Turkey faces judicial crisis as high courts clash over jailed MP

• Imprisoned for one and a half year due to the Gezi Park trial, lawyer Can Atalay was elected an MP in the May elections
• Atalay’s applications for his release to perform his MP duties were rejected by courts
• In late September, the Court of Cassation, the top appeals court, upheld the Gezi verdict, ensuring his continued imprisonment
• In response, Atalay filed an individual application with the Constitutional Court, which ruled on October 25 that his election rights were violated
• Instead of directly implementing the Constitutional Court verdict, the relevant local court referred it to the Court of Cassation
• The Court of Cassation asserted that the Constitutional Court’s decision violated the Constitution and decided to file criminal complaints against its judges
• In recent years, the Constitutional Court has faced severe criticism from government circles, even some suggesting its closure

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Turkey is facing a new judicial crisis as two of its top courts are locked in a dispute over the fate of a jailed opposition politician. 

Can Atalay, who was elected to parliament in May as a member of the Workers’ Party of Turkey (TİP), has been in prison since April 2022 on charges of "attempting to overthrow the government" during the 2013 anti-government protests, also known as the Gezi Park protests. 

Atalay appealed his conviction to the Court of Cassation, the highest court of ordinary jurisdiction, but his appeal was rejected in July. He then filed an individual application with the Constitutional Court, the highest court of constitutional review, which ruled last month that his continued detention violated his rights to personal liberty, parliamentary immunity and fair trial. It ordered his immediate release.

However, the İstanbul 13th Heavy Penal Court, the court initially sentenced Atalay and other defendants, refused to comply with the Constitutional Court's ruling. It argued that the ruling did not concern its decision but the decision of the 3rd Penal Chamber of the Court of Cassation, which upheld the verdict in September. Therefore, it referred the verdict to the 3rd Penal Chamber.

Reviewing the supreme court verdict, the 3rd Penal Chamber concluded that the Constitutional Court had exceeded its authority and violated the constitution. It also announced that it would file criminal complaints against the nine Constitutional Court judges who had voted in favor of Atalay, accusing them of "abuse of office" and "attempting to change the constitutional order by force or violence".

"A judicial coup" 

The unprecedented move by the Court of Cassation has sparked a fierce backlash from the opposition and the legal community. They have denounced the attempt to undermine the authority and independence of the Constitutional Court.

The main opposition Republican People's Party (CHP) leader Özgür Özel called the move a "coup attempt" against the constitutional order and urged the public to "suppress this insurrection.” He said the Court of Cassation had no right to question or challenge the Constitutional Court's decisions, which are binding on all state organs and individuals. 

The Union of Turkish Bar Associations also described the Court of Cassation’s decision as a “judicial coup.”

Mixed reactions

The opposition accuses President Recep Tayyip Erdoğan and his ally, the Nationalist Movement Party (MHP) leader Devlet Bahçeli, of orchestrating the crisis.

Bahçeli has repeatedly called for the abolition or restructuring of the Constitutional Court, accusing it of acting like a "political party" and a "fifth column" due to some of its verdicts in political cases.

Erdoğan, who has a strained relationship with the Constitutional Court, has not commented on the crisis yet. However, there have been mixed reactions from his ranks. Hayati Yazıcı, the deputy chair of Erdoğan’s AKP, lamented the incident on social media as something “that should never, ever happen.”

“The branches that make up the state are there to solve problems. They should never create problems, and they cannot. They shouldn't undermine each other,” he wrote.

Mehmet Uçum, a senior legal advisor to Erdoğan, on the other hand, slammed the Constitutional Court, saying it “persistently refuses to recognize the Constitution in its decisions concerning the immunity of convicted members of parliament.”

Uçum argued that the top court disregards article 14 of the Constitution, which says freedoms and rights guaranteed in the Constitution “cannot be used to disrupt the unity of the state and the nation and constitutional principles.” Consequently, he maintains that Article 14 applies to the case of Atalay, who was convicted of "abetting a coup attempt," and, therefore, his release should not be granted.

In its ruling, the Constitutional Court argued that Article 14, due to its abstract nature, does not pertain to Atalay's specific circumstances.

Legal experts have also weighed in on the developments on social media. Constitutional law expert Prof. Dr. Şule Özsoy-Boyunsuz emphasized that the Court of Cassation is an appellate court and does not hold a superior position over the Constitutional Court. 

Another constitutional law expert, Prof. Dr. Korkut Kanadoğlu, argued that Yargıtay's decision to file a criminal complaint against members of the Constitutional Court goes against the binding nature and the principle of constitutional superiority. (VK)