Constitutional Court deems Court of Cassation's actions on MP Atalay case unconstitutional

Duvar English

Turkey’s Constitutional Court (AYM) on Dec. 26 made a press statement on the continuing imprisonment of Workers’ Party of Turkey lawmaker Can Atalay despite its two rulings on violation of the right to be elected and to engage in political activity and the right to personal liberty and security. 

Nonetheless, Istanbul 13th High Criminal Court, the first instance court which discussed the Constitutional Court's ruling on the release of lawmaker Atalay, on Dec. 27 sent the case to the Court of Cassation once again despite AYM's ruling that this method was unconstitutional.

The top court issued a statement titled "Violation of the Right to Individual Application Due to the Failure to Implement the Constitutional Court's Violation Decision.” AYM is the highest court in Turkey for citizens to exhaust domestic judicial channels. 

In the statement, AYM underscored that the "Court of Cassation has rendered a decision that is not found in Turkish law, stating non-compliance with the Constitutional Court's decision." 

The AYM commented that referral of a case within the jurisdiction of the first-instance court to the Court of Cassation, top appeals court, and the latter’s decision disregarding constitutional provisions “clearly constituted a violation of the constitution.” 

The top court added, “In the end, the applicant's right to individual application secured in the article 148, the right to be elected and engage in political activities secured in the article 67, and the right to personal liberty and security secured in the article 19 were violated."

AYM also underscored that the unfulfillment of the court's judgements was in conflict with the constitutional provision that made its judgements binding on the legislative, executive and judicial organs, administrative authorities, real and legal persons.

The failure to implement individual application decisions would render it meaningless to file an individual application to the Constitutional Court, the top court warned.

“In the specific case under consideration, the Court of Cassation does not have the authority and duty of retrial since the Constitutional Court identified the first-instance court as the relevant court. The first-instance court to which the violation decision was sent did not fulfill its duty related to retrial in the case and did not conduct a retrial that also respected the applicant's constitutional rights,” the AYM stated.

Vigil for Atalay at Istanbul Courthouse continues

The vigil of those reacting against the Istanbul 13th High Criminal Court's refusal to release imprisoned MP Can Atalay on Dec. 27 continued at Istanbul’s Çağlayan Courthouse.

The Constitutional Court's short decision was delivered to the first-instance court on Dec. 21. The reasoned decision of the AYM was also published in the Official Gazette on Dec. 26 issue. Nonetheless, the first-instance court have not released Atalay even after nearly one week.

TİP Chair Erkan Baş, Party Spokesperson Sera Kadıgil and Istanbul MP Ahmet Şık also came to Çağlayan Courthouse and met with Atalay's lawyers during vigil.

Özgür Urfa, one of Atalay's lawyers, said, "The negotiations of the court committee are continuing and we are expecting Atalay’s release."

Later on, TİP started a sit-in protest in front of the courthouse.

TİP chair Baş stated, "We call for resistance against this attempt to trample on the constitution. TİP is determined to do its part, together with all its allies, and all citizens. No matter what they do, we will never surrender!"