Turkey's Constitutional Court (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) lawmaker Can Atalay in terms of "the right to vote and be elected and the right to personal security and liberty."
Atalay was elected as a Hatay deputy in the May 14 general elections yet, all the lower courts rejected his release from the prison on the grounds that parliamentary immunity does not cover the crime for which he was convicted. His lawyers applied to the AYM as the last domestic judicial authority.
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."
Commenting on the Constitutional Court’s verdict, Atalay's lawyer Akçay Taşçı said, "With this verdict, Atalay should be released immediately, take his oath of office, and start to be the representative of Hatay people. We invite all judicial authorities to fulfill the requirements of this decision and not to cause another legal travesty."
Yalçın Deniz Özen, one of Atalay's lawyers, stated that the decisions underscored the continued imprisonment and prosecution of Atalay after he was elected as an MP was a violation of his rights. “Atalay should be released on the same day,” according to Özen.
Justice Minister Yılmaz Tunç answered the question from the journalist regarding the decision and stated, "We need to assess the reasoned decision before making any statements. If the Constitutional Court has determined a violation of rights, we will act accordingly once we have reviewed the reasoning."
On the other hand, Atalay’s party TİP on Oct. 25 continued the “freedom march” that they started for the release of Atalay on the 25th day.
#ÖzgürlükYürüyüşü 25. gününde!#CanAtalayaÖzgürlük için yürüyen Genel Başkanımız Erkan Baş'a Parti Sözcümüz Sera Kadıgil, Emek ve Özgürlük İttifakı bileşenleri, EMEP Genel Başkanı Selma Gürkan, HEDEP Hakkari Milletvekili Vezir Coşkun Parlak, SMF Sözcüsü Barış Kayaoğlu, TÖP MK… pic.twitter.com/yZT1trB5SE— Türkiye İşçi Partisi (@tipgenelmerkez) October 25, 2023
Party spokesperson Sera Kadıgil stated "If Justice Minister Tunç had the capacity to understand the reasoned judgments he read, he should have read the ones given before and not made nonsensical comments. If he tries to keep an MP, who has been held captive for months, imprisoned for four more days, not only he, but also other officials commit a crime of duty."
Parti Sözcümüz Sera Kadıgil, #ÖzgürlükYürüyüşü devam ederken Hatay Milletvekilimiz Can Atalay'a ilişkin AYM kararını değerlendirdi:— Türkiye İşçi Partisi (@tipgenelmerkez) October 25, 2023
"Adalet Bakanı Yılmaz Tunç’un okuduğu gerekçeli kararları anlama kapasitesi olsa bundan önce verilen gerekçeli kararları okuyup saçma sapan… pic.twitter.com/VWcnG68ff2
Kadıgil referred to the previous case of former Peoples’ Democratic Party (HDP) lawmaker Ömer Faruk Gergerlioğlu who was held in prison for five days despite the AYM’s decision.
The main opposition Republican People’s Party (CHP) leader Kemal Kılıçdaroğlu also shared a message on X, "The top court’s decision is of vital importance for the remaining shreds of democracy and judicial independence in our country. The court of first instance should immediately fulfill the requirements of the decision, as the law dictates, and our country should get rid of this shame."
Anayasa Mahkemesinin, Hatay Milletvekili Can Atalay için verdiği hak ihlali kararı, ülkemizde kırıntısı kalan demokrasi ve yargı bağımsızlığı için hayati öneme sahiptir. İlk derece mahkemesi kanunların da emrettiği üzere, bu kararı derhal yerine getirmeli, ülkemiz bu utançtan…— Kemal Kılıçdaroğlu (@kilicdarogluk) October 25, 2023
Under the Constitution's 83rd Article, 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 of crimes mentioned in the 14th Article 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."