'Referral of the Constitutional Court decision to another authority is contrary to the law'

Turkey Workers' Party (TİP) Hatay Deputy Can Atalay made a statement regarding the decision of the 13th Heavy Penal Court to refer the "violation of rights" ruling of the Constitutional Court (AYM) to the Court of Cassation 3rd Chamber instead of making its own decision.

Yesterday evening, the 13th Heavy Penal Court in Istanbul did not implement the Constitutional Court's (AYM) violation ruling and issue a release order for MP Can Atalay, but forwarded the case to the Court of Cassation (October 30).

In his statement posted on his social media today, Atalay requested that the Judges and Prosecutors Board (HSK) investigate the 13th Heavy Penal Court in Istanbul for not implementing the AYM decision.

He also called upon the Parliamentary Human Rights Examination Commission, of which he is a member, to take action.

Atalay stated, "I invite the Grand National Assembly of Turkey (TBMM) to investigate who attempted to act in lieu of the judiciary and suspend the Constitutional order."

Following the AYM ruling, Can Atalay's lawyer, Deniz Can Özen had stated, "The Constitutional Court has explicitly emphasized that the first-instance court has no discretion regarding the implementation of the violation decision. The action to be taken in line with the Constitutional Court's decision is to conduct a retrial, stop the proceedings, and order release. A decision to the contrary is not possible; the court must immediately issue a release order."

Atalay was sentenced to 18 years in prison in the Gezi Trial, and was later elected as an MP from Hatay for the Turkey Workers' Party (TİP), but his sentence was upheld by the Court of Cassation; a ruling which has been interpreted as a violation in the Constitutional Court ruling that followed. 

In its explanatory decision, the AYM had stated that the Court of Cassation, by not halting the prosecution against Atalay, acted contrary to established jurisprudence and failed to fulfill its obligation to prevent similar violations.

Background

Can Atalay is a prominent human rights lawyer and a member of the Workers' Party of Turkey (TİP). He has defended many activists, journalists, academics, and politicians who have faced prosecution for their dissenting views or participation in protests.

Atalay was one of the defendants in the Gezi Park trial, a controversial case that accused them of organizing and financing the 2013 anti-government protests that started in İstanbul's Gezi Park and spread across the country. 

In April 2022, Atalay was sentenced to 18 years in prison for "attempting to overthrow the government by force and violence" along with seven other defendants, including philanthropist Osman Kavala, who received an aggravated life sentence. The verdict was widely criticized by human rights groups, opposition parties, and international organizations as a politically motivated attack on civil society and freedom of expression.

In the elections in May, Atalay was elected as an MP from Hatay province. However, he was not released from prison despite having parliamentary immunity. His lawyers appealed to the Court of Cassation and the Constitutional Court, arguing that his right to be elected and his personal liberty were violated. Meanwhile, the Court of Cassation, the country’s top appeals court, upheld his conviction in July. (RT/PE)