A photograph shows a portrait of the Workers’ Party of Turkey (TIP)’s jailed MP Can Atalay during a swearing-in ceremony at the Turkish parliament in Ankara on June 2, 2023. Local courts keep resisting Constitutional Court order to release Can Atalay deepening the legal crisis. (Photo by Adem ALTAN / AFP)
The legal proceedings surrounding the imprisonment of Can Atalay, a lawmaker from the Turkish Worker’s Party (TİP), have escalated into an acute crisis within the Turkish higher judiciary.
On January 3, the 3rd Criminal Chamber of the Supreme Court of Appeals once again resisted the Constitutional Court’s directive to release Atalay from prison, accusing it of acting as a “super appellate authority.”
The Supreme Court asserted that the Constitutional Court’s decision holds “no legal value” and is “not binding.”
“It has been determined that the Constitutional Court’s decision on Can Atalay’s violation cannot be ascribed legal value and validity, and there is no judicial decision to be followed,” Court of Appeals stated.
This decision has been forwarded to the Turkish Grand National Assembly, recommending the removal of Atalay from his deputy mandate.
Courts lock horns
Can Atalay, elected as a TİP Hatay lawmaker in May, had his lawyers seek his release based on legislative immunity. However, the Istanbul 13th High Criminal Court rejected the request, forwarding the file to the Supreme Court.
The resistance of local courts to the orders of the top court has caused an unprecedented crisis between the Constitutional Court and the Supreme Court of Appeals, occurring twice in the span of two months.
The crisis initially centered on the interpretation of Article 82 of the Constitution, regulating parliamentary immunity, and Article 14, restricting constitutional freedoms. The Constitutional Court ruled for Atalay’s release, stating that his 18-year prison sentence in the Gezi Park case should continue after the end of his term as a parliament member.
However, the Supreme Court of Appeals argued that Atalay’s sentence falls under the scope of Article 14, which restricts activities aimed at undermining the state’s integrity and overthrowing the democratic and secular republic.
While the Constitutional Court is the sole authority authorized to review the constitutionality of a practice, the Parliament has the power to amend the Constitution. Moreover, the decisions of the Constitutional Court are binding on various organs and entities.
Transitioned into a political crisis
The Atalay crisis has transitioned from a judiciary crisis to a political one.
The recent decision by the Supreme Court not only challenges the Constitutional Court’s rulings but also questions the scope of individual applications to the Constitutional Court, creating a “legitimacy crisis.”
Gökçer Tahincioğlu from T24 notes that there might not be much recourse against this decision. He suggests that the Supreme Court of Appeals is urging the Turkish Parliament to act on the powers of the Constitutional Court. This raises concerns about a potential disregard for European Court of Human Rights (ECtHR) judgments.
“Atalay is watching these debates from prison, deprived of his freedom. It is now more critical what position the Presidency of the Turkish Grand National Assembly will take. It remains to be seen whether it will listen to the Constitutional Court and decide that Atalay’s rights have been violated, or whether it will listen to the Supreme Court of Appeals and revoke his deputy status. But in any case, it seems that the Constitutional Court will not be able to continue on its way with its former power” Tahincioğlu writes.
Judicial tension for Atalay: Istanbul court resists the top court again
