*This article was originally published on Yeni Arayış magazine.
On October 25, 2023, the Constitutional Court gave its final judgement on the application of MP Can Atalay, whose criminal sentence in the Gezi trial was upheld last week by the Court of Cassation, and the Constitutional Court ruled a violation of his “right to vote and be elected” and “right to personal liberty and security”. In the 117th paragraph of the judgement published in the Official Gazette, the Constitutional Court listed the actions to be taken by the Istanbul 13th High Criminal Court; "retry, stop the execution of the conviction, release from the prison and issue a stay of execution in the retrial".
The Constitutional Court's "Şerafettin Can Atalay" judgement is the clearest of all the decisions issued since 2012 when the individual application was recognised, and the most detailed explanation of what the lower courts that will implement the decision should do. In other words, the Constitutional Court aimed to prevent post-decision controversies and therefore preferred this plain language, clearly stating each and every step that the lower court should take. In a way, it provided guidance to the lower court. Explaining all the actions to be taken one by one, the Constitutional Court notified the Istanbul 13th High Criminal Court to implement the decision.
In the judgement, there were five dissents filed by five members of the Constitutional Court, all appointed by President Erdoğan. They cited their previous dissents in the cases of Leyla Güven and Ömer Faruk Gergerlioğlu.
Article 83 of the Constitution grants “parliamentary immunity” for members of parliament except in the cases where the alleged crime falls under Article 14 of the Constitution, which prohibits the usage of rights against the “integrity, indivisibility of the state”. The Constitutional Court holds that unless the crimes within the scope of Article 14 are defined by the legislature, the Court of Cassation or other courts cannot rule a crime as within the scope of Article 14. There is no law that lists the crimes which are within the scope of Article 14. The Constitutional Court followed its precedent and ordered a retrial for Mr. Atalay.
Paragraph 117 of the Constitutional Court's judgment is obvious and closed to debate or new deliberation: a retrial, a stay of execution of the conviction, the release of Can Atalay and a stay of the retrial. The Constitutional Court decision was specifically aimed at leaving no room for a new legal debate. Perhaps the aim was to avoid repeating what happened in the Enis Berberoğlu decision.
After the verdict was served to the Istanbul 13th High Criminal Court, we all rightfully expected that in the face of such a clear verdict, the Istanbul 13th High Criminal Court would immediately order the release of Can Atalay. Since Article 153 of the Constitution, which states that “the decisions of the Constitutional Court shall be immediately published in the Official Gazette and shall be binding on the legislative, executive and judicial organs, administrative authorities, real and legal persons.”, did not authorise the Istanbul 13th High Criminal Court to engage in a legal debate on the matter, what they should have done was to issue a decision for a direct release. After the notification, the panel did not come to the courthouse for days. When they finally arrived at the courthouse, they locked the doors of their chambers behind them, turned off the lights and refused to meet with lawyers or MPs. The rumour was that the committee was deliberating the verdict. However, the Constitutional Court's decision was so clear that there was no room for negotiation or new discussion.
After all the psychological warfare, the Istanbul 13th High Criminal Court was able to review the file only six days after the Constitutional Court's decision was notified. However, it did not issue any decision, only a document. The court sent the case file to the 3rd Criminal Chamber of the Court of Cassation on the grounds that the violation of rights stemmed from the actions of the Court of Cassation, with a text bearing the exclusive signature of the president of the court, which has no legal basis, and whose type and date are unclear.
We are now waiting for the response of the 3rd Criminal Chamber of the Court of Cassation. Most probably, the Court of Cassation will send the file back to the Istanbul 13th High Criminal Court on the grounds that the lower court was addressed on the Constitutional Court's decision. After the lower court's possible decision of persistence, the file will be brought before the Criminal Plenary of the Court of Cassation. In this way, the process will be prolonged, discussions on the implementation of the verdict will increase, and debates on the jurisdiction and the role of the Constitutional Court will flare up. Considering the government’s minority partner Devlet Bahçeli's ongoing attacks on the Constitutional Court, this case will turn into a campaign to curb the role of the Constitutional Court. The aim here will be to undermine the Constitutional Court's authority to rule on violations and turn it into an ineffective institution that cannot go beyond declaring right violations. While this process continues, Can Atalay will not be released, and the violation of civil rights against both Can and his voters will continue.
In response to the Istanbul 13th High Criminal Court's attitude that ignores the Constitution and the Constitutional Court, all institutions and individuals, especially the Ministry of Justice, should make their stance clear. Either they will take a stance in favour of the law and the Constitution, or they will ignore the violation of the Constitution and applaud.
If the decision of the Constitutional Court is not implemented and Can Atalay's imprisonment continues, just as the European Court of Human Rights' decisions on Kavala and Demirtaş were not implemented, Turkey will enter a period without a Constitution. This would If we don't want this, what we need to do is to have this committee dismissed, investigated by the High Council of Judges and Prosecutors (HSK) and implement the Constitutional Court's decision with the new committee that will be formed.
*This article was originally published on Yeni Arayış magazine.
