A ruling from the Turkish Court of Cassation released yesterday (November 8) on the Can Atalay case has presented Turkey with a major judicial crisis and raised new concerns about the independence of the country’s judiciary.
Can Atalay is an incarcerated lawyer and activist who has been involved in several high profile cases such as those involving the 2013 Gezi Park protests, 2014 Soma mine disaster, and 2018 Çorlu train accident. Incarcerated at Istanbul Silivri prison since April 2022, Atalay had been sentenced to 18 years in prison for his alleged role in the Gezi events. Atalay also served as a candidate from the Turkish Workers Party (TIP) for Turkish parliament representing the Hatay province in May 2023’s general elections despite his incarceration. Atalay won the election, presenting the judiciary with the question of whether the representative-elect should be released from prison on the grounds of his election victory. On October 5, Turkey’s Constitutional Court began reviewing Atalay’s application for release based on his ‘legislative immunity’. Several weeks ago on October 25, the court released a decision saying that representative-elect Atalay should be released from prison on the grounds that his ‘right to be elected and participate in political activities’ as well as his ‘personal freedom and security’ had been violated through his ongoing detention.
Competing ruling from Court of Cassation
The ongoing crisis regarding Atalay’s parliamentary membership received a major jolt yesterday when Turkey’s Court of Cassation issued a ruling stating that the Constitutional Court’s decision to release Atalay would not be implemented. Additionally, the ruling from the Court of Cassation filed a criminal complaint against the members of the Constitutional Court responsible for the October 25 decision to release Atalay, accusing the judges of ‘violating constitutional decree and exceeding their legal authority’. However, according to Constitutional Court members contacted by Medyascope, the judges had still not been officially notified of the criminal complaint as of this morning (November 9).
Regarding the question of Atalay’s election victory and parliamentary membership, the Court of Cassation ruled that the incarcerated lawyer would not be permitted to take office because ‘his conviction is a legitimate constitutional reason to strip his parliamentary membership’ and ‘according to article 76 of the constitution, such a conviction is incompatible with such parliamentary membership’.
CHP responds
Regarding the ruling from the Court of Cassation, newly elected chairman of the main opposition Republican People’s Party (CHP) Özgür Özel released a statement calling on the public to protest the decision:
“Those being targeted by this ruling are not limited to Can Atalay. This is an attempt by the court to make an example of Can Atalay and to strip our constitution of its authority…The public will be the ones to pay the price for this decision. In order to uphold the authority of our constitution, we are prepared to do whatever it takes. I call on all parliamentary groups to resist this decision. We invite all academics and legal experts to raise their voices regarding this ruling. We support all civil society members and their organizations in their resistance. We will take to the streets and squares in order not to surrender to this unlawfulness.”
Turkey’s Minister of Justice Yılmaz Tunç, a member of President Recep Tayyip Erdoğan’s Justice and Development Party (AKP), criticized Özel’s call for public protest saying “Turkey is a country of laws. Using the court decision as an excuse to incite the public to street protest is an approach that will benefit absolutely no one.”
Other parties respond
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Erkan Baş, chairman of Atalay’s TİP party, released a statement on social media decrying the ruling from the Court of Cassation as “a blatant coup attempt”.
Bilge Yılmaz, a member of the center-right İYİ Party, also condemned the decision, saying: “This is the first time in our history that our judiciary has filed a criminal complaint against members of the Constitutional Court. This is an overt constitutional crime and a coup attempt against our constitutional order.”
Ahmet Davutoğlu, former Turkish Prime Minister, Foreign Minister, and current chairman of the Gelecek Party, also condemned the ruling: “This is a judicial coup. Never think that you are alone. We will always be on the side of every decision that protects our democratic, constitutional state.”
Constitutional expert speaks to Medyascope
Kerem Altıparmak, an expert of Turkish constitutional law, spoke to Medyascope regarding the serious crisis that Turkey’s judiciary finds itself in:
“What we are witnessing is something that has never happened before. It is completely absurd. The judiciary doesn’t even have the authority to stand up and say [to the Constitutional Court] ‘Hey, you have interpreted the constitution incorrectly’. Leaving aside the fact that they have accused the Constitutional Court members of a crime – even if the Constitutional Court has issued an incorrect decision the most you can do is maybe write an editorial about it. In the end, the Constitutional Court will issue a final decision.”
Written/translated for Medyascope by Leo Kendrick
