For the first time in Turkey, the country's two top courts, the Supreme Court of Cassation (Yargitay in Turkish) — Turkey's top appeals court for civil, criminal, and administrative cases — and the Constitutional Court (AYM), have clashed. The reason for the clash is the Constitutional Court's October 25 ruling calling for the release of Turkey Workers Party (TIP) member Can Atalay from jail. Atalay, who was elected to the Grand National Assembly, Turkey's parliament, in this year's general elections on May 14, was jailed in April 2022 and sentenced to 18 years imprisonment over the Gezi Park protests, on charges of “assisting to overthrow the government.”
Following the election, Atalay applied to the Constitutional Court after his request for release had been denied twice by the Supreme Court of Cassation. The Constitutional Court began reviewing his case on October 5, 2023. On October 25, the court ruled to release Atalay.
The Supreme Court of Cassation refused to accept the ruling of the Constitutional Court, asserting that Atalay's conviction was “a legitimate constitutional reason to strip him of his parliamentary membership” — a decision that is illegal according to the Turkish legal system, as the Constitutional Court's decisions are binding for everyone, even for the Supreme Court of Cassation. The Supreme Court of Cassation also ordered the Parliament “to initiate the procedures for the removal of Atalay's membership [from Parliament].”
Speaking to journalists, Atalay's lawyer, Ozgur Urfa, said, “The Court of Cassation has committed a crime by not recognizing the Constitutional Court decision. This is a judicial coup attempt.”
The Court of Cassation went as far as to demand that the members of the Constitutional Court be put on trial on the grounds of “violat[ing] the constitution and exceed[ing] their authorities,” according to reporting by Gazete Duvar. According to Turkey's national legal framework, only the Supreme Criminal Court can try the judges of the Constitutional Court.
“The [Court of Cassation's] aim is to force members of the Constitutional Court to resign,” wrote political commentator Murat Yetkin:
By forcing the resignation, the court may also want to avoid a process that would bring about complex dilemmas in the trial of the Constitutional Court members threatened by the criminal complaint.
On November 10, President Recep Tayyip Erdoğan, speaking to journalists on his return from a trip to Uzbekistan, backed the Court of Cassation's decision, saying, “the decision by the Court of Cassation cannot be pushed aside.”
According to the Media and Law Studies Association (MLSA), “The decisions of the Constitutional Court… are binding on the legislative, executive and judicial organs, administrative authorities, real and legal persons.”
The president also criticized lawmakers from his own AKP party who were critical of the Court of Cassation's ruling.
Both of the Court of Cassation's decisions — the rejection of the Constitutional Court's ruling and the filing of a criminal complaint against members of the Court — have been criticized by officials, as well as by independent lawyers and observers.
According to Bilge Yilmaz, a member of the Good (Iyi) Party, the Court of Cassation committed a “constitutional crime,” and its decision was “a coup attempt against our constitutional order.”
Former Prime Minister and Foreign Minister Ahmet Davutoğlu also called the decision a “judicial coup.”
Özgür Özel, the newly elected chairman of the main opposition Republican People's (CH) Party, said in a statement that the decision of the Court of Cassation was “an attempt to strip our constitution of its authority” and encouraged the public to protest the decision. “We will take to the streets and squares in order not to surrender to this unlawfulness,” added Özel.
Erkan Baş, the chairman of Atalay's party TIP, described the court's decision as “a blatant coup attempt.”
“The [Supreme] Court of Cassation is clearly questioning the position of the Constitutional Court, aiming to curb its authority,” wrote the legal team of the Media and Law Studies Association (MLSA) in its review of the recent crisis.
Moreover, the team argues the decision of the Court of Appeals to file a criminal complaint against the justices of the Constitutional Court is illegal and that those who filed the complaint should be disciplined and invited to step down. The MLSA's team also recommended that:
The Court of Appeals should establish a new panel to implement the Constitutional Court's decision and Can Atalay should be released in accordance with the Constitutional Court's decision. Any discussion and action to the contrary is aimed at destroying Turkey's one hundred and fifty years of legal history. This coup attempt against the constitutional order by the 3rd Criminal Chamber of the Court of Appeals can only be stopped with sharp steps to be taken within the framework of the law.
According to observers who spoke to the independent newsletter Turkey ReCap, the recent decision is a sign of “a political crisis rather than a legal one,” as it involves two political parties — the Justice and Development (AK) Party and the National Movement (MH) Party, AKP's ally. According to journalist Alican Uludag, the recent spat between the two courts “shows that a war between [the AKP and MHP] has started.”
In an interview with Turkey ReCap, a senior member of the parliament explained the situation as follows: “[The AKP] gave a lot of power to MHP, and are now trying to deal with it. MHP got stronger, especially in the judiciary and police. There has been a quiet war between the government partners for a while. Now, it has become more apparent and the results of the recent fight between [the Constitutional Court] and [the Court of Cassation] will define the winner of this war.”
MHP's leader, Devlet Bahçeli, has on several occasions in the past demanded the closure of the Constitutional Court altogether and described it as “the backyard of the separatist terrorist organization” after the Court did not close down the opposition pro-Kurdish People's Democratic (HD) Party. The HDP has been at odds with the ruling AKP ever since the former secured 80 seats in the 2015 parliamentary election, denying the ruling party its parliamentary majority. Since then, scores of HDP's senior members have been arrested on questionable terrorism-related charges, including the party's former co-chair, Selahattin Demirtaş, who was arrested in 2016. In June 2022, however, Turkey's Constitutional Court accepted an indictment seeking the closure of the HDP. However, the case continues. In October 2023, HDP changed its name to the Peoples’ Equality and Democratic Party (HEDEP) and elected two new co-chairs during a congress in Ankara.
Meanwhile, Bahçeli, the leader of MHP, also vowed to “eliminate the traitors within the Constitutional Court” by changing the Constitution after the general elections in May 2023.
In response to the ongoing crisis, the Istanbul Bar Association has filed a criminal complaint against the Court of Cassation judges for “misconduct” and “depriving a person of liberty.”
On November 10, the Union of Turkey's Bar Associations staged a march under the banner “The Rule of Law.” The march, in which lawyers held up physical copies of the Constitution booklet in their hands, started outside the Ankara Courthouse and proceeded to its final destination outside the Presidency of the Court of Appeals.
Backsliding on all fronts
The recent crisis is the latest in the country's already backsliding track record on human rights, democracy, judicial independence, and the rule of law, according to the European Commission's latest annual country report, published on November 8, 2023.
Others, like MLSA, fear that the Supreme Court of Cassation's decision in the Atalay case could place the role of the Constitutional Court up for debate.
Erdinç Sağkan, the president of the Union of Turkey's Bar Associations, agrees. In a statement, Sağkan said, “Supreme Court’s [of Cassation] goal was to de-facto abolish the Constitutional Court.”