Jailed MP’s lawyers file third application with top court in new episode of crisis

Erkan Baş (L), the leader of Workers' Party of Turkey (TIP) and his party's MPs Sera Kadıgil (C) and Ahmet Şık (R) display a portrait of TIP's jailed MP Can Atalay during a swearing-in ceremony at the Turkish parliament in Ankara on June 2, 2023. (Photo by Adem ALTAN / AFP)

The lawyers for a jailed opposition lawmaker have petitioned Turkey’s Constitutional Court for a third time claiming rights violations in the continued incarceration of their client, who remains in prison despite two rulings from the top court in his favor, Turkish Minute reported, citing the Bianet news website.

The lawyers filed their application on January 4 claiming violation of Article 153 of the constitution in the case of Can Atalay, who was elected to parliament in May from the Workers Party of Turkey (TİP) and is still in prison despite gaining parliamentary immunity.

The lawyers said local courts and the Supreme Court of Appeals have failed to abide by two separate rulings from the Constitutional Court last year, which found rights violations in Atalay’s continued incarceration.

They said the courts’ refusal to comply with the top court decision constitutes violation of Article 153 of the Constitution, which says the top court’s rulings are “final” and “shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies.”

The Constitutional Court found the right to elect, stand for election and engage in political activities as well as Atalay’s right to liberty and security are being violated.

The top court had ruled twice that Atalay’s rights were violated due to his continued incarceration, despite acquiring parliamentary immunity. The 13th High Criminal Court, however, sent the case back to the Supreme Court of Appeals twice, defying the top court’s rulings.

The top appeals court, which in September upheld an 18-year conviction for Atalay in the Gezi Park trial, defied the Constitutional Court’s rulings twice, prompting Atalay’s lawyers to file their third application.

The refusal of a local court and the Supreme Court of Appeals to abide by the Constitutional Court decisions has sparked widespread criticism and accusations of a judicial coup. The appeals court judges even filed criminal complaints against members of the Constitutional Court due to their ruling in Atalay’s case, marking an unprecedented move within the Turkish legal system.

The Turkish judiciary faces widespread criticism for its perceived lack of independence. Critics accuse President Recep Tayyip Erdoğan of exerting control over the judiciary and establishing one-man rule in the country, particularly after a coup attempt in 2016, following which he launched a massive crackdown on non-loyalist citizens and the country’s subsequent transition to a presidential system of governance, which granted him vast powers.

Many say there is no longer a separation of powers in the country and that members of the judiciary are under the control of the government and cannot make judgments based on the law.

In a development that validated the critics, Turkey was ranked 117th among 142 countries in the rule of law index published by the World Justice Project (WJP) in October, dropping one rank in comparison to last year.

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