Supreme Court defies Constitutional Court: Turkish judiciary in crisis

The Third Criminal Chamber of the Supreme Court of Türkiye rejected complying with the Constitutional Court’s decision to release imprisoned lawmaker Can Atalay, filing a criminal complaint against the members of the top court, quoting that they “exceeded their authority.”

In an unprecedented decision on November 9, the Supreme Court ruled to defy Constitutional Court’s decision for the release of imprisoned lawmaker Can Atalay, quoting that the top court had “exceeded its authority,” filing criminal complaint against the Constitutional Court members.

Ruling for the imprisonment of Atalay, the Supreme Court argued that his parliamentary status should be stripped.
Constitutionally, the Constitutional Court is an autonomous judicial body; those decisions are binding for every institution in the country. A member of the court can only be investigated by the court itself.

Supreme Court’s decision stirred debate

The Supreme Court’s decision stirred a debate. Some argued that the rift reveals the political motivation within the judicial authorities.

The main opposition Republican People’s Party’s (CHP) newly elected leader, Özgür Özel, defined it as an “attempt to overthrow the Constitution” and called for an action against it.

Özel later stated that he called Parliamentary Speaker Numan Kurtulmuş asking for the parliamentary advisory committee to be convened.

Opposition İYİ Party leader Meral Akşener called on their party members to organise a demonstration in front of the Appeal Court building in Ankara.

Can Atalay case

47-year-old human rights lawyer Can Atalay was sentenced to 18 years in prison for “attempting to overthrow the Turkish Government” on April 25, 2022, by the Istanbul 13th High Criminal Court as a part of the Gezi Park Protest Trial, a highly contested ruling which argued to be politically motivated.

While the appeal process was ongoing, he was elected to the parliament on May 14, 2023, as the Turkish Labour Party’s candidate from Hatay.

As a part of his legislative immunity, he was expected to be released. According to the law, if a convict is elected, their sentence is executed after the legislative term is over.

As the Istanbul 13th Criminal Court rejected releasing Atalay, his lawyers appealed to the Constitutional Court, arguing that his constitutional rights to be elected were violated.

The Constitutional Court, in a decision on October 27, agreed with the appeal and ruled that his rights were violated, and he had to be released. The Istanbul Court resisted this decision and, in an unexpected move, sent the file to the top appeals court, arguing that the decision about Atalay’s release was not within their authority.

The Supreme Court defies the Constitutional Court

The Third Criminal Chamber of the Supreme Court examined the file and defied the Constitutional Court’s decision in an unprecedented move.

The Supreme Court argued that the Constitutional Court members “exceeded their authority” and Atalay’s parliamentary membership should be stripped, let alone his release.

“…although no decision on this matter was taken by the Parliament during the process, there is no possibility to apply to the Constitutional Court in terms of Article 84/2 of the Constitution, which regulates this issue, and the Constitutional Court does not have the authority to examine this issue,” the decision read.

“The violation decision dated September 25, 2023, regarding Atalay’s individual application does not have legal value or validity,” the decision said.

It was stated that there is no decision that must be complied with, that the sentence against Atalay was approved on September 28, and that the Constitutional Court’s decision cannot be applied against the finalised decision.

The decision stated that Atalay was a “convicted felon” and therefore, according to the constitution, his deputy status should be revoked. A copy of the decision was sent to the Presidency of the Grand National Assembly of Turkey for the necessary action to be taken.

“Threatening the appeal court”

It was stated that the members of the Constitutional Court acted “with the comfort of not being audited” and acted like “legislators and a super court of appeal” “even though there is no place for this in the constitution.”

They argued that with the decision, “The Constitutional Court, in its violation decision for the convicted Can Atalay, although it had no legal basis and was a controversial issue even in the doctrine, referred to the ‘objective function of the Constitutional Court decisions’ and went as far as threatening the members of the 3rd Criminal Chamber of the Court of Cassation who issued the decision as ‘committing the crime of negligence'”

“Terrorist organisations were not enough; now the Constitutional Court threatens them,” the statement read.

The Court of Cassation also decided to file a criminal complaint against the members of the Constitutional Court for this reason.

Debate over constitution

The difference of opinion between the Supreme Court and the Constitutional Court stems from the interpretation of Article 14 of the Constitution.

Article 14 of the Constitution stipulates that “none of the rights and freedoms enshrined in the Constitution may be exercised in the form of activities aimed at destroying the indivisible integrity of the state with its territory and nation and abolishing the democratic and secular republic based on human rights”.

Article 83 of the Constitution states that those who are arrested or tried for an offence contrary to Article 14 before being elected as an MP cannot benefit from immunity.

The 3rd Criminal Chamber of the Supreme Court while evaluating Atalay’s request, emphasised that the judiciary can determine which crimes fall under this scope through interpretation and that the scope is already clear.

After the Supreme Court rejected Atalay’s request for release, the Constitutional Court, which reviewed the case, repeated its previous interpretation and found a violation of rights. The Constitutional Court ruled that the Istanbul 13th High Criminal Court should have suspended the trial against Atalay, who was sentenced to 18 years in the Gezi trial, and ordered his release.