Turkey’s Court of Cassation does not recognize Can Atalay verdict, files criminal complaint against Constitutional Court members

The Court of Cassation did not recognize the Constitutional Court's decision to release TİP MP Can Atalay, who was arrested in the Gezi Trial, and filed a criminal complaint against the members of the Constitutional Court. The 3rd Criminal Chamber of the Court of Cassation stated that the Constitutional Court violated the Constitution and exceeded its authority, leading to the criminal complaint against the members who issued a decision of violation against Atalay.

The Constitutional Court, which reviewed the individual application of TİP Hatay MP Can Atalay, ruled that Atalay's right to be elected and his right to personal liberty and security were violated, and also ordered a retrial. The decision was made by a majority vote of 5 members against 9.

In contrast, the Istanbul 13th High Criminal Court sent the file to the 3rd Criminal Chamber of the Court of Cassation. The Chief Public Prosecutor's Office of the Court of Cassation opposed the release decision and, in the opinion submitted to the Constitutional Court, also set a jurisdictional limit, stating, "He cannot benefit from legislative immunity."

AYM DECISION NOT RECOGNIZED

The 3rd Criminal Chamber of the Court of Cassation has declared that the Constitutional Court's violation decision regarding the individual application of Şerafettin Can Atalay, dated September 25, 2023, does not hold legal value and validity. They argue that there is no decision to be implemented within the scope of Article 153 of the Constitution in this context. Additionally, they stated that the conviction of Şerafettin Can Atalay was upheld on September 28 as a result of the appeal examination on the conviction decision. In response to the finalized decision, the Constitutional Court has decided not to comply with the aforementioned decision of the Constitutional Court.

NOTIFICATION SENT TO THE TBMM FOR THE DOWNGRADING OF HIS PARLIAMENTARY SEAT

Additionally, the court stated that Atalay became a convicted felon with the approval of the verdict against him, and that "final conviction or restriction" is regulated as one of the reasons for the loss of a parliamentary seat according to the Constitution. The court also mentioned that a conviction for crimes incompatible with parliamentary membership, as listed in Article 76 of the Constitution, will lead to the loss of a parliamentary seat. As a result, the court decided to send a copy of the decision to the Presidency of the Grand National Assembly of Turkey in order to initiate the procedures for the loss of Atalay's parliamentary seat.

CRIMINAL COMPLAINT AGAINST THE MEMBERS WHO ISSUED THE VIOLATION DECISION

Finally, it was decided to file a criminal complaint with the Chief Public Prosecutor's Office of the Court of Cassation against the Constitutional Court members who voted in favor of accepting the violation of rights.

LAWYER KAMİL TEKİN SÜREK: THE JUDICIARY GETS THIS COURAGE FROM ERDOĞAN AND BAHÇELI

Lawyer Kamil Tekin Sürek stated that the 3rd Criminal Chamber of the Court of Cassation not only had the audacity to disregard the Constitution and file a criminal complaint against the members of the Constitutional Court but also criticized the Turkish Grand National Assembly. Sürek mentioned that this boldness was derived from Erdoğan and Bahçeli. The lawyer emphasized that the duties and jurisdiction of the Constitutional Court (AYM) are clearly outlined in the Constitution. Regardless of personal opinions about the Constitutional Court's decisions, Sürek pointed out that all courts, including heavy penal courts and Supreme Court departments, are obligated to adhere to them. He added, "If I were to declare that I don't recognize the Constitutional Court's decision and refuse to comply, it wouldn't hold much weight. However, if I were forced to implement it, the state would compel me to do so. When the court declares non-compliance, the situation becomes serious. In this case, the members of the 3rd Chamber of the Court of Cassation will be the ones on trial, not the members of the Constitutional Court."

JUDICIARY ALSO ASSIGNS DUTIES TO TBMM

Stating that the 3rd Chamber of the Court of Cassation not only violated the Constitution by refusing to acknowledge the Constitutional Court's decision, but also had the audacity to criticize the Turkish Grand National Assembly by questioning, "Why don't you consider Can Atalay's parliamentary seat?" Sürek said, "The Turkish Grand National Assembly can delay the decision of the 3rd Chamber of the Court of Cassation for as long as it deems necessary, even until the end of the term. It has already demonstrated its commitment to the Constitution and the Constitutional Court's decision by delaying it until today. The 3rd Criminal Chamber of the Court of Cassation derives its boldness to disregard the Constitution and the Constitutional Court's decision from Erdoğan and Bahçeli. Bahçeli has previously advocated for the dissolution of the Constitutional Court, while Erdoğan is preparing to diminish the powers of the Constitutional Court through constitutional amendments." (EVRENSEL DAILY)