MLSA - The 3rd Criminal Chamber of the Court of Cassation did not implement the Constitutional Court's second ruling on Can Atalay's application, saying the decision of the Constitutional Court has "no legal value". The chamber once again wrote to the Turkish Grand National Assembly to have Atalay's parliamentary deputyship revoked.
The 3rd Criminal Chamber of the Court of Cassation announced its decision today (January 3, 2024) regarding the decision taken after the second application made by the lawyers of Can Atalay, Hatay MP of the Workers' Party of Turkey (TİP), to the Constitutional Court (AYM). The Chamber decided not to comply with the second decision of the Constitutional Court. In the decision, it was noted that the Constitutional Court's second decision "has no legal value" and the decision was described as "juristocratic".
In its 37-page decision, the 3rd Criminal Chamber of the Court of Cassation argued that the Constitutional Court "violated" the Constitution. The relevant evaluation was included in the decision with the following statements:
“In the event that the Constitutional Court intervenes in the constitutional powers and duties of the Court of Cassation (Yargıtay) and the Council of State (Danıştay), which are high courts like itself, by acting as a super appellate authority in the case brought before it as a result of individual applications, there will be a decision that lacks legal value and the nature of a decision given by exceeding legal powers; after the violation is evaluated, the decision of the Constitutional Court, which violates the Constitution, will not be complied with.”
The Chamber argued that this was "not the first time" that the Constitutional Court's ruling had not been complied with and stated the following in its decision
"Moreover, the decision of our Chamber dated 08.11.2023 is not the first decision not to comply with the violation decision of the Constitutional Court as a result of the individual application. Since there is a legal gap regarding the enforcement of the violation decisions of the Constitutional Court as a result of individual applications, there have been similar cases in the past where some retrial decisions of the Constitutional Court were not enforced by the courts of first instance on different grounds."
The 3rd Criminal Chamber of the Court of Cassation claimed that the Constitutional Court "acted like a super-appellate authority" and described the Gezi Park protests as "grave actions". The decision reads as follows:
"The Constitutional Court has exceeded its legal powers in a way that is clearly contrary to the Constitutional and legal regulations by examining the issues that should be considered in the legal process by evaluating the evidence and the nature of the crime in order to conclude that these grave actions should be accepted within the scope of the right to assembly and demonstration marches by ignoring the precedent of our Chamber that the Gezi Park protests constitute a crime aimed at overthrowing the legitimate and elected government."
Court of Cassation refers to the Constitutional Court of Pakistan
In its reasoned judgment, the 3rd Criminal Chamber of the Court of Cassation evaluated the Constitutional Court's decision as an interpretation resembling a juristocracy. The judgment referred to Pakistan's Constitutional Court's decision on Prime Minister Imran Khan and claimed that the Constitutional Court has unlimited powers:
"For example, in 2022, in Pakistan, the opposition, which had taken the majority in the Parliament, wanted to replace the elected and legitimate Prime Minister Imran Khan by holding a vote of no confidence; thereupon, as a product of the effort to design the politics, the Constitutional Court of Pakistan decided to hold a vote of no confidence by ignoring the decision taken by Prime Minister Imran Khan to dissolve the Parliament and hold early elections. As a result of this decision, which caused a political crisis, Imran Khan became the first prime minister in Pakistan to be removed from office. Thus, Imran Khan's prime ministership was dismissed with a vote of no confidence by the opposition, which had taken the majority in Pakistan's parliament, thanks to the Constitutional Court's decision."
'It is telling that the file is examined first'
The Court of Cassation also stated the following in its decision: "While the Constitutional Court has many important applications in front of it ... the fact that it examined the second application by placing it in front of many important files was also found meaningful by the Chamber."
What happened?
On December 21, the Constitutional Court's General Assembly ruled for the second time that Can Atalay, Hatay MP of the Workers' Party of Turkey (TİP), who was sentenced to 18 years in prison in the Gezi trial, rights were violated.
The Constitutional Court ruled with a majority of votes that "the right to be elected and to engage in political activity" guaranteed under Article 67 and "the right to personal liberty and security" guaranteed under Article 19 of the Constitution were violated. İrfan Fidan, Muhterem İnce and Muammer Topal voted against this decision.
The Constitutional Court unanimously ruled that the "right to individual application" guaranteed under Article 148 of the Constitution was violated.
The Constitutional Court unanimously decided to send the decision to the Istanbul 13th High Criminal Court for the remedy of the violation of rights, the resumption of the retrial of Can Atalay, the stay of execution, his release and the issuance of a stay of execution in the retrial, and also ruled that Can Atalay be paid 100 thousand Turkish Liras in compensation.
However, the Istanbul 13th High Criminal Court, which convened after the Constitutional Court announced the reasoning of the violation decision, did not implement the decision and sent the file to the Court of Cassation once again.
