Constitutional crisis looms as Turkish court denies immunity to arrested MP

By Ezgi Yildiz

Despite a ruling from Turkey's Constitutional Court (AYM) that his rights were violated, Can Atalay, an elected MP (Member of Parliament) from the TIP (Workers' Party of Turkey), remains under arrest for his role in the Gezi protests. The opinion of the 3rd Criminal Chamber of the Court of Cassation suggesting Atalay should not benefit from legislative immunity has sparked controversy and concerns of a constitutional crisis.

Atalay's lawyers, Deniz Ozen and Akcay Tasci have voiced their concerns over the court's opinion. Ozen warned that if the court's decision aligned with this opinion, it would equate to an effective shutdown of the Constitutional Court. Taşsci noted that the opinion reflects the Minister of Justice's statements and the MHP (Nationalist Movement Party) Deputy Chairman.

Meanwhile, the Chief Public Prosecutor's Office of the Court of Cassation has forwarded its final opinion on Atalay to the 3rd Chamber of the Court of Cassation. The six-page document argues that Atalay should not enjoy legislative immunity.

Lawyers voiced their concerns

In his assessment, Ozen criticized the judiciary's disregard for the Constitutional Court and its violation of Article 153 of the Constitution, which stipulates that the decisions of the Constitutional Court are binding. He stated, "If it decides in line with this opinion, it means that the Constitutional Court is de facto closed."

Tasci echoed Ozen's concerns, stating that the situation raises new questions about whether Constitutional Court decisions will be implemented and the role of the average citizen when administrative and judicial authorities resist court decisions.

Article 14 of the Constitution, which has been used as a basis for Atalay's arrest, states that none of the rights and freedoms enshrined in the Constitution may be used to destroy the state's indivisible integrity. However, Atalay's legal team argues that Article 14 contradicts Article 83 of the Constitution, which ensures legislative immunity.

"The current situation raises critical questions: 'Will the decisions made by the Constitutional Court be enforced or not? What should the average citizen do when administrative and judicial authorities choose to resist court decisions rather than implement them? Is it mandatory for the average citizen to adhere to court decisions?' These are questions that urgently need answers." underlines Tasci.

As Atalay's case continues, its implications for the Turkish legal system and the Constitutional Court remain uncertain, raising concerns about the erosion of legislative immunity and the potential for a constitutional crisis.

The Article 14

According to the Turkish Constitution, Article 14 states:

"None of the rights and freedoms enshrined in the Constitution can be exercised in a manner that aims to dismantle the indivisible integrity of the state with its territory and nation or to abolish the democratic and secular Republic that is based on human rights.

None of the Constitution's provisions can be interpreted in a manner that allows the state or individuals to engage in activities aimed at destroying the fundamental rights and freedoms recognized by the Constitution or to restrict them more than what is stipulated in the Constitution.

The sanctions to be applied to those who engage in activities contrary to these provisions will be determined by law."