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Can Atalay Still Not Released

Although the local court possesses the authority to initiate a retrial for a finalized sentence, the maneuvers to avoid implementing the Constitutional Court's binding decision, as stipulated by Article 153 of the Constitution for legislative, executive, and judicial bodies, cannot be considered based on a legal interpretation. In a normal rule-of-law state, such arbitrariness should carry legal consequences.
Can Atalay Still Not Released

The Freedom Observer

The Freedom Observer

We monitor the ongoings of Turkiye in the fields of the rule of law, economics, civil society, and politics.

Lawyer Can Atalay was tried alongside other defendants in the Gezi trial, sentenced to 18 years in prison, and arrested following his conviction. While the lower court's decision was under appeal before the Supreme Court of Appeals, the Workers' Party of Turkey nominated Can Atalay, still under arrest, as a parliamentary candidate from Hatay. Atalay was elected as an MP in the May 14, 2023 elections. Following this, Atalay petitioned the Court of Cassation for his release, asserting that he had acquired legislative immunity in accordance with Article 83 of the Constitution. Therefore, he argued that the trial against him should be postponed until the end of his parliamentary term. Despite precedent decisions by the Constitutional Court in similar cases, the 3rd Criminal Chamber of the Court of Cassation rejected Atalay's requests for a stay of proceedings and release. Subsequently, Atalay submitted an individual application to the Constitutional Court, claiming that his constitutional rights had been violated.

Subsequently, the Chief Public Prosecutor's Office of the Court of Cassation expressed its support for upholding the conviction against Atalay in a communiqué. Despite the Constitutional Court indicating that Atalay's application was on the agenda during its meeting on October 12, 2023, the 3rd Criminal Chamber of the Court of Cassation announced its decision on the Gezi trial on September 28, 2023, confirming the conviction against Can Atalay. Consequently, Atalay's sentence became final. During its meeting on October 12, the Constitutional Court declared a postponement of the examination of the application to a later date, citing that one of its members was unable to prepare the file. The Court eventually included Atalay's application on the agenda on October 25 and delivered its decision, publishing the reasoned judgment in the Official Gazette on October 27.[1]

Referring to its earlier decisions on Enis Berberoğlu,[2]  Ömer Faruk Gergerlioğlu,[3]  and Leyla Güven,[4]  the Constitutional Court determined that Can Atalay's right to vote and be elected and his right to liberty and security were violated because he was not released after being elected as an MP. In arriving at this conclusion, the Court emphasized that the provision governing the exception to legislative immunity in Article 83 of the Constitution refers to Article 14 of the Constitution and specifies that those who have already been prosecuted for crimes covered by this article cannot benefit from immunity. However, Article 14 of the Constitution does not specify any particular type of crime; it solely regulates the prohibition of abusing the right.

Therefore, recalling that Article 14 of the Constitution imposes a duty on the legislature to regulate which crimes cannot benefit from legislative immunity, the Court asserted that in the absence of such clear regulations, judicial bodies cannot determine which crimes are excluded from the scope of immunity through interpretation. Such a determination would be unpredictable and arbitrary. Consequently, the Court held that the interference with constitutional rights did not meet the conditions of legal foreseeability. The Court not only identified a violation but also explained how the violation would be remedied. According to this,

To put an end to the rights violations identified by the Constitutional Court against the applicant and to eliminate their consequences:

i. Commencement of retrial proceedings,

ii. Suspension of the execution of the conviction and release from the penal institution,

iii. Termination of the applicant's convicted status,

iv. Ordering a stay in the retrial.

It is mandatory to fulfill these procedures above.[5]

As evident, the Constitutional Court explicitly outlined in its judgment the decisions that the local court should undertake and forwarded a copy of the judgment to the Istanbul 13th High Criminal Court, the court of first instance, to implement the judgment's requirements. While the local court should have promptly released Atalay upon receiving the Constitutional Court's summary judgment, it instead awaited the reasoned verdict. Additionally, no decision was made for five days after the reasoned verdict was published.

The series of unlawful events that have persisted since the initiation of this case has now reached its peak with the arbitrary non-implementation of the Constitutional Court's decision. Although the local court possesses the authority to initiate a retrial for a finalized sentence, the maneuvers to avoid implementing the Constitutional Court's binding decision, as stipulated by Article 153 of the Constitution for legislative, executive, and judicial bodies, cannot be considered based on a legal interpretation. In a normal rule-of-law state, such arbitrariness should carry legal consequences.


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The Freedom Observer

The Freedom Observer

We monitor the ongoings of Turkiye in the fields of the rule of law, economics, civil society, and politics.

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BÜLTEN SAYISI

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10 Kas 2023

YAZARLAR

Ali Rıza Çoban

Anayasa hukuku doçentidir. Doktorasını temel haklar alanında İngiltere'de Leeds üniversitesinde yapmıştır. İnsan hakları hukuku, hukuk devleti, yargı bağımsızlığı, anayasa yapımı, karşılaştırmalı anayasa yargısı alanlarında çalışmaktadır. Kendi uzmanlık alanlarında sivil toplum kuruluşlarıyla ortak çalışmalar yürütmektedir.

The Freedom Observer

We monitor the ongoings of Turkiye in the fields of the rule of law, economics, civil society, and politics.

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