Istanbul Bar Association challenges the Court of Cassation over failure to Implement the Constitutional Court ruling

Istanbul Bar Association challenges the Court of Cassation over failure to Implement the Constitutional Court ruling
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Filiz Sarac filed a criminal complaint accusing high court members of undermining judicial trust and abuse of office.

In a landmark legal challenge, Filiz Sarac, the President of the Istanbul Bar Association, has lodged a criminal complaint with the First Presidency Council of the Court of Cassation against the President and members of the 3rd Criminal Chamber of the Court of Cassation. The complaint alleges that the high court officials have committed the crimes of "undermining confidence in the judiciary," "abuse of office," and "deprivation of liberty" by not executing a decision from the Constitutional Court.

The criminal complaint highlights a significant legal standoff, where the 3rd Criminal Chamber is accused of neglecting to send a case file back to the Istanbul 13th High Criminal Court for retrial, as mandated by the Constitutional Court's decision. The Chamber's action of "NOT COMPLIANCE," or refusal to comply with the Constitutional Court's verdict, is noted as having no basis in Turkish legal procedures. The petition cites Article 153/6 of the Turkish Constitution, which asserts that decisions of the Constitutional Court are to be published immediately and are binding across all branches of government and to all persons.

The petition has been directed to the Supreme Disciplinary Board of the Court of Cassation and the Presidency of the Council of Judges and Prosecutors for further disciplinary evaluation and action.

This move comes in response to the controversy sparked by the Court of Cassation's rejection of a "violation of rights" ruling by the Constitutional Court in favor of Can Atalay, a Hatay MP from the TIP (Workers' Party of Turkey). The decision has drawn criticism from legal professionals and politicians alike, with many viewing the situation as a constitutional crisis. The MLSA (Media and Legal Studies Association) has issued a detailed statement on the matter, emphasizing the potential consequences for Atalay's parliamentary seat and the broader implications for the role of the Constitutional Court within the Turkish judiciary and political landscape.

The MLSA's statement also criticizes the political overtones of the Court of Cassation's decision, which openly challenges the authority of the Constitutional Court and accuses it of judicial activism. The unprecedented conflict between the high courts signals a deep fissure within the judiciary, with the Court of Cassation openly aiming to diminish the Constitutional Court's powers violating the Constitution.

Legal experts argue that the criminal complaint against the Constitutional Court members is unlikely to yield results, as only the Constitutional Court's General Assembly has the authority to permit an investigation into its members, and given the current composition, such authorization seems legally improbable.

The dispute stems from the case of Can Atalay, who, following a conviction in the Gezi Park trial and subsequent election as an MP, faced a contested legal battle over the execution of his sentence and his political rights. The conflict escalated when the 3rd Criminal Chamber of the Court of Cassation dismissed a ruling from the Constitutional Court and filed a criminal complaint against the Constitutional Court members who had found a violation in Atalay's case, accusing them of constitutional breach and overstepping their jurisdiction.

This legal confrontation poses serious questions about the separation of powers in Turkey and the independence of the judiciary, with the potential to reshape the relationship between the country's top courts.