Top Turkish appeals court ignores Constitutional Court ruling, denies TİP MP Atalay’s release again

Duvar English

The 3rd Criminal Chamber of the Court of Cassation (Yargıtay), Turkey's top appeals court, on Jan. 3 dismissed the Dec. 21 Constitutional Court (AYM) ruling that found rights violations in Workers’ Party of Turkey (TİP) MP Can Atalay’s imprisonment. 

The court ruling stated that AYM’s second rights violation ruling held no legal value. It also held that the AYM acted as the supreme appeals authority, and its rulings carried a “patronizing air fueled by the courage of being unsupervised.”

The Court of Cassation held that it and the Council of State (Danıştay) were not hierarchically inferior to the AYM, and the two courts of Turkey held the authority to assess whether to comply with the AYM’s rights violation rulings in individual applications. 

The court statement continued that complying with the AYM ruling with Can Atalay could create a precedent that would allow defendants such as Fethullah Gülen, the exiled leader of the network called “Fethullahist Terror Organization” (FETÖ) by the Turkish government, or senior executive of the outlawed Kurdistan Workers’ Party (PKK) Murat Karayılan to be elected into parliament and gain immunity, which could not be legally tenable according to the court. 

The Court of Cassation ruling included an example from Pakistan to illustrate the danger of having an incontestable Constitutional Court with unlimited authority. The Pakistani Constitutional Court made a “politically motivated” ruling in 2022 to proceed with the no-confidence motion that would remove Prime Minister Imran Khan, the court said. 

Atalay’s TİP defined the Court of Cassation ruling as a “coup” in a social media post. “The ruling is a declaration that the government is de facto eliminating the Constitution, as it did not have enough votes to change it. This is not a judicial ruling. It is a coup! We will not allow coups or their plotters!

Spokesperson of the Peoples’ Democracy and Equality (DEM) Party Ayşegül Doğan stated that the Court of Cassation has declared the transition to de facto unconstitutionality. 

This is the second time the court has denied complying with AYM regarding Atalay’s release. It had previously said the Constitutional Court's Oct. 25 ruling was unconstitutional and filed a criminal complaint against the AYM judges. 

Opposition figures deemed the crisis a judicial coup attempt, whereas the ruling Justice and Development Party (AKP) and its ally Nationalist Movement Party (MHP) defended the move, suggesting the AYM was overstepping its jurisdiction.  

Atalay was among the seven defendants who were sentenced to 18 years in prison in the Gezi Park trial. He was convicted for “assisting to the attempted abolishment of the government." Atalay was elected as a Hatay deputy from TİP in the May 14 general elections.