The Constitutional Court of Turkey has sent a second petition filed by a jailed opposition lawmaker claiming the violation of his rights to the court’s general assembly when its first ruling in favor of the lawmaker led to a crisis with the top appeals court, the Gazete Duvar news website reported.
Lawyers for Can Atalay, a lawyer himself and a rights activist who was elected to parliament in May from the Workers Party of Turkey (TİP), again petitioned the top court earlier this month. They asked the court to once again rule that Atalay’s right to a fair trial and the right to elect, stand for election and engage in political activities as well as his right to liberty and security are being violated.
The lawyers also asked the court to put an end to the violations suffered by Atalay, which would mean his release from prison.
The Constitutional Court had already announced its ruling in Atalay’s case on Oct. 25 and said Turkey had 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. Atalay would also be paid TL 50,000 in non-pecuniary damages in line with the court’s ruling.
But the Supreme Court of Appeals, which upheld an 18-year conviction for Atalay in the Gezi Park trial in September, defied this decision, sparking widespread criticism and accusations of a judicial coup.
The top court, examining Atalay’s second application during its meeting on Wednesday, opted to send his application to the court’s general assembly instead of standing behind its former ruling.
The top court sends applications to be reviewed by its general assembly if a contradictory decision is expected or if the application is of a type that needs to be reviewed by more than just the court itself.
The court’s move has been interpreted as an attempt to avoid triggering another judicial crisis.
Brussels-based lawyer Ali Yıldız said on X, formerly known as Twitter, that the general assembly’s earlier decision on another jailed lawmaker, Republican People’s Party (CHP) MP Enis Berberoğlu, could serve as a precedent for Atalay’s case.
Berberoğlu, who spent 15 months in jail on espionage charges, had to apply to the court a second time when the court’s first ruling in October 2020 on the violation of his rights was defied by lower courts, which refused to retry Berberoğlu.
He said the court’s move shows its “timidity” and “breaches the applicant’s freedom.”
A referral is to be made if the decision of a Section would contradict a previous decision or the matter is of in the nature to be resolved by the GC. (Statute, 28)
As the GC resolved this matter in Berberoglu (3), referral reflects timidity and breaches the applicant's freedom. https://t.co/AhGo815AE4— Ali Yıldız (@aliyildizlegal) December 13, 2023
The Supreme Court of Appeals also filed criminal complaints against the members of the Constitutional Court due to their ruling for Atalay, which was a first in Turkey for the members of a top court to take legal action against their colleagues in another top court.
The Turkish judiciary faces widespread criticism for its perceived lack of independence. Critics accuse President Recep Tayyip Erdoğan of exerting control over the judiciary and establishing one-man rule in the country, particularly after a coup attempt in 2016, following which he launched a massive crackdown on non-loyalist citizens and the country’s subsequent transition to a presidential system of governance, which granted him vast powers.
Many say there is no longer a separation of powers in the country and that members of the judiciary are under the control of the government and cannot make judgments based on the law.
In a development that validated the critics, Turkey was ranked 117th among 142 countries in the rule of law index published by the World Justice Project (WJP) in October, dropping one rank in comparison to last year.