Recently elected MP Can Atalay’s release from prison was denied by the 3rd Criminal Chamber of the Court of Cassation on the morning of July 14th. Atalay, who has been sentenced to 18 years on terrorism charges, was elected as a Member of Parliament representing the Turkish Workers’ Party (TİP) in the May general election.
The Court of Cassation rejected the release request of Can Atalay, an elected Member of Parliament for the Turkish Workers’ Party (TİP) from Hatay province. Atalay was arrested on April 25, 2022, and convicted of terrorism and attempting to overthrow the government due to his alleged connection to the 2013 Gezi Park protests, a significant challenge to then Prime Minister Erdoğan’s power. Atalay’s attorneys requested his release based on Article 83 of the constitution, which would allow him to serve his term as an MP. However, the Court of Cassation rejected Atalay’s request this morning (July 14th), citing the severity of his crimes as a justification for an exception to the law.
The court provided the following reasoning for denying Atalay’s release:
“Considering that the offense of attempting to abolish or partially obstruct the government of the Republic of Turkey by using force and violence falls within the scope of Article 14 of the Constitution, and the investigation against the defendant was initiated before the elections, it is concluded that the defendant shall not benefit from legislative immunity in accordance with the second sentence of the second paragraph of Article 83 of the Constitution. Therefore, it is determined that the trial should proceed in accordance with the general procedural provisions.”
Atalay’s arrest is connected to the Gezi Park trial, which involves several individuals accused of various charges related to the 2013 protests. The Gezi Park protests initially started as a response to urban development plans that included the demolition of Gezi Park in Istanbul. The demonstrations evolved into a broader movement criticizing government policies and alleged authoritarianism. Atalay served as the attorney for “Taksim Solidarity,” a civil group opposing the park’s demolition to make way for a mall. What began as a protest against urban planning eventually grew into one of Turkey’s largest protests, with millions of participants.
Can Atalay’s arrest and imprisonment have raised concerns, with allegations including organizing and participating in illegal demonstrations, inciting public unrest, and affiliation with a terrorist organization. The trial has been subject to domestic and international scrutiny, with critics arguing that it is politically motivated and infringes upon freedom of expression and assembly.
Court of Cassation criticizes Constitutional Court
The denial of Can Atalay’s release diverged significantly from previous constitutional jurisprudence. The Constitutional Court of Turkey had previously ordered the release of Ömer Faruk Gergerlioğlu and Leyla Güven, members of the Peoples’ Democratic Party (HDP), on the grounds that their imprisonment hindered their ability to serve as elected officials.
In rejecting the release request, the Court of Cassation expressed criticism towards the Constitutional Court’s previous decisions regarding the release of MPs:
“The decision underscored that while the Constitutional Court’s rulings on Ömer Faruk Gergerlioğlu and Leyla Güven acknowledged the unsuitability of judicial bodies determining and interpreting crimes beyond the scope of legislative immunity, it was deemed legally implausible for the Constitutional Court to employ an individual application process to nullify or render ineffective the enforcement of a constitutional provision.”
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Atalay responds
In response to the Court of Cassation’s denial decision, Can Atalay conveyed a message, saying, “Honorable Speaker of the Parliament and members of the Presidency Council, in the face of the gravity of the situation, it is now crucial for you to fulfill your responsibilities with utmost seriousness. Since I am currently unable to come there, I invite your delegation here so that I may take the oath of office.”
TİP responds
The opposition parties had long criticized the politicization of the judicial system in Turkey and their capture by the ruling party, and perhaps to a greater extent, President Erdoğan. Believing that this too was a politically motivated decision, The Turkish Workers’ Party (TİP) expressed their reaction through a series of tweets, stating:
“The 3rd Criminal Chamber of the Court of Cassation has disregarded the earlier ruling of the Constitutional Court and denied the request for the release of MP Can Atalay from Hatay. We will not yield to the palace and its courts. The fight will continue.”
President of the Association for Constitutional Law Research
Ibrahim Kaboğlu, the President of the Association for Constitutional Law Research, strongly criticized the Court of Cassation’s decision, stating:
“The decision of the 3rd Criminal Chamber of the Court of Cassation regarding the Member of Parliament Can Atalay is clearly a violation of the Constitution. The denial decision, despite the absence of ‘law,’ is based not on legal grounds but on personal conviction through a forced interpretation of the Constitution. This ruling disregards the decisions of the Constitutional Court, undermines the jurisprudence of the Court of Cassation’s Criminal General Assembly, and ignores the decision of the Supreme Election Board (YSK). It is unconstitutional. The judiciary, which is obliged to adhere to the binding nature and supremacy of the Constitution, cannot be an instrument of undermining the constitutional order!”
The case of Can Atalay continues to attract attention and raises concerns about the rule of law and the independence of the judiciary in Turkey.
