War of high courts: Appeals judges defy ruling to release MP, file criminal complaints against top judges

Turkey's Supreme Court of Appeals building in Ankara.

A chamber of Turkey’s Supreme Court of Appeals has said the continued incarceration of an opposition lawmaker is legally appropriate, deciding not to comply with the Constitutional Court’s recent decision that the MP’s rights have been violated, and filed criminal complaints against the high court judges who voted in favor of the lawmaker, in an unprecedented decision that came on Wednesday, Turkish Minute reported.

Can Atalay, an opposition lawmaker from the Workers Party of Turkey (TİP), filed a petition with Turkey’s Constitutional Court in July claiming that he has been subjected to several rights violations due to his continued incarceration despite acquiring parliamentary immunity after winning a seat in the legislature in May.

The Supreme Court of Appeals decision comes after the Constitutional Court ruled that Atalay’s right to be elected and to engage in political activity as well as his right to personal liberty and security had been violated.

The 3rd Criminal Chamber of the Supreme Court of Appeals, which denied Atalay his release during the appeal, cited Article 14 of the Turkish Constitution, which pertains to the conditions under which fundamental rights and freedoms may be limited.

The top appeals court asserted in its opinion that the Constitutional Court is limited to questions of legality and constitutional oversight and cannot create new legal norms or reinterpret existing constitutional norms to achieve a particular outcome.

The 3rd Criminal Chamber had argued that Atalay is not entitled to legislative immunity for actions preceding his election.

The top appeals court judges have also taken an unprecedented step by filing criminal complaints against members of the Constitutional Court who ruled in favor of Atalay’s rights violation case.

They accused the Constitutional Court of exceeding its authority and violating the constitution by engaging in “judicial activism.”

Top appeals judges claim that the Constitutional Court, in its ruling on Atalay’s rights violation case, has gone as far as to threaten the members of the Supreme Court of Appeals’ 3rd Criminal Chamber, by invoking the binding nature of Constitutional Court decisions and implying that the members of the Supreme Court of Appeals’ 3rd Criminal Chamber have committed the offense of negligence.

Saying that the Supreme Court of Appeals’ members face continuous threats from various terrorist organizations and individuals, the top judges said they “find it particularly disconcerting and significant that court members are now facing threats from the Constitutional Court itself.”

The İstanbul 13th High Criminal Court on Oct. 30 forwarded the Constitutional Court’s decision on Atalay to the Supreme Court of Appeals, which had previously upheld Atalay’s conviction.

The Constitutional Court announced its ruling in Atalay’s case on Oct. 25 and said Turkey violated Article 67 of the Turkish Constitution, which concerns the right to elect, stand for election and engage in political activities, as well as Article 19, involving the right to liberty and security.

The top court subsequently sent a copy of its decision on Atalay to the İstanbul 13th High Criminal Court to eliminate the rights violations Atalay was subjected to, which would mean his release from prison.

However, the court, instead of ruling for Atalay’s release, sent the decision to the 3rd Criminal Chamber of the Supreme Court of Appeals, claiming that the rights violations suffered by Atalay stem from the ruling of the 3rd Criminal Chamber of the Supreme Court of Appeals, hence it is not within its jurisdiction to rule for his release.

Atalay is one of seven defendants sentenced to 18 years by an İstanbul court in April 2022 in a trial concerning the anti-government Gezi Park protests of 2013, which erupted over government plans to demolish Gezi Park in Taksim. He was given an 18-year sentence for his alleged role in the protests. His sentence, along with those of four others including prominent businessman Osman Kavala, was upheld by the Supreme Court of Appeals in September.

He has been in prison since April 25, 2022 on charges of “assisting in the overthrow of the government.”

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