VEYSEL OK / Yeni Arayış

The Constitutional Court (AYM) described the decision of the 3rd Criminal Chamber of the Court of Cassation as "a decision that does not exist in Turkish law" and stated that Can Atalay should be released immediately. While this is a critical decision for Can Atalay and constitutional law in Turkey, it is also a shameful decision for the Turkey's judiciary and the rule of law.

How did we get here?

The process that led to this judgment, which everyone was waiting for with bated breath, is the result of a succession of unlawful acts. After the 3rd Criminal Chamber of the Court of Cassation refused to release Can Atalay after he was elected as an MP, Atalay's lawyers applied to the Constitutional Court. A few weeks before the Constitutional Court ruled on Atalay's application, the 3rd Criminal Chamber of the Court of Cassation upheld Atalay's conviction and made Atalay a convicted criminal.

In its first judgment upon the application, the Constitutional Court ruled that Atalay's right to vote and be elected and his right to personal liberty and security were violated and sent the file to the Istanbul 13th High Criminal Court, the court of first instance, for his immediate release. Istanbul 13th High Criminal Court sent the case to the Court of Cassation with an unexpected decision. The 3rd Criminal Chamber of the Court of Cassation, on the other hand, made an unexpected decision not to comply with the Constitutional Court's decision and to file a criminal complaint against the members of the Constitutional Court who voted in favor of the violation.

Following this unexpected decision, Atalay's lawyers filed an individual application for the second time due to the non-implementation of the Constitutional Court's decision. The Constitutional Court issued a short decision last week, stating that Can Atalay should be released immediately and sent the file to Istanbul 13th High Criminal Court. The Istanbul 13th High Criminal Court announced that it would wait for the reasoned judgment. On the night of December 26th to 27th, the Constitutional Court's reasoned judgment was published in the Official Gazette.

In summary, the court emphasized that the decisions of the Constitutional Court are binding for the courts as well as for everyone else, and that failure to implement the Constitutional Court's decision would create serious problems for the legal system, individual rights, and public confidence in the legal system, and sent the file to the Istanbul 13th High Criminal Court with the order to release Can Atalay immediately.

The competent court was Istanbul 13th High Criminal Court, not the Court of Cassation

One of the most frequently emphasized points in the reasoned decision of the Constitutional Court is that the file was sent to the Court of Cassation. In the first application, the Constitutional Court sent the file to the Istanbul 13th High Criminal Court for Atalay's release. However, the president of the court sent the file to the Court of Cassation with a text bearing only his signature, which has no place in the law. Such a procedure is neither in the Constitutional Court Procedural Code nor in the Criminal Procedure Code.

Regarding these procedures, the Constitutional Court emphasized that they were in violation of Law No. 6216 and that the Court of Cassation did not have jurisdiction for a retrial under Law No. 6216. The Constitutional Court also stated that the Istanbul 13th High Criminal Court did not fulfill its duty of retrial and therefore violated the rights protected under Articles 67 and 83 of the Constitution.

The Court of Cassation’s decision is a type of decision that does not exist under the law

In the reasoned decision, the Constitutional Court characterizes the decision of the 3rd Criminal Chamber of the Court of Cassation to 'not comply with the Constitutional Court's decision' as a decision that is not included in the law. It goes on to say, "In a state where the rule of law prevails, it is unacceptable that judicial decisions, which perform an indispensable duty to protect individuals' trust in and respect for the legal system, are left inconclusive by not being implemented in a timely manner. Acceptance to the contrary makes it impossible to speak of the existence of the rule of law."

The Court of Cassation's decision amounts to a defiance of the rule of law

In paragraph 68 of the Constitutional Court's judgment, the Court of Cassation's decision is characterized as a challenge to the constitutional legal order: "...In no legal system is it permissible for the courts, which have the obligation to protect the Constitution and to show loyalty to constitutional rules, and for other levels exercising public power, to make arbitrary decisions that amount to a defiance of the legal order envisaged by the Constitution, which would lead to the violation of the fundamental rights and freedoms of individuals and the perpetuation of existing violations through various pretexts and unlawful attitudes and behaviors."

Even the dissenting members said that the Constitutional Court's decisions must be implemented

While the decision on the violation of Atalay's right to vote and be elected was taken by majority vote, the decision on the violation of the right to individual application due to the non-implementation of the Constitutional Court's decision was unanimous. The three dissenting members, Muammer Topal, İrfan Fidan and Muhterem İnce, emphasized that Atalay's right to individual application was violated by stating in their dissenting opinion "...since we have come to the conclusion that the applicant's right to individual application guaranteed under Article 148 of the Constitution has been violated...".

Constitutional Court's decision is historic but shameful

The Constitutional Court published a historic decision in the Official Gazette on the night of December 26. This is a very important decision both for Can Atalay and for constitutional law in Turkey. It is a lesson in why the decisions of the Constitutional Court are binding and why this is essential for a state to continue and ensure its legitimacy.

However, this decision is also an embarrassing one for the Turkey's judiciary and the state. In order to become the president of the High Criminal Court or a member of the Court of Cassation, at least ten years of seniority in the judiciary is required. However, the Constitutional Court has to explain the hierarchy of norms and the supreme legal norm of the Constitution to judges with so many years of seniority. In fact, the Constitutional Court has to explain to these judges that court decisions are binding and must be implemented. There is no doubt that this process we are going through will be a black stain in the one hundred and fifty-year history of the Court of Cassation.

No matter how controversial the Constitutional Court is, disobeying its decision and, as if that were not enough, filing a criminal complaint against the members of the Constitutional Court has broken the hierarchy within the judiciary. Who really needs to be investigated are the judges who did not release Can Atalay despite the Constitutional Court's initial ruling and the release order of Can Atalay, who abused their duties and committed the crime of deprivation of liberty against Can Atalay.

This legal travesty may not be the last case in the judicial system, and with similar crises we may see more frequent objections to the attempts return to the rule of law by politicized members of the judiciary. Against all this, politics and civil society must stand behind the Constitutional Court's decisions.

Political attacks are not independent from legal attacks

However, when the government attacks the President of the Constitutional Court by saying "who has your rope?", I think that this attack should not be considered independent from the legal attacks. In the coming period, the pressure on the Constitutional Court will become even heavier, and we who are in favor of the rule of law, members of the civil society, and the press must protect the decision of the Constitutional Court and ensure that this decision is implemented in order for Turkey to become a rule of law, even if only to some extent.

Can Atalay must be released without waiting a minute. However, this process cannot end with Atalay's release alone. All members of the judiciary who have prevented Can from his freedom since the Constitutional Court's first ruling must be investigated and, if necessary, dismissed. If we want the legal system in Turkey to continue, the system needs such a serious step. Otherwise, as stated in the Constitutional Court decision, "it would undermine the belief of individuals and society in the rule of law and harm the fundamental constitutional order."

A few hours after I wrote this article, the Istanbul 13th High Criminal Court, despite the Constitutional Court's clear statement that "you are the competent court to enforce the decision", removed itself from the duty and sent the file back to the 3rd Criminal Chamber of the Court of Cassation.

By refusing to order the release of Can Atalay, even though the Constitutional Court's ruling explicitly states so, the court of first instance has upped the ante in a game that will end the end of Turkey's constitutional order. If the conflict between these judges, who commit crimes every day by refusing to release Can Atalay, does not end in favor of the Constitutional Court, it will be confirmed that Turkey is not a state of law. No problem in Turkey will end until the constitutional crisis is resolved.