Top Turkish prosecutor accuses Constitutional Court of violating separation of power with MP Atalay ruling

Duvar English

The Chief Public Prosecutor's Office at Turkey’s Court of Cassation stated that the Constitutional Court (AYM) "should refrain from using the authority of other bodies" and accused the country’s top court of "rewriting the rules of the game” in its written opinion on the AYM’s ruling on arrested lawmaker Can Atalay.

AYM on Oct. 25 ruled by a majority of votes that there was a violation of rights in the case of imprisoned Workers’ Party of Turkey (TİP) deputy Atalay in terms of "the right to vote and be elected and the right to personal security and liberty."

Nonetheless, the Criminal Court of Istanbul hearing his case did not release Atalay and referred the case to the Court of Cassation, the top appeals court in the country. Previously on July 13, the Court of Cassation rejected Atalay’s release and argued that parliamentary immunity does not cover the crime for which he was convicted.

The new written opinion from the Court of Cassation’s prosecutor’s office indicated that the prosecution was still standing by the previous decision. It also pointed out that AYM overstepped its jurisdiction with the release ruling, as the decision could only be conclusively made by the top appeals court.

The written opinion included serious criticisms against the AYM and underscored that "The Constitutional Court, which performs a limited constitutionality review, cannot create new legal norms while fulfilling its duty in this respect. It only makes interpretative decisions on existing constitutional norms. It cannot decide on an abstract constitutional norm by arbitrarily emphasizing the meaning it wants.”

The prosecutor's office accused the AYM of taking a stance contrary to the "principle of separation of powers" and added, "Courts reviewing the constitution should be the arbiter, the authority to determine whether or not the established rules have been followed, not the hands that rewrite the rules of the game.”

The written opinion also mentioned that the AYM attempted to engage in “judicial activism” and noted, “It is an obligation to base the judicial system on the principle of separation of powers and the democratic process, in line with the principle of judicial restraint, instead of the supremacy among courts within the judicial system."

The prosecution once again stated that Atalay had committed an offense “against the existence of the state” and therefore could not benefit from legislative immunity according to Article 14 of the Constitution. "An acceptance to the contrary would be incompatible with the principles of right and honor and the rule of equality, and would also disturb the public conscience by undermining the belief in justice,” the office stated. 

In the following process, the Plenary Assembly of the Court of Cassation will make the final decision.

Atalay was among the seven defendants who were sentenced to 18 years in prison in the Gezi Park trial. He was convicted for “assisting to the attempted abolishment of the government." Atalay was elected as a Hatay deputy from TİP in the May 14 general elections.