Lawyer Can Atalay, who was arrested on April 25, 2022, after being sentenced to 18 years in prison in the Gezi trial, was elected as a lawmaker from the Workers' Party of Turkey (TİP) in the parliamentary elections on May 14.
Despite receiving his parliamentary mandate, Atalay remains in prison as he awaits the outcome of his application for release which his lawyers filed with the Court of Cassation, the highest court of appeals.
The Article 83 of the Constitution defines legislative immunity for parliamentarians. Parliamentary immunity is defined in the Constitution as follows, "The execution of a criminal judgment against a member of the Parliament, either before or after his election, shall be deferred until the end of his membership; the statute of limitations shall not run during his membership."
Atalay was sentenced to 18 years in prison for "aiding the attempt to overthrow the government" under Article 312 of the Turkish Penal Code during the Gezi Park Protests trial last year. An appeals court upheld this verdict, but the Court of Cassation has not still decided on the case. Hence, there is no finalized verdict against Atalay.
Under the Constitution's Article 83, there is only one obstacle for a person elected as an MP to gain legislative immunity. The right to immunity cannot be used if the lawmaker has been convicted over crimes mentioned in Article 14 which have the aim "to violate the
indivisible integrity of the State with its territory and nation, and
to endanger the existence of the democratic and secular order of
the Republic based on human rights."
Atalay's prison sentence, which has not yet been finalized, poses a slight risk that he will not be able to exercise his right to immunity because his sentence might be related to the above-mentioned crimes.
However, the Constitutional Court's 2022 ruling on prominent Kurdish politician Leyla Güven's application states that there is an ambiguity regarding Article 14 and that what constitutes as these crimes are not clear.
One of Can Atalay's lawyers said, "The release of an elected MP is not legally controversial but a legal obligation. The Article 83 of the Constitution states beyond any dispute that it is not possible to keep a member of parliament in prison without a decision of the Parliament.”
The swearing-in ceremony of lawmakers will take place on June 2.