception. Unfortunately, the validity of our concerns has been proven once again. It is seen once again today that we are faced with an approach that considers challenging the constitutional order, rather than implementing the rule of law, as a skill. Juristocracy refers to an anti-democratic regime that lacks democratic legitimacy, where judges make political decisions and hold power, based on judicial rulings. The relevant criminal chamber of the Court of Cassation is disregarding the Constitution despite its clear provisions.

"LEGAL INTERPRETATION EXPLANATION"

To put it more clearly, as a 5-member criminal chamber, it is claiming to be more powerful than the constitution-maker, the Grand National Assembly of Turkey, the government, and, considering that the Constitution is a social contract, every single member of society. It continues, establishing a provision as if holding the legislative body accountable. It keeps a member of the legislative body, the will of the nation, in prison. Now it is necessary to ask: Which high judicial body's decision resembles juristocracy? We must now state this clearly. The issue has ceased to be merely an individual application by lawyer Can Atalay, who was elected as a Hatay MP. The situation we are facing is not a matter of a difference in legal interpretation between this or that court. What is at stake today is the ability of the 3rd Criminal Chamber of the Court of Cassation to establish a justification that no legal value or validity can be attributed to a Constitutional Court decision, despite having no authority to do so.

"WE WANT TO REMIND THEM OF THEIR DUTIES"

What is at stake today is the 3rd Criminal Chamber of the Court of Cassation accusing the Constitutional Court of being in alignment with the rhetoric of terrorist organizations in its decision. What is at stake today is the usurpation of Atalay's right to personal liberty and security, his right to be elected, and the right of the people who elected him to vote, by deciding not to comply with the Constitutional Court's ruling through the abolition of the Constitution. What is at stake today is not the Court of Cassation's Criminal Chamber making a decision contrary to the Constitution and the law; it is the challenging of the constitutional order by demonstrating that the Constitution can be disregarded, that the Constitution can be suspended when desired, and that they possess this power. As of the stage we have reached, there is no legal issue left that can be requested from the Istanbul 13th High Criminal Court and the 3rd Criminal Chamber of the Court of Cassation, against whom we have filed criminal complaints. Today, we want to remind other constitutional bodies, institutions, individuals, and the members of the delegation who are clearly committing crimes against the constitutional order of their duties to do what is necessary.

"WE WILL NOT ALLOW THIS REBELLION"

Disciplinary and criminal investigations must be carried out immediately for judges and prosecutors who do not recognize the constitutional order. Furthermore, the requirement of the Constitutional Court's decision must be fulfilled, and the release of Şerafettin Can Atalay, who was elected as a Hatay MP, and his fulfillment of the requirements of his parliamentary duty must be ensured. Every moment Can Atalay spends in detention, the lawlessness grows even further. It should be known that for us, as representatives of the legal profession, this issue is a matter of defending the rule of law, the state of law, and the constitutional order, regardless of who the parties are. Today, we declare once again from here. We will not allow this rebellion, which is reinforced by the new decisions of the Istanbul 13th High Criminal Court and the 3rd Criminal Chamber of the Court of Cassation and which challenges the constitutional order, to pass. We will never, ever allow decisions made with political calculations to hold our judicial system and the future of our country hostage.”

News Source: 12punto