Constitutional law experts: "Court's decision for TIP's MP goes against the law"

By Cengiz Anil Bolukbas

The decision of the Istanbul 13th High Criminal Court to disregard the Constitutional Court's ruling on the rights violation of TİP (Worker's Party of Turkey) Hatay MP Can Atalay and refer the case to the 3rd Criminal Chamber of the Court of Cassation has sparked a debate. According to constitutional law experts, the decision goes against the law, and they emphasized that no court can delay it after the Constitutional Court's ruling.

The Constitutional Court's ruling on violating the rights of TİP Hatay MP Can Atalay was not followed by the Istanbul 13th High Criminal Court, which sent the decision to the 3rd Criminal Chamber of the Court of Cassation. The court claimed that the violation resulted from the Court of Cassation's decision and argued that only the Court of Cassation should have the authority to decide. The decision letter stated the file has been sent to your Chief Public Prosecutor's Office since a new evaluation by the 3rd Criminal Chamber of the Court of Cassation is necessary.

Atalay's application was deliberated by the Constitutional Court on October 25, resulting in a ruling that his rights to be elected, engage in political activity, and personal liberty and security were infringed. Atalay was also ordered by the Constitutional Court to pay 50 thousand TL in compensation, and the decision was sent to Istanbul's 13th Criminal Court to address the violation.

The Supreme Court requested the 13th High Criminal Court to start a new trial, halt Can Atalay's execution, release him, and suspend the proceedings. The Can Atalay verdict was expected to be enforced by the local court starting on October 25.

"The court should issue and implement the release decision"

Prof. Dr. Sule Ozsoy Boyunsuz clarified that the court handling the case should issue and implement the release decision.

According to Boyunsuz, the Court of Cassation serves as the appellate body, while the Constitutional Court addresses rights violations in individual applications. The decision is not being executed because of slow progress in the case against legal regulations. Atalay's release should happen promptly. The Istanbul 13th High Criminal Court is the body that will release him.

Boyunsuz reminded that the 3rd Chamber of the Court of Cassation had rejected Can Atalay's lawyer's request for the suspension of the trial and his release because 'conditions were not met.' The Istanbul 13th High Criminal Court is now putting it back into action, she explained. Two high courts are in a confrontation. The Constitutional Court has the final say on this matter, and all courts, including lower courts, must enforce it. The Istanbul 13th High Criminal Court should implement the decision without sending it to the Court of Cassation.

"The Constitutional Court is a binding authority"

Former Constitutional Court Rapporteur and Constitutional Lawyer Prof. Dr. Osman emphasizes that the Constitutional Court is a binding authority regarding unconstitutionality.

Can pointed out that no court or public institution has the authority to delay the decision made by the Constitutional Court. This attitude violates the Constitution intentionally. It means the continuation of the violation of the individual's rights. The court, which should uphold the law, violates it intentionally. The Court of Cassation and the Court of Appeal have both been informed about the decision of the Constitutional Court. Any extension of the process past this point directly violates the Constitution.

"The principle of the state of law has disappeared"

Prof. Dr. Korkut Kanadoglu, a constitutional lawyer, highlighted that Can Atalay's case was improperly referred to the Court of Cassation, violating the Criminal Procedure Code. A country that allows judges to violate protected rights is not a state of law.