The 3rd Criminal Chamber of the Court of Cassation broke new ground. It ruled not to comply with the Constitutional Court's decision on the violation of the rights of detained TİP Hatay MP Can Atalay and filed a criminal complaint against the members who signed the ‘violation of rights’ decision.
The 3rd Criminal Chamber of the Court of Cassation filed a criminal complaint against the members of the Constitutional Court (AYM) who issued a decision of violation against Can Atalay, a detainee in the Gezi Park trial who was elected as TİP Hatay MP.
According to Sabah's İlker Turak, the chamber that had previously upheld Can Atalay's conviction ruled not to comply with the Constitutional Court's violation decision, arguing that its previous decision was correct. It also notified the Turkish Grand National Assembly to revoke Atalay's parliamentary seat.
After being sentenced to 18 years in prison in the Gezi Park trial, Can Atalay was elected as an MP from TİP in the 28th parliamentary elections held on May 14. Atalay's application for “the suspension of the trial against him and his release due to his election as an MP” was rejected by the 3rd Criminal Chamber of the Court of Cassation. An individual application was made to the Constitutional Court, claiming that his right to “election and political activity” was violated due to the rejection of his request for a stay of proceedings on the grounds that he gained legislative immunity by being elected as an MP, and his right to “personal liberty and security” was violated due to the rejection of his release request.
While the process was ongoing, the 3rd Criminal Chamber of the Court of Cassation upheld Can Atalay's 18-year prison sentence. The Constitutional Court accepted the application and ruled by a majority of votes on October 25 that Can Atalay's “right to be elected” and “personal liberty and security” rights were violated. The Constitutional Court's short decision was sent to the Istanbul 13th High Criminal Court, which was in charge of the Gezi trial and handed down the verdict.
While Can Atalay's lawyers applied for his release, the Court stated that the 3rd Criminal Chamber of the Court of Cassation has the authority to decide on the case and sent the file to this chamber recently.
In its decision, the Chamber said, “When the final verdict against him was notified to the Grand National Assembly of Turkey, this issue should have been submitted to the General Assembly and a decision should have been taken on the immediate dismissal of his parliamentary immunity, although the Grand National Assembly of Turkey could not make a decision on this issue 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 3rd Criminal Chamber of the Court of Cassation stated, “Furthermore, in its violation of rights decision on Şerafettin Can Atalay, the Constitutional Court, unlike its previous decisions on Ömer Faruk Gergerlioğlu and Leyla Güven, decided that Article 14 of the Constitution in terms of parliamentary immunity is not constitutional. While stating that determining which crimes are covered by Article 14 of the Constitution with a judicial interpretation other than constitutional or legal regulation would lead to serious problems, the fact that he cited a decision he had previously given as a result of judicial activism, known in public as the ban on headscarves in universities, which was not accepted by us, was found remarkable by us and was considered as an irony.”.
The 3rd Chamber of the Court of Cassation stated, “The Constitutional Court, which stated in its decision that it would not be healthy for judicial bodies to interpret which crimes would fall under Article 14 of the Constitution and that constitutional or legal regulations must be made, has so far, both in its norm control decisions (for example, its decision to suspend the execution of the execution or the annulment of the institution of deferral of the announcement of the verdict on the grounds that it was not applied correctly, etc.) and in its individual application decisions, which were later assigned to it as an auxiliary duty.) and in its individual application decisions, which were later assigned to it as a secondary task, the Constitutional Court, with the comfort of not being supervised by any body, despite the fact that it has no constitutional or legal authority, has constantly increased and abused its constitutional authority through jurisprudence, causing the criticism that it is a guardianship body over the legislative body, which was frequently voiced during its norm review duty, to emerge on the entire judiciary, including the high courts, upon the granting of the authority regarding the individual application.”.
Constitutional Court threatens members of the 3rd criminal chamber of the Court of Cassation
It is pointed out that the Constitutional Court, in its violation decision against the convicted Şerafettin Can Atalay, went as far as threatening the members of the 3rd Criminal Chamber of the Court of Cassation who issued the decision as ‘committing a crime of omission’ by mentioning the ‘objective function of the Constitutional Court's decisions’, even though there is no legal basis and it is a controversial issue even in the doctrine. Criminal Chamber of the Court of Cassation, which rendered the verdict, to the extent of threatening the members of the 3rd Criminal Chamber as “having committed the crime of negligence”, "It is regrettable and meaningful that the members of our Chamber, who have been constantly threatened by many terrorist organizations or their members both on social media and in print and visual media, or by petitions sent during the first instance proceedings or during the appellate review, are threatened in this way by the Constitutional Court.".
Constitutional Court acts like a guardianship authority
The judgment stated that the Constitutional Court in Turkey not only interferes in the field of the legislature by annulling laws, but also sometimes acts like a legislator and acts as a guardianship authority as a super appellate court over the higher courts, with which, according to the Constitution, there is no superior-subordinate relationship.
Emphasizing that what is expected from the judiciary is to make decisions in accordance with the law, the Constitution and, most importantly, the law, the Constitutional Court said, ”By engaging in judicial activism in this way, the Constitutional Court has the power to ‘render inapplicable a provision of the Constitution that it cannot formally review, and to accept individual applications without exhausting all administrative and judicial remedies provided for in the law, By making the Constitution inapplicable in a way by considering its duties and powers superior to the Constitution and laws with its unconstitutional decisions such as ’intervening in investigations and rendering prosecutions inapplicable”, it has rendered the Constitution inapplicable and has led to its legitimacy to be questioned and its legitimacy to be discussed. It is obvious that the continuous use of public power in violation of the Constitution by those who hold the coercive power of the State and the public power of the State due to their duties will facilitate the commission of the act of violating the Constitution.".
Decision not to comply with Constitutional Court rulings
The 3rd Criminal Chamber of the Court of Cassation stated that the violation decision of the Constitutional Court on the individual application of Şerafettin Can Atalay dated September 25, 2023 has no legal value and validity, and in this context, there is no decision that should be applied within the scope of Article 153 of the Constitution, emphasizing that the conviction decision given to Şerafettin Can Atalay was approved on September 28 as a result of the appeal examination upon the appeal, and in the face of the finalized decision; the Constitutional Court's aforementioned decision should not be complied with.
Notification sent to the Grand National Assembly of Turkey to drop his parliamentary seat
Furthermore, Şerafettin Can Atalay became a convicted person with the approval of the conviction verdict against him, that according to the Constitution, ”final conviction or restriction” is regulated as one of the reasons for the loss of parliamentary deputy status, and that the conviction verdict established for the crimes incompatible with parliamentary deputy status listed in Article 76 of the Constitution will reduce the parliamentary deputy status. The Constitutional Court, noting that the Constitutional Court does not have the authority to examine this issue, 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 withdrawal of the convicted Şerafettin Can Atalay's parliamentary seat.
Criminal complaint
Finally, the Court decided to file a criminal complaint to the Chief Public Prosecutor's Office of the Court of Cassation for the appreciation and execution of the necessary actions against the relevant members of the Constitutional Court who violated the provisions of the Constitution and voted for the acceptance of the violation of rights by illegally exceeding the limits of the authority given to them.
MHP Chairman Devlet Bahçeli had previously called for the dissolution of the Constitutional Court, some of whose decisions he did not like.
In a majority decision today, the Constitutional Court rejected the CHP's application for the annulment of the disinformation law.