What is happening in the Can Atalay Case, which led to the start of a judicial crisis?

Workers’ Party of Turkey (TİP) Hatay MP and lawyer Şerafettin Can Atalay has been held in Silivri for 178 days despite a Constitutional Court (AYM) ruling.

Can Atalay, who was sentenced to 18 years in prison in the Gezi Park case, was elected as a member of parliament in the 28th parliamentary elections held on 14 May. Atalay’s application for “suspension of the trial against him due to his election as an MP and his release” was rejected by the 3rd Criminal Chamber of the Court of Cassation.

An individual application was made to the Constitutional Court because his right to “election and political activity” was violated due to the rejection of his request for a stay of proceedings because he gained legislative immunity by being elected as an MP, and his right to “personal liberty and security” was violated due to the rejection of his release request.

It was claimed that the Constitutional Court violated the Constitution!

In recent weeks, the Constitutional Court sent the file of lawyer Can Atalay, for whom the Constitutional Court had ruled a violation, to the local court, Istanbul 13th Criminal Court.

What happened happened after this decision? First, the Istanbul 13th Criminal Court left the courthouse. Then, the court stated that the 3rd Criminal Chamber of the Court of Cassation has the authority to decide on the case and sent the file to this chamber recently.

The 3rd Criminal Chamber of the Court of Cassation, which analyzed the file, made a decision that will go down in history, stating that the previous decision on Atalay was correct and ruled that the Constitutional Court’s violation decision should not be complied with.

As if this was not enough, the 3rd Criminal Chamber of the Court of Cassation, which notified the Grand National Assembly of Turkey to have Atalay’s parliamentary seat revoked, also filed a criminal complaint against the members of the Constitutional Court, stating that the Constitutional Court had violated the Constitution and exceeded its authority.

What is going on in the Can Atalay Case, which has led to a war within the judiciary?

Who is Can Atalay?

Şerafettin Can Atalay has been on the streets and in courthouses for years for the right to live and the right to the city for all of us. While we were being kicked in a dark alley or shot by a police bullet in Gezi, while we were dying in a sect dormitory in Aladağ, under a mine cave-in in Soma, Ermenek, in a factory in Hendek where fireworks exploded, he was standing against injustice in front of a wall that read “Justice is the foundation of property”.

Atalay wants to be crushed under the feet of the same injustice because of the Gezi Park protesters, a legitimate popular uprising in which millions of people participated.

Atalay was born on 24 March 1976 in Istanbul, the only child of a banker mother and an accountant father. He was named after his uncle Şerafettin Atalay, who was killed in a political assassination in 1971 when he was the provincial chairman of the TİP Amasya.

He received higher education at Marmara University Faculty of Law. 

He took part in the board of directors of the Istanbul-based Social Rights Association. He was among the organizers of the campaign against the demolition of the Emek Cinema in Istanbul. Atalay acted as the lawyer of Taksim Solidarity, which was established against the attempt to build a shopping mall in Gezi Park, and had the plans for Gezi Park canceled by the Council of State.

After the Soma disaster in 2014, which resulted in the deaths of 301 miners, he acted as the lawyer for the Ermenek mining accident; in 2016, he acted as the lawyer for the families of the victims of the fire in the sectarian dormitory in Aladağ, where 11 children lost their lives and 24 children were injured.  

On 8 July 2018, he acted as the lawyer for the relatives of those who lost their lives in the case related to the Çorlu train accident; in 2020, he acted as the lawyer for the families of workers in the Hendek fireworks factory explosion that killed 7 workers and injured 127 workers. As the lawyer of the Chamber of Architects, he defended the Validebağ Volunteers who fought against the construction of the Validebağ Grove in Istanbul.

Why is Atalay on trial?

On 19 February 2019, the Istanbul Public Prosecutor’s Office completed the indictment through the investigation of Gezi Park protests and sent it to Istanbul Heavy Penal Court No 30.

On 4 March 2019, Istanbul Heavy Penal Court No. 30 accepted the indictment. In the 657-page indictment, 16 people, including businessman Osman Kavala, who has been arrested since 1 November 2017, and Çiğdem Mater Utku, Ali Hakan Altınay, Yiğit Aksakoğlu, Yiğit Ali Ekmekçi, were charged with “attempting to overthrow the Government of the Republic of Turkey or to partially or completely prevent it from performing its duties” and were asked to be sentenced to aggravated life imprisonment. 

At the 6th hearing of the trial on 18 February 2020, Osman Kavala and 8 other defendants were acquitted. The cases of seven defendants abroad were separated.

In January 2021, the Istanbul Regional Court of Appeals overturned the acquittal of Osman Kavala and eight others, and a retrial began in May 2021.

Meanwhile, the acquittals in another case related to the Gezi Park protests (the Çarşı case, involving 35 football fans) were overturned by the Court of Cassation. The two cases were merged in the summer of 2021 in a process of questionable legality.

The combined trial of 52 people began in October 2021. In February 2022, shortly after the European Court of Human Rights (ECtHR) formally initiated a violation procedure at the Council of Europe over the non-implementation of its decision to release Mr. Kavala, the fourth hearing of the case was held, after which the two cases were separated again at the request of the prosecutor.

The sixth and final hearing of the Gezi Trial was held on 25 April 2022. At the verdict hearing, businessman Osman Kavala, who had been in pre-trial detention since November 2017, was sentenced to aggravated life imprisonment for “attempting to overthrow the government”.

Mücella Yapıcı, Çiğdem Mater, Ali Hakan Altınay, Mine Özerden, Tayfun Kahraman, Can Atalay and Yiğit Ali Emekçi was sentenced to 18 years in prison each for “aiding and abetting the attempt to overthrow the government”. Yapıcı, Mater, Altınay, Özerden, Kahraman and Atalay were arrested that day. 

How did the trial process continue?

On 28 December 2022, the 3rd Criminal Chamber of the Istanbul Regional Court of Appeals upheld the 18-year prison sentence given to Atalay, declaring that it was appropriate. 

In the 14 May 2023 general elections, Can Atalay was nominated as a parliamentary candidate from the Workers’ Party of Turkey (TİP) and was elected as Hatay’s deputy with 8.7 percent of the vote. After receiving the parliamentary mandate, the TİP applied to the Chief Public Prosecutor’s Office of the Court of Cassation for Atalay’s release.

In July 2023, the Chief Public Prosecutor’s Office sent its notification on the case to the 3rd Criminal Chamber of the Court of Cassation, requesting that the convictions of the Gezi protesters be upheld. The notification referred to the fact that Can Atalay is a member of parliament and argued that offenses against the indivisible integrity of the state with its country and nation are outside the scope of legislative immunity and should not be suspended. 

The 3rd Criminal Chamber of the Court of Cassation ruled on 28 September 2023 on the objection filed against the convictions of 17 people. It upheld the 18-year prison sentences given to Osman Kavala, Can Atalay, Tayfun Kahraman, Mine Özerden, and Çiğdem Mater Utku, and overturned the 18-year sentences given to Ali Hakan Altınay, Yiğit Ali Ekmekçi and Mücella Yapıcı. Yapıcı and Altınay were released from prison. 

Mücella Yapıcı said, “None of us were guilty. What kind of justice is this, I still can’t understand. I left my life here and I’m leaving. We need to get our lives out as soon as possible. This country doesn’t deserve such injustice.”

Why was Atalay not released?

Can Atalay, whose request for release was rejected by the Court of Cassation, applied to the Constitutional Court on the grounds of “violation of the right to personal liberty and security”. 

On 1 October 2023, TİP started a “Freedom March” from Hatay to Ankara to demand the release of Hatay deputy Can Atalay and all Gezi convicts. 

The Constitutional Court, with its decision published in the Official Gazette on 27 October 2023, ruled that Can Atalay’s “Right to be Elected and to Engage in Political Activity and Rights to Personal Liberty and Security” were violated. The decision was taken with 9 votes against 4.

Despite the Constitutional Court’s decision, the 13th High Criminal Court did not order the release of Can Atalay and sent the file to the Court of Cassation.

In a 6-page opinion submitted on 7 November by the Chief Public Prosecutor’s Office of the Court of Cassation, which examined the file sent by the Istanbul 13th High Criminal Court, which resisted the Constitutional Court’s release decision, it was stated that Atalay could not benefit from legislative immunity and that the Constitutional Court “exceeded its authority”.

It was noteworthy that the text included expressions similar to MHP Deputy Chairman Feti Yıldız’s “The Constitutional Court cannot engage in judicial activism”.

Regarding the controversial opinion, Minister of Justice Yılmaz Tunç said, “We will now wait for the decision of the 3rd Criminal Chamber of the Court of Cassation.”

What do political party leaders say?

The decision of the 3rd Chamber of the Court of Cassation caused great outrage among political parties. While many opposition parties reacted to the decision, the most striking reaction came from CHP’s new chairman Özgür Özel.

CHP Chairman Özel said, “The decision of the Court of Cassation is a coup attempt against the Parliament, the Constitution, and the Constitutional Court. The day is not the day to remain silent against those who abolish the Constitution. We invite our people to resist. We will resist in the streets, we will resist in the squares, and we will not surrender to this lawlessness. We invite the people to suppress this attempt. Whoever resists this coup will find the CHP behind him,” he said. 

With this statement, the CHP leader signaled that the party would change its “opposition away from the squares” policy that has been in place for more than 10 years. 

Another critical reaction came from Workers’ Party of Turkey, to which Atalay belongs. Workers’ Party of Turkey Chairman Erkan Baş:

The decision of the 3rd Criminal Chamber of the Court of Cassation to ‘disobey the Constitutional Court’s decision’ despite the clear and unambiguous provision of the Constitution is an attempt to violate the Constitution. For any authority to declare ‘we do not recognize the Constitution and the Constitutional Court’, to file a criminal complaint against the members of the Constitutional Court for a decision they took by the Constitution and the law, and to threaten the Grand National Assembly of Turkey is an open coup attempt! I call on all our citizens and all political parties to take a common stance against this parallel judicial coup attempt. Our Central Executive Committee will convene in an extraordinary meeting shortly to discuss this issue.

HEDEP Co-Chair Tülay Hatimoğulları made the following statement:

The fact that the Supreme Court of Cassation, which has signed all kinds of political interventions and unlawful decisions, has filed a criminal complaint against the members of the Constitutional Court shows the gravity of the situation that the judicial coup has reached. The AKP-MHP government brought Turkey to this point. The government wants to bring the opposition, the Kurdish people, and anyone demanding rights into line with the stick of the judiciary. This intervention in the Constitutional Court means taking the suspension of legal security and justice to a higher level. This unlawfulness will go down in the black pages of world legal history. The people of Turkey do not accept tutelage institutions. This judicial coup must end immediately. We call for a reconsideration of the legal system, the Constitution, and the laws on the axis of justice and democracy. Can Atalay should be released immediately.

On behalf of the IYI Party, party spokesperson Kürşad Zorlu made the statement instead of party leader Meral Akşener. Zorlu said, “Unfortunately, there has been another grave legal scandal in our 100-year-old Republic. The Supreme Court of Appeals has filed a criminal complaint against the members of the Constitutional Court who issued a violation of rights against Can Atalay. However, the decisions of the Constitutional Court are binding on executive and judicial organs, administrative authorities, and real and legal persons. While the Court of Cassation’s failure to comply with the Constitutional Court’s judgment is legally inexplicable, filing a criminal complaint against the members of the Constitutional Court means that “no citizen in Turkey has any legal security anymore”. Unfortunately, not only rights, law, and justice are not established through the courts, but also the fortresses of justice in the country are being struck by political power. This decision is once again an attempt to shelve the separation of powers, the rule of law, and the independence and impartiality of the courts. It should be known that the Republic of Turkey is a state of law and the source of legitimacy of the state and the courts is our Constitution. We will not allow the government to use the law as a tool to consolidate its power, to discredit the Constitutional Court, and to show off through the courts.”

The only senior AKP executive to make a statement was AKP Deputy Chairman Hayati Yazıcı. Yazıcı said, “There are such events that it is a problem whether you speak or not to analyze. We are experiencing such an event that should never, ever happen. It is a pity, a great pity. The powers that make up the state solve problems. It never produces problems, it cannot produce problems. They cannot trip each other up,” he said.

What do lawyers say?

Özgür Urfa, a lawyer and member of the party assembly of the Workers’ Party of Turkey, said: “We repeat what we said for the Constitutional Court for the 3rd Criminal Chamber of the Court of Cassation; it is not only Can Atalay’s freedom that will be voted on. With its decision, the Court of Cassation will show whether it recognizes the Constitution or not and whether it adheres to the Constitutional Court’s decision or Feti Yıldız’s rhetoric.” 

Deniz Özen, one of Can Atalay’s lawyers, said: “The interpretation of the articles of the Constitution belongs exclusively to the Constitutional Court. Therefore, these discussions have no meaning. There is only one Constitutional article left to be considered and that is Article 153 of the Constitution. The meaning of this article is binding for everyone. Therefore, there is nothing to discuss. The Constitutional Court is ignored. If a decision is made in line with this opinion, this would mean that the Constitutional Court is de facto closed down.”

Constitutional jurist Prof. Dr. İbrahim Kaboğlu said, “This opinion is an operation, a judicial coup attempt to render the Constitutional Court’s decision invalid and worthless.”

Constitutional jurist Prof. Dr. İbrahim Kaboğlu said, “This opinion is an operation, a judicial coup attempt to render the Constitutional Court’s decision invalid and worthless.”